# Opinion — Kenyon v. FOWLER > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0538%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opinion - **Published:** January 1, 1910 - **Citation:** 215 U.S. 593 ## Text OCTOBER TERM, 1908. Syllabus. 212 U.S. THE EUGENE F. MORAN. - CERTIFICATES FROM THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. Nos. 87, 88. Argued January 22, 25, 1909.—Decided February 23, 1909. Where two tugs and two scows in tow of one of the tugs are all in fault for a collision, each of the four vessels is liable for an equal share of the damages, and the liability is to be so apportioned even if more than one of the vessels are owned by the same person. Sturgis v. Boyer, 24 How. 110, followed to the effect that a tug having control of a vessel in tow is solely responsible for damages to the other vessel caused by the tug alone. Fiction, not being a satisfactory ground for taking one man’s property to satisfy another man’s wrong, should not be extended. The fact that vessels are tied together in a flotilla does not make the flotilla a unit in proceedings in rem. In a proceeding in rem where several vessels are found in fault each bears its share regardless of ownership, and notwithstanding this rule results in charging one who owns more than one of the vessels with a larger proportion than he would be charged in a personal suit against himself and the owners of the other vessels. When a duty is imposed for the purpose of preventing a certain conse- quence its breach not leading to that consequence does not make a defendant liable for the tort of a third person merely because the ob- servance of the duty might have prevented that tort. Questions certified in 154 Fed. Rep. 54, answered. 1 Docket titles, No. 87, The Steam Tug “Eugene F. Moran,” Michael Moran, Claimant, and the Scows “15D” and “18D,” the Henry Dubois Sons Co., Claimant, v. The New York Central and Hudson River Railroad Company and the Steam Tug “Charles D. Matthews,” John D. Daily et al., Claimants; No. 88, The Henry Dubois Sons Company and the Steam Tug “Eugene F. Moran,” Michael Moran, Claimant, v. the Steam Tug “Charles E. Matthews,” John D. Daily et al., Claimants. THE EUGENE F. MORAN. 212 U.S. Argument for the Henry Dubois Sons Company. THE facts are stated in the opinion. Mr. James Emerson Carpenter, with whom Mr. Samuel Park and Mr. James Keith Symmers were on the brief, for the Henry Dubois Sons Company: An equitable solution of the problem would be to treat the libellant and the respective claimants as the real parties and to divide the damages equally among the owners of the various vessels at fault irrespective of the form of the action. In the alternative the tug and tow should be deemed a single vessel, and where the tug and tow are jointly in fault the dam- ages should be divided equally between the tug and tow and a third vessel also in fault, and as between the tug and its tow the moiety should be borne by the owners of the tug and tow respectively in equal parts, subject to the rule laid down in The Alabama and The Gamecock, 92 U.S. 695. In the apportionment of damages in admiralty the funda- mental equitable principle is to equalize the burden among those who should bear it. The North Star, 106 U.S. 17; Atlee v. Packet Co., 21 Wall. 389. While not possessing the general powers of a court of equity, yet a court of admiralty decides matters before it upon princi- ples of equity. United States v. Cornell Stm. Bt. Co., 202 U.S. 184; The Max Morris, 137 U.S. 1. Cases arise, undoubtedly, when both the tow and the tug are jointly liable for the consequences of a collision; as when those in charge of the respective vessels jointly participate in their control and management, and the master or crew of both vessels are either deficient in skill, omit to take due care or are guilty of negligence in their navigation. Sturgis v. Boyer, 24 How. 110, 121, 122. See also The Mabey and Cooper, 14 Wall. 204, and The Virginia Ehrman and The Agnese, 97 U.S. 309, 313. The tug Moran and scows for purposes of navigation with reference to other vessels are to be regarded as a single vessel. Transportation Co. v. Philadelphia & Savannah Nav. Co., 22 468 OCTOBER TERM, 1908, Argument for the Henry Dubois Sons Company. 