The
Golden Rule, a Canadian topsail schooner with
twelve sails, all of which with a small exception she was carrying,
was sailing off Nantucket Shoals at a speed of seven knots an hour,
in a fog so dense that the hull of another vessel could not be seen
more than a few hundred feet off. The
Chattahoochee, an
American steamer, came up at an angle in the opposite direction
with a speed of ten or twelve knots an hour. The schooner was
sounding a foghorn, and the steamer a steam whistle. When the steam
whistle was heard on the schooner, she kept on her way at full
speed. When the foghorn was heard on the steamer, order was given
and obeyed to stop and reverse, and the wheel was put hard-a-port.
Upon seeing the schooner, the steamship engines were put at full
speed ahead for the purpose of clearing it, but a collision took
place and the schooner sank almost immediately. The sunken vessel
had a valuable cargo on board. It was held below that both vessels
were in fault for immoderate speed, and the district court, ruling
that the damages should be divided, made a decree respecting such
division which was modified by the court of appeals as hereafter
stated.
Held:
(1) That there can be no doubt as to the liability of the
steamer, and, as no appeal was taken on her part, she is estopped
from denying that liability here.
(2) That the schooner also was proceeding at an immoderate
speed, and was properly condemned therefor, and the cases
bearing
Page 173 U. S. 541
upon the question of what is immoderate speed in a sailing
vessel under such circumstances are cited and reviewed.
(3) That the court of appeals did not err in deducting half the
value of the cargo from half the value of the sunken schooner, and
in limiting a recovery to the difference between these values, and
in reaching this conclusion, the court cites and reviews several
cases, in deciding which the act known as the Harter Act has been
considered and applied.
The
Golden Rule was a topsail schooner hailing from
Liverpool, Nova Scotia, of about 200 tons burden, and rigged with
twelve sails, including one double square sail on the foremast. Her
length over all was 110 feet. She was bound on a voyage from Porto
Rico to Boston with a full cargo of sugar and molasses, and at the
time of the collision, was sailing on her port tack, upon a course
north by east, one-half east, with a free and fresh wind five to
six points abaft the beam. She was under full sail, except one-half
of the square sail forward, which was taken in about two hours
before the collision. Her speed was the main point in dispute. At
the time of the collision, the weather was foggy, the wind blowing
in moderate breezes from the southwest, and the mate was sounding a
mechanical foghorn forward.
The
Chattahoochee was an iron screw steamship of 1,887
tons burden, 300 feet in length, and running on a line between
Boston and Savannah. She left Boston in the afternoon of the 19th,
and, when off Cape Cod, her master, owing to the foggy weather,
decided to take the outside passage by Nantucket, instead of her
regular course through Vineyard Sound. The outside course was much
clearer of vessels. Before the collision, the steamship was
eighteen miles off the South Shoal lightship, on a course southwest
half west, proceeding at her full speed of from ten to twelve knots
an hour, and blowing her whistle at the statutory intervals after
12:30 o'clock. The
Page 173 U. S. 542
master and the first officer, with the quartermaster, were in
the pilot house, and a man was on the lookout forward.
From the above statement, it will be seen that the two vessels
were approaching upon courses which converged at an angle of about
three points.
The officers of the schooner heard the steamship's whistle from
two to four points off the starboard bow, a fact which was duly
reported to the officer of the deck. The whistles of the steamship
continued to be heard on the starboard bow until she came in sight
some four or five lengths off, the schooner keeping her course and
speed until the collision.
The master and lookout of the steamship heard the fog signal of
the schooner about two minutes before the collision, apparently a
point off their port bow. The order was immediately given, and
obeyed, to stop, and afterwards to reverse, and the wheel was put
hard-a-port in order to locate the sound. When they first saw the
sails of the schooner, they bore one and one-half points on the
port bow of the steamer. During this time, the helm of the steamer
was hard-a-port. Upon seeing the schooner, the steamship, which was
then swinging to starboard under her port helm, ordered her engines
full speed ahead for the purpose of clearing the schooner. The
schooner kept her course, and the vessels came together at an angle
of four points, the steamship striking the schooner forward of the
foremast on the starboard side, sinking her almost immediately. The
collision resulted in a total loss of the schooner, with all her
cargo and property on board. The steamship was uninjured.
The district court was of opinion that both vessels were in
fault for immoderate speed, and that the damages should be
divided.
