(Ss.)1. Of the Civil and Maritime Laws respecting it. 2. Law and Practice of the Court of Admiralty-Causes of Collision. 3. French Regulations. 4. Law of England. 1. The master is bound to his owners for the exercise of reasonable skill and care in the management of the vessel, and he and they are bound in like manner to every one who is affected by his acts, within the scope of his employment (a). The property of the merchant in particular is entrusted to his care, and he and his owners must answer for its damage or loss, through his negligence or misconduct. Mindful of this responsibility, he must, during the whole course of the voyage, at sea, at anchor, and in port, even when a licensed pilot is on board (b), (1) be vigilant to avoid the peril of collision with another vessel. (2) (a) A wanton trespass by the master is not an act within the scope of his employment, and his owners are not answerable for it. See the Druid, 6 Jurist, 441, and the cases there cited. (b) * The Girolamo, an Austrian vessel, left the London Docks, with a licensed pilot on board, towed by a steam vessel. After she had passed Blackwall, a fog came on, during which she ran foul of the (1) See ante, 210, note; Yates v. Brown, 8 Pick. 23. The owner of a brig towed by a steamboat, over which those in the brig have no control, is not liable for the damages consequent on a collision between the brig and another vessel, occasioned by the negligence of the master and crew of the steamboat. Sproul v. Hemmingway, 14 Pick. 1. See Reeves v. The Ship Constitution, Gilpin, (2) In a collision between two vessels, where it appears that one of them had neg *This misfortune may be occasioned by circum- [† 229] stances beyond his control, as by the violence of the wind and the sea; it may be accidental without fault on either side, or it may be caused by the negligence, ignorance, or unskilfulness of one, or both the captains whose vessels come into collision. By the law of most of the maritime (c) states, differing in this particular from the Roman law, which leaves each party to bear his own loss, the cost of damage resulting from collision, without fault in the persons belonging to either ship, is to be divided equally between them. The same rule obtains when both vessels are to blame, and when the blame cannot be detected. One article of the Ordinance of Wisbuy (d), seems to favor the interpretation of this rule of equal division, in the sense of a pro ratâ apportionment of the expense of repairs between the colliding vessels, according to their relative value, and the Hanseatic Ordinance provides, that the damage be sustained *"æquis sortibus juxta arbitrium virorum bonorum (e). Edward, a British convict vessel, moored below Woolwich, in the proper berth for such vessels. Sir John Nicholl said, "Did the accident arise from the neglect, default, incompetency, or incapacity (6 Geo. 4, c. 125, s. 53, 54) of the pilot? or was the master in pari delicto? It occurred from the vessel going on in the fog, not from an act of bad steerage, want of knowledge of shoals, or any incapacity as pilot, but from proceeding at all. It seems to be nearly admitted, that if the vessel had set off in this fog, blame would have been imputable to the master; if so, was he not blameable in going on in the fog? Had he not a right to resume his authority? Did he not owe it to his owners, and to other persons, whose property might be damaged by a collision, to insist on bringing the vessel up? Was not the master in duty bound at least to remonstrate with the pilot, and to represent the danger of proceeding? Yet he says in his affidavit, 'he did not in the least interfere.' In this aspect the case is, as far as I am aware, new, and one of too much difficulty to arrive at any hasty decision upon, unless there be no other points upon which the case may be disposed of." 3 Hagg. Ad. Rep. 176. See also the Protector, 1 W. Rob. Rep. 45; The Diana, 1 W. Rob. Rep. 131; Stuart v. Isemonger, P. C. 6 Jur. 157.