The Law of the Sea / A manual of the principles of admiralty law for students, mariners, and ship operators

CHAPTER XI COLLISION

1. Definition.—

In maritime law, collision is the impact of ship against ship, although usage is increasing the scope of the word so as to include contact with other floating bodies. It does not include stranding or running into structures forming a part of the land, such as bridges and wharves.

The question whether a collision is a subject for adjudication in admiralty is frequently one of some nicety. What constitutes a vessel within the meaning of admiralty jurisprudence has been discussed in Chapter 1, §4.[20] While, in general, objects which come into collision must be afloat in the water to warrant recourse to the admiralty courts, and certainly must not be permanently attached to the shore, nevertheless the jurisdiction has been exercised when the collision was between a barge and a pier erected in the midst of a stream and unlawfully obstructing navigation. Atlee v. Union Packet Co., 21 Wall. (U.S.) 389. The jurisdiction has also been exercised where boats have come into collision with submerged and stranded wrecks and sunken articles.

2. Liability Dependent on Negligence.—

Liability for collision depends on negligence or fault causing or contributing to the disaster. Such negligence may be on the part of the ships actually in contact with each other or of outside vessels and consists in the violation of the statutory regulations for preventing collisions at sea or the failure to exercise that skill, care, and nerve ordinarily displayed by the average competent master. Collisions may occur without negligence, or by inscrutable fault, and then there is no liability for the resulting damage. Such are collisions solely due to the darkness of the night or to storms. In the Morning Light, 2 Wall. 550, the collision occurred at 4 A.M., on an intensely dark night in a dense fog and rain. The court (Clifford, J.) said:

Reported cases where it has been held that collisions occurring in consequence of the darkness of the night and without fault on the part of either party, are to be regarded as inevitable accidents are numerous.

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Where the loss is occasioned by a storm or any other vis major, the rule as established in this court is, that each party must bear his own loss, and the same rule prevails in most other jurisdictions.... Different definitions are given of what is called an inevitable accident, on account of the different circumstances attending the collision to which the rule is to be applied.

Such disasters sometimes occur when the respective vessels are each seen by the other. Under those circumstances, it is correct to say that inevitable accident, as applied to such a case, must be understood to mean a collision which occurs when both parties have endeavored by every means in their power, with due care and caution, and a proper display of nautical skill, to prevent the occurrence of the accident. When applied to a collision, occasioned by the darkness of the night, perhaps a more general definition is allowable. Inevitable accident, says Dr. Lushington, in the case of the Europa, 2 Eng. Law & E. 559, must be considered as a relative term, and must be construed not absolutely, but reasonably with regard to the circumstances of each particular case. Viewed in that light, inevitable accident may be regarded as an occurrence which the party charged with the collision could not possibly prevent by the exercise of ordinary care, caution and maritime skill.

3. Tests of Negligence.—

The primary question is whether there has been a violation of any of the regulations or rules of navigation. Navigable waters constitute a common highway and the rights and duties of vessels using them are quite similar, in legal principles, to those of vehicles using streets, and roadways on the land. Hence the general maritime law recognized the practice of keeping to the right, avoiding others whose movements were hampered, and not running down another because he was on the wrong side. Ultimately the general practice of navigators was expressed in formal rules and finally all nations united in promulgating them in the form of statutes which are now practically uniform throughout the world. They are, in effect, a code of international law for the purpose of avoiding collisions. Back of these special rules are the general requirements of the maritime law in regard to careful navigation; a lookout is essential although there is no statute requiring one to be maintained.

It should be observed that vessels navigating in darkness, fog or storm must take all precautions against collision which such a state of things would suggest to a prudent navigator. A vessel failing to take such precautions will be in fault in a collision. Failure to hear fog signals is not negligence. The ordinary steering and sailing rules do not apply in fog.

4. The Regulations.—

The express rules for the navigation of vessels of the United States consist of the following:

1. International Rules (Act of Aug. 19, 1890, as amended; U.S. Comp. St. 1916).

2. Rules for Great Lakes and connecting waters (The "White Law"; Act of February 8, 1895; U.S. Comp. St. 1916).

3. Rules for Harbors, Rivers and Inland Waters (Act of June 7, 1897; U.S. Comp. St. 1916).

4. The Mississippi Valley Rules, §4233, Revised Statutes.

5. Rules of Supervising Inspectors.

6. Local rules and municipal regulations.

These rules deal with the distinctive lights required for different vessels, signals, speed, rules governing the management of sailing and steam vessels under different conditions of weather and various relative positions of vessels. While they have very often been the subject of judicial interpretation in collision cases their application belongs to the subject of navigation rather than to that of admiralty law in the present work.

