goods are in the custom-house, the seller may take possession by entering them as his own and paying or securing the duties.1

2

What the consignor may do personally, he may do by an authorized agent. And if the demand be made by one who acts as agent but without authority, a subsequent adoption and ratification by the seller, will have the effect of a previous authority, provided this be made before the goods are demanded by the buyer.3 If made afterwards, it is said, it cannot give validity to the stoppage.

On the continent of Europe generally, the right of stoppage in transitu is controlled, or rather made unnecessary, by the principle derived from the civil law, already referred to, which permits any creditor to take out of the debtor's possession the goods which he sold, if they can be identified and separated, and the parcels have not been opened for sale, or the goods altered. But in France, after some conflict, it seems to be settled that the law of stoppage in transitu is almost the same as our own. There is, however,

1 Nix v. Olive, Abbott on Shipping, 538; Ex parte Walker, 1 Cooke's B. L.

394.

2 Holst v. Pownal, 1 Esp. 240; Whitehead v. Anderson, 9 M. & W. 518; Donath v. Broomhead, 7 Barr, 301; Mottram v. Heyer, 5 Denio, 629. If an agent has it in his power to stop the goods but neglects to do so, he is liable in an action by the principal against him. Howatt v. Davis, 5 Munf. 34.

3 Wood v. Jones, 7 Dowl. & R. 126; Newhall v. Vargas, 13 Maine, 93. See also Nicholls v. Le Feuvre, 2 Bing. N. C. 81; Bailey v. Culverwell, 8 B. & C. 448; Bartram v. Farebrother, 4 Bing. 579. If one unauthorized takes possession of the goods before they reach the vendee, the question is quo animo he does it, whether as agent of the consignor, or of the vendee. Per Parke, B., James v. Griffin, 1 M. & W. 20, 29.

* Bird v. Brown, 4 Exch. 786. The persons who stopped the goods in this case were not even the general agents of the vendors. But in Newhall v. Vargas, 13 Maine, 93, a ratification, after the goods were demanded by the administrator of the consignee, who had died insolvent, was held to be effectual. The principle upon which the court proceeded in the case of Bird v. Brown, seems to us to be the more correct. It is that the act of ratification must take place at a time, and under circumstances, when the ratifying party might himself have lawfully done the act which he ratifies. The Court said: "In the present case, the stoppage could only be made during the transitus. During that period the defendants, without authority from Illins, made the stoppage. After the transitus was ended, but not before, Illins ratified what the defendants had done. From that time the stoppage was the act of Illins, but it was then too late for him to stop. The goods had already become the property of the plaintiffs, free from all right of stoppage."

See ante, p. 480, n. 3.

one provision of its code, not often called for, perhaps, in practice, but so manifestly just and reasonable, that it should be adopted here. It is that the estate, or the assignees of the purchaser of goods which the seller has stopped and taken into his possession, shall be fully indemnified for all the costs and charges which they have properly incurred on account of them.1 Indeed, this is only an unusual application of the same principle which the law merchant already applies to stoppage in transitu in reference to freight.

1 Code de Commerce, art. 579. shall be bound to indemnify the

"In case of stoppage in transitu, the vendor estate of the insolvent for all advances for freight or transportation, commission, insurance, or other charges, or to pay the sums due for these expenses if they have not been discharged."

CHAPTER XI.

OF COLLISION.

SECTION I.

GENERAL RULES.

COLLISION is a very common accident in harbors, and not very rare at sea. The rule in this country is, that the party in fault must suffer his own loss and compensate the other party for what loss he may sustain. But if neither be in fault, the loss rests where it falls. If both are substantially in fault, the loss also rests

1 The Scioto, Daveis, 359; The Woodrop-Sims, 2 Dods. 83; Reeves v. Ship Constitution, Gilpin, 579; The Sappho, 9 Jur. 560. See also cases infra generally.

