193 F.

2d 631

SOMERSET SEAFOOD CO.

v.
UNITED STATES.
No. 6295.

United States Court of Appeals Fourth Circuit.

Argued November 6, 1951.
Decided December 19, 1951.

COPYRIGHT MATERIAL OMITTED Donald D. Webster and John D.

Alexander, Baltimore, Md. (Wm. Pepper Constable, Baltimore, Md., on
the brief), for appellant.
Thomas F. McGovern, Sp. Asst. to the Atty. Gen. (Holmes Baldridge,
Asst. Atty. Gen., Bernard J. Flynn, U. S. Atty., and James B. Murphy,
Asst. U. S. Atty., Baltimore, Md., on the brief), for appellee.
Before PARKER, Chief Judge, DOBIE, Circuit Judge, and MOORE,
District Judge.
DOBIE, Circuit Judge.

The Somerset Seafood Company (hereinafter called Somerset) filed a civil

action in the United States District Court for the District of Maryland, under the
Federal Tort Claims Act (hereinafter called the Act), seeking damages from the
United States for the loss of Somerset's oyster boat, The T. H. Anderson,
alleged to have been stranded on the wreck of The San Marcos (the old
battleship Texas, renamed), which, in 1911, had been sunk by the United States
in the navigable waters of Chesapeake Bay. The complaint alleged that the loss
of The Anderson was due solely to the negligence of the United States in
creating and marking the wreck of The San Marcos.

The District Court held that (1) the complaint stated a case within the Tort
Claims Act under federal wreck-marking statutes; (2) that the maritime law as
adopted by the State of Virginia, applying the rule of divided damages for
contributory negligence was the "law of the place" under the Tort Claims Act;

(3) that defendant in maintaining the wreck buoy approximately 525 feet from
the nearest part of the 300 foot long wreck did not negligently mark it; (4) that
the wreck was not a continuing nuisance; and (5) that the stranding was
proximately caused by incompetent and defective navigation of the Mate of
The Anderson who apparently avoided the buoy by 750 feet, and passed with
the wreck buoy on his right hand.
3

The complaint was, accordingly, dismissed and Somerset has appealed. The
opinion below is reported in D.C., 95 F. Supp. 298.

We think the District Judge correctly ruled that the complaint stated a case
under the Act, though the question is not free of difficulty.

Here we are particularly concerned with Sections 1346, 2674, 2680 of the Act,
all found in 28 U.S.C.A. Section 1346(b) provides that the federal District
Courts "shall have exclusive jurisdiction of civil actions on claims against the
United States, for money damages, * * * for injury or loss of property, or
personal injury or death caused by the negligent or wrongful act or omission of
any employee of the Government while acting within the scope of his office or
employment, under circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of the place where
the act or omission occurred."

The test of liability under the Act is thus prescribed in Section 2674: "The
United States shall be liable, respecting the provisions of this title relating to
tort claims, in the same manner and to the same extent as a private individual
under like circumstances, but shall not be liable for interest prior to judgment or
for punitive damages."

In Section 2680 are listed twelve classes of cases expressly excepted from the
grant of jurisdiction under the Act, and we quote two of these excepted classes:

"(a) Any claim based upon an act or omission of an employee of the

Government, exercising due care, in the execution of a statute or regulation,
whether or not such statute or regulation be valid, or based upon the exercise or
performance or the failure to exercise or perform a discretionary function or
duty on the part of a federal agency or an employee of the Government,
whether or not the discretion involved be abused."

"(d) Any claim for which a remedy is provided by sections 741-752 (Suits in
Admiralty Act), 781-790 (Public Vessels Act) of Title 46, relating to claims or

suits in admiralty against the United States."

10

The contention of the United States that the case before us is not within the Act
seems to stem primarily from 2680(d) just quoted above, which, we are told,
evidenced an intent on the part of Congress to except from the Act all maritime
torts which might be made the basis for a suit in admiralty. With this we cannot
agree, and we think it is necessary to add little to what was said by the District
Judge.

