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NOTE.

Policy of the Law limiting Shipowners' Liability; and Foreign Law upon the Subject.

There has of late years been considerable difference of opinion as to the policy of the law which limits shipowners' liability. The Acts which give effect to that policy have been spoken of as abridging the natural (g) or common law (r) rights of persons injured by collision, as tyrannical (s), and derogating to the extent of injustice from the legal rights of parties (t). On the other hand, the Acts in question have been described as valuable (u) and necessary for the encouragement of commerce (x).

The first view assumes the justice of the law which makes a shipowner, wholly blameless himself, liable for the negli gence of his officers and crew. The natural justice of such a law is not immediately apparent; but the experience of mankind, and the prevalence amongst civilized nations of the principle of law represented by the maxim respondeat superior, point to its practical efficiency as a check upon negligence. The expediency of so framing the law as to provide the greatest possible security against the carelessness and recklessness of persons to whom is entrusted by others the conduct of a business so likely to do mischief as the navigation of ships is manifest (y). But even as matter of expediency it has been questioned whether shipowners or other principals should be liable at all for the negligence of those whom they employ; and it has been said by a distinguished judge that the principle should at any rate not be extended (). However this may be, it would seem that the law respondeat superior, if expedient in any case, is eminently so as regards the

(q) Per Sir R. Phillimore, The Northumbria, L. R. 3 A. & E. 6.

(r) Per Abbott, C. J., Gale v. Laurie, 5 B. & C. 156, 163. See also per Lord Palmerston in the debate in the House of Commons upon 25 & 26 Vict. c. 63, s. 54: Hansard's Parl. Debates, vol. 166, p. 2225.

(s) Per Brett, L. J., 6 P. D. 136. (t) Per Brett, L. J., 4 P. D. 184. (u) Per Butt, J., The Warkworth,

9 P. D. 20.

(x) See supra, p. 163.

(y) See per Lord Bramwell, 7 App. Cas. 826, n.; per James, L. J., The M. Moxham, 1 P. D. 110.

(z) Per Jessel, M. R., 9 Q. B. D.

The law as to

navigation of ships. The lives of all those who navigate the seas, and the safety of the commerce of the world, depends largely upon the attention and carefulness of those whom shipowners place in charge of their ships. Risk of collision has of late years very greatly increased, and will continue to increase. The growth in the number and size of ships, the superseding of sailing ships by steamships, and the rapid speed at which steamships are now run, are circumstances which cannot fail to increase the losses arising from collision. It has been calculated that, other conditions remaining the same, the risk of collision increases with the number of ships in the ratio of ten to one. Statistics show that the percentage of steamships in collision is five times as large as that of sailing ships; and whilst steamships are increasing in number and tonnage the number of sailing ships is stationary, if not decreasing. All these facts seem to point to the expediency of applying to shipowners the same law which in other matters has been found necessary for public safety. So far as the existing law, which limits their liability for the negligent acts of their servants, departs from the wholesome principle respondeat superior, it affords a direct encouragement to negligent and reckless navigation.

These considerations do not appear to have weighed with the Legislature, either when the original Act of Geo. III., or when the subsequent Merchant Shipping Acts were passed for the relief of shipowners. The history of those Acts shows that they originated in a policy of protection, of which the necessity or expediency at the present day may well be doubted.

It may, however, be thought that it is necessary to maintain the principle of limited liability for the relief of British shipowners so long as that rule is enforced by laws of other maritime nations. It appears that shipowners' liability is limited by the municipal laws of most, if not all, foreign countries. The state of foreign law upon the subject is as follows:

In the United States of America owners are not liable in the limitation of Federal Courts for loss or damage beyond the amount of their interest in the ship and freight at the time of the collision.

liability in America.

But there is no limitation of liability for damage by a vessel wholly engaged in inland navigation: The War Eagle, 6 Bissel, 364. If the wrong-doing ship is herself sunk, it seems that the owners are altogether discharged: 2 Parsons on Shipping (ed. 1869) 120, seg.; 9 U. S. Stat. at Large, 635; Norwich Steamboat Co. v. Wright, 13 Wall. 104 (in this country the loss of their own ship never discharged the owners: Brown v. Wilkinson, 15 M. & W. 391); and the limit of liability is the value of the ship after collision: Norwich and New York Transportation Co., 17 Blatchf. 221. But certain formalities must be gone through, and the ship must be surrendered, or the owners will not be entitled to the benefit of the Act of Congress limiting their liability: see The Jos. W. Dyer v. National Steamship Co., 14 Blatchf. 483. In some of the State Courts it has been doubted whether the owner's liability is limited; but it appears that where one of the ships is foreign the Federal Courts, and not the State Courts, have jurisdiction, and that the foreign ship has the benefit of the Act of Congress; see a letter from Mr. Thornton to Lord Tenterden, of 25th Nov., 1872.

law.

