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In England the equal division rule in cases of unequal fault has been abolished by the Maritime Conventions Act, 1911, which apportions the loss according to the degree of fault.

Where more than two vessels are involved, the apportionment is made among all actually at fault."

In America the costs are divided like the damages,25 in England each side pays his own costs.26

RIGHTS OF THIRD PARTY WHERE BOTH IN FAULT

148. An innocent third party can recover against both vessels, but the form of his decree is not a general decree against both, but a decree for half against each with a remedy over against the other for any deficiency.

In England, in such cases, he can recover only half against each, and cannot make up his deficit against the other; and in case of a collision between two English ships on the high sea, an American court will apply the English rule.27

24 Eugene F. Moran v. New York Cent. & H. R. R. Co., 212 U. S. 466, 29 Sup. Ct. 339, 53 L. Ed. 600; Maling (D. C.) 110 Fed. 227; S. A. McCaulley (D. C.) 116 Fed. 107 (reversed on facts in Pacific, 154 Fed. 943, 83 C. C. A. 515); Manhattan (D. C.) 181 Fed. 229 (reversed on facts 186 Fed. 329, 108 C. C. A. 407).

25 America, 92 U. S. 432, 23 L. Ed. 724; Frank S. Hall (D. C.) 128 Fed. 816; Garden City (D. C.) 236 Fed. 302. 26 Marpesia, L. R. 4 P. C. 212; City of Manchester, 5 P. D. 221; Rosalia, [1912] P. 109; Cardiff Hall, [1918] P. 56.

27 Eagle Point, 142 Fed. 453, 73 C. C. A. 569; Ralli v. Societa Anonima Di Navigazione a Vapore G. L. Premuda (D. C.) 222 Fed. 994. For the English and American rules compared, and the effect of the Maritime Conventions Act, 1911, on the recovery, see Marsden on Collisions (7th Ed.) 148, 153.

The form of this decree shows that the doctrine did not find its origin in the law of torts, although many judges speak of the two vessels as joint tort-feasors. The Supreme Court has sedulously guarded the form of this decree, even correcting it in some instances where the question was not a material one, as the values were sufficient. This form of decree was announced in the Washington, 28 which was a case of a passenger on a ferryboat injured by the joint negligence of his boat and another vessel.

In the Alabama,29 a vessel in tow was injured by the joint negligence of her tug and another vessel. The court gave the decree in the form above stated.

But this is a rule intended to do justice as between the wrongdoers, and will not be so applied as to deprive an innocent party of his right of full recovery. Hence, in the ATLAS,30 a shipper on one of two vessels, both of which were in fault, proceeded against one vessel alone, and it was held that he was entitled to do so, and to recover his full damage from that vessel. The question is thoroughly discussed in the opinion delivered by Mr. Justice Clifford, who seems to treat it as much on the basis of an average contribution as upon the basis of a tort; that average contribution, however, to be applied simply as between the two in fault.31

289 Wall. 513, 19 L. Ed. 787. 29 92 U. S. 695, 23 L. Ed. 763.

30 93 U. S. 302, 23 L. Ed. 863.

31 See, also, Sterling, 106 U. S. 647, 1 Sup. Ct. 89, 27 L. Ed. 98; New York, 175 U. S. 187, 20 Sup. Ct. 67, 44 L. Ed. 126.

CONTRIBUTION BETWEEN COLLIDING VESSELS -ENFORCEMENT IN SUIT AGAINST

BOTH

149. Where both are negligent, and have been brought before the court by a joint libel against both, this contribution will be enforced.

Under the cases cited in a previous discussion, the form of the decree by which the third party is simply given a decree for half, with a contingent remedy over, is itself an enforcement of the right of contribution. At common law, in cases where no contribution existed as between wrongdoers, the decree was in solido against each, and, if the plaintiff levied his execution, and made his money out of one, that one could not compel the other to pay his part. These different forms of judgment or decree show the difference in the origin of the two doctrines at common law and in admiralty.

SAME-ENFORCEMENT BY BRINGING IN VESSEL NOT PARTY TO SUIT

150. Under the fifty-ninth admiralty rule, where the third party has proceeded against only one, that one

can, by petition, obtain process to bring in the other vessel, if within reach of process.

This fifty-ninth rule in admiralty was promulgated on March 26, 1883.32 It was the outgrowth of the decisions in reference to the form of decree, and was intended to prevent the injustice of leaving to the caprice of the libelant which of two colliding vessels he should hold. Just prior

$ 150. 32 112 U. S. 743, 29 Sup. Ct. xlvi, post, p. 530.

to its promulgation the HUDSON 33 had been decided by District Judge Brown in the District Court for the Southern District of New York. In that decision Judge Brown sustained a motion to bring in as defendant one of the two vessels that was not before the court, and in doing so rendered an opinion as to the advantages of the procedure and the relative rights of the two colliding vessels in such cases. His learned discussion, both of the English and American authorities, treats the matter rather as a matter of contribution or average than a matter of joint tort. Hence, where vessels are in the jurisdiction, the fifty-ninth rule permits a proceeding against the vessel not sued, which practically makes an average adjustment, so to speak, of the loss among the parties liable. Hence the right of contribution is clear in two classes of cases: First, those in which both vessels are sued, and it can be brought about by the form of decree or by recoupment; and, second, those in which only one vessel is sued, and the other vessel is within reach of the court's process.

SAME-ENFORCEMENT BY INDEPENDENT SUIT 151. On the above principles, the right of contribution ought to exist between the two vessels by independent suit; and this right is settled by the later authorities.

The above discussion leaves open the case of suit against one vessel by the third party when the other vessel is not within the jurisdiction, and cannot be reached by process under the fifty-ninth rule. Suppose that in such a case the libelant gets a full decree against the vessel before the court, and compels payment, can that vessel institute an independent suit against the other vessel, and compel it to pay its portion?

83 (D. C.) 15 Fed. 162.

HUGHES,ADM. (2D ED.)-21

322

There are decisions to the effect that such a remedy does not lie.

In the Argus,34 in the District Court for the Eastern District of Pennsylvania, a dredge in tow of a tug collided with a steamer. The tug was operating the dredge under a contract between the owners by which the movements of the tug were controlled entirely by the tow. The owners of the dredge proceeded in New York against the steamer and tug for damages, but the tug was not served with process. and the dredge owners recovered their full damages from the steamer. Thereupon the steamer paid the damages, and libeled the tug in the District Court of Pennsylvania to compel her to pay her share. The District Court held that there was no direct remedy by the steamer against the tug; that, if she had any right at all, it must be by way of substitution to the lien which the libelant had asserted; and that in that special case the libelant was debarred from proceeding against the tug, as the management of the tug was solely in charge of his own officers. The opinion assumes, without discussion, that in the case of joint tort-feasors there is no recovery.

In the Mariska,35 in the District Court for the Northern District of Illinois, it was held that admiralty rule 59 was not intended to give a subsequent proceeding of this sort, and that, independent of that rule, it was a case of joint tortfeasors, as to which there was no contribution.

This was reversed on appeal, but the ground of the opinion in the appellate court was given rather as a right derivative by subrogation than as an independent right of action.

Both these cases assume that if, at common law, a loss is caused by negligence, it is a case of joint tort, as to which there is no contribution.

$151.

34 (D. C.) 71 Fed. 891.

35 (D. C.) 100 Fed. 500, reversed 107 Fed. 999. 47 C. C. A. 115.

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