1. In cases of collision, where both vessels were in fault, the
maritime rule is to divide the entire damage equally between them,
and to decree half the difference between their respective losses
in favor of the one that suffered most, so as to equalize the
burden.
2. The obligation to pay that difference is the legal liability
arising from the transaction.
3. The practice which obtains in England of decreeing to each
party half his damage against the other party, thus necessitating
two decrees, is only an indirect way of getting at the true result,
and grows out of the technical formalities of the pleadings and the
supposed incongruity of giving affirmative relief to a
respondent.
4.
Semble that there is no good reason why in such
cases the respondent, if he claims it in his answer, should not
have the benefit of a setoff or recoupment of the damage which he
sustained at least to the extent of that done to the
libellants.
5. If both parties file libels, the courts of the United States
have the power to consolidate the suits, prescribe one proceeding,
and pronounce one decree for one-half of the difference of the
damage suffered by the two vessels.
6. The statute of limited liability is not to be applied in such
a case until the balance of damage has been struck, and then the
party against whom the decree passes may, if otherwise entitled to
it, have the benefit of the statute in respect of the balance which
he is decreed to pay. The decision to the contrary in
Chapman
v. Royal Netherlands Steam Navigation Co., 4 P. D. 157,
examined and disapproved.
7. A collision occurred at sea, in the night, between the
steamers W. and N., pursuing nearly opposite courses. W. was sunk,
and N. much damaged. Both were held to have been in fault.
Cross-actions were brought and heard together, and one decree was
made, being in favor of the owners of W. for one-half, the
difference of damage sustained by the two vessels, that of W. being
the greater. This decree was affirmed, and both parties appealed
therefrom. The owners of W. then claimed under the Limited
Liability Act entire exoneration from liability and a decree for
half of their damage, without deducting the damage of N.
Held that the claim must be disallowed because that act
can only be applied to the balance decreed to be paid, and that was
in favor of the owners of W.
8.
Quaere, can such a claim, if there were any ground
therefor, be allowed in favor of a party who does not set it up in
his pleadings.
The facts are stated in the opinion of the Court.
Page 106 U. S. 18
MR. JUSTICE BRADLEY delivered the opinion of the Court.
This case arose out of a collision off the Jersey shore, south
of Sandy Hook, on the evening of the 9th of February, 1863, between
two steamships, the
Ella Warley, bound from New York to
New Orleans, and the
North Star, bound from Key West to
New York. The former was struck about midships, and was sunk and
lost, and the
North Star was considerably damaged. The
owners of the
Ella Warley libeled the
North Star,
and the owners of the latter filed a cross-libel
in
personam against the owners of the
Ella Warley. The
suits were tried together, and the district court held the
Ella
Warley alone in fault and rendered a decree accordingly. The
circuit court held both vessels in fault, and rendered a decree in
favor of the owners of the
Ella Warley for so much of
their damage as exceeded one-half of the aggregate damage sustained
by both vessels. This was the proper decree to make if the
conclusion reached, as to both vessels being in fault, was correct,
unless the question arising on the Limited Liability Act, hereafter
discussed, required a different decree. Each vessel being liable
for half the damage done to both, if one suffered more than the
other, the difference should be equally divided, and the one which
suffered least should be decreed to pay one-half of such difference
to the one which suffered most, so as to equalize the burden.
Since both of the courts below held the
Ella Warley to
be in fault, we would not disturb this decision without
preponderating evidence to the contrary, and such evidence we do
not find. On the contrary, we think that the whole evidence taken
together sustains the conclusions reached.
The vessels were approaching each other in contrary directions,
nearly head on, one going down the coast, the other coming up, and
saw each other's masthead lights when eight or ten miles apart. The
Ella Warley, instead of porting her helm according to the
rule, starboarded it in order to pass outside. This was evidently
the first cause of the disaster, for, as the
North Star
obeyed the rule, it brought the vessels directly together. It is
also obvious that the persons in charge of the
Ella Warley
did not keep a sufficient lookout, for they allege that they only
saw the green light of the
North Star
Page 106 U. S. 19
until the instant before the collision, while it is
demonstrable, both from the diagram produced on the part of the
Ella Warley and from the courses which the two vessels
must have pursued, that after they were near enough to discern
their respective side lights, the red light of the
North
Star was exposed to the view of the
Ella Warley
during the entire approach, and must have been seen by her men if
they had exercised the least diligence. One of the grounds of
complaint against the
North Star is that her lights were
not properly screened, and could be seen across her bow. This only
makes it the more certain that from the relative position of the
vessels, her red light must have been visible. It is impossible
that it was hidden from view up to the time immediately preceding
the collision.
