Limitation of liability of dock-owners, harbour authorities, &c. Merchant Shipping Act, 1894, has recently been extended and applied to all cases where, without their actual fault or privity, any loss or damage is caused to property or rights of any kind, whether on land or water, or whether fixed or movable, by reason of the improper navigation or management of the ship (n), and is now also possessed by canal and dock owners and harbour and conservancy authorities, it being provided by the 2nd section of the Merchant Shipping (Liability of Shipowners and Others) Act, 1900, that the owners of any dock (0) or canal, or a harbour authority or conservancy authority, as defined by the Merchant Shipping Act, 1894 (p), shall not, where, without their actual fault or privity, any loss or damage is caused to any vessel or vessels, or to any goods, merchandise, or other things whatsoever on board any vessel or vessels, be liable to damages beyond an aggregate amount not exceeding eight pounds for each ton of the tonnage of the largest registered British ship which at the time of such loss or damage occurring is, or within the period of five years previous thereto has been, within the area over which such dock or canal owner, harbour authority, or conservancy authority performs any duty or exercises any power (4). A ship shall not be deemed to have been within the area over which a harbour authority or a conservancy authority performs any duty or exercises any powers by reason only that it has been built or fitted out within such area, or that it has taken shelter within or passed through such area on a voyage between two places both situate outside that area, or that it has loaded or unloaded mails or passengers within that area (r). The limitation of liability under the above sections of the Act of 1900 is to apply whether the liability arises at common law or under any general or private act of Parliament, and notwithstanding anything contained in such Act (s). not bound in such a case to come in and (n) 63 & 64 Vict. c. 32, s. 1, which Act is (0) M. S. (Liability of Shipowners and Others) Act, 1900 (63 & 64 Vict. c. 32), s.2, sub-s. 1. For the purpose of this section the term "dock" shall include wet docks and basins, tidal docks and basins, locks, cuts, entrances, dry docks, graving docks, gridirons, slips, quays, wharves, piers, stages, landing-places, and jetties; and the term "owners of a dock or canal" shall include any person or authority having the control of any canal or dock, as the case may be. M. S. (Liability of Shipowners and Others) Act, 1900 (63 & 64 Vict.), s. 2, sub-ss. 4, 5. (p) By the M. S. Act, 1894, s. 742, unless the context otherwise requires, the following expressions have the meanings thereby assigned to them, that is to say," Harbour authority" includes all persons or bodies of persons, corporate or unincorporate, being proprietors of or entrusted with the duty or invested with the power of constructing, improving, managing, regulating, maintaining, or lighting a harbour. "Conservancy authority" includes all persons or bodies of persons, corporate or unincorporate, entrusted with the duty or invested with the power of conserving, maintaining, or improving the navigation of a tidal water. Tidal water' means any part of the sea and any part of a river within the ebb and flow of the tide at ordinary spring tides and not being a harbour. (4) Nothing in this section is to impose any liability in respect of any such loss or damage on any such owner or authority in any case where no such liability would have existed if the Act had not passed. 63 & 64 Vict. c. 32, s. 2, sub-s. 6. () For the purpose of this section, the tonnage of ships shall be ascertained as provided by sect. 503, sub-sect. 2 of the M. S. Act, 1894, and the register of any ship shall be sufficient evidence that the gross tonnage and the deductions there. from and the registered tonnage are as therein stated. 63 & 64 Vict. c. 32, s. 2, sub-s. 2. (*) M. S. (Liability of Shipowners and Others) Act, 1900, s. 3. See supra, p. 90, n. (d). The jurisdiction possessed by the High Court of Justice in England, under the 504th section of the Merchant Shipping Act, 1894, to determine the amount to which liability is limited under the 8th part of that Act, and distribute that amount amongst the several claimants, with the other powers given by that section, is extended and applied by the Merchant Shipping (Liability of Shipowners and Others) Act, 1900, so as to enable that Court to entertain actions of limitation of liability instituted on behalf of harbour authorities, conservancy authorities, and the owners of docks and canals within that Act, it being provided by the 3rd sub-section of the 2nd section of the Act of 1900 that sect. 504 of the Merchant Shipping Act, 1894, shall apply to the 2nd section of the Act of 1900 as if the words " owner of a British or foreign ship" included a harbour authority