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 liability to injury sustained in the course of his employment through 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 (), 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. CHAPTER V. DAMAGES. What THE wrong-doer in a collision is liable for all the reasonable damages may be recovered; consequences of his negligence-"such damages as flow general rule. 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 integrum. 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 (a) Per Bowen, L. J., The Argentino, 13 P. D. 191, 201; in Dom. Proc. 14 App. Cas. 519; The Notting Hill, 9 P. D. 105; Victorian Railway Commissioners v. Coultas, 13 App. Cas. 222. The "usual course of things includes the probable and reasonable conduct of those on board a ship in collision: The City of Lincoln, 15 P. D. 15, 18. The Clarence (b):-"The party who has sustained a damage by collision is entitled to be put, as far as practicable, in the same condition as if the injury had not been suffered." This appears to be the meaning of the phrase used in some of the cases that the sufferer is entitled to restitutio in integrum (c). There is no difference between the Admiralty and common law rules as to what damages are recoverable (d). He is equally entitled to be paid the cost of the repairs, though he has become bankrupt since they were executed, and has not paid the shipwright who executed them (e). The owner of a ship wrongfully injured in a collision is entitled to have her fully and completely repaired; and if the necessary consequence of this is, that the value of the ship is increased, so that the owner receives more than an indemnity for his loss, he is entitled to that benefit. No deduction is made from the damages recoverable on account of the increased value of the ship, or the substitution of new for old materials (f). In this respect the owner of a ship injured by collision is in a different position from an owner claiming his indemnity under the ordinary marine policy of insurance (g). Cost of repairs. the ship, if she is lost. If the ship is totally lost the owner is entitled to recover Interest on her market value at the time of the collision (), with the value of interest from the day of the collision if the ship was not earning freight. If she was earning freight he is entitled to the estimated value of the ship at the end of her voyage, (b) 3 W. Rob. 283, 285. (c) E. g., by Dr. Lushington in The Inflexible, Swab. 200; The Clyde, Swab. 23; The Ironmaster, Swab. 441; The Columbus, 3 W. Rob. 158; The Gazelle, 2 W. Rob. 279, 280; cited by Sir R. Phillimore in The Halley, L. R. 2 A. & E. 3, 7; and see 1 P. D. 471. (d) The Argentino, 13 P. D. 191, 195, 200. (e) The Endeavour, 62 L. T. N. S. 840. (f) The Pactolus, Swab. 173; The Gazelle, 2 W. Rob. 279: The Bernina (No. 3), 6 Asp. M. L C.65; and see The Star of India, 1 P. D. 466, 471. (g) As to the rule of "one-third (h) The Clyde, Swab. Ad. 23; freight was being earned. On freight, if together with the freight she would have earned, less the cost of completing the voyage, and interest on the whole from the probable end of the voyage. If payment is made before that time an allowance is made for discount. If, however, the plaintiff's loss exceeds the amount of the defendant's statutory liability, interest runs from the date of the collision, whether freight was being earned or not (i). Loss of injured ship after collision presumed to have been caused by collision. The Admiralty practice as to allowing interest on damages applies to common law actions which, before the Judicature Acts, the Admiralty Court had not, but which the Admiralty Division has, jurisdiction to entertain; also to actions transferred by consent to the Admiralty Division (j). Where the ship is damaged but not sunk in the collision, and she afterwards receives further injury or is totally lost, the presumption ordinarily is that the subsequent injury or loss was caused by the defendant's negligence, and the burden is upon the wrong-doer in the collision to prove that it was not so caused. Where a ship was partially disabled in a collision for which she was not in fault, and subsequently drove ashore in consequence of the parting of her cable, it was held that the ship in fault for the collision was liable for the loss by the stranding (4). In this case Dr. Lushington said: “It is admitted that The Pensher is to blame for the collision, and the consequence of this is, that all the damage arising from the collision must be borne by The Pensher, unless it can be shown by clear and positive evidence that any part of that subsequent damage arose from gross negligence or (i) For a full statement by Sir R. Phillimore of the principle upon which compensation to the injured party is made in cases of collision, see The Northumbria, L. R. 3 A. & E. 6, 12; see also The Canada, Lush. 586; The Clyde, Swab. 23; The Ironmaster, ibid. 44; The Co lumbus, 3 W. Rob. 158: The Ciarence, ibid. 283. (j) The Gertrude; The Baron Aberdare, 12 P. D. 204; 13 P. D. 105. (k) The Pensher, Swab. Adm. 211, 213; The Govino, 5 Quebec, L. R. 57. great want of skill on the part of those on board the vessel damaged." In another case (1), The Mellona, a ship claiming damages against the ship with which she had been in collision, had gone ashore after the collision, in consequence of having been disabled in the collision, and was totally lost. For the other ship it was contended that The Mellona need not have gone ashore if she had been hove to, and proper skill had been shown by those on board. It was held that primâ facie the loss was attributable to the collision. Dr. Lushington said that where one vessel is found in fault for a collision, and the other is subsequently lost, the presumption of law is that the latter was lost in consequence of the collision. "In all questions of this description that is the primâ facie presumption; and great, indeed, would be the inconvenience, and still greater the difficulty, if, in all cases of this kind when the vessel did not go down immediately, but was subsequently lost, the Court had to enter into an investigation whether all the measures adopted on board the damaged vessel were right, or whether, if other measures had been pursued, the vessel might not have been saved" (m). In another case a ship was run into whilst brought up and riding with two anchors down. One cable having parted in the collision, the other failed to hold her, and she drove ashore. It was held that the loss from her going ashore was recoverable as damages in the collision action (n). So where, bad weather having come on, the injured ship went ashore twenty-one hours after the collision, the representatives of some of the crew who were drowned, but who might have been saved if they had gone on board (1) The Mellona, 3 W. Rob. 7, 13. (m) See also The Linda, Swab. Ad. 306; 30 L. T. 234; 4 Jur. N. S. 146. (n) The Despatch, 14 Moo. P. C. C. 83; The Maid of Kent, 6 P. D. 178. |