Where a person is injured on a vessel through a marine tort
arising partly from the negligence of the officers of the vessel
and partly from his own negligence, and sues the vessel in
admiralty for damages for his injuries, he is not debarred from all
recovery because of the fact that his own negligence contributed to
his injuries.
Whether in such case 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,
quaere.
The case, as stated by the court, was as follows:
This is a suit in admiralty, brought in the District Court of
the United States for the Southern District of New York by Patrick
Curry against the steamer
Max Morris. The libel alleges
that on the 27th of October, 1884, the libellant was lawfully on
board of that vessel, being employed to load coal upon her by the
stevedore who had the contract for loading the coal; that on that
day the libellant, while on the vessel, fell from her bridge to the
deck, through the negligence
Page 137 U. S. 2
of those in charge of her in having removed from the bridge the
ladder usually leading therefrom to the deck, and in leaving open
and failing to guard the aperture thus left in the rail on the
bridge; that the libellant was not guilty of negligence, and that
he was injured by the fall, and incapacitated from labor. He
claimed $3,000 damages.
The answer alleges negligence on the part of the libellant, and
an absence of negligence on the part of the claimant.
The district court, held by Judge Brown, entered a decree in
favor of the libellant for $150 damages, and $32.33 as one-half of
the libellant's costs, less $47.06 as one-half of the claimant's
costs, making the total award to the libellant $135.27. The opinion
of the district judge is reported in 24 F. 860. It appears from
that that the judge charged to the libellant's own fault all his
pain and suffering and all mere consequential damages, and charged
the vessel with his wages at $2 per day, for 75 working days,
making $150.
The claimant appealed to the circuit court on the ground that
the libel should have been dismissed. It was stipulated between the
parties that the facts as stated in the opinion of the district
judge should be taken as the facts proved in the case, and that the
appeal should be heard on those facts. Judge Wallace, who heard the
case on appeal in the circuit court, delivered an opinion in
August, 1886, which is reported in 28 F. 881, affirming the decree
of the district court. No decree was made on that decision, but the
case came up again in the circuit court on the 14th of March, 1887,
the court being held by MR. JUSTICE BLATCHFORD and Judge Wallace,
when a certificate was signed by them stating as follows:
"The libellant was a longshoreman, as resident of the City and
County of New York, and was at the time when the said accident
occurred employed as longshoreman, by the hour, by the stevedore
having the contract to load coal on board the steamship
Max
Morris. The injuries to the libellant were occasioned by his
falling through an unguarded opening in the rail on the after end
of the lower bridge. The
Max Morris was a British
steamship, hailing from Liverpool, England. The defendant contends
as a matter of defense to said libel
Page 137 U. S. 3
that the injuries complained of by libellant were caused by his
own negligence. The libellant contends that the injuries were
occasioned entirely through the fault of the vessel and her
officers. The court finds, as a matter of fact, that the injuries
to the libellant were occasioned partly through his own negligence
and partly through the negligence of the officers of the vessel. It
now occurs as a question of law whether the libellant under the
above facts is entitled to a decree for divided damages. On this
question, the opinions of the judges are in conflict."
On motion of the claimant, the question in difference was
certified to this Court, and a decree was entered by the circuit
court affirming the decree of the district court and awarding to
the libellant a recovery of $135.27, with interest from the date of
the decree of the district court, and $26.30 as the libellant's
costs in the circuit court, making a total of $172. From that
decree the claimant has appealed to this Court. Rev.Stat. ยงยง 652,
693;
Dow v. Johnson, 100 U. S. 158.
Page 137 U. S. 7
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
The question discussed in the opinions of Judge Brown and Judge
Wallace, and presented to us for decision, is whether
Page 137 U. S. 8
the libellant was debarred from the recovery of any sum of money
by reason of the fact that his own negligence contributed to the
accident, although there was negligence also in the officers of the
vessel. The question presented by the certificate is really that
question, although stated in the certificate to be whether the
libellant, under the facts presented, was entitled to a decree "for
divided damages." It appears from the opinion of the district judge
that he imposed upon the claimant "some part of the damage" which
his concurrent negligence occasioned, while it does not appear from
the record that the award of the $150 was the result of an equal
division of the damages suffered by the libellant, or a giving to
him of exactly one-half, or of more or less than one-half, of such
damages.
