The Admiralty Law of Collisions at Sea

rules thus established are enforced, it may be said, in all countries, by inflicting on those who infringe them the obligation to make good the damage occasioned by their wrongdoing to the vessel with which their own has come in contact.

These customary sea rules, and the penalty thus provided for the breach of them, are enforced usually in Courts of Admiralty, or courts having analogous powers. In this country, the proper tribunal for that purpose is the High Court of Admiralty in England and Ireland, and the Court of Session in Scotland.

The Court of Admiralty proceeds upon principles of enlarged equity, holding itself very much emancipated from the technicalities of the common law. Its principles, as will be seen, differ in some respects widely from those adopted in the latter courts. In the interpretation of statutes, the rule is that the Admiralty Court follows the courts of common law; and Dr. Lushington on one occasion said that the court would always decide in consonance with a series of cases adjudged at common law; but would not be bound by one or two cases, especially if they had been doubted by the profession (a). The court implicitly obeys a decision of the House of Lords, or the Judicial Committee of the Privy Council; which latter constitutes a Court of Appeal from the Court of Admiralty. With these limitations, however, the Admiralty Court holds itself free to proceed entirely on principles of its own.

(a) Milan, 1 Lush. 402.

There is a very singular rule, general and of great antiquity, and now firmly settled as the law of the Court of Admiralty on this subject, yet scarcely to be justified on any grounds of natural equity. It is that, when both the colliding vessels are in fault, each is to pay one half of the damages suffered by the other. This rule has been steadily opposed by the Judges of the English common law courts, who hold that a wrongdoer cannot take advantage of the circumstance that the party proceeded against is likewise in fault; but, supposing that his own fault has contributed to the collision, must bear his own loss (a). An attempt was made to enforce, to a certain extent, the doctrine of the common law courts by legislation. The Merchant Shipping Act of 1854 (17 & 18 Vict. c. 104), after laying down certain statutory regulations, as to steering, carrying lights, and the like, enacted (s. 298) that in case of collision resulting from the non-observance of such rules, the wrongdoer should not be entitled to recover any damages from the vessel proceeded against. It was found, however, that the ancient customary rule was too strong for this statutory innovation. In the first place, it was determined in the Admiralty Court that this legislation was not binding as against foreign ships run into by either foreign or English ships on the high seas; and then, on principles of reciprocity, that it was not binding on English ships making claims on

(a) Dowell v. General Steam Navigation Company, 5 E. & B. 195.

foreigners for such collisions (a). Then it was found that a very inequitable result was produced by the change; for, when both ships were in fault, one for violating a statutory provision, and the other for breaking a sea rule existing independently of the statute, the latter could recover half damages from the former, while the former had no corresponding claim on her part (b). Thus the change of law was made partially inoperative, and its effect was at once to complicate the law, and, in many cases, to work a great injustice. Accordingly, in the Merchant Shipping Amendment Act (25 & 26 Vict. c. 63, s. 29), the clause above referred to was repealed, and the old rule of dividing damages was re-established (c). As the Admiralty law now stands, therefore, the rule is this: if the vessel proceeded against is solely in fault (d), that vessel is liable in damages to the other; if both are in

(a) See post. c. 10.

(b) Aurora, 1 Lush. 329.

(2) "In fault" here means guilty of a fault which has contributed to the collision. A ship may be in fault otherwise, even in a matter connected with the collision,-as by not rendering assistance to the other vessel to save life after the collision,-and yet, apart from statute law, recover entire damages against the other (Celt, 3 Hagg. 321). It is to be noted, however, that, as regards the illustration here given, the Act 25 & 26 Vict. c. 63, provides (s. 33), that in every case of collision between two ships, it shall be the duty of the person in charge of each ship, if and so far as he can do so without danger to his own ship, to render to the other ship, her master, crew, and passengers (if any), such assistance as may be practicable and as may be necessary in order to save them from any danger caused by the collision; and, in case he fails to do so, and no reasonable excuse for such failure is shown, the collision shall, in

fault, each party may recover from the other one half of his damages; if neither are in fault, the collision having resulted from inevitable accident, each vessel bears its own loss (a).

If the cargo in one ship has been lost or damaged by a collision, the owner of it may recover the full amount of his loss if the other ship has been solely in fault, or one-half if both ships have been in fault while he is not liable, in the latter case, to contribute anything towards the damages of the other ship, because the master and crew, who are the parties directly in fault, are not his servants, but those of the shipowner (b). For the remaining half damage, or for the whole damage, in case the ship in which his goods are laden is solely in fault, the cargo owner has his remedy at common law against the owner of the ship (c).

This liability, to make compensation for damage done by collision resulting from faulty seamanship,

the absence of proof to the contrary, be deemed to have been caused by his wrongful act, neglect, or default. The effect of this clause is that, where there has been such neglect to render assistance after a collision, the burden of proof that she was not the ship in fault is thrown upon the vessel so neglecting (Queen of the Orwell, 7 L. T. N. S. 839; 8 Mitchell's Register, 240). But to make out that one colliding vessel has neglected to render assistance to the other, it is in general necessary to show that assistance has been applied for, or that the need of it must have been evident (Mexican, 9 Mitch. 1647).

(a) Hay v. Le Neve, 2 Shaw's Scotch Appeal Ca. 395; De Vaux v. Salvador, 4 Ad. & E. 431; Shee's Abbott, p. 202; Monarch, 3 Hagg. 328 n.; Woodrop-sims, 2 Dods. 85.

(b) Milan, 1 Lush. 398.

is, in the language of the Admiralty Court, regarded as a liability of the ship, as a res. The ship in fault is liable to arrest, and either must be bailed or will be sold to satisfy the demand of the party aggrieved. This liability follows the ship even after a transfer, and although no notice of the collision has been given to the purchaser: it not being permitted to the owner to evade his liability for the acts of his servants by a subsequent sale of the ship (a). In one case, where an interval of four years had elapsed between the collision and the commencement of proceedings, and in the interim the ship had been sold, it was held that the ship was still liable to arrest, it appearing that the long delay had not arisen from any laches on the part of the claimant, but from a difficulty in finding and arresting the ship (b). And, although the persons immediately in fault for the collision may not be the servants of the shipowner, as, when the ship has been demised to a charterer with power to appoint his own master and crew, the ship is still liable to arrest for the collision damage (c). So, where a yacht had been placed for sale in the hands of a yachting agent, who took charge of her for a certain sum per week, and employed servants of his own to moor her, the yacht was held liable to Admiralty process for a collision caused by the negligence of those servants (d).

(a) Bold Buccleugh, 3 W. Rob, 229. (b) Europa, 8 Mitch. 240.

(d) Ruby Queen, 1 Lush. 266.

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