The statutory rules are of the highest importance and the mere fact of a breach of any of these is prima facie (but not conclusive) evidence of negligence. The infringing vessel must satisfy the court that its violation of law not only did not, but could not, contribute to the collision.

As was said by Chief Justice Fuller in Belden v. Chase, 150 U.S. 674:

They are not mere prudential regulations, but binding enactments, obligatory from the time that the necessity for precaution begins, and continuing so long as the means and opportunity to avoid the danger remains. Obviously they must be rigorously enforced in order to attain the object for which they were framed, which could not be secured if the masters of vessels were permitted to indulge their discretion in respect of obeying or departing from them. Nevertheless, it is true that there may be extreme cases where departure from their requirements is rendered necessary to avoid impending peril, but only to the extent that such danger demands.

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Obedience to the rules is not a fault even if a different course would have prevented the collision, and the necessity must be clear and the emergency sudden and alarming before the act of disobedience can be excused. Masters are bound to obey the rules and entitled to rely on the assumption that they will be obeyed, and should not be encouraged to treat the exceptions as subjects of solicitude rather than the rules.

It is true that where obedience to the rules will result in collision a navigator is justified in disobeying the rule. It was held in the Oregon, 158 U.S. 186, "that the judgment of a competent sailor in extremis cannot be impugned." Cases in which disregard of the rules has been upheld as justifiable by the courts have generally been cases in which the other vessel has already infringed a rule and a situation has arisen in which obedience to the rule could only result in collision. Such exceptions, however, as was said in the Albert Dumois, 177 U.S. 240, "are admitted with reluctance on the part of the courts, only when the adherence to such rules must almost necessarily result in a collision—such, for instance, as a manifestly wrong maneuver on the part of an approaching vessel." In the John Buddle, 5 Notes of Cas. 387, it was said:

All rules are framed for the benefit of ships navigating the seas, and no doubt circumstances will arise in which it would be perfect folly to attempt to carry them into execution, however so wisely framed. It is, at the same time, of the greatest possible importance to adhere as closely as possible to established rules and never to allow a deviation from them unless the circumstances which are alleged to have rendered such deviation necessary are most distinctly approved and established; otherwise, vessels would always be in doubt and go wrong.

5. Damage to Ship.—

The owner of a ship wrongfully injured by collision is entitled to complete restitution. If the loss is total, he recovers her value, with interest from the date of the loss. If the loss is partial, he will recover the cost of full and complete repairs and if such repairs make the vessel a better and stronger one than she was before, he is entitled to that benefit; he will also recover demurrage or compensation for the loss of use of his ship during the time occupied by the repairs.

It frequently happens that the ship is not an absolute total loss, in the sense of being completely destroyed or sunk beyond possibility of recovery, but so injured that the cost of repair will exceed the value at the time of collision; the owner may then treat her as a constructive total loss and claim from the wrongdoer the same amount as if the destruction had been complete. In other words, when the ship is so injured that a prudent business man would not repair, the owner abandons the wreck and claims a total loss. If he recovers, the title to the wreck passes to the wrongdoer.[21]

Expenses incident to the collision are also included in the ship's damage, such as the owner's disbursements in looking after his property; the cost of protest and survey; the wages and board of the crew while necessarily kept on board, the costs of superintending repairs and securing a new rating.

Loss of freight is also an item of damage.

6. Damage to Cargo.—

The cargo-owner is entitled to recover his damages from the offending ship and the ordinary measure is the value of the goods at the time and place of a total loss, with interest and incidental expenses. The purpose of the rule is to place him, as nearly as may be, in the same position as if the collision had not occurred. Where the loss is partial, as where the goods arrive in a damaged condition, the measure is the difference between their actual value and what they would have been worth in good condition; to this may be added, in appropriate cases, the expenses of transhipment, reconditioning, warehousing, survey and sale.

