CHAPTER XI. COLLISION WITH REFERENCE TO-(1) THE SHIPOWNER'S CONTRACT OF IN SURANCE.-CRIMINAL AND OTHER CONSEQUENCES OF COLLISION. THE liability of the shipowner for loss by collision of goods on board his ship may be considered under two heads: (1) his liability at common law by the custom of the realm; (2) his liability upon the contract of carriage. A common hoyman (a), the owner of barges, flats, or lighters, who lets them out for hire (b), the owner of a general ship trading between places within the realm or to foreign lands (c), are subject to the liability of a common carrier. Whether the owner of a ship that is not a general Whether ship, and trades to foreign lands, is a common carrier, or shipowner is liable as such, is doubtful (d). Again, whether the owner carrier. of a general ship is liable as a common carrier, except so far as he is protected by the contract, where he carries goods under a bill of lading, was, until of late years, a question much disputed (e). It appears to be now decided that he is not (ƒ)· 27. (a) Forward v. Pittard, 1 T. R. (b) Dale v. Hall, 1 Wils. 281; Lyon v. Mells, 5 East, 428; Liver Alkali Co. v. Johnson, L. R. 9 Ex. 338. (c) Morse v. Slue, 1 Ventr. 190, 238; see on this case per Blackburn, J., L. R. 9 Ex. 341; per Cockburn, C. J., 1 C. P. D. 430; Barclay v. Cuculla y Gana, 3 Dougl. 389. (d) See Liver Alkali Co. v. Johnson, ubi supra; Nugent v. Smith, 1 C. P. D. 19; ib. 423; Chartered Mercantile Bank of India, London, (e) See 1 Parsons on Shipping, (f) Nugent v. Smith, 1 C. P. D. 19, 423; but see per Pollock, B., Chartered Mercantile Bank of India, London, and China v. Netherlands India Steam Navigation Co., 9 Q. B. D. 118; Hayn v. Culliford, 4 C. P. D. 182. a common Shipowner's liability at common law. Shipowner's liability on the contract of carriage. At common law, where the shipowner is subject to the liability of a common carrier, he is liable as insurer against loss or damage from any cause except the act of God and the Queen's enemies (g). For injury to passengers on board his ship he is liable only where it is caused by the negligence of himself or his agents, the officers or crew (h). To passengers, therefore, he is liable for injury in a collision caused by the fault of his own ship, or by the fault of both ships. To cargo-owners he is liable at common law for loss or damage in a collision by the fault of his own, or of both ships, or where it is an inevitable accident. It is possible that a collision might occur by act of God, in which case he would not be liable. But the ordinary socalled case of collision by inevitable accident, as where it is caused by stress of weather, fog, or latent defect in gear, would not be held to be an act of God (i). It has been held in America that owners of a tug towing craft with goods on board are not liable as common carriers for the safety of the goods (k). In practice the shipowner carrying goods usually contracts himself out of the onerous liability imposed on him by the common law. By the charter-party or bill of lading it is usually agreed that the goods shall be carried and delivered in good order, unless loss or damage shall arise from certain specified causes. These causes, technically called "exceptions," commonly include "perils, dangers, and accidents of the sea, rivers, land, carriage, and steam navigation, of whatsoever nature and kind." Under a bill of lading so framed the shipowner is not liable for a collision which occurs without negligence in either ship (/), (g) Nugent v. Smith, 1 C. P. D. 19; ib. 423. (h) See Redhead v. Midland Rail. Co., L. R. 2 Q. B. 412; on app. ib. 4 Q. B. 379, and the cases there cited. (i) See Nugent v. Smith, 1 C. P. D. 19, 34, as to what is an act of God. (k) Caton v. Rumney, 13 Wend. 387. This seems to be the general rule, but there are contrary decisions; see 1 Parsons on Shipping (ed. 1869), 247, note. (1) Buller v. Fisher, 3 Esp. 67; Chartered Mercantile Bank of India, "collision" in bill of or for a collision caused wholly by the fault of the other ship (m); but he is liable where there is negligence in his own ship. Sometimes in the bill of lading there is con- Exception of tained an exception of "collision." In that case the ship-co owner is not liable for a collision caused by the fault of lading. the other ship (»); but he remains liable for a collision caused by the fault of his own ship. The reason for his liability for a collision, caused wholly or in part by the fault of his own ship, is that "underlying the contract implied or involved in it (the bill of lading) is . . . an engagement on his part to use due care and skill in navigating the ship and carrying the goods " (0). To cover loss by the fault of the carrying ship the Other exfollowing exception is sometimes added:-" Accidents, ceptions. loss, or damage, from any act, neglect, or default whatsoever, of the pilot, master, or mariners, or other servants of the shipowner in navigating the ship." These words cover loss in a collision caused by the fault of the carrying ship (p); but they do not cover loss by a collision with another ship of the same owners caused entirely by the fault of such ship (9). An exception of "dangers or accidents of navigation in a bill of lading