Indianapolis & St. Louis R.R. Co. v. Horst, 93 U.S. 291
Case details
Citation
93 U.S. 291
Full caption
Indianapolis and St. Louis Railroad Company v. Horst.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Majority
Swayne (Justice)
Majority
Waite (Chief Justice)
Majority
Clifford (Justice)
Indianapolis and St. Louis Railroad Company v. Horst.
1. When instructions are asked in the aggregate, and there is any thing exceptionable in either of them, the court may properly reject the whole.
2. It is the settled law in this court, that, if the charge given by the court below
■ covers the entire case, and submits it properly to the jury, such court may refuse to give further instructions.
3. In an action against a railroad company for injuries received by a passenger upon its road, it is pot error for the court to instruct the jury, “ that a person taking a cattle-train is entitled to demand the highest possible degree of care and diligence, regardless of the kind of train he takes.”
4. The rule of law, that the standard of duty on the part of a carrier of passengers should be according to the consequences that may ensue from carelessness, applies as well to freight-trains as to passenger-trains. It is founded deep in public policy; and is approved by experience, and sanctioned by the plainest principles of reason and justice.
5' A plaintiff is bound to state his case, but not the evidence by which he intends to prove it.
6. Where the evidence on the part of the plaintiff did not tend to establish contributory negligence on his part, and the court charged that the burden of proving it rested on the defendant, and that it must be established by a preponderance of evidence, — Held, that the charge was not erroneous.
The construction given in Nudd et al. v. Burrows, Assignee, 91 U. S. 426, to the act of June 1, 1872 (17 Stat. 197), reaffirmed. motion for a new trial is not a mere matter of proceeding or practice in the district and circuit courts. It is, therefore, not within the act of June 1, 1872, and cannot be affected by any State law upon the subject.
Error to the Circuit Court of the United States for the District of Indiana.
This was an action by the defendant in error against the ndianapolis and St. Louis Railroad Company for injuries received while travelling on a cattle-train, and resulted in a verict against the company for $8,000; whereupon it brought the case here. The facts are stated, and the assignment of errors re erre<^ to» in the opinion of the court.
Argued by Mr. W. A. Brown and Mr. John T. Bye for the plaintiff in error.
1. It was error for the court to instruct the jury that a person taking a cattle-train is entitled to the highest possible degree of care and diligence, regardless of the kind of train he takes. Railroad Co. v. Lockwood, 17 AVall. 357; Unger v. Forty-second St., ^e. R. R. Co., 51 N. Y. 502; Hegeman v. Western R. R. Corporation, 13 id. 9; Lebanon v. East Boston Ferry Co., 11 Allen, 515; Ford v. London f South-western Railway Co., 2 Post. & Find. 830; Warren v. Fitchburg R. R. Co., 8 Allen, 230; Simmons n. New Bedford, Vineyard, Nantucket Company, 97 Mass. 368; Galena f Chicago Union Railway Co. v. Fay, 26 Ill. 568 ; Fuller n. Talbott, 23 id. 357 ; Pitt., Cin. St. L. R. R. Co. v. Thompson, 56 id. 168; Bunn v. Grand Trunk Railway Co., 58 Me. 187; Chicago, B. $ Q. R. R. Co v. Hazzard, 26 Ill. 376.
2. The court erred in refusing to instruct the jury that their investigation as to the negligence of defendant should be confined to the charges alleged in the declaration.
The defendant had a right to a trial, according to law, of the issues joined. The question of its liability for damages should not have been left to depend upon the general conclusion of a jury, that it had not exercised the highest possible degree of care in his transportation, unrestrained by the pleadings.
3. The court erred in permitting the plaintiff to prove the manner of changing cabooses at Mattoon, after the injury, to show the “ wrongfulness of their (defendants’) conduct ” at the time of the accident. Gahagan, Adm'r, v. Boston Lowell R. R. Co., 1 Allen, 189.
4. The evidence did not show any negligence of the defendant in the particulars mentioned in the complaint.
On the contrary, plaintiff’s evidence showed that the accident resulted from his own negligence. The defendant was therefore entitled to a verdict. Todd v. Old Colony f Fall River R. R. Co., 3 Allen, 21; Jeffersonville R. R. Co. v. Hendricks, 26 Ind. 231; Bridges v. North London Railway Co., 6 Law Rep. Q. B. 384; Smer v. G. W. Railway Co., 4 Law Rep. Ex. 117 ; Adams v. L. $ Y. Railway Co., 4 Law Rep. C. P. 742; Penn. R. R. Co. v. Aspell, 23 Penn. St. 149.
5. Although plaintiff’s evidence showed that the accident resulted from plaintiff’s negligence, the court charged that “the burden of proving contributory negligence rests on defendant; and it will not avail the defendant, unless it has been established by a preponderance of the evidence.” This was error. Chicago, B. $ Q. R. R. Co. v. Hazzard, supra; Butterfield n. Forester, 11 East, 60; Button v. Hudson River R. R. Co., 18 N. Y. 253 ; Mayo v. Boston $ Maine R. R. Co., 104 Mass. 140; Johnson v. Hudson River R. R., 20 N. Y. 60.
