Liability limited in contract as well as tort. Liability where two or more collisions. Owners not discharged by of those on board. After their loss, The Bernina owners instituted an action to limit their liability, and obtained the usual judgment. The cargo-owners made no claim in the limitation action, but instituted an action against The Bernina owners for loss of the cargo. It was held that they were not prevented from recovering damages in this action by the judgment in the limitation action (b). The liability of shipowners is limited in respect of damages recoverable in an action upon the contract to carry as well as in respect of a mere tort. So carriers by sea, or partly by sea and partly by land, may limit their liability as against passengers or cargo-owners (c). The owners of every sea-going vessel (d) are liable for losses occurring upon separate occasions to the extent of their statutory liability in each case. Where a steamship struck a tug and also the ship to which the tug was passing her tow-line, it was held that the amount for which the steamship was liable was to be calculated as upon one collision and not upon two (e). In a case where a steamship was towing another, and both ran into and damaged a third ship owing to the negligence of the towing ship, it was held that the towing ship was alone liable. The owners of the towing and the towed ship being the same, it was held that their liability was to the extent of 87. per ton upon the tonnage of the towing ship (ƒ). If the wrong-doing ship is sunk in the collision, or sub It (b) The Bernina, 12 P. D. 36. (c) London & S. W. Rail. Co. v. (d) 17 & 18 Vict. c. 104, s. 506. 25 & 26 Vict. c. 63, s. 54, applies to all foreign and registered British ships. (e) The Rajah, L. R. 3 A. & E. 539. Cf. The Bernina, 12 P. D. 36; The Douglas, 7 P. D. 151. In The Creadon, 5 Asp. M. C. 585, Butt, J., stated the question to be whether the first collision caused the second. (f) Union Steamship Co. v. Owners of the Aracan, The American, and The Syria, L. R. 6 P. C. 127. sequently to it, the owners are not thereby discharged from sinking of their ship. liability (g). recoverable The amount recoverable in Board of Trade proceedings Amount under 17 & 18 Vict. c. 104, ss. 507-513, in respect of loss for loss of life of life or personal injury is limited to 307. for each person hurt or killed (h). in proceedings by the Board of Trade. 26 Vict. c. 63, Lord Campbell's Act (i), enabling the representatives of Combined persons killed by negligence to recover damages, is not effect of 25 & repealed or affected by the Merchant Shipping Acts, ex- s. 54, and Lord Campcept so far as those Acts limit the extent (k) of the ship- bell's Act. owner's liability. navigation." It will be observed that the shipowner's liability in "Improper respect of injury to persons or goods on board another ship, or to another ship, is limited only where such injury is caused by "the improper navigation" of his own ship; and that his liability as carrier is limited whether the loss arises from improper navigation, or from some other cause. There has been some doubt as to the meaning of the words "improper navigation." In The Warkworth the effect of the Act was stated by Brett, M.R., to be that the owner's liability is limited for "all damage wrongfully done by a ship to another whilst it is being navigated, where the wrongful action of the ship by which damage is done is due to the negligence of any person for whom the owner is reponsible" (7). In that case the collision was caused by the ship's (g) The Normandy, L. R. 3 A. & E. 152; Brown v. Wilkinson, 15 M. & W. 391. In America, it seems that if the wrong-doing vessel is sunk, the owners are discharged; 2 Parsons on Shipping (ed. 1869), 120140; 9 U. S. Stat. at Large, 635; Norwich Steamboat Co. v. Wright, 13 Wall. 104. (A) This enactment is not acted upon in practice. See p. 123, supra. (i) 9 & 10 Vict. c. 93; 27 & 28 Vict. c. 95. (k) Gladholm v. Barker, L. R. 1 Ch. 223; ibid. 2 Eq. 598. (1) Per Brett, M. R., The Warkworth, 9 P. D. 145, 147. As to the meaning of "improper navigation" in an insurance case, see Canada Shipping Co. v. British Shipowners Mutual Protecting Association, 22 Q. B. D. 727; 23 Q. B. D. 342; Good v. London Steamship Owners' Mutual Protecting Association, L. R. 6 C. P. 563; Carmichael v. Liverpool Sailing Ship Owners' Mutual Indemnity Association, 19 Q. B. D. 242. steam steering-gear failing to act at the critical moment. The gear failed to work owing to a certain pin not being in its place. The pin had worked or fallen out of its socket owing to its not being, as it should have been, a "split" pin. It did not appear by whom the improper pin had been inserted. It was held by the Court of Appeal, affirming the decision of Butt, J., that the collision and loss was caused by improper navigation, without actual fault or privity of the owners, and that their liability was limited by the Act. In the Court of Appeal (m) it was held that, the statute being necessary only where there has been negligence for which the owner must be responsible, it must be assumed that the damage done by The Warkworth was caused by negligence in fitting the steering-gear, for which negligence the owner was responsible. "Improper navigation means improper navigation by the owner of the ship. Now in the eye of the law the owner does improperly navigate his ship, if, owing to the negligence of some one for whom he is responsible, his ship does damage to another. It is impossible for us to treat improper' as equivalent to unskilful'; on the contrary, it means wrongful.' A person who uses his ship, which