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own loss, and compensate the other party for the loss he may
sustain, {m) The nearly universal maritime law is, that where a
collision takes place from causes which could not have been
prevented by any efforts reasonably required, and no blame is
imputable to either party, the loss must rest where it falls ; and
he who suffers it has no claim on the other, {n) We have

* 309 called * this a nearly universal rule, for the only excep-

tions we know of prevail at Hamburg and at Calcutta, and

have given rise, in both ports, to a difficult question of marine

insurance, which will be treated of in the chapter on that subject.

If both ships are equally, or if, though not equally, yet both

substantially in fault, the rule may not be so certain. The com-

ij) Baker v. Manuf. Ins. Co. Sup. («) The Woodrop-Sims, 2 Dods. 83;

Jud. Ct. Mass. 14 Law Reporter, 203. The Celt, 3 Hagg. Adm. 328, note ; The

(k) Id. But see Montoya v. London Itinerant, 2 W. Rob. 236; Stainback v.

Ass. Co. 6 Exch. 45L Rae, 14 How. .532; The Atlanta, 41 Fed.

(/) Gordon v. Bowne, 2 Johns. 150; Rep. 639. An inevitable accident is de-
Brown v. Neilson, 1 Caines, 525. fined in The Virgil, 2 W. Rob. 201, to be

(//) Grill f. Iron Screw Collier Co., "that which the party charged with the

Law Rep. 1 C. P. 600. offence could not possibly prevent by the

(m) The Scioto, Daveis, 359 ; The exercise of ordinary care, caution, and

Woodrop-Sims, 2 Dods. 83 ; Reeves maritime skill."
V. Ship Constitution, Gilpin, 579 ; The
Sappho, 9 Jur. 560.



mon law would seem to lead to the same result as where there is
no fault, because at common law a plaintiff has no remedy for
a loss caused by an accident, if his own negligence was a sub-
stantial cause of the accident. And it has been said, that if it
contributed in any degree whatever to the accident he has no
remedy, (o) It has however been held, that admiralty divides the
loss if both vessels are in fault, (p) ^

If it is certain that there was fault, and it cannot be ascer-
tained on which party the fault lies, there might be reason for
saying, that the result should be the same as in the case where it
is known that both are in fault. There is, however, ground for
saying that common law would now divide the loss between the
two vessels ; and perhaps still stronger ground for asserting this
to be the rule of admiralty, (q) And according to very high
admiralty authority in this country, the loss must be equally
apportioned where there has been no fault, or fault on both sides,
or fault with an uncertainty on which side, (r) In the uncer-
tainty which still rests upon this rule, it may be believed that
the equity power of the court of admiralty would be sufficient,
and would be exercised for the purpose of doing justice in the
case. And it has been said by the Supreme Court of the United
States, that the rule dividing the loss is, under the circum-
stance usually attending such disasters, just and equitable,
* and tending most strongly to induce care and diligence * 310
on both sides, (s) It cannot be denied, however, that the
highest authorities appear to hold different opinions on this
subject. (^)

(o) Dowell V. Gen. Steam Nav. Co. 5 (7) See The Catherine of Dover, 2

Ellis & B. 195; Gen. Steam Nav. Co. v. Hagg. Adm. 145; The Scioto, Daveis,

Mann, 14 C. 13. 127 ; Gen. Steam Nav. 359 ; Lucas v. Steamboat Swann, 6 Mc-

Co. V. Tonkin, 4 Moore, P. C. .314 ; Simp- Lean, C. C. 282 ; 'J'he Nautilus, Ware, 2d

son V. Hand, 6 Whart. 311; Barnes v. ed. 529.
Cole, 21 Wend. 188. (»•) The Scioto, Daveis, 359.

ip) Vaux V. Sheffer, 8 Moore, P. C. (s) Sch. Catherine v. Dickinson, 17

75; The Victoria, 3 W. Rob. 49; The How. 177.

Montreal, 24 P:ng. L. & Eq. 580 ; Allen (t) Valin favors the rule. Liv. 3, tit.

