The Eugene F. Moran

delivered the opinion of the court.

These cases come here on certificates setting forth in nearly the same terms the facts of a collision. They both are proceedings in rem. In the-first the New York Central and Hudson River-Railway Company, as owners of a car-float that was damaged, libels the steam tug Charles D. Matthews, the steam'tüg Eugene F. Moran, and the scows 15 D and 18 D. In the-second, the Henry Dubois Sons Company, as owner of the two scows, libels the two steam tugs. The statement of facts, slightly abridged, is as follows: At about half past seven, in the evening - of February 1, 1905, thé railroad company’s car-float was pro *473 ceeding up the Hudson River in tow of the tug Matthews, the navigation of the two being conducted, solely by the master of the tug. They met the tug Moran, which was towing two mud scows down the river, scow 15 D, immediately behind the Moran, on a hawser, and behind 15 D scow 18 D on another hawser. A collision took place between the car-float and 15 D. Neither 15 D nor 18 D had the required lights. There was an employé of the owner in charge .of each scow, and it was their duty as well as the duty of the master of the Moran to have the lights put up. The Moran was guilty of other faults also, so that the tug and the scows all three wrongfully contributed to the damage done'to the float. The tug Matthews also was to blame, but the car-float was not, unless, contrary to Sturgis v. Boyer, 24 How. 110, answerable for the faults of the Matthews, which her owner had hired to move her from place to place in the harbor. The cases in the District Court are reported in 143 Fed. Rep. 187; in the Circuit Court of Appeals, in 154 Fed. Rep. 41, and 83 C. C. A. 153.

The question, certified in the first case is, “In what proportion shall the damages sustained by the car-float be assessed upon the offending vessels?”. In the second the same question is put concerning the damages sustained by the libellant, the owner of the two scows. In the latter case neither the car-float nor the scow 18 D are made parties or brought in. Thé District Judge divided the liability for damages to the float equally among the four vessels in fault, and on the same principle charged one-quarter of the damage suffered by scow 15 D to that scow and one-quarter to each of the other three, thus leaving the libellant to bear one-half and dividing the other half between the two tugs. Counsel for the two tugs agree, that this result was right, although it is argued for the Moraii that the true ground for it in the second case is the rule that when .a vessel has contributed to a collision by her own fault her owner cannot recover more than one-half of the damages.

For the Henry Dubois Sons Company, which as owner of the two scows was required to pay óne-half the total amount due *474 to the float, it is contended that 'the court should look to the owners after they have appeared, and should divide the damages on the ordinary principles of personal liability into thirds, or else regard the Moran and the two scows as one vessel, jointly liable for one-half, each owner to bear a quarter as between themselves. There is a faint suggestion that in the last apportionment regard might be had to the degree of fault.

The New York Central Railroad gets all its damages in any view, unless Sturgis v. Boyer, 24 How. 110, should be overruled. In that case it was held that a tug. having control of a vessel in tow was solely responsible to a lighter upset by the vessel through the fault of the tug alone. (For the opinion of Judge Betts below see note to The Express, 46 Fed. Rep. 864.) We see no reason why the decision should not stand. No doubt the fiction that a vessel may be a wrongdoer and may be held, aithough the owners are not personally responsible on principles óf agency or otherwise, is carried further here than in England. The China, 7 Wall. 53; The Barnstable, 181 U. S. 464, 467, 468; Homer-Ramsdell Transportation Co. v. La Compagnie Générale Transatlantique, 182 U. S. 406, 413, 414. See The Blackheath, 195 U. S. 361, 366. Possibly thé survival of the fiction has been helped by the convenient security that it furnishes, just7 as no doubt the responsibility of a master for a servant’s torts, that he has done his best to prevent, has been helped by the feeling that it was desirable to have some one who was able to pay. See Williamson v. Price, 4 Martin, N. S. 399, 401; Williams v. Jones, 3 H. & C. 256, 263. But after all a fiction is not a satisfactory ground for taking one man’s property to satisfy another man’s wrong, and it should not be extended. There is a practical line and a difference in degree, between thé case where the harm is done by the mismanagement of the offending vessel and that where it is done by the mismanagement of another vessel to which the immediate but innocent instrument of harm is attached. See The Clarita and The Clara, 23 Wall. 1; The Alabama and The Gamecock, 92 U. S. 695, 697; The Atlas, 93 U. S. 302, 318.