The particular question before us has never been
authoritiatively passed upon by this Court, and is, as stated by
the district judge in his opinion, whether, in a court of admiralty
in a case like the present, where personal injuries to the
libellant arose from his negligence, concurring with that of the
vessel, any damages can be awarded, or whether the libel must be
dismissed, according to the rule in common law cases.
The doctrine of an equal division of damages in admiralty in the
case of a collision between two vessels where both are guilty of
fault contributing to the collision had long been the rule in
England, but was first established by this Court in the case of
The Schooner Catharine v.
Dickinson, 17 How. 170, and has been applied by it
to cases where, both vessels being in fault, only one of them was
injured, as well as to cases where both were injured, the injured
vessel in the first case recovering only one-half of its damages,
and in the second case the damages suffered by the two vessels
being added together and equally divided, and the vessel whose
damages exceeded such one-half recovering the excess against the
other vessel. In the case of
The Schooner Catharine v.
Dickinson, supra, both vessels being held in fault for the
collision, it was said by the Court, speaking by Mr. Justice
Nelson, p.
58 U. S. 177,
that the well settled rule in the English admiralty was "to divide
the loss," and that, "under the circumstances usually
Page 137 U. S. 9
attending these disasters," the Court thought "the rule dividing
the loss the most just and equitable, and as best tending to induce
care and vigilance on both sides, in the navigation."
This rule, recognized as one of an equal division of the loss,
has been applied by this Court in the following cases:
Rogers v. The 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 Sunnyside,
91 U. S. 208;
The America, 92 U. S. 432;
The Alabama, 92 U. S. 695;
The Atlas, 93 U. S. 302;
The Juniata, 90 U. S. 337;
The Stephen Morgan, 94 U. S. 599;
The Virginia Ehrman, 97 U. S. 309;
The City of Hartford, 97 U. S. 323;
The Civilta, 103 U. S. 699;
The Connecticut, 102 U. S. 710;
The North Star, 106 U. S. 17;
The Sterling, 106 U. S. 647, and
The Manitoba, 122 U. S. 97.
It may be well to refer particularly to some of these cases,
which have a bearing upon the present question. In the case of
The Washington, two vessels were held in fault for a
collision which resulted in injuries to an innocent passenger on
one of them, who proceeded against both in the same libel. This
Court held that the damages to the passenger ought to be
apportioned equally between the two vessels, with a reservation of
a right in the libellant to collect the entire amount from either
of them in case of the inability of the other to respond for her
portion. In that case, the rule of the equal division of damages
was extended to damages other than those sustained by either or
both of the vessels in fault.
In
Atlee v. Packet Co., a barge owned by the libellant
was sunk by striking a stone pier owned by the respondent, built in
the navigable part of the Mississippi River. Both parties being
found in fault by the district court, that court divided the
damages sustained by the libellant, and rendered a decree against
the owner of the pier for one-half of them. The circuit court held
the owner of the pier to be wholly in fault, and decreed the entire
damage against him. He having appealed, this Court, after two
hearings of the case, reversed the decree of the circuit court and
reinstated that of the
Page 137 U. S. 10
district court. In the opinion of this Court, delivered by Mr.
Justice Miller, the case is treated as one of collision. The pier
having been placed by the respondent in the navigable water of the
Mississippi River without authority of law, this Court held him to
be responsible for the damages sustained by the libellant from the
striking of the pier by the barge. It held also that there was
negligence on the part of the barge, and said (p.
88 U. S.
395):
"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 the damages. In the common law court, the defendant
must pay all the damages or none. If there has been on the part of
the plaintiffs 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 contributory negligence or, in other words, when 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."
This Court therefore treated the case as if it had been one of a
collision between two vessels.
The case of
The Alabama was like that of
The
Washington, where an innocent party recovered damages against
two vessels, both of which were in fault in a collision. In that
case, it is said in the opinion of the Court, delivered by MR.
JUSTICE BRADLEY, p.
92 U. S. 697,
that
"the moiety rule has been adopted for a better distribution of
justice between mutual wrongdoers, and it ought not to be extended
so far as to inflict positive loss on innocent parties."
