"Westphalia," The, 4 Bened. 404; 1 Asp. M. L. C. 12; 24 L. T. N. S. 75 406 116 "Wexford," The, 13 P. D. 10; 57 L. J. Ad. 6; 58 L. T. N. S. 28; 27, 85, 457 ...26, 96 293 v. Phillips, 15 C. B. N. S. 245; 33 L. J. C. P. 33; 10 Jur. Whitney. The Empire State, 1 Bened. 57 96 64 .411, 477, 511, 512 460, 500 36 Whitridge v. Dill, 23 How. 448 "Wild Ranger," The, Lush. 553; 32 L. J. Ad. 49; 7 L. T. N. S. 725; 9 Jur. N. S. 134...... "Wilhelmina," The. See The "Williamina." Wilkins v. Day, 12 Q. B. D. 110; 49 L. T. N. S. 399; 32 W. R. 123.. 6 C. Rob. 316 "William Frederick," The. See The "Byfoged Christensen." "William Hutt," The, Lush. 25 187 379 89 197 257 .....311, 314 "William Money,' W. R. 6; 2 Asp. M. L. C. 118 "Williamina," The, 3 P. D. 97 .... Williams v. Newton, 14 M. & W. 747; 15 L. J. Ex. 11 Willoughby v. Horridge, 12 C. B. 742 Wilson v. Canada Shipping Co. See The "Lake St. Clair" and The 66 Underwriter" Wilson v. Dickson, 2 B. & Ald. 2...... v. Merry, L. R. 1 Sc. Ap. 326 v. Newport Dock Co., L. R. 1 Ex. 177 Wilson Sons v. Owners of Cargo ex "Xantho," 11 P. D. 170; 12 App. Ca. 503; 55 L. J. Ad. 65; 56 ib. 116; 55 L. T. N. S. 203; 57 ib. 701; 35 W. R. 23; 36 ib. 353; 6 Asp. M. L. C. 9, 207.... 283 "Winston," The, 8 P. D. 176; 52 L. J. Ad. 72; 49 L. T. N. S. 403; 31 W. R. 892; 5 Asp. M. L. C. 143; on app. 9 P. D. 85; 51 L. T. N. S. 183; 53 L. J. Ad. 69; 5 Asp. M. L. C. 274..237, 239, 244, 262, 263, 331 "Wirrall," The, 3 W. Rob. 56 497 PAGE 234, 506 "Woburn Abbey," The, 3 Mar. Law Cas. O. S. 240; 38 L. J. Ad. Wood v. Smith. See The "City of Cambridge." Wordsworth v. Willan, 4 Esp. 273 Wright v. Lethbridge, 63 L. T. N. S. 572 X. .283, 286 ........ 125, 136, 153, 156, 157 466 .100, 102 "Xantho," The. See Wilson Sons v. Owners of Cargo ex Xantho. Xenos v. Fox, L. R. 4 C. P. 665; 38 L. J. C. P. 351; 19 L. T. N. S. 84; 17 W. R. 893 .... 291 "Yourri,” The, and The "Spearman," 10 App. Ca. 276; 53 L. T. N. S. 29; 5 Asp. M. L. C. 458.. 463 Z. "Zadok," The, 9 P. D. 114; 50 L. T. N. S. 69; 53 L. J. Ad. 72 ; 32 W. R. 1003; 50 L. T. N. S. 695; 5 Asp. Mar. Law Cas. 252..32, 33, 399, 405, 433, 487, 496 "Zephyr," The, 2 Mar. Law Cas. O. S. 146; 11 L. T. N. S. 351; 12 W. R. 890..... "Zoe," The, 11 P. D. 72; 55 L. J. Ad. 52; 54 L. T. N. S. 879; 35 W. R. 61; 5 Asp. M. L. C. 583 "Zollverein," The, Swab. Ad. 96; 27 L. T. 160; 2 Jur. N. S. 429 ..215, ....317, 318 178, 180 217, 516 Cases decided by Courts of the United States of America are cited from the THE LAW OF COLLISIONS AT SEA. CHAPTER I. NEGLIGENCE. 66 ran 66 without THE mere fact that a ship strikes or goes foul of and Collision injures another creates no liability in herself, her owners, negligence or those in charge of her. The assertion that one ship creates no liability. into" or 'ran down the other, often made in collision actions by witnesses on both sides, is a mere allegation of negligence, and in no way advances the case (a). So that damages may be recovered, negligence for which the owners or persons in charge of the ship sued are responsible must be proved. There is one case, but one case only, in which damages may be recovered without proof of negligence; the case, namely, of an infringement by the defendant ship of one of the Statutory Regulations for Preventing Collisions at Sea which might by possibility have contributed to the collision. Here a rule of law (b) requires that the ship which has broken the law shall be deemed to be in fault for the collision. It excludes evidence directed to show that the infringement did not in fact contribute to the collision, and renders the consideration (a) The James Watt, 2 W. Rob. 270, 278. M. (b) 35 & 36 Vict. c. 85, s. 17; see infra, pp. 38, seq. B Case of inscrutable fault. What is negligence. of the question of actual negligence unnecessary. The precise effect of this important enactment will be considered hereafter (c). Where a ship, or each of the two ships, alleges (d) negligence on the part of the other, and it is manifest that the collision was caused by fault somewhere, but the evidence does not satisfy the Court on which side the fault