## Facts

- The SS *Bushire* and the SS *Bernina* collided at sea.
- The collision resulted from the mutual negligence of those navigating both vessels; both ships were at fault.
- Two seamen who were off duty aboard the *Bushire* were killed; they had no control over navigation at the time.
- The decedents’ personal representatives brought wrongful-death actions under Lord Campbell’s Act against the owners of the *Bernina* (the non-carrying ship).
- The *Bernina*’s owners argued that the *Bushire*’s navigational negligence should be attributed to the decedents as contributory negligence, barring recovery.

## Issues

1. Whether the navigational negligence of the carrying ship can be imputed to passengers or off-duty seamen aboard that ship, thereby barring their representatives’ wrongful-death claims against a negligent third-party ship.
2. Whether the “identification” doctrine associated with *Thorogood v. Bryan* should apply so that a passenger is treated as contributorily negligent due to the carrier’s fault.

## Decision

- The House of Lords affirmed the Court of Appeal and dismissed the appeal.
- The decedents were not “identified” with the *Bushire* for purposes of contributory negligence.
- The *Bushire*’s navigational negligence was not imputed to the decedents, who lacked control over navigation.
- The personal representatives could recover under Lord Campbell’s Act against the *Bernina*’s owners notwithstanding mutual fault between the vessels.
- The approach reflected a rejection of *Thorogood v. Bryan* to the extent it treated an innocent passenger as barred by the carrier’s negligence.

## Legal Principles

- Negligence is not imputed to an innocent passenger or off-duty seaman merely because they are being carried on a negligently navigated vessel.
- Imputed contributory negligence requires a basis such as control, agency, or a joint enterprise; mere presence aboard the carrier is insufficient.
- In wrongful-death claims, a decedent’s right (and thus the representatives’ statutory claim) is not defeated by attributing to the decedent the negligence of others over whom the decedent had no control.
- Rules allocating loss between negligent ships in mutual-fault collisions do not justify barring claims by innocent third parties through artificial attribution of one wrongdoer’s negligence to the victim.
- *Thorogood v. Bryan* is rejected insofar as it treats a passenger as legally identified with the negligent operator of the conveyance for contributory-negligence purposes.

## Conclusion

The House of Lords held that where two ships are both at fault for a collision, the carrying ship’s navigational negligence is not attributed to innocent passengers or off-duty seamen aboard it, and their representatives may pursue wrongful-death recovery against the other negligent ship’s owners.


Mills v. Armstrong (The Bernina), 13 App. Cas. 1 (H.L. 1888)