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United States: Supreme Court Decision in United states v. Reliable Transfer co. Inc. (Proportionate Division of Damages in Maritime Collision)*

Published online by Cambridge University Press:  04 April 2017

Extract

The admiralty rule of divided damages, whereby the property damage in a maritime collision or stranding is equally divided whenever two or more parties involved are found to be guilty of contributory fault, regardless of the relative degree of their fault, held replaced by a rule requiring liability for such damage to be allocated among the parties proportionately to the comparative degree of their fault, and to be allocated equally only when the parties are equally at fault or when it is not possible fairly to measure the comparative degree of their fault.

Type
Judicial and Similar Proceedings
Copyright
Copyright © American Society of International Law 1975

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Footnotes

*

[Reproduced from the text provided by the Supreme Court of the United States.]

References

1 The operation of the rule was described in The Sapphire, 85 U. S. (18 Wall.), 51, 56:

“It is undoubtedly the rule in admiralty that where both vessels are in fault the sums representing the damage sustained by each must be added together and the aggregate divided between the two. This is in effect deducting the lesser from the greater and dividing the remainder If one in fault has sustained no injury, it is liable for half the damages sustained by the other, though that other was also in fault.”

Similarly, in The North Star, 106 U. S. 17, 22, the rule was thus stated:

“[A]ccording to the general maritime law, in cases of collision occurring by the fault of both parties, the entire damage to both ships is added together in one common mass and equally divided between them, and thereupon arises a liability of one party to pay to the other such sum as is necessary to equalize the burden.”

See also, e. g., White Oak Transportation Co. v. Boston, Cape Cod & New York Canal Co., 258 U. S. 341; The Eugene F. Moron, 212 U. S. 466.

It has long been settled that the divided damages rule applies not only in cases of collision between two vessels, but also in cases like this one where a vessel partly in fault is damaged in collision or grounding because of the mutual contributing fault of a nonvessel party. Atlee v. Northwestern Union Packet Co., 88 U. S. (21 Wall.) 389 (barge struck pier because of mutual fault of barge and of pier owner); White Oak Transportation Co. v. Boston, Cape Cod & New York Canal Co., 258 U. S. 341 (steamship ran aground in canal because of joint negligence of steamship and canal company). See also G. Gilmore & C. Black, The Law of Admiralty § 7-17, 522-523 (2d ed. 1975).

2 The Government's petition for certiorari presented the single question whether the admiralty rule of equally divided damages should be replaced by the rule of damages in proportion to fault. The respondent did not file a cross-petition for certiorari, but it now argues that the Government was solely at fault and requests an increase of the judgment in its favor to the full amount of its damages. However, absent a cross-petition for certiorari, the respondent may not now challenge the judgment of the Court of Appeals to enlarge its rights thereunder. Morley v. Maryland Casualty Co., 300 U. S. 185, 190; United States v. American Railway Express Co., 265 U. S. 425, 435. Moreover, even if it could be argued that respondent's challenge of the factual findings could be taken as an argument in support of the judgment, see Stern, When to Cross-Appeal or Cross-Petition—Certainty or Confusion?, 87 Harv. L. Rev. 763, 774 (1974), the findings of fact with respect to comparative negligence were concurred in by both the District Court and the Court of Appeals, and the respondent could not in this case meet its heavy burden under the “two-count rule.” Graver Mfg. Co. v. Linde, 336 U. S. 271, 275. See Berenyi v. Immigration Director, 385 U. S. 630, 635.

3 Most commentators have traced the rule back to Article XIV of the Laws of Oleron, promulgated in about 1150 A. D., which provided that in cases of collision between a ship under way and another at anchor, the damages would be divided equally between the owners of the two vessels, so long as the captain and crew of the ship under way swore under oath that the collision was accidental. See, e. g., Marsden, 4 British Shipping Laws, Collisions at Sea §119 (11th ed. 1961). See also Staring, Contribution and Division of Damages in Admiralty and Maritime Cases, 45 Calif. L. Rev. 304 (1957).

Other maritime nations enacted provisions similar to Article XIV during the same period, with slight variations in the scope of the rule and the principle of division. Marsden, supra, §§ 119-125. “The principle . . . underlying the rule seems to have been that collision was a peril of the sea—a common misfortune to be borne by all parties, either equally or ratably according to their interests at risk.” Id., §140.

4 The Court has acknowledged the continued existence of the divided damages rules in at least two recent cases. S. S. Co. v. United States, 372 U. S. 597, 603; Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U. S. 282, 284. But in neither case did the Court have occasion to re-examine the rule or to appraise the validity of its underpinnings or the propriety of its present application. The Court granted certiorari in Union Oil Co. of California v. The San Jacinto, 409 U. S. 140, to reconsider the divided damages rule, but did not reach the issue because of our conclusion that one of the vessels involved in that case was totally free of contributing fault.

5 Maritime Conventions Act, 1911, 1 & 2 Geo. 5, c. 57, § 1

6 Article 4 of the Convention provides in part: “If two or more vessels are in fault the liability of each vessel shall be in proportion to the degree of the faults respectively committed. Provided that if, having regard to all the circumstances, it is not possible to establish the degree of the respective faults, or if it appears that the faults are equal, the liability shall be apportioned equally.”

