Application of s. 17 to Queen's ship. Liability where ship deemed to be The application of sect. 17 to foreign ships is further considered in a subsequent chapter (t). Enactments similar to sects. 16, 17, are in force in several of the British colonies (u). In one case a Queen's ship has been held in fault under sect. 17 (x). The question whether the Act applies to a Queen's ship does not appear to have been discussed or raised. It is submitted that it does not so apply (y). Where a ship is deemed to be in fault under either sect. 16 or sect. 17, the owner will usually be liable at law, Steam Nav. Co., 5 E. & B. 195, s. 28 of 14 & 15 Vict. c. 79, was held to be a rule of evidence. (t) See infra, p. 223. There is no law in America corresponding to 36 & 37 Vict. c. 85, s. 17. The Supreme Court has declared that it will not accept blindly an artificial rule which is to determine in all cases whether the navigator is liable to the charge of negligence in causing any damage that may happen:" The Farragut, 10 Wall. 334. But the burden is on a vessel which has infringed the Statutory Regulations to prove that the infringement did not contribute to the collision: The Pennsylvania, 19 Wall. 125; The Ariadne, 2 Bened. 472. If, however, such proof is forthcoming, a ship will recover full damages although she did not comply with the Regulations: 1 Parsons on Shipping (ed. 1869), 596, 597; Chamberlain v. Ward, 21 How. 548, 567; The Grey Eagle, 9 Wall. 505; The Continental, 14 Wall. 345; The Sunnyside, 1 Otto, 208; The City of Washington, Otto, 31. And Blanchard v. New Jersey Steamboat Co., 59 New York Rep. 292; and Whitehall Transport Co. v. New Jersey, &c. Co., 51 N. Y. Rep. 369; and Hoffman v. Union Ferry of Brooklyn, 7 Amer. Rep. 435, are decisions of the State of New York Courts to the same effect. In The Pennsylvania a steamship and a sailing ship were in collision. The latter was not sounding her fog-horn, but was ringing a bell, though she was under way. The Supreme Court refused to admit evidence that the bell could be heard further than the horn, and held that the sailing ship was in fault for the collision. The following passage, which occurs in the judgment of the Court, shows that the law in America as to the effect of an infringement of the Regulations is identical with that of this country: "Where a ship, at the time of collision, is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the collision. In such a case the burden rests upon the ship of showing, not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been." The same ship was in this country held free from fault: see The Pennsylvania, 3 Mar. Law Cas. O. S. 477. (u) Canada, 43 Vict. c. 29; see The Clara Killam, 2 Quebec L. R. 56; The Govino, 5 Quebec L. R. 57; Queensland, 46 Vict. No. 12; South Australia, 44 & 45 Vict. No. 237; Victoria, 28 Vict. No. 255; New South Wales, 25 Vict. No. 7; New Zealand, 41 Vict. No. 54; Prince Edward's Island, 30 Vict. c. 13, s. 2. (x) The Hochung and The Lapwing, 7 Ap. Ca. 512. (y) See 17 & 18 Vict. c. 104, s. 4; 25 & 26 Vict. c. 63, s. 1; 36 & 37 Vict. c. 85, s. 2. and the ship herself in Admiralty proceedings in rem. in fault under But where the infringement is proved to have been the 8. 16 or s. 17. act of persons who are not the owner's servants, the liability is not so clear. In such a case, if the ship is under charter or demise, it seems that the ship may be liable in proceedings in rem (z), while the owner is not liable at law. If the infringement is the act of a compulsory pilot, it would probably be held that neither the ship nor her owners are liable under sect. 17 (a). In The Milan (b) it was held, that fault presumed by law does not affect owners of cargo, so as to prevent them from recovering from the owners of the other ship (c). But sect. 17 affects with the usual consequences of negligence persons on board the ship deemed to be in fault, whose duty it was personally, or by their agents, to comply with the Regulation which has been infringed. Thus, it was held, that the master of a schooner brought up in the Mersey with one of her riding lights in an improper position was, under sect. 17, guilty of negligence contributing to the collision; and that his widow, suing under Lord Campbell's Act, could not recover damages for his death (d). Where a ship is deemed to be in fault under sect. 17, Rule of divialthough there is no proof of negligence causing the col- sion of loss where ship lision, the rule of division of loss applies (e). And it is deemed to be conceived that the case would be the same where sect. 16 is infringed. (z) See The Lemington, 2 Asp. Mar. Law Cas. 475; The Tasmania, 13 P. D. 110; infra, pp. 90, seq. (a) The Hector, 8 P. D. 218. (b) Lush. 388; decided under 17 & 18 Vict. c. 104, s. 298. (c) This was so held before Thorogood v. Bryan, 8 C. B. 115, had been overruled by The Bernina, (d) The Vera Cruz (No. 1), 9 P. (e) The Lapwing, 7 Ap. Ca. 512; The Khedive, 7 Ap. Ca. 795; and see infra, p. 144. in fault. CHAPTER III. Persons liable; the actual wrongdoer. Liability of master. LIABILITY. THE person primarily liable in damages to the sufferer by collision is he by whose negligent act the loss was occasioned. The shipowner navigating his own vessel, the master, mate, pilot or other person in charge of the ship, who gave a wrong order to the helm (a), the helmsman who directed the ship's course wrongly, the