C. B. WILLIAMS, PLAINTIFF AND APPELLANT, VS. TEODORO R. YANGCO, DEFENDANT AND APPELLANT.

The steamer Subic, owned by the defendant, collided with the launch
Euclid owned by the plaintiff, in the Bay of Manila at an early hour on
the morning of January 9, 1911, and the Euclid sank five minutes
thereafter. This action was brought to recover the value of the
Euclid.

The court below held from the evidence submitted that the Euclid was
worth at a fair valuation P10,000; that both vessels were responsible for the
collision; and that the loss should be divided equally between the respective
owners, P5,000 to be paid to the plaintiff by the defendant, and P5,000 to be
borne by the plaintiff himself. From this judgment both defendant and plaintiff
appealed.

After a careful review of all the evidence of record we are all agreed with
the trial judge in his holding that the responsible officers on both vessels
were negligent in the performance of their duties at the time when the accident
occurred, and that both vessels were to blame for the collision. We do not deem
it necessary to review the conflicting testimony of the witnesses called by both
parties, the trial judge having inserted in his opinion a careful and critical
summary and analysis of the testimony submitted to him, which, to our minds,
fully and satisfactorily disposes of the facts in the case. His conclusions of
fact based upon all the evidence are set forth in the following language
(translated):

“In view of the negligence of which the patron Millonario (of defendant’s
vessel) has been guilty as well as that imputable to the patron of the launch
Euclid, both contributed in a decided manner and beyond all doubt to the
occurrence of the accident and the consequent damage resulting there from in the
loss of the launch Euclid.

“With a little diligence which either of the two patrons might have practiced
under the circumstances existing at the time of the collision, if both had not
been so distracted and so negligent in the fulfillment of their respective
duties, the disaster could have been easily avoided, since the sea was free of
obstacles and the night one which permitted the patron Millonario to distinguish
the hull of the launch twenty minutes before the latter entered upon his path *
* *

“There is proven, therefore, the negligence of which the patron of the
Euclid has been guilty.

“If the negligence by which the patron of the launch Euclid has
contributed to the cause of the accident and to the resulting damages is patent,
none the less so is the negligence of the patron of the steamer Subic,
Hilarion Millonario by name, as may be seen from his own testimony which is here
copied for the better appreciation thereof.”

It will be seen that the trial judge was of opinion that the vessels were
jointly responsible for the collision and should be held jointly liable for the
loss resulting from the sinking of the launch. But actions for damages resulting
from maritime collisions are governed in this jurisdiction by the provisions of
section 3, title 4, Book III of the Code of Commerce, and among these provisions
we find the following:

“Art. 827. If both vessels may be blamed for the collision, each one shall be
liable for its own damages, and both shall be jointly responsible for the loss
and damage suffered by their cargoes,”

In disposing of this case the trial judge apparently had in mind that portion
of the section which treats of the joint liability of both vessels for loss or
damage suffered by their cargoes. In the case at bar, however, the only loss
incurred was that of the launch Euclid itself, which went to the bottom
soon after the collision. Manifestly, under the plain terms of the statute,
since the evidence of record clearly discloses, as found by the trial judge,
that “both vessels may be blamed for the collision,” each one must be held
liable for its own damages, and the owner1 of neither one can recover from the
other in an action for damages to his vessel.

Counsel for the plaintiff, basing his contentions upon the theory of the
facts as contended for by him, insists that under the doctrine of “the last
clear chance,” the defendant should be held liable because, as he insists, even
if the officers on board the plaintiff’s launch were negligent in failing to
exhibit proper lights and in failing to take the proper steps to keep out of the
path of the defendant’s vessel, nevertheless the officers on defendant’s vessel,
by the exercise of due precautions might have avoided the collision by a very
simple maneuver. But it is sufficient answer to this contention to point out
that the rule of liability in this jurisdiction for maritime accidents such as
that now under consideration is clearly, definitely, and unequivocally laid down
in the above-cited article 827 of the Code of Commerce; and under that rule, the
evidence disclosing that both vessels were blameworthy, the owners of neither
can successfully maintain an action against the other for the loss or injury of
his vessel.

In cases of a disaster arising from mutual negligence of two parties, the
party who has a last clear opportunity of avoiding the accident, notwithstanding
the negligence of his opponent, is considered wholly responsible for it under
the common-law rule of liability as applied in the courts of common law in the
United States. But this rule (which is not recognized in the courts of admiralty
in the United States, wherein the loss is divided in cases of mutual and
concurring negligence, as also where the error of one vessel has exposed her to
danger of collision which was consummated by the negligence of the other), is
limited in its application by the further rule, that where the previous act of
negligence of one vessel has created a position of danger, the other vessel is
not necessarily liable for the mere failure to recognize the perilous situation;
and it is only when in fact it does discover it in time to avoid the casualty by
the use of ordinary care, that it becomes liable for the failure to make use of
this last clear opportunity to avoid the accident. (See cases cited in Notes, 7
Cyc., pp. 311, 312, 313.) So, under the English rule which conforms very nearly
to the common-law ‘rule as applied in the American courts, it has been held that
the fault of the first vessel in failing to exhibit proper lights or to take the
proper side of the channel will relieve from liability one who negligently runs
into such vessel before he sees it; although it will not be a defense to one
who, having timely warning of the danger of collision, fails to use proper care
to avoid it. (Pollock on Torts, 374.) In the case at bar, the most that can be
said in support of plaintiff’s contention is that there was negligence on the
part of the officers on defendant’s vessel in failing to recognize the perilous
situation created by the negligence of those in charge of plaintiff’s launch,
and that had they recognized it in time, they might have avoided the accident.
But since it does not appear from the evidence that they did, in fact, discover
the perilous situation of the launch in time to avoid the accident by the
exercise of ordinary care, it is very clear that under the above set out
limitation to the rule, the plaintiff cannot escape the legal consequences of
the contributory negligence of his launch, even were we to hold that the
doctrine is applicable in this jurisdiction, upon which point we expressly
reserve our decision at this time.

The judgment of the court below in favor of the plaintiff and against the
defendant should be reversed, and the plaintiff’s complaint should be dismissed
without day, without costs to either party in this instance. So ordered,

Arellano, C. J., Moreland, Trent, and Araullo, JJ.,
concur.