The Atlas

CROSS-APPEALS from the Circuit Court of the United States for the Eastern District of New York.

This is a libel against the steamboat 'Atlas,' by the Phoenix Insurance Company, for damages resulting from a collision between the 'Atlas' and the steam-tug 'Kate,' whereby a canal-boat, in tow of the latter, was sunk, and her cargo, of which the company was the insurer, was lost and destroyed.

The District Court found that the collision was caused by the mutual fault of the 'Atlas' and 'Kate,' and decreed that the libellant recover against the 'Atlas' one-half of the damages sustained.

Both parties appealed; and, the Circuit Court having affirmed the decree, they appealed here, and filed a written stipulation as follows:--

'1. The appeal taken by the claimants to this court from the decree of the United States Circuit Court for the Southern District of New York is waived, so as to bring up before the court, on the argument of this cause on the cross-appeals, only the question of law as to whether libellants are entitled to recover the whole amount of the damages, instead of one-half.

'2. The parties agree that the collision mentioned in the libel and proceedings in this cause occurred by the mutual fault of the steamboats 'Atlas' and 'Kate.'

'3. The libellants waive and abandon the assignment of error, and the claim that the decree of the Circuit Court should be reversed, on the ground that the 'Atlas' only was in fault; and rely only on the assignment of error, that the decree should have been for the whole amount of the damages sustained by them, instead of for only a moiety thereof; and the only question to be submitted to the court is the question of law, whether the 'Atlas' is liable for the whole amount of libellants' damages.'

Mr. W. R. Beebe for the claimants.

The libellant having failed to make the 'Kate' a party, cannot hold the 'Atlas' responsible for more than one-half of the damages.

The libellant, however, stands in no better position than the 'Kate' herself. It is a rem liability, and not a personal claim or right.

Had it been decided that the canal-boat which held the cargo was in fault, and contributed to the collision, then the decisions are numerous both in the admiralty courts of England and in this country as to the limit of the liability of the 'Atlas.'

The reason is obvious; the owners of the cargo choose their boat, and repose confidence in the officers and crew that the enterprise will be properly conducted. This is especially true when the latter must rely upon other motive power for locomotion.

This reliance upon other motive power falls as much within the scope of the employment of the canal-boat, by the owner of the cargo, as would her navigation by sails, if she had them, or steam, if that was her propelling power. To hold otherwise would seem to involve the question within the character of his employment, and the necessities of his vessel, of the master of the canal-boat to employ motive power.

This employment would make the motive power as much the agent of the shipper as the canal-boat and its crew would be.

It is hard to see where the distinction exists, if there is any.

If these positions are correct, then, clearly, the cargo holds no better position to the collision than does the 'Kate.' Hay v. La Neve, 2 Shaw's Appeal Cases, 395; The Bonita, The Alfred, The Jose Maria, all cited in The Milan, 1 Lush. 388; The Hasbrouck, 5 Ben. 244.

The power and jurisdiction of the admiralty are peculiar, and a court of common law does not possess them.

At common law, contributory negligence defeats the right of recovery. In admiralty it only calls upon the court to apportion the damages between the faulty vessels.

This necessity involves the power to declare what vessels are in fault, where the fault lies, and to apportion the damages.

This duty is just as incumbent upon the court when there is contributory negligence as it is to decide the case at all.

It follows, as an equal necessity, that whether all the vessels are before the court or not, the power and duty of the court are equally imperative to declare where the fault lies, and apportion the damages.

From these positions it follows that each vessel, whether before the court or not, is equally bound to bear its share or portion of damages. The libellant cannot shield himself from the consequences of making the 'Atlas' the sole party, by claiming that any vessel before the court may, under certain circumstances, be liable for more than that share or portion.

The power of apportionment is peculiar. It is sui generis in the admiralty courts, and has no recognition in the courts of common law. We submit that its fair intent and the principles involved in it make a several and not joint liability; were not this so, the whole doctrine must necessarily fall to the ground.