11

The instant action was not brought, and could not be brought, under either the
Suits in Admiralty Act, 46 U.S.C.A. 741 et seq., or the Public Vessels Act, 46
U.S. C.A. 781 et seq. The exceptions in 2680(d) of the Act are expressly
limited to claims under the Suits in Admiralty Act and the Public Vessels Act.
It seems crystal clear, as the District Judge pointed out, that the two Acts just
mentioned fall far short of covering the whole field of maritime torts. See,
United States v. Spelar, 338 U.S. 217, 220, Notes 6, 9, 70 S.Ct. 10, 94 L.Ed. 3;
Baltimore, Crisfield & Onancock Line, Inc., v. United States, 4 Cir., 140 F. 2d
230; Corby v. Ramsdell, 2 Cir., 48 F.2d 701; State of Maryland, to use of Pryor,
v. Miller, 4 Cir., 194 F. 775.

12

We are not impressed by the scattered remarks of some members of Congress,

found in the Congressional Record, that the legislative intent was to include
within the ambit of the Act only common law torts and to exclude all maritime
torts. The Act must be given a liberal construction to ward off the obvious evil
which the Act was passed to prevent the cumbersome and unwieldy practice
of seeking relief in Congress by private bills. The jurisdiction granted to the
federal District Courts by 1346(b) of the Act is couched in quite broad and
very expansive language. See, United States v. Aetna Casualty & Surety Co.,
338 U.S. 366, 383, 70 S.Ct. 207, 94 L.Ed. 171; American Stevedores v. Porello,
330 U.S. 446, 453, 67 S.Ct. 847, 91 L.Ed. 1011; United States v. Travis, 4 Cir.,
165 F.2d 546, 547.

13

We find no merit in the contention that the United States is relieved of liability
by virtue of 1346(b) and 2674 of the Act. By 1346(b) liability is imposed
"under circumstances where the United States, if a private person, would be
liable"; while 2674 reads: "The United States shall be liable * * * in the same
manner and to the same extent as a private individual under like
circumstances".

14

The initial duty of removing or marking a wrecked ship rests upon the owner
until abandonment of the ship. After abandonment, this duty clearly rests on the

United States under the Wreck Acts, 33 U.S.C.A. 409, 736, 14 U.S.C.A.
86, in substitution for the initial activity required of the individual owner. Here,
the United States was the original owner of The San Marcos, before its
abandonment.
15

There is nothing in the celebrated case of Feres-Jefferson-Griggs v. United

States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152, which militates against our
conclusion, which was also that of the District Judge. All that case really
decided was "the Government is not liable under the Federal Tort Claims Act
for injuries to servicemen where the injuries [arose] out of or are in the course
of activity incident to service." 340 U.S. at page 146, 71 S.Ct. at page 159. Mr.
Justice Jackson in his opinion 340 U.S. at page 139, 71 S.Ct. at page 156,
remarked: "The Tort Claims Act was not an isolated and spontaneous flash of
congressional generosity. It marks the culmination of a long effort to mitigate
unjust consequences of sovereign immunity from suit." See, also, Cerri v.
United States, D.C., 80 F.Supp. 831; Moran v. United States, D.C., 102 F.Supp.
275. Cf. United States v. Travis, 4 Cir., 165 F.2d 546; Baltimore, Crisfield &
Onancock Line, Inc. v. United States, 4 Cir., 140 F.2d 230; The Mary A.
Bickel, 4 Cir., 46 F.2d 988; Gilbert v. Trinity House, 1886, 17 Q.B.D. 795;
Jolliffe v. The Wallasay Local Board, 1873, L.R. 9 C.P. 62.

16

It is suggested that it was not intended to impose liability on the United States
for damages arising out of the exercise of what are essentially "governmental"
functions as distinguished from those which might be carried on by private
individuals, but we think that there is no basis for such distinction. As was said
by Judge Roche in Cerri v. United States, D.C.N.D.Cal., 80 F.Supp. 831, 833:
"The defense that this act does not apply to those cases wherein the negligence
occurred during the exercise of a sovereign power of the United States, if
heeded, would create a twilight zone of governmental activities in which the
consent given by this statute could not be applied. Too numerous are the affairs
of a purely governmental or sovereign nature, prohibited to or not duplicated by
the activities of private individuals, to consider this to be the intent of Congress.
Certainly, the statute itself makes no distinction between governmental
activities of a sovereign nature and those of a proprietary nature, nor does it
include within the claims exempted, 28 U.S.C.A. 943 (under revision of
1948, 28 U.S.C.A. 2680), those of this type."

