all damages directly resulting from its negligent conduct.1 The fact of such fault will not, however, justify another for inflicting an injury that can be avoided by the observance of ordinary care and skill.? Sec. 190. When both are at fault - Contributory negligence. To charge a vessel with negligence contributing to produce the collision or injury received, such negligence must proximately contribute to produce the result. Bad management on the part of a vessel, not the proximate cause of the collision, will not subject it to damages, nor will any antecedent misconduct not directly connected with the injury charge it with contributory negligence.3 Contributory negligence must be clearly shown. Where the fault on one side is flagrant, and on the other so trivial as to leave it doubtful whether there was fault or not, the courts give the benefit of the doubt to the vessel charged with such contributory negligence. Where both parties are found guilty of intentional wrong, the court will leave them where it finds them and will not afford relief to either." aboard the disabled vessel after collision, thereby receiving injury to his health from the exposure, it was held that the personal injuries received could not properly be charged as an item of damages to be assessed against the vessel at fault; that while it was the duty of an owner to take reasonable care of his property to prevent its becoming a total loss, he is under no legal obligation to endanger his life or health for that purpose; that the consequence of such exposure was too remote and uncertain and dependent upon too many intervening circumstances to warrant a recovery. The Brinton, 50 Fed. R. 581. 1 Union Steamship Co. v. New York, etc. S. S. Co., 24 How. 307; The Morning Light, 2 Wall. 550; 2 The Maria Martin, 12 Wall. 31. 4 The Ward v. The Dousman, 1 Neb. 236; Ralstin v. The State Rights, Crabbe, 22; The Grace Girdler, 7 Wall. 196; The Great Republic, 23 Wall. 20; The Lord O'Neill, 66 Fed. R. 77. The Sylph, 4 Blatch. 24. The fact that a vessel does not comply with the law in all respects is not of itself sufficient to charge it with damages, unless it is clearly shown that the act complained of is such as contributed, or tended to produce, the resulting injury.1 To establish contributory negligence on the part of a vessel in collision cases, it must be clearly shown that it omitted to do something which it ought to have done, and that such omission produced, or tended to produce, the injury resulting, and that the act complained of was of such a nature that good seamanship would not have adopted it under the circumstances.2 It is the duty of a vessel not otherwise at fault to use every measure at hand to avert or abate the consequences of another's wrong-doing, and neglect to do so will make it liable for contributory negligence.3 Sec. 191. Division of damages. The maritime law, pursuing somewhat the principles of natural justice and equity, departs from the rule adopted by common-law courts in cases of contributory negligence, where it appears that the resulting collision is in part imputable to the negligence of the party seeking redress. The maritime law, instead of refusing all relief, allows some compensation, notwithstanding the party seeking it may have contributed to the injury received. The doctrine of an equal division of damages in collision cases, where both are at fault, had long been the rule in the English admiralty courts when our constitution was adopted. 1 Perkins v. The Hercules, 1 Fed. R. 925; The Bermuda, 17 Fed. R. 397; The Margaret v. The C. Whiting, 3 Fed. R. 870; Fauts v. Hally, 38 Ala. 76; The Buckeye, 9 Fed. R. 666; Law v. Baker, 26 Fed. R. 164; McCabe v. The Old Dominion Steamship Co., 31 Fed. R. 235; Shirley v. The Richmond, 2 Woods, 58; The Nellie, 2 Low. 494; Chapin v. The Hattie Ross, Fed. Cas. 2598; The Young America, 1 Brown, 2 The Clarion, 27 Fed. R. 128; The Athabasca, 45 Fed. R. 651; Inman v. Reck, The City of Antwerp, 37 L. J. Adm. 25. 3 The B. & C., 18 Fed. R. 543; The Galileo, 24 Fed. R. 386. The doctrine was first established in this country by the supreme court in the case of The Schooner Catherine v. Dickinson, and has been followed in a number of cases since; so that the law has long since been settled that in collision cases, where there is mutual fault, the damages will be equally divided. It is because of this policy of admiralty courts, to hold both parties responsible for their wrongful conduct, that they will not permit a vessel guilty of negligent acts to escape the damages resulting therefrom by showing that the other was also guilty of misconduct. Even gross fault committed by one of two approaching vessels does not excuse the other from observing every precaution proper to prevent collision. As before stated, admiralty courts are not bound by the harsh rule of the common law denying all relief to the injured party, where it appears that his own conduct contributed, or helped to bring about, the circumstances resulting in the injury received. It has been said that admiralty courts are governed by principles of equity and natural justice to do strict right between the parties, and when it appears that both are negligent the court will order a division of damages. It is doubtless true that the doctrine of an equal division of damages is more equitable in its results than is the common-law rule denying all relief in case of mutual fault. It can hardly be said, however, that admiralty courts in collision cases are governed wholly by principles of equity and 117 How. 170. 