V. ^ Mackay, Sprague, 219; Sch. Cath- 7, des Avaries. Cleirac calls it a Judi-

erine v. Dickinson, 17 How. 177; Rogers ciiivt rusticum. See also De Vaux v. Sal-

V. Steamer St. Charles, 19 How. 108 ; vador, 4 A. & E. 420, per Lord Denman,

Gushing v. The John Eraser 21 How. C. J.
184, 195.

^ Where both vessels are in fault for a collision, the maritime rule is to divide the
entire damage equiilly between them, and to decree half the difference between their
respective losses in favor of the one tiiat suffered most, and the statute of limited lia-
bility does not apply until a balance is struck. The North Star, lOfi U. S. 17; The
Oregon, 45 Fed. Hep. 62 ; The Stoomvart Maatschappy Nederland v. Peninsular, &c.
Co. 7 App. Gas. 795. And this rule is applied though one vessel was guilty of reck-
less negligence and the other of a comparatively venial error. Ocean S' S. Co. v.
Apcar, 15 App. Cas. 37.



It lias beeu held, that, where both parties are wilfully in fault,
the court will not interfere in favor of either party, (u) If a vessel
be thrown against another with no voluntary action w^hatever on
the part of her master or crew, she is not liable, {v) In England
it has been held, that if a vessel has been employed by govern-
ment, and is under the charge of a naval officer, she is not liable
for damages caused by a collision, which was itself caused by his
orders, (tv)

In England, and in this country by an act of Congress, and by
some State statutes, (x) the responsibility of a ship for such dam-
ages is limited to the value of the ship and her cargo.

Wherever any injurious collision occurs, if any imputation of
negligence is thrown by the evidence on either vessel, her owners
must prove that this negligence was not a substantial cause of
the collision : (i/) and, on the other hand, a plaintiff in a cause of
collision must offer evidence tending to prove both his own care,
and the want of care by the defendant, if his claim rests upon
the defendant's negligence. (2) It would be a sufficient want of
care, if, although the collision could not have been prevented
when it occurred, it might have been prevented by previous
proper precaution, (a) And there are precautions which usage if
not law seems to require.

The principal among these is that of showing a light at night,
if a ship lies in a river-way, or in a stream, under circum-

* 311 stances * which would make the light proper, (b) A statute

of the United States requires such light on certain steam-
boats, (c) and in New York it is required on board canal-boats ;

(m) Sturges v. Miirphv, U. S. C. C, (a) The Virgil, 2 W. Rob. 20.5 ; Steam-

N. Y., Bostou Courier, Sept. 19, 1857. boat New York !•. Rea, 18 How. 224 ; The

On appeal the court did not consider that Clement, 2 Curtis, C. C. 363 ; Wright v.

the facts made the collision one of tliis The Intrepid, 45 Fed. Rep. 775.

nature, but the rule appears to have re- (b) The Rose, 2 W. Rob. 4; The Vic-

ceived the assent of the court. Sturgis toria, 3 ^V. Rob. 49 ; The Scioto, Daveis,

!). Clough, 21 How. 451. 359; Lenox v. Winisimmet Co. Sprague,

((•) Kissam v. The Albert, 21 Law 160; Kelly v. Cunningham, 1 Cal. 365;

Rep. 41. See also The Moxey, Abbott, The Indiana, Abbott, Adm. 330; Rogers

Adm. 73. r. Steamer St. Charles, 19 How. 108;

(u) Hodgkinson v. Fernie, 2 C. B. Car.slev v. White, 21 Pick. 254; Barque

(n. s.) 415. See also Fletcher v. Brad- Delaware v. Steamer Osprev, 2 Wallace,

dick, 5 B. & P. 182. C. C. 275 ; Gushing v. The John Fraser,

(.r) See pnst, *335, n. (a). 21 How. 189 ; Nelson ;•. Leland, 22 How.

(y) The Sth. Lion, Sprague, 40 ; Clapp 48 ; The Steamer Louisiana r. Fisher. 21

W.Young, 6 Law Rep. Ill; Waring v. How. 1; Culbertson v. Shaw, 18 How.

Clarke, 5 How. 441 ; Cushing v. The John 584 ; Ure v. Coffman, 19 How. 56 ; New

Fraser, 21 How. 184. York & Virginia Steamship Co. v. Calder-

(z) Carslev v. White, 21 Pick. 254; wood, 19 How. 241.

