liabilities arising out of collisions, and invited the congress to ask for international legislation upon this subject. He moved the following resolution, which was seconded by Sir Walter Phillimore, Bart., D. C. L. (London), and adopted unanimously: "That the conference is of opinion that the only rational solution of the conflict of laws in cases of collision is to be found in International Law." Dr. Raikes, Q. C. (London), presented a very elaborate paper upon the same subject, in which he referred to the laws of all civilized nations, and explained the remarkable divergence amongst them, which, as he said, led to much confusion and injustice. He ended by pointing out "how important it is that, as we have had for over thirty years one common set of regulations for preventing collisions at sea, we should now have one common rule as to the incidence and limitation of damages for breaking those rules." It appears from Dr. Raikes' paper that there are at present four separate systems, which regulate the rights of the two vessels where both are in fault. 1. The damages are divided in the discretion of the court according to the gravity of the fault. This is the law of eight countries, viz.: France, Belgium, Portugal, Norway, Sweden, Denmark, Greece, and Roumania. 3. The damages are equally divided. This is the law of two countries, viz.: Great Britain (including her colonies) and the United States. 4. The damages are divided according to the respective values of the vessels. This is also the law of two countries, viz.: Turkey and Egypt. Mr. Gray Hill, of Liverpool (who was on this occasion anthorized to represent the Chamber of Shipping of the United Kingdom, the Liverpool and London Steamship Protection Association, the West of England Steamship Owners' Protection and Indemnity Association, and the American Chamber of Commerce of Liverpool), moved, and Mr. Thomas R. Miller, of London, representing the United Kingdom Steamship Protection and Indemnity Association, seconded the following resolution: "That in the opinion of this association the law which enables the court to apportion the total of the damage done to ships in collision, when both are in fault, in proportion to the gravity of the faults committed by them respectively, is preferable (1) to the law which leaves each ship to bear its own damage; (2) to the law which divides the total damage according to the values of the ships respectively; and (3) to that which divides it equally; that, in the opinion of this association, the first mentioned law should be adopted by all nations." Mr. Gray Hill, in moving the resolution, said he thought it was impracticable to endeavor to reconcile on one occasion all the diversities of law which prevailed amongst the nations of the world with regard to the incidence of liability arising out of collisions, even in reference to the single case of both vessels being in fault. He, therefore, selected the most simple portion of the subject to be dealt with first, feeling that, if an agreement could not be obtained upon this, it would be in vain to seek one on the more complicated questions. He put aside, for the present, questions relating to cargo, and to loss of life and personal injury. The most simple portion was that relating to the right of the respective shipowners to recover damages where both vessels were in fault. The first question was whether, in such a case, there should be any recovery or none. The nations representing by far the largest proportion of the mercantile marine of the world allowed of some recovery, and it was reasonable to hope that the smaller interest would, for the sake of uniformity, concede this principle. If this were done the competing systems would be reduced to three. Obviously the Turkish and Egyptian law (the latter important on account of its jurisdiction over collisions in the Suez Canal) did not rest upon any rational basis, the values of the respective ships hav ing no connection with the amount of fault, and it should, therefore, be rejected. This being done, the remaining question was whether the system of the United Kingdom and of the United States, or that of France, Belgium, etc., was preferable. As a counsel of perfection, undoubtedly the latter system was best. The former system was but a rule of thumb, and often worked great injustice. The fault on one side might be very slight, scarcely more than an error of judgment, committed by a captain who was anxiously doing his best to navigate carefully on the other side, it might be a case of utterly reckless navigation, full speed in a fog in a crowded channel, or the officer in charge of the look-out man wilfully absent from his post, and yet the damages must in all cases be equally divided. This system was peculiarly unsatisfactory in the United Kingdom and its colonies, because the Merchant Shipping Act provided that if a ship infringed the regulations she should be deemed in fault unless the circumstances made the departure