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may extend so far; but in no reported case has he been held liable in tort for wrongful acts of the crew (e). For wilful injury to another ship by pilot or crew he clearly is not liable (ƒ).

As regards the responsibility of the master when a pilot is on board, whether by compulsion of law or by the master's or owner's choice, it seems clear that for a collision caused by the fault of the pilot the master is not answerable, if the pilot has been placed in charge of the ship properly and in the ordinary course of navigation (g).

The statutory limitation of liability (h) does not apply to protect an owner, or a part owner, by whose actual fault or with whose privity the collision occurred. Such an owner is liable for full damages; and if the proceeds of the sale of the ship arrested, or if the statutory amount of the owner's liability, is insufficient to recompense the sufferer by the collision, the owner by whose actual fault or privity the loss was occasioned is liable for the deficiency (i).

It will be seen below (k) that in the case of a collision with one of her Majesty's ships, by the fault of those on board her, the actual wrong-doer is the only person against whom there is a right of action.

(e) See Aldrich v. Simmonds, 1 Stark. 214; Oakley v. Speedy, 4 Asp. Mar. Law Cas. 134; Blackie V. Stembridge, 6 C. B. N. S. 894. The contrary has been held in a Victorian Court: Claney v. Harrison, 4 Victoria, L. R. 437 (L.); Stacpoole v. Betridge, 5 Victoria, L. R. 302 (L.). During the sixteenth and seventeenth centuries, the master was almost always defendant in Admiralty suits for collision and other matters for which the ship was arrested; and on proof of negligence the sentence went against him personally.

(f) Bowcher v. Noidstrom, 1 Taunt. 568; McManus v. Crickett, 1 East, 106.

(g) Kent's Comm. vol. 3, § 176. As to the respective duties of master and pilot, see below, p. 266.

(h) See below, p. 181, as to the statute limiting owner's liability.

(i) See The Triune, 3 Hag. 114. In this case (decided under 53 Geo. 3, c. 159), after decree condemning the owner (who intervened in the suit) and his ship and freight, the ship was sold and the proceeds were insufficient to pay the full amount of damages and costs. A monition was decreed against the owner, who was in charge of the ship at the time of the collision, to pay the deficiency, and, upon his failing to do so, he was attached.

(k) Infra, p. 113.

No limitation of liability of the actual

wrong-doer.

Liability of the ship

owner.

The actual wrong-doer, being commonly a seafaring man of small means, can seldom give adequate redress, and may be not worth suing. In such cases the substantial remedy is to be sought, either in Admiralty against the ship, or in a common law court against the employer of the actual wrongdoer. We propose to consider first the liability of the employer or master of the actual wrongdoer (1).

In most cases the owner of the ship is the employer of those on board and in charge of her, and is liable for their negligent acts. So generally is this the case that it has been held that, in the absence of proof to the contrary, those in charge of a ship will be presumed to be in the employment of her owners (m). And primâ facie the registered owners are the real owners of a ship. But the register is not conclusive evidence of ownership; and if it is shown either that the actual owner is a different person from the registered owner, or that the registered owner is not the employer of the crew or person causing the collision, the presumption as to the liability of the registered owner is rebutted, and the actual owner or other person employing the wrong-doer is alone liable.

(1) Whether by the civil law the shipowner was liable for a collision caused by the fault of the master or crew seems to be a disputed point. Bynkershoek, Quæst. Jur. Civ. 1. 4, c. 23, contends that he is not liable: ei (magistro) autem mandatum non est aliorum naves dolo vel culpâ obruere; quod si fecisset, ipse, quod dedit luat, non exercitor; so also Bynk. Observationes Jur. Rom. 1. 4, c. 16. On the other hand, Voet, ad Pandect. 14, 1, 7, makes the shipowner liable: quod si deliquerit (magister) si quidem in ipso officio cui erat propositus, dum forte datâ operâ vel culpâ atque imprudentiâ manifestâ in navigium alienum impegit suum exercitores ex quasi delicto teneri constat. Huberi

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Prælect. Jur. Civ. 14, 1, 8; 3 Kent's Comm. 161; to the same effect. Cf. also, per Ware, J., The Rebecca, Ware, 188; The Phebe, ibid. 263, 268. The exercitor (charterer, for whose benefit the ship was worked) was generally liable for the acts of the master, and not the dominus (general owner). The law on the subject will be found D. 4, 9; D. 14, 1; D. 9, 2; D. 44, 7, 5; D. 45, 2, 3, 1; D. 47, 5, 1; J. 4, 3; Gaius, 3, 218, 219.

(m) See Joyce v. Capel, 8 C. & P. 370; Hibbs v. Ross, L. R. 1 Q. B. 534, and cases there cited; Frazer v. Cuthbertson, 6 Q. B. D. 93, 98; Chasteauneuf v. Delange, 7 App. Cas. 127; Smith v. Bailey, (1891) 2 Q. B. 403.

quá owner,
but only as
employer of

wrong-doer.

The act com-
plained of
must be an

act of the

servant

The liability for damage by a ship does not attach to her The shipowner quâ owner. It is only as master or employer of the owner is liable, not persons whose negligent act caused the damage that he incurs any liability. "The owner would not be liable merely because he was owner, or without showing that the actual those navigating the vessel were his servants” (»). It is further necessary, in order to fix the shipowner with liability, that the negligent act complained of was an act of the servant acting within the scope of his employment (o). In the ordinary case of a collision occurring in within the the course of the employment of the ship for the owner's scope of his employment. benefit no difficulty arises upon this point. But when the ship is employed in a manner not authorized by the owner the question arises whether those on board are acting within the scope of their employment by the owner. In a case (p) where the defendant's servants, acting as volunteers, in shifting a scow, caused her to damage a canal boat, it was held that the defendants (who were dock owners coaling a steamer) were not liable.

service.

