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division of loss where the collision is not wilful is contained in several of the medieval codes. See Sir Travers Twiss' Ed. of the Black Book of the Admiralty, I., 36, 39, 108, 109; II., 229, 449; III., 21; IV., 87, 88, 271, 373, 435. By some of these codes the loss was not necessarily divided in equal shares; it appears to have been apportioned between the ships in proportion to their values, or their fault; ibid. Vol. III., 287; IV., 435; Danish Code of 1683, 1. IV., c. 3, s. 4. But Bynkershoek was unable to persuade the Superior Court of Holland to adopt any other than the rule of division in equal shares: memini me senatore et de geometricâ proportione perorante, reliquos senatores obstupuisse, atque si Jovis ignibus icti essent; Bynk. Quæst. Jur. Priv. IV., 20.

The rule of division of damages does not appear to have been applied by the Admiralty Court of this country except where both ships have been found to be in fault for the collision. By the general maritime law it was not confined to this case. It was applied in the case of inevitable accident, and also in the case of inscrutable fault: see Bell's Commentaries on the Law of Scotland, p. 581. Valin, Sur l'Ordonnance, 1. III., tit. 7, Art. 11, says of it: "par la difficulté de reconnoitre de quel côté est la faute, et juger même si la faute est de nature à mériter que celui, à qui elle est imputée, supporte le dommage en entier, il arrive presque toujours que le dommage reçu de part et d'autre est jugé avarie commune, ce qu'approuve Grotius, &c."

Although, by the maritime law, the loss was divided between the two ships in the case of inscrutable fault, and the rule is so applied in the Courts of France and other countries, it has never been adopted in the Admiralty of this country. In The Maid of Auckland, 6 Not. of Cas. 240, where, if such a rule had existed, it would have been applicable, or at least mentioned, Dr. Lushington dismissed both suits upon the ground of deficit probatio.

The rule has been applied, in some cases, so as to prevent an innocent sufferer by collision from recovering more than half his loss against a wrong-doer: The Milan, Lush. 388; Comm. Code of Holland, Art. 540; Bynk. Quæst. Priv. Jur. IV., c. 21.

In America the rule as to the incidence of loss by collision is

the same as that of this country; except, perhaps, in the case of inscrutable fault. In this case, according to some writers, the loss is divided: The Tracy J. Bronson, 3 Bened. 341; and see 1 Parsons on Sh. (Ed. 1869) 527; Story on Bailments, § 609; 3 Kent's Comm., § 231; Sedgwick on Damages (6th Ed.) 577, note; but in a recent case before the District Court of New York, it was held that neither ship could recover: The Breeze, 6 Bened. 14.

Art. 407 of the French Commercial Code is as follows: En cas d'abordage de navires si l'événement a été purement fortuit, le dommage est supporté, sans répétition, par celui des navires qui l'a éprouvé. Si l'abordage a été fait par la faute de l'un des capitaines, le dommage est payé par celui qui l'a causé. S'il y a doute dans les causes de l'abordage, le dommage est réparé à frais communs, et par égale portion, par les navires qui l'ont fait et souffert. Dans ces deux derniers cas, l'estimation du dommage est faite par experts. The case of inscrutable fault is that described in Art. 407-"s'il y a doute, &c."—that is, "lorsqu'il est impossible de préciser par la faute de qui le dommage est arrivé." In this case the French differs from the English law in dividing the loss equally-Abordage Nautique, Caumont, § 151. But the French law agrees with our own in requiring proof of negligence to enable the cargo owner to recover in such a case, ibid. § 154, 155. Where both ships are in fault, but not to the same extent, the damages are apportioned according to the degree of each ship's fault; but as between ship-owners and third parties, the former are severally liable for the whole of the damages, subject to the right of each to free himself by abandonment of his interest in the ship and freight: ibid. § 12, 108, 152. Where both ships have been guilty of an infringement of the Rule of the Road (manoeuvres réglementaires), it seems that neither can recover: ibid. § 109. The case of inevitable accident is complicated by attempts to attribute the collision partly to "force majeure," and partly to negligence: ibid. § 94. The Belgian Commercial Code (Art. 407) contains the same provisions as to the incidence of loss as the French Code.

The law in Germany as to the incidence of loss in the four cases of collision seems to be the same as that of this country;

except that where both ships are in fault, neither can recover. See German Commercial Code, Arts. 736-741.

By the Dutch Code, where both ships are in fault, and also when the collision occurs without fault in either ship, each bears her own loss. If there is doubt whether the collision was caused by the fault of one or both ships, or not, the aggregate loss upon both ships and cargoes is made good by a general average contribution between the owners of ships and cargoes. Where a ship under way goes foul of another at anchor, even if the collision is an inevitable accident, the ship under way has to pay half the loss. But these rules apply only to seagoing ships, and not to inland navigation. See the Commercial Code of Holland, Arts. 534-540, 756.

