Where the injured ship went ashore and those in charge
wilfully refused assistance to get her off, it was held that
her owners coidd not recover for loss arising from the
obstinacy of those on board (r).
If the injm-ed vessel is abandoned unjustifiably, the
other vessel, though in fault for the collision, is not liable
(o) The Gcorcjc and The Richard,
L. R. 3 A. & E. 466. See also as
to this subject per Martin, B., in
Wilson V. Newport Bock Co., L. R.
1 Ex. 177, 187.
[p) The City of Lincoln, 15 P. D.
15.
[q) The Hannah Park and The
Lena, 2 Mar. Law Cas. 0. S. 345 ;
The Thuringla, 1 Asp. Mar. Law
Cas. 283.
(r) The Flyimj Fish, Br. & Lush.
436 ; 2 Mar." Law Cas. 0. S. 221.
DAMAGES. 115
for a total loss, but only for the actual damage done in the
collision (.v).
The question whether the abandonment of a ship injured
by collision was justifiable is for the Court to decide upon
the particular circumstances of each case. In considering
it the Cornet will not be exacting in requiring those on
board to stand by her. In The Blenheim if) Dr. Lushing-
ton said : " When a collision takes place on a dark night,
particularly at a tempestuous period of the year, and when
the vessel producing the collision is of greater bui"den than
the one struck, I cannot possibly settle with satisfaction to
my own mind, or security to justice, what ought to be the
reasonable extent of fear and apprehension to the crew of
the vessel so struck. It is impossible for any Court of
justice to say, with any degree of certainty, what are the
precise circumstances that would justify the abandonment
of a vessel. If there be any reasonable prospect that the
lives of the crew are endangered, I have determined, and
I will do so, until I am overruled, that they are justified
in quitting the vessel, and the consequences must fall on
the wrong-doer " {\i).
If a ship is improperly abandoned after a collision, her
owner will not be entitled to recover as damage caused by
the collision, either the value of the ship, or salvage ex-
penses payable upon her being brought into port {x).
The Tliuritigla, a steamship which had been run down
by the fault of another vessel, was improperly abandoned,
and subsequently sank. It was held that she could recover
no more than the expense which would have been incurred
in making good the damage caused by the collision (//).
The collision occurred sixteen or eighteen miles from
Heligoland in fine weather ; the ship remained afloat three
(«) The Thuriiiffia, iibi supra. 546 ; T/tc Lindsay, Ir. Rep. Ad. 1
(0 1 Spinks' E. & A. 285, 289. Eq. 259.
{>() See also The Linda, Sw. 306 ; (x) The Linda, Swab. Ad. 306.
30 L. T. 224 : The Hope and The {>/) The Thuringia, 1 Asp. Mar.
Chili, 2 Mar. Law Cas. O. S. Dig. Law Cas. 283.
1 2
116
DAMAGES.
Neglect to
repair injury
received in
the collision.
Neglect to
beach.
Owner not
requii-ed to
raise ship
Slink in col-
lision.
hoiu's after the collision, and miglit have been taken to
Heligoland.
In another case (;:) no attempt was made to repair the
damage received in the collision, such damage consisting in
a small hole which might easily have been stopped. In
consequence of the hole being left unstopped the cargo
was injured by water. It was held that the cargo owner
could not recover damages against the other ship, although
she was in fault for the collision. The duty of the master
of the injured ship to take proper steps to preserve, and,
under some circumstances, to sell, an injured cargo, has
been considered in several cases {a). It was held negli-
gence in a master not to have discharged a cargo of beans
which were wetted in a collision (b). Where a cargo was
damaged partly by the collision and partly by the master's
negligence in not carrying it on to the port of discharge
^vithout delay, it was held that damages for loss arising
from the latter cause were not recoverable in the collision
action (c) . The Court will not, upon the application of the
owner of a ship damaged in collision, order her sale (d).
A steamship at anchor in the Elbe (800 feet wide) was
run into by the negligence of another ship. It was held
that her owners were not entitled to recover as damages
the cost of raising her. She sank some hours after the
collision, and no water reached the engine room for half
an hour after the collision. There was evidence that she
might and ought to have been beached (e) .
