Contribution amongst Co-owners. Collision between two ships owned by the same persons. owner, it seems that no action can be brought against the others, though the judgment is unsatisfied (3). The rule that there is no contribution between wrongdoers does not prevent a part owner who has been compelled to pay the whole of the damages from recovering in an action for contribution against his co-owners (a). And money so paid for damages, where the owner's liability is limited, may be brought into account as money disbursed for the use of the ship (b). If a collision occurs between two ships belonging to the same owner, his only remedy is against the actual wrong-doer. And the case seems to be the same where the two ships have one or more part owners in common. But the owners of cargo, or passengers, on board either ship can recover in an action of tort against the shipowners, subject to this, that where both ships are to blame, and the shipowners are protected by the terms of their contract against the negligence of their servants, the right to recover is limited to half the loss sustained, and that where (as is not ordinarily the case) the protection extends to the negligence of the shipowner's servants, as well on board the carrying ship as on board other ships of the same owners, there is no right to recover at all (c). (2) Brinsmead v. Harrison, L. R. 7 C. P. 547. As to the several liability where two ships are sued in Admiralty, see The Atlas, 3 Otto, 302; The Juniata, ibid. 337; The Alabama and The Gamecock, 2 Otto, 695; see infra, p. 196. As to the remedy against his co-owner of a part owner who has given a bond for the release of his ship, see below, p. 324. (a) 1 Smith's Lead. Cas. 9th ed. p. 171. (b) 17 & 18 Vict. c. 104, s. 515. (e) See Chartered Mercantile Bank of India, China, and London v. Netherlands India Steam Navigation Co., 10 Q. B. D. 521. The law as here laid down, limiting the damages recoverable, does not depend upon the doctrine of Thorogood v. Bryan, 8 C. B. 115, but upon the ancient practice of the Admiralty Court. See The Milan, Lush. 388, and per Lindley, L. J., 10 Q. B. D. 545. It would therefore seem to be unaffected by the decision in The Bernina (No. 2), 12 P. D. 58; 13 App. Cas. 1. See per the M. R., 12 P. D. at p. 83, and infra, p. 143. See also The Bernina (No. 1), 12 P. D. 36 (where the shipowners were not protected against the negligence of their servants, and were liable to cargo owners in contract), and infra, Pp. 284. CO-OWNERS; CONTRIBUTION; SHIPS OF SAME OWNER. 105 various cases. The liability of the shipowner as carrier upon the con- Liability in tract of carriage for a collision whereby goods or passengers are injured (d); in respect of collisions abroad (e); in respect of collisions with or between foreign ships, or in foreign waters (f); of collisions where one or both ships are in tow (g); where three or more ships are involved in the collision (h); where negligence on board one ship causes a collision between two others, or injures another ship (i); and in respect of damage done to a pier or harbour works (k), are considered elsewhere. (d) p. 281, seq. (e) p. 210, seq. (f) p. 208, seq. (g) p. 185, seq. (h) p. 26. (i) p. 27. (k) pp. 73, 85, 178, 211. CHAPTER IV. PERSONS ENTITLED TO RECOVER. Actions by part owners: ALL persons injured in their persons or property in a collision caused by the fault of one or both ships, and who have not themselves or through their agents been guilty of negligence causing the loss (a), are entitled to recover damages. Such persons are usually of one or other of the following classes: owners of the injured ship, whether they are registered as owners or not (); passengers, master, or crew losing their clothes or effects (c); owners or consignees of cargo on board either ship; persons entitled under Lord Campbell's Act to recover damages for relatives killed (d), or persons on board either ship who are hurt in the collision (e); the indorsee of a bill of lading, even though the cargo has been sold (ƒ); bailees, and other persons having a special property in, or temporary possession of, the ship or cargo (g). It seems that part owners of the injured ship might consolidation recover damages for their respective losses in successive of actions. (a) As to the division of loss in cases where both ships are in fault, see below, p. 125. (b) The Ilos, Sw. 100. (c) The Cumberland, 5 L. T. N. S. 496. As to a passenger by ferry in charge of his own mare, see Willoughby v. Horridge, 12 C. B. N. S. 742. (d) 9 & 10 Vict. c. 93; infra, pp. 122, 144. A posthumous