Where a master, without any instructions from his Salvage owner as to towing disabled ships, undertook to assist a disabled ship into port, and whilst attempting to get her in tow negligently ran into and injured her, it was contended that the owner was not liable, because the master in assisting the disabled ship was not acting within the scope of his employment. It was held that he was so acting, and that his owner was liable (q).

liable for

Wilful, malicious, or criminal acts of the master and Owners not crew can seldom be within the scope of their employment wilful, maso as to make the shipowner liable. Thus for a collision licious, and

(n) Per Lord Cairns, C., River Wear Commissioners v. Adamson, 2 App. Cas. 743, 751; and per Lord Blackburn, Simpson v. Thompson, 3 App. Cas. 279, 293; Hibbs v. Ross, ubi supra.

(0) As to what acts are within the scope of the servant's employ

criminal acts
of their

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Owner's lia

caused by the master and crew maliciously driving their ship against another the owner will not be liable (r). So where those on board a ship wilfully cut another ship adrift, and the latter suffered damage in consequence, it was held that the owners of the former were not liable at law, and that their ship could not be sued in Admiralty (s).

But owners are liable for the acts of their servants done in the course of their service and for their master's benefit, though no express command or privity of the owner be proved (t). And owners are answerable for the manner in which their servants navigate their ship, though the wrongful act of the servant is one against which the owners have given express orders (u).

Infringement of the regulations is a misdemeanour, and damage caused thereby is deemed to have been caused by the wilful default of the person in charge of the deck (e). But owners are not relieved from liability for the acts of their servants in such cases (x); nor are they the less liable because the negligence of their servants is criminal, and amounts to manslaughter (y).

Where a ship is being worked by a charterer or hirer,

(r) The Druid, 1 W. Rob. 391; McManus v. Crickett, 1 East, 106; Croft v. Alison, 4 B. & Ald. 590. In The Seine, Sw. 411, this defence was pleaded. There is some difficulty in reconciling these with later cases (carriage accidents): Limpus v. General Omnibus Co., 1 H. & C. 526; Page v. Defries, 7 B. & S. 137; but character of the acts in the carriage cases is substantially different from that in the ship cases. For an instance of a wilful attack upon another ship by a tug, see L. R. 1 A. & E. 64.

(s) The Ida, Lush. 6; the ship was foreign, and the collision was in a foreign river; and see as to this case, per Sir R. Phillimore, L. R. 3 A. & E. 47. Cf. The Dun

lossit, Corrie v. McKnight, (1896)
A. C. 97; The Chickasaw, 41 Fed.
Rep. 627, supra, p. 16; Waltham v.
Mulgar, Moore, 776.

(t) See per Willes, J., Barwick v. English Joint-Stock Bank, L. R. 2 Ex. 259, 265.

(u) Limpus v. London General Omnibus Co., L. R. 1 H. & C. 526; Betts v. De Vitre, L. R. 3 Ch. 441.

(v) 25 & 26 Vict. c. 63, ss 27, 28. (x) It was so held under the provisions of a former Act: The Seine, Swab. 411. See also Poulton v. London and South Western Rail. Co., L. R. 2 Q. B. 534; Grill v. General Iron Screw Collier Co., L. R. 3 C. P. 476.

(y) See The Franconia, 2 P. D. 8, 163; Reg. v. Keyn, 2 Ex. D. 63.

the ship is

who appoints and pays the officers and crew under a bility where charter-party or agreement which amounts to a demise of under charter. the vessel, the owner is not liable at law for damage she may do while in the possession of the charterer. But if the owner remains in possession of the ship, either by himself or his agents, he is liable, though she is under charter to another. Where a ship was chartered for six months at 207. a week for the carriage of passengers and goods as the charterer should direct, he paying all disbursements and the wages of officers and crew, and the owners keeping the ship in repair, it was held that the owners were liable for a collision caused by the fault of those on board their ship (z).

In Dalyell v. Tyrer (a), H., the lessee of a ferry, hired a tug with her master and crew to assist in working the ferry for a day. A person who had contracted with H. for a season ticket was injured, whilst on board the tug, by the negligence of her crew, who were the owners' servants. It was held that he could recover against the owners, and that his right against them for the negligence of their crew was independent of his right against H. upon the contract.

It has been doubted whether the owners of a ship which is manned by a master and crew who are the owners' servants, but who by the charter-party are bound to obey the orders of a third person who is not the owners' servant, are liable at law for damage done by the ship while acting under the immediate orders of such third person. Upon principle it is difficult to see why the owners, by placing their servants under the control and orders of a third person, should escape liability for their wrongful acts. And in Fletcher v. Braddick (b) Sir J. Mansfield held the owners liable in such a case.

(z) Fenton v. Dublin Steam Packet Co., 8 Ad. & Ell. 835. The decision went upon the words of the charterparty; but it was proved that the owners had appointed and had

power to dismiss the crew and
officers.

(a) Ell. Bl. & Ell. 899.
(b) 2 N. R. 182.
This case is
not satisfactory. The decision went

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