CHAPTER XI

COLLISION

1. Definition. In maritime law, collision is the impact of ship against ship, although usage is increasing the scope of the word so as to include contact with other floating bodies. It does not include stranding or running into structures forming a part of the land, such as bridges and wharves.

The question whether a collision is a subject for adjudication in admiralty is frequently one of some nicety. What constitutes a vessel within the meaning of admiralty jurisprudence has been discussed in Chapter 1, § 4. While, in general, objects which come into collision must be afloat in the water to warrant recourse to the admiralty courts, and certainly must not be permanently attached to the shore, nevertheless the jurisdiction has been exercised when the collision was between a barge and a pier erected in the midst of a stream and unlawfully obstructing navigation. Atlee v. Union Packet Co., 21 Wall. (U. S.) 389. The jurisdiction has also been exercised where boats have come into collision with submerged and stranded wrecks and sunken articles.

2. Liability Dependent on Negligence.- Liability for collision depends on negligence or fault causing or contributing to the disaster. Such negligence may be on the part of the ships actually in contact with each other or of outside vessels and consists in the violation of the statutory regulations for preventing collisions at sea or the failure to exercise that skill, care, and nerve ordinarily displayed by the average competent master. Collisions may occur without negligence, or by inscrutable fault, and then there is no liability for the resulting damage. Such are collisions solely due to the darkness of the night or to storms. In the Morning Light, 2 Wall. 550, the collision occurred at 4 A. M., on an intensely dark night in a dense fog and rain. The court (Clifford, J.) said:

1 In Seabrook v. Raft, 40 Fed. 596, where there was a collision between a raft and a dredge, moored by six anchors, the jurisdiction was sustained.

Reported cases where it has been held that collisions occurring in consequence of the darkness of the night and without fault on the part of either party, are to be regarded as inevitable accidents are

numerous.

...

Where the loss is occasioned by a storm or any other vis major, the rule as established in this court is, that each party must bear his own loss, and the same rule prevails in most other jurisdictions. . . Different definitions are given of what is called an inevitable accident, on account of the different circumstances attending the collision to which the rule is to be applied.

Such disasters sometimes occur when the respective vessels are each seen by the other. Under those circumstances, it is correct to say that inevitable accident, as applied to such a case, must be understood to mean a collision which occurs when both parties have endeavored by every means in their power, with due care and caution, and a proper display of nautical skill, to prevent the occurrence of the accident. When applied to a collision, occasioned by the darkness of the night, perhaps a more general definition is allowable. Inevitable accident, says Dr. Lushington, in the case of the Europa, 2 Eng. Law & E. 559, must be considered as a relative term, and must be construed not absolutely, but reasonably with regard to the circumstances of each particular case. Viewed in that light, inevitable accident may be regarded as an occurrence which the party charged with the collision could not possibly prevent by the exercise of ordinary care, caution and maritime skill.

3. Tests of Negligence. The primary question is whether there has been a violation of any of the regulations or rules of navigation. Navigable waters constitute a common highway and the rights and duties of vessels using them are quite similar, in legal principles, to those of vehicles using streets, and roadways on the land. Hence the general maritime law recognized the practice of keeping to the right, avoiding others whose movements were hampered, and not running down another because he was on the wrong side. Ultimately the general practice of navigators was expressed in formal rules and finally all nations united in promulgating them in the form of statutes which are now practically uniform throughout the world. They are, in effect, a code of international law for the purpose of avoiding collisions. Back of these special rules are the general requirements of the maritime law in regard to careful navigation; a lookout is essential although there is no statute requiring one to be maintained.

It should be observed that vessels navigating in darkness, fog

or storm must take all precautions against collision which such a state of things would suggest to a prudent navigator. A vessel failing to take such precautions will be in fault in a collision. Failure to hear fog signals is not negligence. The ordinary steering and sailing rules do not apply in fog.

4. The Regulations. The express rules for the navigation of vessels of the United States consist of the following:

1. International Rules (Act of Aug. 19, 1890, as amended; U. S. Comp. St. 1916).

2. Rules for Great Lakes and connecting waters (The "White Law"; Act of February 8, 1895; U. S. Comp. St. (1916).

3. Rules for Harbors, Rivers and Inland Waters (Act of June 7, 1897; U. S. Comp. St. 1916).

4. The Mississippi Valley Rules, § 4233, Revised Statutes. 5. Rules of Supervising Inspectors.

6. Local rules and municipal regulations.

These rules deal with the distinctive lights required for different vessels, signals, speed, rules governing the management of sailing and steam vessels under different conditions of weather and various relative positions of vessels. While they have very often been the subject of judicial interpretation in collision cases their application belongs to the subject of navigation rather than to that of admiralty law in the present work.