Damages were awarded to the libelants, as bailees for the owners
of the cargo, to the amount of $17,215.17, and to the libelants, as
owners of the vessel and for the value of certain personal effects
of the crew, in one-half the total amount of their loss, namely,
$9,205.45, and it was further ordered that the owners of the
steamship might recoup from the said amount of $9,205.45 the sum of
$8,607.58, being one-half of the
Page 173 U. S. 543
total damages to the cargo. An execution was ordered against the
claimants of the steamship and its stipulators for the sum of
$597.87, this being the difference between half the value of the
schooner and the personal effects of the crew and half the value of
the cargo, for which the schooner was thus held responsible.
Upon appeal to the circuit court of appeals, that court affirmed
the decree of the district court upon the merits, but modified the
same with reference to the distribution between the owners and
master of the
Golden Rule, on the one side, and her mate
and crew, on the other, finding that as neither the mate nor her
crew were responsible for any fault in her navigation, the several
sums awarded the mate and crew should have priority over the
amounts awarded the owners and master. 74 F. 899.
Whereupon an application was made to this Court by the libelants
for a writ of certiorari, which was granted.
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
There can be no doubt whatever of the liability of the steamer,
and, as she did not appeal, of course, she is estopped to deny such
liability in this Court.
1. Whether the
Golden Rule was also liable for
excessive speed is a question of more difficulty. She was a topsail
schooner, rigged with twelve sails, all of which she was carrying,
except one-half her double square sail on the foremast, which had
been taken in. She was sailing on her port tack, with the wind well
abaft the beam, through a fog, which did not admit of the hull of a
vessel being seen more than a few hundred feet distant. It appears
to have been a surface fog, as the crew of the schooner are
confident they saw the masts
Page 173 U. S. 544
of the steamer some 2,000 feet away. The district court was of
opinion that, as she was sailing free, with a fresh wind, her speed
could not have been less than seven or eight knots an hour. The
court of appeals found only that she was making substantially all
the speed of which she was capable. Her master admits that she was
making from five to six knots, but as her log, which was taken in
at 4 o'clock, registered twenty-eight miles for four hours, we
think her speed may be safely estimated to have been seven miles an
hour. While the commerce in this locality was not as great as it
was in Vineyard Sound, it was not unlikely that they would
encounter other vessels coming down the coast. Was seven miles a
moderate rate of speed under the circumstances of this case?
Although the reports of the admiralty courts are extremely
fertile of cases turning upon the proper speed of steamers in foggy
weather, there is a singular paucity of such as deal with the speed
of sailing vessels. Such as there are, however, point to a
uniformity of regulation applicable to the two classes. The
earliest of these cases is that of
The Virgil (1843), 2
W.Rob. Adm. 201. This was a collision between two sailing vessels
in a dark and hazy night, although there does not seem to have been
a fog. As it appeared that the
Virgil had the wind free
and was sailing under a full press of canvas, she was held in fault
for too great speed. Her actual speed is not given. In the case of
The Victoria, 3 W.Rob. 49, a vessel running before the
wind on a dark and cloudy night at the rate of from five to six
knots an hour off the English coast was held to have been in fault
for proceeding at that rate of speed.
Upon the other hand, in the case of
The
Morning Light, 2 Wall. 550, a brig running through
Buzzards' Bay in a dark and rainy night, was held not to have been
in fault for not shortening sail. The Court, commenting on the case
of
The Virgil, observed: "But such a restriction" as was
laid down in that case
"can hardly be applied to sailing vessels proceeding on their
voyage in an open sea. On the contrary, the general rule is that
they may proceed on their voyage, although it is dark, observing
all the ordinary rules of navigation and with
Page 173 U. S. 545
such additional care and precaution as experienced and prudent
navigators usually employ under similar circumstances. They should
never, under such circumstances, hazard an extraordinary press of
sail, and in case of unusual darkness, it may be reasonable to
require them, when navigating in a narrow pathway where they are
liable to meet other vessels, to shorten sail if the wind and
weather will permit."
The actual speed of the
Morning Light is not given,
although the wind seems to have been blowing a five to six knot
breeze, which would indicate a somewhat lower rate of speed than in
this case. In the case of
The Itinerant, 2 W.Rob. 236,
decided in 1844, Dr. Lushington was of opinion that it was the duty
of the shipmaster, whether in a dense fog or great darkness, to
exercise the greatest vigilance and to put his vessel under
command, although such precautions might occasion delay in the
prosecution of the voyage. "It may be," said he,
"that for such a purpose it would be his duty to take in his
studding sails; but such is the constantly varying combination of
circumstances arising from locality, wind, tide, number of vessels
in the track, and other considerations, that the court cannot
venture to lay down any general rule which would absolutely apply
in all cases."
