it from the jury. It is at least bound not to give to the prosecutor, of all people in the world, the option of laying or not laying before the jury the judicial declaration of the man whom he urges them to convict. And when that document is produced, it should have all the weight as evidence in favour of the prisoner which the jury is willing to give to the statements of one so deeply interested.

But when all concessions have been made to the present Scottish system, and all improvements on its preliminary examination of the prisoner have been accepted, it seems still impossible to believe that it can ever take the place of a real interrogation in presence of the assize. I shall not dwell upon this, but shall look finally at three objections which have been made to such interrogation.

One great objection to examining the accused in open court has always been that a nervous or stupid prisoner would thus be placed under great disadvantage. We may pass over the answers which have been made to this objection in so far as these apply both to Scotland and England; 1 but it seems impossible to escape from one a fortiori argument in so far as it condemns the present "declaration" in Scotland.

1

Eg., "The nervous or stupid prisoner is at a disadvantage. But so is the nervous or stupid witness at a disadvantage; and you have much less right to force him against his will into the witness-box, and make him tell his story under the sanction of perjury, than you have in the case of an accused. Every nervous person and every stupid person dislikes to give evidence; but the person of all others who has least right to act on that dislike and refuse to speak is precisely the person whom the objection singles out to protect the man whom the prosecuting authorities believe to have committed a crime, and whom the jury invite simply to tell them the facts he happens to know." No doubt the law should not make him speak, as it does the others, by threat of imprisonment; but that is because he speaks under the more immediate sanction that if he refuses the jury will necessarily reckon it against him.

THE LAW OF COLLISIONS AT SEA: A STEP

TOWARDS UNIFORMITY.

[Contributed by R. G. MARSDEN, Esq.]

AT a Conference of the Comité Maritime International, held at Antwerp in September last, resolutions were passed to the following effect :

(1) In case of collision without fault in, or without fault being proved against, either ship, shipowner and cargo-owner should bear their own losses.

(2) In case of collision between a tug, or between the ship in tow, and a third ship, by the fault of the tug, the owner of the ship in tow should be liable, except where those on board the tug are not the agents of the owner of the ship in tow.

(3) In case of collision by the fault of both ships, the owner of each should be liable for damage to the other, or to her cargo, in proportion to the fault of his own ship.

(4) In case of collision by the fault of a compulsory pilot, the shipowner should be liable.

The resolutions were otherwise worded, but the above is a short summary of their effect.

The Comité Maritime International is an association of committees which have been formed in Belgium, Denmark, England, France, Germany, Holland, and Norway for the purpose of introducing, if possible, more uniformity into the diverse laws of maritime nations with reference to collision and other kindred matters. The constitution of the committees shows that the principal commercial and legal interests in each country have been consulted and are fairly represented. The English committee is nominated by the International Law Association, and Sir Richard Webster is its President. The matter, therefore, so far as this country is concerned, has been handled by some of those who are best able to bring it to the attention of Parliament. What is no less important is the fact that the agreement arrived at with reference to the above matters was almost unanimous.

The first resolution merely gives effect to the law of England, declaring

it to be preferable to the laws of Holland and of Portugal, by which, if a ship under way fouls a ship at anchor, even without negligence, the latter is entitled to recover half her loss.

Resolution (2) is intended, apparently, to express the law of England; but it would necessitate a change in the laws of France and Holland, by which the primâ facie liability of the owner of the tow for fault of those on board the tug is not recognised. This primâ facie liability depends upon the doctrine of the English courts, that the tug is "the servant" of the ship in tow. There was some discussion at the Conference as to the soundness of this doctrine, which is certainly not beyond suspicion. The owner of a waggon which is being hauled upon a highway by a traction engine, or the owner of a truck of coals upon a railway, would not, we apprehend, even primâ facie be liable for damage done either by the engine or by the truck; and although our Admiralty courts, influenced, it would seem, by dicta in the early towage cases as to the tug being the servant of the tow, have for many years cast the whole liability for damage done by the fault of the tug upon the owner of the tow, the principle upon which they have acted is not clear. There seems to be some doubt whether the personification of the ship has not in this, as in other cases, given rise to a false analogy and to a wrong application of the common law doctrine of respondeat superior. There are certainly many cases in which those on board the tug have the whole control of the navigation of both tug and tow, and in such cases it is a perversion of the common law to hold that they are the agents of the owner of the ship in tow. Upon this question the presence at the Conference of delegates from the United States would probably have modified the terms of the resolution; and for this and other reasons the absence of America from the Conference is much to be regretted. The Americans have had more experience in this matter of towage than any European country; and their courts have taken a somewhat different, and perhaps a more just, view of the liabilities of tug and tow than has usually been taken by courts upon this side of the Atlantic. The reservation in the resolution as to the liability of the owner of the tow where it is proved that those on board the tug are not his agents, is probably intended to bring the decisions of our Admiralty Court into harmony with the common law. But the terms of the exception are altogether too vague; for, as the Admiralty decisions stand at present, it is not clear that the doctrine of the tug being "the servant" of the tow is not intended to be a rule of law and not a question of fact.

