At the same time, I shall not permit the full amount of that compensation to be paid to them unless they submit to the deduction of a moiety of the damages sustained by the owners of the Seringapatam."

In the case of The Calypso, Swab. 28, a collision had occurred with the Equivalent. The owners of the Calypso brought suit, and the decree was that both parties were in fault, and pronounced for half the Calypso's damage. Then the owners of the Equivalent sued, and the owners of the Calypso presented a petition that the suit should be dismissed because of the former adjudication. Dr. LUSHINGTON declined to dismiss, but without deciding whether the matter might not be set up as a defense, and intimated that it was not commendable to wait the result of one action before bringing a cross-action, and he refused costs. He said:

"The usual practice is that when one vessel has been proceeded against in a cause of collision, and the owners of the other think they have any chance of obtaining a decree in their favor to enter a cross-action, and it is generally agreed between the practitioners that the decision in the one case shall gov ern the decision in the other. I am not aware that it is in the power of the court, if the proctors were not consenting to such an agreement, to say that both actions should be governed by the one as a matter of right."

These cases serve to show how, by reason of the technicalities of procedure, and the clumsiness of the process used for attaining the correct result, the original maritime rule, though in itself simple and easy of application, became involved and obscured.

Thus, where the merchant shipping act declared that if certain rules of navigation were infringed the owner should not recover for any damage sustained in a collision, it was held that he should not have the benefit of average, (The Aurora, Lush. Adm. 327,) and where the same act exempted the owner from responsibility for the acts of a compulsory pilot, it was held that he should not be subject to average, though entitled to recover half of his own loss from the other vessel in fault, (The Montreal, 17 Jurist, 538; S. C. 24 Eng. L. & Eq. R. 580.) These decisions were contrary to the maritime rule, though perhaps, in the former case, the words of the statute required the construction given to it. See 1 Pars. Shipp. 596; 2 Pars. Shipp.

115-117.

A like departure from the maritime rule, we think, was made in the late case of Chapman v. Netherlands Steam Nav. Co. L. R. 4 Prob. Div. 157, which is much relied on by the counsel of the Ella Warley. In that case a collision occurred between the Savernake, owned by Chapman & Co., and the Vesuvius, owned by the Netherlands Com

pany, by which the Vesuvius was sunk, with a total loss of ship and cargo, valued at £28,000, and the Savernake was damaged £4,000. The owners of the Vesuvius brought suit, and the owners of the Savernake put in a counter-claim, the substitute created by the late judicature act for the old cross-action. Both parties being declared in fault, a reference was made to the register to ascertain the damages of the various parties. At this point, the owners of the Savernake filed a bill in equity to obtain the benefit of limited liability, proffering £5,064 as the value of their ship at £8 per ton; and obtained a decree for paying into court that fund with interest. The question then arose as to the disposition of this fund, and for what amount each party in interest should be permitted to prove for dividend. Sir GEORGE JESSEL, master of the rolls, decided that the owners of the cargo of the Vesuvius and her master and crew were entitled to prove for half of their loss. As to the owners of the ship his decision was that the proper amount to be proved was the half of her value, less the half of the loss sustained by the Savernake, according to the maritime rule as before explained. The owners of the Savernake appealed, and contended that their claim for a moiety of damage sustained by them, (which was £2,000,) should stand good against the owners of the Vesuvius absolutely, and should not be deducted from the moiety of loss sustained by the Vesuvius, but that the owners of the latter should prove against the fund for their entire moiety of loss without deduction. This would have the effect of enabling them to set off the £2,000 against any dividend which might be awarded to the owners of the Vesuvius, and would enable them to get back so much of the amount paid into court. The master of the rolls had considered this a preposterous claim, and contrary to the meaning of the maritime rule. But the majority of the Lords Justices, BAGALLAY and COTTON, against the opinion of Lord Justice BRETT, reversed the decision, and decreed in the manner contended for by the appellants. We have carefully considered the reasons given by the various judges, and are unable to avoid the conclusion that the master of the rolls and Lord Justice BRETT took the proper view of the subject.

In this country the courts of the United States are not subject to the same disabilities which embarrass the proceedings of the English courts. By the act of congress of July 22, 1813, (Rev. St. § 921,) it is enacted that "where causes of a like nature, or relative to the same question, are pending before a court of the United States, the court

may make such orders and rules concerning proceedings therein as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and may consolidate said causes when it appears reasonable to do so." The power of consolidation here given enables the district courts sitting in admiralty to provide for cases of the kind under consideration in a manner adapted to the ends of justice and the exact rights of the parties. We understand that it is freely exercised by them. At all events, it clothes them with the necessary authority, in cases of collision, to combine the suits arising thereon into a single proceeding, and where both parties are found to be in fault, to make a single decree, (as was done in this case,) in accordance with their rights and obligations as resulting from the law. And even where no cross-libel is filed, if the respondents in their answer allege damage sustained by them in the collision, and charge fault against the vessel of the libelants, and pray a set-off or recoupment, in case they should themselves be held to be in fault, we see no good reason why they should not have the benefit of average afforded by the law, at least to the extent of the claim of the libelants. This would be more in accord with the liberal spirit in which the rules of pleading are administered in this country, than a rigid adherence to the English practice would admit of.