When a collision takes place by inevitable accident, without blame being imputable to either party, as where it is occasioned by a storm, or any other vis major, the misfortune must be borne by the party on whom it happens to light. In this, the civil law, the common law, and the Maritime law of Europe, of England, and of this country, agree. Dig. 9. 2. 9; Consulat de la Mer, par Boucher, 200-203; Pardessus, Droit Com. tome iii. 652; The French Code de Commerce, art. 407; Valin, Ord. de la Marine, liv. 3, tit. 7, art. 10, vol. 2, p. 177; Emerigon, c. 12, § 14; (see, however, the Laws of Oleron, art. 15, and The Ordinance of Wisbuy, arts. 29, 49, 50, and 65; Boulay Paty, Cours de Droit Com. Mar. tit. 12, s. 6, vol. 4, p. 493;) The Woodrop-Sims, 2 Dods. 83; The Celt, 3 Hagg. Adm. 328, note; Jameson v. Drinkald, 12 J. B. Moore, 148; The Catherine of Dover, 2 Hagg. Adm. 145, 154; The Shannon & The Placidia, 7 Jur. 380, s. c. nom. The Shannon, 1 W. Rob. 463; The Thornley, 7 Jur. 659; The Ebenezer, 2 W. Rob. 206; The Itinerant, 2 W. Rob. 236; The Scioto, Daveis, 359; Reeves v. Ship Constitution, Gilpin, 579; Stainback v. Rae, 14 How. 532; The Eliza & Abby, 1 Blatchf. & H. Adm. 435; The Moxey, Abbott, Adm. 73. See also The Ligo, 2 Hagg. Adm. 356; Steamboat Co. v. Whilldin, 4 Harring. Del. 228; Cummins v. Spruance, 4 Harring. Del. 315; The Brig Veruma v. Clark, 1 Texas, 30; Myers v. Perry, 1 La. Ann. 372; Duggins v. Watson, 15 Ark. 118; Fashion v. Wards, 6 McLean, C. C. 152. Dr. Lushington, in The Virgil, 7 Jur. 1174, 2 W. Rob. 201, defines an inevitable accident to be "that which the party charged with the offence could not possibly prevent by the exercise of ordinary care, caution, and maritime skill." See also The Loch

where it falls, by the rules of the common law.1 If it cannot be aslibo, 3 W. Rob. 310, 318, 1 Eng. L. & Eq. 651; The Europa, 2 Eng. L. & Eq. 557; The England, 5 Notes of Cases, 170; The John Buddle, 5 Notes of Cases, 387; The Juliet Erskine, 6 Notes of Cases, 633; Union Steamship Co. v. New York Steamship Co. 24 How. 307; The Morning Light, 2 Wallace, 550; The Carrier Dove, Brow. & L. Adm. 113; The Argo, Swabey, Adm. 462; The Peerless, Lush. Adm. 30; The Sylph, 4 Blatchf. C. C. 24; The Brooklyn, id. 365; The Bridgeport, 1 Bened. Adm. 65; The Perseverance, Holt, Rule of the Road, 262. (We shall have frequent occasion to refer to cases reported in this work, and shall cite it as Holt.) In the Bolina, 3 Notes of Cases, 208, it was held that where there is no primâ facie case of negligence and want of seamanship, and the party proceeded against alleges inevitable accident, the burden is not on him to prove it, but the party seeking indemnification must prove that the other party was to blame. If a vessel performing a salvage service injures another, the injury will generally be considered as unavoidable. Stevens v. Steamboat S. W. Downs, 1 Newb. Adm. 458. In The Java, U. S. D. C., Mass. 1867, Lowell, J., the Cunard Steamer Java came into collision with a schooner, about one o'clock in the afternoon. It appeared that the school-ship George M. Barnard, a large vessel, high out of water, was kept constantly moored during the winter months near the edge of the channel in Boston Harbor, and leaving only a narrow passage between her and East Boston, and a vessel the size of the Java could not pass through this passage except at high water, and it was not customary for the Cunard steamers to take it. The schooner had been towed from the wharves, and was getting under way near the school-ship, when the steamer, rounding the stern of the school-ship, ran into the schooner. The steamer at the time was going slowly, and had good lookouts. Held, that the steamer had a right to go inside the school-ship, and that the collision was an inevitable accident.