212 U.S. How. 461; The Ivanhoe, 7 Ben. 213; S.C., Fed. Cas. No. 7,113; The Civilta, 103 U.S. 699; The Gladys, 144 Fed. Rep. 653, 655. There is a joint liability of the tug and tow for their joint negligence. Where the tug and tow are jointly liable to a third ship the owners of the latter may sue either or both, but a right of apportionment lies between a tug and tow. The Atlas, 93 U. 8. 302. The court will not hold the tug and tow jointly liable unless there is fault in both. The John Frazer, 21 How. 184; The Civilta, 103 U.S. 699; The Express, 52 Fed. Rep. 890, 892; Sturgis v. Boyer, 24 How. 110; The Clarita, 23 Wall. 1, 11. Where both tug and tow are held jointly liable the damages are to be divided between them subject to the rule laid down in the case of The Alabama and The Gamecock, 92 U.S. 695. Where both tug and tow and a third ship are to blame for a collision between the tug or tow and a third ship the tug and the tow will be considered as one vessel and contribute together one-half, the remaining half to be borne by the third vessel. The Englishman, L. R. 1894, P. D. 239; The Komuk, 120 Fed. Rep. 841; The Merrill C. Hart, 162 Fed. Rep. 371; The Fred. W. Chase (D.C. D. of 8. C. 1887), 31 Fed. Rep. 91. See also, as bearing on the questions involved: The Komuk, 120 Fed. Rep. 841; The Niobe, 13 P. D. 55; 1891, App. Cas. 401; The Brothers, 2 Biss. 104; The Nettie L. Tice, 110 Fed. Rep. 461; The Express, 44 Fed. Rep. 392; S. C., 46 Fed. Rep. 860; S.C., 52 Fed. Rep. 890; The Peshtigo, 25 Fed. Rep. 488; The Lyndhurst, 92 Fed.-Rep. 681; The Anerly, 58 Fed. Rep. 794; The W.G. Mason, 142 Fed. Rep. 913-918; The James Berwind, 44 Fed. Rep. 693, 697. A tug and tow, guilty of a common fault, should be con- demned to bear jointly one-half the damages due to collision with a third vessel also in fault, since the tug and tow for the purposes of navigation are deemed in law to be a single vessel under steam and subject to all the responsibilities of such a vessel under the rules. See The Civilia, 103 U.S. 701; Sturgis THE EUGENE F. MORAN. 212 U.S. Argument for N. Y. Central and Hudson River R. R. Co. v. Boyer, 24 How. 110; The Mabey, 14 Wall. 204; The Vir- ginia Ehrman, 97 U. S. 309, 313; L. P. Dayton, 120 U.S. 337. The answer to the third question should be that the damages be equally divided between the two flotillas, and the half as- sessed on the south-bound flotilla be charged half against the Moran and half against the two scows, the scows having a com- mon owner. Mr. Archibald G. Thacher and Mr. Frederick M. Brown for New York Central and Hudson River Railroad Company: A tug and her tows should be regarded as a navigable unit, responsible to the extent of the total value uf the unit to inno- cent third parties; the rights of the owners of the component parts to be adjusted between themselves. Sturgis v. Boyer, 24 How. 110, which holds the contrary, should be reconsidered by this court in the light of other deci- sions. The Palmyra, 12 Wheat. 1, 14; The Brig Malek Adtel, 2 How. 210; Schooner Freeman v. Buckingham, 18 How. 182; The Barnstable, 181 U.S. 464, 467, 468; The China, 7 Wall. 53, 68; Homer Ramsdell v. Compagnie Générale Trans. 182 U S. 406, 413, 414. Liability in rem may be wholly unrelated to liability in per- sonam. Although the United States is not subject to suit its property may be liable in rem for its share of a general average sacrifice of a private vessel where’execution of the process does not interfere with the Government’s possession. United States v. Wilder, 3 Sumner, 308; approved in United States v. Cornell, 202 U.S. 190. So alse of the liability of government property in rem for salvage, although no suit would lie against the sovereign in personam. The Davis, 10 Wall. 15,22. See also The Siren, 7 Wall. 152, 162; Workman v. The Mayor, 179 U.S. 552, 568; The Arturo, 6 Fed. Rep. 308. The damages sustained by the New York Central car float should be made good to the extent of three-sixths by the Mat- thews, one-sixth by the Moran and one-sixth each by scows 470 OCTOBER TERM, 1908. Argument for Claimant of the Tug Matthews. 