of six knots an hour, was not going at the moderate speed required by law. In The Attila, Cook's Ca. 196, the vice admiralty court at Quebec condemned a sailing vessel for running at a speed of six or seven miles an hour, in a dense fog in the fairway from the Atlantic ocean, between Cape Ray and St. Paul's island into the. Gulf and the lower waters of the St. Lawrence river, although there was abundance of evidence that this was the customary rate of speed during a fog in this locality.

In 1879 a new Code was adopted in England, and in 1885 in this country, article 13 of which provides that "every ship, whether a sailing ship or steamship shall, in a fog, mist, or falling snow, go at a moderate speed."

In the case of The Elysia, 4 Asp. M. L. Cas. 540, it was held by the admiralty court [547]and by the court of appeal in England, that a speed of five knots in the case of a sailing ship out in the Atlantic ocean in a fog, is a moderate speed, although at the time she was under all plain sail and going as fast as she could with the wind on her quarter. Lord Justice Brett was of opinion that a moderate speed was not absolutely the same with regard to a steamer as to a sailing vessel. "If you were to say that three knots were a moderate speed for a steamer in which to turn from one point to another when out in the ocean, that does not presume that that would be a moderate speed for a sailing vessel, because a steamer can reduce her speed to a knot and a half. It would, however, be very dangerous for a sailing vessel, under all circumstances, to reduce her speed to anything like three knots, because such a speed would, in certain circumstances, place her entirely out of command."

In the Zadok, L. R. 9 Prob. Div. 114, which was a collision between a steamship and a barque in the English channel, it was held to have been the duty of the barque to reduce her speed so far as she could consistently with keeping steerageway, and as it was shown that she was carrying nearly all her canvas and proceeding at a speed of more than four knots an hour, she was held to be in fault and the steamer exonerated. A like ruling was made by the master of rolls, speaking for the court of appeal in The Beta, L. R. 9 Prob. Div. 134. The collision took place in a dense fog in the Bristol channel, and it was held that a vessel must not go faster than would enable her to be kept un

der command.

In the case of The N. Strong [1892] P. 105, which was a collision in the English channel, it was held that a sailing vessel which was making about four knots an hour in a fog was not proceeding at a rate of speed beyond what was necessary to keep her well under


The cases in the American courts are of the same purport. In The Rhode Island, 17 Fed. Rep. 554, it was held by Judge Brown of the southern district of New York, that a speed of seven knots an hour in a foggy evening in Long Island sound was not a moderate rate of speed, although the twenty-first

rule did not apply in terms to sailing vessels.

*No absolute rule can be extracted from[548] these cases. So much depends upon the density of fog and the chance of meeting other vessels in the neighborhood, that it is impossible to say what ought to be considered moderate speed under all circumstances. It has been said by this court, in respect to steamers, that they are bound to reduce their speed to such a rate as will enable them to stop in time to avoid a collision after an approaching vessel comes in sight, provided such approaching vessel is herself going at the moderate speed required by law. It is not perceived why the considerations which demand a slackening of speed on the part of steamers in foggy weather are not equally persuasive in the case of sailing vessels. The principal reason for such reduction of speed is that it will give vessels time to avoid a collision after coming in sight of each other. If two steam vessels are approaching upon converging courses at a combined rate of speed of thirty miles an hour, and are only able to see each other three or four lengths off, it would be practically impossible to avert a collision; whereas, if each were going at the lowest rate of speed consistent with good steerageway, a collision might easily be avoided by stopping and reversing their engines, or by a quick turn of the wheel and an order to go ahead at full speed. While sailing vessels have the right of way as against steamers, they are bound not to embarrass the latter, either by changing their course or by such a rate of speed as will prevent the latter from avoiding them. There is also the contingency that a schooner sailing with the wind free, as in this case, may meet a vessel closehauled, in which case the latter has the right of way, and the former is bound to avoid her. Beyond this, however, a steamer usually relies for her keeping clear of a sailing vessel in a fog upon her ability to stop and reverse her engines; whereas, it is impossible for a sailing vessel to reduce her speed or stop her headway without maneuvers which would be utterly impossible after the two vessels come in sight of each other. Indeed she can do practically nothing beyond putting her helm up or down to "ease the blow" after the danger of collision has become imminent. The very fact that a sailing vessel can do *so little by man-[549] euvering is a strong reason for so moderating her speed as to furnish effective aid to an approaching steamer charged with the duty of avoiding her.

