72

BOTH IN FAULT DIVIDE THE DAMAGE.

tions the loss, by a sort of judicium rusticum, or, as Kent terms it, judicium rusticorum; and so it is held by the foreign ordinances and the jurists of Continental Europe. But this rule is not adopted in England; nor is it recognized or accepted in the United States to its full

extent.

It may possibly be better stated in the language of the courts, by a brief notice and review of the American decisions on collision, which shall now be given.

Some annotators have said, that there had been no limitation imposed by legislative enactment to the liability of ship-owners for the misconduct of their masters and mariners; and so it appeared to have been determined in Walter v. Brewer, 11 Mass. 99, in the year 1814; or perhaps the limit of liability was left indefinite and uncertain; so much so, indeed, that the Legislature of Massachusetts, in 1819, February 20, interposed and passed an act expressly limiting such liability of owners of ships, for the sake of encouraging trade and commerce, to the value of the ship and freight; and also considered the charterer as the owner, provided such charterer should man, victual, and navigate the vessel, at his own expense. See Mass. Stat. 1818, ch. 122.

This limitation on the liability of the owner had been formerly coextensive with the amount of loss; and it, accordingly, became thenceforward restricted to the value of the property at hazard, as already appears in a former part of this chapter.

Though this privileged protection is extended to owners for acts of embezzling, it does not however seem to apply in cases of collision. 14 Gray, 301, Walker v. Boston and Hope Insurance Company; 3 Story, R. 492, Pope v. Nickerson.

STATUTES AND RECENT CASES.

73

In England, also, similar restricting acts have been passed, as will appear by referring to 26 Geo. III. chs. 86 and 159; and finally, 17 & 18 Vict. ch. 104, § 503; which latter enactment assimilates the statutes of England very much to the acts of Congress; thereby placing the English and American courts almost precisely on the same footing, as to limited liability of

owners.

Having already referred to 1st Sprague's Decisions, and many adjudications of the Supreme Court of the United States, such as The Genesee Chief, Fretz et al. v. Bull et al., Walsh v. Rogers, Smith v. Condry, The Propeller Monticello, Steamer Oregon v. Rocca, and New York v. Rea, and others; it only remains to add for reference the more recent decisions of our highest tribunal and other cases which have been adjudicated in the district and circuit courts.

In 19 Howard, there are three cases: Ure v. Coffman, p. 56; United States v. Steamer St. Charles, p. 108; and New York and Virginia Steamship Company v. Calderwood, p. 241.

In 20 Howard, 296, Jackson v. Steamer Magnolio, which was a cause of collision and much considered. Ibid. p. 543, is the case of Snow et al. v. Hill, which was a collision by towed steamers.

In 21 Howard, are two cases of collision, appropriate to be read by the student: The Steamer Lawrence v. Fisher et al., p. 1; and The New York and Liverpool Mail Steamship Company v. Rumbull, p. 372. This last was a collision between a sailing and steamvessel; and the opinion of the court was delivered by Mr. Justice Clifford. There is also the case of Chamberlain v. Ward, which was a collision on Lake Erie,

where the fault was mutual and the damages appor tioned. Vide 21 How. 548.

In 22 Howard, are reported two cases of collision, one occurring on the Yazoo River, the other on the Delaware 22 How. 48, Nelson v. Leland; ibid. 461, New York and Baltimore Transportation Company v. Philadelphia and Savannah Steam Company.

In 23 Howard, are to be found also two cases of collision, both occurring in the Chesapeake Bay: the one on p. 287, Haney v. Baltimore Steam Packet Company, in which Grier, J., gave the opinion of the court; the other on p. 448, Mitredge v. Dill, where also the opinion of the court was given by Mr. Justice Clifford.

In 24 Howard, are reported three cases of collison, severally occurring on the East, Ohio, and Elizabeth rivers: Sturgis v. Boyer, 24 How. 110; Pearce v. Page, ibid. 228; and Union Steam Company v. New York and Virginia Steam Company, ibid. 307; in the first and last, the decisions were pronounced for the court by Clifford, J., and in the second by Mr. Justice McLean.

In 1 Black, 414, The Marcellus, is a case of collision in the harbor of Boston; and again the opinion was delivered by Mr. Justice Clifford; also 1 Black, 574, Propeller Commerce, another case of collision, occurring on the Hudson River; and in that also an opinion is delivered by Clifford, J.

In Gallison, Mason, Sumner, Ware, Davis, Abbott, Dallas, Cranch, Howland, Howland and Blatchford, Crabbe, Gilpin, Newberry, Stuart, Bee, and Peters, Jr., the more important decisions there reported are familar to the profession, and do not materially vary the doctrines already laid down in the text.

RULES AND REGULATIONS.

75

A French rule requires that one vessel, following another, on entering a port before they come to anchor, shall avoid or steer clear of the vessel ahead; and this, whether the two are sailing or steam vessels. In this rule there is practical good sense, and, if adopted, would doubtless be readily acquiesced in, as sound law and sense; and as a rule useful to prevent collisions.

When a vessel is at anchor, near a channel much frequented by other vessels, she ought to display signal lights in the night-time; and even when riding at anchor in the harbor, on a dark night, there should be, at least, a look-out or deck watch; or perhaps, more properly, an anchor watch. O'Neil v. Sears, 24 Law Rep. 731, by Sprague, J.; and see S. C. reported in 2 Sprague, p. 52.

In 1840, August 7, was passed an act by the British Parliament to improve the practice and extend the jurisdiction of the High Court of Admiralty; authorizing, by 18, the admiralty judge to make rules and regulations for proceedings in admiralty; also providing that the Dean of the Arches Court should sit as admiralty judge in his absence; and that advocates, surrogates and proctors in the Arches should also practice in the Admiralty Court. The act consists of twenty-four sections and is cited as that of 3 & 4 Vict. ch. 65.

The act of August 7, 1854 (17 & 18 Vict. ch. 78), enabled the Admiralty Court to appoint commissioners and substitute stamps for fees.

That of August 8, 1859, obliterated all distinctions between the practitioners in the various courts; enabling sergeants, barristers, attorneys and solicitors to practice in the admiralty courts; the sergeants and barristers as advocates, and the attorneys and solicitors as proctors.

76

RULES AND REGULATIONS.

On July 3, 1854, the judge of admiralty (the Hon. Stephen Lushington) passed rules as authorized by the act of 1840, § 18.

December 12, 1854, the same magistrate certified certain rules as to fees, stamps, etc., as having been adopted by her Majesty's Privy Council, under what is termed the "Admiralty Court Act," 1854, and cited as the 17 & 18 Vict. ch. 78.

On the 1st December, 1855, the same judge adopted a set of rules, orders and regulations in regard to instance proceedings; which were sanctioned by the Privy Council December 7, 1855; also, after the 1st of January 1856, proceedings were specially directed to be printed by his order.

In 1859, other rules were framed by Dr. Lushington, more full and complete; and these were approved by the council November 29, 1859; the same to take effect January 1, 1860; with tables for fees, and forms covering all customary proceedings in the English admiralty. There are in all one hundred and eighty-seven sections. And so appropriate to the subject of this chapter is § 62, that it is here cited in full.

"Sect. 62. In causes of damages, unless the judge shall otherwise order, each proctor shall, before any pleading is given in, file a document, to be called a preliminary act, forms of which may be obtained in the registry, containing a statement of the following particulars :

"1. The name of the vessels which came into collision and the names of their masters.

"2. The time of collision.

"3. The place of collision.

"4. The direction of the wind.