New Haven S. B. Co. v. Vanderhilt, 16 (c) The Stat. 1838, c. 191. § 10, 5 t. S.

Conn. 420 ; Kennard y. Burton, 25 Maine, Stats, at Large, 306, is applicable to

39; Davies r. Mann, 10 M. & W. 546; steamboats generally. That of 1849,

The Clara, 102 U. S. 200. c. 105, § 5, 9, U. S. Stats, at Large, 382,



and wherever such light is positively required, its absence would
be negligence, {d) It is quite common for a vessel in a dark
night, or in a heavy fog, to sound a horn, or ring a bell, or at
brief intervals make other noises to indicate her position. But
there is no statute on this subject, nor any distinct and peremptory
usage, {e) ^

It is certain that all vessels, whether anchored if) or under
way, {g) ^ should have a competent watch or look-out on deck ; and
neither the master of a steamer nor the helmsman is, generally, a
competent watch, as they must attend to their own duties, {gg)

If ships approach each other, that which is going free must
give way to that which is close hauled ; (A) unless this would be
dangerous from the nearness of the shore, or of a rock or shoals.

If both are close hauled, each should go to the right, or the
ship on the starboard tack keeps on, while the ship on the lar-
board tack changes her course, [i)

An English statute requires, that on vessels, whether under
steam or canvas, meeting or coming toward each other in such
way as to cause a risk of collision, the helms of both ships shall
be put to port, whether they be on the port or starboard tack, and
whether they are close hauled or not, unless the circumstances
of the case make a compliance with the rule immediately
* dangerous. (/) The effect of this would be that the two * 312
vessels pass on the port side of each other. The phrase
"close hauled " means usually that a vessel is as near the wind
as she can go ; and such a vessel on the starboard tack cannot
put her helm to port, without coming into the wind and losing

prescribes the rules for steamboats and sail- The Sch. Lion, Sprague, 40; The Clara,

ing vessels on the northern and western 102 U. S. 200.

lakes. See Bulloch y. Steamboat Lamar, (7) Whitridge v. Dill, 23 How. 448;

8 Law Rep. 275 ; Foster v. Sch. Miranda, The Clement, Sprague, 257, 2 Curtis,

1 Newb. Adm. 227, 6 McLean, C. C. 221 ; C. C. 369.

Chamberlain v. Ward, 21 How. 548 ; Hall {rig) The Ottawa, 3 Wallace, 268.

V. The Buffalo, 1 Newb. Adm. 115. (h) The Gazelle, 2 W. Kob. 515 ; Allen

((/) Rathbun y. Payne, 19 Wend. 399 ; v. Mackav, Sprague, 219; The Brig

Fitch y. Livingston, 4 Sandf. 492 ; Steam- Emilv, Olcott, Adm. 132; The Rebecca,

boat New York v. Rea, 18 How. 223. 1 Blatchf. & H. Adm. 347.

(e) McCready v. Goldsmith, 18 How. (/) The Jupiter, 3 Hagg. Adm. 320;

89 ; The Morning Light, 2 Wallace, 550. The Ann Caroline, 2 Wallace, .538.

(/) The Indiana, Abbott, Adm. 330 ; (/) Mercliants Shipping Act, 17 & 18

Vict. c. 104, § 296.

1 U. S. Stat, of Aug. 19, 1890, c. 802; 26 Stat. 320, provides elaborate regulations
concerning lights, signals for fog, sailing rules, &c. for the avoidance of collisions.
These regulations apply to all public and jirivatc; vessels of the United States upi)u the
high seas arid in all waters connected therewith navigable by sea-going vesstds.

