CASES ADJUDGED

IN THE

SUPREME COURT OF THE UNITED STATES,

AT

OCTOBER TERM, 1890.

THE MAX MORRIS: Morris, Claimant.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

No. 44. Submitted May 2, 1890.- Decided November 17, 1890.

Where a person is injured on a vessel, through a marine tort arising partly from the negligence of the officers of the vessel and partly from his own negligence, and sues the vessel in Admiralty, for damages for his injuries, he is not debarred from all recovery because of the fact that his own negligence contributed to his injuries.

Whether, in such case, 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, quære.

THE case, as stated by the court, was as follows:

This was 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 alleged that on the 27th of October, 1884, the libellant 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 libellant, while on the vessel, fell from her bridge to the deck, through the negli

VOL. CXXXVII-1

Statement of the Case.

gence 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 failing to guard, the aperture thus left in the rail on the bridge; that the libellant was not guilty of negligence; and that he was injured by the fall and incapacitated from labor. He claimed $3000 damages.

The answer alleged negligence on the part of the libellant 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 libellant for $150, damages, and $32.33 as onehalf of the libellant's costs, less $47.06 as one-half of the claimant's costs, making the total award to the libellant $135.27. The opinion of the District Judge is reported in 24 Fed. Rep. 860. It appeared from that that the judge charged to the libellant'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 libellant was a longshoreman, a resident of the city and county of New York, and was, at the time when the said accident occurred, employed as longshoreman, by the hour, by the stevedore having the contract to load coal on board the steamship Max Morris. The injuries to the libellant 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 steamship, hailing from Liverpool, England. The defendant contends, as a matter of defence to said libel,

Argument for Appellant.

that the injuries complained of by libellant were caused by his own negligence. The libellant 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 libellant 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 libellant, 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 libellant a recovery of $135.27, with inter est from the date of the decree of the District Court, and $26.30 as the libellant's costs in the Circuit Court, making a total of $172. From that decree the claimant has appealed to this court. Rev. Stat. §§ 652, 693; Dow v. Johnson, 100 U.S. 158.

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

Whether the accident was due solely to the fault of the libellant, or whether his fault merely contributed thereto, the libel should be dismissed.

The contributory fault of the libellant is established by the facts. The rule as invariably applied by Admiralty Courts in this class of cases until the recent decision of the Explorer, 20 Fed. Rep. 135, 139, by Judge Pardee, in the Fifth Circuit, has been the wholesome rule that the libellant cannot recover when his own negligence has contributed to the accident. Such is the rule of the common law. And the civil law from which the principles of the admiralty law are freely drawn is on this point in accord with the common law. Wharton on Negligence, § 300.

Judge Pardee finds his sole foundation for his decision in the case of the Explorer in certain dicta of Justice Story in the case of Marianna Flora, 11 Wheat. 1, decided by the