So too in
The Pepperell, Swabey 12, Dr. Lushington held
a ship proceeding in the North Sea at the rate of six and one-half
knots an hour during a night so dark that vessels could only be
seen at a distance of 100 to 200 yards, was in fault if she knew or
ought to have known that she was crossing a fishing ground.
See
also The Lord Saumarez, 6 Notes of Cases 600;
The Juliet
Erskine, ibid., 633.
These cases were all decided before the new steering and sailing
rules, which were first adopted in 1863 by a British order in
council, and in 1864 by an act of Congress. The twenty-first of
these rules, as they appear in Revised Statutes, section 4233,
requires that "every steam vessel shall, when in a fog, go at a
moderate speed." No mention is made in this rule of sailing
vessels, but the courts both in England and America, so far as they
have spoken upon the subject, have adhered to the rule laid down in
the earlier cases above cited -- that rates
Page 173 U. S. 546
of speed which would be considered immoderate for steamers are
open to like condemnation in the case of sailing vessels.
See discussion in
The Chancellor, 4 Ben. 153,
160. In
The Thomas Martin, 3 Blatchford 517, a schooner
was condemned by Mr. Justice Nelson for racing on a night which was
not unusually dark, yet was so overcast and cloudy that a vessel
without lights could not be seen at a distance exceeding a half
mile. The schooner had all her sails set, with a pretty fresh wind,
and was running at a rate of speed that, under the circumstances,
he thought could not well be justified considering the character of
the night.
In the case of
The John Hopkins, 13 F. 185, it was held
by MR. JUSTICE HARLAN and Judge Lowell that, in case of a fog, and
in a place much frequented by vessels, it was as much the duty of a
sailing vessel to go at a moderate rate of speed as it was the duty
of a steamer. In this case, a brig, sailing with the wind nearly
aft and making eight to nine knots through the water, with a
current of two knots in her favor, off the coast of Cape Cod, was
held to have been in fault for a collision with a steamer in a
dense fog. So, in
The Wyanoke, 40 F. 702, it was held by
Judge Brown of the Southern District of New York that a schooner
having nearly all her canvas set and running in a dense fog off
Cape May at a speed of six knots an hour was not going at the
moderate speed required by law. In
The Attila, Cook 196,
the Vice Admiralty Court at Quebec condemned a sailing vessel for
running at a speed of six or seven miles an hour in a dense fog in
the fairway from the Atlantic Ocean between Cape Ray and St. Paul's
Island into the Gulf and the lower waters of the St.Lawrence River,
although there was abundance of evidence that this was the
customary rate of speed during a fog in this locality.
In 1879, a new code was adopted in England, and in 1885 in this
country, article 13 of which provides that "every ship,
whether
a sailing ship or steamship, shall, in a fog, mist, or falling
snow, go at a moderate speed."
In the case of
The Elysia, 4 Asp.Mar.Cas. 540, it was
held by the Admiralty Court and by the Court of
Page 173 U. S. 547
Appeal in England that a speed of five knots, in the case of a
sailing ship out in the Atlantic Ocean, in a fog, is a moderate
speed, although at the time she was under all plain sail, and going
as fast as she could with the wind on her quarter. Lord Justice
Brett was of opinion that a moderate speed was not absolutely the
same with regard to a steamer as to a sailing vessel.
"If you were to say that three knots were a moderate speed for a
steamer, in which to turn from one point to another when out in the
ocean, that does not presume that that would be a moderate speed
for a sailing vessel, because a steamer can reduce her speed to a
knot and a half. It would, however, be very dangerous for a sailing
vessel, under all circumstances, to reduce her speed to anything
like three knots, because such a speed would, in certain
circumstances, place her entirely out of command."
In
The Zadoc, L.R. 9 P.D. 114, which was a collision
between a steamship and a bark in the English Channel, it was held
to have been the duty of the bark to reduce her speed so far as she
could consistently with keeping steerageway, and as it was shown
that she was carrying nearly all her canvas and proceeding at a
speed of more than four knots an hour, she was held to be in fault
and the steamer exonerated. A like ruling was made by the Master of
Rolls, speaking for the Court of Appeal in
The Beta, L.R.
9 P.D. 134. The collision took place in a dense fog in the Bristol
Channel, and it was held that a vessel must not go faster than
would enable her to be kept under command.