is not in a condition to be so employed, does in reality improperly navigate her" (n). An injury done to a vessel in tow by her tug during the performance of the towage contract was held to be caused by "improper navigation" within the meaning of the Act, and the tug-owner's liability was limited (0). It seems that a collision between a ship being launched and another afloat, caused by the fault of those in charge of the launch starting her at a wrong time, is injury by improper navigation within the meaning of the Act (p). (m) 9 P. D. 145. (n) Per Bowen, L. J., The Warkworth, 9 P. D. 146, 148. (o) Wahlberg v. Young, 24 W. R. 847; 4 Asp. Mar, Law Cas. 27, note; 45 L. J. C. P. 783. Aliter in Canada: British Columbia Towage and Transport Co. v. Sewell, 9 Duval's Rep. 527. (P) See The Andalusian, 3 P. D. interest and The shipowner is liable beyond the sum to which his Shipowner liable beyond liability is limited by the statute for interest on the amount the statutory of his statutory liability from the date of the collision (9). limit for In the case of limited liability this is the rule, whether the costs. ship was earning freight at the time of collision or not (), and whether there are several claims or only one ($). And he is liable beyond the statutory amount for the costs of the action (t). in action The owner of a ship sunk by collision who, admitting Wrong-doer that the collision was caused by the fault of his own ship, of his fault is not purged obtains judgment for limitation of his liability, and pays by judgment into Court the statutory amount of his liability, does not limiting his liability. thereby escape from the legal consequences of his wrongful act in causing the collision, except so far as the Act expressly relieves him. The owner of a ship sunk in the Thames paid into Court the statutory amount of his liability. His ship was raised by the Thames Conservators (who have statutory powers to raise wrecks and reimburse themselves for the expense of raising them by sale of ship and cargo), he undertaking to pay the cost of raising. It was held that the shipowner was bound to hand over cargo on board to its owner, and that the cargo-owner was not liable to pay him anything by way of salvage or general average contribution (u). 182, where, however, the point, though raised in argument, was not mentioned in the judgment. See also per Brett, M. R., The Warkworth, 9 P. D. 145, 147, as to the effect of negligence on shore causing improper navigation on the water. (a) Straker v. Hartland (1864), 2 H. & N. 570; The Amalia, 5 N. R. 164, note; 34 L. J. Ad. 21; The City of Buenos Ayres (1871), 1 Asp. Mar. Law Cas. 169; African Steamship Co. v. Swanzy, 2 K. & J. 660; General Iron Screw Collier Co. v. Schurmanns, 1 J. & H. 180; Nixon v. Roberts, 1 J. & H. 739; are decisions under the Act of 1854 to M. the same effect. (r) The Northumbria, L. R. 3 A. & E. 6. As to the justice of the practice compared with that at common law, see per Lord Esher, M. R., 13 P. D. 118. (s) Smith v. Kirby, 1 Q. B. D. 131. It has been stated that the report of this case is incorrect; that it was not a case of collision, but of a ship capsizing through improper stowage. (t) The Dundee, 2 Hag. Ad. 137; Ex parte Rayne, 1 Q. B. 982, are decisions to this effect under former Acts. A like rule prevails in America; The Wanata, 5 Otto, 600. (u) The Ettrick, 6 P. D. 127. N Act applies craft. The Act applies only where the injury is to a ship or only to injury to or on board boat (x), or to persons or goods on board a ship. The liability for damage to a pier, wharf, or other object ashore, and for damage to property afloat, other than that mentioned in the Act, is unlimited (y). Liability of shipowner carrying in another man's ship is unlimited; except where the carrier is a railway company. Other cases of unlimited liability. Liability for damage to a light-ship. Liability of cargo to arrest not affected by the Act. Liability of Trinity House pilot. The liability of a person who contracts to carry persons, animals, or goods by sea, and carries them in a ship not owned by himself, is not limited by the statute. But the liability of a railway company in such a case is limited as regards animals and goods (≈); and also, it would seem, as regards loss of life or personal injury to passengers; but the words of the Act are somewhat obscure as regards passengers (a). The liability of owners navigating their own ships, of pilots, harbour and dock masters acting in charge of ships, of partners in a shipping adventure who work but do not own the ship (b), seems to be untouched by the Act, and to be unlimited. Whether charterers and others in the position of pro hâc vice owners are within the benefit of the Act seems doubtful (c). As against the Crown there are no words limiting the liability of the subject (d). If a vessel wilfully or negligently injures a light-ship, in addition to her liability for damages, she incurs a penalty of 50%. (e). Notwithstanding the words of the Act, the liability for damages is probably limited to the statutory amount in this, as in other, cases. The liability of cargo to be arrested in order to compel payment of freight is not affected by the Act (f). The liability of a London Trinity House pilot in respect (x) The word "boat" does not occur in paragraphs (1) and (2) of sect. 54. (y) See River Wear Commissioners (2) 34 & 35 Vict. c. 78, s. 12. 792, 809. (b) As in Steel v. Lester, 3 C. P. D. 121. (c) The question has never, so far as the writer is aware, arisen. (d) See The Zoe, 11 P. D. 72. (e) 17 & 18 Vict. c. 104, s. 414. (f) The Orpheus, L. R. 3 A. & E. 308. |