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taires), it seems that neither can recover; ibid. § 109. The case of inevitable accident is complicated by attempts to attribute the collision partly to "force majeure," and partly to negligence; ibid. $ 94.
By the Belgian Commercial Code of 1879 (Bk. II., Art. 228), Belgium, the loss in cases of pure or inevitable accident lies where it falls; where both ships are in fault the sum of the damages is borne by both in amounts proportional to the blame of each. (Art. 229.)
The law in Germany as to the incidence of loss in the four Germany, cases of collision seems to be the same as that of this country; except that where both ships are in fault, neither can recover. See German Commercial Code, Arts. 736—741.
By the Dutch Code, where both ships are in fault, and also Holland, when the collision occurs without fault in either ship, each bears her own loss. If there is doubt whether the collision was caused by the fault of one or both ships, or not, the aggregate loss upon both ships and cargoes is made good by a general average contribution between the owners of ships and cargoes. Where a ship under way goes foul of another at anchor, even if the collision is an inevitable accident, the ship under way has to pay half the loss. These rules apply only to sea-going ships, and not to inland navigation. See the Commercial Code of Holland, Arts. 534—540, 756.
By the Italian Commercial Code of 1883 (Bk. II., Arts. Italy, 660, 662), if a collision is the result of accident or force majeure, the loss lies where it falls. If it cannot be decided which ship is to blame, or if both are to blame, each ship bears its own loss, and is liable for the whole of the damage and loss to goods shipped, and for the compensation for personal injuries.
The provisions of the Spanish Code of 1886, on these Spain, points (Bk. III., Arts. 826, 827), are substantially similar to those of the Italian, except that the clause relating to personal injuries is omitted. This Code (Arts. 826, 837) imposes on the owner of the ship, by whose fault the collision was occasioned, the responsibility which under the former Code seems to have attached only to the actual wrongdoer (a).
(a) See 2nd ed. of this work, p. 163.
The provisions of the Portuguese Code of 1888 are similar as regards collision occasioned by accident or force majeure to those of Belgium; as regards cases of doubt or both to blame, to those of Italy.
The Russian Code is not clear as to the incidence of loss. Where the collision is an inevitable accident, and where both ships are in fault, it seems that the loss rests where it falls ; Arts. 835, 845. But in some cases the total loss on the ships, though not on cargo, is borne by the two rateably; Art. 847. See Russian Code, Arts. 835—848 (a).
By the Codes of Norway (Art. 80) and Sweden (Art. 172), the law as to incidence of loss is the same as that of this country ; except where both ships are in fault, in which case the Court decides, according to the nature of the fault and other circumstances of the case, whether any damages are to be paid by one ship to the other, and their amount.
By the Code of Egypt (Art. 242), the law is the same; except in the case of both ships being in fault. In that case the loss is made good by the two ships in proportion to their respective values-proportionnellement d leur valeur respective.
Art. 2360 of the Civil Code of St. Lucia divides the loss where the cause of collision is doubtful; and also where both ships are in fault.
By 43 Vict. c. 29 (Canada) the rule of division of loss is applied to the common law Courts. It applies to collisions between rafts as well as between ships.
(a) A new code (see Nautical Magazine, 1884, p. 944) has been promulgated in Russia, to which the writer has not had access. Its effect is substantially the same, upon the point under consideration, as the former code, which is that referred to in the text. Since the first publication of this work, the articles of the foreign codes here summarized have been collected and set out at length in an
article published in the Nautical Magazine, 1881, p. 537, entitled “The Law of Damages caused by Collisions at Sea,”
by F. W. Raikes, Esq., LL.D. The statements in the text as to the codes of Norway and Sweden are taken from that article.
Translations by the same learned author of the recent Codes of Belgium, Italy, and Spain (the last-mentioned still unfinished) have appeared in various numbers of the Law Magazine of 1884— 1891. The references to these Codes are derived from those translations, and the present writer is indebted to the courtesy of the translator for his information regarding the Code of Portugal.
