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against the fund for half her damage, less half of the damage sustained by the K., and to be paid in respect of the sum due to them after such deduction, pari passu with the other claimants, out of the fund (2).
2. A newly-built ship, exceeding fifteen tons burden, on being launched ran into and damaged a passing vessel, and was alone to blame. The owner of the new ship, who was a British subject, instituted an action of limitation of liability in respect of the damage occasioned by the collision. The new ship was registered as a British ship at the date of the institution of the action, but not at the time of the collision. Held, that the owner was not entitled to have his liability limited (a).
3. The owner of a ship sunk by a collision in the Thames admitted it to be his fault, and paid into court 81. a ton in a limitation action. The ship and cargo were raised by the Thames conservators and delivered to the owner, who agreed to pay the cost of raising. Wool, which formed part of the cargo, was damaged by being sunk. Held, that the shipowner was bound to deliver the wool to its owner without claiming from him any portion of the expenses of raising the ship and cargo (6).
Costs in col. lision cases.
§ 96. The general rule as to the costs of an action brought in respect of a collision is that where both ships are adjudged
a to blame, each must bear her own costs; in other cases costs follow the event (c).
The costs of the reference as to damages in the action will not follow the costs of the action. They are in the discretion of the judge, just as the costs of a fresh litigation (d).
An owner of cargo on board either ship will be entitled to his costs where both the ships are pronounced to blame (e).
The fact of the shipowner's liability being limited by
(z) The Stoomrart Maatschappy 115; The Gen. Steam När. Co. v. Nederland v. The P. 80. Co., 7 London and Edinburgh Shipping Co., App. Cas. 795 ; 52 L. J., P. 1; 47 2 Ex. D. 467; The Matthew Cay, L. T. 198.
5 P. D. 49; 49 L. J., P. 47. (a) The Andalusian, 3 P. D. 182. (d) The Consett, 5 P. D. 77; The
(6) The Ettrick, 6 P. D. 127; 45 Savernake, ib. 166. L. T. 399; 4 Asp. M. C. 465 (C. A.) (e) The City of Manchester, 5 P.
(e) The Agra, L. R., 1 P. C. 501; D. 221 ; 49 L. J., P. 80 ; 42 L. T. The Swansea v. The Condor, 4 P.D. 621 (C. A.).
statute in respect of damages will not affect his liability either for interest thereon or for costs ($).
Though the plaintiff in an action for limitation of liability is as a rule made to pay the costs of the action, he will, if the defendants raise unnecessary issues and fail thereon, be entitled to the costs of those issues. Neither will he be ordered to pay the costs occasioned by a dispute between rival claimants to the proceeds in Court (g).
Where the Court of Appeal varies the decision of the Admiralty Division by finding both vessels to blame for a collision, each will have to bear his own costs of the whole litigation (h).
$ 97. The decision of a foreign court in a collision case will Foreign judg. bar an action between the same parties in England in lision cases.
ments in colrespect of the same collision. However, if the foreign judgment went by default, or if the foreign court acted beyond its jurisdiction, the English action will not be barred ().
If a ship has been pronounced in a personal action by a foreign court to blame for a collision, Admiralty proceedings in rem cannot in this country be brought to enforce the foreign judgment (,).
Where in an action in personam, instituted in this country by the owners of one of two ships injured by a collision, it is shown that, previously to the institution of the action, a cause of damage in rem in a Vice-Admiralty Court abroad had been instituted by the owners of the other ship, and
(f) The Northumbria, L. R., 3 A. & E. 6; Smith v. Kirby, 1 Q. B. D. 131 ; The Amalia, 34 L. J., Ad. 21.
(9) The Empusa, 5 P. D. 6; 48 L. J., P. 36; 41 L. T. 383; 28 W. R. 263.
(1) The Milanese, 43 L. T. 107 (C. A.); 45 L. T. 151 (H. L.)
(i) The Delta, 1 P. D. 393 ; see “ Cases" (1) at end of this ; The Greifswald, Swa. 430.
(j) The City of Mecca, 6 P. D. 106; 50 L. J., P. 53; 44 L. T. 750 ; 4 Asp. M. C. 412; reversing, 5 P. D. 28 ; see“ Cases" (1) at end of this .
that it is still pending, the proceedings here will be stayed until the action in rem has been determined (k).
CASES. 1. The owners of the D. instituted proceedings abroad against the owner of the E. in respect of a collision between the two ships. The owner of the E. did not enter an appearance in the foreign court, but brought a cross action there against the owners of the D. In both actions the owners of the D. obtained judgment by default. Meanwhile the owner of the E. brought an action here in respect of the same collision against the owners of the D. To this action the latter pleaded the foreign judgments in bar. The court decided that the D. was alone to blame for the collision, and declined to give effect to the plea of res judicata (?).
