the absence of reasonable care and maritime skill, on the part of the crew of the ship sued.1 If there has been a departure from any important rule of navigation, and the absence of observance can by any possibility have contributed to a collision, the party in default cannot be excused." Where a reasonable doubt exists as to the cause of the collision, the Court will regard it as the result of accident. And if cross actions are brought to recover damage which was occasioned by inevit able accident, both actions will be dismissed." Inevitable accident is such as could not have been prevented by the exercise of ordinary care, caution and maritime skill.* The common carrier by water is, and always has been, exempt by the common law from losses occasioned by the natural accidents peculiar to the sea; therefore, the shipowner will not be responsible for any loss, either to the ship, or cargo, arising from collision where no blame is imputable to his vessel, it being held that such losses come within the exempted clause, "dangers or perils of the sea."" But a collision arising from the negligence of the crew of the ship in which the goods are carried, is not "a peril of the sea," within the meaning of an exception of "loss arising from perils of the sea. The Mary Stewart, 2 W. Rob. 214; Hammack v. White, 31 L. J. C. P. 129; Scott v. The London Dock Co., 34 L. J. Ex. 220. 4 2 The Arklow, L. R. 9 App. Cas. 136. 3 The Shannon, 1 W. Rob. 463; The Ebenezer, 2 W. Rob. 206. * The Virgil, 2 W. Rob. 201; The Marpesia, L.R. 4 P.C. 212; The Pladda, L. R. 2 P. D. 34; The Uhla, 19 L. T. N. S. 89. 5 Smith v. Scott, 4 Taunt. 125; The Kathleen, L. R. 4 A. & E. 269. The shipowner will therefore, in such case, be liable to the shipper for loss or damage to his goods resulting from such collision.1 It is now settled that the owner of cargo lost by a collision, is not in eadem conditione with the owner of the vessel, as to his right to recover; for though both ships are to blame, the owner of the cargo not having any control over the blameworthy master and mariners of the vessel upon which his goods are carried, ought not to suffer for the breach of the rule; he is innocent, and the master, who is the guilty party, is not his servant." The owner of the cargo, in case of loss or injury to his goods by collision, has his remedy by action, where both vessels are in fault, against either one or both; but he cannot recover, if he proceeds against one only of two delinquent ships, more than a moiety of the damage, because it is impossible in practice to affix to the vessel proceeded against, more than a moiety of the blame, and the owner is therefore left, with respect to the other half of his loss, to his remedy against the other vessel which is equally delinquent.3 The Admiralty Court rule that in cases of collision the damages are to be equally divided where both ships are to blame, does not apply to actions for breach of contract of carriage, brought by owners 1 Grill v. Gen. I. S. Coll. Co., L. R. 1 C. P. 600; L. R. 3 C. P. 476. The Milan, 31 L. J. Ad. 105, approved in The City of Manchester, L. R. 5 P. D. 221. 3 Ookerda Poonsey v. S. S. Savitri, I. L. R. 10 Bom. 409; The Milan, 31 L. J. Ad. 111. Holidays. of cargo against the carrying ship, to recover damages for loss of, or injury to, their goods, and hence the plaintiffs in such actions are entitled to recover their full damages from the owners of the carrying ship.' Where cargo is lost in a collision, and the owners bring a suit to recover its value, the damages must be computed by taking the price paid at the port of shipment, and adding the expense of lading it on board, and of navigating the vessel to the place of collision; with interest on such account from the date of collision.2 Part IX. of the Merchant Shipping Act, 1851,3 which limits the liability of the shipowner for damages to an extent beyond the value of his ship, and the freight due, or to grow due, in respect of such ship during the voyage, does not apply to foreign ships; therefore, where a foreign ship is to blame in a case of collision, her owners are responsible to the full extent of the damage done, though exceeding the value of the ship and freight.1 If a local holiday is not observed as a holiday by those who are loading or discharging the ship, it will count as a working day.5 Where "holidays" are expressly excepted, and the ship is foreign to the place at which the work is being done, there may be a doubt, as to whether The Bushire, 52 L. T. 740. 2 The Ocean Queen, 2 Asp. M. L. C. 419. 3 17 & 18 Vict. c. 104, Cope v. Doherty, 27 L. J. Ch. 600; The Victor, 29 L. J. Ad. 110. the holidays referred to are those at the port, or those usually observed by the ship, or both. As the exception is for the protection of the charterer, it presumably relates to holidays at the port. On the other hand, as days upon which the crew fail to do their part in the work, ought not to be counted against the charterer, it is not necessary to make the word include ship's holidays. Probably, therefore, ship's holidays should be counted as working days, if the crew are in fact ready to work, and if there is no holiday on shore.1 Where the words in the charter-party were, " loading and discharging the ship as fast as the steamer can work, but a minimum of seven days to be allowed merchants," it was held that the seven days must mean working days, exclusive of Sundays." Perils of the The following clause is inserted in nearly all Dangers and charter-parties:— "All and every other dangers and accident of the seas, rivers, land carriage, and navigation of whatever nature or kind soever excepted." In his work on "Perils of the Sea," Mr. Bailey defines them as "all losses caused by the action of wind and water, acting on the property insured under extraordinary circumstances, either directly or mediately, without the intervention of other independent active external causes." The words, perils of the seas," embrace all kinds of marine 1 Carver on Sh. p. 624. 2 The Commercial S. S. Co. v. Boulton, L. R. 10 Q. B. 346, Sea. casualties, such as shipwreck, foundering, stranding, &c., and every species of damage done to the ship or goods at sea by the violent and immediate action of the winds and waves, not comprehended in the ordinary wear and tear of the voyage, or directly referable to the acts and negligence of the assured as its proximate cause.1 The action of the sea itself is one of the causes contemplated. Whether the damage is done by the sea water getting into the ship, and coming directly into contact with the goods; or, indirectly, by the waves beating on the ship, and so injuring her as to prevent or delay the voyage, or causing her to roll, or strain, with the result that the goods become displaced and damaged, these are all losses by dangers of the sea. Wharton, (referring to Jones on Bailments, p. 98) in defining "perils of the sea," says:-" They are strictly the natural accidents peculiar to the water, but the law has extended this phrase to comprehend events not attributable to natural causes, as captures by pirates, and losses by collision, where no blame is attributable to either ship, or, at all events, to the injured ship. The word "peril," like periculum, from which it is derived, is in itself ambiguous and sometimes denotes the risk of inevitable mischance, and sometimes the danger arising from the want of due circumspection." Kent says:-"Perils of the sea denote natural accidents peculiar to that element, which do not 1 Arnould on M. I., 6th Ed. Vol. 2, 744. |