whether from collision or otherwise, so far as it can be done with reasonable safety to themselves.

The Germania, 21 Law Times Rep., (N. S.,) 44.

By 25 & 26 Vict., c. 63, s. 33, in case of collision between two ships, it is the duty of "the person in charge" of each ship to render assistance to the other; and, in case he fails to do so, without reasonable excuse, the collision shall, in absence of proof to the contrary, be deemed to have been caused by his wrongful act.

This principle was applied in The Queen of the Orwell, 7 Law Times, (N. S.,) 839; 11 Weekly Rep., 499.

The "person in charge," intended by that section, is the master. The Queen; The Lord John Russell, Law Rep., 2 Adm. & Ecc., 354.

CHAPTER XXXIII.

COLLISION.

These rules are chiefly from the Civil Code, reported for New York, p. 115, and the German General Mercantile Law. For a discussion on the liability for collision at sea, see The Transactions of the British National Association for Promotion of Social Science, 1859, p. 216.

ARTICLE 379. Loss, how apportioned.

380. Faults of navigation.

381. Who liable.

382. Personal liability of wrong-doer.

383. Compulsory pilotage.

Loss, how apportioned.

3

379. Losses caused to ship, freight,' or freightage, by any' collision of two or more ships, are to be borne as follows:

1. If either party was exclusively in fault, he must bear his own loss, and compensate the other for any loss he has sustained ;*

4

2. If neither was in fault, the loss must be borne by him on whom it falls ;"

6

5

3. If both were in fault, the loss is to be equally divided, unless it appears that there was a great disparity in fault, in which case the loss must be equitably apportioned; or, unless it appears that both parties were

willfully in fault, in which case the loss must be borne by him on whom it falls; or,

4. If it cannot be ascertained where the fault lies, the loss must be equa:ly divided.

8

1 The Narragansett, Olcott, 246; Allen v. Mackay, Sprague's Decisions, 219. The word “freight" is used to designate whatever is borne, as most likely to avoid the use of the same word in two senses, freight being in frequent use for the thing carried, as well as for the price of carriage.

2 These are applicable, whether one or both of the ships are sailing, drifting, anchored, or fastened to the shore. German Mercantile Law, § 738.

3 The owner of a vessel solely in fault is answerable for damages caused by a second vessel being driven by the collision against a third. Germ. Merc. Law, § 741.

4 The Scioto, Daveis' Rep., 359; The Woodrop-Sims, 2 Dods., 83; The Sappho, 9 Jurist, 560; Reeves v. The Constitution, Gilpin's Rep., 579. Where repairs are practicable, the damages awarded must be sufficient to restore the injured vessel to the condition in which she was before the collision, without any deduction from new for old. The Baltimore, 8 Wallace's U. S. Sup. Ct. Rep., 377.

5 The Woodrop-Sims, supra; Stainback v. Rae, 14 Howard's U. S. Sup. Ct. Rep., 532; The Itinerant, 2 W. Robinson's Rep., 236; The Celt, 3 Haggard's Adm., 328, note. An inevitable accident is defined in The Virgil, (2 Robinson's Rep., 201,) to be, “that which the party charged with the "offense could not possibly prevent by the exercise of ordinary care, caution, and maritime skill." The Uhla, 19 Law Times Rep., (N. S.,) 89.

6 This is the rule in admiralty courts. Cushing v. The John Fraser, 21 Howard's U. S. Sup. Ct. Rep., 184; Rogers v. The St. Charles, 19 Id., 108; The Catherine v. Dickinson, 17 Id., 177; Vaux v. Sheffer, 8 Moore's Privy Council Rep., 75. It is otherwise at common law. Dorrell v. Gen. St. N. Co., 5 Ellis & Blackburn's Rep., 195; Gen. St. N. Co. v. Mann, 14 Common Bench Rep., 127. See Barnes v. Cole, 21 Wendell's (New York) Rep., 188.

In this case, the court will not interfere in favor of either party. Sturgis v. Clough, 21 Howard's U. S. Sup. Ct. Rep., 451.

8 The Scioto, Daveis' Rep., 359; The Catherine of Dover, 2 Haggard's Adm., 145; Lucas v. The Swann, 6 McLean's U. S. Circ. Ct. Rep., 282; The Nautilus, Ware's Rep., 529.

Faults of navigation.

380. Collisions caused by the want of compliance, on the part of any ship, with the rules of Chapter XXXII., on NAVIGATION, whatever may be the excuse for such want of compliance,' and collisions to which

a ship not lawfully engaged in navigation is a party,' are to be deemed caused by the fault of such ship.

1 The Emperor v. The Zephyr, Holt's Rule of the Road, p. 24; 12 Weekly Rep., 890, Adm.; The Pyrus v. The Smaler, Holt's Rule of the Road, p. 40.

Compare, however, Kissam v. The Albert, 11 Am. Law Reporter, (N. S.,) 41.

2 The Maverick, Sprague's Decisions, 23.

It may perhaps be ques ioned whether this should be applied to ships without national papers. See Article 69.

Who liable.

381. The party in fault, within the meaning of article 379, is the owner of the ship, defects in which, or in the appurtenances or management of which, or the acts or omissions of inmates of which, contribute to produce the collision.

