Equal or

division.

The vague language of the Northern codes as to the manner proportionate in which, in case of accidental collision, the loss was to be distributed, gave rise in the seventeenth century to difference of judicial opinion. Bynkershoek describes in graphic terms the strong dissent of his colleagues, the judges of the Supreme Court of the Netherlands, when he endeavoured to persuade them to assent to a proportionate rather than an equal division of the loss: "Memini me senatore et de geometricâ proportione perorante reliquos senatores (23 Nov. 1629) obstupuisse atque si Jovis ignibus icti essent." (Bynk. Quæst. Jur. Priv. 1. iv. c. 20.)

The rule of division of

lish law.

The history of the rule as to division of loss in the English loss in Eng- Admiralty, so far as can be gathered from existing records, is as follows. The continuous series of Admiralty Court records begins about the year 1530. During the sixteenth century no trace of the rule appears in any sentence of the Court. Once only in the sixteenth, and once in the seventeenth, century awards of arbitrators are mentioned giving partial damages to the owners of ships sunk or injured by collision. In all the cases prior to 1614, (they are not numerous,) in which sentences were delivered in collision suits, either full damages were given or none. In 1614 (p) occurs the first sentence for half damages. The defendant, being alone in fault, was condemned by Dr. Dunn in half the loss to cargo on board the other ship, and in the whole of the loss to the ship. In the same year, however, full damages are given in another case (9), and, apparently, again in 1623 (r). In 1626 (s) half damages are given by Sir Henry Marten against a defendant who lay at anchor in the middle of the Thames for two tides and refused to weigh his anchor, which afterwards holed the plaintiff's ship. In 1628 (t) Sir H. Marten gives full damages for a collision caused by the defendant's fault: also in two

The

(p) Ruckton c. Lambton, Ad. Ct.
Rec. Libels, File 76, No. 33.
ship arrested in this case belonged
to the owner of the wrongdoing
ship, but was not the wrongdoing
ship herself.

(q) Per Duen c. March, File 76,
No. 463. This and the following
references are to the Files of Libels,

Admiralty Court Records, at the
Public Record Office.

(r) Cruse c. Wynne, File 82, No. 56; Baker c. Corditt, File 82, No. 53.

(8) Bunne c. Williamson, File 84, No. 463.

(t) Thredgold c. Goslinge, File 85, No. 325.

cases of 1632 (u). In 1630 (x) the same judge gives sentence for half damages, where the defendant's ship was alone in fault; and in the following years three other sentences to the same effect (y). In 1635 (z) there is a sentence for full damages; and two others follow, to the like effect (a). In 1639 (b) the innocent shipowner and cargo-owner recover only half their losses; but in another (c) case of the same year the shipowner recovers full damages.

In 1642 Dr. Zouch was judge of the Admiralty. By a sentence of that year implying, but not expressly finding, fault in the defendant's ship, he gives half damages (d). By another sentence (e) of 1643, for reasons not stated--"ex certis causis nos et animum nostrum in hâc parte moventibus"—out of 1,8007., the full damages, he gives 4007. only (ƒ). In this sentence the words "per crassam suam negligentiam "" are struck out. The loss was caused by the defendant letting go his anchor and breaking, or fouling, that of the plaintiff's ship, whereby she drove ashore with her cargo and was damaged. In 1643 (g) there is a sentence in which the words "incuriâ et negligentiâ" are struck out, giving half damages. By another

(z) Rutter c. Ribatira, File 89, No. 241.

(y) Stevens c. Trehawke, File 91, No. 27; Clarke c. Beck, File 92, No. 195; St. John c. Grant, File 92, No. 51.

(2) Page c. Haslewood, File 93, No. 243.

(a) Leigh c. Ireland, File 96, No. 153; Gardiner c. Bright, File 97, No. 174, where the collision is stated to have been "de industriâ seu culpâ."

(b) Colthurst c. Sandall, File 98, No. 58; Wilkinson c. Clarke, File 98,

M.

No. 107.

(c) Seagars c. The Haddock, File 101, Nos. 37, 161. In this case the owner of cargo on the innocent ship had recovered full damages against the shipowner upon the bill of lading.

(d) Keddye c. De Frances, File 106, No. 29.

(e) Kinge c. Johnson, File 106, No. 121. The same words are used in a sentence for pro ratâ freight, File 106, No. 79.

(f) Partial damages seem to have been sometimes given by arbitrators. Thus, in 1687, there is an award that the loss was caused as to one-third by ship A, as to one-third by stress of weather, and that the remaining third should be paid by the defendant, "the aggressor and moving cause,' 123, No. 151.

File

(g) By Dr. Sames, surrogate for Dr. Zouch. Belitha c. Burwood, File 106, No. 194.

M

sentence (h) of the same year, the full damages being 6801., Dr. Sames-"ex certis causis" as before-gives 3207. only; and by another (), where the loss is 307. he gives 127. 10s. only.

In both these sentences words imputing fault to the defendant are struck out. By sentences of 1644 and 1645 full damages are given in one case (k), and half damages in another (1). In both negligence is expressly found against the defendant.

In 1647 (m) half damages are given, for the first time, because the cause of loss is uncertain. In the same year there is a unique case (n) where, no fault being found in either ship, the owners of the ship that sank, and the owners of cargo on board her, recovered, by twenty separate sentences, half their respective losses by way of general average contribution against the owners of the other ship. The collision was at sea, and the defendant's ship was held fast to the plaintiff's by the anchor of the latter, which had holed her. In order, as the sentence states, to save the defendant's ship, her crew cut her clear by severing her cable and sending the plaintiff's ship adrift, whereupon she sank with her cargo. In the next year (1648) (o) half damages are given for an anchor and cable lost through the other ship chafing it—not, as it appears by negligence-the word "incuriâ " being struck out of the sentence. But in the same year a ship recovers full damages for her loss by striking upon the other ship's unbuoyed anchor (p); and four sentences for full damages against defendants' ship, alone in fault, follow (q). In 1654 (r) a defendant is dismissed because no fault is proved against

(h) Blowers c. Starlinge, File 106, No. 227.

