Rights of underwriters in case of collision between ships of the same owner. Cargo owners not liable. they were bound to pay, and have paid to the insured, provided the insured could himself have sued for and recovered them, but not otherwise (q). They have no right of action apart from him, and they must sue in his name (r). If the insured has received the amount of his loss from the underwriters, he is a trustee for them of any damages he may recover in respect of the collision (s). But the fact that he has been compensated by them is no answer to his claim for damages against the wrong-doer (t). Where a collision occurred between two ships belonging to the same owner, and one of them, with cargo on board not belonging to the ship-owner, was sunk by the fault of the other ship, the ship-owner paid into Court, under the Merchant Shipping Acts, the amount to which his liability, as owner of the wrong-doing ship, was limited. It was held, that as against the cargo owners, underwriters upon the innocent ship, who had paid the insurance upon her, were entitled to no part of the money paid into Court (u). The decision would, it seems, be the same in the case of a collision between two ships owned in part by the same persons. In Simpson v. Thompson, Lords Cairns, Penzance, and Blackburn declined to express an opinion whether the ordinary marine policy covers a loss by collision with another ship belonging to the assured. The owners of cargo on board a ship in fault for a collision are not liable for damage done by the ship (x); but the cargo may be arrested in order to secure the payment of unpaid freight due to the ship-owner (y). (q) Yates v. Whyte, 4 Bing. N. C. 272, 283; 5 Scott 640; The John Bellamy, 22 L. T. N. S. 244. (r) Simpson v. Thompson, 3 App. (8) Yates v. Whyte, ubi supra. Cas. 279. In this case the rights and liabilities of underwriters in case of collision were fully discussed by the House of Lords. (x) The Victor, Lush. 72, 76; The Flora, L. R. 1 A. & E. 45. Cf. German C. C., Art. 736. (y) See above, p. 30. collision by Her Majesty's ships, and ships of war of a foreign State, Liability for are not subject to arrest (2). In the case of a collision by the fault of the fault of a Queen's ship, the legal responsibility attaches a Queen's ship or foreign ship to the actual wrong-doer (a). If the ship is properly in of war. charge of an inferior officer, the captain is not responsible in a civil action. The appointment of all officers being with the Government, the superior officer is not in such a case answerable for the acts of his subordinate (b). Whether vessels belonging to a department of the Government, and employed for the special purposes of the department, are entitled to the immunity from arrest enjoyed by ships of war belonging to Her Majesty, seems doubtful (c). owners; col The liability of owners resident abroad; in respect of a Foreign collision abroad; and in case of collision where one of the lision abroad; ships is a tug or in tow, is considered in subsequent tug and tow. chapters (d). liability for Beyond incurring the civil liability for damages, the Criminal person guilty of reckless or negligent navigation, whereby a collision. a collision occurs in which life is lost, or bodily injury (e) suffered, may be prosecuted criminally. "Those who navigate (the Thames) improperly, either by too much speed, or by negligent conduct, are as much liable, if death ensues, as those who cause it on a public highway, either by furious driving or negligent conduct" (f). The criminal liability attaches only to those by whose personal miscon Board of Trade certificate may duct or negligence the collision occurs (g). But where a foreign ship, in charge of an English pilot in the Thames, ran down a boat and drowned a man, and the collision was caused by the man at the helm, a foreigner, not understanding and carrying out the pilot's orders, it was held that the pilot was guilty of manslaughter, if by his own negligence he failed to make his orders understood (h). The criminal liability of the offender in a collision where one or both the ships is foreign, or the offender himself a foreigner, or where the collision occurs out of British waters, is considered in a subsequent chapter (i). The master, pilot, or any seaman of a British ship, who wilfully or negligently endangers the life of any person on board such ship, or endangers the ship herself, is guilty of a misdemeanour (k). If a collision involving loss of life, or serious damage to be cancelled. either ship, is caused by the wrongful act or default of an officer holding a Board of Trade certificate, his certificate may be cancelled or suspended at a Board of Trade enquiry (1). Tug or salvor in collision she is assist ing. One of the consequences of negligence causing collision with the ship is that the wrong-doer cannot claim salvage for service rendered to the ship with which he has been in collision, although the latter is also in fault for the collision (m). But