PILOTAGE IN FOREIGN AND COLONIAL WATERS.

Compulsory pilotage exists in many foreign countries, including the United States of America, France, Germany, Belgium, Holland, Spain, Portugal, Russia, and the Argentine Republic. But, except in Germany (see Allgemeines Deutsche Handelsgesetzbnch, Art. 740), the doctrine that the shipowner is not liable for the fault of a compulsory pilot does not prevail abroad: see, as to America, The China, 7 Wall. 53, and observations 2 Stuart's Vice Ad. Rep. (Canada) 231; The Merrimac, 14 Wall. 199; Smith v. The Creole, 2 Wall. (jun.) 485; 2 Parsons on Ship. (ed. 1869) 117; Smith v. Condry, 1 How. 28: as to France, Caumont, Abordage Maritime, §§ 191-194; Codes Annotées, Sirey et Gilbert, Code Commerc. Art. 216, §9; Sibille, Abordage, 280: as to Spain, Codigo de Commercio, Arts. 676, 691, 693: as to Belgium, see The Halley, L. R. 2 P. C. 193 and generally as to foreign law on the subject, see Reports of Pilotage Committees of 1870 and 1888.

The following is a summary of pilotage laws in force in some of the British colonies and dependencies:

Australia, South: Pilotage compulsory; 44 & 45 Vict. No. 237, s. 282.

Australia, Western: Pilotage compulsory; 18 Vict. No. 15,

s. 7.

Bermuda Pilotage compulsory; Law No. 2 of 1843 continued by subsequent laws.

Bombay See Muhammad Yusuf v. Peninsular & Oriental Steam Navigation Co., 6 Bombay L. R. 98.

Canada: 36 Vict. c. 54, makes the payment of pilotage charges compulsory; but expressly provides that no ship need be placed in charge of a pilot (ss. 56, 69); and that nothing in the Act shall be deemed to exempt owners from liability for the fault of a compulsory pilot (s. 69): See The Quebec, 19 Low. Canada Jur. 197. 31 Vict. c. 58, and 27 & 28 Vict. c. 13, s. 14, are (semble) repealed by the later Canadian law.

Jamaica: Pilotage compulsory; Law 35 of 1873; Law 29 of 1879; Law 19 of 1881; Law 36 of 1889. Mauritius: Ordinance No. 26 of 1881.

New South Wales: 35 Vict. No. 7.

New Zealand: Pilotage compulsory; 31 Vict. No. 32; 33 Vict. No. 42.

Newfoundland: St. John's; pilotage compulsory for inwardbound ships, except coasters; Ch. 100, Consolidated Statutes of Newfoundland.

Nova Scotia: Pilotage compulsory; Revised Statutes, Third Series, Ch. 79; 33 Vict. c. 17.

Prince Edward's Island: Pilotage compulsory (with exceptions); 7 Will. 4, c. 19.

Queensland: Pilotage compulsory; 46 Vict. No. 12, s. 113. South Australia: See Australia, South.

Straits Settlements: Pilotage compulsory; Ordinance No. 8 of 1869; Pilotage Ordinance, 1868.

74.

Tasmania: Pilotage compulsory; 21 Vict. No. 16, ss. 73, 74. Victoria: Pilotage compulsory; 28 Vict. No. 255, ss. 73,

Western Australia: See Australia, Western.

CHAPTER XI.

COLLISION WITH REFERENCE TO- -(1) THE SHIPOWNER'S
LIABILITY AS CARRIER (2) THE CONTRACT OF IN-

SURANCE.-CRIMINAL AND OTHER CONSEQUENCES OF

COLLISION.

THE liability of the shipowner for loss by collision of goods on board his ship may be considered under two heads: (1) his liability at common law by the custom of the realm; (2) his liability upon the contract of carriage. A common hoyman (@), the owner of barges, flats, or lighters, who lets them out for hire (b), the owner of a general ship trading between places within the realm or to foreign lands (c), are subject to the liability of a common carrier. Whether the owner of a ship that is not a general Whether shipowner is ship, and trades to foreign lands, is a common carrier, or liable as such, is doubtful (d). Again, whether the owner carrier. of a general ship is liable as a common carrier, except so far as he is protected by the contract, where he carries goods under a bill of lading, was, until of late years, a question much disputed (e). It appears to be now decided that he is not (ƒ).

27.

(a) Forward v. Pittard, 1 T. R.

(b) Dale v. Hall, 1 Wils. 281; Lyon v. Mells, 5 East, 428; Liver Alkali Co. v. Johnson, L. R. 9 Ex. 338.

(c) Morse v. Slue, 1 Ventr. 190, 238; see on this case per Blackburn, J., L. R. 9 Ex. 341; per Cockburn, C. J., 1 C. P. D. 430; Barclay v. Cuculla y Gana, 3 Dougl. 389.

