that there should be allowed as damages by the collision "the ordinary and fair earnings of such a ship as The Argentino, having regard to the fact that she was put up as one of W. and L.'s line of steamers trading to the Black Sea, and advertised as such" (7). A fishing smack recovered, besides the value of her nets Loss of fishing and gear which she was obliged to cut adrift, the amount voyage. she might reasonably have expected to earn during the rest of the season (m). But it was held by Sir J. Hannen in a recent case that, where the boat is totally lost (in the case before the Court she was a French boat sunk by collision on the banks of Newfoundland), the prospective catch of fish could not be recovered, and the damages were confined to the value of the boat and gear (n). Damages which, although consequent upon the collision, Remoteness of damage. do not immediately or necessarily flow from it, cannot be recovered against the ship in fault for the collision (0). Where the master and part-owner of a vessel lost by collision claimed his probable future earnings as master, and profits as part-owner, it was held that he was entitled to nothing more, by way of damages, than the value of the ship at the time of the collision (p). And where a vessel put into port for repairs necessitated by collision, and her cargo of fruit was necessarily discharged to enable the repairs to be made, and reloaded, damage occasioned partly by handling and partly by natural decay during the delay was held not to be damage "consequent upon collision," within the meaning of a policy of insurance (q). It has never been the practice to give damages for loss Loss of (The Argentino, 13 P. D. 191; 14 App. Cas. 519. (m) The Gleaner, 3 Asp. Mar. Law Cas. 582; The Clarence, 3 W. Rob. 283, 286: The Risoluto, 8 P. D. 109. In Roman law aliter, D. 9, 2, 29, 3. (n) The City of Rome, Ad. Div. 11th May, 1887. (0) As to remoteness of damages, see Mayne on Damages, 3rd ed. 40 seq.; 2 Smith's L. C., 9th ed. Damages for loss of life. Damages in proceedings by Board of Trade. of market for cargo on board a ship injured by collision (r). The difference between the price of the goods when they arrive at the port of discharge and the price when they ought to have arrived, and but for the collision would have arrived, is so uncertain that it cannot be held to be the reasonable consequence of the collision. It has been suggested that there is a distinction between an action for tort and an action upon the contract of carriage, and that damages for loss of market may be recovered in the former but not in the latter form of action. There seems to be no ground for such a distinction (8). Damages for loss of life are recoverable under Lord Campbell's Act (t) by the relatives or legal personal representatives of persons killed in a collision in a personal action against the person liable, but not in proceedings in rem (u). Under 17 & 18 Vict. c. 104, the Board of Trade has power to institute proceedings for the recovery of damages for loss of life or personal injury. Damages recovered in such proceedings are assessed at 307. for each case of death or injury, and are payable in priority to other claims. This, however, is not the limit of the owner's liability. The full amount to which he is liable under 25 & 26 Vict. c. 63, s. 54, can be recovered in proceedings, either by the Board of Trade or by any person dissatisfied with the amount recovered in the Board of Trade proceedings. If the amount of the owner's statutory liability is insufficient to provide damages at the rate of 30%. for each claimant, the claims abate rateably (x). (r) The Parana, 2 P. D. 118, 124; The Notting Hill, 9 P. D. 105; Smith v. Condry, 1 How. 28; The Jos. W. Dyer v. National Steamship Co., 14 Blatchf. 483. See, however, France v. Gaudet, L. R. 6 Q. B. 199, where the price of goods contracted to be sold at a profit was recovered in an action for conversion. (8) The Notting Hill, ubi supra. (t) 9 & 10 Vict. c. 93; 27 & 28 Vict. c. 95. As to assessment of damages by a jury in the Admiralty Division, see The Orwell, 13 P. D. 80. (u) See below, p. 144. (x) See 17 & 18 Vict. c. 104, ss. 507-516; 25 & 26 Vict. c. 63, 8. 56; Glaholm v. Barker, L. R. 2 Eq. 598; S. C., L. R. 1 Ch. 223; see also The Franconia, 2 P. D. A penalty of 50%. in addition to damages can be recovered Penalty for against a ship that injures a light-ship (y). injuring a light-ship. where loss Full damages may be recovered by the injured party Damages though he has been compensated for the whole or part of paid by his loss by his insurers (2). But, as will be seen below (a), insurers. he will hold such damages as he may recover, to the extent of the sum received from his insurers, in trust for his insurers. 66 coverable by cargo-owner Damages recoverable by a cargo-owner, or by a pas- Damages resenger, upon the contract of carriage, are such as a man when making the contract would contemplate would flow upon the from a breach of it" (b). This somewhat vague rule is carriage. the only one to be extracted from the cases. It is beyond the in any The shipowner's general liability as carrier is considered elsewhere (d). contract of Effect of the division of rule as to amount of The rule as to division of loss where both ships are in fault, whilst it extends the right to recover damages by superseding the common law doctrine of contributory loss upon the negligence, also limits the amount of damages recoverable damages reto one-half the claimant's loss. In the case of an owner coverable. cargo on board one ship suing the other in tort, it abridges to this extent his common law right to recover of 163, 166. It is believed that proceedings under this Act have been taken once only, in the case of The John. (y) 17 & 18 Vict. c. 104, s. 414. 2) Yates v. Whyte, 4 B. N. C. 272; Bradburn v. Great Western Rail. Co., L. R. 10 Ex. 1. (@) P. 295. (6) Per Blackburn, J., Hobbs v. London & S. W. Rail. Co., L. R. 10 Q. B. 111, 121. (c) As to the subject generally, see Mayne on Damages, 4th ed. pp. 12 seq.; Sedgwick on Damages, 7th ed. vol. 1, 431 seq.; vol. 2, 91 seq. The Parana, 1 P. D. 452; 2 P. D. 118; McMahon v. Field, 7 Q. B. D. 591; Lilley v. Doubleday, ib. 510, are amongst the later cases on the subject. (d) Infra, p. 281. 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 (f). 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, |