17

The case is favorably discussed by Judge Yankwich in 9 F.R.D. 143, at page

156 where he says: "In this respect, the opinion accords with the latest
decisions of the Supreme Court which do not recognize in the law of public
liability of the United States the distinction between governmental and other
capacities. This was put very pithily by Mr. Justice Frankfurter in a well-known

case: `Government is not partly public or partly private, depending upon the
governmental pedigree of the type of a particular activity or the manner in
which the Government conducts it.' Federal Crop Ins. Corp. v. Merrill, 1947,
332 U.S. 380, 383, 68 S.Ct. 1, 92 L.Ed. 10." And in Keifer & Keifer v.
Reconstruction Finance Corporation, 306 U.S. 381, 391, 59 S.Ct. 516, 518, 83
L.Ed. 784, the Supreme Court, in holding that a governmental corporation's
liability to suit is not to be inferred from whether it is or is not doing the
government's work, said: "Congress has provided for not less than forty of such
corporations discharging governmental functions, and without exception the
authority to-sue-and-be-sued was included. Such a firm practice is partly an
indication of the present climate of opinion which has brought governmental
immunity from suit into disfavor, partly it reveals a definite attitude on the part
of Congress which should be given hospitable scope."
18

We think, too, that the Wreck Acts effectively dispose of the contention that the
United States is relieved of liability here because, under 2680(a) of the Act,
the Government is not liable for the breach of a discretionary duty and that the
Government's duty here to remove or mark the wreck was discretionary. As we
read the Wreck Acts, the duty of the United States to mark or remove the wreck
is mandatory. The appropriate federal agencies and officers decide merely the
proper methods or measures.

19

In addition to this, we think that, even if the decision to mark or remove the
wreck be regarded as discretionary, there is liability for negligence in marking
after the discretion has been exercised and the decision to mark has been made.
There is certainly no discretion to mark a wreck in such way as to constitute a
trap for the ignorant or unwary rather than a warning of danger. See Johnston v.
District of Columbia, 118 U.S. 19, 6 S.Ct. 923, 30 L.Ed. 75; Costley v. United
States, 5 Cir., 181 F.2d 723; Toledo v. United States, D.C., 95 F. Supp. 838;
Dishman v. United States, D.C., 93 F.Supp. 567, 571. As said by Judge
Chesnut in the case last cited: "This exception is not applicable here. This is not
a case in which in the exercise of discretion or judgment the officials of the
Veterans Hospital declined to give the plaintiff treatment, but it is a case where
having exercised their discretion to give the treatment, in accordance with the
applicable regulations, the treatment given was negligent." The District Judge
concluded affirmatively "the proximate cause of the stranding of plaintiff's boat
was incompetent and defective navigation." We quote from the District Judge's
findings of fact numbers 13, 16 and 17:

20

"13. There is plenty of water for small vessels to give the wreck adequate sea
room; and prudent mariners pass the wreck with mile to a mile clearance.
The course given by the captain of the T. H. Anderson to his mate would have

passed the wreck to the southerly a considerable distance off the wreck."
21

"16. The mate, Lennie Carter, is a young colored man about 25 years old who
resided at the hailing port of the vessel, Deal Island, Maryland, all his life. For
some years past he had had seasonal occupation on boats and had from time to
time been employed by the plaintiff for that service. He had had only a limited
education, was not a licensed pilot, and his evidence in the case as a witness
quite clearly showed that though doubtless well intentioned he was not a
competent navigator and could probably have been trusted to navigate even a
small boat such as the Anderson only under very simple and not difficult or
dangerous conditions. He had been employed on the Anderson for some little
time prior to the accident and on occasions had been permitted to steer the boat;
but he was not competent to read or understand the chart or to lay out a proper
course to be steered. His vision was not good owing to the fact that he was
cross-eyed and had been rejected for the Army in 1943 by reason of defective
eyesight. He would not have been able to qualify for an able bodied seaman's
certificate. Jabez Webster, the other crew member, had adequate vision."