6. It was error for the court to refuse the motion of defendant to instruct the jury to find specially upon particular questions of fact involved in the issues, in the event they should find a general verdict. Osborn v. United States Bank, 8 Wheat. 366; Butler v. Young, Chicago Legal News, vol. v. p. 146; Republican Ins. Co. v. Williams, id. p. 97; Sage n. Brown, 24 Ind. 469; Barnes v. Williams, 11 Wheat. 415; Prentice v. Zane’s Adm'r, 8 How. 487 ; Livingston Mar. Ins. Co., 6 Cranch, 280; Peterson v. United States, 2 Wash. C. C. 36 ; Butler n. Hooper, 1 id. 499; Bellows x. Directors, ^c. of Hallowell and Augusta Bank, 2 Mason, 31.
Mr. A. Gr. Porter for the defendant in error.
The passenger was entitled to the highest degree of care and diligence. Philadelphia $ Reading R. R. Co. v. Derby, 14 How. 486; Steamboat New World v. King, 16 How. 469.
The burden of proving contributory negligence rested on the defendant. Railroad Company v. Grladman, 15 Wall. 401; Whart. on Neg., sect. 423.
The refusal of the court to submit the interrogatories of the efendant below to the jury was correct. Nudd et al. v. Burrows, Assignee, 91 U. S. 426.
Mr. Justice Swayne delivered the opinion of the court.
The defendant in error was injured while travelling on the road of the plaintiff in error, and brought this suit to recover amages. To set in their proper light the propositions of law re led upon by the plaintiff in error for the reversal of the judga statement of the facts of the case is necessary.
. e Plaintiff was a farmer, residing in Pennsylvania. He been engaged in the cattle trade since 1862, and had p. 294Shipped annually, over the Western railroads to the Eastern markets, about a thousand head of cattle. The cause of action occurred on the 4th of August, 1870. He had shipped on the defendant’s road, the day before, five car-loads of cattle, to be conveyed to Pittsburg, and was on the train at the time of the injury. He arrived at Mattoon, in Illinois, about midnight. He and two other drovers were asleep in a caboose attached to the hinder end of the train. They were aroused by the conductor, who commanded them to get out of the caboose, and to get on top of the train. He said he should detach the caboose; and that, at some distance further up the road, he would attach another. The train was then at rest. The plaintiff went forward with his prod to look after his cattle, and returned on the roof of the cars to where his fellow-drovers were standing awaiting the movement of the train. He stood there, with his carpet-sack in one hand and the prod in the other. He used the latter to support himself. The train ran a half or three quarters of a mile to pass on to a switch, and take on the other caboose. A brakeman on the hindmost car had a lantern in his hand. The light so dazzled or blinded the plaintiff, that he thought he was on the same car with the brakeman, though he was in fact near the end of the car next before it. The train, in backing on the switch, stopped before it reached the caboose which was to be attached to it. It was thereupon suddenly drawn forward, “ to take up the slack,” and then suddenly backed, producing a quick and powerful concussion, which precipitated the plaintiff between the car on which he was standing and the hindmost car. “ The shock of the concussion,” one of the witnesses says, “ was about as hard a shoe as I ever felt, not to knock a train off the track. It seemed as if it was tearing every thing to pieces.” The plaintiff fell on the coupling, and received the injury complained of. No warn ing was given that these sudden and violent movements were likely to occur, and none was given that any precautions were necessary. No light was furnished to the plaintiff and is fellow-passengers, and no directions were given for their gui ance and safety. All the evidence in the case is set out: a length in the bill of exceptions. It was given by the plaintitt. The defendant gave none. The entire charge of the court, an p. 295the instructions asked for on both sides, are also fully set out# The defendant asked for twenty instructions. The court refused to give any of them. The plaintiff asked for six, which were all given. To both the refusal and the giving the defendant excepted. The plaintiff’s prayers were excepted to, severally.
When instructions are asked in the aggregate, as were those of the defendant, and there is any thing exceptionable in either of them, the whole may be properly rejected by the court. Rogers v. The Marshal, 1 Wall. 644; Harvey n. Tyler, 2 id. 338; Johnson v. Jones, 1 Black, 209.
There were several things of this character in those in question. It is sufficient to refer to one of them. The court was asked to charge that the defendant was bound to exercise only ordinary care and diligence. This point will be considered, presently, in another connection.
