CHAPTER XIV OF DAMAGES IN COLLISION CASES 144. Recovery Based on Negligence. 145. Inevitable Accident or Inscrutable Fault. 146. One Solely in Fault. 147. Both in Fault. 148. Rights of Third Party where Both in Fault. 149. Contribution between Colliding Vessels-Enforcement in Suit against Both. 150. Enforcement by Bringing in Vessel not Party to Suit. Enforcement by Independent Suit. 151. 152. Measure of Damages. RECOVERY BASED ON NEGLIGENCE 144. Negligence is an essential to recovery of damages in collision cases. The mere happening of a collision does not give rise to a right of action for damages resulting therefrom, except in those cases where, under the navigation rules, one vessel is presumed to be in fault until she exonerates herself. Even in those cases the right of recovery is based, not upon the fact of collision, but upon the presumption of negligence. A collision may happen under any one of several circumstances. It may arise without fault, it may arise by the fault of either one of the two, or it may arise by the fault of both. The law, as administered in the admiralty courts, is summarized by Lord Stowell in the WOODROPSIMS. In it he says: § 144. 12 Dod. 83. "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." The question must be considered-First, as between the two ships; and, second, as respects third parties. As between the owners of the two ships, it must be considered-First, where neither is in fault; second, where one alone is in fault: third, where both are in fault. INEVITABLE ACCIDENT OR INSCRUTABLE 145. Where neither vessel is in fault, or where the fault is inscrutable, neither can recover, and the loss rests where it falls. Meaning of "Inevitable Accident" A collision arising by inevitable accident comes under this clause. An "inevitable accident," in the sense in which it is used in this connection, does not mean an accident unavoidable under any circumstances, but one which the party accused cannot prevent by the exercise of ordinary care, caution, and maritime skill. This definition is taken from the MARPESIA.2 In the GRACE GIRDLER, the court says: "Inevitable accident is where a vessel is pursuing a lawful avocation in a lawful manner, using the proper precautions against danger, and an accident occurs. The highest degree of caution that can be used is not required. It is enough that it is reasonable under the circumstances; such as is usual in similar cases, and has been found by long experience to be sufficient to answer the end in view-the safety of life and property. Where there is a reasonable doubt as to which party is to blame, the loss must be sustained by the party on whom it has fallen." 4 In the Mabey the same idea is expressed thus: "Where the collision occurs exclusively from natural causes, and without any negligence or fault on the part of either party, the rule is that the loss must rest where it fell, as no one is responsible for an accident which was produced by causes over which human agency could exercise no control. Such a doctrine, however, can have no application to a case where negligence or fault is shown to have been committed on either side. Inevitable accident, as applied to a case of this description, must be understood to mean a collision which occurs when both parties have endeavored, by every means in their power, with due care and caution, and a proper display of nautical skill, to prevent the occurrence of the accident, and where the proofs show that it occurred in spite of everything that nautical skill, care, and precaution could do to keep the vessels from coming together." The reason for this is that it is unfair to hold any one re 145. 2 L. R. 4 P. C. 212; Schwan, [1892] P. 419. 37 Wall. 196, 19 L. Ed. 113; Lackawanna, 210 Fed. 262, 127 C. C. A. 80. 4 14 Wall. 204, 20 L. Ed. 881; Coxe Bros. & Co. v. Cunard S. S. Co. (D. C.) 174 Fed. 166. sponsible for a disaster produced by causes over which human skill and prudence can exercise no control." Under this class may be ranged those cases where accidents happen from the breakdown of machinery or other appliances. In the William Lindsay," a vessel was tied to a regular mooring buoy in the harbor. During a storm the buoy broke loose, and in trying to put out an anchor the cable on the windlass became jammed. The court held that it was an inevitable accident. In the Olympia,' a collision was caused by the breaking of a tiller rope from a latent defect, the proof showing that it had been carefully inspected. The court held that it was an inevitable accident. On the other hand, in the M. M. Caleb, where a rudder chain broke from a defect which was discoverable by the exercise of reasonable care, the court held that it was negligence, and not an inevitable accident. Collisions may occur from an inevitable accident, though nothing breaks, and there is no vis major. In the Java a small schooner, which came from behind a large schoolship, was struck by a steamer coming from the other side, and it appeared that the steamer could not have seen the Sunnyside, 91 U. S. 208-210, 23 L. Ed. 302. 6 L. R. 5 P. C. 338; E. M. Peck, 228 Fed. 481, 143 C. C. A. 63; Hispania, 242 Fed. 265, 155 C. C. A. 105. But jamming or breaking of steering gear, caused by too sudden a change in order to avoid a danger that should have been anticipated sooner, is not an inevitable accident. Brigham v. Luckenbach (D. C.) 140 Fed. 322; Edmund Moran, 180 Fed. 700, 104 C. C. A. 552. 761 Fed. 120, 9 C. C. A. 393; Virgo, 3 Asp. 285. 8 10 Blatchf. 467, Fed. Cas. No. 9,683; Acme (D. C.) 123 Fed. 814; J. N. Gilbert, 222 Fed. 37, 137 C. C. A. 575; Warkworth, 9 P. D. 20, 145; Merchant Prince, [1892] P. 179. 914 Wall. 189, 20 L. Ed. 834; Columbus, Fed. Cas. No. 3,043; Luzerne (D. C.) 148 Fed. 133; Id., 157 Fed. 391, 85 C. C. A. 328; Merritt & Chapman Derrick & Wrecking Co. v. Cornell Steamboat Co. (D. C:) 174 Fed. 716; Id., 185 Fed. 261, 107 C. C. A. 367. sail vessel on account of the large ship. The court held that the accident was inevitable. In the Transfer No. 3,10 one boat was gradually overhauling another, and, when in a position where she could not stop in time to avoid collision, the machinery of the front boat broke down. The case was held one of inevitable accident. The party defending on this ground has the burden of negativing any negligence on his part which might account for the accident.11 In cases of inscrutable fault, also, each party bears his own loss. Cases under this head are not common, as courts are loath to admit inability to locate fault.12 ONE SOLELY IN FAULT 146. Where one alone is in fault, that one alone is liable. This is so obvious that further discussion seems unnecessary. BOTH IN FAULT 147. Where both are in fault, the damages are equally divided, irrespective of the degree of fault. This is the settled law in America, and until recently in England, and marks a sharp distinction between the common-law and admiralty courts. The distinction between the two forums is summarized in CAYZER v. CARRON Co.,18 in which the court said: 10 (D. C.) 91 Fed. 803. 11 Edmund Moran, 180 Fed. 700, 104 C. C. A. 552; Bayonne, 213 Fed. 216, 129 C. C. A. 560; Merchant Prince, [1892] P. 179. 12 Centurion, 100 Fed. 663, 40 C. C. A. 634; Jumna (D. C.) 140 Fed. 743; Id., 149 Fed. 171, 79 C. C. A. 119; Banner (D. C.) 225 Fed. 433. § 147. 189 A. C. S73. |