In this case the Golden Rule, though not pursuing the most frequented path of coastwhere other vessels were frequently met, and wise commerce, was sailing through waters not far from the usual track of transatlantic steamers. Her foghorn was heard by the the vessels had been proceeding at the speed steamer but once, or possibly twice, while if required by law, their signals would have been exchanged so many times that the locality and course of each would have been clearly made known to the other. In other words, sufficient time would have been given for the steamer to have taken the proper

steps to avoid the schooner. Upon the whole, we are of opinion that the courts below were right in condemning the schooner for immoderate speed.

2. An important question of damages remains to be considered. Libellants, as bailees for the owners of the cargo, proceeded against and were held entitled to recover of the steamship the entire value of the cargo, but the latter was allowed to recoup one half of this amount from one half the amount of damages suffered by the schooner. This appears to have been done upon the authority of The North Star, 106 U. S. 17 [27:91], in which it was held that, where a collision occurred through the mutual fault of two vessels, one of which was sunk and the other of which was damaged, the owners of the sunken vessel were not entitled under the limited liability act to an entire exoneration from liability, but that the damage done to both vessels should have been added together in one sum, and equally divided, and a decree should have been pronounced in favor of the vessel which suffered most against the one which suffered least, for half the difference between the amounts of their respective losses. A similar ruling was made in The Manitoba, 122 U. S. 97 [30: 1095], and in The Stoomvaart Maatschappy Nederland v. Peninsular & Oriental Steam Nav. Co. L. K. 7 App. Cas. 795.

But libellants insist in this connection that the act of February 13, 1893, known as [550]the Harter act, has modified the previous existing relations between the vessel and her cargo, and has an important bearing upon this branch of the case. By the third section of that act, the owner of a seaworthy vessel (and, in the absence of proof to the contrary, a vessel will be presumed to be seaworthy) is no longer responsible to the cargo for damage or loss resulting from faults or errors in navigation or management. This section is made applicable to "any vessel transporting merchandise or property to or from any port in the United States;" and we know of no reason why a foreign vessel like the Golden Rule, engaged in carrying a cargo from a foreign port to Boston, is not entitled to the benefit of this provision. Had the cargo of the schooner arrived at Boston in a damaged condition, it is clear that the vessel might have pleaded the statute in exoneration of her liability, if the damage had occurred through a fault or error in navigation, such, for instance, as a collision due wholly or partly to her own fault. So, if a vessel and cargo be totally lost by such fault, we know of no reason why the owner of the vessel is not entitled to the benefit of this section, as well as to his exemption under the limited liability act.

The reasons which influenced this court to hold in the case of The Scotland, 105 U. 8. 24 [26: 1001]. that the limited liability act applied to owners of foreign as well as domestic vessels, and to acts done on the high seas, as well as in the waters of the United States, apply with even greater cogency to this act. "In administering justice," said Mr. Justice Bradley, p. 29 [26: 1003], "between parties, it is essential to know by