The next resolution, though by no means the most important, is upon a matter touching which the law of England is in open conflict with that of most, if not all, other European nations. The point of law, though minute, has long had a great attraction for jurists and Admiralty lawyers; it has, in fact, been a principal cause of the present agitation in favour of uniformity in maritime law. The point is this: Where both ships are in fault for a collision,

the law of England divides the loss equally, however great the fault of one ship, and however small the fault of the other; the laws of France, Belgium, Norway, Denmark, and some other European countries divide it between the two ships in proportion to their respective faults. The old common law of England, and the codes of Italy, Spain, and (hitherto) Germany cast the loss in such cases where it falls, refusing to allow a ship which is partly in fault for a collision to recover anything. As to Germany, it is significant that in her new code, which comes into force next year, the rule of "both to blame, neither can recover" is abandoned, as it was by the English legislature at the passing of the Judicature Act in 1875. The new German code adopts the proportionate rule, as proposed by the Antwerp Conference. There is much to be said in its favour, and the English rule is hard to justify. The old common law rule of no recovery was logical, and seems to satisfy people on shore, but it has never prevailed extensively in case of ship collisions; and although it finds a place in the existing codes of Holland, Spain, Italy, and Germany, the last-named country is, as we have seen, on the point of abandoning it; and Holland, it would seem, is willing to do so. What the intention of Spain, Italy, and America may be, we do not know, since none of these nations were represented at the Conference. The American courts, however, have not yet finally decided whether the proportionate rule does not already exist in their country; for a recent decision of an American Federal Court has awarded damages in a collision case upon the proportionate basis. This, however, is a decision of first impression, and it remains to be seen whether the Supreme Court will recognise any other decision than that of equality. The question whether we in England. shall abandon the rule of equal division and adopt the proportionate rule does not appear to be of great importance. If by making this concession to continental opinion, which is strongly in favour of the proportionate division, a step may be gained towards uniformity in more important matters, there seems to be no serious objection to the proposed alteration in English law. Almost the only objection which has been raised to the proportionate rule is that it introduces a new element of uncertainty into business calculations of liability; that it will make the speedy settlement of claims for collision less easy and therefore less probable. As to the difficulty of determining the exact degree of fault in either ship, we are assured that in practice this does not arise. In France and Belgium, where the proportionate rule has been in operation for some time, the apportionment of fault and loss is almost always into fourths or thirds, and no difficulty has been found to arise in practice in applying the rule so as to work "substantial" justice. It is not generally known, but it is the fact, that there are extant several early sentences of the Admiralty Court awarding partial damages in cases where both ships were to blame, and also where one ship only was in fault. The judgment of the House of Lords in 1824, which, for the first time, decided that the rule of equal division is the only rule of English law, was passed

without reference to, and probably in ignorance of, these cases. It is probable, also, that the rigorous logic of the common law, which prevented recovery by one who was even in part the cause of his own loss, was in practice considerably mitigated by the liberty exercised by jurors in assessing damages. In at least one reported case where fault existed on both sides, the jury has incontinently found a verdict for the plaintiff, assessing the damages at a sum which is obviously not the whole of his loss; and it has in practice been found difficult to disturb such a verdict, although the only apparent reason for not giving full damages was that the jury thought both ships to have been in fault.

As to the last resolution, touching the defence of compulsory pilotage, there was considerable discussion; and although the final decision of the Conference, that compulsory pilotage should be no defence in the case of a collision caused entirely by the fault of the pilot, was unanimous, the discussion disclosed some difference of opinion. The question is whether the shipowner should be liable for a collision caused by the fault of a pilot, whom he is by law compelled to take. In England he is not liable; upon the Continent generally, if not everywhere, he is liable. From France, however, and from Holland their came, at the Conference, strong expressions of the opinion that the law of England upon this point is preferable to that of the Continent. It is singular that the strongest opposition to the continental law on this point should have come from France, where the law regards the pilot not as the master of the ship for the time being, but as the master's adviser in matters requiring local knowledge. It would have been far better if the English courts had from the first taken this view of the pilot's position. As matter of practice, the pilot does not supersede the master in command of the ship, except so far as the master and his employers choose that he shall do so. No owner or master would hesitate to take his ship out of the hands of a pilot who was manifestly taking her into unnecessary danger. True it is that there is danger in a double command, in divided responsibility; but it is a danger that is unavoidable, and one that is run every day. Where, as in many collision cases, the question is whether in the open sea proper steps were taken to keep clear of the other ship, there should be no question that the master and ship's officers are primarily responsible. Local dangers have not to be reckoned with in passing every vessel; if they have, the master will make the best use he can of the pilot's local knowledge. Situations do occur in which it is almost necessary that one man, and one man only, should control every movement of the ship. But even in these cases no law requires the master or the owner to give up the charge of his ship to the pilot; nor is there any valid reason why, if he chooses to do so, he should escape liability for damage which his ship may do, and which he might, ex-hypothesis, have prevented. The law itself is quite modern, and for centuries was unheard of in the Admiralty Court. It was invented by common law judges, unacquainted with sea usage and