Joseph P. Bradley

“ And even where no cross-libel is filed, if the respondents in their answer allege damage sustained by them in the collision, and charge fault against the vessel of the libelants, and pray a set-off or recoupment, in case they should themselves be held to be in fault, we see no good reason why they should not have the benefit of average afforded by the law, at least to the extent of the claim of the libelants. ”

“ This technical result of the form of proceeding and pleadings, in which the respondent suffers himself to be placed in a position of disadvantage, has led to the erroneous notion that each party is entitled by the law to be paid one-half of his damage by the other party, and that each claim is independent of the other. ”

“ This was the proper decree to make if the conclusion reached, as to both vessels being in fault, was correct, unless the question arising on the limited-liability act, hereafter discussed, required a different decree. Each vessel being liable for half the damage done to both, if one suffered more than the other, the difference should be equally divided, and the one which suffered least should be decreed to pay one-half of such difference to the one which suffered most, so as to equalize the burden. ”

“ But where both parties file libels, as they are entitled to do, although to conform to the pleadings a decree may be rendered in each suit in favor of the libelant for one-half of his damage, even the English courts will not allow two executions, but will grant a monition in favor of that party who has sustained most damage for the balance necessary to make the division of damages equal. ”

“ We have carefully considered the reasons given by the various judges, and are unable to avoid the conclusion that the master of the rolls and Lord Justice BRETT took the proper view of the subject.
In this country the courts of the United States are not subject to the same disabilities which embarrass the proceedings of the English courts. ”