22

"17. * * * The mate, Lennie Carter, had accompanied (Captain) Anderson on

the boat for about 5 trips during the 1949 season before the collision. Anderson
had told Carter about the wreck and not to keep close to it. He had also shown
Carter the location of the buoy on the chart. On one or more occasions in 1949
when Carter was on the boat it had passed the buoy a good distance to the
south. When he turned the wheel over to mate Carter about 2.00 A.M. and
about 10 miles from the buoy, he told Carter to keep the boat on the course
which he had then laid out which was northeast by east, and which course if
kept and pursued would have taken the Anderson at least half a mile southerly
from the buoy which would thus have been passed by the Anderson on her port
side."

23

Mate Carter testified that he passed the buoy on the righthand side, never
coming closer than 750 feet to the buoy. There is ample evidence to sustain this
conclusion and these findings, with which we agree.

24

We cannot agree, however, with the District Judge's conclusion that the United
States was free from negligence. We think the sinking of The Anderson was
due both to the negligence of the United States and to the faulty navigation of
The Anderson.

25

When The San Marcos was first sunk, in 1911, a considerable part of the vessel
projected above the surface of the water. For some time prior to The Anderson

accident, however, only a small part of the vessel was visible and then only at
very low tide. At least two other boats, The Fay Ray and The Lexington, had
run on the submerged wreck before The Anderson. There is constant navigation
on Chesapeake Bay.
26

There had been no little correspondence between the Coast Guard and the
Corps of Engineers concerning the propriety of the marking of the wreck. In
one letter, dated February 18, 1949, the Commandant, Coast Guard
Headquarters, Washington, advised the Chief of Engineers that it would cost
about $30,000. to erect a lighthouse on the wreck in place of the buoy and that
the Coast Guard would do the work on a reimbursable basis. This letter
contained the following sentence: "The effectiveness of this and (the bell buoy)
could probably be increased if the buoy were placed closer to the wreck." In a
letter from Lt. Colonel Welling, Corps of Engineers, to the Chief of Engineers,
it is stated: "The wreck of the San Marcos is considered a menace to
navigation." The Chief of Engineers, however, decided against the erection of
the lighthouse. Several complaints had been made to the federal authorities to
the effect that the submerged San Marcos was a danger to navigation and
recommending that steps be taken to guard against this danger. A letter from Lt.
Colonel Jewett, Corps of Engineers, to the Commandant of the Coast Guard,
stated: "The wreck was discussed with several local vessel operators and they
are of the opinion that it is hazardous to navigation particularly in foggy and
inclement weather."

27

The final decision not to move the buoy, before the sinking of The Anderson,
and the reason for that decision, are found in a letter from the Commander, 5th.
Coast Guard District at Norfolk, to the Commandant of the Coast Guard:
"While it is possible to place the buoy in question closer to the wreck, this
action is not deemed practicable due to the added danger created in connection
with tenders servicing the aid."

28

This buoy seems to have been, at the time of the sinking of The Anderson,
about 525 feet from the nearest point of the submerged San Marcos, which was
about 300 feet long. In spite of the statements just quoted as to the
impracticability of moving the buoy closer to the wreck, The Mistletoe, after
The Anderson sinking, moved this buoy to a position only 225 feet from The
San Marcos, and shortened the mooring chain of the buoy from 150 feet to 90
feet. Pertinent in this connection is Baltimore & P. R. Co. v. Cumberland, 176
U.S. 232, 20 S.Ct. 380, 381, 44 L.Ed. 447. Defendant's testimony in this
crossing injury case was that "it was impracticable to build a fence * * *
consistently with the proper management of the road." One was built
afterwards. Of this, the Court said, 176 U.S. at page 236, 20 S.Ct. at page 381:

