the damages beyond what appears just, as between the parties, courts will decline to allow it. In all cases, however, its allowance is a matter of damages, and is to be added to the amount recovered, and cannot be in any sense considered as part of the costs in the case. Upon the final entry of the decree by the trial court, interest runs at the legal rate, unless upon appeal the court for sufficient cause orders otherwise.3

Sec. 207. Insurance.- It is no defense to an action for damages for collision that the injured party has received insurance for the damages incurred. The party at fault may not shield himself by showing satisfaction for the damages received through payment by another. The insured in such cases may recover as fully as though no insurance had been received. The insurer, however, has the right to claim whatever damages are recovered, the insured being his trustee for an amount equal to the insurance paid.' The insurer may, if he sees fit, maintain an action in his own. name against the vessel at fault. The item of insurance on a cargo lost is to be taken into consideration in computing its value at the place of collision."

Sec. 208. Wages of crew.- Ordinarily, in case of partial loss, the wages of the crew cease where the repairs extend over any considerable period of time. To entitle a recovery

1 The Alaska, 44 Fed. R. 498. 2 The Wanata, 5 Otto, 600.

3 The José E. Moré, 37 Fed. R. 122; The Umbria, 59 Fed. R. 475; The Blenheim, 18 Fed. R. 47.

4 The Potomac, 15 Otto, 630; 3 Woods, 158; Fritz v. Bull, 12 How. 466; The Ann C. Pratt, 1 Curt. 380; The Sarah Ann, 2 Sumn. 208.

5 The Manistee, 5 Biss. 381. Where an insurance company paid a loss caused by the stranding of a lighter by reason of the negli

gence of a tug, and took an assignment of the claim against the tug for the loss, it was held that the company was not estopped from alleging negligence on the part of the tug, by reason of an exemption of liability specified in its policy for all losses arising from want of ordinary care and skill in navigating the vessel assured. In re Harris, 57 Fed. R. 243.

6 The Umbria, 59 Fed. R. 489. Where two vessels collided and

for wages and expenses of the crew left aboard during the period of repairs, it must clearly appear that there is a necessity for the crew to remain aboard, or that the vessel is under such contract relations with them that they cannot be discharged without liability on the part of the vessel.1 Where it is shown that the repairs can more speedily and more economically be made by keeping the crew aboard than otherwise, recovery for their expenses and wages may properly be allowed as an item of damages. The right of seamen to recover damages is dependent upon the right of their ship to recover. When no recovery can be had for damages sustained by their vessel, by reason of its negligence, no recovery can be had by the crew for damages sustained; and where both are at fault the crew can recover from the other ship but half the loss sustained by them.2

Loss of the per

Sec. 209. Personal effects of seamen.sonal effects of seamen engaged on board a vessel injured by collision is a proper item of damage to be assessed against the offending ship, where the vessel to which the seamen belong is not guilty of negligence or misconduct; where their vessel is at fault, no right of action accrues, by reason of such fault, except in case of mutual fault. The interests of

each was adjudged to be in fault and required to pay one-half the joint damages sustained, it was held that insurance money received by one was not to be deducted from the share which the other was required to pay, even though the underwriters voluntarily released her from all claims for her fault. Cannon v. The Potomac, 3 Woods, 158.

Where a cargo was partially destroyed by collision, the court held that the true rule of damages was to allow the cost of the cargo at the place of shipment, with expenses, charges, insurance and in

terest to date; that insurance on the value of the cargo at the place of shipment formed a part of the charges to be allowed. The Aleppo, 7 Ben. 120.

1 The Sarah Thorp, 46 Fed. R. 816; New Haven Steamboat Co. v. Mayor, 36 Fed. R. 716; The Belgenland, 36 Fed. R. 504.

Where the court allowed the cost of a vessel employed to take the place of the disabled vessel, it refused to allow the wages of the crew of the disabled vessel during the period of making repairs. The Santee, 48 Fed. R. 126.

2 The Queen, 40 Fed. R. 694.

the mariner and his ship are so far identical that he is affected by its conduct; where both vessels are at fault, recovery for one-half the value of their personal effects may be had against the one to which the mariner seeking to recover does not belong. Seamen are not liable to have their recovery for loss of personal effects applied to make up their vessel's share of the loss of cargo, in a case of collision resulting through its negligence. As to the personal effects of the master a different rule prevails. He being personally responsible to the cargo-owner for the negligence of his subordinates, his personal effects are liable for the damages assessed against his vessel for the negligence of his crew.