2 The Nevada, 106 U. S. 154, held that an ocean steamer, starting from a crowded
slip, was liahhi for injury to a canal-boat drawn under the steamer's propeller, when
such an accident miglit have been avoided by employing a look-out. — K.



her way. And as the statute contains a proviso that due regard
shall be had, not only to the dangers of navigation, but to the
necessity of keeping close-hauled ships under command, the Eng-
lish Court of Queen's Bench has held, that close hauled in the
statute must mean on the wind, but not so close that she cannot
go closer and yet be under command. (Z;)

It has been said by American text-writers, (I) that where two
vessels are going the same course, in a narrow channel, and there
is danger that they will run into each other, that which is to
windward must keep away ; but it is obvious, that in such a case
the rule must be just otherwise ; for if the ship to windward does
keep away from the wind, and the ship to leeward does not keep
away, they will come together. Perhaps the writers supposed
that "keep away" meant to keep away from the other vessel;
whereas " keep away" as a sea term always means to keep away
or turn off from the wind. The general rule must be, that if
the vessel astern is the faster sailer, she must in passing the
other keep out of her way. (??i)

If two steamboats approach, they must go to the right of each
other, (n) As they can always move in any direction, they are
considered by law and usage as vessels which always have a free
wind. Their extreme power and speed lay upon them the obli-
gation of extreme watchfulness, (o) ^ Many cases illustrate this ;
and where the laws of a place forbid a vessel from going

* 313 * beyond a certain speed, in certain waters, it is no excuse,

in case of collision, that the vessel was going within that
speed, if its speed was then dangerous, (p) Nor is it an excuse

(k) Chadwick v. City of Dublin Steam 461 ; Union Steamship Co. v. New York,

Packet Co. 6 Ellis & B. 771. &c. S. Co. 24 How. 307 ; Wheeler v. The

(/) 3 Kent Com. 230 ; Abbott on Ship. Eastern State, 2 Curtis, C. C. 141.

Am. ed. 234 ; Flanders on Mar. Law, 307, (o) The Europa, 2 Eng. L. & Eq. 564 ;

citing Marsh v Blythe, 1 McCord, 360. The Bay State, Abbott Adm. 235; Mc-

This case does not support the position for Cready v. Goldsmith, 18 How. 89 ; Steam-

which it is cited. boat New York v. Rea, 18 How. 223;

(»i) Whitridge v. Dill, 23 How. 448. Rogers v. Steamer St. Charles. 19 How.

This case virtually overrules the case of 108 ; Thomas Martin, The, 3 Blatchf.

The Clement, Sprague, 257, 2 Curtis, C. C. C. R. 517; Northern Indiana, The, id.

C. 363. 92.

(n) New York & Bait. Transp. Co. v. (p) Netherland Steamboat Co. v.

Philadelphia, &c. Steam Nav. Co. 22 How. Styles, 40 Eng. L. & Eq. 25.

' The Benefactor, 102 U. S. 214, declared that it is the imperative duty of a steamer
to keep out of the way of a schooner sailing close-hauled in clear weather, and with
unobstructed navigation. A tug and vessel connected by a hawser, being in contem-
plation of law one steam vessel, keep out of the wav of a sailing vessel. The
Civilita and the Restless, 103 U. S. 699. But a sailing vessel will not" be allowed to
unnecessarilv deviate from her course because a steamer is bound to look out for her.
The Illinois," 103 U. S. 298. —K.



that the vessel was under a contract with the government to
carry the mails at that rate, {pp) The American rule permits a
steamer to go either to the right or the left of a sailing vessel,
which has the wind free ; (q) the English statute rule requires
her to go to the right, and we prefer the English rule, {r) It has
been held in admiralty, that if the boats are running in opposi-
tion, both will be presumed to be in fault; at least primd
facie, (s) And in Louisiana, evidence that a boat was racing
was admitted to show negligence on her part, (t)

It may be said in general, that rules and usages known and
established should be complied with, because every vessel has a
right to expect that every other vessel will confoim to them, and
may govern herself accordingly. But a departure from a rule or
usage is not only justified when a compliance would be danger-
ous from special circumstances, but becomes a positive duty when
such compliance would endanger or injure another vessel, and
then a compliance with the rule or usage would be no excuse, (u)

It has been held in this country, that if two American vessels
collide in a foreign port, the rights of the parties, even in an
action in this country, will be determined by the law of the place
where the collision took place, (v) But in England it is held,
that in such a case, a party seeking a remedy has that which is
given him by the law of the country in which that remedy is
given and enforced, (i/^) It may be added that, in case of colli-
sion, it is unquestionably the duty of a ship which is without
fault to render all possible assistance to the injured vessel,
although that be in fault, (a^)

In measuring the damages in case of collision, all direct
and * immediate consequences are to be taken into con- * 314
sideratiou, with the losses and expenses flowing from
them, (i/)

(pp) James Adger, 3 Blatchf. C. C. R. General Steam Nav. Co. v. Guillou, 11

515. M. & W. 877 ; The Johaiin Friederich, 1

(q) The Osprey, Sprague, 245 ; Steamer W. Rob 35.
Oregon v. Rocca, 18 How. 570. (x) The Celt, 3 Hagg. Adm. 321.