seaman on the look-out who negligently failed to see and report the approach of the other vessel, may all be sued as wrongdoers, and are liable for damages (b). An action was brought against a pilot on board a king's ship for injury to the plaintiff's ship by the king's ship. It was held by Lord Kenyon that, though the pilot might be obliged to act in obedience to the order of the lieutenant in command of the king's ship, yet the pilot would be liable, if the collision happened by his personal misconduct. Upon proof that the collision occurred by reason of an alteration of the helm ordered by the lieutenant, the plaintiff was non-suited (c). It has been said that the master is liable for the negli gent and wrongful acts of his crew as well as for his own acts (d). His liability as carrier, unless specially limited, (a) See Stort v. Clements, 1 Peake, 107. (b) Stort v. Clements, ubi supra; Smith v. Voss, 2 H. & N. 97; Lawson v. Dumlin, 9 C. B. 54; were actions against pilots. As to the practice of the Admiralty Division in personal actions, see below, p. 316. (c) Stort v. Clements, 1 Peake, 107. (d) Story on Agency, §§ 314317; Molloy, 1. 2, c. 3, s. 13. And in America it has been so held: Denison v. Seymour, 9 Wend. 9. may extend so far; but it does not appear to have been held in any case decided in this country that he is liable in tort for wrongful acts of the crew (e). For wilful injury to another ship by pilot or crew he clearly is not liable (ƒ). of liability of As regards the responsibility of the master when a pilot is on board, whether by compulsion of law or by the master's or owner's choice, it seems clear that for a collision caused by the fault of the pilot the master is not answerable if the pilot has been placed in charge of the ship properly and in the ordinary course of navigation (g). The statutory limitation of liability (h) does not apply to No limitation protect an owner, or a part owner, by whose actual fault or the actual with whose privity the collision occurred. Such an owner is wrong-doer. liable for full damages; and if the proceeds of the sale of the ship arrested, or if the statutory amount of the owner's liability, is insufficient to recompense the sufferer by the collision, the owner by whose actual fault or privity the loss was occasioned is liable for the deficiency (i). It will be seen below (k) that in the case of a collision with one of her Majesty's ships, by the fault of those on board her, the actual wrong-doer is alone answerable in damages. The actual wrong-doer, being commonly a seafaring man of small means, can seldom give adequate redress, and may be not worth suing. In such cases the substantial statute limiting owner's liability. (i) See The Triune, 3 Hag. 114. Liability of the ship owner. The shipliable, not quâ owner, but only as owner is remedy is to be sought, either in Admiralty against the ship, or in a common law court against the employer of the actual wrong-doer. We propose to consider first the liability of the employer or master of the actual wrongdoer (1). In most cases the owner of the ship is the employer of those on board and in charge of her, and is liable for their negligent acts. So generally is this the case that it has been held that, in the absence of proof to the contrary, those in charge of a ship will be presumed to be in the employment of her owners (m). And primâ facie the registered owners are the real owners of a ship. But the register is not conclusive evidence of ownership; and if it is shown either that the actual owner is a different person from the registered owner, or that the registered owner is not the employer of the crew or person causing the collision, the presumption as to the liability of the registered owner is rebutted, and the actual owner or other person employing the wrong-doer is alone liable. It must be clearly understood that the liability for damage by a ship does not attach to her owner quâ owner. It is only as master or employer of the persons whose employer of negligent act caused the damage that he incurs any lia the actual wrong-doer. (1) Whether by the civil law the shipowner was liable for a collision caused by the fault of the master or crew seems to be a disputed point. Bynkershoek, Quæst. Jur. Civ. 1. 4, c. 23, contends that he is not liable: ei (magistro) autem mandatum non est aliorum naves dolo vel culpá obruere; quod si fecisset, ipse, quod dedit luat, non exercitor; so also Bynk. Observationes Jur. Rom. 1. 4, c. 16. On the other hand, Voet, ad Pandect. 14, 1, 7, makes the shipowner liable: quod si deliquerit (magister) si quidem in ipso officio cui erat propositus, dum forte data operá vel culpâ atque imprudentiâ manifestâ in navigium alienum impegit suum exercitores ex quasi delicto teneri constat. Huberi Prælect. Jur. Civ. 14, 1, 8; 3 Kent's Comm. 161; to the same effect. Cf. also, per Ware, J., The Rebecca, Ware, 188; The Phebe, ibid. 263, 268. The exercitor (charterer, for whose benefit the ship was worked) was generally liable for the acts of the master, and not the dominus (general owner). The law on the subject will be found D. 4, 9; D. 14, 1; D. 9, 2; D. 44, 7, 5; D. 45, 2, 3, 1; D. 47, 5, 1; J. 4, 3; Gaius, 3, 218, 219. (m) See Joyce v. Capel, 8 C. & P. 370; Hibbs v. Ross, L. R. 1 Q. B. 534, and cases there cited; Frazer v. Cuthbertson, 6 Q. B. D. 93, 98; Chasteauneuf v. Delange, 7 App. Cas. 127. |