In the case of
The N. Strong (1892), L.R. P.D. 105,
which was a collision in the English Channel, it was held that a
sailing vessel which was making about four knots an hour in a fog
was not proceeding at a rate of speed beyond what was necessary to
keep her well under command.
The cases in the American courts are of the same purport. In
The Rhode Island, 17 F. 554, it was held by Judge Brown of
the Southern District of New York that a speed of seven knots an
hour in a foggy evening in Long Island Sound was not a moderate
rate of speed, although the twenty-first rule did not apply in
terms to sailing vessels.
Page 173 U. S. 548
No absolute rule can be extracted from these cases. So much
depends upon the density of fog and the chance of meeting other
vessels in the neighborhood that it is impossible to say what ought
to be considered moderate speed under all circumstances. It has
been said by this Court in respect to steamers that they are bound
to reduce their speed to such a rate as will enable them to stop in
time to avoid a collision after an approaching vessel comes in
sight, provided such approaching vessel is herself going at the
moderate speed required by law. It is not perceived why the
considerations which demand a slackening of speed on the part of
steamers in foggy weather are not equally persuasive in the case of
sailing vessels. The principal reason for such reduction of speed
is that it will give vessels time to avoid a collision after coming
in sight of each other. If two steam vessels are approach ng upon
converging courses at a combined rate of speed of thirty miles an
hour, and are only able to see each other three or four lengths
off, it would be practically impossible to avert a collision,
whereas if each were going at the lowest rate of speed consistent
with good steerageway, a collision might easily be avoided by
stopping and reversing their engines, or by a quick turn of the
wheel and an order to go ahead at full speed. While sailing vessels
have the right of way as against steamers, they are bound not to
embarrass the latter either by changing their course or by such a
rate of speed as will prevent the latter from avoiding them. There
is also the contingency that a schooner sailing with the wind free,
as in this case, may meet a vessel close-hauled, in which case the
latter has the right of way and the former is bound to avoid her.
Beyond this, however, a steamer usually relies for her keeping
clear of a sailing vessel in a fog upon her ability to stop and
reverse her engines, whereas it is impossible for a sailing vessel
to reduce her speed or stop her headway without maneuvers which
would be utterly impossible after the two vessels come in sight of
each other. Indeed, she can do practically nothing beyond putting
her helm up or down to "ease the blow" after the danger of
collision has become imminent. The very fact that a sailing vessel
can do
Page 173 U. S. 549
so little by maneuvering is a strong reason for so moderating
her speed as to furnish effective aid to an approaching steamer
charged with the duty of avoiding her.
In this case, the
Golden Rule, though not pursuing the
most frequented path of coastwise commerce, was sailing through
waters where other vessels were frequently met, and not far from
the usual track of transatlantic steamers. Her foghorn was heard by
the steamer but once, or possibly twice, while if the vessels had
been proceeding at the speed required by law, their signals would
have been exchanged so many times that the locality and course of
each would have been clearly made known to the other. In other
words, sufficient time would have been given for the steamer to
have taken the proper steps to avoid the schooner. Upon the whole,
we are of opinion that the courts below were right in condemning
the schooner for immoderate speed.
2. An important question of damages remains to be considered.
Libelants, as bailees for the owners of the cargo, proceeded
against and were held entitled to recover of the steamship the
entire value of the cargo, but the latter was allowed to recoup
one-half of this amount from one-half the amount of damages
suffered by the schooner. This appears to have been done upon the
authority of
The North Star, 106 U. S.
17, in which it was held that where a collision occurred
through the mutual fault of two vessels, one of which was sunk and
the other of which was damaged, the owners of the sunken vessel
were not entitled under the Limited Liability Act to an entire
exoneration from liability, but that the damage done to both
vessels should have been added together in one sum and equally
divided, and a decree should have been pronounced in favor of the
vessel which suffered most against the one which suffered least for
half the difference between the amounts of their respective losses.
A similar ruling was made in
The Manitoba, 122 U. S.
97, and in
The Stoomvaart Maatschappy Nederland v.
Pen. & Or. Steam Nav. Co., 7 App.Cas. 795.
But libelants insist in this connection that the Act of February
13, 1893, known as the "Harter Act," has modified the
Page 173 U. S. 550
previous existing relations between the vessel and her cargo,
and has an important bearing upon this branch of the case. By the
third section of that act, the owner of a seaworthy vessel (and, in
the absence of proof to the contrary, a vessel will be presumed to
be seaworthy) is no longer responsible to the cargo for damage or
loss resulting from faults or errors in navigation or management.