"As bearing upon the practicability of a fence * * * it is pertinent to note that,

after the accident occurred, a fence was erected". See, also, State of Maryland
for use of Pumphrey v. Manor Real Estate & Trust Co., 4 Cir., 176 F.2d 414; E.
M. Millard, The, D.C., 285 F. 94, 95; Franklin v. Webber, 93 Or. 151, 182 P.
819; Koskoff v. Goldman, 86 Conn. 415, 85 A. 588.
29

The San Marcos wreck buoy is Light No. 1892 in the Light List, Atlantic and
Gulf Coast, 1949. Its location is given as 37 43. 1 N, 76 04.8 W. The light is
12 feet above the water and shows an interrupted, quick flashing white light
and has a bell. It is marked with red and black horizontal bands, with red top.
The buoy is marked on U. S. C. & G. S. Chart No. 1223. The buoy extended 16
feet below the water and was moored to an iron sinked weighing 5,000 pounds.
We do not hesitate to state that, under a close case, in the balancing of the two
social interests here involved the convenience of the Coast Guard in
servicing the buoy and the safety of maritime navigation we strongly favor
the latter.

30

The District Judge stated in his opinion [95 F.Supp. 308]: "Counsel for the
plaintiff has cited numerous cases in which under their respective particular
facts parties have been held liable for defective marking of wrecks including
some cases in which the defect existed in the fact that the buoy or other mark
was placed too distant from the wreck. Particular reliance is placed on United
States v. Travis, 4 Cir., 165 F.2d 546, where, in another location in the lower
Chesapeake Bay in Virginia waters, the trial judge on the facts found for the
plaintiff where the buoy was about 350 feet from the wreck. And again in the
case of The Mary A. Bickel, 4 Cir., 46 F.2d 988, when the buoy was only 200
feet away from the wreck. It is, however, clear enough from the evidence in
this case that the proper location of a buoy to mark a wreck depends upon many
factors including particularly the width of the channel or seaway, the depth of
the water, whether in open waters as in this case, the volume of vessel traffic
and the probable effect of ice or storms on the buoy. The facts with respect to
the proper location of the buoy in the instant case are different from the
particular facts of other cases."

31

There is unquestioned force in the District Judge's remark: "the proper location
of a buoy depends upon many factors". Each case, as it arises, must be decided
on the particular set of facts therein involved. Yet we think that the principles
set out by our court in the Travis and Bickel cases, when applied to the facts of
the instant case, require the conclusions that the United States was negligent in
marking the wreck of The San Marcos, and that this negligence contributed to
the sinking of The Anderson.

32

One further question remains: what is the "law of the place", which under the
Act controls liability here, and what are the pertinent and applicable provisions
of that law. This question becomes important here by virtue of our holding that
both The Anderson and the United States were guilty of negligence contributing
to the sinking of The Anderson. If the ordinary rules of the common law be
applied, the contributory negligence of plaintiff is a complete defense; but, if
the admiralty law is applied, the damages here will be divided.
The District Judge declared:

33

"And with respect to the necessity of finding liability by the `law of the place'
there are Virginia cases which hold that Virginia courts will apply appropriate
maritime law in cases within their jurisdiction dealing with maritime torts. *

34

" * In Colonna Shipyard, Inc. v. Bland, 150 Va. 349, 143 S.E. 729, 59 A.L.R.
497; Colonna Shipyard, Inc. v. Dunn, 151 Va. 740, 145 S.E. 342, certiorari
denied 279 U. S. 840, 49 S.Ct. 253, 73 L.Ed. 986." [95 F. Supp. 306.]

35

With this we agree, though the question is not free from doubt, so the damages
must be divided.