necessary; and this applied to foreign as well as British ships, which come within the jurisdiction of British courts. Upon this enactment the British courts had held that the infringing ship was to be deemed in fault, if by possibility the infringement might have contributed to the collision, and if there were such a possibility the British courts would reject proof that in point of fact it did not contribute; so that, in the United Kingdom, although a ship did not, in fact, by her acts contribute to the collision, she might be liable for half the damages. It was right that some penalty should be inflicted for such an infringement, but a penalty of half the damages was cruelly severe. If the damages could be apportioned at the discretion of the court, a penalty suitable to the offense, but not in excess of it, could be inflicted. At the International Congress on Commercial Law referred to by Baron Lambermont, resolutions had been passed in favor of the apportionment of ages according to the gravity of the fault. judgment is equivalent to one of them being solely to blame, the only saving to one party being the cost of the other's action. In Belgium and other countries, the courts determine the damages in proportion to the gravity of the fault of the respective vessels, aud this, in the opinion of those in England most largely interested, is a fair and just manner of dealing with such cases. There are collision where the fault of those in charge of one vessel is of a minor degree, possibly arising from the infringement of some regulation which had little or nothing to do with the collision, whereas the other ship was dam-grossly to blame, and yet by the English courts both are held equally in fault. Mr. Miller instanced several cases of great hardship to one side, where one of the vessels was only technically wrong, while the other had really and practically brought about the collision. The law of France and Belgium had also this advantage, that it occupied a middle position between that of Germany, etc., which prohibited any recovery, and that of the United Kingdom and the United States of America, which in all cases divided equally; and if a settlement of the matter was to be made, the law of France was one which could be adopted by way of compromise as between these opposite extremes. In favor of dividing according to the gravity of the fault were also many shipowners and underwriters, notably the British Steamship Protection Associations, and they were, to a large extent, the paymasters in collision cases, and had, therefore, the best right to speak. The present system led to judges straining a point to let off entirely the ship only slightly to blame. The objections made were that it would be impracticable to ascertain the proportion of blame to be attributed to the respective vessels, and that the uncertainty and room for difference of opinion upon this point would increase litigation, especially appeals. But the same skill which enabled courts to decide whether any ship was to blame would enable them to decide upon the gravity of the fault. Mathematical accuracy was impracticable, but it was easy to get nearer to justice than an equal division in all cases. British courts were not likely to refine overmuch, and the Appeal would soon establish a rule which would discourage appeals. The matter would be easier to deal with in England, where all important cases went before one highly skilled court, than in other countries, where the courts trying such cases were numerous. He appealed to the French and Belgium lawyers present to say whether the system worked well in their countries. 44 Mr. E. S. Scorfield (Newcastle), delegate from the Newcastle Protection and Indemnity Association, supported the resolution. Mr. John Carlisle (London), delegate from the London Steamship Owners' Mutual Insurance Association, also. supported the resolution. Monsieur Édouard Clunet (Paris), Avocat à la cour d'Appel, and editor of the Journal du Droit International Privé, observed that he was rapporteur of the committee on this question at the Antwerp Congress of 1885, when the resolution was proposed by him in that capacity, recommending the adoption of the French and Belgian rule. The present discussion showed the utility of these International Congresses; for whereas then the representatives of England were unanimous in rejecting the proposal, and their opposition rendered a general agreement on the question impossible, now we find that this opposition has disappeared. "You see," he said, "how ideas make a way for themselves; the English, the greatest navigators of the world, come back to us and ask for the adoption of what they recognize, on consideration, to be the most equitable system." M. Langlois (Antwerp), supported the resolution. At the Antwerp Congress, mentioned by M. Clunet, he had, by authority of some of the British Steamship Protection Associations, made the proposal to adopt the French and Belgian systems internationally. It