Judge Pardee, of the eastern district of Louisiana, in actions for damages for personal injuries, laid down the rule that, in cases of maritime torts, courts of admiralty may exercise a conscientious discretion, and give or withhold damages upon enlarged principles of justice and equity, considering all the circumstances of the case. In the case of Olson v. Flavel,' where an action was brought in the district court, district of Oregon, for damages for personal injuries, Judge Deady concurs in the rule as stated in The Explorer2 and The Wanderer, and as stated by Judge Brown in The Max Morris. This principle of comparative negligence, it is contended, is sanctioned by the language of the supreme court in The Marianna Flora," where the court says: "Even in cases of marine torts, independent of prize, courts of admiralty are in the habit of giving or withholding damages upon enlarged principles of justice and equity, and have not circumscribed themselves within the positive boundaries of mere municipal law;" and again in The Palmyra: "In the admiralty the award of damages always rests in the sound discretion of the court, under all the circumstances." The weight of authority in the lower courts for maritime torts other than collisions seems to be in the direction of awarding damages, in the discretion of the court, for a greater or less proportion of the damages incurred, as may seem to the court equitable under all the circumstances of the case. There are very grave doubts, however, whether the supreme court will, when the question is presented for its final determination, establish a different rule for other maritime torts than now prevails in regard to collisions. The rule is too well established in collision cases that damages will be equally divided, in case of mutual fault, to even surmise that a different one will be adopted; and it is difficult to see how the court can apply the rule of comparative negligence, and award damages to one class of litigants as 134 Fed. R. 479. 220 Fed. R. 135. 320 Fed. R. 140. 424 Fed. R. 860; 28 Fed. R. 881. 511 Wheat. 1-54. 612 Wheat. 1, 17. their negligence appears to be great or small, and to another class arbitrarily award only one-half the damages incurred.' In case of joint liability, when several are at fault, the rule in collision cases is to divide among the whole number at fault, pro rata, the aggregate amount of damages, subject to the limited liability of the owners, as provided by statute. And where by reason of the operation of the statute the amount assessed against a vessel is not recoverable, the balance may be recovered from the others at fault, if the amount does not exceed their value.2 Where two or more In the case of Atlee v. Packet Company, 21 Wall. 389, the court awarded damages to the owner of a barge injured by running against a stone pier built by the respondent in a navigable part of the Mississippi river. Mr. Justice Miller, in delivering the opinion of the court, says: "But the plaintiff has elected to bring his suit in an admiralty court, which has jurisdiction of the case notwithstanding the concurrent right to sue at law. In this court the course of proceeding is in many respects different and the rules of decision are different. The mode of pleading is different, the proceeding more summary and informal, and neither party has a right to trial by jury. An important difference as regards this case is the rule for estimating damages. In the common-law courts the defendant must pay all the damages or none. If there has been, on the part of plaintiff, such carelessness or want of skill as the common law would esteem to be contributory negligence, they can recover nothing. By the rule of the admiralty court, where there has been such contrib utory negligence, or, in other words, where both have been in fault, the entire damages resulting from the collision must be equally divided between the parties. This rule of the admiralty commends itself quite as favorably in its influence in securing practical justice as the other; and the plaintiff, who has the selection of the forum in which he will litigate, cannot complain of the rule of that forum. It is not intended to say that the principles which determine the existence of mutual fault, on which the damages are divided in admiralty, are precisely the same as those which establish contributory negligence at law that would defeat the action. Each court has its own set of rules for determining these questions, which may be in some respects the same, but in others varying materially." 2 The Washington and The Gregory, 9 Wall. 513; The Virginia Ehrman, 97 U. S. 309; The City of Hartford, 97 U. S. 323; The Alabama and The Game Cock, 92 U. S. 695; The North Star, 106 U. S. 17; The Max Morris, 137 U. S. 1. The Brothers, 2 Biss. 104. In vessels are equally at fault, and liable in damages to another, the owner of the latter or its cargo may proceed against the offending vessels, jointly or separately, to recover the entire loss, and no apportionment of the loss between the offending vessels will be made so far as the right of entire recovery of the injured vessel is concerned; but as between themselves the offending vessels may require an apportionment of the loss. The right of apportionment of damages between offending vessels liable to third parties is a substantial right, not dependent upon the caprice of the injured party in looking to one only for his damages, and may be enforced whenever a joint liability is incurred. Any balance not collectible from one of the several joint wrongdoers may be recovered from the others. And when one of two vessels has suffered more than the other, the court will render a decree against the one suffering least for onehalf the difference in their respective losses. this case a tug and tow constituted one party, and a steamboat the other. All three being at fault, the court held that the damages should be equally shared by all, instead of charging the steamboat with half and the tug and tow with the other half. In The Dorris Eckhoff, 41 Fed. R. 156, it was held that, where several vessels were all at fault, the damages should be divided pro rata, subject, however, to the limited liability of the owners; and where in any case the amount recovered from one is less than its share of the loss of the cargo, the amount so received should be applied on the loss of the cargo, and the other vessels charged up to the limit of their liability for the balance of the whole loss of the cargo belonging to third persons not in fault, and for their proportion of the loss of any other vessel. 