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what law, or code, or system of laws, their mutual rights are to be determined. When they arise in a particular country or state, they are generally to be determined by the law of that state. Those laws pervade all transactions which take place where they prevail, and give them their color and legal effect. But if a collision occurs on the high seas, where the law of no particular state has exclusive force, but all are equal, any forum called upon to settle the rights of the parties would prima facie determine them by its own law, as presumptively expressing the rules of justice; .if it *be the legislative will that any particular[551] privilege should be enjoyed by its own citizens alone, express provision will be made to that effect. But the great mass of the laws are, or are intended to be, expressive of the rules of justice, and are applicable alike to all. ... But there is no demand for such a narrow construction of our statute" (as was given by the English courts to their limited liability act), "at least to that part of it which prescribes the general rule of limited responsibility of shipowners. And public policy, in our view, requires that the rules of maritime law as accepted by the United States should apply to all alike, as far as it can properly be done. If there are any specific provisions of our law which cannot be applied to foreigners, or foreign ships, they are not such as interfere with the operation of the general rule of limited responsibility. That rule and the mode of enforcing it are equally applicable to all. They are not restricted by the terms of the statute to any nationality or domicil. We think they should not be restricted by construction." It will be observed that the language of the Harter act is more specific in its definition of the vessels to which it is applicable, than the limited liability act, which simply uses the words "any vessel," whereas, by the third section of the Harter act, it is confined to "any vessel transporting merchandise or property to or from any port in the United States." Where Congress has thus defined the vessels to which the act shall apply, we have no right to narrow the definition. It may work injustice in particular cases where the exemptions are accorded to vessels of foreign nations which have no corresponding law, but this is not a matter within the purview of the courts. It is not improbable that similar provisions may ultimately be incorporated in the general maritime law. Indeed, the act has been already held by this court applicable to foreign as well as to domestic vessels. (The Silvia, 171 U. S. 462 [ante, 241].) See also The Etona, 64 Fed. Rep. 880; The Silvia [35 U. S. App. 395], 63 Fed. Rep. 230.

Assuming, then, that the Harter act applies to foreign vessels, we are next to inquire into its effect upon the division of damages in this case. It was held by this court in the case of The Atlas, 93 U. S. 302 [23:[552] 863]. that an innocent owner of a cargo is not bound to pursue both colliding vessels, though both may be in fault, but entitled to a decree against one alone for the entire amount of his damages. It was held by the


courts below that, while the action by the
owner of the cargo would lie against the
steamer for the whole amount of damage
done, the owners of such steamer were en-
titled to recoup one half of this amount
against one half of the amount awarded to
the owners of the schooner for the loss of
their vessel, upon the theory that, under the
limited liability act, they were liable for one
half this amount, not exceeding the value of
the schooner. Eut libellants insist that as
the third section of the Harter act declares
that the owners of a seaworthy vessel shall
not be liable in any amount for damage or
loss resulting from a fault or error in navi-
gation, the owners of the schooner are enti-
tled to this exoneration, whether the action
be directly against the vessel by the owner of
the cargo, or by a third party, who is claim-
ing the rights to which he is entitled, and
who for that purpose is standing in his
shoes. That the exemptions of the act are
not intended for the benefit of the steamship
or any other vessel, by whose negligence a
collision has occurred, but for the benefit of
the carrying vessel alone; and if she be held
liable in this indirect manner for a moiety
of the damages suffered by the cargo, the act
is to that extent disregarded and nullified.
That the amount which is paid by recoup-
ment from the just claim of the schooner
against the steamship is paid as effectually
as it would be by a direct action by the own-
ers of the cargo against the schooner; and
while in this case it works an apparent hard-
ship upon the steamer (a hardship more ap-
parent than real, owing to the greater fault
of the steamer), it does not in reality ex-
tend her liability, but merely prevents her
taking advantage of a deduction to which
without the act she might have been en-

But the majority of the court are of opin-
ion that the principles announced by us in
The North Star, 106 U. S. 17 [27: 91]; The
Manitoba, 122 U. S. 97 [30: 1095]; The Del-
aware, 161 U. S. 459 [40: 771]; and The Ir-
rawaddy, 171 U.S. 187 [ante, 130], are equal-
[853]ly applicable here. The case of the North
Star is especially pertinent. That case arose
from a collision between two steamships, one
of which, the Ella Warley, went to the bot-
tom, while the other was considerably dam-
aged. The suit was tried upon libel and
cross-libel, both vessels found in fault, and
the damages ordered to be divided. No
question arose with regard to the cargo, but
the owners of the Ella Warley raised a ques-
tion as to the amount of their recovery under
the limited liability act, which provides
(Rev. Stat. § 4283) that "the liability of the
owner of any vessel
damage, or injury by collision
for any loss,
casioned, or incurred, without the privity
or knowledge of such owner or owners, shall
in no case exceed the amount or value of the
interest of such owner in such vessel, and her
freight then pending."
vessel be totally lost, the liability of her
It seems that, if the
owner is thereby extinguished. Norwich
Company v. Wright, 13 Wall. 104 [20: 585].
The owners of the Ella Warley sought to ap-
ply this rule to a case of mutual fault, and
173 U. S.

