THE

LAW OF MARITIME COLLISION.

CHAPTER I.

GENERAL RULES.

of collision.

FOR the purpose of determining by whom and in what The four cases shares the loss is to be borne, collisions between ships 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 major. 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 burden. Lastly, it may have been the fault of the ship which ran the other down, and in this case the innocent party would be entitled to an entire compensation from the other" (a).

(a) Per Lord Stowell in The Woodrop, Sims, 2 Dods. 83, 85. As to the meaning of "collision" in

Admiralty see The Moxey, Abbot,
Ad. 73.

B

Rule as to equal division

The law "apportions" the loss where both ships are in of loss where fault by obliging each of them to pay half the loss of the both ships are other. Thus, if the loss on A. is £1000 and that on B. is

in fault.

What is negligence causing collision.

£2000, A. can recover £500 against B., and B. can recover £1000 against A. The Courts make no attempt to administer distributive justice by apportioning the loss according to the degree of fault of which each ship is guilty (b). The rule as to equal division of loss where both ships are in fault now prevails in all the Courts. Until recently (c) it prevailed only in Admiralty proceedings; at Common Law neither ship could recover anything against the other where both were in fault (d).

Whether the rule of equal division of loss where the ships in collision are both in fault applies where there is a collision between two ships, A. and B., caused by the fault of one of them, B., and of a third ship, C., so as to entitle B. to recover half her loss from C., is not clear (e). It has been applied as between a ship being launched and another under way, where the fault of the former was committed on shore and consisted in being started at an improper moment (ƒ).

The mere fact that a ship strikes, or goes foul of another, creates no liability against herself, her owners, or those in charge of her. Nor does it advance the case to assert that the one ship "ran down" the other, or "ran into " her (g). So that damages may be recovered fault must be proved for which the owners or persons on board the ship sued are responsible. What degree of fault entitles the plaintiff to recover it is difficult or impossible to define (h).

(b) Hay v. Le Neve, 2 Shaw's Scotch App. Cas. 395, and cases there cited; The Milan, Lush. 388.

(c) The Judicature Act, 1873, altered the law; 36 & 37 Vict. c. 66, s. 25, sub-s. 9.

(d) For some account of the law as to the incidence of loss where both ships are in fault in this and other countries, see the note at the

foot of this chapter, infra, p. 49.

(e) See The Energy, infra, p. 80; The James Gray, 21 Wall. 184.

(f) The United States, 12 L. T. N. S. 31.

(g) The James Watt, 2 W. Rob. 270, 278.

(h) Bynkershoek says: præcipue ed in re valet judicis arbitrium.

Apart from the particular circumstances of each case the question does not admit of an answer.

A collision can seldom or never be avoided at the moment of its occurrence. It is often inevitable for some moments before the ships come together. It is not

enough for a ship to show that as soon as the necessity for taking measures to avoid a collision was perceived, all that could be done was done. When two ships are shown to have been in a position in which a collision was inevitable, the question is, by whose fault, if there was fault, did the vessels get into such a position (i). If there would have been no loss but for the vessels coming into contact, it is immaterial, upon the trial of the question, Who is to bear the loss, that its amount was increased by negligence, previous to, or at the time of, the collision, provided such negligence did not contribute to the collision (j). Thus, when a ship, A., was, by her own fault, in collision with another, B., that was negligently carrying her anchor a-cockbill in the Thames, and in consequence of the anchor being in that position its fluke was driven into B.'s side and she sank, it was held that B. was entitled to recover full damages against A. (k).

In a similar case, where the question was whether the damage was caused by the negligence of the pilot in navigating the vessel so as to come into collision, or by the negligence of the master and crew in carrying the anchor improperly, Dr. Lushington held that it was caused not by the improper position of the anchor, but by the ship being improperly steered and towed. It was held that the posi

(i) Maddox v. Fisher; The Independence, 14 Moo. P. C. C. 103, 109; The Despatch, ibid. 83; The Pennsylvania, 3 Mar. Law Cas. O. S. 477; The America, 2 Otto. 432; and see below, p. 6.