and a conservancy authority, and the owner of a canal or a dock. to several The 3rd section of the Act of 1900 provides that the limitation Provisions as of liability under its provisions shall relate to the whole of any claims arising losses or damages which may arise upon any one distinct occasion, on one although such losses or damages may be sustained by more than one person. Prior to the coming into operation of the Judicature Act, 1873, the Courts of Common Law did not recognize the principles which regulated in the Admiralty Court the right to compensation for damages arising from collision; but by the 25th section of that Act, sub-section 9, it is enacted that in any cause or proceeding for damages arising out of a collision between two ships, if both ships shall be found to have been in fault, the rules hitherto in force in the Court of Admiralty, so far as they have been at variance with the rules in force in the Courts of Common Law, shall prevail (t). The four chief rules which guide the Court in cases of collision have been laid down by Lord Stowell in the following terms :-" There are four possibilities under which an accident of this sort 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. Secondly, a misfortune of this kind may arise where both parties are to blame; where there has been a want of due diligence or of skill on 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. Thirdly, it may (t) This sub-section has been held to apply to a claim for damage to cargo caused by a collision between ships. The Chartered Mercantile Bank of India v. The Netherlands Steam Co., 10 Q. B. D. 521. It has, however, no application in actions claiming damage for loss of life (The Bernina, 11 P. D. 31; 12 P. D. 58; 13 App. Cases, 1); or in actions for damage to cargo which, before the Judicature Acts, could not have been brought in the Court of Admiralty. occasion. Rules as to damages. First-in cases of accident. happen by the misconduct of the suffering party only; and then the rule is, that the sufferer must bear his own burthen. Lastly, it may have been the fault of the ship which ran the other down; and in this case the injured party would be entitled to an entire compensation from the other." With reference to the first rule it is to be observed that the presumption of negligence does not arise from the mere happening of a collision, and in order to fix the loss on the ship sued, the law requires evidence of the absence of reasonable care and maritime skill on the part of the crew (u). An inevitable accident is one of those accidents in navigation which no ordinary care, caution, or maritime skill could have prevented (r). Where a reasonable doubt exists as to the cause of the collision, the Court will dismiss the suit (w). Where cross actions are brought to recover damage (u) Evidence that the vessel whose owners are bringing the action was at anchor, with a proper light burning, in a proper place, and was run into by the vessel proceeded against has been held to afford sufficient proof, of the absence of reasonable care and maritime skill on the part of the defendants, so as to render them liable for the collision in the absence of their being able to show that the collision was caused by inevitable accident. The Annot Lyle, 11 P. D. 114; The Indus, 12 P. D. 46. See also The Meanatchy, [1897]A. C. 351, and the observations of the Judicial Committee of the Privy Council in that case as to the obligation cast upon a vessel at anchor to keep a competent person on watch, whose duty it is not only to see that the anchor, light, or lights are properly exhibited, but also to do everything in his power to avert or to minimize a collision. See also The Merchant Prince, [1892] P. 179: The City of Peking, 14 App. Cases, 40; The Scotia, 6 Asp. 541. (r) The Marpesia, L. R. 4 P. C. 212; The Schwan, The Albano, [1892] P. 419 ; The Merchant Prince, [1892] P. 179. See also The Annot Lyle, 11 P. D. 114; The Indus, 12 P. D. 46. Where the master of a ship takes all such precautions as a man of ordinary prudence and skill, exercising reasonable foresight, would use to avert danger in the circumstances in which he is placed, he is not to be held to have been guilty of the negligence because he may have omitted some possible precaution which the event suggests he might have resorted to. The William Lindsay, L. R. 5 P. C. 338. See The Pladda, 2 P. D. 34. A collision caused by the sudden breaking of the steering gear of a vessel, arising from a latent defect in the gear, was held to be an inevitable accident. The Virgo, 3 Asp. 285. But the owners of a ship will be held liable for a collision caused by the improper condition of the steering gear, if such improper condition arose from the negligence of persons employed to prepare the ship for her voyage, or from a neglect to exercise ordinary care in the overhauling of the machinery. The Warkworth, 9 P. D. 20 ; and see also The