62

owner.

LIABILITY LIMITED.

first introduced a limitation to that liability in certain specified cases. Ship-owners ceased thereby to be liable for the misconduct of masters and mariners beyond the value of the ship and freight; and a charterer was considered the owner, if he undertook to man, victual, and navigate another's vessel at his own expense; that is, pro hac vice, the charterer was, in contemplation of law, Those provisions were reenacted in 1836, (Rev. Stat. ch. 32, §§ 1-4), and, in some respects, extended; and are now to be found in the same form in the General Statute of 1860, ch. 52, §§ 18-21; and the same principle is adopted by Congress in the act of 1851, ch. 43, §§ 3, 4, and 5. These sections, with some qualification, supersede State laws; and render further State legislation superfluous. What is law in Massachusetts now, is also law for all the other States of the American Union.

What is quite noticeable, the act of Congress is almost an exact transcript of the law of Massachusetts. Not only is the ship-owner's liability circumscribed in both, but in both he has the privilege to surrender to freighters, or a trustee for them, all his interest in vessel and freight, and thus stay all legal proceedings against him, and protect himself entirely against all liability for further costs of litigation.

In England and the United States, as well as Holland, the liability of ship-owners to damage is limited to the value of the vessel in fault and her freight; and though in The Public Opinion (2 Hag. 398), which was a cause of collision, occurring in the river Humber, the court decided that torts of this description were not subjects of admiralty jurisdiction when arising infra corpus comitatus in England; yet it is held otherwise, as has been

seen, in the United States, in a series of decisions, as well as settled also by congressional legislation; and now not only do these decisions apply to torts upon our rivers and other inland lakes and waters, but reach cases of collision of ships at anchor in land-locked harbors, or at the wharves, if water-borne, of our great ports of entry. It would seem to be an indispensable consideration to the recovery of damage, however, that at the time of the injury both colliding vessels should be water-borne. 6 N. Y. Leg. Obs. 401, Livingstone v. Propeller Express.

.

As to the proceedings in a libel for collision, all interested as owners, or otherwise, may join originally in the proceedings; or be admitted subsequently as parties by petition to the court, at its discretion, or for cause; or the master, in the name and on behalf of those interested, may institute proceedings in rem, by one suit in admiralty, requiring only one plea, trial, and decree, to determine the whole question of damage; thus effectually avoiding that needless circuity of numerous actions, which the common law renders indispensable.

It has been determined that an arrested ship may be delivered on bail; 1 Gall. 145, Alligator; and that the testimony of persons on board is admissible ex necessitate as evidence at the trial, even though such persons may be interested in the result. 1 Sum. 329, The Boston; ibid. 400, The Henry Ewbank; and 1 Dod. 345, The Charlotte Caroline. But see the act of July 2, 1862, passed by Congress, to which reference will again be made in a subsequent part of this treatise.

By the act of Congress of August 23, 1842, ch. 188, authority was given to the Supreme Court of the United States to frame and establish rules and regulations gov

erning causes of admiralty and maritime jurisdiction; and under and in pursuance of that act, the court adopted, in 1844, a code of rules in admiralty numbering, in all, forty-seven; of which rules the twelfth, eighteenth, and perhaps others, have subsequently been modified or abrogated in part. But the fifteenth is as follows:

"In all suits for damage by collision, the libellant may proceed against the ship and master, or against the ship alone, or against the master or the owner alone in personam."

This rule remains unmodified, and as it was originally prepared. It is understood that these admiralty rules were drawn up by Mr. Justice Story, and also that the act of February 26, 1845, was originally prepared by him.

Under the fifteenth rule, and the general principles of maritime jurisprudence applicable to cases of collision, the customary allegations in the libel (and they are not only formal but may become quite material) which are deemed necessary to give to the court jurisdiction,

are

1. The locality of the injured vessel, her destination, tonnage, rig, provision in tackle, apparel and furniture, condition as to soundness, and complement of hands as a crew to navigate.

2. Her time of departure, being so manned, etc., arrival, mooring, watch, and warning to colliding vessel; sufficiency of tide, sea-room, and ability of vessel in fault to avoid; her own helplessness and vigilance of the plaintiff ship; carelessness of the respondent ship; forcible collision, its effect, injury by fouling and estimated damage.

3. That damage would not have happened without want of care.

4. That the injured and complaining ship was tight, stanch and strong; that the libellants are the true and lawful owners of the libelling ship, her tackle, apparel and furniture.

5. After the collision and damage, pilots and others remoored or secured; shipwrights and others repaired the damaged ship, at a specified or estimated value of $ ; whereby libellants have sustained a damage for services and repairs amounting to $

6. Offering to verify, if denied, the foregoing allegations; craving leave to refer to depositions and other proofs to be exhibited in the cause.

These allegations are to be signed by the libellants and sworn to before the District Court, its clerk, or a commissioner.

And the foregoing are the ordinary formal allegations in collision cases, and are sufficient to present an issue for hearing by the court, in behalf of the libellant.

The usual defensive allegations by the libellee, or claimants, or other parties intervening, are

1. The ownership, tonnage, and present locality of the libelled vessel.

2. Admitting such articles in the libel as are true, and propounding others which deny, qualify, or contradict those in the libel.

3. Stating and alleging a series of defensive articles, importing justification of the libellee and want thereof in libellant.

4. Proffering a verification generally, if denied; and craving leave to exhibit depositions and other proofs; and

5. Praying the court to pronounce against the libel,

61

condemn the libellant in costs, and otherwise right and justice to administer in the premises.

The answer is to be signed and sworn to in like manner as the libel.

And since the extension of admiralty jurisdiction to the lakes and other great inland waters, there should be further allegations; as that proper lights and signals were duly displayed, and competent lookouts or watch were upon deck and properly stationed, as far forward as possible, and finally with an officer, on deck and in command, entirely competent to the duties of his station, vide ch. 69, 1864; ch. 234, 1866; and ch. 83, 1867, United States.

These additional allegations seem to be required by act of the United States Congress, August 30, 1852, ch. 106, and decisions of the United States Supreme Court since its passage; especially in the cases arising on Lakes Erie, Michigan, and Ontario, and St. Law rence River, where proceedings in admiralty for collision and such torts were first commenced in the district courts of the western circuits and Northern New York, or the other circuits already referred to. The cases alluded to are the Steamer Louisiana, Propeller Niagara, and Propeller Atlantic, cases in 21 Howard, and other subsequent decisions of the United States Supreme Court, as reported in Howard, Black, or Wallace.

With the appropriate allegations to promote or defend a libel filed, the next matter to be attended to will be the exhibit of the respective proofs by the parties.

In order to recover, the libellant should be proved to have been in the exercise of ordinary care, and the libellee to have been in want of it; and if this be