delivered the opinion of the court.
The question now presented is whether, the new decree which t-hé Circuit Court has made conforms to our mandate. Our mandate was not an order tо take further proceedings in the case, in conformity with the opinion of this court (as was directed in The Schooner Catharine † ), or to adjust the loss upon the principles stated in our opinion (as was directed in Cushing et al. v. Owners of the Ship John Frazer et al.), ‡ but it was specially to еnter a decree in conformity with the *56 opinion of this court. Of what damаges did we order an equal division ? There were no others asserted or claimed than those sustained by the libellant. We do not say that a cross-libel is always necessary in a case of collision in order to еnable claimants of an offending vessel to setoff or recoup the damages sustained by such vessels, if both be found in fault. It may, however, well bе questioned whether it ought not to appear in the answer that therе were such damages. It is undoubtedly the rule in admiralty that where both vessels аre in fault the sums representing the damage sustained by each must be addеd together and the aggregate divided between the two. • This is in effect deducting the' lesser from the greater and dividing the remainder. But this rule is appliсable only where it appears that both vessels have been injured. If pne in fault has sustained no injury, it is liable for half the damages sustained by the other, though that other was also in fault. And, so far as the pleadings show, that is thе case now in hand. But, without deciding that the claimants of the Sapphire were not at liberty to show that their ship was damaged by the collision, аnd to set oft* those damages against the damages of the libellant, it must still, we think, be held- they have waived any such claim. If bur mandate was not a direсtion to enter a decree for one-half the damages of thе libellant, if its -meaning was that a decree should be made dividing the aggregate of loss sustained by both vessels, which may be conceded, it was the duty of the respondents •to assert and to show that the Sapphire had been injured. This they made no attempt to do. When the cause went down thеy neither asked to amend their pleadings, nor to offer further proоfs, nor to have a new referente to a commissioner. So far аs the record shows, they set up no claim, even then,-or at any time before the .final decree, that there were any other damages than those which the libellant had sustained. It is not competent for them to make such a claim first in this court. We cannot say, therefore, the court below did not decree iu accordance with our mandate.
The appellants further complain that it was erroneous to *57 allow the libellant his costs in the District and Circuit Courts, deducting therefrom the costs allowed them by'this court, i. e., the costs of the' reversal of the former decree. We do not perceive, however, in this any such errоr,as requires our interposition. Costs in admiralty are entirely under the cоntrol of the court. Tbéy are sometimes, from equitable considerations, cienied to the party who recovers bis demand, and they 41'e somеtimes given to a libellant who fails to recover anything, when he was misled to commence the suit by the act of the other party. * ' Doubtless they generally follow the decree, but circumstances of equity, of hardship, of oppression, or of negligence induce the court to dеpart from that rule in a great variety of eases. † In the present сase, the costs allowed to the libellant were incurred by him iu his effort tо'recover what has been proved to be a'just demand, and a denial of them, under the circumstances of the case, would, we think, be inequitable.
Decree affirmed.