As to the question whether the
North Star was also in
fault, we agree with the circuit court that she was. The rules of
navigation in force at the time required that the side lights of
steamers navigating the sea, bays, etc., should be fitted with
inboard screens of at least six feet in length (clear of the
lantern) to prevent them from being seen across the bow, and to be
placed in a fore-and-aft line with the inner edge of the side
lights, and in contact therewith. 1 Parsons' Maritime Law 679, ed.
1859. In flat defiance of this rule, the screens of the
North
Star did not project two inches forward of the bull's-eye of
the lights, so that the lights could be seen two or three points
across the bow. This was undoubtedly one reason why the green light
of the
North Star caught the eye of the mate and others on
board of the
Ella Warley so readily as it did, and indeed
goes to some extent to mitigate their negligence in not discerning
the red light. This was clearly a fault on the part of the
North Star, and one that probably contributed to the
accident. We think, therefore, that both parties were in fault.
The counsel for the owners of the
Ella Warley now for
the first time raise a question upon the statute limiting the
liability of the ship owners. They contend that as the
Ella
Warley was a total loss, the owners are not liable to the
owners of the
North Star at all, not even to have the
balance of damage struck between the two vessels, but that the half
of their
Page 106 U. S. 20
damage must be paid in full, without any deduction for the half
of the damage sustained by the
North Star. This
proposition is so startling that the reasoning employed to support
it should be scrutinized with some care before yielding to its
force.
The rule of admiralty in collision cases, as we understand it,
is that where both vessels are in fault, they must bear the damage
in equal parts, the one suffering least being decreed to pay to the
other the amount necessary to make them equal, which amount, of
course, is one-half of the difference between the respective losses
sustained. When this resulting liability of one party to the other
has been ascertained, then, and not before, would seem to be the
proper time to apply the rule of limited responsibility if the
party decreed to pay is entitled to it. It will enable him to avoid
payment
pro tanto of the balance found against him. In
this case, the duty of payment fell upon the
North Star,
the owners of which have not set up any claim to a limit of
responsibility. This, as it seems to us, ends the matter. There is
no room for the operation of the rule.
The contrary view is based on the idea that theoretically
(supposing both vessels in fault), the owners of the one are liable
to the owners of the other for one-half of the damage sustained by
the latter, and,
vice versa, that the owners of the latter
are liable to those of the latter are liable to those damage
sustained by her. This, it seems to us, is not a true account of
the legal relations of the parties. It is never so expressed in the
books on maritime law. On the contrary, the almost invariable mode
of statement is that the joint damage is equally divided between
the parties, or (as in some authorities) it is spoken of as a case
of average. Thus, Lord Stowell says:
"A misfortune of this kind may arise where both parties are to
blame, where there has been want of due diligence or of skill on
both sides. In such a case, the rule of law is that the loss must
be apportioned between them as having been occasioned by the fault
of both of them."
Woodrop Sims, 2 Dods. 83. This statement of the law was
adopted in the text of Abbott on Shipping, p. 3, c. 1, sec. 2. It
is also adopted by Mr. Bell in his Commentaries on the Laws of
Page 106 U. S. 21
Scotland, vol. 1, pp. 580, 581, who remarks:
"By the maritime law, this is a case of average loss or
contribution, in which both ships are to be taken into the
reckoning, so as to divide the loss."
It is also adopted in the later text writers.
See
McLachlan on Merchant Shipping 274. In Hopkins on Average, p. 189,
it is stated thus:
"If, as the result of cross-actions in admiralty, both vessels
be found in fault, the rule of the court is to add the damages,
losses, and costs of the two ships together and to divide the joint
sum in moieties and decree each vessel to bear an equal
portion."
