Page:The Green Bag (1889–1914), Volume 18.pdf/326

 The Green PUBLISHED MONTHLY AT £4.00 PER ANNUM. SINGLE NUMBERS 50 CENTS. Communications in regard to the contents of the Magazine should be addressed to the Editor, S. R. WRIGHTINGTON, 31 State Street, Boston, Mass. The Editor will be glad to receive contributions of articles of moderate length upon subjects of interest to the profession; also an/thing in the way of legal antiquities, facet/a, and anecdotes.

CURRENT LEGAL LITERATURE This department is designed to call attention to the articles in all the leading legal periodicals of the preceding month and to new law books sent in for review.

ADMIRALTY (Torts, Master and Servant). In

the April Harvard Law Review (V. xix, p. 445) Frederick Cunningham briefly discusses a subject closely related to that of Mr. Smith, in an article entitled, "Respondent Superior in Ad miralty," in which he again criticises the lan guage of some recent decisions of our Supreme Court. "The original liability in marine torts was only in rem, as shown above. This liability has now been extended to embrace actions in personam, for damage occurring through the negligence of the owners themselves or with their privity, and actions in personam for dam age occurring by collision caused by bad navi gation of the ship, */ navigated by the servants of the ship-owners. This last extension, how ever, is rather one of convenience and con scientious discretion, giving the injured party a greater opportunity to get jurisdiction of the offender, and at the same time limiting the doctrine of the offending thing, and it is not to be regarded as a general introduction of respondeat superior into the admiralty juris prudence." In collision cases the owner is liable in per sonam, if the ship is being navigated by the owner or his servants, on the ground sic utere tuo ut alienum iion ladas, not on the ground of respondeat superior. If it is navigated by a charterer or his servants or a compulsory pilot, the owner is not liable in personam because he is not navigating the ship, but it is only to collision cases that this rule applies, and it is not on the ground of respondeat superior, as shown above. The owner is not liable for negligence in other cases of marine tort as a general rule, unless he is privy to it."

He then calls attention to the peculiar ad miralty remedies given to seamen, which are not, however, rights to damages, and to the right to limit liability even in actions in per sonam. "We see, then, that the liability in the admiralty for negligence ex delicto rests upon grounds entirely distinct and apart from re spondeat superior, and if this liability is put upon the ground of respondeat superior, it naturally leads to much misconception, and the introduction into the admiralty of unde sirable and technical doctrines belonging to the common law, such, for instance, as the doctrine of fellow-servant wholly transplanted and at variance with the giving or withhold ing of damages upon enlarged principles of justice and equity according to the rule laid down by Judge Story." "Then, too, it will be observed that if re spondeat superior is admitted into the admir alty, while at the same time the compensating defense of contributory negligence is excluded, as it has been since The Max Morris, the result will be that the liability of the owner for the negligence of his servants will be carried in the admiralty much further than it has been at common law, and this is not desirable, as shown in the beginning of this article. "It must not be forgotten that in the ad miralty the injustice and harshness of the doctrine of ' the offending thing ' is counter balanced by limiting the liability of the owner to his interest in the thing: the introduction of some common law doctrines and the exclu sion of others will disturb the whole balance of the maritime jurisprudence, which had, it would seem, been nicely adjusted by the gen