The Max Morris v. Curry/Opinion of the Court
The case of The Atlas was that of a suit against the Atlas by an insurance company for the loss of a canal-boat and her cargo while she was in tow of a tug, through a collision between the Atlas and the tug. The tug was not sued. The district and circuit courts, in view of the fact that the collision was caused by the mutual fault of the Atlas and the tug, decreed to the libelant, against the Atlas, one-half of its damages. This court held that, as the owner of the cargo which was on board of the canal-boat was not in fault, the libelant was entitled to recover the entire amount of its damages from the Atlas, the tug not having been brought in as a party to the suit. By rule 59 in admiralty, promulgated by this court March 26, 1883, (112 U.S. 743,) the claimant or respondent in a suit for damage by collision may compel the libelant to bring in another vessel or party alleged to have been in fault.

The case of The Juniata is worthy of attention. In that case, one Pursglove, the owner of a steam-tug, filed a libel against the Juniata to recover for damage sustained by the tug by a collision between it and the Juniata, and also damages for personal injuries to himself. The district court held both vessels to have been in fault, and made a decree of $10,000 in favor of Pursglove, for one-half of his damages. This decree was affirmed by the circuit court and by this court. It is quite evident from the report of the case that damages were awarded to Pursglove for his personal injuries, although his tug was held to have been in fault.

Some of the cases referred to show that this court has extended the rule of the division of damages to claims other than those for damages to the vessels which were in fault in a collision.

In England, the common-law rule that a plaintiff who is guilty of contributory negligence can recover nothing was made by statute to yield to the admiralty rule in respect to damages arising out of a collision between two ships, by subdivision 9, § 25, c. 66, 36 & 37 Vict., being the judicature act of August 5, 1873, (L. R. 8 St. 321,) which provides as follows: '(9) In any cause or proceeding for damages arising out of a collision between two ships, if both ships shall be found to have been in fault, the rules in force in the court of admiralty, so far as they have been at variance with the rules in force in the courts of common law, shall prevail.' The same provision was enacted in the same language by subdivision 9, § 28, c. 57, 40 & 41 Vict., being the judicature act in relation to Ireland of August 14, 1877, (L. R. 12 St. 362.)

The admiralty rule of the division of damages was laid down by Sir WILLIAM SCOTT, in 1815, in The Woodrop-Sims, 2 Dod. 83, 85, where he says that if a loss occurs through a collision between two vessels, where both parties are to blame, the rule of law is 'that the loss must be apportioned between them, as having been occasioned by the fault of both of them.' This rule was approved by the house of lords, on an appeal from Scotland, in Hay v. Le Neve, 2 Shaw, 395, in 1824. The rule of the equal apportionment of the loss where both parties were in fault would seem to have been founded upon the difficulty of determining in such cases the degree of negligence in the one and the other. It is said by Cleirac (Us et Coutumes de la Mer, p. 68) that such rule of division is a rustic sort of determination, and such as arbiters and amicable compromisers of disputes commonly follow, where they cannot discover the motives of the parties, or when they see faults on both sides.

As to the particular question now presented for decision, there has been a conflict of opinion in the lower courts of the United States. In the case of Peterson v. The Chandos, 4 Fed. Rep. 645, 649, in the district court for the district of Oregon, which was a libel in admiralty against a vessel, for a personal injury, it was said by Judge DEADY that the libelant could not recover for an injury caused by his own negligence, which contributed to the result, even though the vessel was in fault. The same rule was recognized by him, in the same court, in a suit in admiralty, in Holmes v. Railway Co., 5 Fed. Rep. 523, 538, and by Judge HUGHES, in the district court for the eastern district of Virginia, in The Manhasset, 19 Fed. Rep. 430.

