against both the tug and tow; the decrees being against each of them for half the damages, with recourse against the other for any part of the moiety of the damages which the first failed to pay. A tug with a fleet of barges or canal boats in tow is generally held liable for damage done by, as well as to, the barges in tow: 1 Parsons on Ship. (ed. 1869) 536; The Quickstep, 9 Wall. 665; although she is not an insurer of the barges or cargo on board them: The Stranger, Brown Ad. 281; The Margaret, 4 Otto, 494. It is the tug's duty to arrange and make up her tow, to see that the tow lines are sufficient and properly made fast, and generally to superintend and navigate the tow, so that other ships are not injured by it, and so that the barges themselves do not injure each other: The Quickstep, ubi supra; The Stranger, ubi supra; The Cayuga, 16 Wall. 177; The Francis King, 7 Bened. 11; The Syracuse, 12 Wall. 167. In the case of tugs towing other vessels, considerable responsibility is thrown on the tug. Thus it has been held that it is the duty of the tug to be acquainted with the waters she navigates, and to keep her tow clear of local dangers: The Lady Pike, 21 Wall. 1; The Webb, 14 Wall. 406; The Margaret, 4 Otto, 494. Where the tow line was furnished by the ship in tow, it has been held that the tug is not responsible for its insufficiency: The Echo, 7 Bened. 70; The A. R. Wetmore and The Epsilon, 5 Bened. 147. The duty of the ship in tow to follow in the wake of the tug has been the subject of decision: The Stranger, ubi supra; The Maria Martin, 12 Wall. 31. As to the liability of tug and tow generally, see 1 Parsons on Ship. (ed. 1869) 534, note.

Where a tug, A., was in fault for a collision between her tow, B., and a third ship, C., and C. was also in fault for having an improper light, it was held by the Supreme Court of the United States that the rule of equal division of loss applied as between C. and A.: The James Gray and The John Fraser, 21 How. 184.

In France it has been held that the tug, as being the governing French law as power, is primâ facie liable for a collision with her tow: Abordage to tug and Nautique (Caumont), § 226. But see ibid. § 216, seq.

tow.

88

Law applicable to foreign ships.

CHAPTER IV.

FOREIGN SHIPS-FOREIGN LAW.

IN collision cases where one or both the ships are foreign, questions frequently arise as to the law applicable to the case, and particularly as to the application of British statutes to foreign ships. The general rule is that municipal laws are binding upon the subjects of the state by which they are enacted everywhere, but upon foreigners only when they are within its jurisdiction (a).

....

The principle which governs questions of jurisdiction and remedies has been thus stated: "In regard to the merits and rights involved in actions, the law of the place where they originated is to govern but the forms of remedies, and the order of judicial proceedings, are to be according to the law of the place where the action is instituted, without any regard to the domicil of the parties, the origin of the right or the country of the act" (b).

Where one or both the ships in collision were foreign, questions of difficulty have arisen whether the British or the foreign law as to the Rule of the Road, the extent of owners' liability, the presumption of fault, the liability of

(a) As to the limits of the jurisdiction, see The Saxonia and The Eclipse, Lush. 410; The Annapolis and The Johanna Stoll, Lush. 295; Regina v. Keyn, The Franconia, 2 Ex. D. 63. As to Admiralty jurisdiction, supra, p. 97.

(b) Story's Conflict of Laws, Ch.

14, § 558, 7th ed. p. 702; and see Donn v. Lippman, 5 Cl. & Fin. 1. So a foreigner in France suing for a collision is subject to the disabilities (fin de non recevoir) of the Code de Commerce, Arts. 435, 436; Abordage Nautique, Caumont, § 82, 83.

the ship or her owners for the fault of those in charge of her, or as to the order in which claims against the ship should rank, should be applied. By the Act mentioned below it is provided, with regard to some of these subjects, that in the Courts of this country foreign as well as British ships shall be subject to British law. Where there is no express provision by statute, the question in each case is whether the law sought to be applied relates to the rights and merits of the question, or whether it is a lex fori, relating only to remedies and procedure. Thus it has been Order of claims against held, where there are several claims against a ship, that a ship is lex they must rank and be paid according to British law, the fori. matter being governed by the lex fori (c).

In a former chapter it has been stated that the general Extent of or natural right of a sufferer by collision to obtain from owner's liability the the wrongdoer a full recompense has, from time to time, same for been considerably modified by British statutes. Until the British ships. foreign and passing of 25 & 26 Vict. c. 63, the Act now in force, there was frequently great difficulty, in cases where one or both the ships in collision were foreign, in determining whether the municipal law limiting owners' liability was, or was not, applicable (d). Under the Act above mentioned no such difficulty can arise. Whether the ships are both British or both foreign, or one British and one foreign, and whether the collision occurs in British waters or on the high seas, the limit of owners' liability is the same. In all cases it is fixed by 25 & 26 Vict. c. 63.

