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THE LAW

OF

COLLISIONS AT SEA.

CHAPTER I.

NEGLIGENCE.

without

THE mere fact that a ship strikes or goes foul of and Collision injures another creates no liability in herself, her owners, negligence or those in charge of her. The assertion that one ship creates no liability. "ran into" or 66 ran down" the other, often made in collision actions by witnesses on both sides, is a mere allegation of negligence, and in no way advances the case (a). So that damages may be recovered, negligence for which the owners or persons in charge of the ship sued are responsible must be proved. There is one case, but one case only, in which damages may be recovered without proof of negligence; the case, namely, of an infringement by the defendant ship of one of the Statutory Regulations for Preventing Collisions at Sea which might by possibility have contributed to the collision. Here a rule of law (b) requires that the ship which has broken the law shall be deemed to be in fault for the collision. It excludes evidence directed to show that the infringement did not in fact contribute to the collision, and renders the consideration

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

M.

(b) 35 & 36 Vict. c. 85, s. 17; see infra, pp. 38, seq.

B

Case of inscrutable fault.

What is negligence.

of the question of actual negligence unnecessary. The precise effect of this important enactment will be considered hereafter (c).

Where a ship, or each of the two ships, alleges (d) negligence on the part of the other, and it is manifest that the collision was caused by fault somewhere, but the evidence does not satisfy the Court on which side the fault lies, no damages can be recovered, and each ship bears her own loss (e). The English law as to the incidence of loss in this case differs from that of some foreign countries, and also, it seems, from the general maritime law (f).

In The Albert Edward (g), an action against a steamship for damage to a mooring dolphin, which fell over on being struck or pressed upon by the ship, was dismissed with costs, on the ground that mere contact with the dolphin did not constitute a cause of action, and that the damage to the dolphin was the result of its own weakness, and was not caused by any negligence on the part of the ship.

Negligence is the failure to exercise that skill care and nerve which are ordinarily to be found in a competent seaman. "We are not to expect extraordinary skill or

(c) Infra, pp. 38, seq.

(d) Following a practice which is almost universal, the writer here and subsequently personifies the ship. Convenience and habit will, perhaps, be considered a sufficient excuse for the use of a phraseology which has sometimes proved misleading; see infra, p. 75.

(e) The Maid of Aukland, 6 Not. of Cas. 240; The Catherine of Dover, 2 Hag. Ad. 145; The Laconia, 2 Moo. P. C. C. N. S. 161; Abbott on Shipping, 12th ed. 520; and see per Lord Wensleydale, Morgan v. Sim, The London, 11 Moo. P. C. C. 307, 312. But formerly the law was otherwise; see infra, p. 152.

(f) See Bell's Commentaries on the Law of Scotland (ed. 1870, by McLaren), I. 627; Bynkershoek, Quæst. Jur. Priv. C. 4, c. 18; Pothier, vol. 4, p. 444. There is no express authority for this statement as to the peculiarity of English law, and there are early decisions to the contrary; see infra, p. 145. But no case is to be found in the books in which damages have been recovered in a case of inscrutable fault, or in any case in which negligence has not been proved against the other ship. As to the Roman and foreign law on the point, see infra, p. 68, and the note at the foot of Chapter VI.

(g) 44 L. J. Ad. 49.

extraordinary diligence, but that degree of skill, and that degree of diligence, which is generally to be found in persons who discharge their duty" (h). In The Dundee (i) Lord Stowell defined negligence as "a want of that attention and vigilance which is due to the security of other vessels that are navigating the same seas, and which, if so far neglected as to become, however unintentionally, the cause of damage of any extent to such other vessels, the maritime law considers as a dereliction of bounden duty, entitling the sufferer to reparation in damages." In a recent case before the House of Lords, it was said that the duty of a seaman is "to take reasonable care and to use reasonable skill to prevent the ship from doing injury;" and it was pointed out that much more skill is reasonably required from a person who takes charge of a ship than from one who drives a carriage (k). So in the case of a collision between a ship being launched and another afloat, it was said by Butt, J., that under the circumstances the utmost possible precautions by those in charge of the launch were no more than reasonable (7).

A wrong step agony of the

taken in the

If a vessel by her own fault makes a collision so imminent that it cannot be avoided except by the extraordinary skill nerve or exertion on the part of the other ship, and a collision is not negligence. collision occurs, it will be held to have been caused by the former, and she will be liable for the entire loss. In such case, and in every case where a ship by her own negligence places another in sudden and great peril, the latter will not be held guilty of negligence because at the last moment she did something that contributed to the collision, or omitted to do something that might have avoided it (m).

(4) Per Dr. Lushington, The Thomas Powell and The Cuba, 2 Mar. Law Cas. O. S. 344.

(0) 1 Hag. Ad. 120.

(k) Per Lord Blackburn, Stoomtaart Maatshappy Nederland v. Directors, &c. of the Peninsular and Oriental Steam Navigation Co., The

Voorwaarts and The Khedive, 5 App.
Ca. 876, 890. This case is fre-
quently cited in the following pages
as The Voorwaarts and The Khe-
dive. See also infra, p. 72.