* (c) See post, p. 4, c. 10, s. 10, and the authorities there cited by the author; but see Commentaries on the Law of Scotland, by Bell, vol. 1, p. 582, and Cours de droit Commercial Maritime, by Boulay Paty, tit de l'Abordage, vol. 4, p. 492. Both these learned authors appear to think, that in cases of pure accident, the rule of the maritime law and of the civil law is the same. (d) The 67th. (e) Jus. Marit. Hanseat. tit. 10, art. 1, on which Kuricke ad. Dict. tit. p. 220, (Edition Heineccii, p. 801), observes, lected an ordinary and proper measure of prevention, the burthen is on her to show, that the collision was not owing to her neglect, but would have equally happened, if she had performed her duty. Clapp v. Young, Dist. Court U. States, Boston, Mass., Admiralty, 1843, 6 Law Rep. 111. And, generally, the libellant in a case of collision must prove not only negligence on the part of the respondent, but ordinary care on his own part. Bulloch v. Steamboat Lamar, Cir. Ct. U. S., Georgia, May, 1844, Savannah, Admiralty, 8 Law Rep. 275. > * Valin, adverting to the doubt thus created, and citing the laws of Oleron, Kuricke, on the Hanseatic Ordinance, Vinnius and Stypmann as authorities, states the better opinion to be, that the damage should be borne in equal portions, that is, each paying half (ƒ). This also in its terms (g), and according to Valin's construction of them, is the provision of the French Ordinance. We read, on the other hand, [† 230] tin Emerigon (h), that "if the collision has not happened fortuitously, and it is impossible to learn to whose fault it is imputable, then each vessel shall bear a moiety of the damage," thus confining the rule to cases of inscrutable fault. By the Code de Commers (i), it is expressly limited to doubtful cases, the loss occasioned by collision purely fortuitous, being allowed to rest where it has happened to fall. "If it be proved," says Pardessus, "that both vessels are to blame, each party bears his own loss. But if it be impossible to say whose fault has occasioned the collision, an estimate is made of the injury done to both the colliding vessels, the amount of which is to be borne by them in equal moities, and not proportionably to the value of each ship and cargo" (j). 2. Our Court of Admiralty, before which misfortunes of this kind are frequently the subject of discussion, adopts, when both vessels are in fault, the rule of the maritime law, and, accordingly, in the case of the Woodrop, Sims (k), Lord Stowell lays it down, that there are four possibilities under which collision may occur. "In the first place it may happen without blame being imputable to either party, as where the loss is occasioned by a storm or any other vis major. In that case the misfortune must be borne by the party on whom it happens to light; the other not being responsible to him in any degree. (I) Secondly, a misfortune of this kind may arise, where both parties are to blame, * where there has been want of due diligence or of skill on " neque enim dum in casu hoc, pro medià parte quisque contribuere tenetur ullum inde commodum resultare potest." The same rule is followed in the Danish, Swedish, Prussian, Lubeck, and Hamburgh laws. By the Norwegian code, when one vessel, without necessity, strikes against another, it is liable to fines, which vary in amount according to the nature and locality of the injury done to the suffering ves sel. See Pardessus Collection de Lois Maritimes. (f) Valin. liv. 3, tit. 7, des Avaries. (h) Traité d'Assurance, c. 12, s. 4. (j) Cours de droit Commercial, de l'Abordage, pl. 652. Boulay Paty, vol. 4, p. 495. (k) 2 Dods. Ad. Rep. 83. (1) See Story, Bailments, § 603; Reeves v. The Ship Constitution, Gilpin, 579; 3 Kent, (5th ed.) 231. > *both sides; in such a case, the rule of law is, that the loss must be apportioned between them, as having been occasioned by the fault of both of them. (1) Thirdly, it may happen by the misconduct of the suffering party only; and then the rule is, that the sufferer must bear his own burthen. (2) Lastly, it may have been the fault of the ship which ran the other down, and in this case the innocent party would be entitled to an entire compensation from the other." (3) This rule of equal division, where both vessels are to blame, has been solemnly recognised by the House of Lords, in a case decided there on appeal from the Judgment of the Court of Session in Scotland (1). In that tcase the [† 231] ship Wells had been endeavoring to make her way into the Firth of Forth, and had come to an anchor in consequence of the state of the weather, in what is termed the Fairway, that is, in that part of the Firth which is constantly navigated by vessels, at some distance from the island of Inchkeith. During a very blowing night, whilst she was in *this position, the ship Sprightly came suddenly upon her, (1) Hay v. Le Neve, 2 Shaw's Scotch Appeal Cases, p. 395. The learned author of the articles on mercantile law, (Law Magazine), questions the existence, in the Court of Admiralty, of the rule of apportionment, in the sense of equal division of the loss. It seems clear, from the address of Lord Gifford in the case cited, that not only