1. Owners of a ship are not liable, under existing laws, for any
loss, damage, or injury by a collision occasioned without their
privity or knowledge beyond the amount of their interest in such
ship and her cargo at the time the collision occurred.
2. The true measure of compensation to an innocent party in a
case of collision is damages to the full amount of loss actually
suffered by him.
3. The shipper or consignee of the cargo of a vessel, being
innocent of all wrong, bears no proportion of the loss resulting
from a collision. He may pursue his remedy at common law, or in
admiralty, by a proceeding in rem,
Page 93 U. S. 303
by libel in personam
against the owner of either or
both of the offending vessels.
4. A collision between two vessels which were at fault resulted
in the loss of the cargo of a third vessel which was not at fault.
Its owner proceeded in rem
against one of the offending
that he was entitled to a decree against it
for the entire amount of his damages.
This is a libel against the steamboat Atlas
Phoenix Insurance Company, for damages resulting from a collision
between the Atlas
and the steam tug Kate,
a canal boat, in tow of the latter, was sunk and her cargo, of
which the company was the insurer, was lost and destroyed.
The district court found that the collision was caused by the
mutual fault of the Atlas
that the libellant recover against the Atlas
the damages sustained.
Both parties appealed, and, the circuit court having affirmed
the decree, they appealed here, and filed a written stipulation as
"1. The appeal taken by the claimants to this Court from the
decree of the United States Circuit Court for the Southern District
of New York is waived, so as to bring up before the court, on the
argument of this cause on the cross-appeals, only the question of
law as to whether libellants are entitled to recover the whole
amount of the damages, instead of one-half."
"2. The parties agree that the collision mentioned in the libel
and proceedings in this cause occurred by the mutual fault of the
"3. The libellants waive and abandon the assignment of error and
the claim that the decree of the circuit court should be reversed
on the ground that the Atlas
only was in fault, and rely
only on the assignment of error that the decree should have been
for the whole amount of the damages sustained by them, instead of
for only a moiety thereof, and the only question to be submitted to
the court is the question of law, whether the Atlas
liable for the whole amount of libellants' damages. "
Page 93 U. S. 307
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Owners of ships and vessels are not liable under existing laws
for any loss, damage, or injury by collision if occasioned without
their privity or knowledge, beyond the amount of their interest in
such ship or vessel and her freight pending at the time the
Subject to that provision in the act of Congress, the damages
which the owner of the injured vessel is entitled to recover are
estimated in the same manner as in suits for injuries to other
personal property, and the claim for compensation may in certain
cases extend to the loss of freight, necessary expenses in making
repairs, and unavoidable detention.
