9. Division of Damages.—
Where both, or several, ships are in fault, the maritime law apportions the damage between them. When one of two vessels has suffered more than the other the decree is against the one least injured for one-half of the difference in their respective losses. In the North Star, 106 U. S. 17, where both vessels were adjudged in fault for a collision and one, the Ellis Warley, became a total loss, the owners of the Warley advanced the ingenious argument that, inasmuch as their vessel had been entirely lost, they were entitled to limit their liability and, by so doing, recover one-half their entire damage from the North Star, without any deduction for the damage suffered by her, notwithstanding the rule of division of damage in such cases. It will be noticed that the vessel claiming the right to limit liability, being the greater sufferer, would, in no event, have been required to pay anything to the other, and that the North Star, which had to do the paying, did not claim any right to limit liability. In rejecting this argument and holding that the time to apply the limitation-of-liability rule was after the amount of the liability had been ascertained, when the party decreed to pay might claim the benefit of the rule if entitled to it, the Court entered upon an instructive review of the entire history of the division of damage, and found that the theory is not that the owner of the one vessel is liable to the owner of the other for one-half of the damage sustained by the latter, and vice versa, that the owners of the latter are liable to those of the former for one-half of the damage sustained by her; but that the joint damage is equally divided between the parties; that it is a case of average and is to be computed by subtracting the lesser loss from the greater, dividing the difference by two and directing the vessel sustaining the smaller loss to pay the other the amount so found.
Where both vessels are in fault and only one is injured, the uninjured vessel must pay to the other one-half of the amount of her damage without deduction.
The cargo, being innocent, may sue both vessels or either, but if the result is that one is so compelled to pay more than its proper proportion of the total, a suit for contribution under the conditions set forth in the preceding section will lie in order to accomplish an ultimate equality. The admiralty does not recognize the common-law rule that contributory negligence prevents recovery and the same division or apportionment of damage is applied to cases of personal injury in collision as otherwise.