If we go back to the text of the law, in the Rules of Oleron,
followed in the laws of Wisbuy and other laws, we find it expressed
in substantially the same manner. The case is supposed of a ship
coming into port negligently managed, and striking a vessel at
anchor in an improper position, so that both are in fault and both
are damaged. The rule says:
"The damage ought to be appraised and divided half and half
between the two ships, and the wines that are in the two ships
ought to divide the damage between the merchants."
1 Pardessus, Collection de lois Maritime 334; Cleirac, Us et
Contume de la Mer 55; Sea Laws 141; 1 Peter's Admiralty Decisions,
App. xxiii.
In Jacobson's Laws of the Sea it is said: "If the damage is done
reciprocally, such damage is apportioned in common between the
parties."
The French Ordinance of 1681 expresses the rule in exactly the
same way: "The damage shall be paid equally by the ships which have
caused it and suffered it." Valin, lib. iii, tit. vii, art. 10. On
this Valin remarks:
"Whenever damage by collision is adjudged common average between
the two ships, the decree is that the costs of suit and the
appraisement of the damage shall be equally borne in common, to
effect which they are made into one mass with a calculation of the
average."
Emerigon, who had great experience as an admiralty lawyer and
judge, says, upon the same article: "The damages sustained by both
ships are appraised and made into one mass, which is equally
divided." Assurances, c. 12, sec. 14 § 3.
Boulay-Paty, commenting on the Code de Commerce, art. 407, which
relates to the same subject, says:
"We conclude, then, that after due regard is had to the
Page 106 U. S. 22
character of the damaged parts of each ship, the injury and
damage which they have sustained and the appraisal thereof, being
added together in a single mass, must be divided so as to be
equally borne by each of the ships which have been struck."
Droit Commercial, vol. 4, p. 497.
In this country, the same mode of expressing the law has always
prevailed. The first case in which the question came before this
Court was that of
The Catharine v.
Dickinson, 17 How. 170, in which both vessels were
adjudged to have been in fault, and the Court, by Justice Nelson,
adopted the admiralty rule as it had been administered in the
district and circuit courts. Justice Nelson said:
"The question, we believe, has never until now come distinctly
before this Court for decision. The rule that prevails in the
district and circuit courts, we understand, has been to divide the
loss,"
and he cites the case of
The Rival, decided by Judge
Sprague (Sprague's Decisions 160), and the leading English
decisions on the subject. Subsequent decisions have invariably used
the same language.
Owners of the Hames Gray v.
Owners of the Hohn Fraser, 21 How. 184;
The Washington and The
Gregory, 9 Wall. 513;
The
Sapphire, 11 Wall. 164;
S.C. 18 Wall.
85 U. S. 51,
85 U. S. 56;
The Alabama and The Gamecock, 92 U. S.
695;
The Atlas, 93 U. S.
302,
93 U. S. 313; 3
Kent Com. 231.
These authorities conclusively show that according to the
general maritime law, in cases of collision occurring by the fault
of both parties, the entire damage to both ships is added together
in one common mass and equally divided between them, and thereupon
arises a liability of one party to pay to the other such sum as is
necessary to equalize the burden. This is the rule of mutual
liability between the parties. But when claims are prosecuted
judicially, the courts regard the pleadings, and the English courts
are very strict in holding the parties to their allegations and in
refusing relief unless it is sought in a direct mode. If only one
party sues and the other merely defends the suit, and upon the
proofs it appears that both parties are in fault, the court
declares this fact in the decree and decrees to the libellant
one-half of the damage sustained by him, the damage sustained by
the respondent not being regarded as the subject of investigation
determinable in
Page 106 U. S. 23
that suit. This technical result of the form of proceeding and
pleadings, in which the respondent suffers himself to be placed in
a position of disadvantage, has led to the erroneous notion that
each party is entitled by the law to be paid one-half of his damage
by the other party, and that each claim is independent of the
other. But where both parties file libels, as they are entitled to
do, although to conform to the pleadings a decree may be rendered
in each suit in favor of the libellant for one-half of his damage,
even the English courts will not allow two executions, but will
grant a monition in favor of that party who has sustained most
damage for the balance necessary to make the division of damages
equal. This is an awkward way of arriving at the result
contemplated by the law. It may have its conveniences in some
cases, as where the innocent owners of cargo are the libellants,
for they are not responsible for any part of the loss. But as
between the ship owners themselves, it involves an apparatus of two
distinct suits to get at one result, when one suit, or two suits
consolidated together, would be in every respect more convenient.