he, but Lord Stowell also, so understood it. (1) See Story, Bailments, § 608 a. ; Reeves v. The Ship Constitution, Gilpin, 579 3 Kent, (5th ed.) 231. But, according to the English and American rule in the courts of common law, if there be fault or want of care on both sides, or no fault on either side, neither party can sue the other. Vanderplank v. Miller, 1 Moody & Mal. 169; Vennall v. Garner, 1 Crompt. & Mees. 21; Simpson v. Hand, 6 Wharton, 311; Story, Bailments, § 608 a. note (5), and cases cited; 3 Kent, (5th ed.) 231; The De Cock, High Court of Adm. July 2, 1839, 22 Amer. Jurist, 464. Respecting the case where there has been some fault or neglect ; but on which side the blame lies, is inscrutable, or is left by the evidence in a state of uncertainty, see Story, Bailments, § 609, and notes; 3 Kent, (5th ed.) 231. (2) Story, Bailments, § 608 b. (3) Story, Bailments, § 608 c; Reeves v. The Ship Constitution, Gilpin, 579; 3 Kent, (5th ed.) 230; Hale v. Wash. Ins. Co., 2 Story, C. C. 176. In cases of collision, where a loss is caused by the fault of one of the ships only, the general maritime law exacts a full compensation to be paid out of all the property of the owners of the guilty ship, upon the common principle applied to persons, who undertake the conveyance of goods, that they are answerable for the conduct of the agents whom they employ; and the other parties, who suffer the damage, place no trust in these agents, and can exercise no sort of control over their acts. To this rule England for a long time conformed. But Holland having, for the protection of its own navigation, limited the remedy against the owner to the value of the ship, freight, apparel, and furniture, England has recently followed the example, and established by statute a like limitation. In America no positive enactment has been made; and therefore the responsibility of the guilty ship and its owners stands upon the general maritime law. Story, Bailments, § 608 d. > * and the Wells was run down, and, with her cargo, totally lost. A proceeding was instituted before the Judge Admiral by the owners of the ship Wells, against the owners of the ship Sprightly, and interlocutors were pronounced by him, the result of which was, to make the owners of the ship Sprightly liable to the full extent of the damage of the Wells and of her cargo, subject to the limitation of the Act of Parliament, as to the amount of the value of the ship occasioning the loss, and her freight; the Judge Admiral being of opinion, that the fault rested entirely with the Sprightly. The cause was removed to the Court of Session, which referred the evidence to the Port Admiral at Leith, who reported, that although fault was imputable to both vessels, he thought the greater blame rested on the ship Sprightly. In consequence of this report, the Court of Session, deferring to the authority of the English Court of Admiralty in the case above cited, altered the decision of the Judge Admiral; and the question came before the House of Lords, on appeal from the judgment of the Court of Session. Lord Gifford, in his address to the House of Lords, states, that he had been furnished by Lord Stowell with a note of a case in which he was counsel, and of which the judgment entered up in the Court of Admiralty had been found. It was the case of the Petersfield v. The Judith Randolph, decided by Sir James Marriott, in 1789. It is as follows; "For further information and sentence, Captain Hector Rose and Captain Henry Hinde Petty, two of the elder brethren of the Trinity House, again attended as assessors to the judge in this cause, and the judge having heard the proofs read and advocates and proctors on both sides, and likewise the opinion of the said Trinity brethren, pronounced that both ships were in fault, and that the Judith Randolph was most in fault, and decreed that the whole damage sustained by the [232] owners of the ship Petersfield and her cargo, which was sunk and lost, as well as the damages and expenses given against the ship Petersfield, and the costs of suit here, on both sides, be borne equally by the parties in this suit." "I apprehend, therefore," added Lord Gifford, "that what is laid down in the case of the Woodrop, Sims, is established to be the law of the Court of Admiralty. I have no difficulty in recommending to your Lordships to apply to this case the Judgment of Sir James Marriott in the case of the Judith Randolph. If your Lordships were to take any other rule, one cannot conceive any mode of properly appor*tioning the loss which the Court of Session have found to |