APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
MR. JUSTICE BLATCHFORD, after stating the case as above reported, 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
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 authoritatively 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 Scheoner Catherine 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 Catherine v. Dickinson, (supra,) both vessels being held in fault for the collision, it was said by the court, speaking by Mr. Justice Nelson, p. 177, that the well-settled rule in the English admiralty was "to divide the loss," and that "under the circumstances usually
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. Steamer 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, 93 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, 103 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 ...