observing that with regard to the divided damages rule for mutual fault, "[t]he authorities state the rule in terms of 'innocent third parties.'... [W]e are convinced that the reduction of [the contributorily-negligent plaintiffs'] respective recoveries under the comparative negligence doctrine is to be considered full penalty for their fault and that they must, thereafter, be treated in the same manner as 'innocent third parties.' "
How later courts described this case
- observing that with regard to the divided damages rule for mutual fault, "[t]he authorities state the rule in terms of 'innocent third parties.'... [W]e are convinced that the reduction of [the contributorily-negligent plaintiffs'] respective recoveries under the comparative negligence doctrine is to be considered full penalty for their fault and that they must, thereafter, be treated in the same manner as 'innocent third parties.' "
- evaluating seaworthiness based on the captain’s experience and availability of qualified lookout
- crew was incompetent and rendered vessel unseaworthy because captain was inexperienced in intra-coastal waters and a qualified lookout was not onboard
- master totally unfamiliar with waters in which he was navigating
Written by the judges who cited it.
The opinion
ON PETITION FOR REHEARING
DYER, Circuit Judge:
Cleary Bros. Construction Company has petitioned for rehearing en banc, urging for the first time that the decree entered by the District Court correctly applies the divided damages rule providing for recovery by Anderson and Gates from Empire, and recovery by Empire against Cleary for one-half the losses sustained by Empire in this respect.
Upon reconsideration, we are convinced that what we said about the District Court decree in our original opinion was appropos only to those instances where, aside from a statutory prohibition, an innocent third party is injured by the mutual fault of vessels in a collision. The Atlas, 93 U.S. 302 , 23 L.Ed. 863 ; The North Star, 106 U.S. 17 , 1 S.Ct. 41 , 27 L.Ed. 91 .
But where a statute such as the Florida Workmen’s Compensation Act here, the Federal Employers’ Compensation Act in Weyerhaeuser S. S. Co. v. United States, 1963, 372 U.S. 597 , 83 S.Ct. 926 , 10 L.Ed.2d 1 , and the Harter Act in The Chattahoochee, 1889, 173 U.S. 540 , 19 S.Ct. 491 , 43 L.Ed. 801 , denies direct recovery against one of the two vessels (Cleary, the employer of Anderson and Gates), recovery can be had only against the other vessel for all of the damages sustained by the innocent party. Aktieselskabet Cuzco v. The Sucarseco, 1935, 294 U.S. 394 , 55 S.Ct. 467 , 79 L.Ed. 942 ; United States v. Atlantic Mutual Ins. Co., 1952, 343 U.S. 236 , 72 S.Ct. 666 , 96 L.Ed. 907 ; New York and Cuba Mail S.S. Co. v. American S.S. Owners’ Mut. P & I Ass’n, Inc., 2 Cir. 1934, 72 F.2d 694 .
*218 We have found, as in Weyerhaeuser, and in The Chattahoochee, that this case is a proper one for the application of the divided damages rule. Empire is in essentially the same position as Weyerhaeuser S.S. Co., and as the non-carrying vessel in The Chattahoochee. Gates and Anderson occupy the same position with respect to Cleary as did the Federal employee in Weyerhaeuser to the United States Government, and as innocent cargo in The Chattahoochee to the carrying vessel, because there is a statutory bar to direct recovery in each instance. Empire’s right to contribution is not due to Cleary’s liability to Anderson and Gates but to Cleary’s liability to Empire. In the division of damages between Empire and Cleary, mutually at fault in this collision, Empire, who' must pay the damages to Anderson and Gates, may treat these damages as part of its own collision damages and recover from Cleary one-half the amount it pays Anderson and Gates.
It is therefore ORDERED that rehearing before the panel of this Court which heard the case on original hearing be and it is hereby granted, and the opinion is modified as herein stated. In other respects the Petition for Rehearing is DENIED and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, Rule 25(a), subpar. (b), the Petition for Rehearing En Banc is DENIED.
The decree of the District Court is in all respects
Affirmed.