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Collision between ships of the same owner.

The Bernina was in collision partly by her own fault. Goods on board were in consequence of the collision transhipped to another ship, and whilst being carried on to their destination were lost by the fault of those on board the carrying ship. It was held that an exception in the original bill of lading of “ act of God, Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation,” did not cover the loss (8).

In the case of a collision between the carrying ship and another belonging to the same owners, the effect of the exception last mentioned, together with the statutory rule as to division of loss where both ships are in fault (36 & 37 Vict. c. 66, s. 25, sub-sect. 9), is to relieve the shipowner from making good to the cargo-owner more than half his loss. He is liable as carrier for half, and for half only, of the loss on the goods (t).

The case (u) which decided these points was as follows:A collision occurred between The Crown Prince and The Atjeh, a ship belonging to the owners of The Crown Prince, by the fault of both ships. The question arose whether the shipowners were liable to the owners of cargo shipped on board The Crown Prince under a bill of lading containing exceptions of, amongst other things,

" collision,” and “accidents, loss, or damage from any act, neglect, or default whatsoever of the pilots, master, or mariners, or other servants of the company in navigating the ship.” It was held that the shipowners were not liable upon the contract of carriage. Baggallay and Lindley, L.JJ., were of opinion that the exception of “collision,” although it did not cover the negligence of The Crown Prince (c), did cover that of The Atjeh; and further, that the negligence of The Crown Prince was covered by the other exception stated above. In the Court below (y), Pollock, B., and Manisty and Stephen, JJ., considered that the shipowners were not protected by the exception of “collision," on the ground that, since liability for loss by collision caused by the fault of the carrying ship is not excluded by that exception, neither is loss by collision caused by the fault of the carrying ship and another belonging to the same owners. Pollock, B., and Stephen, J., held that, though the second exception would have protected the shipowners, if the collision had been caused entirely by the fault of The Crown Prince, it had no application to a case where both ships were in fault. Manisty, J., held that the contract in the bill of lading was express, to carry and deliver the goods safely, subject to certain exceptions, which did not include negligence of those on board The Atjeh. Pollock, B., appears to have held the shipowners were liable as common carriers, being unprotected by the terms of their bill of lading.

(s) The Bernina (No. 2), 12 P. D. 36.

(1) Chartered Mercantile Bank, de. v. Netherlands, fc. Co., 10 Q. B. D. 521.

(u) Ibid.

(x) Lloyd v. General Iron Screw Collier Co., 3 H. & C. 284; Grill v. General Iron Screw Collier Co., L. R. 1 C. P. 600; 10. 3 C. P. 476.

As stated above, the Court of Appeal reversed the decision of the Court below as to the liability of the shipowners on the bill of lading. But the shipowners were held liable in tort (-) for the negligence of their servants on board The Atjeh, though, by reason of the rule as to division of loss, for only half the loss.

The rule as to division of loss where both ships are in Rule as to fault does not affect the right of a cargo-owner to recover loss. full damages for breach of the contract of carriage against the owner of the carrying ship, though the other ship was also in fault for the collision. But it abridges his common law right, as against the owner of the other ship, by limiting the liability of the wrong-doer to one-half the loss (a);

division of

man

(y) 9 Q. B. D. 118.

(3) As to the liability of the shipowner in tort as well as upon the contract, see Morgan v. Ravaz, 6 H. & N. 265 ; Pontifex v. Midland Rail. Co., 3 Q. B.D. 23.

(a) The Milan, Lush. 388; Chap

v. Royal Netherlands Steam Navigation Co., 4 P. D. 157, 165; Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Co., 10 Q. B. D. 521. The

does not

gence of

and this is the case even where the two ships belong to the same owner (6). If part of the loss on cargo is recovered against the owner of the carrying ship, the residue, up to one-half the loss, may be recovered against

the other ship (c). Exception of Damage to goods in a collision caused by the negligence “barratry"

of those on board is not covered by an exception of barratry cover negli- in the bill of lading (d). carrying Shipowners contracted with a passenger that they should ship.

not be responsible for any loss or damage arising from perils of the sea or from any act, neglect, or default whatsoever of the pilot, master, or mariners. It was held that no damages could be recovered for the death of the passenger, who was killed in a collision for which

the carrying ship was in fault (e). Whether ex- Where the collision is caused by an unnecessary, but ception of "* perils of the not negligent, breach of the Regulations for preventing sea" covers

collisions at sea, so as to cause the ship to be deemed to infringement of the Regu- be in fault under 36 & 37 Vict. c. 85, s. 17, it seems

to have been considered by Brett, M. R., in Woodley v. Michell (f), that the shipowner would be liable for damage to cargo, notwithstanding an exception in the bill of lading of "perils of the sea.” Sed qu.

lations,

Milan, ubi supra, so far as it decides that the innocent cargo-owner can recover no more than half his loss against the other ship, has not been followed in America. It has been held by the Supreme Court that the innocent cargo-owner is entitled to a decree for the whole of his loss against either of the wrong-doing ships if one only is sued ; if both are sued he is entitled to a decree for half his loss against each; and if a moiety of his loss exceeds in amount the statutory liability of either of them, or if, for any other reason, he fails to obtain half his total loss from either of them, he is entitled to a further decree against the other for

the difference; see The Alabama and The Gamecock, 2 Otto, 695 ;

Janiata, 3 Otto, 337; The Atlas, ib. 302 ; The l'irginia Ehrman, 7 Otto, 309; The City of Hartford and The Unit, ib. 323 ; The City of Paris, 14 Blatchf. 531; The Civilta and The Restless, 13 Otto, 699; The Eleonora, 17 Blatchf. 88.