It is the settled law in this court, that, if the charge given by the court below covers the entire case, and submits it properly to the jury, such court may refuse to instruct further. It may use its own language, and present the case in its own way. If the results mentioned are reached, the mode and manner are immaterial. The court has then done all that it is bound to do, and may thus leave the case to the consideration of the jury. Neither party has the right to ask any thing more. Labor Cooper, 7 Wall. 565. We think the charge in this case fulfils the requisites we have defined. The errors of omission and commission alleged are not numerous. We might, perhaps, properly content ourselves in this connection with vindicating the charge as given. We shall, however, consider all t e several assignments of error which we deem material, both with respect to the charge and otherwise, as we find them set orth in the printed brief of the counsel for the company. The same points were fully and ably argued by the same gentlemen
. • The court erred in instructing the jury that a person taka cattle-train is entitled to demand the highest possible degree care and diligence, regardless of the kind of train he takes.”
in th^ rU^ Care an<^ ^^gence down by this court ree adjudications where the action was against a carrier of P rsons. The first was the Philadelphia $ Reading R. R. p. 296Co. v. Derby, 14 How. 486. The plaintiff was travelling gratuitously on a passenger train. It was said: “ Where carriers undertake to convey passengers by the powerful and dangerous agency of steam, public policy and safety require that they should be held, to the greatest possible care and diligence.” “ Any negligence in such case may well deserve the epithet of gross.” The next was The Steamboat New World n. King, 16 How. 469. That was the case of a free passenger earned on a steamer, and injured by the explosion of a boiler. Referring to the rule laid down in the prior case, the court said: “We desire to reaffirm the doctrine, not only as resting on public policy, but on sound principles of law.” The last case was the New York Central R. R. Co. v. Lock, 17 Wall. 357. That was a case, like this, of a passenger accompanying his cattle on a freight-train. It was there said: “ The highest degree of carefulness and diligence is expressly exacted.” This is conclusive as authority upon the subject. But, upon principle, why should not the law be so in this case ? Life and limb are as valuable, and there is the same right to safety, in the caboose as in the palace-car. The same formidable power gives the traction in both cases. The rule is uniformly applied to passenger-trains. The same considerations apply to freight-trains: the same dangers are common to both. Such care and diligence are as effectual and as important upon the latter as upon the former, and not more difficult to exercise. There is no reason, in the nature of things, why the passenger should not be as safe upon one as the other. With proper vigilance on the part of the carrier, he is so. The passenger has no authority upon either, except as to the personal care of himself. The con uc tor is the animating and controlling spirit of the mechanism employed. The public have no choice but to use it. Ihe standard of duty should be according to the consequences t a may ensue from carelessness. The rule of law has its oun tion deep in public policy. It is approved by experience, a sanctioned by the plainest principles of reason and justice, is of great importance that courts of justice should notie a The terms in question do not mean all the care and dlllSe^ the human mind can conceive of, nor such as will ren transportation free from any possible peril, nor sue as p. 297drive the carrier from his business. It does not, for instance, require, with respect to either passenger or freight trains, steel rails and iron or granite cross-ties, because such ties are less liable to decay, and hence safer than those of wood; nor upon freight-trains air-brakes, bell-pulls, and a brakesman upon every car; but it does emphatically require every thing necessary to the security of the passenger upon either, and reasonably consistent with the business of the carrier, and the means of conveyance employed. The language used cannot mislead. It well expresses the rigorous requirement of the law, and ought not to be departed from. The rule is beneficial to both parties. It tends to give protection to the traveller, and warns the carrier against the consequences of delinquency. A lower degree of vigilance than that required would have averted the catastrophe from which this litigation has arisen. Dunn v. ^rand Trunk R. R. Co., 58 Me. 157 ; Tuller v. Talbot, 23 Ill. 357; Pittsburg C. R. R. Co. v. Thompson, 56 Ill. 138.
“ 2. The court erred in refusing to instruct the jury, that their investigation as to the negligence of the defendant should be confined to the charges alleged in the declaration.”
The charge in both counts of the declaration was “ carelessness and negligence and improper conduct ” of the defendant’s servants in connection with the injury. The plaintiff was ound to state his case ; but he was not bound to state the evience by which he intended to prove it. We have looked t rough the proofs as set out in the bill of exceptions; and have ound nothing in this connection that did not support, with more or less cogency, the plaintiff’s averment.
3. The court erred in permitting the plaintiff to prove the manner of changing cabooses at Mattoon, after the injury, to s ow the wrongfulness of defendant’s conduct at the time of tne accident.”
etaching the caboose in the night, and requiring the plain-
th ° S° UPOn to? the freight-cars before reaching e ca oose that was to be attached, involved a serious peril, was the cause of the casualty complained of. The evi-
ne was competent, as tending to prove, if such proof were sary, that the change could as well have been made where second caboose was, and that making it when and where it
was made was a matter of choice and in no wise of necessity. The point is covered by the Toledo, ^c. JR. JR. Co. v. Owen, 43 Ind. 405. We think the decision there was correct.
“ 4. Although the plaintiff’s evidence showed that the accident resulted from the plaintiff’s negligence, the court charged that ‘the burden of proving contributory negligence rests on the defendant; and it will not avail the defendant, unless it has been established by a preponderance of evidence.’ ”
We have said, that riding on the top of a freight-car in the night involved peril. When commanded to go there, the plaintiff had no choice but to obey, or to leave his cattle to go forward without any one to accompany and take care of them. The command was wrong. To give him no warning was an aggravation of the wrong. He, however, rode safely to the switch, standing in one place. He had a right to assume that the posture and place would continue to be safe. He had no foreknowledge of the coming shock. The conductor knew it, but gave him no word of caution or notice. He was unaware of danger until the catastrophe was upon him. The behavior of the conductor was inexcusable. If there was fault on the part of the plaintiff, in what did it consist? We find nothing in the record which affords any warrant for such an imputation. As the case went to the jury, the opposite was established. There was no proof to the contrary. Nevertheless, the court, out of abundant caution, charged the jury upon the hypothesis that there might be some testimony tending possi bly to support the adverse view. The instruction containe two elements: —
(1.) That the burden of proof rested on the defendant.
