Negligence causing collision. avoiding collision. Their respective duties and liabilities will be considered in a subsequent chapter (n). There is sometimes difficulty in determining whether negligence of which a ship is proved to have been guilty at or about the time of the collision, or in some way connected with the collision, is negligence contributing to the collision. The general rule is that a wrongdoer is liable for all the reasonable consequences of his negligence. Whether a collision which occurs under circumstances brought about by previous negligence can be said to have been caused by that negligence, must be determined by the particular circumstances of the case. A passenger on board The Bachelor was injured by an anchor on board that vessel which was caused to fall on him by a collision for which The Sons of the Thames was in fault. In an action by the passenger against the owners of The Sons of the Thames, Pollock, C.B., left it to the jury to say whether there was negligence on the part of the crew of The Bachelor in stowing the anchor so that it fell on the plaintiff, and whether there was negligence on the plaintiff's part in being in the part of the ship where the anchor was stowed. The verdict was for the plaintiff; the jury finding that there was no negligence on his part, or on the part of the crew of The Bachelor. A rule nisi for a new trial which was obtained on the ground that the verdict was against the weight of the evidence was discharged. In discharging the rule, Pollock, C.B., said, with regard to the general law, that if the negligence of the plaintiff did not in any degree contribute to the immediate cause of the accident, that negligence ought not to be set up as a defence to the action. And he doubted whether a person, who is guilty of negligence, is responsible for all the consequences which might under any circumstances arise, and in respect of mischief which could, (n) Infra, p. 243. by no possibility, have been foreseen, and which no reasonable person would have anticipated (o). The principle here enunciated must be applied with Negligence caution. Where the negligence is an immediate cause of loss but not causing the the loss, it is material in an action to recover damages for the collision. that loss, although it is in no way a cause of the collision in which the loss occurred. "The cause of action in collision cases is not merely the fact of the ships having come into impact with one another, for that by itself is no cause of action, but that damage, in the sense of injury, was caused to the property of the plaintiffs by reason of that collision" (p). Thus where a collision is caused entirely by the negligence of ship A., and there would have been no damage to either ship but for an improper act of B., both ships are in fault, and the owners of each are liable for half (q) the loss suffered by the other. It is no answer to the claim of a plaintiff, whose negligence caused the collision, for the defendant, whose negligence caused the loss, to say: True it is, there would have been no loss but for my improper act; but you are the person who caused the loss, for if your ship had not been improperly navigated there would have been no collision and no loss. Unless the negligence of the one ship would, but for the negligence of the other, have caused no loss, the former ship is liable at least for half the loss of the other. In The Margaret (r), before the Court of Appeal, a dumb The Margaret. barge by her own negligent navigation came into collision with a schooner fast to a proper mooring buoy in the Thames. The schooner was wholly free from blame in respect of the collision, but her anchor, which was hanging from her hawse pipe, with the stock above the water, (0) Greenland v. Chaplin, 5 Ex. 243. This action and Cattlin v. Hills, 8 C. B. 123, arose out of the same collision. The Mar (p) Per Brett, L. J. garet, 6 P. D. 76. And see per Lindley, L. J., The Bernina, 12 (a) As to the rule of division of (r) 6 P. D. 76. Causa proxima non remota spectatur. pierced and sank the barge. This was an improper position for the anchor, and contrary to a bye-law made under a local Act in force in the Thames. But for the improper position of the schooner's anchor the barge would have suffered no injury. It was held that both craft were in fault; and that the schooner was liable for half the loss of the barge. In the Court below it had been held that the barge could not recover anything, she being alone in fault for the collision. This decision was varied by the Court of Appeal on the ground above stated—namely, that though the negligence of the schooner did not contribute to the collision, it did contribute to the cause of action, namely, the loss to the owners of the barge (s). On the other hand, the maxim causa proxima non remota spectatur applies to distinguish negligence for the consequences of which a defendant is liable from that which is merely collateral and immaterial upon the question of liability (t). Negligence such as will attract liability cannot be established merely by showing that, but for a previous improper act of the defendant, the collision would not have occurred. The act complained of "must have some proper connection, as a cause, with the damage which followed, as its effect" (u). Whether this proper connection exists between the act complained of and the loss is, it seems, a question of fact, and ordinarily a question for the jury (x). The question as to what are the consequences of a negligent or wrongful act for which the wrongdoer is liable was much discussed in the case of Clark v. Chambers (y). (s) The Scotia, 63 L. T. N. S. 324; Sills v. Brown, 9 Car. & P. 601, and The Gipsy King, 2 W. Rob. 537, so far as they are inconsistent with The Margaret, would not, it seems, be now followed. (t) See per Selborne, C., 6 App. Cas. 219; and Lord Blackburn, ib. p. 226. (u) Per Selborne, C., ubi sup. (x) See Tuff v. Warman, 2 C. B. N. S. 740; 5 C. B. N. S. 573; Milwaukee Rail. Co. v. Kellog, 4 Otto, 469. (y) 3 Q. B. D. 327; see the rule affirmatively stated by the Master of the Rolls in Re London, &c. Railway and Trustees of Gower's Walk Schools, 24 Q. B. D. 326, at p. 329. The rule accepted by the Court (2) was, that an action would not lie where the loss, although arising from an unlawful or negligent act of the defendant, did not immediately flow from it, and was not the reasonable, probable, or likely result of it. In Spaight v. Tedcastle (a), the question was whether the owners of a ship in tow which had negligently permitted her tug to go too close to a bank, were prevented by the doctrine of contributory negligence from recovering from the owners of the tug damages for injury sustained by the subsequent fault of the tug in altering her course so as to put the ship ashore on a bank. It was held that, though those in charge of the tow had negligently allowed the tug to take the tow too close to the bank, yet, since the tug could with proper care, notwithstanding the negligence of the tow, have kept the tow clear of the bank, and had by an improper alteration of the helm caused the tow to go ashore, the tug was liable. between the rules of law as to what is The question whether a particular act of negligence was No difference a cause of the loss, so as to make the person charged with negligence responsible for the loss, must, it would seem, and Admiralty be answered in the same way, whether it is the act of a negligence. plaintiff or of a defendant; whether the negligence of other parties contributed to the loss or not; and whether the action is at common law or in Admiralty (b). "There is no difference between the rules of law and the rules of Admiralty to this extent, that where any one transgresses a navigation rule, whether it is a statutory rule or whether it is a rule that is imposed by common sense, what may be called the common law, and thereby an accident happens of which that transgression is the cause, he is to blame, (2) Laid down by Pollock, C. B., in Greenland v. Chaplin, 5 Ex. 243, 248; supra, p. 14; and by the Exchequer Chamber in Sharp v. Powell, L. R. 7 C. P. 253. See also Lawrence v. Jenkins, L. R. 8 Q. B. 274; Sneesby v. Lancashire and Yorkshire M. Rail. Co., L. R. 9 Q. B. 263. (a) 6 App. Cas. 217. (b) See per Campbell, C., The and those who are injured by the accident, if they themselves are not parties causing the accident, may recover both at law and in Admiralty" (c). The learned lord, in a subsequent part of his judgment in the same case (d), states that the only case which seems to point to there being any difference between the rules of law and Admiralty as to what is negligence causing the loss is The Fenham (e), in which there are expressions of Lord Romilly to the effect that infringement of a statutory rule of navigation is to be taken as a cause of the collision, unless the person charged proves the contrary. Those expressions, he points out, may well apply to such an infringement as that in The Fenham (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 (f), 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 (g) and Hay v. Le Neve (h) have been cited as authorities to this effect. In The Fenham the facts were these:-A steamship in the North Sea, after sun-down on a dusky evening in November, struck a brig which was not carrying lights as required by the Regula (c) Per Lord Blackburn, 9 App. Cas. 880. (d) P. 882. (e) L. R. 3 P. C. 212. (f) 10 M. & W. 546. (9) L. R. 3 P. C. 212. (h) 2 Shaw's Scotch App. Cas. 395. |