Opinion of the Court.

pending at the time of the collision mentioned in the pleadings in this cause, the sum of $28,694.95, in case of non-payment thereof by the claimants and their surety on appeal to

this court.

"And that said libellants, Howard M. Hanna and George W. Chapin, have execution for the damages and costs to them adjudged and decreed by the judgment and decree of this court, against said claimants, James Beatty, Henry Beatty, William Beatty, and John D. Beatty, and the Detroit Dry Dock Company, their surety on the bond or stipulation given by said claimants on appeal to this court, for the aforesaid sum of $28,694.95, and said further sum of $3395.50, as interest thereon, and for the costs of said libellants in this court, to be taxed.

"And it is further ordered, adjudged, and decreed, that, for the recovery of the damages decreed to libellants by the decree of the District Court and of this court, libellants have execution against James H. Beatty, Henry Beatty, William Beatty, and John D. Beatty, claimants, and said Frederick B. Sibley, their surviving surety on the bond or stipulation for the appraised value of said steamer Manitoba and the freight pending as aforesaid, in and for the amount of $28,694.95, the appraised value thereof as aforesaid, provided proceedings shall be had on the bond or stipulation given on appeal to this court, by said claimants of said steamer Manitoba, before recourse shall be had for collection on the bond or stipulation filed in the District Court for the appraised value of the steamer Manitoba and her freight pending at the time of said collision."

The claimants of the Manitoba have appealed to this court from so much of the decree of the Circuit Court as decrees the Manitoba to be in fault for the collision, and from so much of it as awards to the original libellants $32,090.45, "without any deduction or allowance therefrom to these appellants on account of injuries occasioned by said collision to the said steamer Manitoba." The main question of law arising on the record is as to the liability of the Manitoba.

The Circuit Court finds, as one of its conclusions of law,

Opinion of the Court.

"that the Manitoba was in fault in ignoring the fact that the Comet was approaching under a port wheel, and that the courses of the two vessels were convergent, and involved risk of collision; and in failing to take proper precaution in time to prevent the collision which afterwards occurred." The expression "risk of collision," found in the third conclusion of law, is not contained in the findings of fact proper; and it is, therefore, insisted, on the part of the Manitoba, that it is not found as a fact that the courses of the two vessels involved risk of collision, by the movement of the Comet under a port wheel, in her approach to the Manitoba, prior to the time when she put her wheel hard-a-port and crossed the bows of the Manitoba. But we think this is not a correct view. The findings of fact state, that, when the vessels were from one and a half to two miles apart, the Manitoba had the Comet's green light about three-quarters of a point on her starboard bow, and that the Manitoba then starboarded her wheel half a point and continued her course without change until just before the collision. This starboarding would bring the green light of the Comet further on the starboard bow of the Manitoba; but, in the meantime, the Comet ported her wheel half a point; and it is not found that the green light of the Comet continued to open wider to the view of the Manitoba. On the contrary, the findings state, that the fact that the two vessels were moving on nearly parallel, opposite, but slightly converging, lines, was apparent to the officers of both vessels for some considerable time before the Comet ported her wheel, and displayed her red light to the Manitoba, and suddenly sheered across the course of the Manitoba. The findings also state, that, from the relative courses of the two vessels, and the bearing of their lights, there was manifest uncertainty as to the intentions of the Comet, and that this called for the closest watch, and the highest degree of diligence, on the part of the Manitoba, with reference to the movements of the Comet, and that it behooved those in charge of her to be prompt in availing themselves of any resource to avoid, not only a collision, but the risk of such a catastrophe. The findings further state, that neither of the vessels sounded any

Opinion of the Court.

signal of the whistle indicating the side it intended or desired to take, nor did either of them reverse its engine or slacken its speed until the collision was inevitable; and that, if the requisite precautions, meaning the precautions just mentioned, had been observed by both or either of the vessels, the collision would not have happened.

In addition to the facts thus found, the answer of the claimants of the Manitoba to the original libel charges as a fault in the Comet, that she did not stop and reverse, but kept up a reckless speed in her approach to the Manitoba, "when there was risk of collision." This allegation is repeated in the crosslibel of the owners of the Manitoba. If there was risk of collision in the approach of the Comet towards the Manitoba prior to the sudden sheer of the Comet, it was a risk affecting the Manitoba equally with the Comet, and imposing upon her the same duties of slackening her speed, or, if necessary, stopping and reversing, under Rule 21 of § 4233 of the Revised Statutes, which it imposed on the Comet.

