crew as to the movements of their own vessel, rather than the statements coming from the crew of the other vessel.11

$6941. Presumption of Negligence from Failure to Stand By After Collision. The navigation rules of the United States declare that, if the master in charge of a vessel in a collision fails to stand by the other until he ascertains if she is in need of assistance, the collision will be deemed to have been caused by his wrongful act, neglect or default.15 The effect of the provision is to put the burden on the vessel failing to stand by to show that she was not in fault for the collision.16

"The Eagle Point, 120 Fed. Rep. 449; s. c. 56 C. C. A. 599; rev'g s. c. 114 Fed. Rep. 971; The Dorchester, 121 Fed. Rep. 889; The Thornhill, 121 Fed. Rep. 889.

"Act Cong. Sept. 4, 1890, ch. 875. See The Kenilworth, 64 Fed. Rep. 890. A schooner which has come in collision with another vessel will be held in fault for the collision, where she hears a cry of distress and for boats, and can see for a mile or more the sails of a vessel which suddenly disappears from the water, and assumes that she is excused from

doing more than simply to wear ship: The Robert Graham Dunn, 63 Fed. Rep. 167. A steamer will be held not to have failed in her duty to stand by a sloop with which she has been in collision, in denying a request to tow the sloop into harbor because of the danger of her sinking, where she stands by to render assistance until the sloop proceeds into the harbor under her own sail; The General, 82 Fed. Rep. 830.

16 The Hercules, 80 Fed. Rep. 998; s. c. 42 U. S. App. 431.

6945. Cases where division of dam- 6949. What damages are included.

ages will be allowed.

6946. Rule where more than two

vessels are involved.

6947. Burden of proving mutuality

of fault where fault of one

is manifest.

6950. Rights of the cargo under the Harter act.

6951. Inevitable accidents.

§ 6944. Doctrine is Recognized Only in Admiralty Courts.-The admiralty courts administer a rule of contributory negligence unknown to common-law courts. In these courts the fact that the negligence of the injured person or vessel contributed to bring about the injury complained of does not prevent a recovery, but the loss will be divided between the vessels. The principle is applied in all cases of marine tort founded upon negligence and prosecuted in courts of admiralty, and is not confined solely to cases involving collision. The rule is without recognition elsewhere. At common law, if an action is brought by a vessel whose fault contributed to bring

1 The Alberta, 23 Fed. Rep. 807 (immoderate speed in fog); The Amboy, 22 Fed. Rep. 555 (defective lights on one vessel and want of lookout on other); The Aurania, 29 Fed. Rep. 98 (immoderate speed of one and failure of other to keep out of way); The B. & C., 18 Fed. Rep. 543; The Columbia, 92 Fed. Rep. 936 (vessel navigating near docks collided with vessel without lookout); The City of Greenville, 22 Fed. Rep. 347 (failure to give signals); The Haverton, 31 Fed. Rep. 5 3 (improper lights on one vessel, insufficient lookout on other); Johnson v. Johansen, 86 Fed. Rep. 886; s. c. 58 U. S. App. 104; 30 C. C. A. 675; The Paoli, 92 Fed. Rep. 944; s. c. 35 C. C. A. 97 (collision with vessel anchored in pathway of vessels, which could have been avoided); The S. B. Hume, 24 Fed. Rep. 296 (immoderate speed of one vessel in fog and failure of other to display

2

torch); The Sam Brown, 29 Fed. Rep. 650 (failure of both vessels to obey navigation rules applicable to meeting vessels); The Walleda, 64 Fed. Rep. 807 (want of proper watch on sailing-vessels); The Bolivia, 49 Fed. Rep. 169; s. c. 1 U. S. App. 26; 1 C. C. A. 221 (lack of fog-horn on one vessel and immoderate speed of other); Puget Sound &c. Co. v. Taylor, 2 Wash. 93; The Catherine, 17 How. (U. S.) 169; The Magenta, 2 Abb. (U. S.) 495; Wineman v. The Hiawatha, 7 Can. Exch. 446 (immoderate speed in fog); Petersfield V. The Judith Randolph, cited in Abbott on Sh. 231, 232; and in Hay v. Le Neve, 2 Shaw Sc. App. 395; The Celt, 3 Hagg. Adm. 328, n.; The Washington, 5 Jur. 1067; The Fiends, 4 E. F. Moo. 314, 322; The Seringapatam, 5 Notes of Cas. 61, 66; Vaux v. Salvador, 4 Ad. & E. 431; The Monarch, 1 Wm. Rob. 21.

2 Anderson v. The Ashebrooke, 44

about the catastrophe, the damages will not be divided, and neither vessel will be permitted to recover for the injuries so caused."

