(absence of lights), but are not to be extended to every infringement of every rule of navigation. Contributory It has been suggested that the class of cases of which negligence. Davies v. Mann is the best known example, have no application in Admiralty; and there are cases which appear to give some support to the contention. The facts of Davies v. Mann (t), the well-known "donkey case," were shortly these:-The owner of a donkey, which had been negligently left hobbled and unguarded on a highway, sued the defendant, by the negligence of whose servant in driving along the highway at too rapid a speed the donkey was run over and injured. It was held that the donkey-owner could recover, his negligence notwithstanding. The suggestion is, that in a case of collision between ships, negligence, such as that of the donkey-owner in Davies v. Mann, would render the shipowner liable, although no collision would have occurred if the other vessel had been navigated with ordinary care. The Fenham (u) and Hay v. Le Neve (x) have been cited as authorities to this effect. In The Fenham the facts were these:-A steamship in the North Sea, after sundown on a dusky evening in November, struck a brig which was not carrying lights as required by the regulations of 1863. In the absence of proof to the contrary, the Privy Council held that the absence of lights caused the collision. In delivering judgment Lord Romilly thus stated the rule as to proof in such cases: “If it is proved that any vessel has not shown lights, the burden lies on her to show that the non-compliance with the regulations was not the cause of the collision." In Hay V. Le Neve (x), a vessel brought up at night in an improper place and with no light exhibited was run into by another ship. It was held that the vessel at anchor, as well as the other vessel, was in fault. In both these cases the negligence of the plaintiff (carrying no light, and bringing up (x) 2 Shaw's Scotch App. Cas. 395. (t) 10 M. & W. 546. in an improper place) was not unlike that of the donkeyowner in Davies v. Mann, and it was contended in The Fenham that with ordinary care the defendant could have avoided the collision, notwithstanding the negligence of the plaintiff in carrying no lights. In both cases the legal consequence of the negligence was different from that in Davies v. Mann. Again, in an Irish case (y) it was doubted whether in Admiralty the doctrine of Davies v. Mann had any application. In America it has, in a recent case (z), been held by a circuit court that, where the fault of one ship is slight, and that of the other ship gross, the former may recover half, or possibly some other part of her loss. In other cases (a) it seems to have been held that, in such cases of unequal fault, the gross fault is the cause of the loss, and that the slight fault is immaterial-" did not contribute." In one case (b) it was said expressly that the common law doctrine of contributory negligence did not apply in Admiralty. So where a collision, made imminent by the gross fault of A., might have been avoided by B., the loss was divided between A. and B. (c). But it is clear that there is no difference between the rules of law and of Admiralty (d) as to what amounts to negligence causing collision; and that, before a vessel can be held to be in fault for a collision, negligence causing or contributing to the collision must be proved. Thus, in The Margaret (e), a vessel infringed a statutory rule of navi (y) The Meteor, Ir. Rep. 9 Eq. 567. () The Max Morris, 31 Dav. 1; The Mary Ida, 20 Fed. Rep. 741 (damages apportioned in ratio of three to one); and see The Victory and The Plymothian, 68 Fed. Rep. 395, where the decree in favour of a cargo-owner went against the ship most in fault, for her full stipulated value, which was more than half the value of the cargo lost. (a) The Lord O'Neill, 66 Fed. Rep. 77; The Willamette, 70 Fed. (b) The Daylesford, 30 Fed. Rep. 633. (c) The Pegasus, 19 Fed. Rep. 46; The Maria Martin, 12 Wall. 31. (d) See per Lord Blackburn, Cayzer v. Carron Co., 9 App. Cas. 873, 882 (The Margaret). In The Khedive (5 App. Cas. 876, 892), it was assumed by Lord Blackburn that Davies v. Mann applied in Admiralty. (e) 9 App. Cas. 873. The Edg gation, and was in that respect guilty of negligence; and without that negligence, other circumstances being the same, the collision would not have happened; yet it was held that this negligence was not a cause of the collision. The decision in such a case will be the same, with regard to the liability of the ship in question, whether the other ship is in fault or not. In The Margaret the one ship was held to be in fault, because with ordinary care she could have avoided a collision, notwithstanding the negligence of the other; and it was for this reason that the negligence of the latter was held not to be a cause of the collision. So in The Monte Rosa (f), a tug by her own fault steered a course which brought her into collision with the anchor of a steamship, which the latter was, contrary to the Thames rules, carrying over her bows not stock awash, and was holed by the anchor. It was held that, since the tug could with ordinary care have kept clear of the steamship, she was alone in fault, and could recover nothing. The Lord Saumarez (g), an early case, is to the same effect as The