This was correct. JRailroad Company v. Cladden, 15 a 401.
(2.) That “it,” meaning contributory negligence, could ‘ no avail the defendant, unless established by a preponderance evidence.” ., ,
This, also, was correct. The court did not say t a i s negligence were established by the plaintiff s evi defendant could have no benefit from it, nor that the ac c only be made effectual by a preponderance of evidence, co exclusively from the party on whom rested t e ur
proof. It is not improbable that the charge was so given by the court from an apprehension that the jury might without it be misled to believe that it was incumbent on the plaintiff to show affirmatively the absence of such negligence on his part, and that if there was no proof, or insufficient proof, on the subject, there was a fatal defect in his case. It was, therefore, eminently proper to say upon whom the burden of proof rested; and this was done without in any wise neutralizing the effect of the testimony the plaintiff had given, if there were any, bearing on the point adversely to him. We think the instruction was properly expressed. If there was any ambiguity unfavorable to the defendant, it was the duty of his counsel to bring it to the attention of the court, and ask its correction. Lock v. United States, 2 Cliff. 574. This was not done, perhaps because it was deemed unnecessary. If the defendant had, in the first instance, required any charge upon the subject, it should have been refused. It is not the duty of the court to instruct where the instruction demanded assumes a theory of fact which is unsupported or contradicted by the evidence. On the contrary, it is error to do so ; and the jury should be distinctly told that the requisite evidence is wanting. Such instructions cannot aid the jury, and may confuse and mislead them. Michigan Bank v. Eldred, 9 Wall. 544 ; Ward v. United States, 14 id. 28.
“5. The court refused the motion of the defendant to instruct the jury to find specially upon particular questions of fact involved in the issues, in the event they should find a general verdict.”
These questions of fact were submitted by the counsel for the defendant. Upon looking into them, we find they were nme in number. All of them related to the question of negligence on the part of the plaintiff. It is insisted that they were within the act of Congress of June 1, 1872 (17 Stat. 197, sect. 5), and that hence the court below erred in declining to require the jury to find in answer to them, in addition to the general verdict. We had occasion to consider this statute in u d v. Burrows, 91 U. S. 441, and see no reason to depart om the views there expressed. We said the section in ques-On ad its origin in the code enactments of many of the p. 300States, and was intended to relieve the legal profession from the burden of studying and of practising under the two distinct and different systems of the law of procedure in the same locality, one obtaining in the courts of the United States, the other in the courts of the State; but that it was not intended to fetter the judge in the personal discharge of his accustomed duties, or to trench upon the common-law powers with which in that respect he is clothed. Whether Congress could do the latter was left open to doubt. It was not then, and it is not now, necessary to decide that question. The statute expressly recognizes the distinction between proceedings in equity, in admiralty, and at common law. The separate character of the two former is recognized by the Constitution, and it protects them. The latter Congress can change and regulate as it may see fit, within the limits of its constitutional authority. Here, the question is one of legislative intent. The intention of the law-maker constitutes the law: a thing may be within the letter of a statute, and not within its meaning; and within its meaning, though not within its terms. 9 Bouv. Bac. Ab. title Stat., sect. 5, pp. 246, 247; Burgett v. Burgett, 1 Ohio, 221; Stater v. Cave, 3 Ohio St. 85; United States v. Babbit, 1 Black, 61.
Where a State law, in force when the act was passed, has abolished the different forms of action, and the forms of pleading appropriate to them, and has substituted a simple petitio or complaint setting forth the facts, and prescribed the subsequent proceedings of pleading or practice to raise the issues of law or fact in the case, such law is undoubtedly obligatory upon the courts of the United States in that locality, may be other things, not necessary now to be specified, wi respect to which it is also binding. But where it prescr the manner in which the judge shall discharge is u y * charging the jury, or the papers which he shall permit o g them in their retirement, as in Nudd v. Burrows, or. a shall require the jury to answer special interrogator^^ , tion to their general verdict, as in this case, we 0 , provisions are not within the intent and meaning o Congress, and have no application to the courts o States. These are all matters relating merely to the m d submitting the case to the jury. The conformity i q
to be “ as near as may be ” — not as near as may be possible, or as near as may be practicable. This indefiniteness may have been suggested by a purpose: it devolved upon the judges to be affected the duty of construing and deciding, and gave them the power to reject, as Congress doubtless expected they would do, any subordinate provision in such State statutes which, in their judgment, would unwisely encumber the administration of the law, or tend to defeat the ends of justice, in their tribunals.
