Mills v Armstrong. The "Bernina"
| Jurisdiction | England & Wales |
| Judgment Date | 24 January 1887 |
| Date | 24 January 1887 |
| Court | Court of Appeal |
Court of Appeal
Lord Esher, M.R., Lindley and Lopes, L.JJ.
The Bernina
Thorogood v. BryanENRUNK 8 C. B. 115 18 L. J. 336, C. P
Quarman v. BurnettENR 6 M. & W. 499
Reedie v. The London and North-Western Railway CompanyENR 4 Ex. 244
Cattlin v. HillsENR 8 C. B. 123
Bridge v. The Grand Junction Railway Company 3 Mee. & W. 244
Butterfield v. ForresterENR 11 East, 60
Ashby v. White Smith's L. C. vol. 1, 3rd edit. P. 132, a
Rigby v. HewittENR 5 Ex. 240
Greenland v. ChaplinENR 5 Ex. 243, 248
Tuff v. WarmanENRENR 2 C. B. N. S. 740 5 C. B. N. S. 573
Waite v. The North-Eastern Railway CompanyENR E. B. & E. 719
Child v. HearnENR L. Rep. 9 Ex. 176
Armstrong v. The Lancashire and Yorkshire Railway CompanyENR 33 L. T. Rep. N. S. 228 L. Rep. 10. Ex. 47
The MilanENR Lush. 388
Hay v. Le Neve 2 Shaw's Sc. App. 395
Spaight v. TedcastleELR 44 L. T. Rep. N. S. 589 L. Rep. 6 App. Cas. 217
Smith v. Smith 2 Pickering Rep. 621
Simpson v. Hand 6 Wharton's Rep. 311
Vanderplank v. MillerENR M. & M. 169, 168
Chapman v. The Newhaven Railway Company 5 Smith Rep. 341
Colegrove v. The New York and Newhaven Railway Company 6 Smith's Rep. 492
Frances Brown v. The New York Central Railway Company 31 Barbour's Rep. 385
Mooney v. The Hudson River Railroad CompanyENR 5 Robertson, 549
Webster v. The Hudson River Railroad Company 11 Tiffany, 260
Little v. Hackett 14 Amer. Law Record, 577
Davies v. MannENR 10 M. & W. 546
Dowell v. The General Steam Navigation CompanyENR 5 E. & B. 195
Radley v. The London and North-Western Railway CompanyELR 35 L. T. Rep. N. S. 637 1 App. Cas. 754
Clark v. ChambersELR 38 L. T. Rep. N. S. 454 3 Q. B. Div. 327
Hobbs v. The Glasgow and South-Western Railway CompanyENR 3 Sc. Sess. Cas. 215
Lord Campbell's Act 1846 (9 & 10 Vict. c. 93)
Judicature Act 1873 (36 & 37 Vict. c. 66), s. 25, sub-sect. 9
Collision — Loss of life — Action in personam
Thorogood v. Bryan (8 C. B. 115; 18 L. J. 336, C. P) approved.
MARITIME LAW CASES. 75 Ct. of App.] The Bernina. [Ct. of App. Nov. 8,1886, and Jan. 24,1887. (Before Lord Esher, M.R., Lindley and Lopes, LJJ.) The Bernina. (a) ON APPEAL FROM BUTT, J. Collision - Loss of life - Action in personam - Both ships to blame - Contributory negligence - Measure of damages - Lord Campbell's Act 1846 (9 & 10 Vict. c. 93) - Judicature Act 1873 (36 & 37 Vict. c. 66), 8. 25, sub-serf. 9. Where passengers and seamen off duty are hilled in a collision between two ships both of which are to blame, the deceased are not identified with their carrying ship so as to be deemed to be guilty of contributory negligence, and hence their personal representatives are entitled under Lord Campbell's Act to sue the owners of the noncarrying ship. Thorogood v. Bryan (8(7. B. 115; 18 L. 7.336, C. P.) overruled. Sect. 25, sub-sect, 9, of the Judicature Act 1873 providing that " in any cause or proceeding for damages arising out of a collision between two ships, if both ships shall be found to have been In fault, the rules hitherto in force in the Court of Admiralty, so far as they have been at variance with the rules in force in the courts of common law shall prevail," has no application to actions under Lord Campbell's Act instituted to recover damages for loss of life occasioned by a collision between two ships for which both are to blame, and hence successful plaintiffs in such cases are entitled to recover full damages, and are not limited by the Admiralty Court ride as to the division of damages to recovering only a moiety. This was an appeal by the plaintiffs in three actions in personam under Lord Campbell's' Act from a decision of Butt, J. giving judgment for the defendants in all three actions. The actions were instituted by the personal representatives of three deceased persons whose deaths had been occasioned by a collision between the two steamships, the Bernina and the Bushire. The three deceased persons were respectively the second officer on the Bushire, the first engineer on the Bushire, and a passenger on board the Bushire; and the actions were brought against the owners of the Bernina. It appeared that the collision was occasioned by the joint negligence of both vessels. At the time of the collision the second officer was in charge of the Bushire, and was directly responsible for the navigation of the Bushire. The engineer and passenger had nothing to do with the collision. (5) (a) Reported by J. P. Aspinall, and Butler Assinall, Esqrs., Barrister-at-Law (6) It was admitted thai the appeal could not bo prosecuted on behalf of the representatives of the second officer. - ED. 76 MARITIME LAW CASES. Ct. of App.] The Bernina. [Ct. of App. It was arranged that in the event of the plaintiffs being successful, there should be a reference to the registrar and merchants to assess the damages in accordance with the judgment of the court. The facts were set out in a special case which appears in the report below (54 