1726, in The Thomas and Jane and The Isabella. In that case The Isabella Sir Henry Penrice, Judge of the Admiralty Court, found that (1726). the plaintiff had failed in the proof of his libel (defecisse in probationibus), and dismissed the defendant without costs (d). The question of dividing the loss appears, however, to have been agitated; for in the registrar's minute book, before the note of the decree, is an entry to the effect that the judge assigned the cause to a future day, to be heard upon argument of the question, "Whether the rusticum judicium can be admitted in this case?" These words are struck out, and the words follow stating the effect of the decree as above mentioned. After twenty years (1746), the rule again appears in a case decided by Sir Henry Penrice (e). At this date the proceedings in the Court of Admiralty were carried on in English. The judge pronounced "that the loss of the said ship (The Eagle) and cargo, from the great contrariety of the evidence, was so uncertain, that he did adjudge and decree the damage sustained by the loss of the said ship and cargo to be equally payd and borne by (plaintiffs and defendants), and therefore condemned Farrer's clients (defendants) in a moiety of such damage." The Eagle and Up to this point, therefore, we find the application of the Summary of rule to have been as follows:-In 1677 no reason is assigned to 1789. cases previous for its application. In 1678 it is applied where the collision was in fact without fault in either ship (casu fortuito), but fault was presumed against the defendant ship. In 1695 it is twice applied; in one case no reason is assigned, in the other there is an express finding that the collision was caused by the fault of the defendant ship (qy., alone ?), and the rule is applied because it is impossible to say how much damage was done by the one ship to the other. Hitherto there had been no cross claim by the defendant, and, except in the first case, the plaintiff ship and cargo had been totally lost. In 1698 a case occurs in which both ships are injured and each claims damages against the other. The rule is applied for the same (d) Reed c. Wellford, The Thomas and Jane and The Isabella, 20th Jan. (e) Noble c. Wilson, The Eagle and The Hopewell, 28th Nov. 1746. History of the rule since 1789. The Petersfield and The Judith Ran reason as before, namely, because of the impossibility of apportioning the loss suffered by each ship by reason of the negligence of the other; but there is no finding that the plaintiff ship is in fault; on the contrary, it is found that the collision is caused by the fault of the defendant ship. In 1702, and twice in 1706, the rule is applied, for the same reasons as before, the finding being in each case that the collision was caused by the fault of the defendant ship, and no claim for damages being raised by the defendant. In 1706, and again in 1709, the rule is applied by the Delegates, upon appeal from the Admiralty; in the one case the reasons stated are the same as before, in the other no reasons are given. In 1726 we find the Admiralty Court dismissing the defendant, because the plaintiff had failed in proof of his libel, i. e. in proving fault on the part of the defendant ship. Twenty years later (1746) the rule is applied because the cause of the plaintiff's loss is uncertain, no fault being found in either ship. For forty-three years after this we find no mention of the rule, though several collision cases appear in the record books, in some of which the plaintiff recovers full damages, in others the defendant is dismissed. The Eagle and The Hopewell is the last appearance of the rusticum judicium until 1789, the year in which the wellknown case of The Petersfield and The Judith Randolph occurred. It is singular that in that year three cases were decided, in which the rule of division of loss was applied; in two of them by the High Court of Admiralty, in the other by the Delegates. It will be convenient to take them, as before, in order of date. On the 20th of May, 1789, Sir James Marriott, Judge of the Admiralty Court, in The Petersfield and The Judith dolph (1789). Randolph (ƒ), pronounced "that both ships were in fault; that The Judith Randolph was most in fault; and decreed that the whole of the damage sustained by the owners of the ship Petersfield and her cargo, which was sunk and lost, as well as the 2307. damages and expenses given against the (f) In the Assignation Book, nom. Wildman c. Blakes. ship Petersfield, and the costs of suit here on both sides, be borne equally by the parties in this suit." This appears to have been the first case in which the rusticum judicium was applied with an express decision that both ships were in fault; the only case in which, according to modern authorities, it is now applicable. It is worthy of note that so important a point of maritime law should apparently have been undecided so late as the year 1789; and that a decision extending the operation of the rule of dividing the loss should never have been challenged. The next case in order of date is The Friends Goodwill and The Peggy (g). This was a decision of the Delegates varying a decree of Sir J. Marriott. In a previous year (9th December, 1785) that learned judge had pronounced that The Peggy, the defendant ship, was alone in fault, and condemned her owners in full damages and costs. The case was appealed, and on the 7th of July, 1789, the Delegates (h) "pronounced for the appeal made and interposed in this cause, and that the judge from whom the cause is appealed hath acted wrongfully, nully, and unjustly; reversed the decree of the said judge, and in the principal cause (already by them retained) did pronounce that