On the facts, the Circuit Court found, as a conclusion of law, and, we think, correctly, that the Manitoba was in fault in not indicating her course by her whistle, and in not slowing up, and in failing to reverse her engine until it was too late to accomplish anything thereby.

The facts in this case are very much like those in The Stanmore, 10 P. D. 135, where one of two steam vessels, under like circumstances with those of the Manitoba, was held in fault for not stopping and reversing, although the collision was mainly caused by the fault of the other vessel, which was also condemned.

A few words are necessary on the question as to whether, in the amount decreed to the original libellants, by the Circuit Court, allowance is made to the owners of the Manitoba on account of the damages to her. The findings of fact state that the owners of both vessels are entitled to the benefit of a limitation of liability, and that the owners of the Comet are entitled to recover from the owners of the Manitoba and their sureties on appeal, by reason of the proceedings for a limitation of liabilty, only $28,694.95, and interest thereon

Opinion of the Court.

from March 7, 1882, the date of the decree of the District. Court. The decree of the Circuit Court states that the value of the Manitoba and her freight pending at the time of the collision was duly appraised, in the proceedings for a limitation of liability, at the sum of $28,694.95, and that she was duly bonded for that sum, "which sum," the decree states "is less than one moiety of the damages occasioned by said collision." Those damages, with interest at six per cent per annum from the date of the collision to the date of the decree of the Circuit Court, amounted to $93,288.16. One-half of that is $46,644.08. On the ground that the amount of the appraised value of the Manitoba and her pending freight was "less than one moiety of the damages occasioned" by the collision, the Circuit Court adjudged that the owners of the Comet should recover from the claimants of the Manitoba, and from their surety on appeal, the Detroit Dry Dock Company, the sum of $28,694.95, with interest thereon from the 7th of March, 1882, the date of the decree of the District Court, and should recover from the claimants of the Manitoba and the surviving surety on the bond given in the District Court for the appraised value of the Manitoba and her pending freight, the sum of $28,694.95, in case of non-payment thereof by the claimants of the Detroit Dry Dock Company.

We had occasion to consider this subject at length in the case of The North Star, 106 U. S. 17, in which Mr. Justice Bradley delivered the opinion of the court. In that case there was a collision between two steam vessels, the Ella Warley and the North Star. The Circuit Court held both vessels in fault, the Ella Warley being sunk and lost and the North Star damaged. There was a libel in rem against the North Star and a libel in personam against the owners of the Ella Warley. The Circuit Court rendered a decree in favor of the owners of the Ella Warley for so much of the damage to her, (it being greater than that sustained by the North Star,) as exceeded one-half of the aggregate damage sustained by both vessels. The owners of the Ella Warley had claimed the benefit of a limitation of liability. On appeals to this court by both parties, it was contended on behalf of the Ella Warley,

Opinion of the Court.

that, as she was a total loss, the half of the damage to her must be paid in full, without any deduction for the half of the damage sustained by the North Star. This court, after a full examination of the subject, held that the proper rule was, that, as each vessel was liable for one-half of the damage done to both, if one suffered more than the other, the difference should be equally divided, and the one which suffered least should be decreed to pay one-half of such difference to the one which suffered most, so as to equalize the burden. In other words, as both parties were in fault, the damage done to both vessels should be added together in one sum and equally divided, and a decree be pronounced in favor of the owners of the vessel which suffered most, against those of the vessel which suffered least, for one-half of the difference between the amounts of their respective losses. The House of Lords established the same rule in Stoomvaart Maatschappy Nederland v. Penins. & Oriental Steam Nav. Co., 7 App. Cas. 795.

Applying this rule to the present case, the amount of the aggregate damage to both vessels, computed with interest to the date of the decree of the Circuit Court, was $93,288.16; being for the Comet, $85,818.16, and for the Manitoba, $7470.00. One-half of this was $46,644.08. The loss of the owners of the Comet and of her cargo and pending freight was greater than that of the owners of the Manitoba by the sum of $78,348.16. One-half of that difference was $39,174.08. That was the amount of the liability of the Manitoba to the Comet, at the date of the decree of the Circuit Court, on a division of the damages, after a proper allowance to the Manitoba for the damage to her, and without reference to the limitation of liability. As the amount of the bond of the Manitoba, $28,694.95, with interest at six per cent per annum, from the date of the decree of the District Court to the date of the decree of the Circuit Court, was only $32,090.45, the Manitoba had the proper limitation of liability allowed to her by the decree of the Circuit Court, and was entitled to that limitation.

Decree affirmed.