Even at common law this assumption is erroneous. The rule that there is no contribution among joint tort-feasors, according to the better authority, in the common-law courts applies only in cases where there was some intentional or moral wrong committed. It presupposes an evil intent, and as to such cases it was certainly a wise rule. But the better authority is that this doctrine does not apply where the injury was unintentional, but arose merely from negligence, or the operation of some rule of law.3

36

The subject has been considered in England in Palmer v. Wick & P. Steam Shipping Co.37 In it the question is discussed mainly with reference to the law of Scotland, but in some of the opinions the old English authorities in which the doctrine originated are reviewed and distinguished.

It is considered also by Judge Brown in the HUDSON, supra, who arrived at the same conclusion with reference to the common-law doctrine as that above announced. But the weight of English authority is against contribution.88

In Armstrong County v. Clarion County," a traveler was injured by the defective condition of a bridge maintained jointly by two counties. He sued one county, and recovered. Thereupon this county sued the other, and the court sustained its right to contribution, holding that the common-law rule gave contribution where the act that was being done was not unlawful, and that contribution arises from natural principles, and not from contract.

In the Gulf Stream,10, where certain shippers had sued both vessels in a collision, one of the vessels compromised

86 Pol. Torts, 171; 12 Harvard Law Rev. 176 (1898); Law Quarterly Rev. (July, 1901) 293.

87 [1894] A. C. 318.

88 Frankland, [1901] P. 161, and cases cited.

39 66 Pa. 218, 5 Am. Rep. 368. On this subject of contribution at common law, see the note to the case of Kirkwood v. Miller, 5 Sneed. (Tenn.) 455, 73 Am. Dec. 147.

40 (D. C.) 58 Fed. 604.

a good many of the claims at a considerable discount, and attempted to set off their full value against the other vessel in a settlement between them. The court held that the parties occupied in the admiralty towards each other somewhat the relation of cosureties, and that the other vessel was entitled to the benefit of these compromises. And in the NORTH STAR," previously cited, the opinion reviews the old admiralty codes on the subject, and shows that the doctrine of division of loss in admiralty cases arose out of the principles of general average, as has been heretofore discussed.

If these last three cases are right, it follows that an action for contribution ought to lie by one vessel against the other. The fact that there is no privity between them is immaterial; for general average and contribution do not depend upon questions of privity or contract, but upon principles of natural justice. Indeed, the fact that they were not intentionally concurring in the act complained of is the reason why there should be a contribution, and why the common-law rule does not apply. Hence the reasoning of the Pennsylvania judge 2 that the right could only be claimed derivatively through the libelant is counter to the original principles on which the doctrine was based. It arose from a desire of the admiralty courts to adjust equitably the relations between the two vessels themselves, and not through any consideration of the rights of a third party against them, for his rights are unaffected by the doctrine. And the other reason given in the two cases above cited, holding the adverse doctrine that there is no contribution against tort-feasors, is counter to the preponderance of authority, even at common law, which is to the effect that, where the act was not intentional, there may be a contribution between tort-feasors.

On principle such a suit should lie in the admiralty. If

41 106 U. S. 17, 1 Sup. Ct. 41, 27 L. Ed. 91.

42 In the Argus (D. C.) 71 Fed. 891, supra, p. 322.

43

the Supreme Court, by rule, can confer jurisdiction on an admiralty court to bring the other vessel in by petition, as is done by the fifty-ninth rule, that shows that the right is one of admiralty character, for a Supreme Court cannot, by rule, make a thing maritime which is not so by nature. It can only give a maritime remedy to a right maritime by nature. It has been seen in another connection that, where a salvor collects the entire salvage due, his co salvors can sue, him in admiralty to enforce an apportionment or contribution, and this is a similar case. Admiralty has undoubted jurisdiction to compel contribution in cases of general average, and the doctrine now under discussion originated in the law of average." Hence contribution may be enforced in an admiralty proceeding, probably in rem, and certainly in personam, as between the owners of two colliding ships where one had been compelled to pay more than his share. It is a necessary corollary from the doctrine that a decree is for half against each with a remedy over, thus making it a case where one is necessarily surety for the other in case of a deficit. The right has been definitely settled accordingly by two recent decisions of the Supreme Court.45

Both these cases were libels in personam, but no reason is perceived why the right could not be enforced by a pro

