(8.) Of loss from collision of ships. This has been a difficult subject for discussion and decision, and various opinions have been entertained by the writers on maritime law. The evidence as to the true cause of the collision is of difficult access. The accident usually happens in the darkness of night, or in a storm, and is necessarily accompanied with confusion and agitation. When the fact is clear, that a fault was committed by one party, or that he was in want of due skill or care, and the disaster was the consequence thereof, the party in fault must pay all the damages. (1) The plaintiff may be in fault to a certain extent, and yet not to such an extent as to prevent his recovering; though it would seem, that if he or his agents substantially contributed to the injury, he cannot recover.a (2) There are settled nautical rules, by which, in most cases, the want of skill, or care, or duty, may be ascertained. Thus the vessel that has the wind free, or is sailing before or with the wind, must get out of the way of the vessel that is close-hauled, or sailing by or against it. The vessel on the starboard tack • Raisin v. Mitchell, 9 Carr. & Payne, 613. Baron Parke, in the case of The Bridge v. The Grand Junction Railway Company, 3 Mee. & Wels. 244. Butterfield v. Forrester, 11 East, 60. 38, E. C. L. R. 254, note. Sills v. Brown, 9 Carr. & Payne, 601. By whose fault the collision happened, is a question of fact for a jury, and the actual damage at the time and place of the injury, and not the probable profits at the port of destination, is the measure of value in damages, in cases of collision, as well as in cases of insurance. Smith v. Condry, 1 Howard's U. S. Rep. 28. b Sills v. Brown, 9 Carr. & Payne, 601. The custom in England, in the case of carriages on land meeting each other is, that each driver must pass to his own left hand. The rule is directly otherwise in this country, or at least in Massachusetts and New-York. N. Y. R. S. 3d edit. vol. i. 873. Kennard v. Burton, Law Reporter, July, 1846. By the New-York Revised Statutes, 3d edit. vol. i. 859, steamboats on the waters of that state meeting each other, the boats are to pass on the starboard, or right side of each other. Careful regulations are made in respect to the safe landing of passengers. When two steamboats are going in the (1) What is reasonable care will depend on all the circumstances of the navigators. Much more precaution is required during foggy weather or near the shore, than on the open sea. See Wells v. The Bay State, Dist. C. U. S. for N. Y. N. Y. Leg. Observer, p. 199, May, 1848. The Europa, reported in U. S. Law Mag. Dec. 1850, p. 497. In the last case, the subject of inevitable accidents is well discussed, and is declared by Dr. Lushington to exist "where a man is pursuing his lawful avocation in a lawful manner, and something occurs which no ordinary skill or caution could prevent, and, as a consequence of that occurrence, an accident takes place." (2) See post, p. 281, note 1. has a right to keep her wind, and the vessel on the larboard same direction, they must not approach within twenty yards of each other; and in the night time, each boat and all vessels on the waters of the state, must show good and sufficient lights. The Woodrop Sims, 2 Dod. Adm. Rep. 83. The Thames, 5 Rob. Adm. Rep. 345. Jameson v. Drinkald, 12 Moore, 148. The Celt, 3 Hagg. Adm. Rep. 321. Raisin v. Mitchell, 9 Carr. & Payne, 613. Marsh v. Blythe, 1 M Cord, 360. In many ports there are Trinity House regulations, requiring vessels at anchor in a navigable river, or port of much commerce, to have a light hung out conspicuously in dark nights. It was said, in Carsly v. White, 21 Pick. 254, that there was no general and absolute usage on the subject, and that the omission of the light might or might not be a fatal negligence, according to the circumstances. But the Ch. J. of Pennsylvania, in Simpson v. Hand, 6 Wharton, 324, more justly considered, that the hoisting of a light in a river or harbour at night, amid an active commerce, was a precaution imperiously demanded by prudence, and he did not see how it could be considered otherwise than as negligence per se. Train v. Steamboat N. A. 2 N. Y. Legal Observer, 67. S. P. The Shannon, 2 Hagg. Adm. Rep. 173. In the case of Lowry v. The Steamboat Portland, in the U. S. D. C. for Mass., January, 1839, it was certified by experienced navigators, and adjudged by the court as the rule on the subject, that when two vessels approach each other, both having a free or fair wind, each vessel passes to the right; and that a steamer was considered as always sailing with a fair wind, and is bound to do whatever a sailing vessel going free, or with a fair wind, would be required to do under similar circumstances. A steamer must back her engines immediately when hailed in a fog. Case of The Perth, 3 Hagg. Adm. R. 414. The Neptune 2d, 1 Dod. Adm. Rep. 467. But if a vessel anchors in an improper place, as in the thoroughfare pass of a river, her owner must abide the consequences of a collision, unless other circumstances alter the equity of the case. Strout v. Foster, 1 Howard's U. S. Rep. 89. The Trinity House Charter of Dept (1) See St. John v. Paine, 10 How. R. 557, where the Supreme Court of the United States adopt these rules of navigation. See, also, Newton v. Stebbins, id. 586. 