While the act of Congress is to a large extent mandatory, it is also to some extent only directory and advisory. The constitution of Indiana, art. 7, sect. 5, requires that “ the Supreme Court shall, upon the decision of every case, give a statement of each question arising in the record of such case, and the decision of the court thereon.” This was held to be directory, and not mandatory. Willets v. Ridgezvay, 9 Ind. 367.
The Criminal Code of Practice of Arkansas provided that the court should admonish the jury7 that it was their duty not to allow any one to speak to them upon any subject connected vuth the trial, nor to converse among themselves upon any such subject, until the cause was finally submitted to them. It was held this provision was only directory and cautionary, and that the omission to comply with it was not error, and did not affect the validity of the verdict. Thompson v. The State, 26 Ark. 26. See also Wood v. Terry, 4 Lans. 86; State v. Carney, 20 Iowa, 82; Bowers v. Sonoma, 32 Cal. 66; Hill v. Boyland, 40 Miss. 618.
We think the learned judge below decided correctly in reusing to submit the interrogatories to the jury.
• ine motion for a new trial should have been granted in the court below.”
In the courts of the United States, such motions are adresse to their discretion. The decision, whatever it may b ’ th,nn°^ rev^ewe^ here. This is a rule of law established y is court, and not a mere matter of proceeding or prac-5 C ln Circuit and District Courts. Henderson v. Moore, v AtT v* De Lanza, 20 How. 29; Schuchardt / en’ 1 Wall. 371. It is, therefore, not within the act of
^Une 1’ ^-^2, and cannot be affected by any State upon the subject. Judgment affirmed.
Martin v. Hazard Powder Company.
The doctrine announced in Jerome v. McCarter, 21 Wall. 17, affirmed, and applied io this case.
On motion for a rule upon the plaintiff in error to file a new supersedeas bond. Mr. S. F. Phillips for the defendant in error, — in support of the motion. Mr. H. C. Alleman for the plaintiff in error, in opposition.
Mr. Chief Justice Waite delivered the opinion of the court.
We held in Jerome v. McCarter, 21 Wall. 17, after much consideration, that if, “ after the security has been accepted, the circumstances of the case, or of the parties, or of the sureties upon the bond, have changed, so that security which, at the time it was taken, was good and sufficient, does not continue to be so, we might, upon a proper application, so adjudge and order as justice might require. But upon facts existing at the time the security was accepted, the action of the justice, within the statute and the rules of practice adopted for his guidance, is final.”
The showing made in this case does not satisfy us that the alleged insufficiency of the security taken when the writ of error was sued out, arises from any change in the circumstances of the sureties since the acceptance and approval of the bond.
Motion denied.
The “Atlas.”
1. Owners of a ship are not liable, under existing laws, for any loss, damage, injury by a collision, occasioned without their privity or knowledge, beyon the amount of their interest in such ship and her cargo at the time collision occurred* • \2. The true measure of compensation to an innocent party, in a case of
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 o a
bears no proportion of the loss resulting from a collision. He may p his remedy at common law; or in admiralty, by a proceeding m,
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 vessels. Held, that he was entitled to a decree against it for the entire amount of his damages.
Cross -appeals from the Circuit Court of the United States for the Eastern District of New York.
This is a libel against the steamboat “Atlas,” by the Phoenix Insurance Company, for damages resulting from a collision between the “ Atlas ” and the steam-tug “ Kate,” whereby 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 ” and “ Kate,” and decreed that the libellant recover against the “ Atlas ” one-half of the damages sustained.
Both parties appealed; and, the Circuit Court having affirmed the decree, they appealed here, and filed a written stipulation as follows: —
“ 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 aw 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 steamboats ‘ Atlas ’ and ‘ Kate.’
• The libellants waive and abandon the assignment of error, an the claim that the decree of the Circuit Court should be reversed, on the ground that the ‘ Atlas ’ only was in fault; and rely y on the assignment of error, that the decree should have been fOr t e whole amount of the damages sustained by them, instead of a thereof; and the only question to be submitted o e court is the question of law, whether the ‘ Atlas ’ is liable for e w o e amount of libellants’ damages.”
77. R. Beebe for the claimants.
e libellant having failed to make the “ Kate ” a party, p. 304cannot hold the “ Atlas ” responsible for more than one-half of the damages.
The libellant, however, stands in no better position than the “ Kate ” herself. It is a rem liability, and not a personal claim or right.
Had it been decided that the canal-boat which held the cargo was in fault, and contributed to the collision, then the decisions are numerous both in the admiralty courts of England and in this country as to the limit of the liability of the “ Atlas.”
The reason is obvious: the owners of the cargo choose their boat, and repose confidence in the officers and crew that the enterprise will be properly conducted. This is especially true when the latter must rely upon other motive power for locomotion.
This reliance upon other motive power falls as much within the scope of the employment of the canal-boat, by the owner of the cargo, as would her navigation by sails, if she had them, or steam, if that was her propelling power. To hold otherwise would seem to involve the question within the character of his employment, and the necessities of his vessel, of the master of the canal-boat to employ motive power.
This employment would make the motive power as much the agent of the shipper as the canal-boat and its crew would be.