(d) See Liver Alkali Co. v. Johnson, ubi supra; Nugent v. Smith, 1 C. P. D. 19; ib. 423; Chartered

a common

Shipowner's liability at

common law.

Shipowner's liability on the contract

of carriage.

At common law, where the shipowner is subject to the liability of a common carrier, he is liable as insurer against loss or damage from any cause except the act of God and the Queen's enemies (g). For injury to passengers on board his ship he is liable only where it is caused by the negligence of himself or his agents, the officers or crew (h). To passengers, therefore, he is liable for injury in a collision caused by the fault of his own ship, or by the fault of both ships. To cargo-owners he is liable at common law for loss or damage in a collision by the fault of his own, or of both ships, or where it is an inevitable accident. It is possible that a collision might occur by act of God, in which case he would not be liable. But the ordinary socalled case of collision by inevitable accident, as where it is caused by stress of weather, fog, or latent defect in gear, would not be held to be an act of God (i).

It has been held in America that owners of a tug towing craft with goods on board are not liable as common carriers for the safety of the goods ().

In practice the shipowner carrying goods usually contracts himself out of the onerous liability imposed on him by the common law. By the charter-party or bill of lading it is usually agreed that the goods shall be carried and delivered in good order, unless loss or damage shall arise from certain specified causes. These causes, technically called "exceptions," commonly include "perils, dangers, and accidents of the sea, rivers, land, carriage, and steam navigation, of whatsoever nature and kind." Under a bill of lading so framed the shipowner is not liable for a collision which occurs without negligence in either ship (),

(g) Nugent v. Smith, 1 C. P. D. 19; ib. 423.

(h) See Redhead v. Midland Rail. Co., L. R. 2 Q. B. 412; on app. ib. 4 Q. B. 379, and the cases there cited.

(i) See Nugent v. Smith, 1 C. P. D. 19, 34, as to what is an act of

God.

(k) Caton v. Rumney, 13 Wend. 387. This seems to be the general rule, but there are contrary decisions; see 1 Parsons on Shipping (ed. 1869), 247, note.

(1) Buller v. Fisher, 3 Esp. 67; Chartered Mercantile Bank of India,

or for a collision caused wholly by the fault of the other ship (m); but he is liable where there is negligence in his own ship. Sometimes in the bill of lading there is con- Exception of "collision" tained an exception of "collision." In that case the ship- in bill of owner is not liable for a collision caused by the fault of lading. the other ship (n); but he remains liable for a collision caused by the fault of his own ship. The reason for his liability for a collision, caused wholly or in part by the fault of his own ship, is that "underlying the contract implied or involved in it (the bill of lading) is . . . an engagement on his part to use due care and skill in navigating the ship and carrying the goods " (0).

To cover loss by the fault of the carrying ship the Other exfollowing exception is sometimes added:-" Accidents, ceptions. loss, or damage, from any act, neglect, or default whatsoever, of the pilot, master, or mariners, or other servants of the shipowner in navigating the ship." These words cover loss in a collision caused by the fault of the carrying ship (p); but they do not cover loss by a collision with another ship of the same owners caused entirely by the fault of such ship (9).

An exception of "dangers or accidents of navigation in a bill of lading covers loss of cargo by collision caused by the fault of the other ship (»).

London, and China v. Netherlands India Steam Navigation Co., Limited, 10 Q. B. D. 521. As to American law on the point, see Angell on Carriers, 5th ed. 513.

(m) Wilson, Sons & Co. v. Owners of Cargo per Xantho, The Xantho, 12 App. Cas. 503, overruling Woodley v. Michell, 11 Q. B. D. 47.

(n) Lloyd v. General Iron Screw Collier Co., 3 H. & C. 284; Grill v. General Iron Screw Collier Co., L. R. 1 C. P. 600; on app. ib. 3 C. P. 476; Woodley v. Michell, 11 Q. B. D. 47; Chartered Mercantile Bank, &c. v. India Steam Navigation Co., 10 Q. B. D. 521, 531.

(0) Per Lord Macnaghten, The Xantho, 12 App. Cas. 503, 515.

(p) Chartered Mercantile Bank, &c. v. Netherlands India Steam Navigation Co., 10 Q. B. D. 521. Except, perhaps, where there is negligence on the part of the owner in appointing an incompetent master or crew; see per Brett, M. R., 10 Q. B. D. 532.

(9) Chartered Mercantile Bank, &c. v. Netherlands India Steam Navigation Co., ubi supru.

(r) Sailing Ship Garston Co. v. Hickie, Borman & Co., 18 Q. B. D. 17.