but if judgment is recovered against one part owner, it seems that no action can be brought against the others, though the judgment is unsatisfied (k).

Where a part owner, without the knowledge of his coowner, entered into a bond to obtain the release of his ship from arrest in a collision cause in the Admiralty Court, and subsequently became bankrupt, it was held that a surety who had been compelled to pay the amount of the bond could recover against the co-owner (1).

A part owner who has been compelled to pay the whole of the damages can recover in an action for contribution against his co-owners. And money so paid for damages, where the owner's liability is limited, may be brought into account as money disbursed for the use of the ship (m).

tween owned

same persons.

If a collision occurs between two ships belonging to the Collision be same owner, the only remedy is against the actual wrong- wholly or in doer. And the case seems to be the same, both at law part by the and in Admiralty, where the two ships have one or more part owners in common. But the owners of cargo, or passengers, on board either ship, can recover against either ship, if she is in fault (n). As to the rights of underwriters in such a case, see below, p 42.

where three

If a collision occurs between two ships, A. and B., by the Collision fault of one of them, and A., or B., or both of them, whilst or more ships in collision, or in consequence of the collision, drive against are implicated.

liable only to the extent of his interest in the ship: Emerigon Contr. à la grosse, Ch. IV., s. 11; Grotius de jur. belli et pacis, lib. 2, Ch. 11, s. 13. And this appears to be the law in France: Codes Annotées, Sirey et Gilbert, Art. 216, C. C.

(k) Brinsmead v. Harrison, L. R. 7 C. P. 547. As to the several liability where two ships are sued in Admiralty, see The Atlas, 3 Otto. 302; The Juniata, ibid. 337; The Alabama and The Gamecock, 2 Otto. 695; but see note (p), infra.

(1) Barker v. Highley, 11 W. R.

968.

(m) See 1 Smith's Lead. Cas. (8th ed.), 169; and 17 & 18 Vict. c. 104, s. 515.

(n) See Simpson v. Thompson,
3 App. Cas. 279. The question

whether in the latter case a lien for
damage attaches to the wrong-
doing ship does not appear to have
been decided. In The Glengaber,
L. R. 3 A & E. 534, it was held
that a ship was entitled to salvage,
notwithstanding the fact that some
of her owners were owners of the
tug which had caused the mischief.

and injure a third ship, C., C. can recover against the ship in fault for the first collision. But the ship that comes into her is not liable, unless she was in fault either for the first or the second collision (o). It will, however, be seen in a subsequent chapter (Ch. III.), that a ship in tow is generally responsible for the fault of her tug; she will, therefore, be liable for a collision between her tug and a third ship, or between herself and a third ship, though she was herself not in fault.

If two ships, A. and B., are both in fault for a collision between one of them and a third ship, C., C. can proceed in Admiralty against either A. or B., or against both of them. And, it seems, that she can recover the whole of her loss in an action against one of them (p). But if C. is in tow of A. or B., the rule is different (q).

Where, by the negligent navigation of one ship, a collision occurs between two others, or another ship is damaged, either by collision or in any other way, the first ship is liable, and not the less so because she escaped collision herself (r).

If a vessel engaged in towing another, or in rendering to her salvage service, negligently damages her by collision or in any other way, the tug or salvor cannot recover for the towage or salvage service. Nor can a tug recover salvage reward for assistance rendered to a ship with which her tow has been in collision by the fault of herself, the tug. But a salvor (s) damaged, without negligence on her

(0) The Venus, infra; The Hibernia, 4 Jur. N. S. 1244; The Sisters, 1 P.D. 117; The Moxey, Abbot Adm. 73 (Amer. case).

(p) The Lyra and The Venus, 2 Mar. Law Cas. O. S. Dig. 522; S. C. nom. The Venus, 1 Pritch. Ad. Dig. 129. See, however, The Milan, Lush. 388, where it was held that the owners of cargo on board one of two ships, which were both in fault for the

collision, could recover only one
half their loss against the other ship.
As to the liability of joint wrong-
doers at law, see above, p. 38.

(q) As to the liability where a
tug or tow is in collision, see below,
Ch. III.

(r) The Industrie, L. R. 3 A. & E. 303; The Ivanhoe and The Martha M. Heath, 7 Bened. 213. See infra, p. 55. (s) See pp. 46, 47, infra.

the

own part, by collision with the vessel she is assisting, is entitled to recover against the latter.

abandoned.

Owners are not liable for damage caused by a ship which Liability for they have abandoned, if the abandonment was justifiable. ship ashore, damage by a But if the abandonment, though necessary for the safety of sunk, or those on board, was the result of negligence for which the owner is responsible, it seems that he remains liable notwithstanding the abandonment (t). So long as a ship remains in the owner's possession he is liable for damage to another ship striking her, though she is sunk or ashore, if such damage was caused by the absence of proper lights or precautions on her part. In Scotland it has been held that in such a case no liability attaches to the river or harbour authorities (u) having statutory powers to remove wreck and obstructions. It is the duty of those in charge of a vessel sunk in a fairway to mark her position with a buoy (x). In America it has been held that no liability attached to a tug for damage caused to a third ship by her tow, which had been sunk without fault on the part

of the tug (y).

other than owners.