lies, no damages can be recovered, and each ship bears her own loss (e). The English law as to the incidence of loss in this case differs from that of some foreign countries, and also, it seems, from the general maritime law (f). In The Albert Edward (g), an action against a steamship for damage to a mooring dolphin, which fell over on being struck or pressed upon by the ship, was dismissed with costs, on the ground that mere contact with the dolphin did not constitute a cause of action, and that the damage to the dolphin was the result of its own weakness, and was not caused by any negligence on the part of the ship. Negligence is the failure to exercise that skill care and nerve which are ordinarily to be found in a competent seaman. "We are not to expect extraordinary skill or (c) Infra, pp. 38, seq. (d) Following a practice which is almost universal, the writer here and subsequently personifies the ship. Convenience and habit will, perhaps, be considered a sufficient excuse for the use of a phraseology which has sometimes proved misleading; see infra, p. 75. (e) The Maid of Aukland, 6 Not. of Cas. 240; The Catherine of Dover, 2 Hag. Ad. 145; The Laconia, 2 Moo. P. C. C. N. S. 161; Abbott on Shipping, 12th ed. 520; and see per Lord Wensleydale, Morgan v. Sim, The London, 11 Moo. P. C. C. 307, 312. But formerly the law was otherwise; see infra, p. 152. (f) See Bell's Commentaries on the Law of Scotland (ed. 1870, by McLaren), I. 627; Bynkershoek, Quæst. Jur. Priv. C. 4, c. 18; Pothier, vol. 4, p. 444. There is no express authority for this statement as to the peculiarity of English law, and there are early decisions to the contrary; see infra, p. 145. But no case is to be found in the books in which damages have been recovered in a case of inscrutable fault, or in any case in which negligence has not been proved against the other ship. to the Roman and foreign law on the point, see infra. p. 68, and the note at the foot of Chapter VI. (g) 44 L. J. Ad. 49. As extraordinary diligence, but that degree of skill, and that degree of diligence, which is generally to be found in persons who discharge their duty" (h). In The Dundee (i) Lord Stowell defined negligence as "a want of that attention and vigilance which is due to the security of other vessels that are navigating the same seas, and which, if so far neglected as to become, however unintentionally, the cause of damage of any extent to such other vessels, the maritime law considers as a dereliction of bounden duty, entitling the sufferer to reparation in damages." In a recent case before the House of Lords, it was said that the duty of a seaman is "to take reasonable care and to use reasonable skill to prevent the ship from doing injury;" and it was pointed out that much more skill is reasonably required from a person who takes charge of a ship than from one who drives a carriage (k). So in the case of a collision between a ship being launched and another afloat, it was said by Butt, J., that under the circumstances the utmost possible precautions by those in charge of the launch were no more than reasonable (7). If a vessel by her own fault makes a collision so imminent that it cannot be avoided except by the extraordinary skill nerve or exertion on the part of the other ship, and a collision occurs, it will be held to have been caused by the former, and she will be liable for the entire loss. In such a case, and in every case where a ship by her own negligence places another in sudden and great peril, the latter will not be held guilty of negligence because at the last moment she did something that contributed to the collision, or omitted to do something that might have avoided it (m). (h) Per Dr. Lushington, The Thomas Powell and The Cuba, 2 Mar. Law Cas. O. S. 344. (i) 1 Hag. Ad. 120. (k) Per Lord Blackburn, Stoomvaart Maatshappy Nederland v. Directors, &c. of the Peninsular and Oriental Steam Navigation Co., The Voorwaarts and The Khedive, 5 App. (1) The George Roper, 49 L. T. (m) The Nor, 2 Asp. Mar. Law A wrong step agony of the taken in the collision is not negligence. |