106 U.S. 17 (1882), The North Star

Citation:106 U.S. 17, 1 S.Ct. 41, 27 L.Ed. 91
Party Name:THE NORTH STAR and THE ELLA WARLEY. REYNOLDS and others v. VANDERBILT and others, Exr's, etc. VANDERBILT and others, Ex'rs, etc., v. REYNOLDS and others.
Case Date:November 06, 1882
Court:United States Supreme Court

Page 17

106 U.S. 17 (1882)

1 S.Ct. 41, 27 L.Ed. 91

THE NORTH STAR and THE ELLA WARLEY.

REYNOLDS and others

v.

VANDERBILT and others, Exr's, etc.

VANDERBILT and others, Ex'rs, etc.,

v.

REYNOLDS and others.

United States Supreme Court.

November 6, 1882

Appeals from the Circuit Court of the United States for the Southern District of New York.

COUNSEL

[1 S.Ct. 42] Benedict, Taft & Benedict, for the owners of the Ella Warley.

Beach & Brown and William Allen Butler, for the owners of the North Star.

OPINION

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BRADLEY, J.

This case arose out of a collision off the Jersey shore, south of Sandy Hook, on the evening of the ninth of February, 1863, between two steam-ships, the Ella Warley, bound from New York to New Orleans, and the North Star, bound from Key West to New York. The former was struck about midships, and was sunk and lost; and the North Star was considerably damaged. The owners of the Ella Warley libeled the North Star, and the owners of the latter filed a cross-libelin personam against the owners of the Ella Warley. The suits were tried together, and the district court held the Ella Warley alone in fault, and rendered a decree accordingly. The circuit court held both vessels in fault, and rendered a decree in favor of the owners of the Ella Warley for so much of their damage as exceeded one-half of the aggregate damage sustained by both vessels. This was the proper decree to make if the conclusion reached, as to both vessels being in fault, was correct, unless the question arising on the limited-liability act, hereafter discussed, required a different decree. Each vessel being liable for half the damage done to both, if one suffered more than the other, the difference should be equally divided, and the one which suffered least should be decreed to pay one-half of such difference to the one which suffered most, so as to equalize the burden.

Since both of the courts below held the Ella Warley to be in fault, we would not disturb this decision without preponderating evidence to the contrary; and such evidence we do not find. On the contrary, we think that the whole evidence taken together sustains the conclusions reached.

The vessels were approaching each other in contrary directions, nearly head on, one going down the coast, the other coming up, and saw each other's mast-head lights when eight or ten miles apart. The Ella Warley, instead of porting her helm according to the rule, starboarded it in order to pass outside. This was evidently the first cause of the disaster; for, as the North Star obeyed the rule, it brought the vessels directly together. It is also obvious that the persons in charge of the Ella Warley did not keep a sufficient lookout, for they allege that they only saw the green light of the North Star

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until the [1 S.Ct. 43] instant before the collision; while it is demonstrable, both from the diagram produced on the part of the Ella Warley, and from the courses which the two vessels must have pursued, that after they were near enough to discern their respective side lights, the red light of the North Star was exposed to the view of the Ella Warley during the entire approach, and must have been seen by her men if they had exercised the least diligence. One of the grounds of complaint against the North Star is that her lights were not properly screened, and could be seen across her bow. This only makes it the more certain that, from the relative position of the vessels, her red light must have been visible. It is impossible that it was hidden from view up to the time immediately preceding the collision.

As to the question whether the North Star was also in fault we agree with the circuit court that she was. The rules of navigation in force at the time required that the side lights of steamers navigating the sea, bays, etc., should be fitted with in-board screens of at least six feet in length, (clear of the lantern,) to prevent them from being seen across the bow, and to be placed in a fore-and-aft line with the inner edge of the side lights, and in contact therewith. 1 Pars. M. Law, 679, (Ed. 1859.) In flat defiance of this rule the screens of the North Star did not project two inches forward of the bull's-eye of the lights, so that the lights could be seen two or three points across the bow. This was undoubtedly one reason why the green light of the North Star caught the eye of the mate and others on board of the Ella Warley so readily as it did, and, indeed, goes to some extent to mitigate their negligence in not discerning the red light. This was clearly a fault on the part of the North Star, and one that probably contributed to the accident. We think, therefore, that both parties were in fault.