(1) The George Roper, 49 L. T.
N. S. 185; 8 P. D. 119.

(m) The Nor, 2 Asp. Mar. Law

Except where there is a

statutory presumption of fault.

Examples.

And the same principle applies in all cases of sudden and great danger not caused by a man's own negligence. In such circumstances he is required to exhibit ordinary presence of mind and ordinary skill; but it is manifest that in such a case he may do, or omit to do, something which may contribute to the collision, without thereby showing himself deficient in ordinary skill, care, or nerve. Such an act of omission is held not to be negligence (n).

It will, however, be seen hereafter that an arbitrary rule of law requires the courts to attribute fault to a ship that has, even under such circumstances of sudden and extraordinary peril, infringed one of the Statutory Regulations for preventing collisions that might by possibility have contributed to the collision, although those on board have not, in fact, been guilty of any negligent act or omission (o).

The following cases illustrate the principle above mentioned, that a wrong step taken in the agony of the collision will not necessarily cause the ship to be held in fault for the collision.

A sailing ship (p) in a thick fog sighted another at so

Cas. 264; The C. M. Palmer and The
Larnax, infra; The Pyrus and The
Smales, Holt, 40; The Elizabeth and
The Lotus, 2 Mar. Law Cas. O. S.
238; The Sisters, 1 P. D. 117; The
Bywell Castle, 4 P. D. 219; The
William Frederick and The Byfoged
Christensen, 4 App. Cas. 669; The
Voorwaarts and The Khedive, 5 App.
Ca. 876. Cf. also Clayards v. Dethick,
12 Q. B. 439; and per Lord Ellen-
borough, C.J., in Jones v. Boyce, 1
Stark. 493, 495: "If I place a man
in such a situation that he must
adopt a perilous alternative (as
jumping off a coach), I am respon-
sible for the consequences.
has been often held by the Su-
preme Court of the United States
that a vessel which by her own fault
causes sudden peril to another can-
not impute to the other as a fault a
measure taken in extremis, although
it was a wrong step, and but for it

It

the collision would not have occurred. A mistake made in the agony of the collision is regarded as an error for which the vessel causing the peril is altogether responsible: The Nichols, 7 Wall. 656; The Carroll, 8 Wall. 302; The City of Paris, 9 Wall. 634; The Lucile, 15 Wall. 676; The Favorita, 18 Wall. 598; The Falcon, 19 Wall. 75; The Sea Gull, 23 Wall. 165. There are decisions of the French courts to the same effect: Abordage Nautique (Caumont), s. -s. 134.

(n) The Sisters, 1 P. D. 117; The Jesmond and The Earl of Elgin, L. R. 4 P. C. 1, 7; The Marpesia, L. R. 4 P. C. 212, Vennall v. Garner, 1 Cr. & M. 21; The City of Antwerp and The Friedrich, Inman v. Reck, L. R. 2 P. C. 25.

(0) Infra, p. 48.

(p) The Marpesia, L. R. 4 P. C.

212.

short a distance that in a minute, or less than a minute, the ships were in collision. Her helm was altered, but the head-sheets, which had just been let go, were not hauled aft, nor were the lee braces let go, so as to assist her head in paying off. It was held that, even if the collision could have been avoided by the measures suggested, the time was so short that there was no negligence in their omission.

Where a steamship coming up the Thames at night passed a schooner, and when about 300 yards a-head of her took the ground and stopped, the schooner was held not to be in fault for a collision which followed, although possibly, if she had at once let go her anchor, she might have prevented the collision (9).

A steamship bound down the river Thames on a very dark night was rounding-to in Gravesend Reach before coming to an anchor. While rounding-to she ran into and sank a vessel at anchor without a riding light up. The instant the latter vessel was seen the engines of the steamship were stopped and reversed, but her anchor was not let go. It was held that, even if the collision could have been averted by letting go the anchor, the master of the steamship was not guilty of negligence, because, at the moment, it did not occur to him to let go his anchor (").

But if a ship seeks to excuse herself for taking a wrong step, which, in fact, caused or contributed to the collision, upon the ground of sudden peril, she must show clearly that she was in no way responsible for the sudden peril (s).

Upon the same principle, if a ship by carrying wrong Misleading lights, or by navigating in an improper or unusual manner, ing or other lights, hailmisleads or embarrasses another, she cannot attribute as a embarrassing fault to the latter any act which was the probable result of

(9) The Elizabeth and The Adalia, 3 Mar. Law Cas. O. S. 345.

(r) The C. M. Palmer and The Larnaz, 2 Asp. Mar. Law Cas. 94.

(8) See The Bywell Castle, 4 P. D. 219, and the cases cited above. The David Morris, Brown, Ad. 273; The Elizabeth Jenkins, 5 Dav. 514

The Utopia 1893 a.c. 492

acts.

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