It is hard to see where the distinction exists, if there is any.
If these positions are correct, then, clearly, the cargo holds no better position to the collision than does the “ Kate. Hay v. La Neve, 2 Shaw’s Appeal Cases, 395; The Bonita, The Alfred, The Jose Maria, all cited in The Milan, 1 Lush. 388; The Hasbrouck, 5 Ben. 244.
The power and jurisdiction of the admiralty are peculiar, an a court of common law does not possess them.
At common law, contributory negligence defeats the right of recovery. In admiralty it only calls upon the court to apportion the damages between the faulty vessels.
This necessity involves the power to declare what vessels are in fault, where the fault lies, and to apportion the damages. .
This duty is just as incumbent upon the court when there is contributory negligence as it is to decide the case at all.
It follows, as an equal necessity, that whether all the vessels are before the court or not, the power and duty of the court are equally imperative to declare where the fault lies, and apportion the damages.
From these positions it follows that each vessel, whether before the court or not, is equally bound to bear its share or portion of damages. The libellant cannot shield himself from the consequences of making the “ Atlas ” the sole party, by claiming that any vessel before the court may, under certain circumstances, be liable for more than that share or portion.
The power of apportionment is peculiar. It is sui generis in the admiralty courts, and has no recognition in the courts of common law. We submit that its fair intent and the principles involved in it make a several and not joint liability; were not this so, the whole doctrine must necessarily fall to the ground.
The power to apportion necessarily involves that of determining the extent of the liability of each. The court is not bound to apportion equally. It has the power to determine not only who are in fault, but the extent of such fault, and the amount which each must contribute.
he acts of Congress have limited the liability of the owner to the value of his vessel. When the court has fixed the extent of his contributory guilt, it would be a harsh rule, at, because his vessel happens to be of greater value than that o is co-trespasser, he must also pay for the wrongs of the lat- h hi8 ,WOU^ virbnally abolish the law of apportionment, an ^ng into full force the common-law doctrine. ‘th 6 establishment of the law, that the court can only deal wh 1 / Vessel ac^nally seized, and hold it solely liable for the wo°id j^age8’ uPon the idea of all being joint trespassers, and 'f Victim entirely in the hands of the libellant; be th* t- eie Were really ten offending vessels, it might perhaps the a °ne least in tault is chosen because it happens to be 8elfish°S ?aluahk, or is proceeded against from even more
of an« defeat the whole object and purpose of the law «apportionment.
V°L. III.
Mr. William Allen Butler for the libellants.
The court below erred in limiting the recovery of libellants to one-half the value of the cargo destroyed by the collision. Under the circumstances, they were entitled to recover their entire loss from either of the two vessels which were adjudged to be mutually in fault in causing it.
The owners of the cargo of the canal-boat in tow of the “ Kate ” were innocent parties, and in no way responsible for the collision. They had no control over the movements of either of the steam-tugs, nor were the master and crew of either of those vessels their agents or servants. The cargo stood in the same relation to the two steam-tugs, by whose concurring negligence it was destroyed, as that of a passenger lawfully on the canal-boat or on either of the steam-tugs at the time of the disaster, who, without fault of his own, sustained personal injuries by the collision. The Milan, 1 Lush. 388; The Alabama and The G-ame-cock, 92 U. S. 695.
Upon the facts of this case, the owners of the cargo could at common law have proceeded against the owners of either offending vessel, and recovered thé whole amount of their damages. An innocent party, injured by the co-operative negligence of several persons, can sue them jointly or severally, and recover from either compensation for the injury done by all. Guille v. Swan, 19 Johns. 381 ; Chapman v. New Haven R. R. Co., 19 N. Y. 341 ; Webster n. Hudson River R. R. Co., 38 id. 260; Arctic Ins. Co. v. Austin, 10 N. Y. Sup. Ct. (2 Hun) 195; Colegrove v. N. Y. f N. H. R. R. Co., $ Harlem R. R. Co., 20 N. Y. 292. The same rule prevails in admiralty. The New Philadelphia, 1 Black, 62.
The common law creates a joint and several liability, not because the injury is the result of a joint act implying a com mon design or intent to produce the injury, but because by a single and forcible act, which would not have happened except by the concurring negligence of two parties, an injury has been done to an innocent party. .
That rule must also obtain in the courts of admiralty. . 18 is matter of right, in respect to which the rule of admira y apportioning damages equally between the parties mutua y at fault does not apply. That rule is one of limitation an p. 307distribution of damage among and between wrong-doers, as respects themselves. It is one, and hardly one, of equity, because it imposes an equal contribution on the ships in fault, without regard to their relative value or to the degree of blame imputable to either. It is properly styled by Chancellor Kent, following Cleirac, a rusticum judicium, by which an arbitrary rule is applied as the best method of disposing of cases in which the precise measure of fault is either inscrutable or not ascertainable with accuracy. 3 Kent’s Com., p. 313 (11th ed.). See Hay v. Le Neve, 2 Shaw’s Scotch Appeals, 395.