was only the English lawyers at the congress who objected to the change. Mr. W. Griffith (London) supported the resolution. Mr. T. R. Miller (London), in seconding the motion, said that he had been concerned for a great Mr. W. Arnold (London), thought this new pronumber of years in collision cases as the representa-posal should be treated with the greatest caution. tive of those who have to pay the 'paymas- It would tend, in his opinion, to increase litigation, ters" and had often folt that there was a wrong as decisions apportioning the blame between ships requiring a remedy. According to the present in collision, would almost inevitably be appealed practice in apportioning damage in England, where against. He moved as an amendment, That the both vessels are held to blame, in many cases that final decision of the association on this question be postponed to the next conference.” An imperfect law which is certain is, he urged, better than a doubtful law more perfect in theory. Mr. H. Schmidt (Hamburg), General Secretary of the Verein Hamburger Assecuradeure, seconded the amendment. M. Louis Franck (Antwerp) opposed the amendment. He said that the reason assigned by Mr. Arnold was not found to hold good in Belgian practice. Appeals in collision cases are common, it is true, but they are so because the cases involve im portant amounts, not because of dissatisfaction as to the apportionment of the damages. Sir Walter Phillimore asked for examples as to the proportions commonly adopted in Belgium and France; do the judges go into minute fractions such as thirty seconds, or deal only with larger fractions? M. Langlois said that the Beligan courts almost always apportioned the damage in fourths. M. Franck confirmed this statement, and gave instances in support of it. Often in collisions taking place in ports or rivers, there are three or four ships in collision, and in such cases the rule of apportioning the damage by thirds or fourths is a most convenient one. Mr. Arnold remarked that he only urged delay. The proposal involved, he considered, too serious a change to be adopted by the association off-hand, after half-an-hour's debate. M. Clunet said that in the French Court of Appeal at Aix, which often had to decide on collisions from Marseilles, the damage was generally appor tioned in thirds or fourths. He Abstracts of Recent Decisions. EQUITY REFORMATION OF MORTGAGE.-In the absence of statute, equity will reform a mortgage after record so as to include land omitted by mistake, thereby rendering the lien of a purchaser with notice of the facts, at execution sale of the part omitted, made after the mortgage was recorded and before the reformation, subsequent to the lien of the mortgage. (Ft. Smith Milling Co. v. Mikles, [Ark.], 32 S. W. Rep. 493.) GUARANTY.-The guarantors on a note given for the purchase price of a machine may avail themselves of the defense of breach of warranty to the vendee and maker of the note, and plead the failure of the consideration passing from the payee to him as a failure of the consideration passing to them, where their guaranty was made at the time of the executiion of the note, and for no independent consideration. (Walter A. Wood Mowing & Reaping Mach. Co. v. Land, [Ky.], 32 S. W. Rep. 607.) MASTER AND SERVANT RAILROAD EMPLOYEES.A car cleaner, while at work inside a coach on a side track, was injured by another coach being kicked against it at an unusual and dangerous rate of speed: Held, that he was exposed to the hazards and dangers of railroading, and could recover under the doctrine laid down in Pearson v. Railroad Co.. 49 N. W. Rep. 302, 47 Minn. 9. (Mitchell v. Northern Pac. R. Co. [U. S. C. C., Miun.], 70 Fed. Rep. 15). Mr. Gray Hill mentioned a case in Belgium where the proportions were five-sixths and one-sixth. PUBLIC LANDS CUTTING TIMBER FROM MINERAL represented some of the underwriters of the English LANDS. On the trial of an indictment for cutting ship which was held liable for one-sixth only, and timber from the mineral lands of the United States they were very well satisfied, and did not appeal. for purposes other than those connected with build(Laughter.) He pointed out that in order to obtaining, agricultural, mining, or other domestic uses, a uniform rule, the necessity for which had been so clearly shown by the papers read, there must be concession by some in favor of the rule which appeared most likely to be adopted at all. The question was not a new one; it had been fully discussed at the Antwerp and Brussels Conferences. Mr. T. R. Miller said that he had had a large experience of cases decided on the proportional system, and the decisions in these cases as to the proportion of liability had invariably been accepted, and had never led to an appeal. contrary to the act of June 3, 1878, the intent is wholly immaterial, and it is only necessary to show that the prohibited acts were done. (United States v. Reder, U. S. D. C. [S. Dak.], 69 Fed. Rep. 965.) Correspondence. INFORMATION