LIMITATION OF LIABILITY.
In this country the limitation of shipowners' liability Limitation of depends entirely upon statute. It is said by writers of liability is
statutory. authority that by the maritime law the shipowner's liability for collision is limited to the value of ship and freight (a). Whether such a rule of the maritime law (6) ever existed, Maritime and it is immaterial here to inquire. No such rule has ever
foreign law been recognized by the Courts of this country, either at subject.
(a) 3 Kent's Comm. § 218; 4 Phillimore's International Law, 2nd ed. 628 ; Valin sur l'Ordonnance de la Marine, l. 2, tit. 8, Art. 2; Cours de Droit Comm. Mar. Boulay-Paty, vol. i. 263298; Pardessus Droit Commercial, Part 4, tit. 2, ch. 3, s. 2 ; Emerigon Cont. à la Grosse, ch. 4, s. 11; and see per Bradley, J., in The Jos. W. Dyer v. The National Steamship Co., 14 Blatchf. 483, 487; and per Ware, J., in The Rebecca, Ware's Rep. 188, 195, 198; The Phebe, Ware, 263. The Consolato del Mare, cap. 141, provides that in certain cases the ship herself, and the managing owner, shall be liable to the merchant for the loss of his goods, but the other owners only to the extent of their shares : “E si la nau no bastava, e lo Senyor de la nau havia bens e altre loch, deven se n' vendre tanto en tro que l' mercader sia entregrat; mas los personers no sien tenguts sino tant solament d'aco que la part valra que
hauran en la nau." So, again, ib. cap. 182, if the merchant's goods are injured
by reason of insufficient ground
Upon contracts with reference to
(6) As to whether a general maritime law binding upon the Courts of this country ever in fact existed, see per Willes, J., Lloyd v. Guibert, L. R. 1 Q. B. 115, 124 ; per Brett, L. J., The Gaetano, 7 P. D. 143 ; The Leon, 6 P. D. 148; The Patria, L. R. 3 A. & E. 436, 461, 462.
common law or in Admiralty (c). By the municipal laws of Holland, France, and other continental nations, the liability of shipowners not only for the torts but also for the contracts of the master of their ship, has for more than two centuries been limited to the value of the ship and freight (a). It is perhaps due to this fact that limited liability has been said to be a principle of the general maritime law. But its origin cannot be traced either to the Roman law or to any of the medieval codes of maritime law. In both these systems it is either clearly implied or expressly stated that the wrong-doer in a collision shall make full compensation (e).
(c) See The Dundee, 1 Hag. Ad. if the collision is accidental, “no li 109, 120; The Carl Johann, referred sia tengut de esmenar tot lo dan to 3 Hag. Ad. 186 ; The Aline, 1 W. per ceo car no es sa culpa ; Rob. 111; The Volant, ib. 383; The and see ibid. cap. 158, to the like Mellona, 3 W. Rob. 16, 20; The effect. Wild Ranger, Lush. 553, 564; il- The language of the codes of son v. Dickson, 2 B. & Ald. 2; Gale Northern Europe is the same : v. Laurie, 5 B. & C. 156, 164; Dat Gotlandsche Water-Recht (the Cope v. Doherty, 4 K. & J. 367, Wisbuy Sea Laws), Art. 29 : De 378; Stoomvaart Maatschappy Neder. schipper is schuldich myt synen schjlands v. Peninsular and Oriental pluden to delende den schaden mank Steam Navigation Co., 7 App. Cas. sik. The Laws of the Osterlings 795, 814. The dictum of Parke, (Hamburgh Code), Art. 23: unless B., in Brown v. Wilkinson, 15 M. & the master of the ship that does the W. 398, appears to be incorrect. damage swears that he did it un.