Restitutio in integrum
is the leading maxim in such
cases, and where repairs are practicable, the rule followed by the
admiralty courts in such a case is that the damages assessed
Page 93 U. S. 308
against the respondent shall be sufficient to restore the
injured vessel to the condition in which she was at the time the
injury was inflicted. The Clyde,
Swabey 24; The
2 W.Rob. 280; The
8 Wall. 385; Williams & Bruce, Prac.
77; 1 Pars. on Ship. 538; The Pactolus,
Sufficient appears in the record to show that the libellants
became the insurers of the cargo of the canal boat named in the
libel, consisting of linseed, in the sum of $14,500, for a voyage
from the port of New York to the port of New Brunswick, in the
State of New Jersey; that the canal boat, with her cargo on board,
was taken in tow at the port of departure by the steam tug called
that the steam tug, with her tow, including the
canal boat and two other vessels, proceeded in safety to New
Brighton, where the whole flotilla remained until the next morning,
when they started for the port of destination, the steam tug
heading northwest by north and taking her course across the kills
directly for Port Johnson, on the Jersey shore; that the steam tug
with the canal boat and the two other vessels in tow kept that
course until she was within one hundred and fifty yards of the
shore, when the master, being then in the pilot house, heard the
whistle of a steamboat about one-tenth of a mile distant; that it
was a single blast, being the signal that the respective boats as
they approached should pass to port; that the master of the steam
tug having the canal boat in tow answered the signal by blowing his
whistle twice, which is the proper signal that the boats should
pass to starboard, it being unsafe for him, owing to the state of
the tide and the conformation of the adjacent shore, to attempt to
pass the approaching vessel on the port side; that the signal given
was the proper one; and the charge is that the master of the steam
tug immediately starboarded his helm, and that the approaching
vessel, which proved to be the steam tug the Atlas,
a minute ran into the steam tug having the canal boat in tow, with
great force and violence, staving her in from her plank-shear to
the third plank below her water line, which caused the steam tug
and canal boat she had in tow to sink, whereby the cargo of the
canal boat became a total loss; and the libellants also charge that
the loss was wholly occasioned through the fault, negligence, and
want of skill of
Page 93 U. S. 309
those in charge of the approaching steam tug. The
4 Moore, P.C.C. 319.
Process was served and the claimants appeared and filed an
answer, setting up the several defenses alleged in the record.
Testimony was taken on both sides and, the parties having been
fully heard, the district court entered an interlocutory decree
that the damages claimed by the libellant were caused by the mutual
fault of the steam tug Kate
and the steamboat
and that the libellants do recover against the
one-half of the damages by them sustained
by reason of the collision, and that the cause be referred to a
commissioner to ascertain the amount.
Pursuant to the decretal order, the commissioner reported that
the whole amount of the damages to the date of the report was
$13,617.02, and that the libellants were entitled to recover
one-half of that sum, to wit, $6,808.51. Exceptions were filed by
the libellants to that report upon the ground that they are
entitled to the entire amount of the damages sustained, but the
court overruled the exception, confirmed the report, and entered a
final decree in conformity with the report. Both parties appealed
to the circuit court, where, the parties having been again fully
heard, the circuit court entered a final decree affirming the
decree of the district court, and both parties appealed to this
Since the appeal was entered here, the parties have been fully
heard, and they have filed in the cause a written stipulation to
the effect following:
1. That the claimants insist only that the decree of the circuit
court should be affirmed, the parties agreeing that the collision
occurred through the mutual fault of the steamboats Atlas
2. That the libellants admit that both the steamboats were in
fault, but insist that they are entitled to recover for their full
loss, and that the decree, being for a moiety only, should be
reversed on that account, and that a decree should be entered for
the entire damages that the owners of the cargo of the canal boat
sustained by the collision.
Other questions involved in the record being waived, the court
will confine its attention to the single inquiry whether the ruling
of the court below in overruling the exception of
Page 93 U. S. 310
the libellants to the report of the commissioner is or is not
Satisfaction to the libellant for the injury sustained is the
true rule of damages in a cause of collision, by which is meant
that the measure of compensation shall be equal to the amount of
injury received, and that the same shall be calculated for the
actual loss occasioned by the collision, upon the principle that
the sufferer is entitled to complete indemnification for his loss,
without any deduction for new materials used in making repairs, as
is prescribed in the law of marine insurance. Complete recompense
for the injury is required, nor is the guilty party in such a case
entitled to deduct from the amount of the damages any sum which the
libellant has received from an underwriter on account of the same
injury, the rule being, that a wrongdoer in such a case cannot
claim the benefit of the contract of insurance if effected by the
person whose property he has injured. Maude & P. on Ship. (3d
ed.) 465; Flanders on Ins. 591.
Instead of that, the law is well settled that the reception of
the amount of the loss from the insurers is no bar to an action
subsequently commenced against the wrongdoer to recover
compensation for the injury occasioned by the collision. Mason
3 Doug. 61.
Authorities to that effect are numerous, and it was expressly
decided by the judges in Yates v. Whyte,
4 Bing.N.C. 272,
that the defendants in such a case were not entitled to deduct from
the amount of damages to be paid by them a sum of money paid to the
plaintiff by insurers in respect of such damage.
None can recover compensation twice in respect of the same
injury, but what the plaintiff recovers under his policy of
insurance is not compensation for damages, but a payment under a
contract independent of the claim against the wrongdoer, and the
better opinion is that the principle which excludes double
compensation does not strictly apply to obligations not in the same
right. May on Ins. 555.
Compensation by the wrongdoer after payment by the insurers is
not double compensation for the plain reason that insurance is an
indemnity, and it is clear that the wrongdoers
Page 93 U. S. 311
are first liable, and that the insurers, if they pay first, are
entitled to be subrogated to the rights of the insured against the
Support to that proposition is found everywhere, and some of the
authorities go further and decide that the suit against the
wrongdoer for the benefit of the insurer must be prosecuted in the
name of the injured party. Randall v. Cockran,
90; Godsall v. Boldero,
9 East, 81; Irwing v.
1 B. & Adol. 196; Case v. Davidson,
Maule & Selw. 81; Clark v. Blything,
2 Barn. &
Suppose that is so, still it cannot affect the question in this
case, which is whether the decree should be for a moiety only of
the damages occasioned by the collision, or for the entire amount.