This section is made applicable to "any vessel transporting
merchandise or property to or from any port in the United States,"
and we know of no reason why a foreign vessel like the
Golden
Rule, engaged in carrying a cargo from a foreign port to
Boston, is not entitled to the benefit of this provision. Had the
cargo of the schooner arrived at Boston in a damaged condition, it
is clear that the vessel might have pleaded the statute in
exoneration of her liability, if the damage had occurred through a
fault or error in navigation, such, for instance, as a collision
due wholly or partly to her own fault. So, if a vessel and cargo be
totally lost by such fault, we know of no reason why the owner of
the vessel is not entitled to the benefit of this section, as well
as to his exemption under the Limited Liability Act.
The reasons which influenced this Court to hold in the case of
The Scotland, 105 U. S. 24, that
the Limited Liability Act applied to owners of foreign as well as
domestic vessels, and to acts done on the high seas as well as in
the waters of the United States, apply with even greater cogency to
this act. "In administering justice," said Mr. Justice Bradley, p.
105 U. S.
29,
"between parties, it is essential to know by what law, or code,
or system of laws their mutual rights are to be determined. When
they arise in a particular country or state, they are generally to
be determined by the law of that state. Those laws pervade all
transactions which take place where they prevail, and give them
their color and legal effect. . . . But if a collision occurs on
the high seas, where the law of no particular state has exclusive
force, but all are equal, any forum called upon to settle the
rights of the parties would
prima facie determine them by
its own law, as presumptively expressing the rules of justice. . .
. If it
Page 173 U. S. 551
be the legislative will that any particular privilege should be
enjoyed by its own citizens alone, express provision will be made
to that effect. . . . But the great mass of the laws are, or are
intended to be, expressive of the rules of justice, and are
applicable alike to all. . . . But there is no demand for such a
narrow construction of our statute [as was given by the English
courts to their Limited Liability Act], at least to that part of it
which prescribes the general rule of limited responsibility of
shipowners. And public policy, in our view, requires that the rules
of maritime law as accepted by the United States should apply to
all alike, as far as it can properly be done. If there are any
specific provisions of our law which cannot be applied to
foreigners or foreign ships, they are not such as interfere with
the operation of the general rule of limited responsibility. That
rule, and the mode of enforcing it, are equally applicable to all.
They are not restricted by the terms of the statute to any
nationality or domicile. We think they should not be restricted by
construction."
It will be observed that the language of the Harter Act is more
specific in its definition of the vessels to which it is applicable
than the Limited Liability Act, which simply uses the words "any
vessel," whereas, by the third section of the Harter Act, it is
confined to "any vessel transporting merchandise or property to or
from any port in the United States." Where Congress has thus
defined the vessels to which the act shall apply, we have no right
to narrow the definition. It may work injustice in particular cases
where the exemptions are accorded to vessels of foreign nations
which have no corresponding law, but this is not a matter within
the purview of the courts. It is not improbable that similar
provisions may ultimately be incorporated in the general law
maritime. Indeed, the act has been already held by this Court
applicable to foreign as well as to domestic vessels.
The
Silvia, 171 U. S. 462.
See also The Etona, 64 F. 880;
The Silvia, 68 F.
230.
Assuming, then, that the Harter Act applies to foreign vessels,
we are next to inquire into its effect upon the division of damages
in this case. It was held by this Court in the
Page 173 U. S. 552
case of
The Atlas, 93 U. S. 302, that
an innocent owner of a cargo is not bound to pursue both colliding
vessels, though both may be in fault, but is entitled to a decree
against one alone for the entire amount of his damages. It was held
by the courts below that while the action by the owner of the cargo
would lie against the steamer for the whole amount of damage done,
the owners of such steamer were entitled to recoup one-half of this
amount against one-half of the amount awarded to the owners of the
schooner for the loss of their vessel upon the theory that, under
the Limited Liability Act, they were liable for one-half this
amount, not exceeding the value of the schooner. But libelants
insist that as the third section of the Harter Act declares that
the owners of a seaworthy vessel shall not be liable in any amount
for damage or loss resulting from a fault or error in navigation,
the owners of the schooner are entitled to this exoneration whether
the action be directly against the vessel by the owner of the cargo
or by a third party who is claiming the rights to which he is
entitled, and who for that purpose is standing in his shoes; that
the exemptions of the act are not intended for the benefit of the
steamship, or any other vessel, by whose negligence a collision has
occurred, but for the benefit of the carrying vessel alone; and, if
she be held liable in this indirect manner for a moiety of the
damages suffered by the cargo, the act is to that extent
disregarded and nullified; that the amount which is paid by
recoupment from the just claim of the schooner against the
steamship is paid as effectually as it would be by a direct action
by the owners of the cargo against the schooner; and, while in this
case it works an apparent hardship upon the steamer (a hardship
more apparent than real, owing to the greater fault of the
steamer), it does not in reality extend her liability, but merely
prevents her taking advantage of a deduction to which without the
act she might have been entitled.
