full damages. But it does not affect his right 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 (ƒ). 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 (h). (e) See Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Co., 9 Q. B. D. 118; 10 Q. B. D. 521; The Bushire, 5 Asp. M. L. C. 416. (f) The Demetrius, L. R. 3 A. & E. 523. (g) Infra, p. 125. CHAPTER VI. THE RULE AS TO DIVISION OF LOSS. 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). The dictum of Lord Stowell is here cited as a clear statement of the modern rule of the maritime law as administered in England with reference to the incidence of (a) Per Lord Stowell (then Sir W. Scott), The_Woodrop Sims, 2 Dods. 83, 85. In The Lord Mel ville, cited 2 Shaw's App. Cas. 395, History of the Oleron. loss in case of collision. It has been universally accepted as such, cited with approval in the House of Lords (6), and frequently acted upon by the Courts for the last seventy years. But it must here be pointed out, that in one important 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 Admiralty; that the ancient rule of the Admiralty as to division of loss had for upwards of a century previous to the case of The Woodrop Sims a more extended operation than is attributed to it by Lord Stowell; and that if, at the present day, its operation is confined to the case of "both ships in fault," it is by reason of the communis error, and not by virtue of any express decision of the Courts (c). The earliest trace (d) of the rule as to division of loss appears in the Laws of Oleron, a code of maritime law attributed to the twelfth century (e), and introduced from Aquitaine into this country not later than the fourteenth century (ƒ). This code contains a provision (Art. 15) that when a ship at anchor is damaged by a ship under way, (b) In Hay v. Le Neve (1824), 2 Shaw's (Sc.) App. Cas. 395. (c) The authorities for the statement in the text are a series of cases (unreported) from 1677 downwards, collected by the present writer from the Admiralty Court books. They are set out in the note "History of the rule as to division of loss in English law" at the foot of this chapter; and at greater length in Marsden's Admiralty Cases (Clowes & Sons, London). (d) The Book of Exodus, Ch. xxi., vv. 35, 36, is cited by Cleirac in support of the rule. The passage is as follows: "And if one man's ox hurt another's, that he die; then they shall sell the live ox, and divide the money of it; and the dead ox also they shall divide. Or if it be known that the ox hath used to push in time past, and his owner hath not kept him in; he shall surely pay ox for ox; and the dead shall be his own." (e) 1 Pardessus, Collection des Lois Maritimes, pp. 283 seq. (f) The Record or Roll De Superioritate Maris et Jure Admiralitatis Angliæ of 12 Ed. 3 (1338), refers to La Ley Oleyroun as the law of the English Admiralty: see Prynne, Animadv. 109; Selden's Mare Clausum, 1. 2, c. 24. A record in the Tower of London, set out by Prynne, Animadv. 117, shows that the Law of Oleron was administered in the local Court of Bristol in 24 Ed. 3 (1350). There are extant in the archives of the City of London and elsewhere in this country MSS. of these laws dating from the early part of the 14th century: Twiss' Black Book, vol. 1, lxxxii. the loss on the ship shall be divided between the two ships, and the loss on the cargo between the merchants (g), provided the master and mariners of the ship under way swear that they did not do the damage wittingly (h). The rule is stated to be so framed in order to deter the owners of old and inferior ships from trying to make money by getting them sunk by collision and recovering damages from the other ship. The laws of Wisby, a town in the island of Gotland (i), and various codes of maritime law in use subsequently to the thirteenth century in Flanders-all of them versions, more or less exact, of the Oleron code ()—contain very similar provisions as to the incidence of loss where the collision is not wilful. The instructions to the Admiral contained in the Black The instrucBook of the Admiralty, dating probably 1337-1351, tions to the contain a similar rule as to equal division of loss where the collision is accidental (1). Admiral. or proportionate division of loss. The language of some of the Northern Codes suggests The Northern that the division of loss was not necessarily in equal shares, Codes; equal but that there was a distribution of the loss on ships and cargoes in the nature of a general average contribution between shipowner and merchant (m). The exact meaning of the rule seems, however, always to have been doubtful, and to have given rise to dispute so early as the time of Twiss' Black Book, 373; 3 Pardess. (7) Twiss' Black Book, 36; (m) See the Laws of Gotland (Wisby), 4 Twiss' Black Book, 284; 1 Pardess. 482; of Flanders, Codex Brugensis, ib. 321; of Damme, 1 Pardess. 379; of Flanders, Dantzic MSS., 4 Twiss' Black Book, 435. Consolato del Danish and L'Ordonnance de la Marine. Division of Bynkershoek. He describes in graphic terms the astonishment of the Supreme Court of the Netherlands, of which he was a member, when he endeavoured to persuade his colleagues to enforce a proportionate, and not an equal, division of the loss (n). Valin states that in his day opinion was divided upon this point; his own being in favour of an equal rather than a proportionate division (o). The Consolato del Mare, a code in use in the Mediterranean in the sixteenth century, contains some provisions as to the incidence of loss, the principle of which appears to be, that where the collision is caused by negligence, the wrong-doers shall make good the loss; and that where it is accidental, the loss shall be apportioned between the ships and cargoes by way of general average contribution, but in what shares does not appear (p). By Danish Codes of 1561 and 1683 (q), and by Swedish Codes of the seventeenth century (r), the loss in the case of an accidental collision between two ships under way was equally divided. By the celebrated Ordonnance de la Marine of Louis XIV., which was promulgated in the latter part of the seventeenth century, the rule in the case of accidental collision was that the loss should be equally divided (s). Some doubt appears to have existed as to whether it should not be apportioned in the nature of an average contribution, but Valin states that the better opinion was in favour of equal division (t). Danish Codes of 1508 and 1683 divide the loss of an loss according accidental collision between the ships, according to the to decision of experts, by Danish Codes. (n) Memini, me senatore et de geometricâ proportione perorante, reliquos senatores obstupuisse atque si Jovis ignibus icti essent: Bynk. Quæst. Jur. Priv. 1. iv. c. 20. (0) Valin sur l'Ordonnance, 1. 3, tit. 7, Art. 10, vol. 2, p. 178. (p) Consolato del Mare, cc. 155– 158; 2 Pardess. 174 seq.; 3 Twiss' (9) 3 Pardess. 260, 288. (s) Valin sur l'Ordonnance de la |