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in either ship. The rule of division of loss is declared to be applicable only in the third case, namely, where the collision is caused by the fault of both ships. Before discussing the accuracy of this statement of the law, it will be convenient to trace the application of the rule by the light of the decisions subsequent to the year 1789.

In 1824 Hay y. Le Neve was decided by the House of Lords. That was an appeal from a decision of a Scotch Court, which had apportioned in unequal shares (2) the loss suffered by a vessel, The Wells, which had been sunk at her anchor by The Sprightly. The House of Lords varied the decision of the Scotch Court, and, relying upon the dicta of Lord Stowell above mentioned, divided the loss in equal shares, and condemned the owners of The Sprightly in half the loss on the The Wells. In that case both ships were clearly in fault; The Wells for having brought up in an improper place and for not showing a light, The Sprightly for negligent navigation and want of look-out. The question in dispute was, whether the division of loss should be in equal shares or be apportioned according to the degree of fault in either vessel. The decision was in accordance with Lord Stowell's dicta, and, it may be added, with an unbroken line of authorities for a period of at least 146 years, in favour of an equal division. But there was no decision that the rule of division of loss was confined, as stated by Lord Stowell, to the case of “both ships in fault." Nevertheless, since the decision in The Resolution and The Langton the rule has never been applied, except in the case of “both ships in fault”; and the dicta of Lord Stowell, having acquired additional weight by the citation in the House of Lords in Hay v. Le Neve, have been taken apparently without discussion, to settle the law. Thus in The Catherine of Dover (r) (1828) Sir Christopher Robinson, in addressing the Trinity masters, stated the law as follows: “The result of the evidence will be one of three alternatives; either a conviction in your mind that the loss was occasioned by accident, in which case it must be sustained by the party on whom it has fallen; or a state of reasonable doubt as to th preponderance of evidence, which will have nearly the same effect; or, thirdly, a conviction that the party charged with being the cause of the accident is justly chargeable with the loss of this vessel according to the rules of navigation which ought to have guided them.”

Hay v. Le
Neve.

(9) The Sprightly was condemned
in two-thirds of the loss suffered by
The Wells.

(r) 2 Hag. 145. Cf. also The Maid of Auckland (1848), 6 Not. of Cas. 240, where there were cross

actions, and Dr. Lushington dismissed both for want of proof; The Laconia, 2 Moo. P. C. C. N. S. 161 (1863), where a similar order was made by the Privy Council; The Jarpesia (1872), L. R. 4 P. C. 212. (s) This is the case called The Monarch, and referred to in a note

It remains only to mention the case of The Monarch and The Monarch The Success, decided by Sir Christopher Robinson on the 23rd (1838). of June, 1838, as being the next in which the rusticum judicium was applied. There the judge pronounced “the collision in question in this cause to have been caused by the fault of the masters and crews of the said ship or vessel Monarch and the late smack Success, and for a moiety only of the damages proceeded for, and condemned (the owners of The Monarch] and the bail given on their behalf to answer the action in a moiety of such damage and of the costs incurred on behalf of [the owner of The Success in this cause" ($). This decree was subsequently, on the 31st of January, 1839, rescinded by Dr. Lushington as regards costs; and by a new decree he pronounced the parties “to be liable to the costs incurred on their own behalf only "(1). This completes the history of the application of the rule, History of the

rule since so far as the present writer has been able to trace it by an

1789. examination of the Admiralty records. Since the year 1838, the date of the decision in The Monarch, the number of collision cases has been very large, and the rusticum judicium has been frequently applied; but always, it may be safely assumed, in cases of "both ships in fault.” In The Oratava and The Janet, 11th May, 1839, and The London Merchant, 20th May, 1840, it was so applied; and beyond this the examination of the minute books has not been carried. It

may

be assumed that if, since 1840, the rule had been applied in any case of “neither ship in fault,” or “ insufficient proof,” such a case would have been reported; and no such case appears in the books. It

to The Celt, 3 Hag. 321.

(t) The Monarch, 1 W. Rob. 21.

may, therefore, be taken to be a fact that for fully a century (since 1789) the rule has only been applied in cases of “both ships in fault”; never in the case of “neither in fault," or in the case of "insufficient proof.” Nay, further, in such cases the plaintiff's action has invariably been dismissed, and generally with costs. Several instances of this will be found referred to in a former page (u). Yet neither has the decision of Sir James Marriott in The Resolution and The Langton, nor have any of the previous decisions between the years 1677 and 1789, in which the rusticum judicium was applied in cases of doubt and mere accident, been reversed, overruled, or, so far as the writer is aware, even referred to (x) or discussed. Not having been reported they appear to have altogether escaped observation ; so much so that in Hay v. Le Neve (1824) Lord Giffard states that the advocates (of whom Dr. Lushington was one) who appeared in that case, in answer to a question from the House, acknowledged that they were not aware of any case in which the rusticum judicium had ever been applied in England. A note of The Petersfield was supplied to the House by Lord Stowell, who was a member of the House, but does not appear to have heard the appeal. It is singular that that learned judge was not (it seems he was not) aware of the decisions in The Resolution and in The Friends Goodwill, both of which occurred in 1789, the year of the decision in The Petersfield, and of which one was in direct conflict with his dicta in The Woodrop Sims and The Lord Melville.