But where a ship is sunk at sea by collision, there is no
obligation upon the owner to raise her, even if it would be
possible to do so (/). If he elects to raise her, and it turns
(z) The Bolides y 3 Hag. 367.
\a) See Carr/o ex Argos, L. R. 5
P. C. 134, 165 ; and cases there
cited.
[b) Notara v. Henderson, L. R. 7
Q. B. 225 ; and see The Elina, 5
P. D. 237, note; The Bernina, 12
P. D. 36; 13 App. Cas. 1.
(c) The Elina, 5 P. D. 237, note.
{d) The Wexford, 13 P. D. 8.
[e) ThelJama, 6 Asp. M. C. 268.
(/) 77(rCW/««i?«, 3 W.Eob. 158.
The principles of abandonment as
applied in insurance cases do not
apply in collision cases ; ibid. 165.
DAMAGES.
117
out, upon a survey, that she is uot worth repaiiing, lie is
entitled to recover as damages the expense of raising and
docking her, less her value in the dock (g). If he repairs
her at a cost exceeding her value before collision, he cannot
recover the cost of repairs beyond such value ; nor any-
thing in the natm-e of demui-rage (A). If, acting as a
prudent owner, he elects not to repair, and sells her, he is
entitled to recover her value at the time of collision, less
the proceeds of sale, together with interest from the date
of the collision (/).
Damages for loss occurring dm-ing, or after, and in conse- Damages
quence of, the collision, but caused partly by negligence of plainJiff-s ^
the plaintiff, cannot be recovered as having resulted entirely "!5^&'^"^°.
•I ' 1 • 1 T ii IT • after collision.
from the defendants negligence which caused the collision.
Where, by the omission to cut a lanyard wliieli held
together two ships which had been in collision, the damage
was increased, it was held to have been caused partly by
the plaintiff's negligence in not cutting the lanyard (k).
So damage to one vessel by the fluke of the other's anchor
was held to have been caused by the negligence of both
ships, though the collision was caused entirely by the fault
of the iujiu'cd vessel, the circumstances being such that the
collision would have been harmless but for the fact that
the other vessel's anchor was in an improper position (/).
If the damage received in a collision is greater than Damage
would ordinarily be the case because the injured ship was ^vea^statc^
in a weak condition, the other is not the less liable for the ^^ injured
vgssgI
entire loss, if she is in fault for the collision. The principle
is, that if a part of the damage was clearly attributable to
the wrongdoer, and it is impossible to di-aw the Hue with
precision, and to say how much, the wrongdoer must make
good the whole loss {7n) ; but where the damage occasioned
(g) The impress Eugenie, Lush. & Lush. 436 ; OriU v. General Iron
138. Screiv Collier Co., L. R. 1 C. P. 600 ;
(//) Hid. ibid. 3 C. P. 476.
(() T}ie South Sea, Swab. Ad. 141. {/) The Margaret, 6 P. T). 76; cf.
(A-) The Massachusetts, 1 W. Rob. The Scotia, 63 L. T. N. S. 3'2i.
371 ; see also The Flgiug Fish, Br. [m) The Egyptian, 2 Mar. Law
118
DAMAGES.
Consequential
damages.
Loss of
expected
salvage.
Loss of
freight.
by tlie collision can be easily discriminated, defects disclosed
in consequence of the collision, though existing prior to it,
cannot be charged against the defendant {n).
What have been called consequential damages — that is
to say, damages beyond the value of the ship or the cost of
repairs — may in some cases be recovered (o).
Where a smack was run down whilst engaged in per-
forming a salvage service, she recovered the sum she would
have received as salvage reward had she not been prevented
from completing the service (^;).
So freight which the injured ship is at the time of the
collision engaged in earning, or under contract to earn, less
the charges which would have been incurred in earning it,
together with interest from the probable termination of
the voyage, is always allowed as damages (q). " Loss by
contact is, amongst other things, loss of the freight which
the ship would have earned if she had not been crippled
by the collision " (r). Where a ship was run down whilst
on a voyage to Norway to bring home a cargo of lobsters,
and another ship was taken up for the purpose, it was held
that the freight of the lobsters was recoverable as conse-
quential damages {s) .