L. T. Rep. N. S. 499; 5 Asp. Mar. Law Cas. 577; 11 P. Div. 31). Nov. 8,1886. - Buchiill, Q.C. and Nelson for the plaintiffs, in support of the appeal. - Butt, J. declined to give judgment for the plaintiffs, on the ground that he was bound by the decision of Thorogood v. Bryan (8 C. B. 115; 18 L. J. 336, C. P.). This court has power to overrule that decision, and should do so. The decision has from the outset been questioned, and no text-writer has approved of it. Moreover, condemnation has been passed upon it by high judicial authority in this country, in Scotland, and in the United States: Adams v. The Glasgow and South-Western Railway Company, 3 Sootch Sess. Cos., 4th series, 215; The Milan, Lush. 388; Say v. Le Neve, 2 Shaw Sc. App. 505; Chapman v. Newhaven Railway Company, 6 Smith's Rep. 341; Colegrove v. New York and Newhaven Railway Company, 6 Smith's Rep. 492; Webster v. Hudson River Railroad Company, 08 N.Y.Bop.260; Smith's Leading C;. ses, 4th edit., vol. 1, p. 220, a. The decision cannot be supported on any sound legal principle. The assumption upon which it is founded, that the plaintiff by selecting his conveyance thereby identifies himself with those who have charge of it so that their negligence is to be considered his, is an erroneous assumption and not warranted by fact or principle. The passenger has, in fact, no control over those who have charge of the conveyance, and they are neither his agents nor his servants. True it is that Lord Bramwell in Armstrong v. The Lancashire and Yorkshire Railway Company (33 L. T. Rep. N. S. 228; L. Rep. 10. Ex. 47) assented to the doctrine of Thorogood r. Bryan (ubi sup.), but nowhere else has it been in terms approved of, and many decisions are inconsistent with it;: Quarman v. Burnett, 6 M. & W. 499; Rigby v. Hewitt, 5 Ex. 240; Greenland v. Chaplin, 5, Ex. 243 ; Reedie v. London and North-Western Railway Company, 4 Ex. 244. Assuming the plaintiffs are entitled to judgment, they should recover the whole of their damages and not half. The Admiralty Court rule as to the division of damages where both ships are to blame has no application to this case. By sect. 25 of the Judicature Act 1873, that rule is to apply to any cause for damages arising out of a collision between two ships, if it be a rule hitherto "in force in the Court of Admiralty." But no such rule had been in force in the Admiralty Court, because these are actions under Lord Campbell's Act, and none of these actions could be brought in the Admiralty Court before the Judicature Act. Sir Walter Phillimore and Barnes, for the defendants, contra. - The decision in Thorogood v. Bryan (ubi sup.) has been law for the last thirty-eight years, and, although sometimes adversely criticised, has been followed in numerous cases. Lord Bramwell has in terms approved of it, and many decisions impliedly support the principles upon which it was based: Armstrong v. Lancashire and Yorkshire Railway Company (ubi sup.); spaight v. Tedcastle, 44 L. T. Rep. N. S. 589; L. Rep. 6 App. Cas. 217; Waite v. North-Eastern Railway Company, E. B. & E. 719; Child v. Hearn, L. Rep. 9, Ex. 176; Vanderplank v. Miller, M. & M. 169; Brown v. New York Central Railway Company, 31 Barbour's Rep. 385; Mooneg v. Hudson River Railroad Company, 5 Robertson, 549. Even apart from Thorogood v. Bryan (ubi sup.), Armstrong's personal representatives have no right of action. They could not recover against the owners of the Bushire, because Armstrong's death was caused by the negligence of a fellow-servant. If therefore they have no right against the one wrongdoer, it is manifestly contrary to sound principle that they should have a right against the other. It is also submitted that the provisions of the Judicature Act 1873, s. 25, sub-sect. 9, are applicable to these actions, and therefore the plaintiffs if successful are only entitled to a moiety of their damages. That section deals with "any cause or proceeding for damages arising out of a collision between two ships." These actions are clearly causes or proceedings " for damages arising out of a collision between two ships." Bucknill, Q.C. in reply. Cur adv vult Jan. 24. - Lord Esher, M.B. - This was a special case heard and determined by Butt, J., sitting in the Court of Admiralty. It appears from the case that three actions had been brought and entered in the Admiralty Division, each for damages against the owners of the ship Bernina, the actions being founded on Lord Campbell's Act. In the first, Elizabeth Armstrong sued as administratrix of her husband on behalf of herself and children. In the second, Catharine Owen sued as administratrix of her husband. In the third, Habiba Toeg sued as administratrix of her son. The collision took place between the Bernina and the Bushire, both British ships, and the collision was caused by the fault or default of the master and crew of the Bushire , and by the fault or default of the master and crew of the Bernina. Armstrong was one of the crew of the Bushire, but...
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