CHAPTER IV. PERSONS ENTITLED TO RECOVER. Actions by part owners: ALL persons injured in their persons or property in a collision caused by the fault of one or both ships, and who have not themselves or through their agents been guilty of negligence causing the loss (a), are entitled to recover damages. Such persons are usually of one or other of the following classes: owners of the injured ship, whether they are registered as owners or not (b); passengers, master, or crew losing their clothes or effects (c); owners or consignees of cargo on board either ship; persons entitled under Lord Campbell's Act to recover damages for relatives killed (d), or persons on board either ship who are hurt in the collision (e); the indorsee of a bill of lading, even though the cargo has been sold (f); bailees, and other persons having a special property in, or temporary possession of, the ship or cargo (g). It seems that part owners of the injured ship might consolidation recover damages for their respective losses in successive of actions. (a) As to the division of loss in cases where both ships are in fault, see below, p. 125. (b) The Ilos, Sw. 100. (c) The Cumberland, 5 L. T. N. S. 496. As to a passenger by ferry in charge of his own mare, see Willoughby v. Horridge, 12 C. B. N. S. 742. (d) 9 & 10 Vict. c. 93; infra, pp. 122, 144. A posthumous child may recover for the loss of its father: The George and Richard, L. R. 3 A. & E. 466. (e) As to members of the crew so hurt, see The Borodino, 5 L. T. N. S. 291; Taylor v. Dewar, 2 B. & S. 58. (f) The Marathon, 40 L. T. N. S. 163. (g) The Minna, L. R. 2 A. & E. 97. In an American case full damages were recovered for a collision, although all interest in the injured ship had been transferred to a foreigner, whereby the ship was forfeited to the State: The Nabob, Brown, Ad. 115. actions(); and the defendant would not, it seems, be entitled to have the other co-owners added as plaintiffs, at any rate without their consent in writing, nor to have the proceedings stayed until this was done, so that he should not be vexed by more than one action (i). If a part owner dies after the collision and before action brought, the right of action survives to the other part owners (k). must sue in name of The underwriters upon a ship, A., sunk by collision Underwriters with B., cannot sue B. or her owners in their own names. Their only right of action is by subrogation to the rights assured. of the owners of A.; and they must sue in the names of the owners of A. (1). owner of in fault can There was formerly doubt whether a person injured on Person or board a ship which is herself in fault can recover at common goods on law. This doubt, originating in the well-known case of board ship Thorogood v. Bryan (m), has lately been set at rest by the recover. House of Lords in The Bernina (No. 2) (n). Thorogood v. Bryan was there overruled. It had never been recognized as law in the Court of Admiralty, Dr. Lushington having held that, Thorogood v. Bryan notwithstanding, the owners of cargo on board a ship in fault could recover half their loss against the other ship being also in fault (o). Bryan. Thorogood v. Bryan was decided in 1849 by a very Thorogood v. strong Court (Coltman, Vaughan, Williams, Maule, Cresswell, JJ.). It held that the representatives of a passenger in an omnibus, who was killed by the combined (i) Ord. XVI. rr. 2, 11. Jackson V. Kruger, 54 L. J. Q. B. 446; Tryon v. The National Provident Institution, 16 Q. B. D. 167. (b) See Rex v. Collector of Customs, 2 M. & S. 225; Martin v. Crompe, 1 Ld. Raymond, 340. (1) Simpson v. Thompson, 3 App. Cas. 279. (m) 8 C. B. 115; Cattlin v. Hills, ibid.; 1 Smith's Leading Cases, V. 8th ed. 316. See also Armstrong (n) Nom. Mills v. Armstrong, 13 (0) The Milan, Lush. 388; The City of Manchester, 5 P. D. 3; ib. 221. negligence of the driver of the carrying omnibus and the driver of another omnibus, could not recover against the employer of the latter driver. The negligence in the carrying omnibus consisted in setting the passenger down in the middle of the street, and not drawing up to the kerb; the negligence in the other omnibus was carelessly driving over the passenger after he had been set down. The ground of the decision was that the passenger was "identified" with the driver of his own omnibus in the matter of negligence, and therefore, having by his own. (i.e. his driver's) negligence partly caused the accident, he could recover nothing. This case, though often questioned, did