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Argument for Appellant.

Supreme Court in 1826. The Marianna Flora was a prize case, in which the captured vessel was declared by the District Court “no prize," and the matter under the consideration of the Supreme Court was whether the captured vessel should recover damages for her arrest. The Supreme Court denied her claim for damages upon the ground that the circumstances attending the seizure were, through the indiscretions of the Marianna Flora, such as to justify the commander of the cruiser, in the fair exercise of his judgment, in making the seizure. In effect the Supreme Court said : the Marianna Flora having contributed to the seizure by her own negligence, cannot recover damages. But in the course of their opinion they made certain dicta respecting the power of the Court to give or to withhold damages, such as “in cases of marine torts courts of admiralty are in the habit of giving or withholding damages upon enlarged principles of justice and equity,” and

they have exercised a conscientious discretion upon the subject,” which Judge Pardee has construed in such manner as to sustain his decision.

Though the Marianna Flora was decided sixty years ago, it had never been deemed to refer to other than prize cases. It is significant that in every case in which a decree has been given in favor of a landsman for personal injuries, there is an express finding that the libellant was free from any fault. “The libellant was in no manner negligent or in fault, whereby he contributed to bis said injury.” Leathers v. Blessing, 105 U. S. 626. “The libellant was guilty of no negligence” (Judge Benedict). The Calista Hawes, 14 Fed. Rep. 493. “The libellant was not in any degree in fault for the falling of the dunnage” (Judge Benedict). The Kate Cann, 2 Fed. Rep. 241, affirmed, 8 Fed. Rep. 719. “The proofs do not justify an inference that the libellant was negligent” (Judge Wallace). The Rheola, 19 Fed. Rep. 926. Judge Deady expressly held “contributory negligence is a defense to the action,” the claim being prosecuted in the Admiralty Court by a libel in personam. Holmes v. Oregon & Colorado Railway, 5 Fed. Rep. 523, 528. And again, Judge Deady held: “ Admitting the negligence of the mate, and that the master or owner and the vessel are liable

Argument for Appellant.

therefor, still if the negligence of the libellant substantially contributed to produce the injury, he could not recover damage therefor.” The Chandos, 4 Fed. Rep. 645, 649. Judge Blatchford has stated the rule as follows: “The owner of the vessel is liable in personam and the vessel is liable in rem for injuries done to person or property by the negligence of the master and crew of the vessel, only where the owner would, under the same circumstances, be liable in a suit at common law." The Germania, 9 Ben. 356. And in a case decided two months later than the Explorer, Judge Pardee seems to have modified his novel views. He says: “Nor in the admiralty should one, as a general rule, be compensated in damages who has, by his own fault, contributed to bring about his own injury.” The E. B. Ward, Jr., 20 Fed. Rep. 702, 704.

The admiralty rule of division of damages, applicable to collision cases, has never been applied to cases of personal injuries.

The rule of dividing damages in case of mutual fault, applies only to collision cases, and arose probably from the fact that, in such cases, damages were sustained by both parties; and that the collision occurred, not through the personal negligence of either of the ship-owners, but through the negligence of their servants.

Cleirac calls it a judicium rusticum (U8 et Coutumes de la Mer), and his commentator, Mr. Bell, translates his words as follows: “ This 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 when they are faulty on both sides,” Bell's Comm. 5th ed. 581.

This rule was not recognized by the Supreme Court in collision cases until 1854. Up to that time, apparently, collisions in which both vessels were in fault, were not as common as they are now-a-days, for Judge Nelson said: “It becomes necessary to settle the rule of damages in a case where both vessels are in fault. The question, we believe, has never until now come before the Court for decision. The rule that prevails in the District and Circuit Courts, we understand, has

Argument for Appellant.

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been to divide the loss. This seems now to be the well-settled rule in the English admiralty.

Under the cir. oumstances usually attending these disasters, we think the rule dividing the loss the most just and equitable.” The Schooner Catherine, 17 How. 173. Snow v. Carruth, 1 Sprague, 324, is in no way pertinent. There was no suggestion there of contributory negligence.

Not only has the wholesome doctrine that the contributory negligence of the libellant defeats an action in the Admiralty Court for personal injuries been uniformly observed until Judge Pardee's decision in the Explorer, but the more severe rule that a servant cannot recover for injuries sustained through the negligence of a fellow servant has been accepted and enforced. Judge Lowell applied it in the Massachusetts Circuit. The Victoria, 13 Fed. Rep. 43. And in the Southern District of New York, Judge Brown followed the rule to its extremest limit. The Harold, 21 Fed. Rep. 428. And the municipal or common law doctrine was also applied by the Circuit Court in New York, affirming, The Edith Godden, 23 Fed. Rep. 43. It is inconsistent to say that a servant who has been injured through his own negligence can recover half his damages, while he who has been without fault and has been injured through the negligence of his fellow servant can recover nothing

The learned Circuit Judge (Judge Wallace) who wrote for affirmance of the decree of the District Court apparently doubted the correctness of the rule adopted by Judge Pardee in the Explorer, 20 Fed. Rep. 135, and followed by Judge Brown in the District Court. He held himself bound, however, by the decision of this Court in Atlee v. The Packet Co., 21 Wall. 389. But the language of the court, in that case (p. 395), after adverting to the fact that this action might have been brought in a common-law court instead of the Admiralty Court, is: “In the common-law court the defendant must pay all the damages or none. 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

Opinion of the Court.

divided between the parties.” The rule of apportionment was recognized only as a rule applicable to collisions.

The decree cannot be sustained by the rule that when a seaman falls sick or sustains injury in the service of his vessel certain responsibilities as to care and attention devolve upon the vessel. The City of Alexandria, 17 Fed. Rep. 390.

The learned District Judge heard argument upon this point, but very justly held that the rule was not applicable.

The rule, as respects seamen, is a proper one, though it seems that it is not enforceable if the sickness or injury of the seaman is occasioned by his own fault. Curtis' Rights and Duties of Seamen, 109.

Seamen may be injured or fall sick in a far distant foreign port, and it would be inhuman to leave them there without

care.

There are even statutory provisions for the payment of their expenses home and for their support in hospitals.

But the responsibility of the ship extends only to the end of the voyage for which the seaman was shipped, or until the seaman reaches his home port. The Atlantic, Abbott's Admiralty, 451; Nevitt v. Clarke, Olcott, 316; The Ben Flint, 1 Abbott, U. S. 126. No such responsibility rests upon the Max Morris with reference to the libellant. The reason for the rule does not exist as to him. He was injured at his home. He was not in a foreign port. He was treated and cured at a public hospital. His engagement as a longshoreman extended only from hour to hour.

Even a seaman has no claim upon his ship for a period beyond the time for which he has shipped or contracted for. The Atlantic, Abbott's Adm. 451.

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

MR. JUSTICE BLATCHFORD, after stating the case as above reported, delivered the opinion of the court.

The question discussed in the opinions of Judge Brown and Judge Wallace, and presented to us for decision, is whether

Opinion of the Court.

the libellant 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 libellant, 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 libellant, 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 authoritatively 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 libellant arose from his negligence concurring with that of the vessel, any 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 Scheaner Catherine 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-balf recovering the excess against the other vessel. In the case of The Schooner Catherine v. Dickinson, (supra,) both vessels being held in fault for the collision, it was said by the court, speaking by Mr. Justice Nelson, p. 177, that the well-settled rule in the English admiralty was “to divide the loss," and that “under the circumstances usually

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