1 The Franconia, 16 Fed. R. 149; Briggs v. Day, 21 Fed. R. 727; The Troy, 28 Fed. R. 861; The New Philadelphia, 1 Black, 62; The Britannia, 39 Fed. R. 395. 2 The Hudson, 15 Fed. R. 162. Where one of two vessels was a total loss, it was held that the owners could not claim a decree for half the damages without first deducting the damages to the other vessel. The North Star, 106 U. S. 17. Where one of two vessels mutually at fault receives no injuries from the collision, it is nevertheless liable for half the damages sustained by the other. The Sapphire, 18 Wall. 51; The Kolon, 9 Ben. Sec. 192. Gross negligence.- Gross negligence on the part of one of two approaching vessels does not excuse the other from observing every precaution possible, under the circumstances, to prevent collision; and where it fails to observe such conduct as the rules require, the fact of the greater degree of negligence on the part of the other will afford it no relief against a division of damages. To secure a division it is sufficient to show that the vessel least at fault is guilty of negligence contributing to the collision,' but such contribution must be clearly shown. Where it appears that both vessels are guilty of wilful fault, the court will leave them where it finds them, to suffer the loss they severally incur, and will not interfere to relieve one because it suffers a greater injury than the other. Sec. 193. What damages may be divided. The damages that may be divided are not limited to the actual dam 197; The Pennsylvania, 12 Fed. R. that but for the weakness of the 914. injured vessel the loss would have been small. Where both vessels in collision are at fault, the rule is to deduct the lesser loss from the greater, and to require the vessel sustaining the lesser to pay one-half of the remainder to the vessel sustaining the greater loss. The Oregon, 45 Fed. R. 62. In Pettie v. The Boston Tow-boat Co., 49 Fed. R. 464, the court held that, where it did not appear that there was any concealment of the weak condition of the barge to induce the contract of towage, and the loss having in no wise been brought about by the weak condition of the injured vessel, the fact that the vessel was too rotten above deck to admit of it being raised did not affect the owner's right to recover; nor was the respondent entitled to an apportionment of the loss on the ground In The Gulf Stream, 64 Fed. R. 809, it was held that where a decree is rendered dividing damages between both parties to a collision because of mutual fault, the parties stand in the position of sureties toward each other as respects claim of owners of cargo lost by collision. And where, pending suit, one of the parties purchases claims of such cargo for less than the value of the same, the other party is responsible only for his proportion of the amount paid. 1 The Maria Martin, 12 Wall. 31; The Pegasus, 19 Fed. R. 46; The Franconia, 16 Fed. R. 149. 2 Reid Towing & Wrecking Co. v. The Athabasca, 45 Fed. R. 651; Pierce v. The J. R. P. Moore, 45 Fed. R. 267. ages to the vessel itself, but include the collateral damages received,― those necessarily resulting from the collision; such as may be recovered wholly from the offending vessel in the absence of contributory negligence.1 The evidence clearly showing that both vessels are at fault, the court will, irrespective of the degree of such contributory negligence, order an equal division of the damages.2 Sec. 194. Where neither is at fault. By the early maritime courts the rule dividing damages was applied, in cases where neither was shown to be at fault, where the cause of the collision was inscrutable, as well as when both parties were at fault. To hold a vessel liable for a fault not proven was so anomalous, so foreign to the spirit and general practice of admiralty courts, that in England the rule has been changed by statute, and no division of damages can be had there, where both vessels are not shown to be at fault. 1 The Memphis & St. Louis Packet Co. v. The H. C. Yeager Trans. Co., 10 Fed. R. 395; The Mary Patten, 2 Low. 196. 2 The Schooner Catherine v. Dickinson, 17 How. 170; The Bolivia, 49 Fed. R. 169; The Pennsylvania, 12 Fed. R. 914; The Hercules, 17 Fed. R. 606; The Rhode Island, 17 Fed. R. 554; The Dorris Eckhoff, 41 Fed. R. 156; The Gray Eagle, 9 Wall. 505; The Sapphire, 18 Wall. 51; The North Star, 106 U. S. 17; The Rival, 1 Spra. 128; The Parkersburgh, 5 Blatch. 247; The Pegasus, 19 Fed. R. 46; The Louisiana, 2 Ben. 371; Foster v. The Miranda, 6 McL. 221; The Brothers, 2 Biss. 104; The John Henry, 3 Ware, 264; The America, 32 Fed. R. 845; The Samuel H. Crawford, 6 Fed. R. 906; The Roman, 12 Fed. R. 219; The J. S. Neil, 8 Fed. R. 713; Green v. The Steamer Helen, 1 Fed. R. 916; The Farnley, 8 Fed. R. 629; The Canima, 17 Fed. R. 271; The Jeremiah Godfrey, 17 Fed. R. 738; The Pierrepont, 12 Fed. R. 791; The Monticello, 15 Fed. R. 474; The B. & C.. 18 Fed. R. 543; The City of New York, 15 Fed. R. 624; The City of Macon, 20 Fed. R. 159; The Ant, 10 Fed. R. 294; The State of Alabama, 17 Fed. R. 847; The Warren, 11 Fed. R. 443; The Chas. E. Soper, 19 Fed. R. 844; The City of Greenville, 22 Fed. R. 347; The S. B. Hume, 24 Fed. R. 296; The Wings of the Morning, 5 Blatch. 15; The Bedford, 5 Blatch. 200; The S. Shaw, 6 Fed. R. 93; The Standard, 23 Fed. R. 207; The David Dows, 16 Fed. R. 152; The Mary Ida, 20 Fed. R. 741. |