*475 The fact that the vessels composing each flotilla were bound together is not sufficient ground for treating each flotilla as a unit. This follows pretty closely from the considerations that. we have urged. If the attachment of the car-float to the Matthews did not make the car-float responsible to 15 D, or affect the extent' or principles of its recovery for damage to itself, there seems to be no reason why a similar attachment should affect the distribution of liability among the vessels that were in fault. Their'faults were several. The failure of one scow to show a light was distinct in fact and as a cause from the failure of the others to do the same thing, and from the faults of navigation -of the Moran. In this casej at least, the attachment ought to have no more effect in diminishing liability for the. guilty than in creating it for those free from blame. See, The Express, 44 Fed. Rep. 392; S. C., 46 Rep. Fed. 860; S. C., 52 Fed. Rep. 89; Lyndhurst, 92 Fed. Rep. 681; Maling, 110 Fed. Rep. 227; S. C., S. A. McCaulley, 116 Fed. Rep. 107; Nettie L. Tice, 110 Fed. Rep. 461.

- On the other hand, although not to be regarded as a unit simply because they were tied together, the offenders severally are subject to a lien by the established principles of the proceeding in rem. • It is said, truly enough, that if each scow has to pay a quarter, the amount -with which the owners will be charged will be greater than in a personal suit where the owners all are solvent and pay each his share. But without invoking on the other side the characteristic vicissitudes of personal suits in tort, we may say that there is no injustice. Although even the admiralty does not attempt to go far in the quantification of'damages, it is not an unreasonable supposition that on an average the owner of two vessels, each concurring in a wrongful result, will contribute twice as much toward producing it as if he had owned only one. If the second scow had been owned by another it would have had to pay its share. ■ It is contrary to the theory of these proceedings to allow ownership to affect the case. We are of opinion that the District Court was right .in .dividing the damages equally among the guilty vessels' *476 in the first suit. There is nothing stated sufficient to reopen the question, if there is one, as to changing the apportionment when-there are different degrees of blame. The Atlas, 93 U. S. 302; The Max Morris, 137 U. S. 1. The fact that 18 D is not a party to the second suit does not matter, so far as the question of partially exonerating those before the court is concerned.

• We have discussed- the question on the' assumptions upon which it is presented, but there is one point that seems to us to deserve further consideration from the Circuit Court of Appeals. The only fault on the part of 18 D, that is set out in the statement, is the absence of a light, and it is said that “therefore” it was party to a common fault. We doubt whether the conclusion follows from the premises. When a duty is imposed for the purpose of preventing a certain consequence, a breach of it that does not lead to that consequence does not make a defendant liable for the tort of a third person merely because the observance of the duty might have prevented that tort. See Gorris v. Scott, L. R. 9 Ex. 125; Ward v. Hobbs, 4 App. Cas. 13, 33. The question arises, therefore, whether the duty to give warning by a light was imposed upon 18 D for any other purpose than to prevent collision with itself. If not, then as the boats. are dealt with as individuals and not as parts of a single whole, we do.not see how the absence of a light ón 18 D can be said to have contributed to the loss. Pilot Rule 11, under the act of June 7, Í897, c. 4, § 2, 30 Stat. 96, 102, requiring the light, is quoted in The Komuk, 120 Fed. Rep. 841, 842. A duty of wider scope has been thought to exist in a somewhat different-case. The Lyndhurst, 92 Fed. Rep. 681, 682.

On the second question also, subject to the doubt just suggested, it appears to us that the course of the District Judge was right in principle as well as in result. As observed in The Maling, 110 Fed. Rep. 227, the quantum of liability ought not to be affected by the position of the party concerned as co-defendant or plaintiff, and the -rule of equal division among the guilty vessels has prevailéd, in some cases, "at least, as well when one of them was the libellant as when they were all on the same side. *477 The Brothers, 2 Biss. 104. See S. C., on appeal, Fed. Cas. No. 9322; Peshtigo, 25 Fed. Rep. 488.

We answer the question in the first case, No. 87: Equally.

We answer the question in the second case: Equally, the offending vessel or vessels of-the libellant bearing their proportion of tíie loss.