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contended that, as their vessel was a total
loss, the owners were not liable to the North
Star at all, not even to have the balance of
damage struck between the two vessels; but
that half of their damage must be paid in
full without deduction of half the damage
sustained by the North Star. But the court
held "that where both vessels are in fault,
they must bear the damage in equal parts;
the one suffering the least being decreed to
pay to the other the amount necessary to
make them equal, which amount, of course,
is one half of the difference between the re-
spective losses sustained. When this result-
ing liability of one party to the other has
been ascertained, then, and not before, would
seem to be the proper time to apply the rule
of limited responsibility, if the party decreed
to pay is entitled to it. It will enable him to
avoid payment pro
found against him. In this case the duty of
tanto of the balance
payment fell upon the North Star, the own-
ers of which have not set up any claim to a
limit of responsibility. This, as it seems to
us, ends the matter. There is no room for
the operation of the rule. The contrary view
is based on the idea that, theoretically (sup-
posing both vessels in fault), the owners of
the one are liable to the owners of the other[554]
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.
This, it seems to us, is not a true account of
the legal relations of the parties. It is never
so expressed in the books on maritime law.

that, according to the general maritime law,
These authorities conclusively show
in cases of collision occurring by the fault of
both parties, the entire damage to both ships
is added together in one common mass and
on arises a liability of one party to pay the
equally divided between them, and thereup-
other such sum as is necessary to equalize
the burden. This is the rule of mutual lia-
bility between the parties."

ley cited and disapproved of the case of
In delivering the opinion Mr. Justice Brad-
Chapman v. Royal Netherlands Steam Navi-
gation Co. (L. R. 4 Prob. Div. 157), which was
much relied upon by counsel for the Ella
Warley. It is interesting to note that this
case was overruled by the House of Lords
three months before the opinion in the North
Star was delivered, in the case of the Stoom-
vaart Maatschappy Nederland v. The Penin-
sular and Oriental Steam Navigation Co. L.
R. 7 App. Cas. 795, and the rule laid down in
the North Star adopted. The same rule was
subsequently applied in The Manitoba, 122
U. S. 97 [30: 1095].

The other cases are not directly in point,
In that of The Delaware, 161 U. S. 459 [40:
but their tendency is in the same direction.
771], it was said that the whole object of the
Harter act was to modify the relations pre-
viously existing between the vessel and her
collision between two vessels.
cargo, and that it had no application to a
waddy, 171 U. S. 187 [ante, 130], it was held
that, if a vessel be stranded by the negli-
In The Irra-
gence of her master, the owner had not the
right, under the Harter act, to a general av-

erage contribution for sacrifices made and | United States Circuit Court for the Eastern
suffered by him subsequent to the stranding, District of Texas, for the recovery of land
in successful efforts to save the vessel, in Harris County, Texas, and taken by writ
freight, and cargo.
of error to the said Circuit Court of Appeals.
Question answered in the affirmative.

But if the doctrine of the North Star be a
sound one, that in cases of mutual fault the
owner of a vessel which has been totally lost
by collision is not entitled to the benefit of an
act limiting his liability to the other vessel
[555]until after the balance of damage has been
struck, it would seem to follow that the
sunken vessel is not entitled to the benefit
of any statute tending to lessen its liability
to the other vessel, or to an increase of the
burden of such other vessel, until the amount
of such liability has been fixed upon the prin-
ciple of an equal division of damages. This
is in effect extending the doctrine of the Dela-
ware case, wherein the question of liability
for the loss of the cargo was not in issue, to
one where the vessel suffering the greater in-
jury is also the carrier of a cargo-in other
words, if the Harter act was not intended to
increase the liability of one vessel toward
the other in a collision case, the relations of
the two colliding vessels to each other remain
unaffected by this act, notwithstanding one
or both of such vessels be laden with a cargo.
We are therefore of opinion that the court
of appeals did not err in deducting half the
value of the cargo from half the value of the
sunken schooner, and in limiting a recovery
to the difference between these values.
The decree is affirmed.

