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INDEX TO VOL. IV. (Fourth Series.)
By Sir Travers Twiss, Q.C.
(Sottomayor v. De Barros.) By Arthur Tilley ... 384
(Niboyet v. Niboyet.) By J. Alderson Foote
Keogh, The late Right Hon. Mr. Justice
No. CCXXX.—NOVEMBER, 1878.
1.–COLLISIONS AT SEA: A SCHEME OF INTER
NATIONAL TRIBUNALS. THE application of steam-power to sea-going vessels has
worked so great a change in the conditions of ocean navigation as to render it necessary for nations to concert a common system of rules for the navigation of vessels on the high seas, with a view to prevent accidents from collision. It is obvious that the two ancient cardinal rules of navigation, which had hitherto sufficed for the guidance of sailing vessels on the high seas, namely, that vessels going free should give way to vessels on a wind, and that the vessel on the port tack should always give way to the vessel on the starboard tack, are insufficient for the safe guidance of vessels navigated under steam-power, and not under sail. Although the same principles of navigation might still be properly maintained in the case of steamers, where applicable, it has been found requisite that the rules of navigation should be extended to other cases, seeing that the course of steamers is not governed exclusively by the wind, and that a steam vessel is enabled by a skilful use of her steam-power to manœuvre in a manner which is impracticable for a sailing vessel. Great Britain was amongst the leading states to set the example. She commenced by laying down formal rules for the navigation of steam vessels on her own rivers, and after some experience, extended the rules to her own steam vessels on the
high seas, and she included her sailing vessels under a reciprocal system of obligation when approaching steam vessels. British Admiralty Courts were also authorised by British statute law to regulate their judgments in
of collision between British vessels on the high seas in accordance with the new rules. In due course of time, after experience had given its sanction to those rules, Great Britain entered into treaty arrangements with foreign powers, that their vessels should be navigated on the high seas under the same system of rules, and she has authorised her Admiralty Courts to apply the new rules to every vessel whose flag has been brought, with the consent of its Government, within the operation of the new rules. Cases of collision on the high seas have thus been brought by a common international concert under a new system of law, which has been built up on the lines of the ancient customs of the sea as far as possible, the steam vessel being regarded as a vessel going free, and able to get out of the way of a sailing vessel, more readily than a sailing vessel can get out of the way of a steam vessel. It is not proposed, on the present occasion, to discuss the details of the International Sailing Rules. Modifications have had to be made in them from time to time to meet new difficulties which experience has discovered, and such modifications have been the result of a common concert between the maritime powers. Our object at present is to consider how the observance of the sailing rules on the high seas can be best secured, and how the neglect of them, if it be the result of carelessness or of wilfulness, may be most effectively punished.
Under the ancient law of the sea, every collision on the high seas may be the subject of a civil action for damages in any Admiralty Court; but however culpable may have been the conduct of those in charge of either vessel, British Admiralty Courts, which exercise their civil jurisdiction indiscriminately between vessels of all nations, care
fully abstain from exercising any criminal jurisdiction over the crews of foreign vessels in respect of their neglect to observe the sailing rules, nor has Great Britain been empowered by any treaty arrangement with foreign states to authorise her Courts to exercise any such criminal jurisdiction. Yet it would seem to be in accordance with reason, that where states have agreed upon a common system of rules of navigation for the prevention of collisions on the high seas, they should agree upon a common system of penalties for the non-observance of those rules on the part of the persons, who may have been in charge of the navigation of any vessels which have come into collision on the high
This common concert is the more necessary, because the modern theory of a ship being the territory of the nation, under whose flag it sails, would otherwise be in the way of the tribunals of any other nation exercising corrective jurisdiction over those on board of the ship in respect of any misconduct on their part whilst the vessel is on the high seas. The personal responsibility of mariners who navigate the high seas remains, in regard to foreign nations, precisely such as it was before any sailing rules were agreed upon amongst the maritime powers ; in fact, the mariner has no personal responsibility towards the owner or crew of any foreign vessel with which he may bring his own vessel into collision on the high seas, unless his act should be done with a malicious intention to destroy the other vessel, which may clothe it with a piratical character.
The ancient law of the sea, which is universally received amongst civilised nations, regards ships as chattels, the management of which on the high seas is not so thoroughly under the free control of the owner or his servants, inasmuch as the sea is a treacherous element, that he or they should be held criminally reponsible for any damage caused by one ship to another ship in the course of navigation. The owner of the ship, however, in the case of a collision, is not allowed by the law of the sea to escape scot-free, if his
servants mismanage his vessel on the high seas, and through their unskilfulness bring about the collision with another vessel. The ship itself in such a case may be arrested by the process of any Admiralty Court, and if the servants of the owner are found to have mismanaged her navigation, and by such mismanagement to have brought her into collision with the other vessel, the owner may be amerced in the value of his ship, which may be sold by an order of the Admiralty Court, if the owner is otherwise unable to satisfy the judgment of the Court. This result is brought about by what is termed an actio in
rein, a tradition of the ancient Roman law. It is totally opposed to the territorial theory of a ship, which is of modern origin, and has been devised as a convenient fiction to explain the subjection of the ship and its crew to the municipal law of the country under whose flag it is navigated. But this theory, like everything else which rests on a fiction, has its inconvenience. Whilst it is useful for maintaining discipline on board of a ship when it is on the high seas, which are nullius territorium, it may be mischievous if it secures territorial impunity to the master and crew in the management of their vessel, in its relation to other vessels on the high seas.
The international responsibility of mariners, under which term may be included all persons engaged in the navigation of a ship, is thus in fact of a negative character; they are taken to be the agents of the owner or of the charterer of the ship, as the case may be, and their employer is responsible for any mismanagement on their part of the navigation of his vessel. The owner or the charterer, on the other hand, under the modern system of marine insurance, is able to shift his risk, which is strictly pecuniary, on to the shoulders of the underwriter; and the underwriters are the parties in the present day, who institute and defend actions in rein in most causes of collision, which are brought into the