It remains to be decided whether the decisions in The Resolution and earlier cases applying the rusticum judicium in cases of doubt and mere accident are law at the present day. Notwithstanding the length of time during which those cases have been ignored, it is not clear that the rule may not even now in Admiralty be applied in the one or both of these cases, which in its ancient and wider shape it was evidently intended

(u) See the cases cited above, 212. p. 154, note (r). To these may be (x) In Hay v. Le Neve, a case in added the following decisions of the reign of Queen Anne was reLord Stowell: The Flora, 28th June, ferred to (semble, one of the cases 1815; The Robert, 9th June, 1818; decided between 1707 and 1718 The Vrow Janetze, 2nd Feb. 1820 ; cited above), but not with reference The Betsy Caines (1827), 2 Hag. 28 ; to the point here under discussion. The Marpesia (1872), L. R. 4 P. D.

to meet. Its application and limitation to the case of “botlı ships in fault” we have seen is not a century old.

It is worthy of notice that in the so-called case of inevitable accident, until recently, no costs were given on either side (y). This rule of the Admiralty, now obsolete, is a trace of the quasi-equitable principle which is at the root of the rusticum judicium. In the last century the defendant was frequently (2) dismissed without any order being made as to costs; and though no reason is assigned for depriving him of his costs, it seems probable that it was either upon the ground that the collision was accidental, or that both ships were in fault, or that the cause of the collision was left in uncertainty.

With regard to the dicta of Lord Stowell in The Woodrop Sims and The Lord Melville it must be remarked that they are mere dicta, unnecessary for the decision of the cases in which they occur ; that they acquired no additional authority by the extra-judicial approval they received in the House of Lords in Hay v. Le Neve. In The Lord Melville there was no question as to the scope or application of the rusticum judicium, the decision being that the defendant ship was alone in fault. In Hay v. Le Neve both ships were in fault, so that no question arose as to the application of the rule where neither ship is in fault, or where the cause of collision is doubtful.

The view of the Legislature, as shown by sect. 25, sub-sect. 9, of the Judicature Act, clearly was that the rule applies only where both ships are in fault. It cannot be supposed that an Act passed manifestly with a view to make the law uniform in all the Courts, would have left the rule of division of loss applicable in Admiralty in case of doubt and mere accident, whilst, for the sake of uniformity, it extended the rule where both ships are in fault to the Common Law Divisions of the High Court. (y) See further as to costs, infra, 1696; The North Lyon and The

Phænix, 26th May, 1709 (on app.), (z) E.g. Dove c. Masters, The 19th Dec. 1712; Baker v. Malin, Elizabeth and The Eleanor, 4th The Hunter and The Amity's March, 1696 ; affirmed on appeal, Friendship, 2 Sess. Hil. Term, 22ud June, 1698; Lambert c. Simpson 1764; Milton_c. Maundrell, The and Lorimer c. Lambert, The Friends Blessing and The John and Sarah and The Hopewell, i1th March, (on app.), 8th Nov. 1720.

P. 328.

NOTE II.

Law of Foreign Countries as to Division of Loss.

Law of
America,

France,

In America the rule as to the incidence of loss by collision is the same as that of this country; except, perhaps, in the case of inscrutable fault, where, according to some writers, the loss is divided: The Tracy J. Bronson, 3 Bened. 341; and see 1 Parsons on Sh. (ed. 1869) 527; Story on Bailments, $ 609; 3 Kent's Comm. & 231 ; Sedgwick on Damages (6th ed.) 577, note ; but in a recent case before the Supreme Court it seems to have been the opinion of the Court that in such a case neither ship could recover: The Clara, 12 Otto, 200; and see The Breeze, 6 Bened. 14.

Art. 407 of the French Commercial Code is as follows: En cas d'abordage de navires si l'événement a été purement fortuit, le dommage est supporté, sans répétition, par celui des navires qui l'a éprouvé. Si l'abordage a été fait par la faute de l'un des capitaines, le dommage est payé par celui qui l'a causé. S'il y a doute dans les causes de l'abordage, le dommage est réparé à frais communs, et par égale portion, par les navires qui l'ont fait et souffert. Dans ces deux derniers cas, l'estimation du dommage est faite par experts. The case of inscrutable fault is that described in Art. 407– “s'il y a doute,” &c.—that is, “lorsqu'il est impossible de préciser par la faute de qui le dommage est arrivé.” In this case the French differs from the English law in dividing the loss equally-Abordage Nautique, Caumont, $ 151. But the French law agrees with our own in requiring proof of negligence to enable the cargo-owner to recover in such a case; ibid. SS 154, 155. Where both ships are in fault, but not to the same extent, the damages are apportioned according to the degree of each ship's fault; but as between shipowners and third parties, the former are severally liable for the whole of the damages, subject to the right of each to free himself by abandonment of his interest in the ship and freight; ibid. SS 12, 108, 152. Where both ships have been guilty of an infringement of the Rule of the Road (manæuvres réglemen

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