Statement by Mr. Chief Justice Fuller: *This is a certificate from the circuit court[556] of appeals for the fifth circuit, stating that the "suit was originally brought_by_Stuart Newell against Eliza Cooper and B. P. Cooper and Fannie Westrope, as defendants, in the circuit court in and for the eastern district of Texas, sitting at Galveston, in the ordinary form of trespass to try title, under the Texas statutes, to recover one hundred and seventy-seven acres of land in Harris county, Texas, described in plaintiff's petition, which said petition was filed on the 5th day of July, 1890. The said Stuart Newell was alleged to be a citizen of New York, and the said defendants all citizens of Texas."

That prior to the trial Stuart Newell died, and the proper persons were duly made parties plaintiff, as well as an additional party defendant, and plaintiffs filed their fifth amended original petition, in which, in addition to the usual averments required to be made by the Texas statutes in an action of trespass to try title, plaintiffs further alleged that defendants set up title to the land[557] in controversy through a judgment rendered May 21, 1850, in the district court of Brazoria county, Texas, in favor of Peter McGrael and against Stuart Newell, a certified

The Chief Justice and Mr. Justice copy of which proceedings was attached to Peckham dissented.

ELIZA COOPER et al., Plffs. in Err.,


EDWARD S. NEWELL and Clarence B.
Smith, Executors.

(See S. C. Reporter's ed. 555-573.)
Jurisdiction of state court, when open to

1. When a judgment of a state court comes un

der cons deration in a court of the United

and made a part of said amended petition;
and "that said judgment was null and void
and was not binding on the said Stuart New-
ell nor plaintiffs, nor could defendants claim
title under said judgment for the following
reasons, viz.:

"That at the time of the filing of said
suit and the rendition of said judgment said
Stuart Newell was not a resident of Brazoria
county, Texas, nor of the state of Texas, nor
was he then within said Brazoria county or
the state of Texas; that at no time did he
ever reside in Brazoria county, Texas; that
Newell, who then resided in Galveston coun-
on the 2d day of January, 1848, said Stuart
renty, Texas, removed from said Galveston coun-
ty to the city of Philadelphia, in the state of
Pennsylvania, and resided in said city of
Philadelphia, in the state of Pennsylvania,
continuously from said date until the year
1854, when he removed from said city of
Philadelphia to the city of New York, in the
state of New York, where he continued to re-
side up to the time of his death, to wit, April
11th, 1891.

States sitting in the same state, the ques-
tion of jurisdiction of the state court to
der the judgment is open to inquiry in the
United States cour..

2. In such case, evidence is admissible to con-
tradict the recital in the judgment that de-
fendant was a citizen and resident of the
state, and to show that he was not served
with process and that the attorney who ap-
peared for him had no authority to represent


[No. 134.]

"That during the time of his residence in the city of Philadelphia he was a resident Argued and Submitted January 12, 13, 1899. citizen of the state of Pennsylvania, and dur

Decided April 3, 1899.

N CERTIFICATE from the United States

ing his residence in the city of New York
he was a resident citizen of the state of New
York, and has never at any time been a citi

ON United never bee, at any

Circuit certifying a certain question of law
to this court for decision in an action
brought by Stuart Newell, for whom his ex-
ecutors, Edward S. Newell et al., were sub-
stituted, against Eliza Cooper et al., in the

time since the year 1848, when he left Gal-
veston county, been anywhere in the state of
Texas, but at all times since said year 1848,
up to the time of his death, had resided and
been without the limits of the said state of

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Texas and within the said city of Philadelphia, state of Pennsylvania, and the said city of New York, in the state of New York; that Stuart Newell was never served with citation, process, or otherwise notified of the existence of said suit of Peter McGrael v. Stuart Newell; nor was he a party to said suit with his knowledge, consent, or approval; nor did he submit himself to the jurisdiction of the said court; nor did he employ [558]or *authorize anyone to represent him or enter an appearance in said suit; nor did he know of the existence of said suit in any manner until just prior to the institution of this suit.

land, and also be condemned to pay a reasonable rent for the same. Prayer was likewise made for general relief, and that plaintiff be quieted in his title and possession of the said land. This petition was filed on the 20th day of May, 1850, and contained the following indorsement. This suit is brought as well to try title as for damages. J. B. Jones, att'y for plaintiff.'