The power to apportion necessarily involves that of determining the extent of the liability of each. The court is not bound to apportion equally. It has the power to determine not only who are in fault, but the extent of such fault, and the amount which each must contribute.

The acts of Congress have limited the liability of the owner to the value of his vessel. When the court has fixed the extent of his contributory guilt, it would be a harsh rule, that, because his vessel happens to be of greater value than that of his co-trespasser, he must also pay for the wrongs of the latter. This would virtually abolish the law of apportionment, and bring into full force the common-law doctrine.

The establishment of the law, that the court can only deal with the vessel actually seized, and hold it solely liable for the whole damages, upon the idea of all being joint trespassers, would leave the victim entirely in the hands of the libellant; and, if there were really ten offending vessels, it might perhaps be that one least in fault is chosen because it happens to be the most valuable, or is proceeded against from even more selfish motives.

This would defeat the whole object and purpose of the law of apportionment.

Mr. William Allen Butler for the libellants.

The court below erred in limiting the recovery of libellants to one-half the value of the cargo destroyed by the collision. Under the circumstances, they were entitled to recover their entire loss from either of the two vessels which were adjudged to be mutually in fault in causing it.

The owners of the cargo of the canal-boat in tow of the 'Kate' were innocent parties, and in no way responsible for the collision. They had no control over the movements of either of the steam-tugs, nor were the master and crew of either of those vessels their agents or servants. The cargo stood in the same relation to the two steam-tugs, by whose concurring negligence it was destroyed, as that of a passenger lawfully on the canal-boat or on either of the steam-tugs at the time of the disaster, who, without fault of his own, sustained personal injuries by the collision. The Milan, 1 Lush. 388; The Alabama and The Game-cock, 92 U.S. 695.

Upon the facts of this case, the owners of the cargo could at common law have proceeded against the owners of either offending vessel, and recovered the whole amount of their damages. An innocent party, injured by the co-operative negligence of several persons, can sue them jointly or severally, and recover from either compensation for the injury done by all. Guille v. Swan, 19 Johns. 381; Chapman v. New Haven R. R. Co., 19 N. Y. 341; Webster v. Hudson River R. R. Co., 38 id. 260; ''Arctic Ins. Co. v. Austin'', 10 N. Y. Sup. Ct. (2 Hun) 195; Colegrove v. N. Y. & N. H. R. R. Co., & Harlem R. R. Co., 20 N. Y. 292.

The same rule prevails in admiralty. The New Philadelphia, 1 Black, 62.

The common law creates a joint and several liability, not because the injury is the result of a joint act implying a common design or intent to produce the injury, but because by a single and forcible act, which would not have happened except by the concurring negligence of two parties, an injury has been done to an innocent party.

That rule must also obtain in the courts of admiralty. This is matter of right, in respect to which the rule of admiralty apportioning damages equally between the parties mutually at fault does not apply. That rule is one of limitation and distribution of damage among and between wrong-doers, as respects themselves. It is one, and hardly one, of equity, because it imposes an equal contribution on the ships in fault, without regard to their relative value or to the degree of blame imputable to either. It is properly styled by Chancellor Kent, following Cleirac, a rusticum judicium, by which an arbitrary rule is applied as the best method of disposing of cases in which the precise measure of fault is either inscrutable or not ascertainable with accuracy. 3 Kent's Com., p. 313 (11th ed.). See Hay v. Le Neve, 2 Shaw's Scotch Appeals, 395.

It certainly has no proper application to the case of an innocent sufferer. Justice requires that his wrong shall be redressed without reference to an adjustment of the relative degrees of blame or responsibility of the wrong-doers as between themselves, or to their ultimate liability to each other for contribution.

The Milan, 1 Lush. 388,-the only reported case in which it has been attempted to impose the admiralty rule of equal apportionment, as between wrong-doers, upon an innocent party, by limiting his recovery in a suit against one of two offending vessels to a moiety of the damage done by both,-has been disapproved by this court. The Alabama and The Game-cock, supra; The D. S. Gregory, 9 Wall. 513.

MR. JUSTICE CLIFFORD delivered the opinion of the court.