DESIRED. To Editor Albany Law Journal: The amendment was then put to the vote, and be found the direction rejected, being supported by only two votes. Sir Walter Phillimore stated that he should abstain from voting on the resolution. It must not be assumed that he agreed with it. Professor Corsi (Pisa) made a similar intimation. The resolution was then put, and was adopted by eighteen votes against two. | DEAR SIR. Where, in the statute or rules, is to -how to notice, for agument, an appeal, to the Appellate Division of the Supreme Court, from a final judgment in an action? Doubtless, such an appeal falls under the enigmatical description of an "enumerated motion." Former General Rule 40 provided: "Enumerated motions shall be noticed for the first day of the term by either party on a notice of eight days." Equally interesting to lawyers are the recollections This was explicit and comprehensive, declaring of social experiences and similar phases of English both the day for which the hearing of such an ap-life. The work closes with the remarks of Lord peal was to be noticed, and the length of notice required. The new rule 40 says: 66 Except in the Appellate Division of the Supreme Court, enumerated motions shall be noticed for the first day of the term by either party on a notice of eight days." The introduction of this exception raises a violent presumption that the Convention intended some change in the mode of bringing the first appeal from a final judgment to a hearing. At any rate, the new rule distinctly withdraws appeals (from final judgments), to the Appellate Division of the Supreme Court, from its scope, as to the point of practice referred to. The first guess naturally made is that this matter was intended to be left to each branch of the Appellate Division in its own department; though no reason is apparent why the notice should not be uniform. But the departmental rules appear to contain no specifications on the subject. Hence the practitioner, so far as the writer has been able to discover, is forced to the perhaps unsatisfactory conclusion that: (1) A notice of argument is still probably necessary. (Such a notice is referred to in Rule 5 of the First department). (2) Since an enumerated motion is a motion, Code Civ. Pro., sec. 780, seems to prescribe the length of the notice of argument (eight days). (3) The day specified for the hearing will coutinue to be the first day of the term, because it used to be! If these lines are the result of a misapprehension it has not been carelessly entertained. THEODORE F. C. DEMAREST. NEW YORK, Jan. 9, 1896. New Books and New Editions. RECOLLECTIONS OF LORD COLERIDGE, BY W. P. FISHBACK. The author of this work has most happily and pleasantly given us many incidents and occurrences in the life of the late Chief Justice of England, one of the most widely known and scholarly men of the age. The scholarly attainments of Lord Coleridge are presented in a clear and forceful manner and the work has the advantage of being short and concise and very much to the point; qualities we seldom find in a work of this kind. The work also gives us glimpses of the workings of the courts together with those comments of an experienced lawyer which are interesting even to those who are not members of the legal profession. Coleridge on Mattew Arnold taken from the London Times and other English newspapers and presents to us a very distinct idea if the scholarly ability of the late Chief Justice of England. Published by Bowen-Merrill Co., Indianapolis and Kansas City. BENDER'S LAWYERS' DIARY AND DIRECTORY FOR 1896. The development of this work from year to year has been great and its practical uses in the office of any lawyer are not to be judged by the number of pages which it contains, although these pages have a most useful collection of rules of practice of the courts, names of the members of the bar, terms of the court and other information which is of in terest to lawyers. The personnel of the government, state and national, is given, with all the county and city judiciary. Following this is section six of the constitution and the rules regulating the admission of attorneys, rules of the Court of Appeals, of the Supreme Court, and the special rules of practice in the first department. Then follows the terms of the Supreme Court and the assignments of the justices. The diary follows, each page being devoted to two days of the year and under each day is given all the terms of the Federal and State courts which are held, with memoranda as to the filing of notices of trial and notices of issue. The legal directory of the State is apparently carefully compiled and is- as those who have used can testify-of very great benefit in ascertaining the address of fellow members of the bar. After the directory of all the lawyers of this State is a partial list of lawyers of other states, a list of the commissioners of deeds of the State of New York and in other states and countries. The