36

Against this, the United States cited the early Virginia case of Union Steamship
Co. v. Nottinghams, 1866, 17 Grat. 115, 58 Va. 115. In that case, purely as a
dictum, 17 Grat. at page 123, Judge Joynes, speaking for unanimous court, said:
"The case being thus disposed of, it is unnecessary to consider whether there
was any negligence on the part of those in charge of the schooner, or to discuss
the principles applicable to the case of damage resulting from the mutual and
concurrent fault of both parties. It is proper to say, however, that the admiralty
rule adopted by the court below, by which the loss in such a case is divided
equally between the parties, does not prevail in the courts of common law, and
is inconsistent with common law principles. When the negligence or fault of the
injured vessel contributes to produce the injury, so that the injury results
directly from the negligence or fault of both vessels, the common law does not
undertake to say how much of it is due to one and how much to the other, and
leaves the loss where it falls." We think, however, that this dictum has been
effectively overruled by Colonna Shipyard v. Bland, 150 Va. 349, 143 S.E.
729. In that case, (though oddly enough the Union Steamship case was not
mentioned) Judge Prentis said, 150 Va. at page 358, 143 S.E. at page 731:

37

"(5) When one suffers an injury under such circumstances as to be a maritime

tort, his rights are fixed by the admiralty law; but he may choose the forum in
which to assert those rights. He has his remedy at common law, but his
recovery and the precise relief to be afforded him are determined by the
admiralty law which is applied, whether he sues in the common law or the
admiralty court. He may pursue his remedy at common law in the state court,
but that court must administer the admiralty law. He may select his court, but
cannot add to or change his rights or the defendant's rights which are the same
in both forums.
38

"(6) The trial court, in this case, observed this rule, refused to instruct the jury
that contributory negligence would be an absolute bar to the action, but
instructed them, on the contrary, in accordance with the admiralty rule, that if
they believed from the evidence that the injuries received by the plaintiff were
the result of negligence on the part of both the plaintiff and the defendants, they
should apportion the loss against both the plaintiff and the defendants, and that
such negligence on the part of the plaintiff should mitigate the damages which
they would otherwise find for the plaintiff.

39

"This was the correct instruction to be given in this case, and the first
assignment of error is not well taken."

40

This holding was expressly affirmed in Colonna Shipyard v. Dunn, 151 Va.
740, 145 S.E. 342, certiorari denied 279 U.S. 840, 49 S.Ct. 253. See, also,
Johnson v. G. T. Elliott, 152 Va. 121, 146 S.E. 298, which again cited and
approved the Bland and Dunn cases. Cf. Hagan v. Richmond, 104 Va. 723, 52
S.E. 385, 3 L.R.A.,N.S, 1120; Colonna v. Bland, supra, was cited with approval
in United States v. Norfolk-Berkley Bridge Corp., D.C.E.D.Va., 29 F.2d 115,
129 and in Garrett v. Moore-McCormack Co., 317 U.S. 239, 244, Note 8, 63
S.Ct. 246, 87 L.Ed. 239, and in Intagliata v. Shipowners & Merchants Towboat
Co., 26 Cal.2d 365, 159 P.2d 1. And, in the Garrett case, supra, Mr. Justice
Black, 317 U.S. at page 243, 63 S.Ct. at page 250, said: "There is no dearth of
example of the obligation on law courts which attempt to enforce substantive
rights arising from admiralty law to do so in a manner conforming to admiralty
practice." Cf. Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.
Ed. 1086.

41

See further Seas Shipping Co., Inc., v. Sieracki, 328 U.S. 85, 88, 66 S.Ct. 872,
874, 90 L.Ed. 1099, where the Court said: "* * * It is now well settled that a
right peculiar to the law of admiralty may be enforced either by a suit in
admiralty or by one on the law side of the court * * *."

42

In Abbattista v. United States, D.C.N.J., 95 F.Supp. 679, 681, the Court

42

In Abbattista v. United States, D.C.N.J., 95 F.Supp. 679, 681, the Court

adverted to the rule that whether the action was in admiralty or on the law side
under the Tort Claims Act "the law of admiralty may be enforced," citing the
Seas Shipping Co., Inc. case, supra. Recently in Jansson v. Swedish American
Line, 1 Cir., 185 F.2d 212, 216, Circuit Judge Magruder said: "We take it now
to be established by an impressive body of precedent that when a common law
action is brought, whether in a state or in a federal court, to enforce a cause of
action cognizable in admiralty, the substantive law to be applied is the same as
would be applied by an admiralty court".