212 U.S. 15D and 18D. The Northern Belle, 9 Wall. 526, 528, 529; The Keokuk, 9 Wall. 517, 519. Mr. Harrington Putnam, with whom Mr. Charles C. Burling- ham was on the brief, for claimant of the tug Moran: There is in England no authority for a division in thirds, and in this country the decisions to that effect do not appear to have been carefully considered. Marsden on Collisions (5th ed.), 125. The following cases discussed: The Peshtigo, 25 Fed. Rep. 488; The Brothers, 2 Biss. 104; The Maling, 110 Fed. Rep. 227; The Lyndhurst, 92 Fed. Rep. 681; Scow No. 6 H, 108 Fed. Rep. 429; The Nettie L. Tice, 110 Fed. Rep. 461. The rule of the admiralty as to the apportionment of damages in case of mutual fault is not a rule of absolute justice, but one cf practical utility. The only clear working rule is that where a vessel has contributed to a collision by her own fault, her owner cannot recover more than one-half of his damages. There is nothing necessarily inconsistent between the case of Sturgis v. Boyer, 24 How. 110, and The China, 7 Wall. 53. See The City of Norwich, 118 U.S. 468; Workman v. New York City, 179 U. 8. 552; Tucker v. Alexandroff, 183 U.S. 424; The Clarita and The Clara, 23 Wall. 1; The Alabama, 92 U.S. 695, 697; The Max Morris, 137 U. §. 1. As to the law in England and in Germany, see The English- man and The Australia, L. R. (1894) Prob. Div. 239; The Unterweser 12, tug Blitz and 8.8. Envoy, Entscheidungen des Reichsgerichts in Civilsachen, 14 Feb., 1903, LIV, p.13. Also in the Hanseatische Gerichtszeitung, 1903, Part I, 285, see Ap- pendix. Mr. William S. Montgomery, with whom Mr. George H. Emerson was on the brief, for claimant of the tug Matthews: The District Court correctly apportioned the damages to the carfloat equally among the four vessels sued. In admiralty the number of owners or the number of agents or servants of owners who are involved in a fault contributing to THE EUGENE F. MORAN. 471 212 U.S. Argument for Claimant of the Tug Matthews. a collision should have no effect upon the apportionment of the damages. In actions in rem what the admiralty looks to is the res and decrees the payment of damages against the offending thing and not against the owner. Nor does admiralty consider the number or gravity of the faults of each vessel. The only logical method of apportioning the damages, where the rule of comparative damage does not obtain, is that adopted by the District Court in apportioning the damages to the car- flcat—i.e., to apportion the damages among the offending ves- sels without any consideration whatever being given to owner- ship or the number of servants or agents of owners. The W.G. Mason, 142 Fed. Rep. 913; The Juniata, 93 U. S. 340; The China, 7 Wall. 53, and The Barnstable, 181 U. 8. 464, distin- guished from Sturgis v. Boyer, 24 How. 110. The correct rule of apportionment is te consider only the offending res before the court. If there are three offending res, then the damages should be divided into thirds. If there are four offending res, then the damages should be divided into fourths; and so on, no matter what may be the number of guilty res. This, of course, may work an apparent hardship if more than one of the offending res belongs to the same owner; but then that owner has had more than one offending thing which has contributed to the damage, and the damage might have been less, or might not have happened at all, had not each of his ves- sels been guilty of fault. The moment any consideration of ownership or of a common or similar fault is allowed to enter into the apportionment of the damages, infinite difficulties will arise. Hughes on Admi- ralty (1st ed.), 277; The North Star, 106 U. 8. 17. - In this case there were four offending res before the court— the two scows, and the two tugs. The scows because neither of them had lights; the Moran because she did not see that the scows had lights, and also in other respects; and the Matthews because she kept on at full speed after the Moran did not an- Ty 472 OCTOBER TERM, 1908. Opinion of the Court. 212 U 3. swer her sigral. Had any one of-them not been in fault, the - collision might not have happened. All having contributed, and all the offending res having been before the court, the District Judge