Viatka, Mich. Term. 1884 (Maritime Register, p. 774); The European, 10 P. D. 99, where the same accident to the steam steering gear had happened before, and the defendants were held liable: see also The Turret Court, 69 L. J. Prob. 117. (w) "The result of the evidence will be ... either a conviction in your mind that the loss was occasioned by accident, in which case it must be sustained by the party on whom it has fallen; or a state of reasonable doubt as to the preponderance of evidence, which will have nearly the same effect." Per Sir C. Robinson, The Catherine of Dorer, 2 Hagg. 154. See also The Frigorifique, Easter Term, 1884 (Maritime Register, p. 341), in which case both claim and counterclaim were dismissed. "With regard to inevitable accident, the onus lies on those who bring a complaint against a vessel, and who seek to be indemnified-on them is the onus of proving that the blame does attach upon the vessel proceeded against. The onus of proving inevitable accident does not necessarily attach to that vessel; it is only necessary where you show a prima facie case of negligence and want of due seamanship. Per Dr. Lushington, The Bolina, 3 No. Ca. 208; The Mary Stuart, 2 W. Rob. 244. See Hammack v. White, 31 L. J. C. P. 129; Scott v. London Dock Company, 34 L. J. Ex. 220; The River Wear Commissioners v. Adamson, 2 App. Ca. 743 The Bailiffs of Romney Marsh v. Trinity House, L. R. 5 Ex. 204, 7 Ex. 247. "In my apprehension, an inevitable accident in point of law is this: viz., that which the party charged with the offence could not possibly prevent by the exercise of ordinary care, caution, and maritime skill." Per Dr. Lushington, The Virgil, 2 W. Rob. 205. See The Peerless, Lush. 30; The Perseverance, Holt's Rule of the Road, 262; The Europa, 14 Jurist, 628. occasioned by inevitable accident, both actions will be dismissed (r). And where the cross claim is brought by way of counterclaim, a similar result will follow. It was the general practice of the Court not to give costs on either side in cases of inevitable accident (y); Costs. but since the coming into operation of the present rules of Court, in cases where either the plaintiffs or defendants have raised the defence on their pleadings that the collision, so far as they and their servants were concerned, was an inevitable accident (z), the Court, on the defence being proved, has, in the absence of special circumstances, been in the habit of giving the successful party the costs of the action (a). The second rule is founded upon the principle which from ancient times has been applied in the Admiralty Court, that damage occasioned by a common fault shall be considered as a common loss (b). If the owner of one ship bring an action against the owner of another ship for damage by collision, and both ships be found to blame, the party proceeding recovers only a moiety of his damage; if there is a cross action, or a counterclaim arising out of the same collision, the damages are divided, each party recovering half his own loss (c). The rule will apply although the fault (x) The Shannon, 1 W. Rob. 463. (y) The Itinerant, 2 W. Rob. 236; and the cases cited in the last note: The Ebenezer, 2 W. Rob. 206; The Buckhurst, 6 P. D. 152. But the Court has-and under the old practice had—a discretionary power to condemn in costs. Thus in a case where the Court considered that a plaintiff had good reason to think the collision was a mere accident, which could not have been avoided, and that he was unduly rash in bring ing his action, it condemned him in costs. The London, Br. & L. 83 ; and see The Thornley, 7 Jur. 660; see also The Innisfail, The Secret, 3 Asp. 337; The Virgo, Ib. 285. 66 () Such a plea seems to differ very little, if it at all, from a plea of absence of negligence, and where such a plea was set up and proved, the Court of Admiralty condemned the opposing party in costs. The origin of the rule of no costs" in inevitable accident cases may have been that each party was left to bear their own costs, not where inevitable accident was pleaded, but where, after charges of negligence had been made by both sides, the Court found that the collision had been due to inevitable accident. See The Batavier, 15 P. D. 37, where the old practice was followed. (a) The Monkseaton, 14 P. D. 51. See The Batavier, 15 P. D. 37; The Cawdor, 4 P. D. 115; The Naples, 11 P. D. 124, in which last-mentioned case the plaintiffs admitted on the pleadings that the collision was the result of inevitable accident. The Merchant Prince, [1892] P. 9, 179. In The Sardinian, Adm. Div., December 9, 1886, the Court dismissed (b) The Linda, 4 Jur. N. S. 147; The () "I will assume that A. and B. are the owners of two vessels worth respectively 10,000l. and 50,000l.; that they come into collision, and that both alike are to blame for the collision-that being a condition precedent to the equal division of the damages. "And first I will assume that A.'s vessel