The difficulty is obviated in England to a certain extent where
each party has brought suit by directing, with the assent of the
parties, that the proceedings shall be conducted together so as to
save the expense of a double investigation.
To show the difficulties under which the English admiralty
courts have labored in seeking to do complete justice, one or two
cases may be referred to. In the case of
The Seringapatam,
reported in 2 W.Rob. 506 and 3 W. Rob. 38, a collision had occurred
between that ship and the Danish ship
Harriet, by which
the latter was sunk with a loss of ship and cargo. A libel was
filed by the owners of the
Harriet and cargo against the
Seringapatam, and an appearance was entered. A cross-libel
was also filed, but as the owners of the
Harriet resided
abroad, no process could be served, and no appearance was entered,
and the suit was discontinued. A decree was made in the original
suit declaring that both parties were in fault, and that the damage
should be equally borne by them, and condemning the respondents to
pay a moiety of the damages suffered by the
Harriet and
her cargo. After an appeal and affirmance of the decree, motion was
made in behalf
Page 106 U. S. 24
of the owners of the
Seringapatam praying that the
court, in estimating the compensation due to the owners of the
Harriet, would direct the register to ascertain and deduct
therefrom a moiety of the damage sustained by the
Seringapatam. But it was objected that the owners of the
latter were only defendants, and no prayer for compensation was
made in their behalf, and none could be allowed. Dr. Lushington
said:
"If the two actions had been going on according to the ordinary
usage and practice in these cases, the sentence of the court would
have attached to both vessels and the court would have decreed a
joint reference to ascertain the amount of the total damage, and
would have directed the said damage, with the costs, to be equally
divided between the respective owners. The cross-action, however,
having been abandoned, the court made its decree for a moiety of
the damage done to the
Harriet, and this decree has been
affirmed by the privy counsel."
Then, after showing that the appeal and affirmance would not
stand in the way of doing justice, he adds:
"I do not exactly see how I can deal with the second suit, which
has been abandoned as an existing suit, and say to the owners of
the
Seringapatam, you shall have the benefit of a decree
which, in point of fact, has never been pronounced in their favor.
The difficulty, it is true, is created by the peculiar
circumstances of the case itself, and if I could have foreseen the
result of the proceedings before the Trinity Masters, I would
certainly have made some arrangements at the time to meet the
circumstances of the case, for I never will be induced, unless
compelled by law, to further the commission of an injustice either
party upon a mere matter of form. Taking all the circumstances of
the case into my consideration, the course I shall adopt is this: I
shall not depart from my original decree, but shall confine the
reference to the amount of compensation to which the owners of the
Harriet are entitled. At the same time, I shall not permit the full
amount of that compensation to be paid to them unless they submit
to the deduction of a moiety of the damages sustained by the owners
of the
Seringapatam."
In the case of
The Calypso, Swab. 28, a collision had
occurred with the
Equivalent. The owners of the
Calypso
Page 106 U. S. 25
brought suit, and the decree was that both parties were in
fault, and pronounced for half the
Calypso's damage. Then
the owners of the
Equivalent sued, and the owners of the
Calypso presented a petition that the suit should be
dismissed because of the former adjudication. Dr. Lushington
declined to dismiss, but without deciding whether the matter might
not be set up as a defense, and intimated that it was not
commendable to wait the result of one action before bringing a
cross action, and he refused costs. He said:
"The usual practice is that when one vessel has been proceeded
against in a cause of collision and the owners of the other think
they have any chance of obtaining a decree in their favor to enter
a cross-action, and it is generally agreed between the
practitioners that the decision in the one case shall govern the
decision in the other. I am not aware that it is in the power of
the court, if the proctors were not consenting to such an
agreement, to say that both actions should be governed by the one
as a matter of right."
These cases serve to show how, by reason of the technicalities
of procedure and the clumsiness of the process used for attaining
the correct result, the original maritime rule, though in itself
simple and easy of application, became involved and obscured.
Thus, where the merchant shipping act declared that if certain
rules of navigation were infringed the owner should not recover for
any damage sustained in a collision, it was held that he should not
have the benefit of average.
