107 F. 989 | 7th Cir. | 1901
after the foregoing statement of the case, delivered the opinion of the court.
At common law there is said to be no contribution among wrongdoers. We need not inquire whether the rule is without limitation,
“These cases show bow firmly established in this country, by the highest authority, is the legal right in admiralty of the several vessels, liable for the same collision, to have the entire loss and damages apportioned equally among them, so far as such an apportionment can be made without injury to the libelant, whenever the parties are before the court, or whenever there is any fund which the court can lay hold of and make tributary to such an apportionment. The right of contribution is thus affirmed, it seems to- me, as a substantial legal right, and as such it is entitled to all appropriate and expedient remedies. In effect, while the libelant has a maritime lien upon each vessel in solido for his whole damage, so that both are liable' jointly and severally as principals, yet as between themselves the several vessels liable are virtually in the situation of sureties for each other for the payment by each of one-half of the 'damages; and each vessel, like other sureties in equity, has such a legal interest in the libelant’s enforcement of his lien upon the other that the court must, by its decree, carefully protect this interest whenever the parties are before it, and on failure to do so its decree will be reversed. From this well-settled recognition and enforcement of a right of contribution as a substantial legal right, when the parties are before the court, it would seem to result necessarily that, if only one vessel is sued, where another is equally liable, either an independent suit for contribution must be allowed to the latter [former?], or else the other vessel must be brought into the original cause, if that can be done without any substantial injury to the libelant. It would be a gross anomaly to say that the court must, by its decree, recognize and enforce a right of apportionment between several vessels defendant, if they all happen to be parties, but yet has no power to bring in one of them if absent, or to afford a several remedy against it. If the right of contribution depend wholly upon the libelant’s happening to sue both vessels instead of one, instead of being a legal right it would be but a mere accident in the cause, dependent solely upon the libelant’s option. But I cannot for a moment conceive either that the supreme court would guard and enforce with so much care a right which depended upon accident merely, or that so inlportant and valuable an interest as the right of apportionment in collision cases, where the pecuniary interests involved are usually large, — often amounting to tens or even hundreds of thousands of dollars,— can be suffered to depend upon the arbitrary choice of the libelant as to whether he will sue one or both vessels, or upon his mistake or misappre■hension of the facts in supposing only one vessel instead of both to- have been in fault; and still less upon his possible collusion with one of the vessels liable to throw the whole burden upon -the other.”
In that case the court, at the instance of the sole respondent, allowed process against another vessel, charged to be liable for the same injury, that she might be brought in, and contribution by both vessels be decreed. Subsequently, and on March 26, 1883 (112 U. S. 743), the supreme court promulgated rule 59 in admiralty, giving the right to the owner of the vessel proceeded against to implead any vessel contributing to the same collision, with a view to -such decree "as to law and justice shall appertain.” This rule was declared, as we think, in manifest recognition of the right of contribution, and to enable the courts of admiralty to impose the burden of loss upon all .by whom the burden should be borne. The rule did not and could not create a right of contribution. It recognized the right as pre-existing, and to enforce that right declared a practice by which the recognized right might be enforced by the respondent in the proceeding instituted by one injured by the wrong of two or more vessels; so that, before payment, and in promotion of justice, and for the speedy and complete determination of rights, contribution should be..decreed. It
In the tenth article of the libel it is propounded that a seaman on board of the Helena was drowned by reason of the negligent collision; that his administrator filed his libel in personam in the court below against the libelant here, as we understand the allegation,, for damages given by some state statute; and for one-half of the amount which the libelant was compelled to pay in that proceeding recovery is here sought. This article of the libel cannot be sustained. We have held in The Onoko (herewith decided) 107 Fed. 984, that no privilege or lien upon the vessel arises in such proceeding under the statutes of the states of Illinois and Wisconsin. We are not advised by