131 causes exclusively, and without any negligence or fault in any one, open or concealed, the proprietors of the ship or cargo injured must bear their own loss, and it is not the subject of apportionment, or contribution, or of general average in any form. This was the doctrine of the Roman law, and this is the rule of the maritime law of Europe. The greatest difficulty on the subject has arisen in the cases in which the collision proceeded evidently from error, neglect, or want of sufficient precaution, but the neglect or fault was either inscrutable, or equally imputable to both parties. In this case, of blame existing which is undiscoverable, the marine law, by a rusticum judicium, apportions the loss, as having arisen equally by the fault of both parties. The rule is ford Strong, for the London trade, was first granted by Henry VIII, and has been renewed and modified by subsequent kings. The Trinity House Rules of 1840, as stated in the case of The Friends, in the Admiralty, Hill. Term, 1843, 1 Robinson, Jr. Adm. R. 484, declared that vessels having the wind fair shall give way to those on the wind; that when both are going by the wind, the vessel on the starboard tack shall keep the wind, and the one on the larboard tack bear up, thereby passing each on the larboard hand; that when both vessels have the wind free, large or abeam, and meet, they shall pass each other in the same way on the larboard hand, and to effect it the helm must be put to port. Steam vessels are considered in the light of vessels navigating with a fair wind, and should give way to sailing vessels on a wind on either tack. When steam vessels on different courses must necessarily cross so near, that by continuing their courses there would be a risk of coming in collision, each vessel should put her helm to port, so as always to pass on the larboard side of each other. A steam vessel passing another in a narrow channel must always leave the vessel she is passing on the larboard hand. There must be exceptions to these rules, says Dr. Lushington, implied by common sense; and if a steamer goes with great rapidity in hazy weather or dark nights, she is responsible for collision. The Rose, Adm. Hill. Term, 1843. See McCulloch's Dict. for the Trinity House Regulations. The difficulties occurring in the application of these general rules, and the cases which have arisen on the vexed questions, are learnedly examined in a work where we should not have expected such a discussion, Westminster Review for September, 1844, p. 117. See, also, the chapter on "Collision," in Abbott on Shipping, 5th Am. edit. Boston, 1846, p. 228. a Dig. 9. 2. 29. Consulat de la Mer, par Boucher, 200-203. Abbott on Shipping, part 3. c. 8. sec. 12. Marshall on Insurance, 493. Pardessus, Droit Com. tome iii. No. 652. Jameson v. Drinkald, 12 Moore, 148. The Ligo, 2 Hagg. Adm. Rep. 356. The Woodrop Sims, 2 Dod. Rep. 85. Bell's Com. vol. i. 579, 580, 581. Story, J., in 2 Phillips, 183, 2d edit. b Cleirac, Us et Coutumes de la Mer, 68. The Woodrop Sims, 2 Dod. Adm. Rep. 85. The De Cock, Eng. Adm. 1839. The Am. Jurist, January, 1840, p. 464. Le Neve v. Edin. and London Shipping Company, Bell's Com. vol. i. 581, note, 2d universally declared by all the foreign ordinances and jurists; and its equity and expediency apply equally where both parties are to blame, and where the fault cannot be detected. But, according to the English and American rule in the courts of common law, if there be fault or want of care on both sides, or without fault on either side, neither party can sue the other.a (1) The general rule of the maritime law is, to make the ships contribute equally, without regard to their relative value, and Valin considers this to be the shorter, plainer and better rule.b (2) There has been much a edit. Reeves v. The Ship Constitution, Gilpin, 579. Rogers v. Rival, District Court of Mass., Law Reporter for May, 1846, p. 28. Vanderplanck v. Miller, 1 Moody & Malkin, 169. & Meeson, 21. Simpson v. Hand, 6 Wharton, 311. Paragon, Phillips on Ins. vol. ii. 183. p. 354. Vennall v. Garner, 1 Cromp. Story, J., in the case of The Abbott on Shipping, by Story, edit. 1829, b Com. tome ii. 166. The Marine Ordinance of the city of Rotterdam, in 1721, declares that the damage resulting from collisions of ships shall be borne equally, unless, indeed, the collision happened by design, or any remarkable fault, and then (1) Broadwell v. Swigert, 7 B. Mon. R. 39. See ante, p. 230. But the doctrine of the text, if to be understood to mean that a party in any degree in default cannot recover, has been since qualified. In a late case, the district judge of the southern district of New-York, after expressing himself better satisfied with the rule forbidding a recovery in such cases, said, "the