The Aurora, Lush.Adm. 327,
and where the same act exempted the owner from responsibility for
the acts of a compulsory pilot, it was held that he should not be
subject to average, though entitled to recover half of his own loss
from the other vessel in fault.
The Montreal, 17 Jur. 538;
S.C. 24 Eng.L. & E.Rep. 580. These decisions were
contrary to the maritime rule, though perhaps, in the former case,
the words of the statute required the construction given to it.
See 1 Parsons' Shipping and Adm. 596; 2
id.
115-117.
A like departure from the maritime rule, we think, was made in
the late case of
Chapman v. Netherlands Steam Navigation
Co., L.R. 4 P.D. 157, which is much relied on by the counsel
of the
Ella Warley. In that case, a collision occurred
between the
Savernake, owned by Chapman & Co., and
the
Page 106 U. S. 26
Vesuvius, owned by the Netherlands Company, by which
the
Vesuvius was sunk, with a total loss of ship and
cargo, valued at �28,000, and the
Savernake was damaged
�4,000. The owners of the
Vesuvius brought suit, and the
owners of the
Savernake put in a counterclaim, the
substitute created by the late Judicature Act for the old
cross-action. Both parties being declared in fault, a reference was
made to the register to ascertain the damages of the various
parties. At this point, the owners of the
Savernake filed
a bill in equity to obtain the benefit of limited liability,
proffering �5,064 as the value of their ship at �8 per ton, and
obtained a decree for paying into court that fund with interest.
The question then arose as to the disposition of this fund, and for
what amount each party in interest should be permitted to prove for
dividend. Sir George Jessel, Master of the Rolls, decided that the
owners of the cargo of the
Vesuvius and her master and
crew were entitled to prove for half of their loss. As to the
owners of the ship, his decision was that the proper amount to be
proved was the half of her value, less the half of the loss
sustained by the
Savernake, according to the maritime rule
as before explained. The owners of the
Savernake appealed
and contended that their claim for a moiety of damage sustained by
them (which was �2,000) should stand good against the owners of the
Vesuvius absolutely, and should not be deducted from the
moiety of loss sustained by the
Vesuvius, but that the
owners of the latter should prove against the fund for their entire
moiety of loss without deduction. This would have the effect of
enabling them to set off the �2,000 against any dividend which
might be awarded to the owners of the
Vesuvius, and would
enable them to get back so much of the amount paid into court. The
Master of the Rolls had considered this a preposterous claim, and
contrary to the meaning of the maritime rule. But the majority of
the Lords Justices, Bagallay and Cotton, against the opinion of
Lord Justice Brett, reversed the decision and decreed in the manner
contended for by the appellants. We have carefully considered the
reasons given by the various judges, and are unable to avoid the
conclusion that the Master of the Rolls and Lord Justice Brett took
the proper view of the subject.
In this country, the courts of the United States are not
subject
Page 106 U. S. 27
to the same disabilities which embarrass the proceedings of the
English courts. By the Act of Congress of July 22, 1813, c. 14,
sec. 921, it is enacted that
"Where causes of a like nature, or relative to the same
question, are pending before a court of the United States, the
court may make such orders and rules concerning proceedings therein
as may be conformable to the usages of courts for avoiding
unnecessary costs or delay in the administration of justice, and
may consolidate said causes when it appears reasonable to do
so."
The power of consolidation here given enables the district
courts sitting in admiralty to provide for cases of the kind under
consideration in a manner adapted to the ends of justice and the
exact rights of the parties. We understand that it is freely
exercised by them. At all events, it clothes them with the
necessary authority, in cases of collision, to combine the suits
arising thereon into a single proceeding, and where both parties
are found to be in fault, to make a single decree (as was done in
this case), in accordance with their rights and obligations as
resulting from the law. And even where no cross-libel is filed, if
the respondents in their answer allege damage sustained by them in
the collision, and charge fault against the vessel of the
libellants, and pray a setoff or recoupment in case they should
themselves be held to be in fault, we see no good reason why they
should not have the benefit of average afforded by the law, at
least to the extent of the claim of the libellants. This would be
more in accord with the liberal spirit in which the rules of
pleading are administered in this country than a rigid adherence to
the English practice would admit of. In the case of
The Sapphire,
18 Wall. 51,
85 U. S. 56, Mr.
Justice Strong, delivering the opinion of this Court, observed:
"We do not say that a cross-libel is always necessary in a case
of collision in order to enable claimants of an offending vessel to
set off or recoup the damages sustained by such vessels if both be
found in fault. It may, however, well be questioned whether it
ought not to appear in the answer that there were such
damages."