It certainly has no proper application to the case of an innocent sufferer. Justice requires that his wrong shall be redressed without reference to an adjustment of the relative degrees of blame or responsibility of the wrong-doers as between themselves, or to their ultimate liability to each other for contribution.
The Milan, 1 Lush. 388, — the only reported case in which it has been attempted to impose the admiralty rule of equal apportionment, as between wrong-doers, upon an innocent party, by limiting his recovery in a suit against one of two offending vessels to a moiety of the damage done by both, —- has been disapproved by this court. The Alabama and The Game-cock, ^pra; The D. 8. Gregory, 9 Wall. 513.
♦ ■
Mr. Justice Clifford delivered the opinion of the court.
wners of ships and vessels are not liable, under existing aws, for any loss, damage, or injury by collision, if occasioned yit out their privity or knowledge, beyond the amount of their n erest in such ship or vessel and her freight pending at the ime the collision occurred. whA^^ in the act of Congress, the damages ic the owner of the injured vessel is entitled to recover are mated in the same manner as in suits for injuries to other tain°na and claim for compensation may, in cerases, extend to the loss of freight, necessary expenses in mg repairs, and unavoidable detention.
integrum is the leading maxim in such cases; a<hniralt6re rel)a^rs are practicable, the rule followed by the y courts in such a case is, that the damages assessed p. 308against 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 G-azelle, 2 W. Rob. 280; The Baltimore, 8 Wall. 385; Williams & Bruce, Prac. 77; 1 Pars, on Ship. 538; The Pactolus, Swabey, 174.
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 the “ Kate; ” 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 north-west 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 blow ing 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; tha the signal given was the proper one; and the charge is, tha, e master of the steam-tug immediately starboarded his helm, an that the approaching vessel, which proved to be the steam-tug the “ Atlas,” within a minute ran into the steam-tug avmg the canal-boat in tow, with great force and violence, staving her in from her plank-shear to the third plank below^her wate line, which caused the steam-tug and canal-boat she had m to sink, whereby the cargo of the canal-boat became aU tai loss; and the libellants also charge, that the loss was h ly occasioned through the fault, negligence, and want of skill p. 309those in charge of the approaching steam-tug. The Friends, 4 Moore, P. C. C. 319.
Process was served, and the claimants appeared and filed an answer, setting up the several defences 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 “ Atlas,” and that the libellants do recover against the steamboat “ Atlas ” 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 113,617.02, 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 court.
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 ” and “ Kate.” 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 at the decree, being for a moiety only, should be reversed on at account, and that a decree should be entered for the entire amages that the owners of the cargo of the canal-boat sustained by the collision.
ther questions involved in the record being waived, the will confine its attention to the single inquiry, whether e ruling of the court below in overruling the exception of p. 310the libellants to the report of the commissioner is or is not correct.
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 wrong-doer 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 wrong-doer to recover compensation for the injury occasioned by the collision. Mason v. Sainsbury, 3 Doug. 61.
Authorities to that effect are numerous; and it was expressly decided by the judges, in Yates v. Whyte et al., 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 o sue damage.
None can recover compensation twice in respect o t e sam injury ; but what the plaintiff recovers under his po icy insurance is not compensation for damages, but a payment u a contract independent of the claim against the wrong oe, and the better opinion is, that the principle whic exc u double compensation does not strictly apply to 0 1Sa 10 in the same right. May on Ins. 555.
Compensation by the wrong-doer after paymen y insurers is not double compensation, for the plain reas insurance is an indemnity ; and it is clear that t e wrong
are first liable, and that the insurers, if they pay first, are entitled to be subrogated to the rights of the insured against the insurers.
Support to that proposition is found everywhere; and some of the authorities go further, and decide, that the suit against the wrong-doer for the benefit of the insurer must be prosecuted in the name of the injured party. Randall v. Cockran, 1 Ves. Sen. 90; Godsall v. Boldero, 9 East, 81; Irwing v. Richardson, 1 B. & Adol. 196; Case v. Davidson, 5 Maule & Selw. 81; Clark n. Blything, 2 Barn. & Cressw. 256.
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, 3 Doug. 245; Yates v. Whyte et al., supra; 2 Marsh on Ins. (2d ed.) 794; 2 Park on Ins. (8th ed.) 969; 2 Phillips on Ins. (5th ed.), sect. 2001.
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 t e damage done by the ship in which it is carried. The Victor, 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 one by the owner, or by the master and crew employed by the owner, who is responsible for their conduct; because, being ^Ployed by the owner, they are his agents, but they are not e 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 rtted by the parties that the collision occurred through the p. 312mutual fault of the steamboat “ Atlas ” and the steam-tug “ Kate ” 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. In that 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 defence in a cause of collision against a claim for damage promoted by an injured party, an 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 w om i p. 313fell is one of universal application. The Shannon, 1 W. Rob. 470; The Itinerant, 2 id. 243; The LocHibo, 3 id. 318; The Morning Light, 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. 87.