English admiralty has distinctly laid down the opposite rule, (2 Dods. R. 83, The Woodrop Sims,) and that case has been constantly adhered to." See, also, Gilpin's R. 579. Waring v. Clarke, 5 How. R. 503. Story on Bailm's, 608. It was deemed, therefore, in accordance with the English rule, that each party should pay one half of the loss. Wells v. The Bay State, N. Y. Legal Observer, p. 199, May, 1848. See 2 Arnold on Ins. 803. In cases of collision on land, if both parties are against the other. Parker v. Adams, 12 Met. R. 415. R. 39. guilty of negligence, neither can recover Kennard v. Burton, 12 Shepley's (Maine) (2) In a late case it was held, that where a steamer is towing a vessel, and a collision occurs, injuring a third vessel, both the steamer and its tow are jointly and severally liable, if both were in default. But it would seem that if the collision occurred exclusively by the fault of one, that alone is liable. Livingston v. Steam B. Express, U. S. C. C. New-York Legal Observer, p. 401, Nov., 1848. S. C. id. Dec., 1848, p. 484. On appeal, it was held, that, under the circumstances, the steamer was liable. The Express, 1 Blatchford R. 365. Where a vessel was towed by a steamer, under an agreement that the tow should be at the risk of its masters and owners, it was held that the owners of the steamer were, nevertheless, liable for injuries to the tow, arising from their gross negligence. Alexander v. Greene, 7 Hill R. 533. See. also, Sprout v. Hemmingway, 14 Pick. R. 1. Ante, vol. ii. p. 608, note a and (1.) But see the case of Wells v. The Steam Navigation Company, 2 Comst. R. 204, where Alexunder v. Greene was pointedly condemned, and it was decided that the owners of a towing boat are not common carriers, and may contract for a restricted liability. Common carriers are liable for losses caused by collisions with other vessels at sea, though no fault be imputable to either vessel. Plaisted v. Boston & K. S. N. Co. 27 Maine R. 132. But it has been held, in another case, that such losses are within the exception of “dangers of the river." Whitesides v. Thurlkill, 12 S. &. M Rep. 599. difference in the codes and authorities in maritime *232 law, whether the cargo, as well as the *ship, was to contribute to the loss. Valin contends that the contribution is only between the ships, and that the cargoes are totally excluded from the benefit, as well as from the burthen of contribution in the case of such a disaster. But in Le Neve v. Edinburgh and London Shipping Company, the cargo of the ship that was sunk and lost by the collision, received the benefit of the contribution.a (9.) Of general average. The doctrine of general average grows out of the incidents of a mercantile voyage, and the duties which it creates apply equally to the owner of the ship and of the cargo. General, gross or extraordinary average, means a contribution made by all parties concerned, towards a loss sustained by some of the parties in interest, for the benefit of all; and it is called general or gross average, because it falls upon the gross amount of ship, cargo and freight.b the guilty party must bear the whole loss. Ord. of Rotterdam, sec. 255, 256. The Ordinance of Hamburg, of 1731, tit. 8, is to the same effect, though even still narrower in the exception. The loss, under that ordinance, is assessed as a common average upon both vessels, freights and cargoes, and is to be borne one half by each vessel. The foreign law and the sentence of a foreign marine court, in a case of collision within its jurisdiction, and in a proceeding in rem, are conclusive as to the fact and faultlessness of the collision, and of the apportionment; (2 Phillips on Ins. 2d edit. 182. Smith v. Condry, 1 Howard's U. S. Rep. 28,) and where there is no proof of negligence on the part of the master or crew of the damaged ship, the insurer is liable for damages occasioned by collision. Stevens & Benecke on Average, by Phillips, 368. Peters v. Warren Ins. Co. vide infra, p. 302. This case was decided in the House of Lords in 1824. See Bell's Com, vol. i. 580-583, who has collected and digested the foreign authorities on the subject. By the English statute of 53 Geo. III. c. 159, ship-owners were protected from loss by damage done to other vessels without their fault, beyond their property in the ship, freight, apparel and furniture. The value of the ship doing the damage is the price at which she could be sold, ascertained by a valuation and appraisement. (1) Dobree v. Schroder, 2 Mylne & Craig, 489. In the case of the Dundee, it was held, that fishing stores of a Greenland ship were liable to contribute in compensation for damages done to another ship by collision, as appurtenances to a ship of that character. The Dundee, 1 Hagg. Adm. Rep. 109. b Particular average is the same as partial loss, and is to be borne by the par (1) Under this statute it has been held, that the whole freight due or to grow due during the voyage, is liable to make good the damage arising from collision. 1 Eng. L. & Eq. R. 637. (The Benares.) |