the master and crew of each of the said ships Friends Goodwill and Peggy contained in the proceedings of this cause were equally blameable in their conduct as to the said two ships running foul of each other, and by which means the said ship Friends Goodwill and cargo were totally lost; that the loss or damage occasioned by the aforesaid accident, and all costs, charges, and expenses incurred or to be incurred on account thereof, ought to be borne, paid, and sustained by the said John Stoker and Robert Hutton, the owners of the said ships, in equal moietys, and share and share alike; and further pronounced (in presence of the said report) (i), that the value of the said ship Friends Goodwill, at the time she was sunk as aforesaid, was nine hundred pounds, and the cargo of the value of one hundred pounds and five (g) Nom. Hutton c. Stoker. (h) Gould, J., Ashurst, J., Hotham, B., and Dr. Fisher, were the judges. (i) The parties had agreed that the Court should take the report of three Trinity masters upon the merits of the case. The Friends The Peggy (1789). The Resolution pounds five shillings, and condemned the said Robert Hutton, Shepherd's party, in the sum of five hundred and two pounds twelve shillings and sixpence, the moiety of the value of the said ship and cargo, and at the petition of Cooper decreed a monition against the said Robert Hutton for payment of the said sum in fifteen days after service of the same, not to go under seal till after fifteen days from hence; and the judges directed the costs on both sides, as well in this Court as in the Court below, to be borne and sustained by both parties in equal proportions, and referred the bills on both sides to the registrar, and assigned to hear on taxation of costs the first session of next term; present Shepherd and Cooper." It is evident from the various orders made in this case that the Delegates had very great difficulty in arriving at a decision. The two Trinity masters by whom they were assisted differed in opinion as to the merits, and by consent of the parties a third was called in. The third case of the year 1789 was The Resolution and and The Lang- The Langton (k). This is in one respect the most remarkable ton (1789). of the three cases, for in it Sir James Marriott decided, in terms apparently chosen in order to raise the question whether the rusticum judicium may be applied where the collision occurs without fault in either ship, that it did apply to such a case; and from his decision there was no appeal. The registrar's note of the interlocutory decree is as follows: "Sir J. Marriott, Judge, pronounced that the loss of the ship and cargo of The Resolution was not occasioned by the default of the masters and crews of either of the ships in question, but was an inevitable accident, owing to the showring weather, the darkness of the night, the small distance of the two ships, and shortness of time in discovering each other, being close; and the judge decreed that the damages on the loss of the ship Resolution and her cargo, as well as the damage done to the ship Langton, together with the costs of suit on both sides, be equally borne by both parties; and assigned each party to bring in a schedule of their damages; (k) Nom. Nelson c. Fawcett in the Assignation Book. which being brought in the judge referred the same to the registrar, taking to his assistance two merchants" (1). The Britannia It should be added that in the year (1788) previous to The Three that in which the three last-mentioned cases were decided, Relations and occurred the case of The Three Relations and The Britannia (m). (1788). There Sir James Marriott pronounced that "under the circumstances of the case, each party should stand by his own damage and expenses." What the circumstances of that case were, does not appear from the registrar's minute book, from which the decree is here cited. The decree is unusual in form; the common form, where (as here) fault is alleged and not proved, being to the effect that the plaintiff's libel not having been proved, the adverse party be dismissed from further observance of justice in the cause. Stowell's dicta in The Melville. It is singular that during the long period (n) during which Lord Stowell presided over the Admiralty Court no case occurred in which that distinguished exponent of maritime law had occasion to apply the rule of division of loss. Two cases should, however, be here mentioned, both of great importance in the history of the subject. In The Woodrop Sims, decided Lord by Lord Stowell (then Sir William Scott) in 1815, and in The Lord Melville, decided in 1816, occur the dicta of that learned Woodrop Sims judge with reference to the incidence of loss in case of collision, and The Lord which, having been cited and approved by Lord Giffard in Hay v. Le Neve in the House of Lords (o), have for the last halfcentury been relied on as containing an accurate statement of the law of the English Admiralty with reference to the incidence of loss in case of collision. These dicta—one of which is quoted at length on a former page (p)-divide collisions into four classes: (1) where the collision is caused by the fault of the defendant ship; (2) by the fault of the plaintiff ship; (3) by the fault of both ships; (4) without fault (4) This decision is in accordance with the statement of the law in Brown's Admiralty Law, vol. 2, p. 206: "In case of accident the foss was divided between both parties in equal proportions." (m) Faye c. Graham, 26th March, (n) Thirty years, 1798-1828. (0) See Hay v. Le Neve, 2 Shaw's (Sc.) App. Cas. 395, where the dicta are set out. The Woodrop Sims is reported in 2 Dods. 83; The Lord Melville is not reported. (p) Supra, p. 125. |