43 Ante, p. 151.

44 Ante, p. 50.

45 Erie R. Co. v. Eric & W. Transp. Co., 204 U. S. 220, 27 Sup. Ct. 246, 51 L. Ed. 450; Lehigh Valley R. Co. v. Cornell Steamboat Co., 218 U. S. 264, 31 Sup. Ct. 17, 54 L. Ed. 1039, 20 Ann. Cas. 1235. In both these cases the opinions merely say that this doctrine of contribution is of admiralty origin, without stating whether it arose from average or tort. They could not have treated it as a case of joint liability in tort; for it would have been inconsistent with Union Stockyards Co. v. Chicago, B. & Q. R. Co., 196 U. S. 217, 25 Sup. Ct. 226, 49 L. Ed. 453, 2 Ann. Cas. 525, in which the court adopted the rule of no contribution among negligent tort-feasors at common law. See, also, Eastern Dredging Co., In re (D. C.) 182 Fed. 179.

f

ceeding in rem. The liability to the party paying more than his share arises from a maritime tort of the other vessel or those responsible for her navigation. If such a remedy is available in rem under the fifty-ninth rule, it ought to lie in this analogous case.

MEASURE OF DAMAGES

152. The damages assessable in collision cases are those which are the natural and proximate result of the collision.

This subject must be considered-First, in reference to the cases where the loss is total; second, in reference to the cases where the loss is partial; third, what damages are proximate or remote.

SAME WHEN LOSS TOTAL

153. If the loss is total, the amount recoverable by the vessel owner is the market value of the vessel at the time of the collision, if that is ascertainable, and her net freight for the voyage.""

Where a ship cannot be said to have a market value, the method of fixing her value is a question of fact, depending on the circumstances of the particular case. Her original cost, less proper deductions for depreciation, is evidence, though not conclusive or exclusive, of her value.""

The net freight allowed in cases of total loss is the net

§ 153. 46 BALTIMORE, 8 Wall. 377, 19 L. Ed. 463; Laura Lee (D. C.) 24 Fed. 483; Fabre v. Cunard S. S. Co., 53 Fed. 288, 3 C. C. A. 534; UMBRIA, 166 U. S. 404, 17 Sup. Ct. 610, 41 L. Ed 1053; Alaska S. S. Co. v. Inland Nav. Co., 211 Fed. 840, 128 C. C. A. 366; Philadelphia, [1917] P. 101.

47 Lucille (D. C.) 169 Fed. 719; Samson, 217 Fed. 344, 133 C. C. A. 260; Harmonides [1903] P. 1.

freight for the voyage broken up. Profits on a future charter, not entered upon, are too remote.*

49

48

In the Kate, the vessel was on her way to perform a charter party when she was lost. The court rather varied the general rule by permitting recovery of her value at the end of the voyage, and the profit under that charter party, as it had already been entered upon. On the other hand, in the Hamilton, the value of the vessel at the beginning of the voyage was allowed, and interest from that date, but not the profits of the charter party which she then had, though she had entered upon it.

In case of a total loss of cargo, the value recoverable is the value at place of shipment, with all expenses added; but, if the loss is only partial, the net values saved must be credited.51

The fact that a vessel is sunk does not necessarily make the loss a total one. The owner must make some effort to find out whether she can be saved or not, but, if he shows an unsuccessful effort to induce salvors to raise her, it shifts to the respondent the burden to show that the loss was not total.52

48 UMBRIA, 166 U. S. 404, 17 Sup. Ct. 610, 41 L. Ed. 1053; Kate, [1899] P. 165; George W. Roby, 111 Fed. 601, 49 C. C. A. 481; Menominee (D. C.) 125 Fed. 530.

49 [1899] P. 165. See, also, Racine, [1906] P. 273.

50 (D. C.) 95 Fed. 844.

51 Scotland, 105 U. S., 24, 26 L. Ed. 1001; George Bell (D. C.) 3 Fed. 581, 5 Hughes, 172; Umbria, 59 Fed. 489, 8 C. C. A. 194.

52 Normandie (D. C.) 40 Fed. 590; Id. (D. C.) 43 Fed. 151; Ernest A. Hamill (D. C.) 100 Fed. 509; Des Moines, 154 U. S. 584, 14 Sup. Ct. 1168, 20 L. Ed. 821.