The case of
The Atlas was that of a suit against the
Atlas
Page 137 U. S. 11
by an insurance company for the loss of a canal boat and her
cargo while she was in tow of a tug, through a collision between
the
Atlas and the tug. The tug was not sued. The district
and circuit courts, in view of the fact that the collision was
caused by the mutual fault of the
Atlas and the tug,
decreed to the libellant, against the
Atlas, one-half of
its damages. This Court held that, as the owner of the cargo which
was on board of the canal boat was not in fault, the libellant was
entitled to recover the entire amount of its damages from the
Atlas, the tug not having been brought in as a party to
the suit. By Rule 59 in admiralty, promulgated by this Court March
26, 1883, 112 U.S. 743, the claimant or respondent in a suit for
damage by collision may compel the libellant to bring in another
vessel or party alleged to have been in fault.
The case of
The Juniata is worthy of attention. In that
case, one Pursglove, the owner of a steam tug, filed a libel
against the
Juniata to recover for damage sustained by the
tug by a collision between it and the
Juniata and also
damages for personal injuries to himself. The district court held
both vessels to have been in fault, and made a decree of $10,000 in
favor of Pursglove, for one-half of his damages. This decree was
affirmed by the circuit court and by this Court. It is quite
evident from the report of the case that damages were awarded to
Pursglove for his personal injuries, although his tug was held to
have been in fault.
Some of the cases referred to show that this Court has extended
the rule of the division of damages to claims other than those for
damages to the vessels which were in fault in a collision.
In England, the common law rule that a plaintiff who is guilty
of contributory negligence can recover nothing was made by statute
to yield to the admiralty rule in respect to damages arising out of
a collision between two ships, by subdivision (9) of section 25, c.
66, 36 & 37 Vict., being the judicature Act of August 5, 1873,
L.R. 8 Stat. 321, which provides as follows:
"(9) In any cause or proceeding for damages arising out of a
collision between two ships, if both ships shall
Page 137 U. S. 12
be found to have been in fault, the rules in force in the Court
of Admiralty, so far as they have been at variance with the rules
in force in the courts of common law, shall prevail."
The same provision was enacted in the same language by
subdivision (9) of section 28, c. 57, 40 & 41 Vict., being the
Judicature Act in relation to Ireland of August 14, 1877, L.R. 12
Stat. 362.
The admiralty rule of the division of damages was laid down by
Sir William Scott in 1815 in
The Woodrop-Sims, 2 Dodson
83, 85, where he says that if a loss occurs through a collision
between two vessels where both parties are to blame, the rule of
law is "that the loss must be apportioned between them, as having
been occasioned by the fault of both of them." This rule was
approved by the House of Lords, on an appeal from Scotland, in
Hay v. Le Neve, 2 Shaw 395, in 1824.
The rule of the equal apportionment of the loss where both
parties were in fault would seem to have been founded upon the
difficulty of determining in such cases the degree of negligence in
the one and the other. It is said by Cleirac,
Us et Coutumes de
la Mer, p. 68, that such rule of division is a rustic sort of
determination, and such as arbiters and amicable compromisers of
disputes commonly follow where they cannot discover the motives of
the parties or when they see faults on both sides.
As to the particular question now presented for decision, there
has been a conflict of opinion in the lower courts of the United
States. In the case of
Peterson v. The Chandos, 4 F. 645,
649, in the District Court for the District of Oregon, which was a
libel in admiralty against a vessel for a personal injury, it was
said by Judge Deady that the libellant could not recover for an
injury caused by his own negligence which contributed to the
result, even though the vessel was in fault. The same rule was
recognized by him in the same court in a suit in admiralty in
Holmes v. Oregon Railway, 5 F. 523, 538, and by Judge
Hughes, in the District Court for the Eastern District of Virginia,
in
The Manhasset, 19 F. 430.