Waiving the question of parties, it is clear that the respondents
are liable for one or the other of those amounts. 1 Park on Ins.
(8th ed.) 330; Insurance Company v. Sainsbury,
245; Yates v. Whyte, supra;
2 Marsh on Ins. (2d ed.) 794;
2 Park on Ins. (8th ed.) 969; 2 Phillips on Ins. (5th ed.), sec.
Beyond all doubt, the owners of a ship or vessel injured by
collision may proceed to recover compensation either against the
owners or against the master personally, or against the ship
herself, at their election. The Volant,
1 W.Rob. 387;
Maude & P. on Ship. (3d ed.) 466.
Argument to support that proposition is unnecessary, but it is
equally well settled that the cargo which is on board the colliding
vessel at the time the collision occurs is not liable for the
damage done by the ship in which it is carried. The
1 Lush.Adm. 76.
Damage is sometimes said to be done by the ship, but that is a
mere form of expression, the truth being that it is either done by
the owner or by the master and crew employed by the owner, who is
responsible for their conduct, because, being employed by the
owner, they are his agents, but they are not the agents or servants
of the owner of the cargo, and for that reason the cargo is not
liable for the consequences of a collision.
Matters of fact need not be discussed in this case, as it is
admitted by the parties that the collision occurred through the
Page 93 U. S. 312
mutual fault of the steamboat Atlas
and the steam tug
which had the canal boat in tow with her cargo on
board. Both courts below gave the libellants a moiety of the
damages ascertained by the commissioner, and the claimants insist
that the decree of the circuit court is correct. On the other hand,
the libellants insist that they are entitled to recover the entire
damages occasioned by the collision, and that the decree of the
circuit court should be reversed.
Disasters of the kind occur from different causes and under very
different circumstances, and the rules of admiralty law applicable
in the determination of such controversies vary to meet the varying
circumstances which give rise to the accident. Judicial experience
has given no better guide than that furnished by Lord Stowell, than
whom no abler judge ever presided over the Admiralty Court of the
parent country. Speaking of such disasters, he remarked to the
effect that there were four possibilities under which an accident
of the kind may occur. In the first place, it may happen without
blame being imputable to either party, as where the loss is
occasioned by a storm or any other vis major.
case, the misfortune must be borne by the party on whom it happens
to fall, the rule being that the party not injured is not
responsible to the losing party in any degree. Secondly, a
misfortune of the kind may arise when both parties are to blame, as
where it appears that there has been a want of due diligence or of
skill on both sides, and he adds that in such a case the rule of
law is that the loss must be apportioned between them as having
been occasioned by both. Thirdly, it may happen by the misconduct
of the suffering party only, and then the rule is that the sufferer
must bear his own burden. Lastly, he remarks that it may happen
from the fault of the ship which ran the other down, and in that
case the injured party is entitled to an entire compensation from
the other. The Woodrop,
2 Dodson 85.
Freedom from fault is a good defense in a cause of collision
against a claim for damage promoted by an injured party, and it
entitles the promoter of such a suit to full compensation from the
opposite party, if proved to be guilty. Where neither party is in
fault and the damage was the result of unavoidable accident, the
rule that the loss must be borne by the party on whom it
Page 93 U. S. 313
fell is one of universal application. The Shannon,
W.Rob. 470; The Itinerant,
2 Wall. 560.
Under the second of the foregoing rules -- when both vessels are
in fault -- the sums representing the damages are added together
and the amount is equally divided between the parties, and that
rule prevails in all cases where there is mutual fault, even though
one of the vessels may have been much more in fault than the other.