(i) Powell c. Trevyne, File 107, No. 34.

(k) Creame c. Yaxley, File 107, No. 68.

(1) White c. Walker, File 107, No. 189.

(m) By Drs. Clerk and Exton, the Commonwealth Judges; Grube c. Stagg, File 108, No. 342.

(n) Bury c. Gold, File 108, Nos. 350 seq. These sentences were varied on appeal by consent, by substituting half for full damages;

see one of the sentences of the Delegates printed in Marsden's Admiralty Cases, p. 235.

(0) Pooty c. Rudd, File 109, No.

118.

(p) Knott c. Foulgier, File 109, No. 119.

(a) Arthur c. Ford, File 110, No. 82; Slaney c. Hopwood, File 110, No. 80; Crandley c. Porteer, File 109, No. 313; Brake c. The Piper, File 111, No. 294.

(r) Dorvill c. Tresaur, File 112, No. 319.

him; and against a defendant in fault full damages are given (s).

Next year (t) (1655) half damages are given for a collision caused without fault, and also where the cause is uncertain (u). In 1659 (r) a ship damaged by an unbuoyed anchor recovers half her loss; and in 1663 (y) a like sentence is passed, with an express finding that the collision was caused by stress of weather, and that both ships had done all they could to avoid it. But for loss caused by the fault of the defendant full damages are given (z).

In 1664 Dr. Exton, in two cases where the collision was accidental "casu fortuito "-gave half damages (a); and in 1668, where a ship with her keel accidentally cut the cable of another, Sir Leoline Jenkins gave half the value of the lost anchor and cable (b). In 1673 (c) nautical experts-consilium artis nautice peritorum—are for the first time mentioned. They concur in a sentence finding the defendant ship alone in fault, and the judge, Sir Leoline Jenkins, gives half damages. In 1675, in two cases (d) where the cause of collision is stated to be uncertain, Sir Leoline Jenkins applying, as he states, the general maritime law-"nos dispositionem juris maritimæ in hâc parte apud omnes gentes receptissimi sequentes "—gives half damages. In one of these cases Williams c. Marten, the decision in The Khedive (e) is anticipated, and both ships having been damaged, one more extensively than the other, sentence goes against the latter for half the balance of the loss. In 1677 ((ƒ) Sir Richard Lloyd, sitting as surrogate for Sir L. Jenkins, condemned one ship in half the loss of the

(s) Hall c. Hill, File 112, No. 240. (t) Yaxley c. Delavall, File 113, No. 67; "incuriâ" struck out of the sentence.

(u) Lawe c. Lee, File 113, No. 223; Cooper c. Breeze, File 114, No. 34.

(x) Swyre c. Church, File 114, No. 86.

(y) Martyn c. Greene, File 115, No. 95.

(z) Jocelyn c. Wickett, File 115, No. 91. Both these last sentences are by Dr. Exton.

other, because, by reason of the contrariety of witnesses and difficult of proof, the loss was to be deemed to have been caused by accident (casu fortuito). In 1678 (g) half damages are given by the same judge, because it was not proved that the collision was wilful-ex studio aut malitia aut invidia; but in the same year (h), and again in 1690 (i), where it was by negligence-negligentiá vel ignorantid―full damages are given. In 1692 (k) the decree states that the collision was accidental, and that therefore the loss was to be deemed to have been in some measure (quadamtenus) caused by the fault of the other ship (7). In 1695 the rule was twice applied by Sir Charles Hedges. In one (m) case no reason is given; in the other (n), it is found that the plaintiff's loss was caused by the fault of the master and crew of the other ship; therefore (the decree continues) the owners of the defendant ship are liable to make good to the plaintiffs a certain part of their loss. "Cum autem ob incertitudinem ex varietate et contrarietate depositionum testium hinc inde examinatorum proveniente, certa pars damni, quota est quam altera pars alteri dedit, liquidari haud possit, dominus judex antedictus dispositionem juris maritimi apud omnes receptissimi sequens," condemns the defendant owners in half the loss of the plaintiffs. Though no fault is found against the plaintiffs, the wording of the decree rather implies it. In 1698 (o) a case occurs, where each ship suffered injury, and each claimed damages against the other. Sir C. Hedges made a decree that each ship should pay to the other half her loss. No reason is given for dividing the loss. In 1702 (p) Dr. Bramston, surrogate for Sir C. Hedges, makes a decree against the ship sued, she being found to be

(g) Jermin c. Shadfurth, File 119, No. 116.

(h) Newman c. Lacy, File 119, No. 151.

(i) Russell c. Joad, File 124, No. 41.

(k) Trew c. Peirce, Marsd. Ad. Ca. 264.

(1) The note of the decree is as follows: "Ex quo quod sibi constat, dicto navi collisionem ex Peirce

et nautarum suorum culpâ et negli

alone in fault. The reasons

gentiâ quadamtenus pervenisse." Peirce was master of the ship sued.

(m) Fantley c. King, Ad. Ass. Book, 4th Feb. 1695.

(n) Beckham c. Chapman, ibid. 20th Jan. 1695.

(0) Rennen c. Humble, Ad. Ct. Ass. Book, 9th May, 1698; 26th May, 1698.

(p) Mason c. Johnson, Ad. Ct. Ass. Book, 11th March, 1702; Act Book, fo. 407.