bility. "The owner would not be liable merely because he was owner, or without showing that those navigating the vessel were his servants" (n). It is scarcely necessary to observe that the liability of the shipowner for the acts of the master and crew does not depend upon their being on board at the time of the collision (9). servant It is further necessary, in order to fix the shipowner The act comwith liability, that the negligent act complained of was an must be an plained of act of the servant acting within the scope of his employ- act of the ment (p). In the ordinary case of a collision occurring in within the the course of the employment of the ship for the owner's scope of his employment. benefit no difficulty arises upon this point. But when the ship is engaged upon a voyage or duty not authorized by the owner the question arises whether those on board are acting within the scope of their employment by the owner. Where a master, without any instructions from his owner as to towing disabled ships, undertook to assist a disabled ship into port, and whilst attempting to get her in tow negligently ran into and injured her, it was contended that the owner was not liable, because the master in assisting the disabled ship was not acting within the scope of his employment. It was held that he was so acting, and that his owner was liable (q). Owners not liable for wilful, ma Wilful, malicious, or criminal acts of the master and crew can seldom be within the scope of their employment so as to make the shipowner liable. Thus for a collision licious, and caused by the master and crew maliciously driving their of their (n) Per Lord Cairns, C., River Wear Commissioners v. Adamson, 2 App. Cas. 743, 751; and per Lord Blackburn, Simpson v. Thompson, 3 App. Cas. 279, 293; Hibbs v. Ross, ubi supra. (0) See The Northampton, 1 Sp. E. & A. 152; Hibbs v. Ross, ubi supra; The Kepler, 2 P. D. 40. (p) As to what acts are within the scope of the servant's employment, see 1 Smith's L. C. 9th ed. 394; and per Willes, J., Barwick v. English Joint-Stock Bank, L. R. 2 Ex. 259, 265. (a) The Thetis, 3 Mar. Law Cas. O. S. 357. criminal acts servants. Owner's liability where the ship is under charter. ship against another the owner will not be liable (). So where those on board a ship wilfully cut another ship adrift, and the latter suffered damage in consequence, it was held that the owners of the former were not liable at law, and that their ship could not be sued in Admiralty (s). . But owners are liable for the acts of their servants done in the course of their service and for their master's benefit, though no express command or privity of the owner be proved (t). And owners are answerable for the manner in which their servants navigate their ship, though the wrongful act of the servant is one against which the owners have given express orders (u). Infringement of the Statutory Regulations for Preventing Collisions at Sea is a misdemeanour, and damage caused thereby is deemed to have been caused by the wilful default of the person in charge of the deck (v). But owners are not relieved from liability for the acts of their servants in such cases (x); nor are they the less liable because the negligence of their servants is criminal, and amounts to manslaughter (y). Where a ship is being worked by a charterer or hirer, who appoints and pays the officers and crew under a (r) The Druid, 1 W. Rob. 391; McManus v. Crickett, 1 East, 106; Croft v. Alison, 4 B. & Ald. 590. In The Seine (Sw. 411) this defence was pleaded. There is some difficulty in reconciling these with later cases (carriage accidents), Limpus v. General Omnibus Co., 1 H. & C. 526; Page v. Defries, 7 B. & S. 137; but character of the acts in the carriage cases is substantially different from that in the ship cases. For an instance of a wilful attack upon another ship by a tug, see L. R. 1 A. & E. 64. (s) The Ida, Lush. 6; the ship was foreign, and the collision was in a foreign river; and see as to this case, per Sir R. Phillimore, V. P. 93. L. R. 3 A. & E. 47. Cf. Waltham (u) Limpus v. London General Omnibus Co., L. R. 1 H. & C. 526; Betts v. De Vitre, L. R. 3 Ch. 441. (v) 25 & 26 Vict. c. 63, ss. 27, 28. (a) It was so held under the provisions of a former Act: The Seine, Swab. 411. See also Poulton v. London and South Western Rail. Co., L. R. 2 Q. B. 534; Grill v. General Iron Screw Collier Co., L. R. 3 C. P. 476. (y) See The Franconia, 2 P. D. 8, 163; Reg. v. Keyn, 2 Ex. D. 63. charter-party or agreement which amounts to a demise of the vessel, the owner is not liable at law for damage she may do while in the possession of the charterer. But if the owner remains in possession of the ship, either by himself or his agents, he is liable, though she is under charter to another. Where a ship was chartered to a person for six months at 207. a week for the carriage of passengers and goods as he should direct, the charterer paying all disbursements and the wages of officers and crew, and the owners keeping the ship in repair, it was held that the owners were liable for a collision caused by the fault of those on board their ship (≈). In Dalyell v. Tyrer (a), H., the lessee of a ferry, hired a tug with her master and crew to assist in working the ferry for a day. A person who had contracted with H. for a season ticket was injured, whilst on board the