The ship' itself, and such freightage as is due,' are also liable, but neither the freight nor the owners thereof."

1 The Ruby Queen, Lushington's Rep., 266.

A bona fide transfer without notice does not divest the injured party's lien, if he is not guilty of laches in enforcing it. Edwards v. The Stockton, Crabbe's Rep., 580; The Bold Buccleugh, 3 W. Robinson's Rep., 220; Harmer v. Bell, 7 Moore's Privy Council Rep., 267. But this lien, like every admiralty lien, may be lost by delay to enforce it. The Admiral, 18

Law Reporter, 91.

2 German General Mercantile Law, Part VIII., Art. II., § 736; The Victor, Lushington's Rep., 72.

3 Freightage on cargo due to the ship owner is liable; deductions, as by charter, from gross freight, and reasonable deductions for non-delivery at port of destination, being allowed. The Leo, Lushington's Rep., 444; 31 Law Journal, Adm., 78; 6 Law Times, (N. S.,) 58.

Personal liability of wrong-doer.

382. Article 379 does not affect the personal liability of the inmate of any ship for the consequences of his own fault.

German General Mercantile Law, Part VIII., Art. II., § 736; and see Hale v. Washington Insurance Company, 2 Story's U. S. Circuit Ct. Rep., 176; The Wild Ranger, 32 Law Journal, Adm., 49; 7 Law Times, (N. S.,) 725; 9 Jurist, (N. S.,) 134.

Compulsory pilotage.

383. When the ship is in charge of a pilot, where

pilotage is compulsory, and the crew have performed the duties required of them,' the owner and ship are not responsible for the collision if caused by the pilot;2 but it is the duty of the State by which the employment of the pilot was compelled, to indemnify the parties injured.3

1 In The Minna, Law Rep., 2 Adm. & Ecc. 97, the owners of a wrongdoing ship having, by compulsion of law, a pilot on board, were held not to be exempt, under the 388th section of the Merchant Shipping Act, 1854, from liability for damages, where a neglect of duty on the part of the master conduced to the collision.

2 German General Mercantile Law, Part VIII., § 740. Having a pilot on board is not an exoneration. The Carolus, 2 Curtis' U. S. Circuit Ct. Rep., 69; Denison v. Seymour, 9 Wendell's (New York) Rep., 9.

3 This qualification is added, as being a reasonable condition to annex to compulsory pilotage.

The expediency of the law of compulsory pilotage, so far as it exempts the owner of the wrong-doing vessel from all liability, was considered and questioned in The Halley, Law Rep., 2 Adm. & Ecc., 3, where the plaintiffs, owners of a foreign vessel, claimed damages for a collision between their vessel and an English ship, in Belgian waters. The defendants, the owners of the English ship, pleaded that, by the Belgian laws, pilotage was compulsory in the place where the collision occurred. It was held, that the plaintiffs were entitled to plead, in reply, that, by the same laws, the owner of the wrong-doing vessel, although compelled to take a pilot on board, continued liable for the damages.

CHAPTER XXXIV.

GENERAL AVERAGE.

ARTICLE 384. Jettison.

385. Order of jettison.

386. By whom made.

387. General average.

388. Loss, how borne.

389. Loss, how adjusted.

390. Consular power.

391. Jettison of deck cargo.

392. Damage by water and breakage.

393. Extinguishing fire on shipboard.
394. Cutting away wreck.

ARTICLE 395. Voluntary stranding.

Jettison.

396. Carrying a press of sail.

397. Port of refuge expenses.

398. Wages and maintenance of crew in port
of refuge.

399. Damage to cargo in discharging

400, 401. Contributory values.

384. A carrier by water may, when in case of extreme peril it is necessary for the physical saiety of the ship or cargo,' throw overboard, or otherwise sacrifice, any or all of the cargo or appurtenances of the ship. Throwing property overboard for such purpose is called jettison.

Lawrence v. Minturn, 17 Howard's U. S. Sup. Ct. Rep., 100.

This and several of the following Articles are, substantially. from the Civil Code, reported for New York, pp. 336, 337.

"To constitute a case of general average," says Judge MARVIN, (Report on Int. Gen. Ave.,) "three things must concur: 1st. There must be a common danger impending, in which ship, freight, and cargo participate. 2nd. There must be a sacrifice of a portion of the ship or cargo, or extraordinary expenses incurred for the purpose of avoiding that common peril. 3rd. The attempt to avoid the peril must be successful."

"The English and French systems, as administered by the average adjusters, in the absence of express decisions of the courts on the question, accord best with the idea, that the motive for making the sacrifice or incurring the expense must be the common physical safety of the property; and this attained, the general average charges cease, although the ship may not have completed the voyage. The American system accords best with the idea, that the motive may be either the physical safety of the property, or the common benefit; i. e., the arrival of the ship and cargo in company at the port of delivery. The English and French systems recognize the idea, that the community of interest is interrupted or suspended by the landing of the cargo in a place of safety, however remote from the port of destination; whereas the American system recognizes the community of interest as continuing, uninterruptedly, until the termination of the adventure."

Order of jettison.

385. A jettison must begin with the most bulky and least valuable articles, so far as may be practicable. Code de Commerce, Art. 411.

By whom made.

386. A jettison can be made only by authority of