The Spanish Commercial Code contains no provision as to the division of the loss where both ships are in fault, or any other case. It distinguishes between collisions caused by the fault of one or both ships, and those caused by inevitable accident. In the first case it seems that the captain, or the actual wrong-doer, is alone responsible; in the other case each ship bears her own loss, unless insured. Abordaje casual, which, besides cases of inevitable accident, includes collisions by the fault of one or both ships, where fault is not proved, is a particular average, and is at the risk of insurers. See Código de Comercio, Arts. 624, 676, 682, 861, 935, § 7. Art. 516 of the Italian Comm. Code, and Arts. 1567–1570 of the Portuguese Comm. Code, are to the same effect as Art. 407 of the French Code, supra. Art. 1581 of the Portuguese Code requires a ship under way damaging another at anchor to pay half the loss. This code is identical with the Dutch Code in many of its provisions, and goes into considerable detail: see Port. Code, Arts. 1567-1581.

The Russian Code is not clear as to the incidence of loss. Where the collision is an inevitable accident, and where both ships are in fault, it seems that the loss rests where it falls: Arts. 835, 845. But in some cases the total loss on the ships, though not on cargo, is borne by the two rateably: Art. 847. See Russian Code, Arts. 835-848.

CHAPTER II,

55

DAMAGES.

doer is liable

OWNERS, and other persons answerable for damage caused The wrongby the negligent navigation of a ship, are liable for all the for all the reasonable consequences of their negligence (a).

reasonable

consequences

whether there

or not.

This is the rule whether the negligence causes a collision of his neglior not. In a case where, in order to avoid a collision with gence, a ship, A., made imminent by A.'s own fault, a tug, B., is a collision was compelled to cast off her tow, C., and C. went ashore and was damaged, it was held that C. could recover against A. (b). Where, in order to avoid A., lying ashore in a fairway without a light up, B. was obliged to put herself ashore, and received injury, it was held that B. could recover against A. (c). The value of an anchor and chain slipped to avoid collision was recovered in an American Admiralty Court (d).

If the negligence of one ship causes a collision between two others, the damage received by both of them can be recovered against the first. And if a vessel is in an unmanageable state, or has lost her lights, by her own

(a) Mayne on Damages (3rd ed.), 39. As to damages for collision generally, see Sedgwick on Damages (6th ed.), 576.

(b) The Wheatsheaf and The Intrepide, 2 Mar. Law Cas. O. S. 292. The Admiralty Court has jurisdiction where a ship has done or received damage, though there is no

collision: The Industrie, L. R. 3
A. & E. 303; The Energy, ibid. 48;
and it seems that so far as it decides
the contrary The Robert Pow, Br.
& L. 99, would not now be followed.
(c) The Industrie, ubi supra.
(d) The Perkins, 2 Mar. Law Cas.
O. S. Dig. 548.

Loss of injured ship after col

lision presumed to be caused by the collision.

negligence, any damage she does while in that state would probably be held to be the result of her own negligence (e). So if a vessel sinks another by her swell raised by going at too great speed, she is liable for the loss (ƒ).

Where a ship is lost, or receives further injury after a collision, the presumption is that the loss or damage is caused by the collision; and the burden is on the other vessel, if proved to be in fault for the collision, to show that the subsequent loss or damage was not caused by her negligence. Where a ship was partially disabled in a collision for which she was not in fault, and subsequently drove ashore in consequence of the parting of her cable, it was held that the ship in fault for the collision was liable for the loss by the stranding of the other ship (g). In this case Dr. Lushington said: "It is admitted that The Peusher is to blame for the collision, and the consequence of this is, that all the damage arising from the collision must be borne by The Peusher, unless it can be shown by clear and positive evidence that any part of that subsequent damage arose from gross negligence or great want of skill on the part of those on board the vessel damaged."

In another case (h), The Mellona, a ship claiming damages against the ship with which she had been in collision, had gone ashore after the collision, in consequence of having been disabled in the collision, and was totally lost. For the other ship it was contended that The Mellona need not have gone ashore if she had been hove-to, and proper skill had been shown by those on board.- It was held that prima facie the loss was attributable to the collision. Dr. Lushington said that where one vessel is found in fault for a collision, and the other is subsequently lost, the presumption of law is that

(e) See supra, p. 8.

(f) The Batavier, 1 Sp. E. & A. 378; 9 Moo. P. C. C. 286; Luxford v. Large, 5 C. & P. 421.

(g) The Peusher, Swab. Adm. 211, 213.

(h) The Mellona, 3 W. Rob. 7, 13.

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