s. 17 to In a recent case a Queen's ship was held in fault under Application of sect. 17 (e). The question whether the Act applies to a Queen's ship. Queen's ship does not appear to have been discussed or raised. It is submitted that it does not so apply (d). in causing any damage that may happen:" The Farragut, 10 Wall. 334. But the burden is on a vessel which has infringed the Statutory Regulations to prove that the infringement did not contribute to the collision: The Pennsylvania, 19 Wall. 125: The Ariadne, 2 Bened. 472. If, however, such proof is forthcoming, a ship will recover full damages although she did not comply with the Regulations: I. Parsons on Shipping (ed. 1869), 596, 597; Chamberlain v. Ward, 21 How. 548, 567; The Gray Eagle, 9 Wall. 505; The Continental, 14 Wall. 345; The Sunnyside, 1 Otto, 208; The City of Washington, 2 Otto, 31. And Blanchard v. New Jersey Steamboat Co., 59 New York Rep. 292; and Whitehall Transport Co. v. New Jersey, &c. Co. 51 N. Y. Rep. 369; and Hoffman v. Union Ferry of Brooklyn, 7 Amer. Rep. 435, are decisions of the State of New York Courts to the same effect. In The Pennsylvania a steamship and a sailing ship were in collision. The latter was not sounding her fog-horn, but was ringing a bell, though she was under way. The Supreme Court refused to admit evidence that the bell could be heard further than the horn, and held that the sailing ship was in fault for the collision. The following passage, which occurs in the judgment of the Court, shows that the law in America as to the effect of an infringement of the Regulations is identical with that of this country: "Where a ship, at the time of collision, is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the collision. In such a case the burden rests upon the ship of showing, not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been." The same ship was in this country held free from fault: see The Pennsylvania, 3 Mar. Law Cas. O. S. 477. (c) The Hochung_and The Lapwing, 5 Asp. Mar. Law Cas. 39. (d) See 17 & 18 Vict. c. 104, s. 4; 25 & 26 Vict. c. 63, s. 1; 36 & 37 Vict. c. 85, s. 2. CHAPTER III. Persons Liability of master. LIABILITY FOR DAMAGES-PERSONS ENTITLED TO RECOVER. THE person primarily liable for damages to the sufferer by collision is he by whose negligent act the loss was occasioned. The shipowner navigating his own vessel, the master, mate, pilot or other person in charge of the ship, who gave a wrong order to the helm (a), the helmsman who directed the ship's course wrongly, the seaman on the look-out who negligently failed to see and report the approach of the other vessel, may all be sued as wrongdoers and are liable for damages (1). An action was brought against a pilot on board a king's ship for injury to the plaintiff's ship by the king's ship. It was held by Lord Kenyon that, though the pilot might be obliged to act in obedience to the order of the lieutenant in command of the king's ship, yet the pilot would be liable, if the collision happened by his personal misconduct. Upon proof that the collision occurred by reason of an alteration of the helm ordered by the lieutenant the plaintiff was non-suited (c). It has been said that the master is liable for the negligent and wrongful acts of his crew as well as for his own acts (d). His liability as carrier, unless specially limited, may extend so far; but it does not appear to have been held in any case decided in this country that he is liable in tort for the acts of other persons (e). For wilful injury to another ship by pilot or crew he clearly is not liable (ƒ). As regards the responsibility of the master when a pilot is on board, whether by compulsion of law or by the master's or owner's choice, it seems clear that for a collision caused by the fault of the pilot the master is not answerable if the pilot has been placed in charge of the ship properly and in the ordinary course of navigation (g). The statutory limitation of liability (h) does not apply to No limitation protect an owner, or a part owner, by whose actual fault or the actual with whose privity the collision occurred. Such an owner is wrong-doer liable for full damages; and if the proceeds of the sale of the ship arrested, or if the statutory amount of the owner's liability, is insufficient to recompense the sufferer by the collision, the owner by whose actual fault or privity the loss was occasioned is liable for the deficiency (i). It will be seen below (k) that in the case of a collision with one of her Majesty's ships, by the fault of those on board her, the actual wrong-doer is alone answerable in damages. of liability of owner, The actual wrong-doer, being commonly a seafaring man Liability of of small means, can seldom give adequate redress, and the shipmay be not worth suing. In such cases the substantial remedy is to be sought, either in Admiralty against the ship, or in a common law court against the employer of (e) See Aldrich v. Simmonds, 1 Stark. 