(d) Emerigon Contr. à la Grosse, wittingly, he schal eme gans den scha. ch. 4, s. 11; Boulay-Paty Cours den beteren ; 4 Twiss' Black Book, de Droit Commercial Maritime, 373; and in like case by the Gotvol. i., pp. 263—298. See also The land Code, Art. 65, 80 schal hre eme Mary Ann, L. R. 1 A. & E. 8, 11; den schaden al heb gelden. And by and the articles of foreign codes the Flanders Sea Laws, Art. 16, cited at the foot of this chapter. the master who lays out his anchor
(e) As to liability for collision by so as to damage another ship, si the Roman law, see Dig. lib. 4, siin dat wel sculdich te beteren; and tit. 9; Dig. lib. 44, tit. 7, fr. 5; Art. 31 of the Gotland Code in like Dig. lib. 45, tit. 5, fr. 1; 3 Kent's case he is schuldich to beterende ; 4 Comm. 218; per Ware, J., in The Twiss' Black Book, 88. So the Phebe, Ware's Rep. 263; Loccen- rule as to dividing the loss assumes tius, c. 8, s. 11.
that, but for it, the ship run down As to the medieval codes, the would recover alle die schade (FlanLaws of Oleron, Art. 15, clearly ders Code), alle den schaden (Gotland assumes that the wrong-doer shail Code, Art. 30, 4 Twiss' Black Book, pay full damages-tous ses dommages 88). In the Instructions to the — tot ses danmatges ; see 1 Twiss' Admiral in the Black Book of the Black Book, 108; ibid. vol. ii., Admiralty, dating circ. 1337–1351 pp. 229, 449. So the Consolato del
(1 Twiss, 37), the wrong-doer in a Mare, cap. 155: “E si dan li fa, collision is to make plaine amende. dculo li tot esmenar e restituar," but
The contract of commande, or joint adventure of ship- It originated owners and merchants, corresponding in some respects to perhaps in the société en commandite, or partnership with limited liability, of modern times, is perhaps the origin of the widespread doctrine of limited liability of shipowners. This kind of association extensively prevailed in the Mediterranean in the Middle Ages, and is frequently mentioned in the Consolato del Mare (f). As regards third parties, it seems that the liability of the shipowner upon contracts entered into by his agent, or committee in such an association, with reference to the ship, was limited to the value of the ship (g).
It is not until the beginning of the seventeenth century Protection is that we find protectionist doctrines put forward upon it. So avowed grounds of public policy as a reason for limiting ship- by Grotius. owners' liability. Grotius, writing in the year 1625, says that the principle of limitation of owners' liability upon the contracts of the master prevailed in his day, and for a long time previously had prevailed in Holland (1). And he approves the principle as being consonant with natural justice, and necessary for the encouragement of shipping (i). Liability for collision is not expressly noticed, but the policy of protection, which limited liability in the case of his contracts, no doubt applied equally to protect owners from liability for their master's torts. The rule of continental law which limits the shipowner's liability upon his master's contracts, has never been adopted in England;
(5) See 6 Pardessus Lois Mari. (h) De Jure Belli et Pacis, 1. 2, times, tit. Commande, Index. ch. 11, s. 18: “ Apud Hollandos
(9) Cf. Consolato del Mare, cap: ubi mercatura pridem maxime vi. 241 : “Qui la dita nau o leny li guit ... et nunc et olim constihaura comanat, los es tengut di tot tutum ne exercitoriâ etiam universi lo, dit dan e greuge a restituir, si (exercitores) amplius teneantur la dita nau o leny ne sabia esser quam ad æstimationem navis, et venut, ab que per culpa d'aquell a eorum quæ in navi sunt." qui ell haura la dita nau o leny (i) “ Absterrentur enim homines comanet, los sia es devengut lo dit ab exercendis navibus si metuant ne dan o greuge.''
A similar provi- ex facto magistri quasi in infinitum sion as to the sale of the ship is tencantur:”: ibid. contained in cap. 209.