(7-) 17 & 18 Vic. c. 104, g 296. (y) The Countess of Durham, 9

(*•) The Steamboat Boston, Olcott, Month Law Mag. (Notes of Ca.s.) 279;

Adm. 407. The Mellona, 3 W. Rob. 7 ; The Pensher,

(0 Myers v. Perry, 1 La. An. 372. 20 Law Kcj). 471 ; Ralston v. The State

(m) Allen f. Mackav, Sprague, 219; Riglits, Crabbe, 22; Steamboat Co. v.

The Vaiiderhilt, Abbott, Adm. 361 ; The Whilldin, 4 Ilarring. (l)ol.) 233. Com-

Friemls, 1 W". Rob. 478 ; The Commerce, pensation is allowed for the injury su.s-

3 W. Rob. 2«7 ; The Steamer Oregon v. tained by the detention of the vessel

Rocca, 18 How. 572; Crockett y. Newton, while repairing. Williamson r. Harrett,

id. 583. 13 How. Ill; The Argentine, 14 App.

{v) Smith V. Condrv, 1 How. 28. Cas. 519.

(w) The Vernon, "l W. Rob. 316



In admiralty, the lien which a ship injured by a collision has
upon the ship that causes the damage, continues long enough to
give the injured party a reasonable opportunity to enforce his
claim, (z)

We have hitherto considered only those questions arising
between the colliding vessels. But questions may also come up
between the owner of, and the shipper of the cargo in, the
injured vessel ; for the owner is responsible to the shipper, if the
collision was caused merely by a fault of the master, but not if
the collision were caused by a peril of the sea. (a) If, however, it
were caused by the fault of another vessel, wilfully, or by mere
negligence, and without any violence of wind or tide, or any
stress of navigation, we should doubt whether this would be
either a peril of the sea, (b) or the act of God, (c) or would excuse
the owner, whether a bill of lading was given or not. It has
been intimated, however, that a collision caused by no fault,
nor an act of God, or any inevitable accident, is nevertheless, in
itself, a peril of the sea.(c?)

Cases arising from collision are very frequent in the courts
having jurisdiction of them. In our note we give the most inter-
esting among the recent eases, {dd)

C. — Of Salvage.
1. What Salvage is.

This word has two distinct meanings in maritime law. It

sometimes means that which is saved from wrecked property,

{z) That the lien exists, and that it gence. The China, 7 Wallace, 53. Of
will be enforced even though the vessel the behavior of ships when meeting. The
be in the hands of a bona Jide purchaser, Kicliols, 7 Wallace, 656 ; Baker v. Steam-
provided there are no laches on the part ship City of New York, 1 Clifford, 75 ;
of the libellauts, is now well established. Wakefield v. The Governor, 1 Clifford,
The Bold Buccleugh, 3 W. Rob. 220, 93 ; Pope d. K. B. Forbes, 1 Clifford, 331 ;
Harmer v. BeU, 7 Moore, P. C. 267 ; Ed- The Scotia, 5 Blatchf. 227 ; 1 he Island
wards v. Steamer R. F. Stockton, Crabbe, City, 5 Blatchf. 264 ; The Scranton and
580. But this lien, like any other in Wm. F. Burden, 5 Blatchf. 400 ; Amos-
admiraltv, mav be lost by a delay to en- keag, &c. Co. r. The John Adams, 1 Clif-
force it. ' The' Admiral, 18 Law Reporter, ford, 404; The Illinois, 5 Blatchf. 256,
91. The Nellie D. 5 Blatchf. 245 ; The Ches-

(a) Buller v. Fisher, 3 Esp. 67 ; Wilson apeake, 1 Benedict, 23 ; The Favorita. 1