tug, by the negligence of her crew, who were the owners' servants. It was held that he could recover against the owners, and that his right against them for the negligence of their crew was independent of his right against H. upon the contract. It has been doubted whether the owners of a ship which is manned by a master and crew who are the owners' servants, but who, by the charter-party are bound to obey the orders of a third person who is not the owners' servant are liable at law for damage done by the ship while acting under the immediate orders of such third person. Upon principle it is difficult to see why the owners, by placing their servants under the control and orders of a third person, should escape liability for their wrongful acts. And in Fletcher v. Braddick (b) Sir J. Mansfield held the owners liable in such a case. (z) Fenton v. Dublin Steam Packet Co., 8 Ad. & Ell. 835. The decision went upon the words of the charterparty; but it was proved that the owners had appointed and had power to dismiss the crew and (a) Ell. Bl. & Ell. 899. This case The deci Owner can recover over against actual wrong-doer. Owner not liable for the negligence of one to whom the ship is demised. But where a vessel was one of a fleet of transports engaged in the service of the Government upon an expedition of war, it was held by Cockburn, C.J., that it was an incident to such an employment that all the vessels should obey the orders of those in command of the expedition; and that if one of them damaged another of the fleet, whilst acting in strict obedience to such orders, her owners would not be liable (c). Where a Thames barge was lent by her owner to a person, who navigated her with his own men, it was considered clear by Best, J., that the owners were not liable for damage done by her (d). The shipowners, or employers of the master or actual Wrong-doer, by whose fault a collision occurs, can recover against him any damages which they have been compelled to pay, or any loss which they have suffered by his negligence (e). It has never been held that the duty to use due care and skill which is incumbent upon every person in the conduct of that which, if misconducted (f), may be harmful to others, attaches to a shipowner whose ship is being navigated by a person who pays the owner for the use of her, but navigates her himself or by his servants (g). On the contrary, it seems clear that in such a case the shipowner is under no such duty, though his ship is chartered or hired sion went partly upon the ground (c) Hodgkinson v. Fernie, 2 C. B. (d) Scott v. Scott, 2 Stark. 438; but it seems that in Admiralty she would be subject to arrest. See The Emily, 67 L. T. 214. (e) Green v. New River Co., 4 T. R. 589; Blewitt v. Hill, 13 East, 13. (f) As to this duty, see per Denman, C.J., Mayor of Colchester v. Brooke, 7 Q. B. 339, 377; per Lord Stowell in The Dundee, 1 Hag. Ad. 120; per Lord Blackburn in The Voorwaarts and The Khedive, 7 App. Cas. 795, 812; and River Wear Commissioners v. Adamson, 2 App. Cas. 743, 767. See also infra, p. 212. (g) But the principle has been adopted in the Harbours, Docks, and Piers Act, 1847, mentioned in the next paragraph of the text, and in some local Docks Acts. for the purpose of navigation, and is in the course of employment for the owner's benefit. The duty above referred to attaches only to those who have the actual conduct of the ship and to their employers. If the duty attached to the owner quâ owner, it is clear that he could not free himself from it by contract (h); but it has been pointed out in a former page that mere ownership creates no liability for damage done by the ship (i). damage to persons other By the Harbours, Docks, and Piers Act, 1847 (10 Vict. Owner liable c. 27), s. 74, the owner of a ship which damages the by statute for harbour, dock, pier, quays, or works is answerable to the pier, &c., by undertakers for the damage done by such ship, or by than his any person employed about her. This statutory liability servants. is larger than the common law liability of the shipowner; for it exists whether the actual wrong-doer is his servant or not. The ship herself is also liable in Admiralty, and a maritime lien is, it seems, created by the statute for the amount of the damage (j). It has been held that, notwithstanding the words of the statute, the shipowner is not liable for injury to a pier by his ship in case of violent tempest or act of God (). And the statute provides (sect. 74) that the shipowner shall not be liable where the damage was caused entirely by the fault of a compulsory pilot in charge of his ship. The liability for damage done by a ship springing, as we have seen, not from ownership of the ship, but from the rule of law by which a man is liable for the wrongful acts of his agent acting within the scope of his employment, it is evident that, on the one hand, an owner may be liable, though the relation of master and servant does (h) Hole v. Sittingbourne Rail. Co., 6 H. & N. 488; per Lord Blackburn, Dalton v. Angus, 6 App. Cas. 740, 820; Bower v. Peate, 1 Q. B. D. 321; Hughes v. Percival, 8 App. Cas. 443. (i) Supra, p. 68. (j) See The Merle, 31 L. T. N. S. 447. (k) River Wear Commissioners v. Adamson, 2 App. Cas. 743, overruling The Merle, 31 L. T. N. S. 447, and Dennis v. Torell, L. R. 8 Q. B. 10. Liability of persons other than owners; |