Sec. 210. Set-off. Where there is a joint liability on the part of two or more vessels for damages suffered by another, the latter may at its pleasure elect to proceed against all jointly, or against one only, for the entire damage. Where recovery has been had against one only of several jointly liable, the one against which the action is brought may recover from the other its proportionate part of the amount for which the vessel is held. In an action between the vessels at fault, subsequently arising, or tried at the same time, the owners of the vessel against which damages have been assessed may set off against the others their proportionate amount of the total damages incurred."

Sec. 211. Miscellaneous charges.- Wharfage and storage charges during the time repairs are being made;' salvage

1 The City of New York, 25 Fed. R. 149; The Minnie, 26 Fed. R. 860; The Queen, 40 Fed. R. 694.

against the amount decreed by the court for it to pay, one-half of the damages already recovered against

2 The City of New York, 25 Fed. the steamer by the owners of the R. 149.

3 The Canima, 17 Fed. R. 271. Where a schooner was lost in a collision with a steamer, by the fault of both, and the damages were equally divided, it was held that the steamer could set off,

schooner's cargo. The Hercules,

20 Fed. R. 205.

4 Vantine v. The Lake, 2 Wall. Jr. 52; The James A. Dumont, 34 Fed. R. 428; The Fannie Tuthill, 17 Fed. R. 87; The City of New York, 23 Fed. R. 616.

expenses incurred by an injured vessel in being rescued from the perils resulting from the negligent acts of another;1 towage made necessary by collision; expenses incurred in saving the surviving crew of a vessel at fault for their support and return to land;3 average charges,—are all properly chargeable as damages against the offending vessel.

Costs: The matter of pronouncing costs is largely discretionary with the court. As a rule the prevailing party is entitled to his costs; but where there is no ground for discrimination between the parties, both being equally at fault, the court may, if it deems the ends of justice to be furthered, equally divide the damages. The circumstances of each case must govern the court in the matter of awarding costs.5

1 The Cepheus, 24 Fed. R. 507; 3 Leonard v. Whitwell, 19 Fed. R. The Ackerman, 8 Ben. 496; The 547. Narragansett, Olc. 388; Seabrook v. Raft R. R. Ties, 40 Fed. R. 596; La Champagne, 53 Fed. R. 398; Greenwood v. The Fletcher and The Grapeshot, 42 Fed. R. 504.

2 The Fannie Tuthill, 17 Fed. R. 87; The Alaska, 44 Fed. R. 498; The Benjamin F. Hunt, Jr., 34 Fed. R. 816.

4 The Mary Patten, 2 Low. 196: Kirk v. The Osseo, 8 Rep. 328; Vanderbilt v. Reynolds, 16 Blatch. 80; The Pennsylvania, 15 Fed. R. 814; The Hercules, 20 Fed. R. 205; The Robert Jenkins, 22 Fed. R. 797; The Warren, 25 Fed. R. 782.

5 The Energia, 61 Fed. R. 222.

CHAPTER XIV.

LIMITED LIABILITY OF OWNERS.

Sec. 212. History of the act.-The act of congress of March 3, 1851, provides that "the liability of the owner of any vessel for embezzlement, loss or destruction by any person of any property, goods or merchandise shipped or put on board of such vessel, or for any loss, damage or injury by collision, or for any act, matter or thing lost, damage or forfeiture done, occasioned 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." By the civil as well as the common law the owners of a ship were responsible to the whole extent of the damage done, whether inflicted by the direct and personal negligence of the owner or by the wrongful act or neglect of the master or crew. By the maritime law prevailing both in ancient and modern Europe, the liability of the owner was limited to his interest in the vessel and freight if free from personal fault. It will therefore be observed that the act of congress of March 3, 1851, defining the ship-owner's liability, and which is the foundation of the system of the limited liability prevailing in the United States, is substantially declaratory of the maritime rule prevailing in most European countries, although it appears never to have been adopted in this country prior to the passage of the statute; and although it is now a part of

19 U. S. Stat. at L. 635; U. S. Rev. Stat., secs. 4283-4289; Act June 26, 1884, 23 U. S. Stat. at L. 57; Act June 19, 1886, 24 Stat. at L. 81; Act February 13, 1893, 27 Stat. at L. 445; Moore v. The Am. Trans. Co., 24 How. 1.

2 Norwich Co. v. Wright, 13 Wall. 116; In re Long Island Transp. Co., 5 Fed. R. 599.

3 The Rebecca, 1 Ware, 187, 188; The Scotland, 15 Otto, 24; Norwich Co. v. Wright, 13 Wall. 104.