V. Cargo per Xantho, 12 App. Cas. 503. Benedict, 30; The Empire State, 1 Bene-

(h) Marsh v. Blvthe, 1 McCord, 360. diet, 57; The Cavnga, 1 Benedict, 171 ;

(c) Mershon v. Hobensack, 2 Zab. 372. The Electra, 1 Benedict, 282 ; The Havre

{d) Plaisted i-. Boston, &c. Nav. Co. and the Scotland, 1 Benedict, 295 ; The

27 Maine, 132. See also Steamboat New Jupiter, 1 Benedict, 536. Of the measure

Jersey, Olcott, Adm. 448 ; Wilson v. Car- of damages. The Ocean Queen, 5 Blatchf.

go per Xantho, 12 App. Cas. 503. 493; The Heroine, 1 Benedict, 226. What

(dd) That the necessity imposed by a is a proper look-out. The Parkersburg,

State law, of taking a pilot, does not pre- 5 Blatchf. 247.
Tent the liabilitv of the ship for his negli-



whether ship or cargo ; and questions respecting it in this sense
arise under policies of insurance, and will be considered in the
next chapter.

* It also means the compensation which is earned by * 315
persons who have voluntarily assisted in saving a ship or
cargo from destruction. This last sense is the more general, and
the more important; and it is of salvage in this sense that we
are now to treat.

The essential principle on which a claim to maritime salvage
rests, is confined to the sea ; being, as we apprehend, wholly
unknown on the land. Some intimations have been thrown out,
on high authority, that one who finds property lost on land and
labors to save it, may claim of the owner compensation there-
for, {e) But we believe there is no such rule or principle known
to the common law. ^

Not only is salvage in this sense confined to the law-merchant,
but it is generally confined to admiralty jurisdiction. It is
believed, that no action at common law would lie for maritime
salvage, unless the salvor could prove a contract with the owner
of the property saved. (/)

Salvors have a lien on the property saved until the case is
heard and a final settlement made, and this lien does not depend
on possession. (^) Sometimes the property is sold under a decree,
and the proceeds held to await the decree of distribution or
return. But the property is always returned to owners, if they
ask for it, and give bonds, or stipulations, as they are called in
admiralty, with suihcient security to abide and satisfy a final

2. By what Services Salvage is earned.

The ground upon which the liberal compensation usually
granted in salvage cases rests, is three-fold. First : A marine
peril. Second : Voluntary service. Third : Success.

It is necessary that the property be saved from extraordinary
danger. This danger or distress must have been real, or appeared
to be so in the exercise of a sound discretion, though it need not

(e) See ante, vol. i. p. * .580. Missouri's Cargo, id. 272 ; The Ame-

(,/l Lipson V. Harrison, 24 Eng. L. & thvst, Daveis, 20; The Maria, Edw. Adm.

Eq. 208. 175.
(g) Box of Bullion, Sprague, 57 ; The

1 See, however, Chase v. Corcoran, 106 Mass. 286.



have been immediate, or certainly destructive. (A-) If

* 316 * the master, with his crew, might have saved it, the

interference of the salvors would be presumed to be
unnecessary ; (i) they may, however, still make out their claim
by proof that the master would not have saved it. It would be
equally a salvage service whether it were rendered at sea, or upon
property wrecked at sea but then on the land. (J) And a salvage
service may be rendered either by seamen or by landsmen, (k) ^

3. Of Derelict.

The salvage service most liberally rewarded is that of saving
" derelict" property. This word simply means abandoned. As
a maritime term, used in salvage law, it means a vessel or cargo
abandoned and deserted by the master and crew, ^yiih no purpose
of returning to it, and no hope of saving or recovering it them-
selves. (I) If the master and crew remain on board, although
they give up the possession and control to the salvors, it is not
derelict, (m) On the other hand, if the master and crew have left
the vessel, a mere intention to send assistance to her would not
prevent the ship from being derelict, (n) And if the vessel be
deserted, it will be presumed to be derelict, unless an intention
to return be proved on the part of those who left her, or some of
them, (o) A ship or a cargo sunk is considered derelict; but not
if the owner had not lost the hope and purpose of recovering his
property, and had not ceased his efforts for that purpose, (jp) So
are goods floating from the vessel out to sea ; not, however, if the
goods are on the water, and the master is endeavoring to save

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