§6945. Cases where Division of Damages will be Allowed.—A division of damages will be allowed in courts of admiralty, first, where the fault is inscrutable; secondly, where there is no fault on either side; and thirdly, where both parties are guilty of negligence.* Under the first head are included those cases where the evidence is so conflicting or uncertain that the court cannot determine upon which vessel the real cause of the collision should be charged." Where the fault is mutual, it is not required that the faults of the vessels should be equal in degree; but this does not mean that the faults may be egregiously unequal,' nor allow a vessel guilty of willful fault. or intentional wrong to avail itself of the rule. If the damage is caused by the sole fault of one of the vessels, a division will not be allowed, and the vessel in fault will be liable for all the consequences of her negligence."

Fed. Rep. 124 (personal injuries); The Daylesford, 30 Fed. Rep. 633 (personal injuries); The Frey, 113 Fed. Rep. 1003 (personal injuries); Olson v. Flavel, 34 Fed. Rep. 477 (personal injuries). A longshoreman employed to load coal on board a steamship and injured while so employed, by falling from the steamer's bridge to her deck, partly through the negligence of the steamer's officers, is entitled in a suit in admiralty against the vessel for damages for such injury, to a decree for divided damages: The Max Morris, 137 U. S. 1; s. c. 34 L. ed. 586; 42 Alb. L. J. 516; 11 Sup. Ct. Rep. 29. Where a laborer seeking employment went on board a ship before it was ready to guarantee safety to strangers coming on board, and was injured by the falling of a derrick which the crew were rigging up, and which was negligently allowed to fall, the admiralty rule requiring damages to be divided when both parties are at fault was applied; the estimate of damages, however, including only expenses and loss of time: The Eddystone, 34 Fed. Rep. 925.

The A. W. Thompson, 39 Fed. Rep. 115. The admiralty rule of an equal division of damages in the case of collision between two vessels both in fault is not applicable in a maritime collision case submitted to the Court of Claims by special act providing for judgment, if it

affirmatively appears that the damages were caused by the negligence of the naval officers; but the common-law rule that if both are culpable, neither can recover, will be applied: St. Louis &c. Transp. Co. v. United States, 33 Ct. Cl. (U. S.) 251.

The David Dows, 16 Fed. Rep. 154; The Nautilus, 1 Ware (U. S.) 529; The Scioto, 2 Ware (U. S.) 360.

6

The Comet, 1 Abb. (U. S.) 451.

The David Dows, 16 Fed. Rep. 154; The Chattahoochee, 74 Fed. Rep. 899; Cannon v. The Potomac, 3 Woods (U. S.) 158.

'The Athabasca, 45 Fed. Rep. 651; Ralston v. The State Rights, Crabbe (U. S.) 22. A large, fast-sailing steamer is bound to act cautiously when overtaking a small, slow one; and, a collision having occurred between two steamers of this sort owing to the failure of the large steamer to act with such caution. a minor fault of the small steamer will not make a case for division of damages: Thomas v. The Great Republic, 23 Wall. (U. S.) 20.

Ward v. Dousman, 6 McLean (U. S.) 231; s. c. Newb. Adm. (U. S.) 236; The R. L. Maybey, 4 Blatchf. (U. S.) 88; The Sunnyside, 1 Brown Adm. (U. S.) 227.

§ 6946. Rule where More than Two Vessels are Involved.—Where all the vessels involved in a collision are in fault, the damages will be shared equally by all the vessels.10 In case a single vessel is injured by the fault of two other vessels, the damages will be apportioned between the two negligent vessels.11 Where two barges that were entangled, and practically one mass, drifted upon an anchored vessel, which made no effort to avoid the damage which was sustained by her, it was held that the anchored vessel should pay one-half the damages and the other half be divided between the two barges. 12 While each of two wrong-doers is primarily liable for half the damage to an innocent vessel from a collision, the latter, if unable to obtain the half charged against either, can compel the other to pay the whole.13 One who claims that a tow was in fault for a collision, and that it should share in the division of damages under the admiralty rule, must set out the claim in his libel.14

§ 6947. Burden of Proving Mutuality of Fault where Fault of One is Manifest.-One vessel concededly in fault for a collision must make clear and convincing proof of the fault of the other in order to make a case for apportionment of damages under the admiralty rule.15

§ 6948. Method of Apportioning Damages-Decrees.-Under the admiralty rule, where an innocent third person is injured by a collision between two vessels, and the fault of both vessels is clear, the admiralty court will adjudge each vessel liable for half the damages.15a

part of it might have been avoided by a different handling of the injured vessel after the injury was received, where those in charge exercised their best judgment, which was concurred in by the local pilot and tugmen: The City of Macon, 121 Fed. Rep. 686; s. c. 58 C. C. A. 434; aff'g s. c. 100d. Rep. 139.