Fault being imputed to both vessels, and the charge being proved,
the inquiry which was most to blame is immaterial, as the damages
must be divided between the two according to the rule provided in
the admiralty courts. Vaux v. Sheffer,
8 Moore, P.C.C.
Attempt was made in the Court of Sessions in Scotland to
establish an exception to that rule, and the court finding, in a
case where both vessels were in fault, that the greater share of
the blame rested on one, decided that her owners were liable for
two-thirds of the damage. Maude & P. on Ship. (3d ed.) 470;
Le Neve v. Shipping Co.,
1 Shaw's Cas. 378.
Prompt appeal was taken from that decree to the House of Lords,
where the decree was reversed upon the ground that the true rule
was the one laid down by Lord Stowell that where a misfortune of
the kind happens from the want of due diligence or skill on both
sides, the loss must be apportioned between them as having been
occasioned by the fault of both. Hay v. Le Neve,
H. of L.Cas. 400; The Washington,
5 Jur. 1067.
Both vessels being in fault, the positive rule of the Court of
Admiralty, says Lord Denman, requires the damage done to both ships
to be added together and the combined amount to be equally divided
between the owners of the two. De Vaux v. Salvador,
& El. 431.
Innocent parties in cases of the kind are entitled to full
compensation, but the admiralty rule as between wrongdoers is that
the combined amount of the damage shall be divided between the
owners of the two offending vessels. Text writers of standard
authority as well as courts have adopted the same rule, and hold
that where both vessels are in fault, the loss must be apportioned
between them as having been occasioned by the
Page 93 U. S. 314
fault of both. Maclachlan on Ship. (2d ed.) 286; 1 Pars. on
Ship. 527; Williams & Bruce, Prac. 71.
All of these writers and many others lay down the rule that
where both parties are to blame, the loss must be apportioned
between them, and the authors last cited say that the rule is
founded upon the principle which from ancient times has been
applied in the Admiralty Court that damage by a common fault shall
be considered as a common loss. The Lima,
4 Jur.N.S. 147;
Strict justice would require, said Dr. Lushington, that the
burden of making good the loss should fall upon the two delinquents
in proportion to their delinquency, but in practice the proportion
is impossible to be ascertained. Such a rule, if adopted, would be
utterly impracticable for the reason that the court cannot
apportion the loss according to the quantum of neglect or
culpability on the one side and the other; hence equal
apportionment is the universal rule where there is mutual fault,
even though the fault on one side may be much greater than the
fault on the other. The Milan,
Lush.Adm. 401; The
4 Jur.N.S. 147.
Courts and text writers in all or nearly all of these cases
appear to have proceeded, throughout the period which they cover,
upon the ground that the rule of apportionment requiring each
party, where both are in fault, to bear a moiety of the loss,
applies solely to the case of the wrongdoers, and that proof of
entire innocence or freedom from fault is a good defense to every
portion of a claim for damage, and that it entitles the promoter of
a suit for such a claim to full compensation for his loss from the
guilty party. Opposed to that conclusion is the case of The
Lush. Adm. 401, in which Dr. Lushington remarks to the
effect that the practice of the Court of Admiralty appears to have
been uniform that where both ships are to blame, the owners of
cargo equally with the owners of ships recover a moiety of their
damages, except in cases where the statute prescribes a different
rule, and the learned judge refers to the reported case of Hay
v. Le Neve,
2 Shaw's Sc.App. 405, in support of the
Other cases are also referred to for the same purpose, but the
reporter appends a note to the case that the other cases are
Page 93 U. S. 315
not reported. Enough appears in that case to show that both
ships were in fault -- the one for the want of lights and the other
for the want of a sufficient lookout -- and the decree was that the
whole of the damages sustained by the libellants for the ship and
cargo should be borne equally by the litigant parties; but it was
the owners of the injured ship who promoted the claim, and it does
not appear that the question before the court here received any
consideration at the bar or by the court.
Two admissions are made by the court in the case of the
which it is important to notice, as they are
undoubtedly correct and will afford much aid in disposing of the
question involved in the present record:
1. That the owner of the cargo in such a controversy could
recover for his whole loss in an action at law.
2. That the owner of the cargo in such a case is to be
considered as a perfectly innocent party.
Nothing is more clear than the right of a plaintiff, having
suffered such a loss, to sue in a common law action all the
wrongdoers, or any one of them, at his election, and it is equally
clear that if he did not contribute to the disaster, he is entitled
to judgment in either case for the full amount of his loss. He may
proceed against all the wrongdoers jointly or he may sue them all
or any one of them separately, but if he sues them all jointly and
has judgment, he cannot afterwards sue them separately, or if he
sues one separately and has judgment, he cannot afterwards sue them
all in a joint action, because the prior judgment against one is,
in contemplation of law, an election as to that one to pursue his
several remedy, but it is no bar to the suit for the same wrong
against any one or more of the other wrongdoers. Murray v.