2 Rogers v. Steamer St. Charles, 19 How. 108; Chamberlain v. Ward, 21 How. 548; The Washington, 9 Wall. 513; The Sapphire, 11 Wall. 164; The Ariadne, 13 Wall. 475; The Continental, 14 Wall. 345; Atlee v. Packet Co., 21 Wall. 389; The Teutonia, 23 Wall. 77; The Sunny Side, 91 U. S. 208; The America, 92 U. S. 432; The Alabama, 92 U. S. 695; The Atlas, 93 U. S. 302; The Juniata, 93 U. S. 337; The Stephen Morgan, 94 U. S. 599; The 3 The Maria Martin, 12 Wall. 31; natural justice to do right between the parties, as the language of some of the authorities would indicate; for if strict justice were done, the party guilty of the greatest degree of negligence should receive the least consideration, and the party guilty of slight neglect or inadvertent failure to comply with the law, on the principles of natural justice, should merit greater consideration than another guilty of a greater neglect. The doctrine of comparative negligence, however, does not apply in admiralty in collision cases, and it is not believed to apply to any case in that court. The rule requiring a division of damages equally, in collision cases, is as strictly adhered to in cases of mutual fault as is the rule at common law denying all relief; and this without regard to the equities of the case, and without regard to the degree of neglect either party may be guilty of. The rule of the equal apportionment of the loss where both parties are at fault, it has been said, seems to have been founded upon the difficulty of determining the degree of negligence in such cases. It is said by Cleirac3 to be a rule of "rustic sort of justice, such as arbiters and compromisers of disputes commonly follow where they cannot discover the motives of the parties, or where they see faults on both sides." There has been much uncertainty, and many conflicting decisions in the lower courts, as to whether the rule for division of damages applies in any other than collision cases. The case of Peterson v. The Chandos, in the district court of Oregon, was a case against a vessel for personal injuries. It was held by Judge Deady that the libelant could not re 'In The Victory, 68 Fed. R. 395, the circuit court of appeals for the fourth circuit, in a collision case, adopted the rule of comparative negligence. Judge Simonton, in delivering the opinion of the court, says: "If the spirit of the rule be adopted, and the liability of each vessel be measured by its degree of fault, exact justice will be done." 2 The Hebe v. The Arratoon Apcar, L. R. 15 App. Cas. 37; The David Dows, 16 Fed. R. 154; Reeves v. The Constitution, Gilp. 579; The Morning Light, 2 Wall. 550; The Clara, 102 U. S. 200; The Union Steamship Co. v. New York S. S. Co., 24 How. 307. 3 Us et Coutumes de la Mer, p. 68. 44 Fed. R. 645, 649. cover for an injury caused by his own negligence which contributed to the result, even though there was fault on the part of the vessel. The same ruling was followed in the same court in the case of Holmes v. Oregon Railway.' The same view was entertained by Judge Hughes, in the district court for the eastern district of Virginia, in the case of The Manhassett. On the other hand, a number of the lower courts have held that, in cases of mutual fault, admiralty will give or withhold damages upon enlarged principles of justice and equity; and that the awarding of damages in cases of tort other than collisions is not hampered by the rule of equal division for mutual fault. The question as to whether damages should be divided in other than collision cases, where there is mutual fault, came before the supreme court in the case of The Max Morris, and the court, after a full discussion of the question, held that damages should be divided in cases of marine tort founded upon negligence, and prosecuted in admiralty; but as to whether the rule adopted in collision cases, making an equal division of the damages sustained, prevails, the court did not determine. In delivering the opinion of the court Mr. Justice Blatchford says: "Whether in a case like this the decree should be for exactly one-half of the damages sustained, or might in the discretion of the court be for a greater or less proportion of such damages, is a question not presented for our determination upon this record, and we express no opinion upon it." So that the question is still an open one, whether in cases of maritime tort other than collisions, where mutual fault is shown, admiralty courts should allow exactly one-half of the damages sustained, or whether the doctrine of comparative negligence should prevail, and damages be allowed in a greater or lesser amount, in the discretion of the court. In the case of The Explorer, and again in The Wanderer, 15 Fed. R. 523, 538. 2 19 Fed. R. 430. 3137 U. S. 1. 4 20 Fed. R. 135. 520 Fed. R. 140. |