"2d. The following answer, filed May 20, 1850, viz.:

"In the Honorable District Court, May Term, A. D. 1850.

Peter McGrael


Stuart Newell.

(Signed) J. A. Swett,

Att'y for Defendant. "And now, at this term of your honorable court, comes the said defendant, Stuart Newell, and defends, etc., and says that he denies all and singular the allegations in said plaintiff's petition contained.

(Signed) J. A. Swett,

"That if any attorney appeared for said Stuart Newell in said suit he did so without any authority, permission, knowledge, or "And now comes the defendant, Stuart consent of or from the said Stuart Newell, Newell, and says that the matters and things and that such appearance, if any there was, in plaintiff's petition are not sufficient in law was through collusion with said attorney for the plaintiff to have or maintain his said and plaintiff in said suit to injure and de-action against this defendant. Wherefore fraud the said Stuart Newell; and it was he prays judgment. expressly denied that I. A. or J. A. Swett had any authority or permission from said Stuart Newell to enter an appearance in said cause, nor was such appearance on the part of the said I. A. or J. A. Swett done with the knowledge, consent, or approval of said Stuart Newell; that at the time of the entry of said judgment said Stuart Newell had a meritorious defense to said suit, and was the owner in fee simple to the lands herein sued for by virtue of a deed of conveyance to him the said defendant says that he is not guilty from said Peter McGrael, plaintiff in said suit, executed and delivered on August 9th, in manner and form as the said plaintiff in 1848, and that at no time since said date his said petition hath complained against had said Peter McGrael any title or interest him; and of this he puts himself upon the in the lands in controversy. Attached to plaintiffs' said petition was a certified copy of the record in the case of Peter McGrael v. Stuart Newell in the district court of Brazoria county, Texas, to which was attached the certificate of the clerk that said record contained a full, true, and correct copy of all the proceedings had in said suit, and which record was afterwards put in evidence on the trial by defendant.

"This record consisted of, 1st, a petition in the ordinary form of trespass to try title, in which Peter McGrael was plaintiff and Stuart Newell was defendant, and in which petition it was alleged that Peter McGrael was a resident citizen of the county of Brazoria, state of Texas, and that Stuart Newell was a resident citizen of the county of Brazoria, state of Texas. A number of different tracts of land, one of which was situated in Brazoria county, were described in said petition, among them the land in controversy, which was alleged to be situated, then as now, in Harris county, Texas. Said petition likewise contained a prayer that [559]Stuart *Newell be cited to appear before the next term of the said district court of said Brazoria county, and that he be condemned to restore to plaintiff the peaceable possession of the said lands, and that he and all other persons be thereafter restrained from disturbing plaintiff in the possession and use thereof, and that defendant be condemned to pay plaintiff five thousand dollars damages for taking possession of said tracts of

Att'y for Defendant. "And for further answer in this behalf



J. A. Swett,
Att'y for Defendant.'

*"3d. The following order of court:

66 "Peter McGrael


Stuart Newell.


No. 1527.

Monday, May 20, 1850. ""In this cause both parties being present, by their attorneys, the demurrer of defendant to plaintiff's petition came on, and, being heard by the court, was overruled.' "4th. The following decree: "Teter McGrael


Stuart Newell.

No. 1527.

Tuesday, May 21, 1850. ""This day came the parties, by their attor neys, and the demurrer of the defendant being heard, the same was overruled; and thereupon came the following jury of good and lawful men, to wit (here follow names of the jurors), who, after hearing the evidence and argument, thereupon returned the fol. lowing verdict:

"We, the jury find for the plaintiff, and that he recover the several tracts of land mentioned and described in the petition.

E. Giesecke, Foreman.

"It is therefore ordered, adjudged, and decreed by the court that the plaintiff do have and recover of and from the defendant


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