not come before a higher Court for review until 1888, The Bernina. when The Bernina (nom. Mills v. Armstrong) came before the House of Lords. In the Courts below, Butt, J. (11 P. D. 31), had reluctantly followed Thorogood v. Bryan ; the Court of Appeal (12 P. D. 58) reversed the decision of Butt, J.; and the House of Lords (Lords Herschell, Watson, Macnaghten, and Bramwell, the latter with some doubt), affirmed the decision of the Court of Appeal. The facts in The Bernina were that Toeg, a passenger, and Armstrong, an engineer on board The Bushire, were killed in a collision between The Bernina and The Bushire, caused by faults in both vessels, but without fault in Armstrong or Toeg. It was held that the representatives of Toeg and Armstrong could recover full damages against the owners of The Bernina. Lords Herschell and Watson delivered opinions strongly against the identification theory upon which Thorogood v. Bryan was decided. Lord Bramwell was of opinion that Thorogood v. Bryan was rightly decided upon a point of pleading, namely, that whereas the plaintiff alleged that the defendant's negligence caused the injury, the fact was that the accident would not have happened but for the negligence of the driver of the carrying omnibus. Having been decided upon the point of pleading, Lord Bramwell held that Thorogood v. Bryan was not an authority in the case of The Bernina. As to the "identification" theory, Lord Bramwell thought that it was intended to express the idea that a person who contracts with another to be carried without negligence has not a right of action against a third party by whose negligent act, combined with a separate negligent act of the contracting carrier, the passenger is injured. This idea the learned lord found difficulty in deciding to be unfounded in law. He considered that the decision of the House involved the overruling of Waite v. North Eastern Rail. Co. (p), as well as Thorogood v. Bryan, so far as the latter case depended upon the identification theory. crew. A servant cannot recover against his employer for Shipowner's injury sustained in the course of his employment through liability to the negligence of a fellow-servant (q). It seems, therefore, that the ship's officers and crew cannot recover against the shipowner for injury suffered in a collision caused by one of themselves (r), except, perhaps, where the wrong-doer is the captain (s). But a compulsory pilot is not a servant of the shipowner, and the rule above stated does not prevent him from recovering against the owner (†). (p) E. B. & E. 719. (9) Priestly v. Fowler, 3 M. & W. 1; Chitty on Contr. 10th ed. 537. See Wilson v. Merry, L. R. 1 Sc. App. 326. The Employers' Liability Act, 1880, does not apply to seamen or apprentices to sea service, or, it seems, to an officer. See 43 & 44 Vict. c. 42, s. 8; 38 & 39 (r) Leddy v. Gibson, 11 Sess. Cas. (s) Ramsay v. Quinn, Ir. Rep. 8 C. L. 322. (t) Smith v. Steele, L. R. 10 Q. B. 125. G.A. contributin is not recoverable for wrong dover the Marken Truder after judgment to use. tendered if a less sum a is found due Recepta 1893 P. 255. the amount Tender does not bund the tenderer tomona 1894 P 264. The CHAPTER V. OxxII 1 does not apply 7 Ath. 155. DAMAGES. What damages may general rule. THE wrong-doer in a collision is liable for all the reasonable be recovered; consequences of his negligence-" such damages as flow directly and in the usual course of things from the wrongful act" (a). This is the general principle, and where the damages claimed are in respect of loss or injury to ship or goods, occurring at, or immediately after, the collision, there is little difficulty in applying the rule. But where the loss, though consequent upon and connected with the defendant's negligent act, was not immediately caused by it, there is often great difficulty in determining whether damages in respect of such loss can be recovered as having been caused by the negligence. The question is closely connected with that discussed in a former chapter as to the legal consequences of negligence. Restitutio in Assuming that there is a good cause of action, there is a difficulty in many cases of determining the measure of damages, and the proper items to be taken into account in estimating them. As similar facts giving rise to similar claims for damages are constantly recurring in collision actions, it will be convenient to collect the decisions upon this subject. The general rule was thus stated by Dr. Lushington in |