Page:Federal Reporter, 1st Series, Volume 3.djvu/536

 KBEBT V. eOnOONiElB BEUBEN DOUD. 529 �The supreme court, on appeal, (19 Wall. 125,) held that both vessels "were guilty of fault which contributed to the collision. The claimants, not having alleged in their answer that they had sustained any damage by reason of the collision, on pres- entation of the mandate of the supreme court moved for leave to amend their answer in that particular. Judge Woodruff, in bis opinion, says: "Upon the decision made in this cause by the. supreme court it is altogether just that the damages sustained by the Pennsylvania should be brought into the apportionment which, by the rules of admiralty, fol- lows when both vessels are guilty of fault which contributes to the disaster. I regard the opinion of the supreme court in the case of The Sapphire, 18 Wall. 51, as a plain recognition of the competency of this court to allow the owners of the Pennsylvania to bring their damages to the attention of the court, in this stage of the proceedings, with a view to includ- ing them in such apportionment. It is just that it should be 80. The mandate directs proceedings here in conformity to the opinion. The opinion finds facts upon which the dam- ages should be divided, [that is, that both vessels were in fault;] but the privilege now given should not disturb the proceedings in any other respect, nor work any disadvantage to the libellants beyond the ascertainment and ailowance of those damages in the apportionment. On those terms and conditions let the answer be amended by an averment that the Pennsylvania was injured by the collision mentioned in the libel ; and let an order of reference be entered to ascer- tain the amount of sueh damages. On the coming in and confirmation of the report, such damages will be brought into the apportionment with the damages already found to have been sustained by the libellants." Id. 68. This was a case like that of The Sapphire, in which no cross libel was filed. �Independent of authority, I discover no good and sound rea- son supporting the view taken of the question here involved by coxmsel for libellants. It is true that the present case is one of collision. The right of action, therefore, springs from a tort ; but the claims of both parties also spring from one end the same transaction; and in considering the principle �v.3,no.9— 34 ����