covers loss of cargo by collision caused by the fault of the other ship (»). London, and China v. Netherlands India Steam Navigation Co., Limited, 10 Q. B. D. 521. As to American law on the point, see Angell on Carriers, 5th ed. 513. (m) Wilson, Sons & Co. v. Owners of Cargo per Xantho, The Xantho, 12 App. Cas. 503, overruling Woodley v. Michell, 11 Q. B. D. 47. (n) Lloyd v. General Iron Screw Collier Co., 3 H. & C. 284; Grill v. General Iron Screw Collier Co., L. R. 1 C. P. 600; on app. ib. 3 C. P. 476; Woodley v. Michell, 11 Q. B. D. 47; Chartered Mercantile Bank, fe. v. India Steam Navigation Co., 10 Q. B. D. 521, 531. (0) Per Lord Macnaghten, The Xantho, 12 App. Cas. 503, 515. (p) Chartered Mercantile Bank, &c. v. Netherlands India Steam Navigation Co., 10 Q. B. D. 521. Except, perhaps, where there is negligence on the part of the owner in appointing an incompetent master or crew; see per Brett, M. R., 10 Q. B. D. 532. (9) Chartered Mercantile Bank, &c. v. Netherlands India Steam Navigation Co., ubi supru. (r) Sailing Ship Garston Co. v. Hickie, Borman & Co., 18 Q. B. D. 17. Collision between ships of the same owner. The Bernina was in collision partly by her own fault. Goods on board were in consequence of the collision transhipped to another ship, and whilst being carried on to their destination were lost by the fault of those on board the carrying ship. It was held that an exception in the original bill of lading of "act of God, Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation," did not cover the loss (§). In the case of a collision between the carrying ship and another belonging to the same owners, the effect of the exception last mentioned, together with the statutory rule as to division of loss where both ships are in fault (36 & 37 Vict. c. 66, s. 25, sub-sect. 9), is to relieve the shipowner from making good to the cargo-owner more than half his loss. He is liable as carrier for half, and for half only, of the loss on the goods (t). The case (u) which decided these points was as follows:A collision occurred between The Crown Prince and The Atjeh, a ship belonging to the owners of The Crown Prince, by the fault of both ships. The question arose whether the shipowners were liable to the owners of cargo shipped on board The Crown Prince under a bill of lading containing exceptions of, amongst other things, “collision," and "accidents, loss, or damage from any act, neglect, or default whatsoever of the pilots, master, or mariners, or other servants of the company in navigating the ship." It was held that the shipowners were not liable upon the contract of carriage. Baggallay and Lindley, L.JJ., were of opinion that the exception of "collision," although it did not cover the negligence of The Crown Prince (x), did cover that of The Atjeh; and further, that the negligence of The Crown Prince was 36. (s) The Bernina (No. 2), 12 P. D. (t) Chartered Mercantile Bank, &c. v. Netherlands, &c. Co., 10 Q. B. D. 521. (u) Ibid. (x) Lloyd v. General Iron Screw Collier Co., 3 H. & C. 284; Grill v. General Iron Screw Collier Co., L. R. 1 C. P. 600; ib. 3 C. P. 476. covered by the other exception stated above. In the Court below (y), Pollock, B., and Manisty and Stephen, JJ., considered that the shipowners were not protected by the exception of "collision," on the ground that, since liability for loss by collision caused by the fault of the carrying ship is not excluded by that exception, neither is loss by collision caused by the fault of the carrying ship and another belonging to the same owners. Pollock, B., and Stephen, J., held that, though the second exception would have protected the shipowners, if the collision had been caused entirely by the fault of The Crown Prince, it had no application to a case where both ships were in fault. Manisty, J., held that the contract in the bill of lading was express, to carry and deliver the goods safely, subject to certain exceptions, which did not include negligence of those on board The Atjeh. Pollock, B., appears to have held the shipowners were liable as common carriers, being unprotected by the terms of their bill of lading. As stated above, the Court of Appeal reversed the decision of the Court below as to the liability of the shipowners on the bill of lading. But the shipowners were held liable in tort (2) for the negligence of their servants on board The Atjeh, though, by reason of the rule as to division of loss, for only half the loss. division of The rule as to division of loss where both ships are in Rule as to fault does not affect the right of a cargo-owner to recover loss. full damages for breach of the contract of carriage against the owner of the carrying ship, though the other ship was also in fault for the collision. But it abridges his common law right, as against the owner of the other ship, by limiting the liability of the wrong-doer to one-half the loss (a); (y) 9 Q. B. D. 118. (z) As to the liability of the shipowner in tort as well as upon the contract, see Morgan v. Ravaz, 6 H. & N. 265; Pontifex v. Midland Rail. Co., 3 Q. B. D. 23. (a) The Milan, Lush. 388; Chapman v. Royal Netherlands Steam Navigation Co., 4 P. D. 157, 165; Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Co., 10 Q. B. D. 521. The |