In the case of The Sapphire, 18 Wall. 56, Mr. Justice STRONG, delivering the opinion of this court, observed:

"We do not say that a cross-libel is always necessary in a case of collision, in order to enable claimants of an offending vessel to set off or recoup the damages sustained by such vessels, if both be found in fault. It may, how-ʼ ever, well be questioned whether it ought not to appear in the answer that there were such damages."

As it nowhere appeared by the pleadings in that case that the respondents had sustained any damage, it was held that they had waived any claim for such damage. The suggestion of Justice STRONG, however, as to the non-necessity of a cross-libel is a very pregnant one.

But waiving further discussion as to the proper or admissible mode of pleading, for the respondents in this case did file a crosslibel, it is sufficient to say that the forms and modes of proceeding in the courts of the United States are not such as to interpose any serious difficulties in the way of carrying out the simple rule of the maritime law with regard to averaging the damages occasioned by a collision where both vessels are in fault. And if there were, it would not alter the relative rights of the parties as settled by that law. We

have referred to the embarrassments caused by the technical rules of procedure in the English courts for the purpose of accounting for their apparent departure from the maritime rule of liability in some

cases.

In conclusion it is proper to remark that the British statutes on the subject of limited responsibility of ship-owners, as well as those which regulate the forms of proceeding, are different from ours. The rule of limitation as administered by us is much more liberal to the shipowners than the English rule. We only make them liable, when free from personal fault, for the value of their ship after the collision, so that if the ship is lost their further liability is extinguished; while in England it is maintained to the extent of £8 per ton, and in some cases £15 per ton, of their ship's measurement. To apply to our law the rule of construction which was given by the Lords Justices in the case of Chapman v. Netherlands Co., would often result, and would in this case result, in positive injustice. It would enable the owners of the Ella Warley to obtain full compensation for a moiety of their loss, while the owners of the North Star would have to sustain both their own entire loss and half of that of the owners of the Ella Warley, while both vessels were alike to blame for the collision. A rule which leads to such results cannot be a sound one.

Applying to the present case the maritime rule as we understand it, it being ascertained that both parties were in fault, the damage done to both vessels should have been added together in one mass or sum and equally divided, and a decree should have been pronounced in favor of the owners of the Ella Warley (which suffered most) against those of the North Star (which suffered least) for half the difference between the amounts of their respective losses; for the Ella Warley by her loss discharged her portion of the common burden, and so much more as the amount that would thus be decreed in her favor. Her delivery to the waves was tantamount to her surrender into court in case she had survived. It extinguished the personal liability of her owners by the mere operation of the maritime rule itself. As there was no decree against her owners for the payment of money, there was no room for the application in their favor of the statute of limited liability. The owners of the North Star do not claim the benefit of the law, and probably could not, because the fault of that ship lay in her original construction, and was attributable to the owners themselves. So that, in fact, the question of limited liability had no application to the case.

At the same time it is proper to say that it is at least questionable whether the benefit of the statute can be accorded to any ship-owner or owners, in the absence of any claim therefor in the pleadings. Such claim must always be based on the collateral fact that the loss or damage was "occasioned or incurred without the privity or knowledge of such owner or owners," (Revised St. § 4283,) and it would seem that an allegation of that fact should somewhere appear in the pleadings. As no such allegation is made, and no claim of the kind is set up by the owners of the Ella Warley, it would be exercising a greater latitude of indulgence to allow it to be set up now, than has ever been asked of this court before. Nevertheless, as the time within. which a party may be allowed to institute supplemental proceedings for obtaining the benefit of the law has never been precisely defined, we have deemed it best to decide the case upon the rights of the parties on the merits, in order to save further litigation and expense.

Since, therefore, the decree of the circuit court was made in precise conformity with the views which we have expressed, it must be affirmed, with interest from its date; and inasmuch as both parties have appealed from said decree upon grounds which have not been sustained, each party should pay their own costs on this appeal; and the cause must be remitted to the circuit court for such further proceedings as may be in accordance with law.

(106 U. S. 89)

AMERICAN COTTON-TIE Co. (Limited) and others v. SIMMONS and others.

(November 6, 1882.)

PATENT-IMPROVEMENT IN COTTON-BALE TIES.

The plaintiffs were the owners of patents for improvements in metallic cotton-bale ties, each tie consisting of a buckle and a band. They granted no licenses to make the tics, but themselves made them and supplied the market. They stamped in the metal of the buckle the words "Licensed to use once only." The defendants bought as scrap-iron the buckles and bands at the cotton mills, after the bands had been severed to release the bale, and rolled and straightened the pieces of the bands, and riveted together their ends, and cut them into proper length for ties, and sold them with the buckles to be used as ties, nothing being done to the buckles. Held, that the defendants had infringed the patents.

It was not decided that they were liable as infringers merely because they had sold the buckle considered apart from the band or from the entire structure as a tie.