7 We are informed by the Government that the following jurisdictions have ratified or adhere to the Brussels Convention on Collision Liability: Argentina, Australia, Austria, Belgium, Brazil, Canada, Danzig, Denmark, Egypt, Estonia, Finland, France, Germany, Great Britain, Greece, Haiti, Hungary, Iceland, India, Ireland, Italy, Japan, Latvia, Mexico, Newfoundland, New Zealand, Netherlands,Switzerland, Turkey, Uruguay, and Yugoslavia. See 6 Knauth's Benedict on Admiralty (7th ed. 1969), at 38-39. See also J. Griffin, The American Law of Collision 857 (1949); Staring, Contribution and Division of Damages in Admiralty and Maritime Cases, 45 Calif. L. Rev. 304, 340-341 (1957); Tank Barge Hygrade v. The Gatco NJ, 250 F. 2d 485, 488 (CA3).

8 Ahlgren v. Red Star Towing and Transp. Co., 214 F. 2d 618, 620 (CA2).

9 Marine Fuel Transfer Corp. v. The Ruth, 231 F. 2d 319, 321 (CA2).

10 Tank Barge Hygrade v. The Gatco NJ, 250 F. 2d 485, 488 (CA3). See also Mystic S. S. Corp. v. M/S Antonio Ferraz, 498 F. 2d 538, 539 n. 1 (CA2); Petition of Oskar Tiedemann and Co., 289 F. 2d 237, 241-242 (CA3); In re Adams' Petition, 237 F. 2d 884, 887 (CA2); Luckenbach S. S. Co. v. United States, 157 F. 2d 250, 252 (CA2).

11 It is difficult to imagine any manner in which the divided damages rule would be more likely to “induce care and vigilance” than a comparative negligence rule that also penalizes wrongdoing, but in proportion to measure of fault. A rule that divides damages by degree of fault would seem better designed to induce care than the rule of equally divided damages, because it imposes the strongest deterrent upon the wrongful behavior that is most likely to harm others.

12 See, e. g., The City of New York, 147 U. S. 72, 85:

“Where fault on the part of one vessel is established by uncontradicted testimony, and such fault is, of itself, sufficient to account for the disaster, it is not enough for such vessel to raise a doubt with regard to the management of the other vessel. There is some presumption at least adverse to its claim, and any reasonable doubt with regard to the propriety of the conduct of such other vessel should be resolved in its favor.”

See also The Victory and the Plymothian, 168 U. S. 410; The Umbria, 166 U. S. 404; The Oregon, 158 U. S. 186; The Ludvig Holberg, 157 U. S. 60.

13 The rule of comparative negligence applicable to personal injury actions in our maritime law, see The Jones Act, 46 U. S. C. § 688, Death on the High Seas Act, 46 U. S. C. § 766, does not appear to discourage the negotiation of settlements in such litigation. It has been reported, for example, that of the marine personal injury cases involving a federal question that were terminated in fiscal year 1974, only 9.6% ever reached trial. Annual Report of the Director of the Administrative Office of the United States Courts, Table C4, at 429 (1974).

14 The respondent also relies on the fact that the Senate has twice failed to ratify the Brussels Convention with its proportional fault rule. It is urged that this inaction indicates “grave doubt” in Congress that rejection of the divided damages rule will further justice. But even if we could find guidance in such “negative legislation,” Moragne v. States Marine Lines, 398 U. S. 375, 405 n. 17, it appears that the Senate took no action with respect to the Convention not because of opposition to a proportional fault rule, but because of the Convention's poor translation and the opposition of cargo interests to the provision which would prevent, cargo from recovering in full from the noncarrying vessel by eliminating joint and several liability of vessels for cargo damage. See H. Baer, Admiralty Law in the Supreme Court 414-415 (2d ed. 1969); Staring, Contribution and Division of Damages in Admiralty and Maritime Cases, 45 Calif. L. Rev. 304, 343 (1957). See also Note, 64 Yale L. J. 878 (1955).

15 This Court, in other appropriate contexts, has not hesitated to overrule an earlier decision and settle a matter of continuing concern, even though relief might have been obtained by legislation. See Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406 n. 1 (Brandeis. J., dissenting) (collecting cases).

16 See also Donovan, , Mutual Fault-Half Damage Rule—A Critical Analysis, 41 Ins. Coun. J. 395 (1974);Google Scholar Allbritton, , Division of Damages in Admiralty—A Rising Tide of Confusion, 2 Journal of Maritime Law and Commerce 322 (1971);Google Scholar Jackson, , The Archaic Rule of Dividing Damages in Maritime Collisions, 19 Ala. L. Rev. 263 (1967);Google Scholar Staring, supra, 45 Calif. L. Rev., at 304; Mole, & Wilson, , A Study of Comparative Negligence, 17 Corn. L. Q. 333 (1932); and Huger, The Proportional Damage Rule in Collisions at Sea, 13 Com. L. Q. 531 (1928)Google Scholar.