Owner not liable to raise If the negligence of one ship occasions a collision between two others, the former ship will be liable for the injuries sustained by both; but only up to the statutory limit, which will be the same, with whatever number of ships the collision occurs (1). Where one ship has, by wrongly manoeuvring, placed another ship in a perilous position, the latter will not be to blame, in the event of her doing something wrong and not having manoeuvred with perfect skill (m). The owner of a vessel sunk at sea is under no obligation a vessel sunk. to raise her, though practicable (n). If she is raised, but is not worth repairing, he can recover the cost of raising and docking her, less her then value; but he cannot claim for demurrage (); or if she be repaired, for costs of repairs in excess of her value before the collision (o). So, the owner of a vessel sunk by an unavoidable accident in a public river is not bound to remove it; but while he continues in possession and control of it, he must use due care to prevent other vessels being injured by their striking against it (p). Thus, if he continue in possession and control, he must place a buoy over the wreck. Placing a watchman near the spot to point out the danger will not be sufficient (7)• CASES. 1. The Confucius, of 178 tons, was lying-to, close-hauled on the port tack, her helm lashed a-starboard; the James, of 236 tons, was lying-to, close-hauled, on the starboard tack, her helm a-port; each vessel a little on the port bow of the other. A collision ensued, by which the port-bow of the Confucius was stove in, and she sank. Held, that the Confucius was to blame for not having ported her (1) The Rajah, L. R., 3 A. & E. 539; Union Steamship Co. v. The Owners of The Aracan, &c., L. R., 6 P. C. 127. (m) The Bywell Castle, 4 P. D. 219 (C. A.); 41 L. T. 747; 28 W. R. 293. (n) The Columbus, 3 W. Rob. 158. (0) The Empress Eugenie, Lush. 138. (p) Brown v. Mallett, 5 C. B. 599; White v. Crisp, 10 Ex. 312; The Douglas, 7 P. D. 151; 51 L. J., P. 89; 47 L. T. 502 (C. A.). (q) Harmond v. Pearson, 1 Camp. 515; Brown v. Mallett, 5 C. B. 599. helm in time, and the James for not having thrown back her head yards, when the collision was probable; and that the damage should be divided (r). 2. A sailing ship, in a gale, drove from her anchors across a sandbank, and became unmanageable through her rudder being damaged. While in this condition, after sunset, she came into collision with a brig at anchor. At the time of the collision the ship had only her anchor light exhibited. Held, that the collision was occasioned by inevitable accident (8). 3. The ss. Niord and the ss. Esk came into collision while rounding a point in the Thames. The Niord coming up, and seeing the Esk rounding the point, put her helm hard a-port in order to cross the river. The Esk stopped and reversed her engines, and put.her helm a-starboard, and thereby caused the collision. Held, the Esk was solely to blame, she having caused the collision by her wrong manoeuvring (t). 4. The owners of a ship, which comes into collision with another, are not liable for the damage done; though the collision be caused by the sudden breaking down of some apparatus, in which there was an inherent latent defect, there being no negligence in using the apparatus (u). 5. The C., when proceeding in ballast to Montreal to load a cargo of grain pursuant to a charterparty, was run into by the D., and compelled to put into port to repair. The repairs occupied so long a time that it was not reasonably possible for the C. to have reached Montreal in time to fulfil her charter before the St. Lawrence was frozen for the winter. The owners of the C., acting prudently, therefore abandoned the charter. Held, that the loss sustained by abandoning it was a loss caused by the collision (x). 6. A French trawler and a schooner came into collision in the English Channel before sunrise. The trawler was going about two or three knots an hour. She carried a white mast-head light, but no side lights. The collision was caused by the absence of any look-out on board the schooner, and, in the absence of any such look-out, the neglect of the schooner to carry side lights could not possibly have contributed to the collision. Held, that the schooner was alone responsible (y). § 90. Where a collision is due to the fault of one vessel only, Amount of the compensation recoverable by the other will consist of damages (r) The James, Swab. 55. (8) The Buckhurst, 6 P. D. 152. (t) The Esk, L. R., 3 P. C. 436. (u) The Virgo, 3 Asp. M. C. 285. recoverable. the amount of the loss caused directly by the injury to the ship and of the loss occasioned by her detention for repairs. Sometimes even consequential damages, e. g. loss of freight, can be claimed (2). Provided that no damage occurring to her after the collision caused by an unjustifiable abandonment by or wilful misconduct or a want of ordinary nautical skill or diligence on the part of the master or crew of the injured vessel will be included (a). Where a collision has been occasioned by the negligence of the crew of the defendant's vessel, whereby the plaintiff's vessel suffers damage and is run aground, and afterwards the plaintiff's ship is totally lost by the negligence of its crew, the defendant