Where both vessels are in fault the owner of the cargo may sue either or both, or as was said by Justice Clifford in the Atlas, 3 Otto 302:

Parties without fault such as shippers and consignees, bear no part of the loss in collision suits, and are entitled to full compensation for the damage which they suffer from the wrongdoers, and they may pursue their remedy in personam, either at common law or in the admiralty, against the wrongdoers or any one or more of them, whether they elect to proceed at law or in the admiralty courts.

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Innocence entitled the loser to full compensation from the wrongdoer, and it is a good defense against all claims from those who have lost. Individual fault renders the party liable to the innocent loser, and is a complete answer to any claim made by the faulty party, except in case where there is mutual fault, in which case the rule is that the combined amount of the loss shall be equally apportioned between the offending vessels.

In the foregoing case the owner of a cargo, lost in a collision in which both vessels were held to be at fault, libeled one of them and decreed his entire damage against the vessel which he sued. A vessel so compelled to pay the whole damage to cargo, in a case of mutual fault, is entitled to recover from the other vessel a contribution so as to equalize the loss as between the two ships.

But this important qualification of the foregoing rule must be observed: That a shipper of cargo who is prevented from recovering against the vessel on which his cargo was shipped, as for instance by his contract of affreightment, or by some rule of law, as, for example (in an applicable case), the Harter Act, cannot hold the other vessel for the entire damage but only for one-half thereof.

In the case of the Niagara, 77 Fed. 329, the steamer Niagara was in collision with the bark Hales, the Court held:

Both vessels being, therefore, in fault, the owners of the bark are entitled to recover against the Niagara one-half their damages for the loss of the bark, to be applied so far as may be legally applicable and necessary in payment of the value of one-half of the cargo claimed under the other libel; and the Niagara is liable for any deficiency to make good the whole value of the cargo owners; as well as for one-half the claims for personal effects.

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If the Harter Act, however, were applicable, it would not affect the liability of the Niagara in the present case; but only the application, as between the shipowner and the owners of the cargo, of the sum the Niagara must pay. The Niagara suffered but little damage; while the loss of the Hales, and of the cargo, are estimated to have been respectively about $16,000 and $26,000. In applying the Harter Act to cases of division of damages for mutual fault, I have heretofore held (1) that it was not the intent of Congress to relieve the carrier vessel at the expense of the other vessel in fault, by increasing the latter's liability, but that the intent was that the cargo should bear the consequences of the carrier's neglect in navigation; (2) that the relief given by the Act to the carrier vessel from responsibility for damage to her cargo, could not be nullified indirectly by a charge against her in the shape of an offset in favor of the other vessel in fault on account of that same cargo; (3) that the extent of the latter vessel's previous liability on the particular facts of each case was not to be diminished by the Harter Act from what she would previously have been bound to pay, except as respects her own cargo; and (4) that the result, therefore, must be that the cargo owner of each ship must stand charged under the Harter Act with so much of the cargo damage as the carrier ship is relieved from by that Act, whenever and so far as that is necessary to avoid any increase in the previous liability of the other ship. The Viola, 60 Fed. 296.

Upon any complication, the first inquiry is, to what amount was each vessel, or her owner, liable under the previous law, upon the particular facts of the case? Under the Harter Act, if it is applicable, that liability cannot be exceeded, and it will remain the same, if necessary to make good the damage to the cargo of the other ship. In getting at the amount which either vessel is to pay under the Harter Act, her own cargo is to be treated as nonexistent; because where the Harter Act is operative the carrier vessel (A) is not liable for that item of damage. But the other ship (B) is bound to pay that item of cargo loss, as well as one-half the damage to the two ships, up to the limit previously ascertained, as above stated, if the remaining value of the ship (B) and her pending freight are sufficient for that purpose. Where this value is not sufficient, and the damage to the first vessel (A) is greater than the damage to the other ship (B), two conflicting claims arise, one in favor of the ship (A), for the purpose of equalizing the loss on the two vessels, and another claim for the loss on A's cargo. As those claims arise at the same time, and are of equal merit, the remaining value of the ship (B) and her pending freight should be apportioned pro rata, according to the amount of the two claims.