On the other hand, Judge Pardee, in the Circuit Court for
Page 137 U. S. 13
the Eastern District of Louisiana, in
The Explorer, 20
F. 135, and
The Wanderer, 20 F. 140, cases in admiralty
where the libellant sued for personal injuries and he and the
vessel were both held in fault, laid it down as a rule that in
cases of marine torts, courts of admiralty could exercise a
conscientious discretion, and give or withhold damages upon
enlarged principles of justice and equity. In the first of those
cases, the court allowed to the libellant $280 for the loss of 40
days' time at $7 a day, and the sum of $40 paid by him for his
admission to a hospital, and the costs of the case, as the vessel's
share of the expenses resulting from the injury to which the vessel
contributed through the negligence of her master and officers. In
the other case it was held that while the libellant could not be
rewarded for his negligence at the expense of the vessel, she
should be held responsible for her negligence to the extent of
paying for the direct care, attention, medical services, and
expenses required for the libellant. These last two cases proceed
upon the same principle that appears to have been adopted by the
district and circuit courts in the present case, and the same view
was applied by the District Court for the Eastern District of New
York in
The Truro, 31 F. 158, and by the District Court
for the Eastern District of Virginia in
The Eddystone, 33
F. 925. This principle, it is contended, is sanctioned by the
language used by this Court in
The Marianna
Flora, 11 Wheat. 1,
24 U. S. 54:
"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 in
The Palmyra, 12
Wheat. 1,
25 U. S. 17: "In
the admiralty, the award of damages always rests in the sound
discretion of the court, under all the circumstances."
The rule of giving one-half of the damages has been applied by
the district and circuit courts in the Southern District of New
York in cases where a boat and her cargo were lost or damaged
through negligence on the part of a steam tug which towed the boat,
where there was fault also on the part of the
Page 137 U. S. 14
boat. Those were not cases of collision, and there was no damage
to the steam tug, and she alone was sued for the loss. Such cases
were those of
The William Murtaugh, 3 F. 404, and 17 F.
260;
The Wm. Cox, 3 F. 645;
affirmed by the circuit
court, 9 F. 672;
Connolly v. Ross, 11 F. 342;
The
Bordentown, 16 F. 270. Also in cases where the vessel towed
was held to be in fault for not being in proper condition,
Phila. Railroad Co. v. New England Transportation Co., 24
F. 505, and where a boat was injured by striking the bottom of a
slip in unloading at the respondent's elevator, the boat herself
being also in fault,
Christian v. Van Tassel, 12 F. 884,
and where the vessel towed was old and unseaworthy,
The
Syracuse, 18 F. 828;
The Reba, 22 F. 546. In
Snow
v. Carruth, 1 Sprague 324, in the District Court for the
District of Massachusetts, damage to goods carried by a vessel on
freight was attributable partly to the fault of the carrier, and
partly to the fault of the shipper, and, it being impossible to
ascertain for what proportion each was responsible, the loss was
divided equally between them.
All these were cases in admiralty, and were not cases of
collision between two vessels. They show an amelioration of the
common law rule and an extension of the admiralty rule in a
direction which we think is manifestly just and proper.
Contributory negligence in a case like the present should not
wholly bar recovery. There would have been no injury to the
libellant but for the fault of the vessel, and while, on the one
hand, the court ought not to give him full compensation for his
injury where he himself was partly in fault, it ought not, on the
other hand, to be restrained from saying that the fact of his
negligence should not deprive him of all recovery of damages. As
stated by the district judge in his opinion in the present case,
the more equal distribution of justice, the dictates of humanity,
the safety of life and limb, and the public good, will be best
promoted by holding vessels liable to bear some part of the actual
pecuniary loss sustained by the libellant in a case like the
present, where their fault is clear, provided the libellant's
fault, though evident, is neither willful
Page 137 U. S. 15
nor gross nor inexcusable, and where the other circumstances
present a strong case for his relief. We think this rule is
applicable to all like cases of marine tort founded upon negligence
and prosecuted in admiralty, as in harmony with the rule for the
division of damages in cases of collision. The mere fact of the
negligence of the libellant as partly occasioning the injuries to
him, when they also occurred partly through the negligence of the
officers of the vessel, does not debar him entirely from a
recovery.
The necessary conclusion is that the question whether the
libellant, upon the facts found, is entitled to a decree for
divided damages must be answered in the affirmative in accordance
with the judgment below. This being the only question certified,
and the amount in dispute being insufficient to give this Court
jurisdiction of the whole case, our jurisdiction is limited to
reviewing this question.
Chicago Union Nat. Bank v. Kansas City
Bank, 136 U. S. 223.
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.
Decree affirmed.