10 The S. A. McCaulley, 116 Fed. Rep. 107; modifying s. c. 110 Fed. Rep. 227; The Brothers, 2 Biss. (U. S.) 104. Where one vessel becomes aware of a maritime fault on the part of another, and without order or invitation from the latter coöperates as a free agent in such fault, to the injury of the latter by collision with a third vessel, liability to the injured vessel cannot be denied, for the proper proportion of the damages and costs, on the ground that the first-mentioned vessel only aided in the commission of the fault of the vessel receiving the

injury: The S. A. McCaulley, 116 Fed. Rep. 107; modifying s. c. 110 Fed. Rep. 227.

11 The Alabama and The Gamecock, 92 U. S. 625; s. c. 23 L. ed. 763; rev'g s. c. 11 Blatchf. (U. S.) 482; The City of Hartford, 97 U. S. 323; s. c. 24 L. ed. 930; rev'g s. c. 11 Blatchf. (U. S.) 290; The Monitor, 3 Biss. (U. S.) 24.

12 The Anarly, 58 Fed. Rep. 794. 13 The Job T. Wilson, 84 Fed. Rep. 204.

14 Donnell v. Boston Towboat Co., 89 Fed. Rep. 757; s. c. 32 C. C. A. 331.

15 Ward v. The Dousman, Newb. Adm. (U. S.) 236; The Mexico, 84 Fed. Rep. 504; s. c. 55 U. S. App. 358; 28 C. C. A. 472; The Victory and The Plymothian, 168 U. S. 410; s. c. 42 L. ed. 519; 18 Sup. Ct. Rep. 149.

1a The Oregon, 45 Fed. Rep. 62; s. c. 14 Sawy. (U. S.) 442.

As between two vessels in fault for a collision with each other, the court enters a decree in favor of the owners of the vessel which suffered most against the vessel which suffered least for an amount equal to one-half the difference between their respective losses.16 Where the action by an innocent vessel is against two other vessels equally in fault, the decree should divide the damages equally between the vessels at fault, any balance not collectible by the libelant against one being collectible against the other;17 but the innocent vessel is not required to proceed against both vessels, but may recover her damages against either vessel in fault.18 The decree against the two vessels should permit a recovery by either vessel of such part of the other's apportionment of the damages as it fails to pay.19

$6949. What Damages are Included.-The admiralty rule apportioning the damages where both vessels are in fault intends that the mass of damages to be divided shall include all the legitimate damages suffered by both vessels from the catastrophe. These damages will include cost of repairs and demurrage while the vessel is undergoing repairs;20 the amount found necessary to restore the vessel to her condition before the collision, although it may be necessary to use new and more valuable material;21 towage or dockage if made necessary solely by the collision;22 personal effects of seamen,23 and the amount expended by the owners in attempting to raise the vessel with a view of ascertaining what may be saved from the wreck.24 The damages will not include an amount claimed for disorganization of business on account of the delay, as such an item is not capable of definite proof.25 Interest is not recoverable except from the date of the final decree.26 Costs, though within the discretion of the court, will usually be equally divided.27

"The Oregon, 45 Fed. Rep. 62; 8. c. 14 Sawy. (U. S.) 442; The Job T. Wilson, 84 Fed. Rep. 204; Leonard v. Whitwill, 10 Ben. (U. S.) 638; The Manitoba, 122 U. S. 97; s. c. 30 L. ed. 1095; The North Star, 106 V. S. 17. If only one vessel is injured, one-half the damages may be recovered: The Sapphire, 18 Wall. (U. S.) 51; s. c. 21 L. ed. 814; The Kolon, 9 Ben. (U. S.) 197.

"The Sterling, 106 U. S. 647. "The British Queen, 89 Fed. Rep. 1003; The Troy, 28 Fed. Rep. 861; The Atlas, 93 U. S. 302; s. c. 23 L. ed. 863; The Juniata, 93 U. S. 337; 8. c. 23 L. ed. 930.

The Shubert v. The Einar, 45 Fed. Rep. 497; The Alabama, 92 U. S. 695.

20

Memphis &c. Packet Co. v. H. C. Yeager Transp. Co., 10 Fed. Rep. 395; s. c. 3 McCrary (U. S.) 259.

21 The Fanny Tuthill, 17 Fed. Rep. 87.

22 The Fannie Tuthill, 17 Fed. Rep. 87; La Champagne, 43 Fed. Rep. 444.

2 Leonard v. Whitwill, 10 Ben. (U. S.) 638; The City of New York, 25 Fed. Rep. 149.

24 The Oneida, 84 Fed. Rep. 716. 25 The Glengogle, 122 Fed. Rep. 503.

26 The Itasca, 117 Fed. Rep. 885.

27 Lennox v. Winisimmet Co., 1 Sprague (U. S.) 160. Where, on a libel for collision, both vessels are held in fault, and, libelant's vessel alone having been injured, no cross