goes to the bottom, and that B.'s is uninjured-a not very unusual occurrence in collisions at sea. Then A., who has lost 10,000l. by the sinking of his vessel, would, under the Admiralty rule, both being to blame, be entitled to recover one-half of his loss, or 5,000l., from B. Secondlywhere both ships are to blame. Suit by owner of cargo. on the one side may be greater than the fault on the other, for the Court cannot apportion the damages according to the quantum of neglect on the one side and the other (d). The same rule applies where cargo is damaged by a collision arising from the joint fault of the ship in which the cargo is being carried, and the ship with which she comes into collision (e). The loss, being a joint loss, must be apportioned between the two ships, and therefore in an action in the Admiralty Division by the owner of the damaged cargo against the ship which came into collision with the carrying ship, only half the damages. sustained can be recovered (f). The other moiety of the damages can only be recovered from the owners of the carrying ship in cases where the terms of the contract of carriage do not prevent such recovery (g). The same of his damage. Each loses 30,0007.; A., by having to bear the loss of one moiety of his own vessel, or 5,0007., and by having to pay to B. 25,000l. for the moiety of his (B.'s) loss; and B., by having to bear the loss of one moiety of his own vessel, or 25,000l., and by having to pay to A. 5,000l. for a moiety of his (A.'s) loss. The mistake of those who think that the owner of a vessel worth 10,000l. might by a collision with a vessel worth 50,000l. receive under the Admiralty law no less a sum than 30,000l. as a compensation, arises from their supposing that the amount at stake is a common fund to be divided between two claimants, not a joint loss which has to be apportioned between them."-A Defence of the Rule of the Admiralty Court in cases of Collision between Ships, in a letter to the Right Honourable Lord Selborne by H. Cadogan Rothery, Registrar of the High Court of Admiralty, London, 1873. (d) See the observations of Lord Gifford in Hay v. Le Nere, 2 Shaw's Scotch Appeal Cases, 395; and The Judith Randolph, there cited. The Margaret, 9 App. Cas. 881, per Lord Blackburn; The Monte Rosu, [1893] P. 23; The Cap Tarifa, December, 1900, Adm. Court; The Khedive, 5 App. Cas. 876; The Margaret, 6 P. D. 76; The Beryl, 9 P. D. 137; and Marsden on Collisions, 2nd ed. p. 134 et seq., for an account of earlier cases in the Court. "Strict justice would say that the burthen of making good the loss should fall upon the two delinquents in proportion to their delinquency, but in practice the proportion is impossible to be ascer tained." Per Dr. Lushington, The Milan, Lush. 401. (e) "I apprehend that in carrying out this rule the Court of Admiralty must say, 'You, the innocent owners of cargo, proceeding against one only of two delinquent ships, shall recover only half your damage, because we can affix to the vessel proceeded against only half the blame, and you shall be left, with respect to the other half of your loss, to your remedy against the owner of the other vessel, which we hold to be equally delinquent.' Per Dr. Lushington, The Milan, Lush. 404. (f) The Milan, Lush. 404; The Consett, 5 P. D. 52. See also the dicta in The Laconia, Br. & L. 146, although in that case the Privy Council decided that neither vessel was to blame. Compensation cannot be recovered for damage done to cargo, unless the owner of the cargo, or the shipowner, as bailee of the cargo, is a party to the action; for restitution can be made only to those who bring their claims properly before the Court. The Saracen, 4 No. Ca. 509; The Minna, L. R. 2 A. & E. 97. In a case where the owners of a vessel and part of the cargo lost in a collision brought an action in the Admiralty Court against the wrongdoing vessel, and obtained a decree for the condemnation of the ship, and on the same day that the decree was pronounced the owners of the remaining portion of the cargo brought an action against the damaging vessel, and applied to the Court to be let in to participate rateably in the proceeds of the condemned ship; it was held that the Court could not in such a case decree a rateable distribution, and thereby take away the priority of the prior petens. The Saracen, 6 Moo. P. C. C. 56. (g) Where goods are carried under bills of lading, the terms of the bills of lading frequently protect the owners of the carrying ship from the consequences of the negligent navigation of the crew. The Chartered Mercantile Bank of India v. The Netherlands Steam Co., 10 Q. B. D. 521. Foundering caused by a collision with another vessel is within the exception dangers and accidents of the sea," and excuses the shipowner for non-delivery of the goods if it occurs without fault in the carrying ship. The Xantho, 12 App. Cases, 503, overruling Woodley v. Mitchell, 11 Q. B. D. 47. |