So the increase in value of cargo on board and belonging
to the owner of the injured ship, which would have arisen
had the cargo been carried to the port of discharge, and
which by the collision the owner is prevented from earning,
may be recovered as damages in the collision action (t).
Cas. 0. S. 56 ; The Bernina (No.
3), 6 Asp. M. C. 65 ; The Sam
Gaty, 5 Bissel, 190 (Amer. case).
But see The Albert Edward, 44 L.
J. Ad. 49 (damage to a mooring
dolphin too weak to bear an ordi-
nary strain).
(«) The Princess, o Asp. M. C.
451.
(o) As to -whether the question of
consequential damages is for the
Court or the registrar and mer-
chants, see below, pp. 323, 324.
(p) The Beisei/ Caines, 2 Hagg.
Ad. 28.
{q) The Northumbria, L. R. 3 A.
&E. 6.
(r) Per Erie, C. J., Heard v.
Eolman, 19 C. B. N. S. 1, 10. As
to the cost of caiTying goods to
their destination, see Pose v. Miles,
4M. & S. 101.
(«) The Yorkshireman, 2 Hagg.
Ad. 30, note.
{t) The Thyatira, 8 P. D. 155.
DAMAGES.
119
If the injured ship sinks in consequence of the collision, Salvag-e
the expenses of raising and docking lier are recoverable
as damages (ii). And salvage or towage (x) expenses,
whether incurred hy the owner, or paid by him to salvors,
are recoverable as damages, if they are incui-red properly,
and are in consequence of injury received in the colli-
sion (i/) . And the costs of both parties in a salvage action
have been recovered (z) ; but in a later case some doubt
was thrown upon this decision (''/) . The expense of bail
in a salvage action is clearly not recoverable (b).
The cost of detaining the sliip's officers whilst the ship Cost of
was being repaired has been allowed as damages, where it officers and
was proved that the custom of the trade was not to dis- ^^^''^^
charge the officers at the end of the voyage (c) . In America
the cost of detaining the crew after the collision, and of
attempts to save the cargo, has been allowed (^/).
Where it was proved that the market value of a yacht DiminLshed
sunk in a collision was diminished, it was held in Ireland
that in addition to the smn required for repairs, the differ-
ence between her market value before and after the colli-
sion was recoverable as damages {e).
Where the owners suffer loss by the enforced idleness of Demurrage,
their ship which has been injured in a collision, demurrage
is allowed by way of damages whilst the necessary repairs
are being effected. And demurrage runs whilst the ship is
detained for the transaction of business connected with the
collision, such as making a protest and obtaining the neces-
sary official documents (/') .
{u) The Empress Engenie, Lush, doer in the collision.
138. {a) The British Commerce, 9 P.
[x) The Inflexible, Sw. 200. D. 128.
(V) The Linda, Swab. 306 ; The [b] Ibid.
Diana, 2 Asp. Mar. Law Cas. 366 ; (c) The In/exible, Swab. 200.
The Williamina, 3 P. D. 97, 99. \d) Hofman v. Union Ferry of
(r) TheLegatm, Swab. 168. Not- Brooklyn, 68 New York Rep. 385.
â– withstaudiug Tlndall v. Bell, 11 M. {e) The Geon/iana and The Anyli-
& "W. 228, it is not necessary that can, 21 "\V. Rob. 280.
the defendant in the salvage action (/) The City of Buenos Ayres, 1
shoidd in all cases make a tender, Asp. Mar. Law Cas. 169 ; The
so as to entitle him to the costs of Clarence, 3 W. Rob. 283 ; The In-
the salvage action from the wi'ong- ^flexible. Swab. 200 ; The Star of
charter-party.
120 DAMAGES.
Where damages are estimated upon the footing of a
total loss, although in fact the ship is subsequently saved
and repaired, with the exceptions mentioned above, no
more than the shij^'s value at the time of the collision can
be recovered. In such a case nothing will be allowed for,
or in the nature of, demurrage (r/).