(j) Negligence subsequent to the collision, by which the loss is increased, may be material upon the

question of damages. See below, pp. 55, seq.

(k) Sills v. Brown, 9 Car. & P. 601. As to an act material only as regards the parts of the ships which are in contact, see The Governor and The John McIntyre, Holt's Rule of the Road, 184.

tion of the anchor was material only in case there would have been no damage but for its being carried where it was (1).

So if a vessel suffers more severely in a collision in consequence of her being in a weak or strained condition, she is not on that account prevented from recovering full damages (m). Nor is it any answer to an action for damages that the loss would not have occurred but for the negligence of a third ship, if the collision or loss was in fact caused partly by the fault of the vessel sued (n).

Though, at the time of the collision, a vessel is being navigated in an improper manner, she will not be held in fault for the collision, if it is proved that the particular act of imprudence or negligence did not cause or contribute to the collision. Though it be proved that her crew was insufficient, her speed too great, her condition unseaworthy, or her officers incapable, if the circumstance had no connection with the collision, it is altogether irrelevant (o). If the negligence of the party injured did not, in any degree, contribute to the immediate cause of the accident, that negligence ought not to be set up as an answer to the action (p).

If it is open for a vessel to adopt either of two courses, one of which is safe and the other hazardous, and she elects the latter, she is responsible for mischief which ensues. And she cannot, in such a case, insist upon the fact that she had a right to be where she was, or that she complied with the letter of the law. "If it be practicable to pursue you follow so closely upon the

a course which is safe, and

track of another that mischief may ensue, you are bound

to adopt the safe course.

(1) The Gipsey King, 5 Not. of Cas. 282.

(m) The Egyptian, 2 Mar. Law Cas. O. S. 56; Luxford v. Large, 5 C. & P. 421; The Batavier, 1 Sp. E. & A. 378; and see infra, Ch. II.

This is the principle that is

(n) See p. 40, infra.

(o) The Hope, W. Rob. 154; The Lord Saumarez, 6 Not. of Cas. 600.

(p) Per Pollock, C.B., Greenland v. Chaplin, 5 Ex. 243.

always acted upon in cases of injuries done to ships at sea" (q).

nary care have

collision.

Where there is negligence on the part of both vessels, Where there but one of them might, by the exercise of ordinary care, but one ship is negligence, have avoided the collision, she will be held solely in might by ordifault (r), unless the negligence of the other consists in an avoided a infringement of one of the Statutory Regulations for preventing collision, which might, by possibility, have contributed to the collision. In that case, whether it did in fact contribute to the collision or not, both ships will be held to be in fault (8). And where negligence is proved on the part of the plaintiff, unless the Court is satisfied that it did not contribute to the accident, he can recover nothing, unless the other ship is also in fault (†).

As to the degree of skill and precaution which the law Degree of skill required. requires of seamen, Dr. Lushington described it as ordinary skill and ordinary diligence: "We are not to expect extraordinary skill or extraordinary diligence, but that degree of skill and that degree of diligence which is generally to be found in persons who discharge their duty" (u). A ship that is partially disabled, or navigating in an unusual manner, or otherwise especially dangerous to other vessels, must take more than ordinary care to avoid collision (x).

Where two vessels are upon courses which will take them clear of each other, the one which, by unnecessarily altering her course, causes risk of collision, is in fault (y).

(q) Per Ellenborough, C.J., in Mayhew v. Boyce, 1 Stark. 423.

(r) Tuff v. Warnam, 2 C. B. N. S. 740; 5 C. B. N. S. 573; Dowell v. General Steam Navigation Co., 5 E. & B. 195; The Lord Saumarez, 6 Not. of Cas. 600; Radley v. London and N. W. Ry. Co., 1 Ap. Cas. 754, 759; Greenland v. Chaplin, 5 Ex. 243 (infra); Smith v. Voss, 2 H. & N. 97.

(s) 36 & 37 Vict. c. 85, s. 17; see