In the present case the Hales' loss was about $16,000; that of her cargo about $26,000. The loss on the Niagara was slight, and of her cargo, nothing. Before the Harter Act, the Niagara, upon the above figures, would have been obliged to pay $8,000 for half the loss of the Hales (which would, however, have been applied upon the latter's liability to her cargo); $13,000 for half the cargo loss, and $5,000 in addition, on account of the total loss of the Hales, in order fully to indemnify the cargo, making $26,000 in all (The Atlas, 93 U.S. 302). Under the Harter Act, the Hales being relieved from any liability to her cargo for this damage, her owners would retain the $8,000 for their own use, instead of applying it on the cargo as before; but the Niagara's liability is not to be thereby increased or diminished. This item of loss is transferred by the Harter Act to the cargo. The Niagara must pay, therefore, as before, $13,000, and the $5,000 (that is, $18,000), on account of the cargo loss, and the cargo-owner loses the $8,000, which his carrier under the Harter Act is entitled to retain. It is immaterial, therefore, to the Niagara whether the Harter Act is applicable or not. It affects only the distribution of the $26,000.

7. Damage to Crew and Passengers.—

Personal belongings of crew and passengers may be lost or injured in the collision and the measure of damages is the same as in the case of the cargo. If totally lost, the value at the time of the collision governs not what the articles originally cost when new. If only injured, then the difference between sound and damaged condition controls. Interest follows as in other cases.

Personal injuries and loss of life are also included in collision damage. The measure here is the same as in similar matters on land.

8. Contribution.—

The 59th Rule in Admiralty provides that the claimant of any vessel proceeded against, or any respondent proceeded against in personam may bring in a petition alleging fault in any other vessel contributing to the collision, and praying that such other vessel be made a party to the suit. The other parties to the suit are to answer the petition and the vessel or party newly brought in shall answer the libel. This brings in both vessels, provided the vessel so brought in is within the jurisdiction of the court and can be reached by its process, and makes it possible for the court to enforce appropriate contribution of damage by the parties in fault.

Since we have already seen that, in a case in which both vessels are in court in the first place, the court will decree contribution, there remains only the case in which a claimant of lost cargo has brought suit against one vessel or her owner, and the other vessel cannot be reached by process of the court. Suppose that in such a case the cargo-owner gets a decree against the vessel or party defendant and for his full damage, can the vessel or the party thus mulcted maintain an independent suit for contribution against the other offending ship? It can only be said that on this point the authorities are in direct conflict; however, in the modern case of Lehigh Valley R.R. Co. v. Cornell Steamboat Co., 218 U.S. 264, it seems to be clearly inferable that in the opinion of the Supreme Court of the United States such an action is maintainable.

What has been said with respect to damage suffered by owners of lost cargo, applies equally to damages for personal injuries sustained as the result of a collision.

9. Division of Damages.—

Where both, or several, ships are in fault, the maritime law apportions the damage between them. When one of two vessels has suffered more than the other the decree is against the one least injured for one-half of the difference in their respective losses. In the North Star, 106 U.S. 17, where both vessels were adjudged in fault for a collision and one, the Ellis Warley, became a total loss, the owners of the Warley advanced the ingenious argument that, inasmuch as their vessel had been entirely lost, they were entitled to limit their liability and, by so doing, recover one-half their entire damage from the North Star, without any deduction for the damage suffered by her, notwithstanding the rule of division of damage in such cases. It will be noticed that the vessel claiming the right to limit liability, being the greater sufferer, would, in no event, have been required to pay anything to the other, and that the North Star, which had to do the paying, did not claim any right to limit liability. In rejecting this argument and holding that the time to apply the limitation-of-liability rule was after the amount of the liability had been ascertained, when the party decreed to pay might claim the benefit of the rule if entitled to it, the Court entered upon an instructive review of the entire history of the division of damage, and found that the theory is not that the owner of the one vessel is liable to the owner of the other for one-half of the damage sustained by the latter, and vice versa, that the owners of the latter are liable to those of the former for one-half of the damage sustained by her; but that the joint damage is equally divided between the parties; that it is a case of average and is to be computed by subtracting the lesser loss from the greater, dividing the difference by two and directing the vessel sustaining the smaller loss to pay the other the amount so found.

Where both vessels are in fault and only one is injured, the uninjured vessel must pay to the other one-half of the amount of her damage without deduction.