Besides the owners, all persons by whose personal negli- Persons liable gence (2), or by the negligence of whose agents, a collision occurs, are liable for damages. The officer in charge, the pilot (a), or crew, and in some cases, it seems, the charterers as well as the owners (b), may be responsible. The master is under a special liability to passengers and cargo owners, as well for acts of negligence as misfeasance on the part of himself or his crew (c). Against a pilot (d), and against

(t) Brown v. Mallet, 5 C. B. 599; White v. Crisp, 10 Ex. 312; Rex v. Watts, 2 Esp. 675.

(u) Kidson v. McArthur, 5 Sess. Cases, 4th Series, 936.

(x) Harmond v. Pearson, 1 Camp. 515; Hancock v. York, &c., Railway Co., 10 C. B. 348.

(y) The Swan, 3 Blatchf. 285. (z) Cf. Code de Commerce, Art. 221; German C. C., Art. 736; Span

ish C. C., Art. 676.

(a) Smith v. Voss, 2 H. & N. 97, was an action against a pilot.

(b) See Abbot on Sh., 11th ed., 46.

(c) Story on Agency, § 314-316; Morse v. Slue, 1 Ventris, 238.

(d) The Alexandria, L. R. 3 A. & E. 574; The Urania, 1 Mar. Law Cas. O. S. 156; 10 W. R. 97.

their rights

owners resident abroad (d), where the collision occurred beyond British jurisdiction, and service of the writ cannot be effected within the jurisdiction, the Admiralty Court has refused to entertain a personal action for damages.

It has been said that the master is liable for the negligent and wrongful acts of the crew, as well as for his own acts (e). His liability as carrier, unless specially limited, may extend so far; but it does not appear to have been held in any case decided in this country that he is liable to the owners of another ship for damage by collision for which he was himself free from blame (ƒ). For wilful injury by the pilot or crew to another ship he is clearly not liable (g).

The ship-owners, or employers of the master or actual wrong-doer, by whose fault a collision occurs, can recover against him any damages which they have been compelled to pay, or any loss which they have suffered by his negligence (h).

Underwriters; Loss by collision is a loss by peril of the sea within the and liabilities. meaning of that term in the ordinary marine policy of insurance (i). Whether the collision is by inevitable accident, by the fault of both ships, or by the fault of the one or the other of them, the insurers are liable (k). Where the collision is by the fault of the insured ship alone, there has been no direct decision as to the underwriters' liability; but there is little doubt that they are liable as for a loss caused either by barratry or by peril of the sea (1).

(d) The Vivar, 2 P. D. 29; Re Smith, 1 P. D. 300; Harris v. Owners of the Franconia, 2 C. P. D. 173.

(e) Story on Agency, § 314-317; Molloy II., c. 3, s. 13.

(f) See Aldrich v. Simmonds, 1 Stark. 214. It has been held in America that the master is liable in such a case: Story on Agency, § 316, note; Denison v. Seymour, 9 Wendel, 9; 3 Kent's Comm., 218.

(g) Bowcher v. Noidstrom, 1 Taunt. 568.

(h) Addison on Torts, 4th ed., 26.

(i) As to a bill of lading, see supra,

p. 20.

(k) Park on Insurance, 8th ed., 139; Smith v. Scott, 4 Taunt. 126.

(1) Arnould on Insurance, 5th ed. 744-746; Phillips on Insurance, § 1417-1420; and see Simpson v. Thompson, 3 Ap. Cas. 279. Cf. French Commercial Code, Art. 350 and 353; Spanish C. C., Art. 861; Dutch C. C., Art. 637; German C. C., Art. 824 and 825. By the two first codes, only abordages fortuits, by the others, all collisions are at the insurer's risk.

Where both ships are in fault, and the insured ship is sued and made liable for damages which exceed the amount of her own loss, the underwriters on her are not liable under the ordinary policy for such excess (m). De Vaux v. Salvador, the case by which this was decided, was formerly dissented from in America by the Supreme Court; but is now recognised by that Court as binding (n). It has produced the "collision clause" in a Lloyd's policy, by which the underwriters insure three-fourths of the damages which the insured ship may be compelled to pay for collision with another. The remaining fourth may be covered by insurance elsewhere. The collision clause does not cover costs which the insured may incur in defending an action by the other ship (o). Where it was expressed to cover damages which the assured ship should be compelled to pay for running down and damaging another ship, it was held that it did not include damages recovered against the insured ship by the representatives of persons on board the other ship who lost their lives in the collision (p).

A ship, M., was insured in a policy containing a running down clause by which the insurers undertook to bear threefourths of any sum, not exceeding the value of the ship and freight, which the assured should become liable to pay, and should pay, for collision with another ship. The ship insured was sold in an Admiralty damage suit for less than her value. It was held that the underwriters were liable for no more than three-fourths of the sum for which the ship was sold (q).

Underwriters can recover against the wrong-doer in the collision damages for the collision which under their policy

(m) De Vaux v. Salvador, 4 Ad. & El. 420. Aliter by French law: Caumont Dict. de Droit Mar. tit. Abordage; and by German law: German C. C., Art. 824.

(n) General Mutual Insurance Co. v. Sherwood, 14 How. 352.

(o) Xenos v. Fox, L. R. 4 C. P.

665.

(p) Taylor v. Dewar, 5 B. & S. 58; but the contrary has been held in Scotland, Coey v. Smith, 22 Court of Session Cases, 955; Excelsior Co. v. Smith, 2 L. T. N. S. 90.

(q) Thompson v. Reynolds, 7 E. & B. 172.