Page:Federal Reporter, 1st Series, Volume 3.djvu/529

 522 FEDERAL REPORTER. �way of recoupment, respondents oan, as the damages arise out of the same transaction, extinguish a portion or ail the claim of the libellants; but theycan go no further. The court cannot pronounce in their favor for any sum in which their damages may exceed the amount of the libellants' demand. " Id. 315. See, also, Thatcher v. McCullough, Olcott, 365; Snow et al. V. Carruth et al. 1 Sprague, 324; Bear se v. Ropes et al. Id. 331. �It was conceded, upon the argument in the present case, that such was the practice or rule in cases in admiralty aris- ing upon the contract; but it was denied that the same prin- ciple or rule of practice can or ought to be, in reason or upon authority, applied in cases of collision where the right of action springs from a tort. Counsel for respondents cited the case of Lucas v. Steamer Swann, 1 Newberry, 158, where Judge Leavitt had occasion to consider what course ought to be taken in a case of collision, in which he determined that there was what is known as inscrutable fault. So far as the report of the case shows, the respondents filed no cross libel; they simply answered the original libel, alleged no injury to their own boat, but charged the entire fault upon the steamer, in whose behalf the libel had been filed. Finding that it was a case of inscrutable fault, the court decided that the dam- ages should be divided. But it further appeared that the respondent vessel was not injured, or, at least, her injury was 80 slight that no claim was set up for remuneration. It was, therefore, a case where the entire damages were sus- tained.by the vessel in whose behalf the libel was filed, and so a decree dividing the damages simply operated to reduce libellant's claim. one-half. In the opinion of the court it is said: "It appears satisfactorily that the injury resulting from the collision fell almost exolusively on the Fern. The injury to the Swan is so slight, respondents have set up no claim to remuneration. The resuit, therefore, of the decree will be that one-half of the actual loss or injury suatained by the Fern must be paid by the respondents." From this statement of facts it is apparent that the case does not meet the question we have here. ����