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 etween them, as having been occasioned by the fault of both. -Shy v. Le Neve, 2 Shaw’s 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 8 T8 to be added together, and the combined amount to be equally divided between the owners of the two. De Vaux n. Salvador, 4 Ad. & El. 431.
nnocent parties in cases of the kind are entitled to full compensati°n, but the admiralty rule as between wrong-doers is a t e combined amount of the damage shall be divided between the owners of the two offending vessels. Text-writers ru^s andard authority, as well as courts, have adopted the same e5 and hold, that, where both vessels are in fault, the loss must apportioned between them, as having been occasioned by the p. 314fault of both. Maclachlan on Sh’ip. (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 la(St 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; The Aurora, Lush. Adm. 329.
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 Linda, 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 requir ing each party, where both are in fault, to bear a moiety of the loss, applies solely to the case of the wrong-doers, and that proof of entire innocence or freedom from fault is a goo. defence to every portion of a claim for damage, and that it entitles the promoter of a suit for such a claim to full com pensation for his loss from the guilty party. Opposed to t a conclusion is the case of The Milan, Lush. Adm. , which Dr. Lushington remarks to the effect that the prac ice of the Court of Admiralty appears to have been uniform, tha, where both ships are to blame, the owners of cargo eq y with the owners of ships recover a moiety of their amag ’ except in cases where the statute prescribes a differen and the learned judge refers to the reported case of • Le Neve, 2 Shaw’s Sc. App. 405, in support of the proposi i. Other cases are also referred to for the same purpose,
the reporter appends a note to the case, that the ot er ca p. 315not 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 “Milan,” 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 wrong-doers, 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 wrong-doers 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 aw, 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 wrong-doers. Murray v. Lovejoy, 2 Cliff. 196; s. c. 3 Wall. 19; Smith v. Hines, 2 Sumn. 348 ; Webster v. Railroad, 38 N* Y. 261.
Acts wrongfully done by the co-operation and joint agency several persons constitute all the parties wrong-doers, and y may be sued jointly or severally; and any one of them, said pencer, C. Jis liable for the injury done by all, if it appear er that they acted in concert, or that the act of the indiual sought to be charged ordinarily and naturally produced the acts of the others. Guile v. Swan, 19 Johns. 382. ,
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. Chase, 16 Wall. 533; The Belfast, 7 id. 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 in 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 wrong-doers, and the extent of redress to which an innocent party is entitled against the wrong-doer. Simpson v. Hand, 6 Whart. 321.
Different systems of pleading and modes of proceeding pre vail in the two jurisdictions, and in some few respects there is a difference in the rules of evidence adopted in the admira y court from those which prevail in common-law actions. A know that the libel in the Admiralty Court takes the place oi the declaration in an action at law, and that'the answer substitute for the plea of the defendant. .
Contributory negligence on the part of the libe an cal\ defeat a recovery in collision cases, if it appears t a e o party might have prevented the disaster,, and that e a s0 not practise due diligence, and was guilty of negligence, failed to exercise proper skill and care in the managem his vessel. Proof of the kind will defeat a recovery at commo p. 317law; 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 riiay be applied in the admiralty, if all the parties are before the court, and each of the wrong-doers 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 wrong-doer for the injury suffered by the collision. Colegrove v. Railroad, 20 N. Y. 493; Catlin v. Hills, 8 C. B. 125; Vanderplank v. Miller, 1 Moo. & 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. 77.
Co-wrong-doers, 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 wrong-doers to appear and respond to the alleged wrongful act.
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 pracice here is different, as is clearly shown by the judgment of is court delivered at the last term of the court. The Alaand The Game-cock. 92 U. S. 695. . QUnsel of experience and ability attempted to maintain a case the same theory as that now advanced in arguent here by the appellees, and they cited The Milan, Lush.
403, The Atlas, 4 Ben. 28, s. 0. 10 Blatch. 460, in p. 318support 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 wrong-doers, and that it ought not to be extended so far as to inflict positive loss to innocent parties. The Gregory, 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 sustarne an injury to his property, from the co-operating consequence of two causes, though the persons producing them may no in intentional concert to occasion such a result, the injur p. 319person is entitled to compensation for his loss from either one or both of them, according to the circumstances of the incident. The New Philadelphia, 1 Black, 76; Boyer v. Sturgis, 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 explained.
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 wrong-doers, and they may pursue their remedy in personam, either at common law or in the admiralty, against the wrong-doers or any one or more of them, whether they elect to proceed at law or in the admiralty courts.
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 defence 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 0 the respondent is alone in fault, the libellant is entitled to recover full compensation for his damages; and the rule is, that
t e vessel of the libellant is alone in fault, the decree must e or the respondent, that the libel be dismissed. ases also arise where both vessels are in fault; and the
repeated decisions of this court have established the rule, that bet the damages shall be equally apportioned ween the offending vessels, as having been occasioned by
J °f b°th’ The Gatharin^ 17 How. 177; The Sunny-. 91 U. S. 216; The Continental, 14 Wall. 355; The Morn€ ight, 2 id. 560 ; The Pennsylvania, 24 How. 313. unocence entitles the loser to full compensation from the p. 320wrong-doer, and it is a good defence 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 the commissioner.
Mb. Justice Bradley did not sit in this case.