As it nowhere appeared by the pleadings in that case that the
respondents had sustained any damage, it was held that they had
waived any claim for such damage. The suggestion of Justice Strong,
however, as to the non-necessity of a cross-libel is a very
pregnant one.
Page 106 U. S. 28
But waiving further discussion as to the proper or admissible as
to the proper or admissible mode of pleading -- for the respondents
in this case did file a cross-libel -- it is sufficient to say that
the forms and modes of proceeding in the courts of the United
States are not such as to interpose any serious difficulties in the
way of carrying out the simple rule of the maritime law with regard
to averaging the damages occasioned by a collision where both
vessels are in fault. And if there were, it would not alter the
relative rights of the parties as settled by that law. We have
referred to the embarrassments caused by the technical rules of
procedure in the English courts for the purpose of accounting for
their apparent departure from the maritime rule of liability in
some cases.
In conclusion it is proper to remark that the British statutes
on the subject of limited responsibility of ship owners, as well as
those which regulate the forms of proceeding, are different from
ours. The rule of limitation as administered by us is much more
liberal to the shipowners than the English rule. We only make them
liable, when free from personal fault, for the value of their ship
after the collision, so that if the ship is lost, their further
liability is extinguished, while in England, it is maintained to
the extent of �8 per ton, and in some cases �15 per ton, of their
ship's measurement. To apply to our law the rule of construction
which was given by the Lords Justices in the case of
Chapman v.
Netherlands Company would often result, and would in this case
result, in positive injustice. It would enable the owners of the
Ella Warley to obtain full compensation for a moiety of
their loss, while the owners of the
North Star would have
to sustain both their own entire loss and half of that of the
owners of the
Ella Warley, while both vessels were alike
to blame for the collision. A rule which leads to such results
cannot be a sound one.
Applying to the present case the maritime rule as we understand
it, it being ascertained that both parties were in fault, the
damage done to both vessels should have been added together in one
mass or sum and equally divided, and a decree should have been
pronounced in favor of the owners of the
Ella Warley
(which suffered most) against those of the
North Star
(which suffered least) for half the difference
Page 106 U. S. 29
between the amounts of their respective losses, for the
Ella
Warley, by her loss, discharged her portion of the common
burden, and so much more as the amount that would thus be decreed
in her favor. Her delivery to the waves was tantamount to her
surrender into court in case she had survived. It extinguished the
personal liability of her owners by the mere operation of the
maritime rule itself. As there was no decree against her owners for
the payment of money, there was no room for the application in
their favor of the statute of limited liability. The owners of the
North Star do not claim the benefit of the law, and
probably could not, because the fault of that ship lay in her
original construction, and was attributable to the owners
themselves. So that in fact the question of limited liability had
no application to the case. At the same time, it is proper to say
that it is at least questionable whether the benefit of the statute
can be accorded to any ship owner or owners in the absence of any
claim therefor in the pleadings. Such claim must always be based on
the collateral fact that the loss or damage was "occasioned or
incurred without the privity or knowledge of such owner or owners,"
Rev.Stat, sec. 4283, and it would seem that an allegation of that
fact should somewhere appear in the pleadings. As no such
allegation is made and no claim of the kind is set up by the owners
of the
Ella Warley, it would be exercising a greater
latitude of indulgence to allow it to be set up now than has ever
been asked of this Court before. Nevertheless, as the time within
which a party may be allowed to institute supplemental proceedings
for obtaining the benefit of the law has never been precisely
defined, we have deemed it best to decide the case upon the rights
of the parties on the merits in order to save further litigation
and expense.
Since, therefore, the decree of the circuit court was made in
precise conformity with the views which we have expressed, it must
be affirmed, with interest from its date, and inasmuch as both
parties have appealed from said decree upon grounds which have not
been sustained, each party should pay their own costs on this
appeal, and the cause must be remitted to the Circuit Court for
such further proceedings as may be in accordance with law, and it
is
So ordered.