1 Luxford v. Large, 5 Car. & P. 421; Vanderplank v. Miller, Moody & M. 169; Lack v. Seward, 4 Car. & P. 106; Sills v. Brown, 9 Car. & P. 601; Handaysyde v. Wilson, 3 Car. & P. 528, 530, per Best, C. J.; Vennall v. Garner, 1 Cromp. & M. 21, 3 Tyrw. 85; Simpson v. Hand, 6 Whart. 311; Broadwell v. Swigert, 7 B. Mon. 39; Rathbun v. Payne, 19 Wend. 399; Barnes v. Cole, 21 Wend. 188; Kelly v. Cunningham, 1 Calif. 365; Myers v. Perry, 1 La. Ann. 372; Duggins v. Watson, 15 Ark. 118; Dunn v. McComb, 11 La. Ann. 325. In the case of Dowell v. The Gen. Steam Nav. Co. 5 Ellis & B. 195, 32 Eng. L. & Eq. 158, Lord Campbell, C. J., said: "According to the rule which prevails in the Court of Admiralty, in a case of collision, if both vessels are in fault, the loss is equally divided; but in a court of common law the plaintiff has no remedy if his negligence, in any degree, contributed to the accident." See also The Gen. Steam Nav. Co. v. Mann, 14 C. B. 127, 26 Eng. L. & Eq. 339, 341. The negligence of the plaintiff, in order to preclude him from recovering, must be such that the defendant could not, by ordinary care, have avoided the consequences of it. Butterfield v. Forrester, 11 East, 60; Bridge v. The Grand Junction Railway Co. 3 M. & W. 244; Davies v. Mann, 10 M. & W. 545. Lord Campbell, in the case of Gen. Steam Nav. Co. v. Tonkin, 4 Moore, P. C. 314, said that he entirely concurred in the principle established in these cases. See also Tuff v. Warman, 2 C. B. N. s. 740.

certained where the fault lies, the rule may not be quite certain; but there is reason for saying that in admiralty the loss will not rest where it falls, but be divided between the two vessels.1 In admiralty the rule was once said to be, in the case where both are in fault, that the loss should be apportioned between the parties, meaning according to the degree or measure of the fault of each, if either decidedly preponderates; but if they are equal, or nearly so, the whole damage is divided between both, without reference to their respective values. But it seems now to be determined by adjudication, that the loss shall be divided equally. Still, the

1 When the collision has evidently been caused by neglect, or the want of sufficient precaution, it is, perhaps, not yet settled whether the rule of equal apportionment should be applied, if the fault is inscrutable, and it is impossible to say which party is to blame. In The Catherine of Dover, 2 Hagg. Adm. 154, Sir Chr. Robinson made the following remarks to the Trinity Masters: "The result of the evidence will be one of three alternatives, either a conviction in your mind that the loss was occasioned by accident, in which case it must be sustained by the party on whom it has fallen; or a state of reasonable doubt as to the preponderance of evidence, which will have nearly the same effect; or third, a conviction that the party charged with being the cause of the accident is justly chargeable with the loss of this vessel according to the rules of navigation which ought to have governed them." The words in italics have, by a late writer on maritime law (Flanders on Mar. Law, p. 298), been supposed to determine, as the law of England, that where the fault is inscrutable, each shall bear his own loss. Whether the learned judge intended this construction to be put upon his words, is perhaps doubtful. See Story on Bailments, § 609. The better rule seems to be that the loss in such a case shall be equally divided. 1 Bell's Com. 579; Pothier, Avarie, n. 155; 1 Emerig. Ass. ch. 12, § 14. In The Scioto, Daveis, 359, Judge Ware lays down the rule in the broadest terms. He says, the rule of equal proportionment "seems to apply in three cases, first, where there has been no fault on either side; second, where there may have been fault, but it is uncertain on which side it lies; and third, where there has been fault on both sides." And the rule of equal apportionment has been adopted in the District Court of the United States for the District of Ohio. Lucas v. Steamboat Swann, 6 McLean, C. C. 282. See also The Nautilus, Ware, 2d ed. 529.

2 Where both parties are to blame, the loss is equally apportioned between them, although one may be much more in fault than the other. Vaux v. Sheffer, 8 Moore, P. C. 75; The De Cock, 5 Month. Law Mag. 303, 2 Law Reporter, 311, 22 Am. Jurist, 464; The Seringapatam, 5 Notes of Cases, 61, 66, 2 W. Rob. 506, 3 id. 38; The Sappho, 9 Jurist, 560. In Hay v. Le Neve, 2 Shaw's Scotch Appeal Cases, 395, this question received a full and elaborate discussion, and a decision of the Court of Sessions that the ship most to blame should pay two thirds of the expenses, was reversed. See also The Judith Randolph, decided by Sir James Marriott, in 1789, cited in Hay v. Le Neve, supra; The Oratava, 5