On the other hand, Judge PARDEE, in the circuit court for the eastern district of Louisiana, in The Explorer, 20 Fed. Rep. 135, and The Wanderer, Id. 140, cases in admiralty where the libelant sued for personal injuries, and he and the vessel were both held in fault, laid it down as a rule that, in cases of marine torts, courts of admiralty could exercise a conscientious discretion, and give or withhold damages upon enlarged principles of justice and equity. In the first of those cases, the court allowed to the libelant $280 for the loss of 40 days' time, at $7 a day, and the sum of $40 paid by him for his admission to a hospital, and the costs of the case, as the vessel's share of the expenses resulting from the injury to which the vessel contributed through the negligence of her master and officers. In the other case, it was held that, while the libelant could not be rewarded for his negligence at the expense of the vessel, she should be held responsible for her negligence, to the extent of paying for the direct care, attention, medical services, and expenses required for the libelant. These last two cases proceed upon the same principle that appears to have been adopted by the district and circuit courts in the present case, and the same view was applied by the district court for the eastern district of New York, in The Truro, 31 Fed. Rep. 158, and by the district court for the eastern district of Virginia, in The Eddystone, 33 Fed. Rep. 925. This principle, it is contended, is sanctioned by the language used by this court in The Marianna Flora, 11 Wheat. 1, 54: 'Even in cases of marine torts, independent of prize, courts of admiralty are in the habit of giving or withholding damages upon enlarged principles of justice and equity, and have not circumscribed themselves within the positive boundaries of mere municipal law,'-and in The Palmyra, 12 Wheat. 1, 17: 'In the admiralty, the award of damages always rests in the sound discretion of the court, under all the circumstances.'

The rule of giving one-half of the damages has been applied by the district and circuit courts in the southern district of New York in cases where a boat and her cargo were lost or damaged through negligence on the part of a steam-tug which towed the boat, where there was fault also on the part of the boat. Those were not cases of collision, and there was no damage to the steam-tug, and she alone was sued for the loss. Such cases were those of The William Murtaugh, 3 Fed. Rep. 404, and 17 Fed. Rep. 260; The Wm. Cox, 3 Fed. Rep. 645; affirmed by the circuit court, 9 Fed. Rep. 672; Connolly v. Ross, 11 Fed. Rep. 342; The Bordentown, 16 Fed. Rep. 270. Also in cases where the vessel towed was held to be in fault for not being in proper condition, (Philadelphia R. Co. v. New England Transp. Co., 24 Fed. Rep. 505;) and where a boat was injured by striking the bottom of a slip in unloading at the respondent's elevator, the boat herself being also in fault, (Christian v. Van Tassel, 12 Fed. Rep. 884;) and where the vessel towed was old and unseaworthy, (The Syracuse, 18 Fed. Rep. 828; The Reba, 22 Fed. Rep. 546.) In Snow v. Carruth, 1 Spr. 324, in the district court for the district of Massachusetts, damage to goods carried by a vessel on freight was attributable partly to the fault of the carrier, and partly to the fault of the shipper; and, it being impossible to ascertain for what proportion each was responsible, the loss was divided equally between them.

All these were cases in admiralty, and were not cases of collision between two vessels. They show an amelioration of the common-law rule, and an extension of the admiralty rule, in a direction which we think is manifestly just and proper. Contributory negligence in a case like the present should not wholly bar recovery. There would have been no injury to the libelant but for the fault of the vessel; and, while, on the one hand, the court ought not to give him full compensation for his injury where he himself was partly in fault, it ought not, on the other hand, to be restrained from saying that the fact of his negligence should not deprive him of all recovery of damages. As stated by the district judge in his opinion in the present case, the more equal distribution of justice, the dictates of humanity, the safety of life and limb, and the public good, will be best promoted by holding vessels liable to bear some part of the actual pecuniary loss sustained by the libelant, in a case like the present, where their fault is clear, provided the libelant's fault, though evident, is neither wilful nor gross nor inexcusable, and where the other circumstances present a strong case for his relief. We think this rule is applicable to all like cases of marine tort, founded upon negligence, and prosecuted in admiralty, as in harmony with the rule for the division of damages in cases of collision. The mere fact of the negligence of the libelant as partly occasioning the injuries to him, when they also occurred partly through the negligence of the officers of the vessel, does not debar him entirely from a recovery.

The necessary conclusion is that the question whether the libelant, upon the facts found, is entitled to a decree for divided damages, must be answered in the affirmative, in accordance with the judgment below. This being the only question certified, and the amount in dispute being insufficient to give this court jurisdiction of the whole case, our jurisdiction is limited to reviewing this question. Union Nat. Bank v. Kansas City Bank, 136 U.S. 223, 10 Sup. Ct. Rep. 1013. Whether in a case like this the decree should be for exactly one-half of the damages sustained, or might, in the discretion of the court, be for a greater or less proportion of such damages, is a question not presented for our determination upon this record, and we express no opinion upon it. Decree affirmed. 

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