(6) Chartered Mercantile Bank of India V. Netherlands India Steam Navigation Co., ubi supra.

(c) The Demetrius, L. R. 3 A. & E. 523.

(d) Grill v. General Iron Screw Collier Co., L. R. 3 C. P. 476.

(e) Haig v. Royal Mail Steam Packet Co., 52 L. J. Q. B. 395, 640.

(f) 11 Q. B. D. 117.

notice that

A railway company carrying passengers by land and Effect of sea attempted to free themselves from liability for the carrier will negligence of their servants by repudiating such liability not be liable

for negligence in public notices and advertisements. Where, after pub- of servants. lication of such a notice, a collision occurred between a ship employed by the railway company, with cargo and passengers on board, and another ship, by the fault of the former, it was held that, under the Acts regulating their steamship traffic (9), the company were liable to the passengers and cargo-owners, notwithstanding the notice (1)

Whether the shipowners are liable to the charterer for Shipowners' loss sustained by the latter in consequence of a collision charterer

for for which the chartered ship is in fault, will depend upon loss by colthe terms of the charter-party. Where such liability exists, it will extend to expenses of salving the cargo which have been paid by the charterers or their underwriters (i).

In a case (k) where the officers and crew were the servants of the owner, though by the terms of the charterparty the ship was “placed under the direction of” the charterer, it was held that the owners were liable to the charterer for loss sustained by the latter in consequence of the ship getting ashore by the negligence of her crew.

The master, as well as the owner, is liable for the loss Liability of of goods taken on board by him as a common carrier (?). carrier. And it is said that he is liable for the negligence and misfeasance of his officers and crew (m). In America, it was

lision.

master as

crew.

(9) The Railway and Canal Traffic Act, 1854 (i7 & 18 Vict. c. 31); 26 & 27 Vict. c. 92, s. 31 ; 34 & 35 Vict. c. 119, s. 12.

(h) Doolan v. Midland Rail. Co., 2 App. Cas. 792.

(i) Scaramanga v. Marquand, 5 Asp. M. C. 410, 506.

(k) Omoa and Cleland Coal and Iron Co. v. Huntley, 2 C. P. D. 464. Amongst other cases, Fletcher v. Braddick, 2 B. & P. (N. R.) 182, seems to have been relied on by

the Court as establishing that the
owners would be liable to third
parties for the negligence of the

Cf. The Tasmania, 13 P. D.
110.

(1) Morse v. Slew (or Slue), 3 Keb. 72, 112, 135 (best report) ; Raym. 220; 1 Mod. 85 ; 1 Ventris, 238; Boucher v. Lawson, Cas. t. Hardw. 85, 194.

(m) Story on Agency, $$ 314— 317; 3 Kent's Comm. 218; Molloy, 1. 2, c. 2, s. 13.

Jurisdiction in Admiralty in case of damage to cargo.

held that the master was liable to a passenger on board his ship who was injured by a collision caused by the fault of the pilot, and not by the fault of the master (n).

There is jurisdiction in Admiralty in respect of a claim by the owner, consignee, or assignee of the bill of lading of goods carried into any port in England or Wales (0), for damage to the goods by the negligence or breach of contract by the owner, master, or crew of the carrying ship, provided no owner or part owner of the ship is at the time of the institution of the action resident in England or Wales (p). To enable him to sue, it seems to be necessary that the property in the goods should have passed to him (1). Though the statute gives a right to proceed against the ship in Admiralty, there is no maritime lien for damage in such a case ().

The right of the shipowner to recover against the cargoowner general average contribution for the expenses of raising his ship sunk in collision, is considered elsewhere (8).

The application of the Act limiting the liability of shipowners upon the contract of carriage to an amount depending upon the tonnage of their ship, is considered above in connection with the subject of limitation of liability (t). It may be here noticed that railway companies carrying by sea in ships not owned by themselves are entitled to the benefit of this Act in some cases in which other carriers by sea are not (u).

(n) Denison v. Seymour, 9 Wend. 9.

(o) As to the meaning of this term, see The Bahia, Br. & L. 61 ; The Pieve Superiore, L. R. 5 P. C. 482; The Dantzic, Br. & L. 102.

(p) 24 Vict. c. 10, s. 6; 36 & 37 Vict. c. 66, s. 16.

(9) See The Freedom, L. R. 3 A & E. 495, following The St. Cloud Br. & L. 4; The Norway, Br. & L 377. The contrary has been held by Sir R. Phillimore, though the

facts did not render a decision upon the point necessary. See The Figlia Maggiore, L. R. 2 A. & E. 106; The Nepoter, ibid. 375. It does not appear that these cases were cited in The Freedom.

(*) The Pieve Superiore, L. R. 5 P. C. 482.

(8) Infra, p. 302.
(1) Supra, pp. 161 seq.
(u) See supra, p. 178.

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