In some of the cases {h) where damages were allowed in
respect of the loss of a specific voyage, demurrage dming
the probable duration of the voyage appears to have been
allowed ; this was clearly wrong (/) .
^oss^of ^ ^ Where, in consequence of the collision, a vessel lost the
benefit of a charter, damages were allowed for the loss
of the charter-party in addition to demurrage (k) .
The principle uj^on which loss of a charter is allowed as
damages is that the value of the charter is an accurate
measure of the value of the ship to the owner during the
time she is under repair, or is otherwise by reason of the
collision prevented from earning money or being of use to
her owner. Where at the time of the collision there is no
existing charter, but there is a contract under which the
ship is engaged to sail upon a profitable voyage, the pro-
bable earnings of the ship under the contract will be allowed
as damages. T/ic Argentino, at the date of the collision,
was under an engagement to take in a cargo at Antwerp
for Batoum, taking the place of one of a line of ships
advertised to sail between Antwerp and Batoum. It was
held by the House of Lords, affirming the decision of
Bowen and Lindley, L.J J. (diss. Lord Esher, M.E.),
India, 1 P. D. 466. As to demur- fei'red to the registrar of Her
rage where the injured ship is one Majesty in Ecclesiastical and Ad-
of a line advertised to sail at fixed miralty Appeals, and not to the
dates, see The Black Frince, Lush. registrar of the Court below. As
568. In The Cit>j of Peldnr/, 15 Ap. to the usual rate of demuiTage, see
Ca. 438, a claim for demurrage, The Cit;/ of Buenos Aijres, ubi sup.
whilst a substituted vessel belong- (r/) 'The Columbus, 3 W. Rob. 158.
ing to the same owners did the (A) The Hiar of India, 1 P. D.
work of the injured vessel, wasdis- 406 ; The Consett, 5 P. D. 229.
allowed. In an appeal to the Privy (J) 'The Argentino, 14 App. Cas.
Council, in order to save expense, a 519, 523.
claim for the expenses of the in- (/:) 'The Star of India, ubi supra;
jured vessel whilst in port was re- The Consett, nbi supra.
DAMAGES.
121
that tliere should he allowed as damages hy the collision
"the ordinary and fair earnings of such a ship as The
Argentino, having regard to the fact that she was put up
as one of W. and L.'s line of steamers trading to the Black
Sea, and adveiiised as such" (/).
A fishing smack recovered, besides the value of her nets T/0'*« of
and gear which she was obliged to cut adrift, the amount voyage,
she might reasonably have expected to earn during the
rest of the season {m). But it was held by Sir J. llanneu
in a recent case that, where the boat is totally lost (in the
ease before the Comt she was a French boat sunk by
collision on the banks of Newfoundland), the prospective
catch of fish could not be recovered, and the damages were
confined to the value of the boat and gear {n) ,
Damages which, altliough consequent upon the collision, Remoteness
do not immediately or necessarily fiow from it, cannot be ° ° '
recovered against the ship in fault for the collision (o).
Where the master and part- owner of a vessel lost by colli-
sion claimed his probable future earnings as master, and
profits as part-owner, it was held tliat he was entitled to
nothing more, by way of damages, than tlie value of the
ship at the time of the collision {p). And where a vessel
put into port for repairs necessitated by collision, and her
cargo of fruit was necessarily discharged to enable the
repairs to be made, and reloaded, damage occasioned partly
by handling and partly by natural decay dimng the delay
was held not to bo damage " consequent upon collision,"
within the meaning of a policy of insurance {q) .
It has never been the practice to give damages for loss Loss of
market.