Upon the Continent of Europe the rule that abandonment Continental of the ship discharges the owners is almost, if not quite, universal. Art. 216 of the French Code de Commerce is as follows:

"Tout propriétaire de navire est civilement responsable des France. faits du capitaine, et tenu des engagements contractés par ce dernier pour ce qui est relatif au navire et à l'expédition. Il peut dans tous les cas s'affranchir des obligations ci-dessus par l'abandon du navire et du fret. Toutefois la faculté de faire abandon n'est point accordée a celui qui est en même temps capitaine et propriétaire ou co-propriétaire du navire. Lorsque le capitaine ne sera que co-propriétaire, il ne sera responsable des engagements contractés par lui, pour ce qui est relatif au navire et à l'expédition, que dans la proportion son intérêt."

de

As to the history of this article, see Lloyd v. Guibert, L. R. 1 Q. B. 115; 6 B. & S. 100; and per Dr. Lushington, The Mary Ann, L. R. 1 A. & E. 8, 11.

Germany,

Holland,
Belgium,
Russia,

The law by which the shipowner's liability is limited to the value of the ship and freight has no application in the case of a collision between craft engaged in inland navigation. A distinction is drawn between collisions "maritimes" and "non-maritimes." In the one case the owner's liability is limited, in the other not :-" comme dans l'un, c'est la chose, autrement dit le navire qui répond plutôt le dommage, et dans l'autre, la personne;" Jurisprudence et Doctrine en Matière d'Abordage, par M. Sibille, pp. 7, 8.

Arts. 451, 452 of the German Commercial Code; Art. 321 of that of Holland; Art. 7 of the Belgian Code; Art. 491 of the Italian; Art. 649 of the Russian (a); Art. 587 of the Spain, Italy, Spanish Code; and Art. 30 of the Egyptian Code de Com

Portugal,

Egypt.

merce Maritime, are similar in effect to the article of the French Code cited above. The corresponding Article (492) of the new Portuguese Code seems only to limit the owner's liability in respect of obligations arising out of contract: a doubt might be suggested as to whether this is not the effect of the Italian provision also (b).

(a) The writer has been unable to examine the latest Russian code; but it is believed to be to the same

effect as that referred to in the text.

() As to some recent foreign codes, see p. 160, note (a), supra.

CHAPTER VIII.

TUG AND TOW.

purposes tug

WHERE one ship is in tow of another, the two ships are, For some for some purposes, by intendment of law, regarded as one, and tow are the command or governing power being with the tow, and treated as one the motive power with the tug (a).

ship.

poses of the

Thus, for the purposes of the Regulations for prevent- For the puring collision, the tug and her tow are treated as one ship, Regulations. and that a steam or sailing ship according as the towing ship is under steam or not (b). But it is obvious that a tug with a ship in tow has not the same facility of movement as if she were unincumbered. She is not, in anything like the same degree, mistress of her own movements. She cannot, by stopping or reversing her engines, at once stop or back the ship in tow. In taking measures to avoid a third vessel she has to consider her tow; and a step that would be right, and take her clear, if she were unincumbered, may bring about a collision between her tow and the ship which she herself has avoided (c). Although, therefore, it is the duty of a tug with a ship in tow to comply, so far as is possible, with the Regulations for preventing collisions, it is also the duty of a third ship

(a) The Cleadon, 14 Moo. P. C. C. 97; The American and The Syria, L. R. 6 P. C. 127, 132.

(b) The Warrior, L. R. 3 A. & D. 553; The American and The Syria, ubi supra. The same has been held in America: New York, &c. Co. v. Philadelphia, &c. Co., 22 How. 461; The Ivanhoe v. The Martha M. Heath, 7 Bened. 213; The Cirilta and The Restless, 6

Bened. 309; 13 Otto, 699; The
Farewell, 8 Quebec L. R. 87. There
has been no decision as to a sailing
ship towing another, but there can
be little doubt that the law is as
stated in the text.

(c) See The Arthur Gordon and
The Independence, Lush. 270; The
Kingston-by-the-Sea, 3 W. Rob.

152.

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