The counsel for the owners of the Ella Warley now, for the first time, raise a question upon the statute limiting the liability of the ship-owners. They contend that, as the Ella Warley was a total loss, the owners are not liable to the owners of the North Star at all, not even to have the balance of damage struck between the two vessels; but that the half of their

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damage must be paid in full, without any deduction for the half of the damage sustained by the North Star. This proposition is so startling that the reasoning employed to support it should be scrutinized with some care before yielding to its force.

The rule of admiralty in collision cases, as we understand it, is that, where both vessels are in fault, they must bear the damage in [1 S.Ct. 44] equal parts, the one suffering 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 the owners of the other for one-half of the damage sustained by the latter; and, vice versa, that the owners of thelatter are liable to those of the latter are liable to those 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. On the contrary, the almost invariable mode of statement is that the joint damage is equally divided between the parties; or (as in some authorities) it is spoken of as a case of average. Thus, Lord STOWELL says:

'A misfortune of this kind may arise where both parties are to blame, where there has been want of due diligence or of skill on both sides. In such a case the rule of law is that the loss must be apportioned between them, as having been occasioned by the fault of both of them.' The Woodrop Sims, 2 Dod. 83.

This statement of the law was adopted in the text of Abbott on Shipping, p. 3,c. 1, § 2. It is also adopted by Mr. Bell, in his Commentaries on the Laws of

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Scotland, (vol. 1, pp. 580, 581,) who remarks:

'By the maritime law this is a case of average loss or contribution, in which both ships are to be taken into the reckoning, so as to divide the loss.'

It is also adopted in the later text-writers. See McLach. Merch. Shipp. 274. In Hopkins on Average, 189, it is stated thus:

'If, as the result of cross-actions in admiralty, both vessels be found in fault, the rule of the court is to add the damages, losses, and costs of the two ships together, and to divide the joint sum in moieties and decree each vessel to bear an equal portion.'

If we go back to the text of the law, in the rules of Oleron, followed in the laws of Wisbuy and other laws, we find it expressed in substantially [1 S.Ct. 45] the same manner. The case is supposed of a ship coming into port negligently managed, and striking a vessel at anchor in an improper position, so that both are in fault and both are damaged. The rule says:

'The damage ought to be appraised and divided half and half between the two ships, and the wines that are in the two ships ought to divide the damage age between the merchants.' 1 Pardessus, Collection de lois Maritime, 334; Cleirac, Us et Contume de la Mer, 55; Sea Laws, 141; 1 Pet. Adm. App. xxiii.

In Jacobson's Laws of the Sea it is said:

'If the damage is done reciprocally, such damage is apportioned in common between the parties.'

The French Ordinance of 1681 expresses the rule in exactly the same way:

'The damage shall be paid equally by the ships which have caused it and suffered it.' Valin, lib. 3, tit. 7, art. 10.

On this Valin remarks:

'Whenever damage by collision is adjudged common average between the two ships, the decree is that the costs of suit and the appraisement of the damage shall be equally borne in common, to effect which they are made into one mass with a calculation of the average.'

Emerigon, who had great experience as an admiralty lawyer and judge, says, upon the same article:

'The damages sustained by both ships are appraised and made into one mass, which is equally divided.' Assurances, c. 12, sec. 14, § 3.

Boulay-Paty, commenting on the Code de Commerce, art. 407, which relates to the same subject, says:

'We conclude, then, that after due regard is had to the

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character of the damaged parts of each ship, the injury and damage which they have sustained and the appraisal thereof, being added together in a single mass, must be divided so as to be equally borne by each of the ships which have been...

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