will not be liable for the total loss, but only for the costs which would have been incurred in making good the partial damage (b). Where the ship and cargo are totally lost through a collision, the measure of damages for the loss of the freight will be the gross freight contracted for at the date of the accident less the charges, which would have been necessarily incurred in earning it (c). Where a collision has taken place the burden of proof lies on the party asserting that the subsequent damage and expenses are not chargeable to the collision. For in all cases the loss of or further injury to a ship after a collision will be presumed to have been caused by the collision (d). Damages in a collision action will not be reduced on the ground that compensation has been paid under a policy of insurance (e). On the other hand, when a ship is sunk in a collision, (2) The Betsy Caines, 2 Hagg. Ad. 28; The Yorkshireman, ib. 30, n.; see "Cases" (4) at end of this §; The Star of India, 1 P. D. 466; see "Cases" (3) at end of this §; The Canada, Lush. 586. (a) The Thuringia, 1 Asp. M. C. 283; The Flying Fish, Br. & Lush. 436; The Eolides, 3 Hagg. 367; The Linda, Swa. 306; see "Cases" (1) at end of this §; The Pensher, Swa. 211. (b) The Flying Fish, Br. & Lush. 436. (c) The Canada, Lush. 586. (d) The Pensher, Swa. 211. (e) Yates v. White, 4 Bing. N. C. 272. and damages equal to its full value are awarded, the owner of the ship sunk cannot recover anything in the nature of demurrage for loss of the employment of his ship or for loss of his own earnings in consequence of the collision (ƒ). CASES. 1. The ships L. and G. came into collision, after which the G. was abandoned by her master and crew. It was however picked up and carried to Madeira by another vessel, by which a large salvage expense was incurred. The G. having sued the L. for damages, both vessels were pronounced to be in fault. It was also held that under the circumstances of the case, the G. had been improperly abandoned in consequence of the want of ordinary skill and resolution in her master and crew, and that the salvage expense was due to such abandonment, and that, therefore, no part of it could be recovered from the L. (g). 2. A vessel was run into while riding with two anchors down, and one cable parted. The other failing to hold her she drove ashore. Held, that the loss sustained thereby was recoverable as damages arising out of the collision (h). 3. A barque, lying in the Madras Roads, was chartered to proceed to the Coromandel Coast, and there load a cargo for London at a freight of 55s. per ton. When on the point of going to her loading port, the barque was run into and seriously damaged by the S. The barque was delayed at Madras for repairs, and the charterers cancelled, as they were entitled to do, the charterparty. Held, that the owners of the barque could recover damages from the owners of the S. in respect of the loss of the charterparty (i). 4. A smack, while on a voyage from London to Norway to receive a cargo of lobsters, was run foul of by a steamboat. It was then necessary to hire another smack for that purpose. Held, that the amount of freight paid to the second smack would be allowed as consequential damage (k). § 91. damage. A collision brought about by the fault of one vessel will Lien for give the owner of the other vessel a maritime lien or charge on the vessel (not being a public ship) in fault. 83. (f) The Columbus, 3 W. Rob. 158. (i) The Star of India, P. D. 466. (k) The Yorkshireman, 2 Hagg. 30, n. Lien, how enforced. Priority of such lien. Foreign collisions. The lien extends to freight in the course of being earned, even in cases where the cargo was not on board at the date of the collision (). A lien for damage can be enforced in an action in rem in the Admiralty Division of the High Court of Justice; or in a county court or other inferior court having Admiralty jurisdiction, when the amount claimed for damages does not exceed 3001. (m). The ship responsible for the collision is arrested at the commencement of the action and detained till judgment is pronounced, unless bail be given or security for costs and the event of the action (n). The maritime lien in question follows the ship and has priority over all other charges or liens (o), and will prevail even as against a bona fide purchaser without notice, including a purchaser under proceedings in personam in a foreign court (p). The lien will, however, be lost if an action be not brought within a reasonable period to enforce it (2). Reasonable diligence means doing that which under ordinary circumstances, and having regard to expense and difficulty, could be reasonably required (r). The Admiralty Division has jurisdiction over any claim for damages caused by a collision between two vessels, though the collision be caused by a foreign vessel or though it did not occur in British waters (s). Such foreign (1) The Orpheus, L. R., 2 A. & E. (m) 32 & 33 Vict. c. 51, s. 4. (o) The Aline, 1 W. Rob. 111. (p) The Charles Amelia, L. R., 2 A. & E. 330. (a) The Europa, 2 Moo. P. C., N. S. 1; and see Ch. XIII. § 87, P. 148. (r) Ibid. (s) The Johann Friederich, 1 W. Rob. 35; The Greifswald, Swa. 430; In re Smith, 1 P. D. 300; The Vivar, 2 P. D. 29; Harris v, Owners of The Franconia, 2 C. P. D. 173. |