2 Cliff. 196; s.c. 70 U. S. 3
19; Smith v. Hines,
2 Sumn. 348; Webster v.
38 N.Y. 261.
Acts wrongfully done by the cooperation and joint agency of
several persons constitute all the parties wrongdoers, and they may
be sued jointly or severally, and any one of them, said Spencer,
C.J., is liable for the injury done by all if it appear either that
they acted in concert or that the act of the individual sought to
be charged ordinarily and naturally produced the acts of the
others. Guile v. Swan,
19 Johns. 382.
Page 93 U. S. 316
Confirmation of the second admission is not required, as
sufficient has already been remarked to show that the proposition
is correct and that it is universally approved.
Shippers having lost cargo by such a disaster may pursue their
remedy by libel in personam
against the owner of the
offending vessel, or they may, at their election, proceed in an
action at law either in the circuit court, if the parties are
citizens of different states, or in a state court, as in other
cases where the federal and state courts have concurrent
jurisdiction. Steamboat Company v.
16 Wall. 533; The
7 Wall. 644.
Suitors have a right to a common law remedy in all cases where
the common law is competent to give it. Consignees or shippers
injured in their property by collision may proceed in rem
in the admiralty, or they may bring a suit in personam
the same jurisdiction, or they may elect not to go into admiralty
at all, and may resort to their common law remedy in the state
courts or in the circuit court of the United States, if they can
make proper parties to give that court jurisdiction.
Common law remedies in cases of tort, as given in common law
courts, and suits in personam
in the admiralty courts of
this country bear a strong resemblance to each other in respect to
parties, and the effect of a recovery by the injured party against
one or all of the wrongdoers, and the extent of redress to which in
innocent party is entitled against the wrongdoer. Simpson v.
6 Whart. 321.
Different systems of pleading and modes of proceeding prevail in
the two jurisdictions, and in some few respects there is a
difference in the rules of evidence adopted in the admiralty court
from those which prevail in common law actions. All know that the
libel in the Admiralty Court takes the place of the declaration in
an action at law, and that the answer is the substitute for the
plea of the defendant.
Contributory negligence on the part of the libellant cannot
defeat a recovery in collision cases if it appears that the other
party might have prevented the disaster, and that he also did not
practice due diligence, and was guilty of negligence, and failed to
exercise proper skill and care in the management of his vessel.
Proof of the kind will defeat a recovery at common
Page 93 U. S. 317
law, but the rule in the admiralty is that the loss in such a
case must be apportioned between the offending vessels as having
been occasioned by the fault of both; but the rule of the common
law and of the admiralty is the same where the suit is promoted by
an innocent party, except that the moiety rule may be applied in
the admiralty if all the parties are before the court and each of
the wrongdoers is able to respond for his share of the damage.
Subject to that qualification, the remedy of the innocent party is
substantially the same in the admiralty as in an action at law, the
rule being that in both he is entitled to an entire compensation
from the wrongdoer for the injury suffered by the collision.
Colegrove v. Railroad,
20 N.Y. 493; Catlin v.
8 C.B. 125; Vanderplank v. Miller,
& Mal. 169.
Goods shipped as cargo, and their owners, as in the case before
the Court, are innocent of all wrong, and the owners of the cargo
may sue the owners of one of the ships, or both, and they may sue
at law or go into the admiralty, at their election, and, having
proved their case, they are as much entitled to full compensation
in the admiralty as they would have been if they had elected to
pursue their common law remedy saved to them by the proviso
contained in the ninth section of the Judiciary Act, 1 Stat.
Co-wrongdoers not parties to the suit cannot be decreed to pay
any portion of the damage adjudged to the libellant, nor is it a
question in this case whether the party served may have process to
compel the other wrongdoers to appear and respond to the alleged
Even suppose that the case of the Milan
is a correct
exposition of the admiralty law as administered in the jurisdiction
where the decision was made, still it cannot control the question
before the Court for the reason that the rule of practice here is
different, as is clearly shown by the judgment of this Court
delivered at the last term of the Court. The Alabama and The
Game-cock, 92 U. S. 695
Counsel of experience and ability attempted to maintain in that
case the same theory as that now advanced in argument here by the
appellees, and they cited The Milan,
Lush. Adm. 403,
4 Ben. 28, S.C.
10 Blatch. 460, in
Page 93 U. S. 318
of the proposition which they desired the court to adopt.