The statutory rules are of the highest importance and the mere fact of a breach of any of these is prima facie (but not conclusive) evidence of negligence. The infringing vessel must satisfy the court that its violation of law not only did not, but could not, contribute to the collision.

As was said by Chief Justice Fuller in Belden v. Chase, 150 U. S. 674:

They are not mere prudential regulations, but binding enactments, obligatory from the time that the necessity for precaution begins, and continuing so long as the means and opportunity to avoid the danger remains. Obviously they must be rigorously enforced in order to attain the object for which they were framed, which could not be secured if the masters of vessels were permitted to indulge their discretion in respect of obeying or departing from them. Nevertheless, it is true that there may be extreme cases where departure from their

requirements is rendered necessary to avoid impending peril, but only to the extent that such danger demands.

Obedience to the rules is not a fault even if a different course would have prevented the collision, and the necessity must be clear and the emergency sudden and alarming before the act of disobedience can be excused. Masters are bound to obey the rules and entitled to rely on the assumption that they will be obeyed, and should not be encouraged to treat the exceptions as subjects of solicitude rather than the rules.

It is true that where obedience to the rules will result in collision a navigator is justified in disobeying the rule. It was held in the Oregon, 158 U. S. 186, "that the judgment of a competent sailor in extremis cannot be impugned." Cases in which disregard of the rules has been upheld as justifiable by the courts have generally been cases in which the other vessel has already infringed a rule and a situation has arisen in which obedience to the rule could only result in collision. Such exceptions, however, as was said in the Albert Dumois, 177 U. S. 240, are admitted with reluctance on the part of the courts, only when the adherence to such rules must almost necessarily result in a collision-such, for instance, as a manifestly wrong maneuver on the part of an approaching vessel." In the John Buddle, 5 Notes of Cas. 387, it was said:

All rules are framed for the benefit of ships navigating the seas, and no doubt circumstances will arise in which it would be perfect folly to attempt to carry them into execution, however so wisely framed. It is, at the same time, of the greatest possible importance to adhere as closely as possible to established rules and never to allow a deviation from them unless the circumstances which are alleged to have rendered such deviation necessary are most distinctly approved and established; otherwise, vessels would always be in doubt and go wrong.

5. Damage to Ship. The owner of a ship wrongfully injured by collision is entitled to complete restitution. If the loss is total, he recovers her value, with interest from the date of the loss. If the loss is partial, he will recover the cost of full and complete repairs and if such repairs make the vessel a better and stronger one than she was before, he is entitled to that benefit; he will also recover demurrage or compensation for the loss of use of his ship during the time occupied by the repairs.

It frequently happens that the ship is not an absolute total loss,

in the sense of being completely destroyed or sunk beyond possibility of recovery, but so injured that the cost of repair will exceed the value at the time of collision; the owner may then treat her as a constructive total loss and claim from the wrongdoer the same amount as if the destruction had been complete. In other words, when the ship is so injured that a prudent business man would not repair, the owner abandons the wreck and claims a total loss. If he recovers, the title to the wreck passes to the wrongdoer.2

Expenses incident to the collision are also included in the ship's damage, such as the owner's disbursements in looking after his property; the cost of protest and survey; the wages and board of the crew while necessarily kept on board, the costs of superintending repairs and securing a new rating.

Loss of freight is also an item of damage.

6. Damage to Cargo.— The cargo-owner is entitled to recover his damages from the offending ship and the ordinary measure is the value of the goods at the time and place of a total loss, with interest and incidental expenses. The purpose of the rule is to place him, as nearly as may be, in the same position as if the collision had not occurred. Where the loss is partial, as where the goods arrive in a damaged condition, the measure is the difference between their actual value and what they would have been worth in good condition; to this may be added, in appropriate cases, the expenses of transhipment, reconditioning, warehousing, survey and sale.

Where both vessels are in fault the owner of the cargo may sue either or both, or as was said by Justice Clifford in the Atlas, 3 Otto 302:

Parties without fault such as shippers and consignees, bear no part of the loss in collision suits, and are entitled to full compensation for the damage which they suffer from the wrongdoers, and they may pursue their remedy in personam, either at common law or in the admiralty, against the wrongdoers or any one or more of them, whether they elect to proceed at law or in the admiralty courts.

Innocence entitled the loser to full compensation from the wrongdoer, and it is a good defense against all claims from those who have

2 In modern practice, insurance is nearly always carried upon a vessel and cargo. The modern authorities on the subject of constructive or total loss and abandonment, as well as the items of damage recoverable on account of vessel and cargo are, in nearly every instance, cases arising out of policies of marine insurance. This subject is treated at large in another volume of this series.