3 F. 520 | E.D. Wis. | 1880
A libel was heretofore filed in this court by libellants, as the owners of the schooner Arab, to recover damages sustained by that vessel in a collision with the schooner Reuben Doud, which occurred while the two vessels were lying at the.port of Racine during a storm. The libel charged the whole fault upon the respondent vessel. An answer was interposed which controverted the material allegations of the libel, and set out a state of facts showing that the collision was occasioned wholly by the fault of the Arab. There was also a general allegation in the answer that the Doud was injured in the collision, but the manner in which she was injured, and the particulars and extent of her injury, were not alleged. No cross libel was filed in behalf of the Doud.
The case came to a hearing upon the proofs, and the court found both vessels in fault, ordered a division of the damages according to the practice in such cases, and the usual order of reference was made to a commissioner, who was directed to ascertain and report the damages. It was not specifically stated in that order that the damages sustained by each vessel should be ascertained, and because of the general language of the order it has been a question with the commissioner and the parties litigant whether it was intended that proof should be taken showing the damage sustained by both vessels, or whether it should be limited to the damages sustained by the Arab. Testimony was taken by the commissioner on
It is well settled, in a series of adjudicated cases, that in actions in rem or in personam, in admiralty, which are founded upon contract, tho respondent may avoid an obligation which his contract, in terms, imposes upon him, by showing that the contract has not been duly performed by the other party thereto, who seeks to enforco it; and that, by way of recoupment, the damages which have been sustained by a respondent in such case may be applied in reduction of tho damages which the libellant would otherwise be entitled to recover.
The case of Kennedy et al. v. Dodge et al. 1 Ben. 311, is, perhaps, a leading ease upon the question as thus presented. It was there held that, in a suit for freight money, the damages to the cargo could he recouped under an answer sotting up the injury to the cargo as a defence, but that the respondents could not have an affirmative decree in their favor if their damages exceeded the freight. Judge Shipman says: “That the damages suffered by the respondents can be recouped from the freight money which the libellants would otherwise recover, appears to be settled by authority. By
It was conceded, upon the argument in the present case, that such was the practice or rule in eases in admiralty arising upon the contract; but it was denied that the same principle 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 damages should be divided. But it further appeared that the respondent vessel was not injured, or, at least, her injury was so slight that no claim was set up for remuneration. It was, therefore, a case where the entire damages were sustained 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 exclusively on the Fern. The injury to the Swan is so slight, respondents have set up no claim to remuneration. The result, therefore, of the decree will be that one-half of the actual loss or injury sustained 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.
The expression “affirmative damages” is several times used in the opinion in considering what was the status of respondent with reference to the original action after the cross libel had been dismissed, but I understand the court, in incidentally discussing the effect of filing a cross libel, to be speaking of a case where the party is seeking not simply to reduce or extinguish the damages which the libellant would be otherwise entitled to recover, but to recover affirmative damages; that is, damages which may be in excess of any amount which the libellant would be entitled to claim. As the court understood counsel upon the argument, no reason was urged why the principle of recoupment might not be recognized and applied in a case like the present, except that such application was wholly unsanctioned by authority. Herein I think counsel is mistaken. In my examination of the question I have come upon some cases, not referred to by counsel, which very closely bear upon the identical question here involved, and in the very aspect in which it is here ■presented.
In this connection the case of The Seringapatam, 3 Wm. Rob. 38, is worthy of attention. The facts of the case are stated by Dr. Lushington in the opinion of the court,andaré as follows: “ The question in this case arises under somewhat peculiar circumstances. Upon the first of May, 1846,
It thus appears that, although, in view of the peculiar attitude of the case, Dr. Lushington refused to change the form of the original reference, or to depart from the original decree, he nevertheless required the owner of the Harriet to submit to the deduction of a moiety of the damages sustained
I refer next to the case of The Sapphire, 18 Wall. 51. This was a case where the emperor of France filed a libel in the district court of California against the ship Sapphire, alleging that a collision had occurred between that vessel and the Earyale, a vessel belonging to the French government, by which the latter was damaged. The libel charged the whole fault upon the respondent vessel. The owners of the Sapphire, in their answer, charged the fault upon the Euryale. No cross libel was filed. The answer, though denying any fault on the part of the Sapphire, and alleging that whatever damage was done was duo wholly to the fault and negligence of the libellant’s vessel, made no averment that any Injury had been sustained by the Sapphire. Thus the case upon the pleadings was like that at bar. The case proceeded to a hearing, and there was an interlocutory decree in favor of libellant, a reference to a commissioner to ascertain and compute the damages, and a final decree in favor of libellant for $15,000. That decree was affirmed in the circuit court, and the case was then appealed to the supreme court. That court held both vessels in fault, and that the damages ought, therefore, to he equally divided, and sent down a mandato directing that a decree should be entered in the circuit court in conformity with such opinion. When the case reached the circuit court its previous decree was reversed, and it was decreed that the libellant recover against the Sapphire and her claimants the sum of $7,500, the same being one-half of the damages decreed in favor of the libellant and against the claimants. From that decree the owners of the Sapphire again appealed to the supreme court, alleging error in the proceedings of the circuit court, for the reason that the damages sustained by respondent were not taken into consideration. Upon that appeal Justice Strong, expressing the opinion of the court, says:
“The question now presented is whether the new decree
The last decree of the circuit court was 'affirmed, and, as. is evident, upon the ground that the claimants had not, after the return of the ease to the circuit court subsequdnt to the first appeal, asserted or set up in proper form this claim for damages, and by omission so to do had waived such claim.
In this connection I refer to the case of The Pennsylvania, 12 Blatchf. 67. In this case the circuit court, affirming the decision of the district court, decreed in favor of libellants.
Independent of authority, I discover no good and sound reason supporting the view taken of the question here involved by counsel for libellants. It is true that the present ease is one of collision. The right of action, therefore, springs from a tort; but the claims of both parlies also spring from one and the same transaction; and in considering the principle
As is apparent from what is remarked by the supreme court in the case of The Sapphire, it is probably necessary that respondent’s answer should allege the injuries which the Doud sustained, and that there should be an appropriate prayer for relief. The present answer is defective in that respect. I think it quite evident, from the opinion of the court in the case of The (Sapphire, that even after that case went downfrom the supreme court it would not have been too late for the respondents in that case to have asked the court below for leave to amend their answer, and for such an order of reference as would have permitted an ascertainment of the damages sustained by both vessels. In the case at bar there has been an interlocutory decree adjudging both vessels in fault, and from the terms of the order of reference it may have been supposed that only the damages sustained by the Arab were to be taken into