THE MAX MORRIS v. CURRY.

137 U.S. 1 (11 S.Ct. 29, 34 L.Ed. 586)

THE MAX MORRIS v. CURRY.

Decided: November 7, 1890

W. Mynderse, for appellant.

Roger Foster, for appellee.

This is a suit in admiralty, brought in the district court of the United States for the southern district of New York, by Patrick Curry against the steamer Max Morris. The libel alleges that on the 27th of October, 1884, the libelant was lawfully on board of that vessel, being employed to load coal upon her by the stevedore who had the contract for loading the coal; that, on that day, the libelant, while on the vessel, fell from her bridge to the deck, through the negligence of those in charge of her in having removed from the bridge the ladder usually leading therefrom to the deck, and in leaving open, and failling to guard, the aperture thus left in the rail on the bridge; that the libelant was not guilty of negligence; and that he was injured by the fall, and incapacitated from labor. He claimed $3,000 damages. The answer alleges negligence on the part of the libelant, and an absence of negligence on the part of the claimant. The district court, held by Judge BROWN, entered a decree in favor of the libelant for $150 damages, and $32.33 as one-half of the libelant's costs, less $47.06 as one-half of the claimant's costs, making the total award to the libelant $135.27. The opinion of the district judge is reported in 24 Fed. Rep. 860. It appears from that that the judge charged to the libelant's own fault all his pain and suffering and all mere consequential damages, and charged the vessel with his wages, at $2 per day, for 75 working days, making $150. The claimant appealed to the circuit court, on the ground that the libel should have been dismissed. It was stipulated between the parties that the facts as stated in the opinion of the district judge should be taken as the facts proved in the case, and that the appeal should be heard on those facts. Judge WALLACE, who heard the case on appeal in the circuit court, delivered an opinion, in August, 1886, which is reported in 28 Fed. Rep. 881, affirming the decree of the district court. No decree was made on that decision, but the case came up again in the circuit court on the 14th of March, 1887, the court being held by Mr. Justice BLATCHFORD and Judge WALLACE, when a certificate was signed by them stating as follows: 'The libelant was a longshore-man, as resident of the city and county of New York, and was, at the time when the said accident occurred, employed as longshore-man, by the hour, by the stevedore having the contract to load coal on board the steam-ship Max Morris. The injuries to the libelant were occasioned by his falling through an unguarded opening in the rail on the after-end of the lower bridge. The Max Morris was a British steam-ship, hailing from Liverpool, Eng. The defendant contends, as a matter of defense to said libel, that the injuries complained of by libelant were caused by his own negligence. The libelant contends that the injuries were occasioned entirely through the fault of the vessel and her officers. The court finds, as a matter of fact, that the injuries to the libelant were occasioned partly through his own negligence, and partly through the negligence of the officers of the vessel. It now occurs, as a question of law, whether the libelant, under the above facts, is entitled to a decree for divided damages. On this question, the opinions of the judges are in conflict.' On motion of the claimant, the question in difference was certified to this court, and a decree was entered by the circuit court affirming the decree of the district court, and awarding to the libelant a recovery of $135.27, with interest from the date of the decree of the district court, and $26.30 as the libelant's costs in the circuit court, making a total of $172. From that decree the claimant has appealed to this court. Rev. St. §§ 652, 693; Dow v. Johnson, 100 U. S. 158.

Mr. Wilhelmus Mynderse and Mr. William Allen Butler for Morris, claimant and appellant.

Argument of Counsel from pages 3-7 intentionally omitted

Mr. James A. Patrick for Curry, libellant and appellee.

BLATCHFORD, J.

The question discussed in the opinions of Judge BROWN and Judge WALLACE, and presented to us for decision, is whether the libelant 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 libelant, 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 libelant, 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 authoritiatively 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 libelant arose from his negligence, concurring with that of the vessel, and 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 Catharine 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 Catharine v. Dickinson, supra, both vessels being held in fault for the collision, it was said by the court, speaking by Mr. Justice NELSON, (page 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. The 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 Sunny-side, 91 U. S. 208; The America, 92 U. S. 432; The Alabama, Id. 695; The Atlas, 90 U. S. 302; The Juniata, Id. 337; The Stephen Morgan, 94 U. S. 599; The Virginia Ehrman, 97 U. S. 309; The City of Hartford, Id. 323; The Civilta, 103 U. S. 699; The Connecticut, Id. 710; The North Star, 106 U. S. 17, 1 Sup. Ct. Rep. 41; The Sterling, 106 U. S. 647, 1 Sup. Ct. Rep. 89; and The Manitoba, 122 U. S. 97, 7 Sup. Ct. Rep. 1158.

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 libelant 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 libelant 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 libelant, 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 appealed, this court, after two hearings of the case, reversed the decree of the circuit court and reinstated that of the district court. In the opinion of this court, delivered by Mr. Justice MILLER, the case is treated as one of collision. The pier having been placed by the respondent in the navigable water of the Mississippi river without authority of law, this court held him to be responsible for the damages sustained by the libelant from the striking of the pier by the barge. It held also that there was negligence on the part of the barge, and said (page 395:) 'But the plaintiff has elected to bring his suit in an admiralty court, which has jurisdiction of the case, notwithstanding the concurrent right to sue at law. In this court the course of proceeding is in many respects different, and the rules of decision are different. The mode of pleading is different, the proceeding more summary and informal, and neither party has a right to trial by jury. An important difference as regards this case is the rule for estimating the damages. In the common-law court the defendant must pay all the damages or none. If there has been on the part of the plaintiffs such carelessness or want of skill as the common law would esteem to be contributory negligence, they can recover nothing. By the rule of the admiralty court, where there has been such contributory negligence, or, in other words, when both have been in fault, the entire damages resulting from the collision must be equally divided between the parties. This rule of the admiralty commends itself quite as favorably in its influence in securing practical justice as the other, and the plaintiff who has the selection of the forum in which he will litigate cannot complain of the rule of that forum.' This court, therefore, treated the case as if it had been one of a collision between two vessels.

The case of The Alabama was like that of The Washington, where an innocent party recovered damages against two vessels, both of which were in fault in a collision. In that case it is said in the opinion of the court, delivered by Mr. Justice BRADLEY, (page 697,) that 'the moiety rule has been adopted for a better distribution of justice between mutual wrong-doers; and it ought not to be extended so far as to inflict positive loss on innocent parties.'

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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