[J) The Argentino, 13 P. D. 191 ; 588 seq. ; and per Martin, B., in
14 App. Cas. 519. Wilson v. lieu-port Dock Co., L. K.
{m) The Gleaner, 3 Asp. Mar. 1 Ex. l77, 187. As to whether re-
Law Cas. 582 ; The Clarence, 3 W. moteness is a question for the re-
Rob. 283, 286 ; The Jiisoluio, 8 P. gistrar or the Court, see infra,
D. 109. In Roman law aliter, p. 324.
D. 9, 2, 29, 3. ip) The Columbus, 3 W. Rob. 158;
[n) The Citij of Rome, Ad. Div. and see The Clarence, ibid. 283. As
11th May, 18S7. to probable catch of fish, Abordage,
(o) As to remoteness of damages, Nautique, Caumont, s. 148.
see Mayne on Damages, 3rd cd. {q) Tink v. Fleming^ 25 Q. B. D.
40 seq. ; 2 Smith's L. C, 9th cd. 396.
122
DAMAGES.
Damages for
loss of life.
Damages in
proceedings
by Board of
Trade.
of market for cargo on board a ship injured by collision (r).
The difference between the price of the goods when they
arrive at the port of discharge and the price when they
ought to have arrived, and but for the collision would have
arrived, is so uncertain that it cannot be held to be the
reasonable consequence of the collision. It has been sug-
gested that there is a distinction between an action for tort
and an action upon the contract of carriage, and that
damages for loss of market may be recovered ru the former
but not in the latter form of action. There seems to be no
ground for such a distinction (-s).
Damagres for loss of life are recoverable under Lord
Campbell's Act {t) by the relatives or legal personal repre-
sentatives of persons killed in a collision in a personal
action agaiust the person liable, but not in proceedings in
rem (ti) .
Under 17 & 18 Yict. c. 104, the Board of Trade has
power to institute proceedings for the recovery of damages
for loss of life or personal injury. Damages recovered in
such proceedings are assessed at 30/. for each case of death
or injury, and are payable in j)riority to other claims.
This, however, is not the limit of the o-^Tier's liability.
The full amount to which he is liable under 25 & 26 Yict.
c. 63, s. 54, can be recovered in proceedings, either by the
Board of Trade or by any person dissatisfied with the
amount recovered in the Board of Trade proceedings. If
the amount of the owner's statutory liability is insufficient
to provide damages at the rate of 30/. for each claimant,
the claims abate rateably (x).
(r) The Parana, 2P.D. 118, 124;
TJte Xotting Hill, 9 P. D. 105 ; Smith
V. Condry, 1 How. 28; The Jos.
W. Dyer v. National Steamship Co.,
14 BlatcM. 483. See, however,
France v. Gaudet, L. R. 6 Q. B.
199, where the price of goods con-
tracted to be sold at a profit was
recovered in an action for conver-
sion.
(«) Tlie Kottinrj Hill, ubi supra.
{t) & 10 Vict. c. 93 ; 27 & 28
Vict. c. 95. As to assessment of
damages by a jury in the Admhalty
Division, see The Oncell, 13 P.
D. 80.
(«) See below, p. 144.
{x) See 17 & 18 Vict. c. 104, ss.
507—516; 25 & 26 Vict. c. 63,
s. 56 ; Glaholm v. Barker, L. R. 2
Eq. 598 ; S. C, L. R. 1 Ch. 223 ;
see also The Franconia, 2 P. D.
DAMAGKS, 123
A penalty of 50/. in addition to damages can be recovered rojifilty for
against a ship that injures a light-ship {//). light-ship.
Full damages may be recovered by the injured party Damages
though he has been compensated for the whole or part of pal^'^by^^^
his loss by his insurers (c). But, as will be seen below {(i), insurerg.
he will hold such damages as he may recover, to the ex-
tent of the sum received from his insurers, in trust for his
insm-ers.
Damages recoverable by a cargo-owner, or by a pas- Damages rc-
senger, upon the contract of carriage, are such as " a man can'^o-owne^
when making the contract would contemplate would flow upon the
from a breach of it "(6). This somewhat vague rule is carrian-e.
the only one to be extracted from the cases. It is beyond
the scope of this work to discuss the general subject, and
it is sufficient here to state that a breach of the contract
of carriage, consisting in negligence of the carrier causing
collision and loss of the goods carried, has tlie same effect
as regards liability to damages as a breach of the contract
in any other respect (c).