Suffice it to remark by the way of explanation that all the parties
interested in the case then under argument were before the court,
which is all that need be said in respect to the operation of such
a theory if applied in a case where the parties interested were
duly served and were present and it did not appear that each of the
respondents was not able to respond for a moiety of the damages
suffered by the owner of the cargo.
Contingencies are also portrayed in which it is conceded that
the theory may be applied without serious injustice or
inconvenience, but the court proceeds to say that it would seem to
be just that the owner of the cargo who is supposed to be free from
fault should recover the damage done thereto from those who caused
it, adding that if he cannot recover from either of them such
party's due share, he ought to be able to recover it from the
other, and that the same reason for a division of the damage does
not apply to the owner of the cargo as applies to the owners of the
ships. Remarks are then made to show that the moiety rule is both
just and expedient between the ships where both are in fault, but
the court proceeds to say that if either is unable to pay his
moiety of damage, there is no good reason why the owner of the
cargo should not have a remedy over against the other, and finally
remarks that the moiety rule was adopted for the better
distribution of justice between wrongdoers, and that it ought not
to be extended so far as to inflict positive loss to innocent
9 Wall. 516.
Much care was taken in framing the decree in that case, which of
itself shows to a demonstration that the court never intended to
adopt a theory which would fail to give innocent parties full
compensation suffered by a collision, and that they never meant to
extend the moiety rule so as to do injustice to an innocent tow or
to the owner of cargo. Such a result can never be sanctioned by the
Justices of this Court so long as they adhere to the rule that when
a third party has sustained an injury to his property from the
cooperating consequences of two causes, though the persons
producing them may not be in intentional concert to occasion such a
result, the injured
Page 93 U. S. 319
person is entitled to compensation for his loss from either one
or both of them according to the circumstances of the incident.
1 Black 76; Boyer
24 How. 122.
Except when both parties are to blame, the offending party can
recover nothing, whether he pursues his remedy in the admiralty or
at common law. Where both are to blame, neither can recover any
thing at common law, but the admiralty requires each to suffer a
moiety of the loss, to be ascertained in the manner already
Parties without fault, such as shippers and consignees, bear no
part of the loss in collision suits, and are entitled to full
compensation for the damage which they suffer from the wrongdoers,
and they may pursue their remedy in personam
common law or in the admiralty against the wrongdoers or any one or
more of them, whether they elect to proceed at law or in the
Such a party is not required in any event to bear any portion of
the loss suffered by others, the rule being that where the
collision occurs exclusively from natural causes, without any fault
of either of the colliding vessels, the loss shall rest where it
happens to fall, on the principle that no one is responsible for
such a disaster when produced by causes over which human skill and
prudence can exercise no control.
Inevitable accident is a good defense in such a controversy
where both vessels are free from blame, but it is utterly
unavailing if either or both were in fault. Where the vessel of the
respondent is alone in fault, the libellant is entitled to recover
full compensation for his damages, and the rule is that if the
vessel of the libellant is alone in fault, the decree must be for
the respondent that the libel be dismissed.
Cases also arise where both vessels are in fault, and the
repeated decisions of this Court have established the rule that in
that contingency the damages shall be equally apportioned between
the offending vessels as having been occasioned by the fault of
17 How. 177; The Sunnyside,
91 U. S. 216
14 Wall. 355; The
2 Wall. 560; The
24 How. 313.
Innocence entitles the loser to full compensation from the
Page 93 U. S. 320
wrongdoer, and it is a good defense against all claims from
those who have lost. Individual fault renders the party liable to
the innocent loser, and is a complete answer to any claim made by
the faulty party except in a case where there is mutual fault, in
which case the rule is that the combined amount of the loss shall
be equally apportioned between the offending vessels.
Decree reversed and cause remanded with directions to
reverse the decree of the district court and enter a new decree in
favor of the libellants for the entire damages as ascertained by
MR. JUSTICE BRADLEY did not sit in this case.