work is well bound in cloth and shows carefulness of preparation and is of great practical benefit. Published by Matthew Bender, 511-513 Broadway, N. Y. METAPHORS AND SIMILES OF HENRY WARD BEECHER. Edited by J. T. Ellinwood. This is a small book of 200 pages, with selected passages from the remarks of the late distinguished preacher. The book shows careful preparation and good judgment of the selection of terse and clever speeches of Mr. Beecher, which are most pleasing and interesting to members of the bar and laymen alike. The work is divided into twenty-four chapters, under different heads, and is well bound in cloth. Published by Andrew J. Graham & Co., 744 Broadway, New York city. The Albany Law Journal. ALBANY, JANUARY 25, 1896. Current Topics. [All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.] THE HE nineteenth annual meeting of the New York State Bar Association was held in the city of Albany on the 21-22 of January, and was, perhaps, the most successful and largely attended meeting of the association which has taken place in many years. The evident de sire of members of the association to further the ends of litigants and to aid the members of the profession was manifest from many of the suggestions which were made to amend the rules of practice and the Code of Civil Procedure, and other important matters germane to the law. One of the most important suggestions which was made was the resolution requesting the representatives of the State in congress to further the passage of the bill introduced by Mr. Sherman appropriating money for the use of the United States courts. It is a matter which should be carefully considered by all, and the end should be sufficient to bring all members of the profession, as well as the citizens of the United States, to its support. It is a lasting disgrace to the inhabitants of the United States to reflect that the court funds are so small that the proper administration of justice is hampered, if not effectually prevented. For instance, at a recent term of the court at Rochester no funds were available, and so twelve prisoners were discharged because no money was forthcoming to pay grand jurors, while at the present term in Albany the court was only enabled to transact business because one of the officers of the court gave his personal note for a sum which would permit the term to be held. It is a matter of notoriety that the court officers are so few that the crier of the court is forced to act as an officer to guard the jury in their deliberations, while stenographers are only procured through the personal efforts of the officials of the courts. troduced by Hon. Albert Hessberg of Albany, and the movement in favor of the resolution was largely due to his efforts and energy, and to those of Hon. John B. Stanchfield, who, on account of their large practice in the United States courts, know full well the difficulties which the lack of funds has brought about. The matter of the revision of the Code of Civil Procedure was left to the last part of the business meeting, and it was unfortunate that such was the case as it was undoubtedly the most important subject which was before the association for consideration. From the mass of court rules, statutes and provisions of the present code, there seems to be much which should be eliminated. In fact a short, concise code, with a few court rules, would be of the greatest service and assistance to the law and the lawyers. The natural jealously of lawyers and their clients' interest makes it very hard for the profession to agree as to what members of the bar should revise the code. The annual address of the president of the State Bar Association, Hon. William H. Robertson, of Katonah, is one which shows thorough knowledge and appreciation of the work which the association has accomplished, and the benefits which it has conferred on the public at large, with an acute conception of the changes which its efforts might still bring about. It is well known that the present system of admission to the bar is the outcome of the influence and labor of the State Bar Association, and it has met with the highest approval of lawyers throughout the State, being a uniform examination in every department, conducted at no cost to the State, and but a slight cost to the student applying for admission. The adoption by the Court of Appeals of Rule 7 is certainly the result of the recommendation of the association, and is made with the approbation of all members of the bar. It certainly tends to condense and simplify arguments before the Court of Appeals, and so enables that body to accomplish more work. As to the increased representation in the legislature we cannot agree with the learned president of the association, as we believe that the present numbers are altogether too large and are conducive of real injury to the State, because it lessens the responsibility of each The resolution we have referred to was in- member of the senate and assembly. |