The cargo, being innocent, may sue both vessels or either, but if the result is that one is so compelled to pay more than its proper proportion of the total, a suit for contribution under the conditions set forth in the preceding section will lie in order to accomplish an ultimate equality. The admiralty does not recognize the common-law rule that contributory negligence prevents recovery and the same division or apportionment of damage is applied to cases of personal injury in collision as otherwise.

10. Lien.—

The party injured by collision acquires a maritime lien of high rank upon the guilty vessel which attaches at the moment the damage is done and inheres, as a property right, until it is satisfied, bonded, or extinguished by an admiralty sale, or abandoned by his own laches, or delay in enforcement. It attaches to the hull of the ship and also to her engines, boilers, boats, apparel and freight pending but not to her cargo and, equally, whether the offending ship was in actual contact with the other or whether she caused the collision between other ships by her own negligent navigation, as by suction or displacement waves. The lien will follow the ship into the hands of an innocent purchaser for value unless proceedings to enforce it have been unreasonably delayed or other circumstances render its enforcement inequitable. It has priority over almost all other maritime liens, only subsequent salvage and wages being ordinarily preferred.

Since the enactment of the act of March 30, 1920, a lien arises out of the loss of life in a collision, as in the case of personal injuries.

11. Limitation of Liability.—

Where the owner of the offending vessel is not personally at fault for the disaster, his liability is limited to the value of his ship and freight pending, as of immediately after the disaster. If the ship is lost, his liability disappears with her. He is not, under American law, obliged to account for the insurance because that is not a part of the ship but the result of an independent, collateral contract.

12. Remedies.—

The most usual remedy employed in cases of collision is that afforded by the Limited Liability Law.[22] This gives the shipowner the right to call all damage claimants into one court and dispose of everything in a single proceeding, thus eliminating a multiplicity of suits in different jurisdictions. The question of fault may be litigated in this proceeding and it may be commenced either before or after the commencement of other actions. Injured parties, if they choose, may sue at common law as in other cases of negligence. The more effective remedies, however, are in admiralty. They may there proceed directly against the ship, or the ship and master together, or against the master or the owner alone, personally. The master of the injured ship may bring the suit in his own name on behalf of all concerned, including the cargo. Underwriters who have paid for losses caused by collision become subrogated to the rights of their assured and may sue accordingly.

13. Evidence.—

The party alleging negligence must bear the burden of proof in establishing it. He must show fault on the part of the other vessel as well as due care on his own. By act of Congress, approved September 4, 1890 (26 St. at L. 425), the so-called "Stand-by" act, failure of a vessel to stay by another vessel with which she has been in collision until there is no further need of assistance, raises the presumption that she is in fault for the collision. This presumption, however, is not conclusive, but may be rebutted by testimony. Cases of this kind appear to be inconsistent with the doctrine laid down in some of the earlier decisions and represent a modern tendency to extend the maritime jurisdiction. Sometimes the conceded facts establish a presumption of fault, as where a collision occurs with a ship properly at anchor or between steam and sail. This will usually appear on the pleadings. The facts at issue are shown by the testimony of those who saw or participated in the disaster. These generally come from the officers and crews of the vessels involved and every man ought to be accounted for. Extreme contradictions are to be expected in the evidence as there is a natural tendency on the part of sailors and passengers to be so loyal to their own ship as to impute every fault to the one which runs into her. The courts seldom attempt to reconcile conflicting testimony but frequently decide on the conceded facts and probabilities. The evidence of disinterested parties is of much weight.

REFERENCES FOR GENERAL READING

Law of Marine Collisions, H.R. Spencer. Chicago, 1895; Callaghan & Co.

Collisions at Sea, R.G. Marsden. London, 1904; Stevens and Sons, Ltd.

Damages in Maritime Collisions, E.S. Roscoe. London, 1909; Butterworth & Co.

Admiralty Law, 8 Columbia Law Review (March, 1908).

Scotia, 14 Wall. 170.

Belgenland, 114 U.S. 355.

[20] In Seabrook v. Raft, 40 Fed. 596, where there was a collision between a raft and a dredge, moored by six anchors, the jurisdiction was sustained.

[21] In modern practice, insurance is nearly always carried upon a vessel and cargo. The modern authorities on the subject of constructive or total loss and abandonment, as well as the items of damage recoverable on account of vessel and cargo are, in nearly every instance, cases arising out of policies of marine insurance. This subject is treated at large in another volume of this series.

[22] See Chapter VIII, supra.

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