But the majority of the Court are of opinion that the principles
announced by us in
The North Star, 106 U. S.
17,
The Manitoba, 122 U. S.
97,
The Delaware, 161 U.
S. 459, and
The Irrawaddy, 171 U.
S. 187, are equally applicable here.
Page 173 U. S. 553
The case of
The North Star is especially pertinent.
That case arose from a collision between two steamships, one of
which (the
Ella Warley) went to the bottom, while the
other was considerably damaged. The suit was tried upon libel and
cross-libel, both vessels found in fault, and the damages ordered
to be divided. No question arose with regard to the cargo, but the
owners of the
Ella Warley raised a question as to the
amount of their recovery under the Limited Liability Act, which
provides (Rev.Stat. ยง 4283) that
"the liability of the owner of any vessel . . . for any loss,
damage, or injury by collision . . . occasioned, or incurred,
without the privity, or knowledge of such owner or owners, shall in
no case exceed the amount or value of the interest of such owner in
such vessel, and her freight then pending."
It seems that if the vessel be totally lost, the liability of
her owner is thereby extinguished.
Norwich
Co. v. Wright, 13 Wall. 104. The owners of the
Ella Warley sought to apply this rule to a case of mutual
fault, and contended that as their vessel was a total loss, the
owners were not liable to the
North Star at all, not even
to have the balance of damage struck between the two vessels, but
that half of their damage must be paid in full without deduction of
half the damage sustained by the
North Star. But the Court
held
"that where both vessels are in fault, they must bear the damage
in equal parts, the one suffering the 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
Page 173 U. S. 554
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 former for one-half of the 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. . . . 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
the other such sum as is necessary to equalize the burden. This is
the rule of mutual liability between the parties."
In delivering the opinion, Mr. Justice Bradley cited and
disapproved of the case of
Chapman v. Royal Netherlands
Navigation Co., 4 P.D.. 157, which was much relied upon by
counsel for the
Ella Warley. It is interesting to note
that this case was overruled by the House of Lords three months
before the opinion in
The North Star was delivered, in the
case of the
Stoomvaart Maatschappy Nederland v. The Peninsular
& Oriental Steam Navigation Co., L.R. 7 App.Cas. 795, and
the rule laid down in
The North Star adopted. The same
rule was subsequently applied in
The Manitoba,
122 U. S. 97.
The other cases are not directly in point, but their tendency is
in the same direction. In that of
The Delaware,
161 U. S. 459, it
was said that the whole object of the Harter Act was to modify the
relations previously existing between the vessel and her cargo, and
that it had no application to a collision between two vessels. In
The Irrawaddy, 171 U. S. 187, it
was held that if a vessel be stranded by the negligence of her
master, the owner had not the right, under the Harter Act, to a
general average contribution for sacrifices made and suffered by
him, subsequent to the stranding, in successful efforts to save the
vessel, freight, and cargo.
But if the doctrine of
The North Star be a sound one,
that in cases of mutual fault, the owner of a vessel which has been
totally lost by collision is not entitled to the benefit of an act
limiting his liability to the other vessel until after the
balance
Page 173 U. S. 555
of damage has been struck, it would seem to follow that the
sunken vessel is not entitled to the benefit of any statute tending
to lessen its liability to the other vessel, or to an increase of
the burden of such other vessel, until the amount of such liability
has been fixed upon the principle of an equal division of damages.
This is, in effect, extending the doctrine of the
Delaware
case, wherein the question of liability for the loss of the cargo
was not in issue, to one where the vessel suffering the greater
injury is also the carrier of a cargo -- in other words, if the
Harter Act was not intended to increase the liability of one vessel
towards the other in a collision case, the relations of the two
colliding vessels to each other remain unaffected by this act,
notwithstanding one or both of such vessels be laden with a
cargo.
We are therefore of opinion that the court of appeals did not
err in deducting half the value of the cargo from half the value of
the sunken schooner and in limiting a recovery to the difference
between these values. The decree is
Affirmed.
The CHIEF JUSTICE and MR. JUSTICE PECKHAM dissented.