child may recover for the loss of its father: The George and Richard, L. R. 3 A. & E. 466. (e) As to members of the crew so hurt, see The Borodino, 5 L. T. N. S. 291; Taylor v. Dewar, 2 B. & S. 58. (f) The Marathon, 40 L. T. N. S. 163. (g) The Minna, L. R. 2 A. & E. 97. In an American case full damages were recovered for a collision, although all interest in the injured ship had been transferred to a foreigner, whereby the ship was forfeited to the State: The Nabob, Brown, Ad. 115. actions (h); and the defendant would not, it seems, be entitled to have the other co-owners added as plaintiffs, at any rate without their consent in writing, nor to have the proceedings stayed until this was done, so that he should not be vexed by more than one action (i). If a part owner dies after the collision and before action brought, the right of action survives to the other part owners (k). must sue in name of The underwriters upon a ship, A., sunk by collision Underwriters with B., cannot sue B. or her owners in their own names. Their only right of action is by subrogation to the rights assured. of the owners of A.; and they must sue in the names of the owners of A. (1). owner of in fault can There was formerly doubt whether a person injured on Person or board a ship which is herself in fault can recover at common goods on law. This doubt, originating in the well-known case of board ship Thorogood v. Bryan (m), has lately been set at rest by the recover. House of Lords in The Bernina (No. 2) (n). Thorogood v. Bryan was there overruled. It had never been recognized as law in the Court of Admiralty, Dr. Lushington having held that, Thorogood v. Bryan notwithstanding, the owners of cargo on board a ship in fault could recover half their loss against the other ship being also in fault (0). Thorogood v. Bryan was decided in 1849 by a very Thorogood v. strong Court (Coltman, Vaughan, Williams, Maule, Cress- Bryan. well, JJ.). It held that the representatives of a passenger in an omnibus, who was killed by the combined (h) Addison v. Overend, 6 T. R. 766; Sedgworth v. Overend, 7 T. R. 280. (i) Ord. XVI. rr. 2, 11. Jackson v. Kruger, 54 L. J. Q. B. 446; Tryon v. The National Provident Institution, 16 Q. B. D. 167. (k) See Rex v. Collector of Customs, 2 M. & S. 225; Martin v. Crompe, 1 Ld. Raymond, 340. (1) Simpson v. Thompson, 3 App. Cas. 279. (m) 8 C. B. 115; Cattlin v. Hills, ibid.; 1 Smith's Leading Cases, V. 8th ed. 316. See also Armstrong (n) Nom. Mills v. Armstrong, 13 (0) The Milan, Lush. 388; The City of Manchester, 5 P. D. 3; ib. 221. negligence of the driver of the carrying omnibus and the driver of another omnibus, could not recover against the employer of the latter driver. The negligence in the carrying omnibus consisted in setting the passenger down in the middle of the street, and not drawing up to the kerb; the negligence in the other omnibus was carelessly driving over the passenger after he had been set down. The ground of the decision was that the passenger was "identified" with the driver of his own omnibus in the matter of negligence, and therefore, having by his own (i. e. his driver's) negligence partly caused the accident, he could recover nothing. This case, though often questioned, did not come before a higher Court for review until 1888, The Bernina. when The Bernina (nom. Mills v. Armstrong) came before the House of Lords. In the Courts below, Butt, J. (11 P. D. 31), had reluctantly followed Thorogood v. Bryan; the Court of Appeal (12 P. D. 58) reversed the decision of Butt, J.; and the House of Lords (Lords Herschell, Watson, Macnaghten, and Bramwell, the latter with some doubt), affirmed the decision of the Court of Appeal. The facts in The Bernina were that Toeg, a passenger, and Armstrong, an engineer on board The Bushire, were killed in a collision between The Bernina and The Bushire, caused by faults in both vessels, but without fault in Armstrong or Toeg. It was held that the representatives of Toeg and Armstrong could recover full damages against the owners of The Bernina. Lords Herschell and Watson delivered opinions strongly against the identification theory upon which Thorogood v. Bryan was decided. Lord Bramwell was of opinion that Thorogood v. Bryan was rightly decided upon a point of pleading, namely, that whereas the plaintiff alleged that the defendant's negligence caused the injury, the fact was that the accident would not have happened but for the negligence of the driver of the carrying omnibus. Having been decided upon the point of pleading, Lord Bramwell held that Thorogood v. Bryan |