(c) The Union, 3 L. T. N. S. 280. (d) The provisions of the M. S. Act, 1854, did not, in terms, apply to foreigners. Under this Act it was held that the liability of the owners of a British ship in collision with a foreigner, within three miles of the shores of the United Kingdom, was limited: General Iron Screw Collier Co. v. Schurmanns, 1 J. & H. 180; that the liability of the owners of two foreign ships in collision on the high seas, beyond that distance

Rule of the
Road for

In The Amalia (e) it was held that the liability of the owners of a British ship in collision with a foreign ship on the high seas (in the Mediterranean) is limited by the Act of 1862. It was contended that the Legislature had no power to alter the rights of foreigners in the case of a collision on the high seas, or to limit the amount of the damages to which by the maritime law they were entitled. It was, however, held by the Privy Council (affirming the decision of Dr. Lushington) that there is no breach of international law in such legislation; and it was said by Lord Chelmsford in the course of the judgment, and the decision in the case went upon the principle, that the owners of a foreign ship in a similar case would be entitled to the benefit of the Act-that, in all cases, the liability of the owners of a foreign ship is limited in the same way, and to the same extent, as that of owners of a British ship (f).

The Regulations to prevent collision contained in Acts foreign ships. previous to that of 1862 were held not to apply in the case of a collision between two foreign ships, or a British and a foreign ship, on the high seas. The question of negligence in such cases was tried by the general maritime law, under which the Rule of the Road did not always agree with that of the British statute. A ship, therefore, meeting another on the high seas, had to obey one rule if both were British, and another, and a different rule, if one were not British (g). This state of things, which could not fail to be productive of collisions, led to the adoption of the

(e) Br. and Lush. 151.

(f) It seems that the law limiting owners' liability is not a lex fori. Such was the opinion of Wood, V.-C., in Cope v. Doherty, 4 K. & J. 367, 384; and in The General Iron Screw Collier Co. v. Schurmanns, 1 J. & H. 180, 197. In The Amalia the Privy Council expressed no opinion upon the point, but Dr. Lushington

(Lush. p. 153) was of the same opinion as Wood, V.-C., in the cases above mentioned. Cf. also per Lord Stowell, in The Carl Johan, mentioned in The Girolamo, 3 Hag. Ad. 169, 186.

(g) The Dumfries, Swab. Ad. 63; The Saxonia and The Eclipse, Lush. 410; The Zollverein, Swab. Ad. 96; The Elizabeth, 3 L. T. N. S. 159.

existing International Regulations. No question as to the Rule of the Road, or the law applicable to the particular case, such as arose in the cases (supra, note (g)) decided under former Acts, can now be raised. Nearly all maritime nations having adopted the Regulations, and the Courts of this country being required by the municipal law to apply the Regulations to the ships of all nations that have adopted them, the Rule of the Road is the same for all ships, and the same Rule is recognised alike by international, municipal, and maritime law.

Foreign ships, equally with British ships, are bound to Foreign ships know and observe local Regulations for preventing colli-bound to comply with local sions in force in various rivers and harbours of this Regulations. country (h).

ss. 16 and 17.

The law by which the owners of a ship which has been Application to foreign ships in collision are, upon proof of certain circumstances as to of 36 & 37 infringement of the Regulations, or not standing by to Vict. c. 85, assist the other ship, made liable for the collision, without further proof of negligence upon the part of their ship, has been considered in a former chapter (i). There seems to be no doubt that this enactment applies to foreign ships (k). In two cases recently before the Admiralty Division, it was assumed that it applied to a British ship in collision with a foreigner on the high seas (7). The wording of 36 & 37 Vict. c. 85, s. 16, favours the contention that that part of it which relates to presumption of fault applies to foreign as well as British ships. Both sections, moreover, would probably be held to be rules of

(h) 25 & 26 Vict. c. 63, ss. 32, 57; see The Fyenoord, Swab. Ad.374; The Seine, ibid. 411, as to the law on this subject under the M. S. Act, 1854; and see The Michelimo and The Dacca, Mitch. Mar. Reg. 1877, as to the application to British ships of local Regulations abroad.

(i) 36 & 37 Vict. c. 85, ss. 16 and 17; see above, pp. 12, seq.

(k) The Magnet, L. R. 4 A. & E. 417. See per Sir R. Phillimore in Reg. v. Keyn, 2 Ex. D. 63, 85. The doubt expressed by the Privy Council in The F. M. Carvill, 2 Asp. Mar. Law Cas. 565, 569, appears to be not well founded.

(1) The British Princess and The Sedmi Dubrovacki, Ad. Ct. March, 1878; The Englishman, 3 P. D. 18.