The shipowner's general liability as carrier is considered
elsewhere (d).
The rule as to division of loss where both ships are in Effect of tho
fault, whilst it extends the rio^ht to recover damajres bv V^^^ ^^ ^"^
' _ " _ o J d.1 Vision or
superseding the common law doctrine of contributory loss upon the
negligence, also limits the amount of damages recoverable daina"es're-
to one-half the claimant's loss. In the case of an owner coverable.
of cargo on board one ship suing tho other in tort, it
abridges to this extent his common law right to recover
1G3, IGG. It is believed that pro- Q. B. Ill, 121.
ceedings under this Act have been {c) As to the subject generally,
taken once tmly, in tho case of The see Mayne on Damages, 4th ed.
Jo/i)i. pp. 12 xeq. ; Sedgwick on Damages,
(y) 17 & 18 Vict. c. 104, s. 414. 7th ed. vol. 1, 431 seq.; vol. 2, 91
(s) Yates V. Whi/tr, 4 B. N. C. .vq. The Param, 1 P. D. 452 ; 2
272; Bradburn v. Great Western P. D. 118; MeJfahon v. Fieid, 7
Mail. Co., L. R. 10 E.x. 1. Q. B. D. 591 ; LUlei/ v. Loiibleday,
(a) P. 295. ib. 510, are amongst the later casea
[b) Per Blackburn, J., Hobhs v. on the subject.
London .J- S. 11'. liuil. Co., L. R. 10 (rf) Infra, p. 281.
124 DAMAGES.
full damages. But it does not affect his riglit to recover
full damages upon the contract of carriage (e). And if
part of the loss has been recovered in damages against the
owner of the carrying ship, the balance up to one-half the
loss may be recovered against the other ship (_/'). The
effect of the rule as to division of loss is fully considered
in another chapter (g).
The Acts limiting the shipowner's liability largely affect
the amount of damages recoverable by the sufferer in a
collision. These enactments also are fully considered in
another chapter (A) .
{e) See Chartered Mercantile Bank (/) The Demetrius, L. R. 3 A. &
of India V. Netherlanda India Steam E. 523.
iSfavigation Co., 9 Q. B. D. 118 ; 10 {g) Infra, p. 125.
Q. B. D. 521 ; The Bushire, 5 Asp. [h) Infra, p. 161.
M. L. C. 416.
( 125 )
CHAPTEE VI.
THE RULE AS TO DIVISION OF LOSS.
For the purpose of determining by whom and in what The four cases
shares the loss is to be borne, collisions between shijis have
been divided into four classes. " In the first place it
(collision) may happen without blame being imputable to
either party, as where the loss is occasioned by a storm or
other vis tnajor. In that case the misfortune must be
borne by the party on whom it happens to light, the other
not being responsible to him in any degree. Secondly, a
misfortune of this kind may arise where both parties are to
blame — where there has been want of due diligence or
of skill on both sides. In such a case the rule of law is
that the loss must be apportioned between them, as having
been occasioned by the fault of both of them. Thirdly, it
may happen by the misconduct of the suffering party
only ; and then the rule is that the sufferer must bear his
own bui'den. Lastly, it may have been the fault of the
ship which ran the other down ; and in this case the inno-
cent party would be entitled to an entire compensation
from the other " {(().
The dictum of Lord Stowell is here cited as a clear
statement of the modern ride of the maritime law as ad-
ministered in England with reference to the incidence of
(«) Per Lord Stowell (then Sir rille, cited 2 Shaw's App. Cas. 395,
W. Scott), The IVoodrop Sims, 2 is a dictum to the like effect.
Dods. 83, 85. In The lord Mel-
126 THE RULE AS TO DIVISION OF LOSS.
loss in case of collisiou. It has been universally accepted
as such, cited with ajiproval in the House of Lords (b), and
frequently acted upon by the Courts for the last seventy
years. But it must here be pointed out, that in one im-
portant particular Lord Stowell's statement of the case
in which the rule of division of loss is applicable is not
in accordance with previous decisions of the Court of