a vessel engaged in a salvage service to another does not forfeit her right to salvage by going into collision with the other (n). And an innocent ship may recover salvage (g) Rex v. Allen, 7 C. & P. 153; Rex v. Green, ibid. 156; and see Oakley v. Speedy, 40 L. T. N. S. 881. (h) Reg. v. Spence, 1 Cox. C. C. 352. (i) See p. 98, infra. (k) 17 & 18 Vict. c. 104, ss. 239, 366. This Act is more lenient than some of the medieval codes. Decapitation at the windlass, or keelhauling, was the punishment pro vided for negligent and incompetent pilots. (7) See 17 & 18 Vict. c. 104, s. 242; 25 & 26 Vict. c. 63, s. 23. (m) Cargo ex Capella, L. R. 1 A. & E. 356; and see The Glengaber, L. R. 3 A. & E. 534. The rule is the same in America: The Clarita, 23 Wall. 1; The Sampson, 4 Blatchf. 28. (n) The C. S. Butler and The Baltic, L. R. 4 A. & E. 178. for services rendered to another which has negligently run into her. The law which makes it the duty of a ship which has been in collision with another to stand by her, and render assistance, does not prevent her from recovering salvage reward for assistance so given (o). A salvor damaged, without negligence on her own part, by collision with the vessel she is assisting, may recover against the latter (p). But a tug cannot recover salvage reward for assistance rendered to a ship with which her tow has been in collision by the fault of herself, the tug (q); nor, after a collision between the tow and her tug by the fault of the latter, can the tug recover upon towage contract (r). entitled to recover. All persons injured in their persons or property in a Persons collision caused by the fault of one or both ships are entitled to recover damages. Such persons may be owners of the injured ship (except where she is alone in fault), whether they be registered owners or not (s); owners, consignees, bailees, and other persons having a special property in, or temporary possession of, cargo on board either ship (t), indorsees of bills of lading (u), persons entitled under Lord Campbell's Act to recover damages for relatives killed (v), or persons on board either ship who are hurt in the collision. There is some doubt whether a person on board a ship Whether perwhich is herself in fault can recover at common law (x). sons on board a ship herself The better opinion is that such a person is not prevented in fault can by the fault of his own ship from recovering from the owners of the other (y). In the Admiralty Court there (o) The Retriever and The Queen, 163. 2 Mar. Law Cas. O. S. 555. (p) The Mud Hopper, 40 L. T. N. S. 462. (g) The Glengaber, ubi supra. (s) The Ilos, Swab. Ad. 100. (v) 9 & 10 Vict. c. 93; see below, (x) Thorogood v. Brian, 8 C. B. (y) Smith's Lead Cas., 7th ed., 300, recover. Bailee of ship; indorsee of bill of lading; consignee of cargo. Actions by part owners; of actions. seems no doubt that he could recover; and it has been expressly held that owners of cargo on board a ship in fault can recover against the other, if she is also in fault (2). The indorsee of a bill of lading, even though the cargo has been sold (a); bailees, and other persons having a special property in the ship or cargo, can recover in Admiralty (b) as well as at law. The consignee or assignee of a bill of lading can, where no owner or part owner of the ship is domiciled in England or Wales at the time of the action being instituted, proceed against the ship in Admiralty for damage to the cargo by the fault of the master or crew (c). In such an action it seems he could recover for loss of cargo in a collision for which the carrying ship was wholly or partly in fault. To enable him to maintain the action it is not necessary that the property in the goods should have passed to him (d). The holder of a bottomry bond on freight of a ship, A., is entitled, in an action for limitation of liability by the owner of another ship, B., which has negligently damaged A. by collision, to a rateable share with the owners of A. of the amount payable by the owner of B. (e). It seems that part owners of the injured ship might consolidation recover damages for their respective losses in successive actions (f). But the defendant would be entitled to have the other co-owners added as plaintiffs, so that he should not be vexed by more than one action. If a part owner dies after the collision and before action brought, the right (2) The Milan, Lush. 388; The City of Manchester, 40 L. T. N. S. 591. (a) The Marathon, 40 L. T. N. S. 163. (b) The Minna, L. R. 2 A. & E. 97. In an American case full damages were recovered for a collision, although all interest in the injured ship had been transferred to a foreigner, whereby the ship was forfeited to the State: The Nabob, Brown Ad. 115. (c) 24 Vict. c. 10, s. 6; 36 & 37 Vict. c. 66, s. 16. (d) See The Figlia Maggiore, L. R. 2 A. & E. 106; The Nepoter, ibid. 375; The Pieve Superiore, L. R. 5 P. C. 482. (e) The Empusa, 48 L. J. Ad. 36. (f) Addison v. Overend, 6 T. R. 766; Sedgworth v. Overend, 7 T. R. 280. |