214; Oakley v. Speedy, 4 Asp. Mar. Law Cas. 134. (f) Bowcher V. Noidstrom, 1 Taunt. 568; McManus v. Crickett, 1 East, 106. (g) Kent's Comm. vol. 3, § 176. As to the respective duties of master and pilot, see below, p. 241. (h) See below, p. 171, as to the statute limiting owner's liability. (i) See The Triune, 3 Hag. 114. In this case (decided under 53 Geo. M. The shipowner is liable, not quâ owner, but only as the actual wrong-doer. We propose to consider first the liability of the employer or master of the actual wrongdoer. In most cases the owner of the ship is the employer of those on board and in charge of her, and is liable for the negligent acts of the crew. So generally is this the case that it has been held that, in the absence of proof to the contrary, those in charge of a ship will be presumed to be in the employment of her owners (1). And primâ facie the registered owners are the real owners of a ship. But the register is not conclusive evidence of ownership; and if it is shown either that the actual owner is a different person from the registered owner, or that the registered owner is not the employer of the crew or person causing the collision, the presumption as to the liability of the registered owner is rebutted, and the actual owner or other person employing the wrong-doer is alone liable. It must be clearly understood that the liability for damage by a ship does not attach to her owner quâ owner. It is only as master or employer of the persons whose employer of negligent act caused the damage that he incurs any liability. "The owner would not be liable merely because he was owner, or without showing that those navigating the vessel were his servants" (m). the actual wrong-doer. The act complained of must be an act of the It is scarcely necessary to observe that the liability of the shipowner for the acts of the master and crew does not depend upon their being on board at the time of the collision (). It is further necessary, in order to fix the shipowner with liability, that the negligent act complained of was an act of the servant acting within the scope of his employ (1) See Joyce v. Capel, 8 C. & P. 370; Hibbs v. Ross, L. R. 1 Q. B. 534, and cases there cited.; Frazer v. Cuthbertson, 6 Q. B. D. 93, 98; Chasteauneuf v. Delange, 7 Ap. Ca. 127. (m) Per Lord Cairns, C., River Wear Commissioners v. Adamson, 2 App. Cas. 743, 751; and per Lord (n) See The Northampton, 1 Sp. E. & A. 152; Hibbs v. Ross, ubi supra; The Kepler, 2 P. D. 40. within the scope of his ment (o). In the ordinary case of a collision occurring in servant the course of the ship's employment for the owner's benefit no difficulty arises upon this point. But when the ship is employment. engaged upon a voyage or duty not authorized by the owner, the question arises whether those on board are acting within the scope of their employment by the owner. Where a master, without any instructions from his owner as to towing disabled ships, undertook to assist a disabled ship into port, and whilst attempting to get her in tow negligently ran into and injured her, it was contended that the owner was not liable, because the master in assisting the disabled ship was not acting within the scope of his employment. It was held that he was so acting, and that his owner was liable (p). liable for criminal acts Wilful, malicious, or criminal acts of the master and Owners not crew can seldom be within the scope of their employment wilful, maso as to make the shipowner liable. Thus for a collision licious, and caused by the master and crew maliciously driving their of their ship against another the owner will not be liable (9). So servants. where those on board a ship wilfully cut another ship adrift, and the latter suffered damage in consequence, it was held that the owners of the former were not liable at at law, and that their ship could not be sued in Admiralty (r). But owners are liable for the acts of their servants done in the course of their service and for their master's benefit, though no express command or privity of the owner be proved (s). And owners are answerable for the manner in which their servants navigate their ship, though the (0) As to what acts are within the scope of the servant's employment, see 1 Smith's L. C. 8th ed. 383; and per Willes, J., Barwick v. English Joint-Stock Bank, L. R. 2 Ex. 259, 265. (p) The Thetis, 3 Mar. Law Cas. O. S. 357. (a) The Druid, 1 W. Rob. 391; McManus v. Crickett, 1 East, 106. For an instance of a wilful attack (r) The Ida, Lush. 6. But see (8) See per Willes, J., Barwick v. English Joint-Stock Bank, L. R. 2 Ex. 259, 265. |