Margaret. There a vessel recovered full damages, though in a fog she was carrying too great a press of sail, and was proceeding at too great a rate of speed. The decision. proceeded upon the same grounds-that the defendant could with ordinary care have avoided the collision, notwithstanding the negligence of the plaintiff. Hay v. Le Neve and The Fenham are not inconsistent with The Margaret and The Lord Saumarez. The facts in those cases differ from those in Davies v. Mann in thisthat the negligence of the plaintiffs in the former cases was such that the defendants could not with ordinary care have avoided its consequences; whereas in Davies v. Mann water, 65 Fed. Rep. 527; The Portia, 64 Fed. Rep. 811; The Clara, 55 Fed. Rep. 1021; The Britannia, 34 Fed. Rep. 546; The Francis, 44 Fed. Rep. 510; The Titan, 23 Fed. Rep. 413; Andus v. The Saratoga, 1 Fed. Rep. 730, are similar American cases. (f) (1893) P. 23. (g) 6 Not. of Cas. 600; cf. The Argo, Swab. 462; infra, p. 265; The Swanland, 2 Sp. E. & A. 107. the defendant could with ordinary care have avoided the donkey (h). But though it may be possible to reconcile some of the "both to blame" cases with Davies v. Mann, it would probably be found impossible to reconcile all of them. Many Admiralty cases have been decided without sufficient consideration of the question whether the negligence found against each ship was negligence contributing to the collision. For example, in The Marcia Tribou, an American case, a schooner in the daytime ran down a sloop brought up in an improper place. Both ships were held in fault, and the loss was divided (i). There are many recent American cases to the same effect (k). Confusion has been caused by the language used in some of the cases with regard to contributory negligence. In Radley v. London & North-Western Railway Co. (7), it is stated by Lord Penzance that, "The plaintiff in an action for negligence cannot succeed, if it is found by the jury that he has himself been guilty of any negligence or want of ordinary care which contributed to cause the accident." But "though the plaintiff may have been guilty of negligence, and although that negligence may in fact have contributed to the accident, yet if the defendant could in the result by exercise of ordinary care and diligence have avoided the mischief which happened, the plaintiff's negligence will not excuse him," i.e. the defendant. Davies v. Mann and Tuff v. Warman (m) are cited as establishing this. On the other hand, in Dowell v. General Steam Navigation Co. (n), Lord Campbell, C. J., said—" There" (h) Dowell v. General Steam Navigation Co., 5 E. & B. 195; and Morrisonv. General Steam Navigation Co., 8 Ex. 733, are cases with regard to absence of lights. In the former, the ship without lights was held in fault; in the latter, not. (2 Sprague, 17; The S. Shaw, 6 Fed. Rep. 93; The Milligan, 12 Fed. Rep. 338, are similar cases. (k) Cf. The Richmond and The E. Heipershausen, 63 Fed. 1020; The Anerly, 58 Fed. 794; The Marion, 56 Fed. 271; Fristad v. The Premier, 51 Fed. Rep. 462 (bad riding light and excessive speed, or bad look-out in the other ship). () 1 App. Cas. 754. (m) 5 C. B. N. S. 573; see the judgment of Cresswell, J., 26 L. J. C. P. 263, 267. Cf. also per Dr. Lushington in the Argo, Swab. 462; infra, p. 265. (n) 5 E. & B. 195. (in Davies v. Mann), “although without the negligence of the plaintiff the accident would not have happened, the negligence is not supposed to have contributed to the accident within the rule upon this subject; and if the accident might have been avoided by the exercise of ordinary care and skill on the part of the defendant, to his gross negligence it is entirely ascribed, he, and he only, proximately causing the loss." It is not easy to reconcile these views with regard to the negligence of the plaintiff in Davies v. Mann. The question whether a specified act of negligence is a cause of the accident is a question of fact and not of law (o). Davies v. Mann and the cases following it seem to show that even where, as matter of fact, an act of negligence of A. did contribute to the accident, the other party (B.) will (as defendant) be liable for the whole loss, or (as plaintiff) will be unable to recover, if he could with ordinary care have avoided the accident, notwithstanding the negligence of A. (p). The difficulty may be put in another way. Did Davies v. Mann decide that, assuming contributory negligence in the plaintiff, he could recover, notwithstanding; or that, though there was contributory negligence in fact, there was none in law? Radley v. London & North-Western Railway Co. points to the former as the correct view of the case; The Margaret (9) looks the other way. There Lord Blackburn appears to have considered that if the plaintiff's negligence did in fact contribute to the collision he would be liable; and that in Davies v. Mann there was no contributory negligence. But the difficulty is rather one of words than of substance; for, with perhaps one exception, the cases agree in this, that negligence in one party is immaterial, if by (0) See per Lord Blackburn, 9 App. Cas. 879. But see contra, per Williams, J., Tuff v. Warman, 2 C. B. N. S. 740, 758. (p) Cf. The Argo, Swab. 462; infra, p. 265. (9) See also Spaight v. Tedcastle, 6 App. Cas. 217, 219, per Lord Blackburn. |