2. The plaintiffs obtained judgment in the tribunal of commerce at Lisbon against the captain and owners of a British ship for damages for injury occasioned to the plaintiffs' ship by a collision. The Portuguese courts recognise no distinction between actions in personam and in rem. Subsequently, the defendants' ship having come into a British court, the plaintiffs commenced an action in rem against the ship, which they arrested, claiming to enforce the judgment of the Portuguese court. Held, that the Portuguese action was a mere personal action, and that therefore the judgment therein could not be enforced hore by proceedings in rem (m).
(k) The Peshawur, 8 P. D. 32. (1) The Delta, 1 P. D. 393.
(m) The City of Vecca, supra.
$ 98. A Pilot when in charge of a ship is, as a general rule, Office and considered to be her commander. The master will not be
pilots. justified in interfering with him, unless the pilot prove incompetent to discharge his office. His orders must be implicitly obeyed (a). The master and crew are bound to assist him by keeping a sufficient look out, so as to give him the earliest possible information as to approaching vessels, &c. Should they not do so, the owners will be liable for any damage, though the pilot were also to blame (6)
The following matters will fall within a pilot's office, viz., to get the ship under way (c), or to bring her to (d), to tend her when at anchor (e), to regulate her speed (f), to employ a tug if necessary, and direct the course of the tug, if one be employed (g), and to attend to the navigation of the ship, and to direct such manoeuvres as may be necessary to avoid damage (1).
(a) The Christiana, 7 Moo. P. C. 160; see “ Cases" (1) at end of this ģ; The Maria, 1 W. Rob. 95, 110; The Girolamo, 3 Hagg. 169, 176; The Lochlibo, 7 Moore, P. C. 427.
(6) The Velasquez, L. R., 1 P. C. 494; The Atlas, 2 W. Rob. 502; The Cynthia, 2 P. D. 62; The Batavier, 9 Moo. P. C. 286 ; see “Cases" (4) at end of this s.
(c) The Peerless, Lush. 30.
The Gipsy King, ib. 537; The City
(e) The Peerless, Lush. 30; The
(f) The Calabar, L. R., 2 P. C.
(9) The Julia, Lush. 224, 232; 14 Moo. P. C. 210; The Energy, L. R., 3 A. & E. 48.
(h) The Iona, L. R., 1 P. C. 426; The Ocean Wave, L. R., 3 P. C. 205, 210.
A collision occasioned in consequence of the master or crew not obeying the pilot's orders, will make the owners liable. Therefore, if the engines are not stopped or reversed, or the helm shifted, or the anchor let go, at once at the pilot's order, the owners will be liable for any collision resulting therefrom (i).
The trim of a ship is within the province of the master. Where, therefore, a collision is occasioned by the ship not being in ordinary safe trim, the owners will be liable, though a pilot be in charge of the ship. Where the ship is in ordinary safe trim, the owners will not be liable, though the ship might have been in handier trim, and though the trim contributed to the collision (k).
Where, after a collision occasioned by the pilot compulsorily in charge, a second collision occurs through the default of the master and crew, the shipowners will be responsible with respect thereto (1).
CASES. 1. A ship in charge of a licensed pilot was, whilst at anchor in the Downs, the weather being bad, run into by another vessel, and made to start from her anchorage and driven into a vessel at anchor. Her staysail and jib after she was driven from her anchorage were not set, through the fault of the pilot. But the neglect to send down the top-gallant yards, &c., the cause of the damage, was the joint fault of the pilot and master. Held, that the shipowners were liable (m).
2. The A. and J. came into collision in the Mersey, through the fault of a pilot, compulsorily in charge of the A. The steam-tug towing the A. was compelled to cut her adrift and leave her, and she, after drifting up the river, came into collision with the G. The master and crew of the A. could have avoided the second collision, by squaring the fore-yard and setting sail upon it, &c. Held, the owners of the A. were liable for the damage to the G. (n).
(i) The Ripon, 6 Not. of Cas. 245; see “ Cases” (3) at end of this $; The Atlas, 2 W. Rob. 502 ; The Lochibo, 7 Moo. P. C. 427; The Julia, 14 Moo. P. C. 210; Lush. 224.
(k) The Argo, Swa. 462.
(1) The Annapolis, 1 Mar. Cas., 0. S. 183; see “Cases" (2) at end of this s.
(m) The Christiana, 7 Moo. P. C. 160.
(») The Annapolis, 1 Mar. Cas., 0. S. 183.