43

In State Road Department v. United States, D.C.Fla.1948, 78 F.Supp. 278,

when sued for damage to a bridge, the Government counterclaimed for
damages to its vessel. Admiralty law was applied without discussion as to
whether the state had adopted it. In applying admiralty law, the court said, 78
F.Supp. at page 280: "* * * Defendant's right to recover on its counterclaim in
this case is controlled entirely by Admiralty law and the contention that parties
plaintiff and defendant are not entitled to the benefit and protection given them
under Admiralty law in untenable. The issues raised by the pleadings in this
counterclaim will be tried and determined as though this case was in fact
pending in Admiralty."

44

In Moran v. United States, D.C.1951, 102 F.Supp. 275, 277, District Judge
Hincks stated: "The broad language of the Act precludes the narrow
construction which the government now advances. When the Act specified that
the liability of the government shall be determined `in accordance with the law
of the place where the act or omission occurred' clear intent was expressed to
waive immunity irrespective of the place of the tort. It is significant that the
applicable law was not stated to be the law of the State or territory: instead the
language used was broad enough to include the maritime law which, of course,
is the law of the place applicable to maritime torts."

45

The United States insists that when both plaintiff and defendant are guilty of
contributory negligence in a maritime tort, there can be no recovery. Primary
reliance is placed upon the statement of Chief Justice Fuller in the oft-tried and
frequently quoted case of Belden v. Chase, 150 U.S. 674, 691, 14 S.Ct. 264,
269, 37 L.Ed. 1218:

46

"The doctrine in admiralty of an equal division of damages in the case of a

collision between two vessels, when both are in fault contributing to the
collision, has long prevailed in England and this country. The Max Morris, 137
U.S. 1, 11 S.Ct. 29 [34 L.Ed. 586]. But at common law the general rule is that,
if both vessels are culpable in respect of faults operating directly and

immediately to produce the collision, neither can recover damages for injuries
so caused. Atlee v. Packet Co., 21 Wall. 389 [88 U.S. 389, 22 L.Ed. 619].
47

"In order to maintain his action, the plaintiff was obliged to establish the
negligence of the defendant, and that such negligence was the sole cause of the
injury, or, in other words, he could not recover, though defendant were
negligent, if it appeared that his own negligence directly contributed to the
result complained of."

48

See, also, Wolker v. Electric Ferries, 2 Cir., 82 F.2d 1023, certiorari denied 299
U.S. 540, 57 S.Ct. 22, 81 L.Ed. 397, In re Pennsylvania Railroad Co., 2 Cir., 48
F. 2d 599, certiorari denied 284 U.S. 640, 52 S.Ct. 21, 76 L.Ed. 544; Puget
Sound Navigation v. Nelson, 9 Cir., 41 F.2d 356; Sprague on Divided
Damages, 1928, 6 N. Y.U.L.Q., 15; Derby on Divided Damages, 1947, 33
Va.L.Rev. 289; Griffin on Collision, 1949, 252; Robinson on Admiralty, 859864; Hearings before House Judiciary Committee, 77th. Cong. 2d Sess. on H.R.
5373 and H.R. 6463, pages 26, 27.

49

The Government's brief concludes with the statement that we cannot in our case
apply the admiralty rule of divided damages "unless this court is prepared to
overrule Belden v. Chase, 150 U.S. 674, 14 S.Ct. 264, 37 L.Ed. 1218, and to
further hold that the courts of Virginia would not follow Union Steamship Co.
v. Nottinghams, 17 Gratt 115, 58 Va. 115."

50

We have doubts whether Belden v. Chase is, or ought to be, the law; and it may
well be (as the Government contends) that in a suit at law on a maritime tort in
the federal District Court, under the diversity of citizenship jurisdiction, Belden
v. Chase will be followed. But, to apply the admiralty rule of divided damages
in the case before us, we need not overrule Belden v. Chase.

51

The Act specifically makes the "law of the place" controlling. Here, the "law of
the place" is the lex loci delicti, the law of Virginia. We have no hesitation in
holding that the dictum of Judge Joynes in the Union Steamship case was
overruled by Colonna v. Bland and subsequent cases. We, accordingly, under
the Virginia law, apply the admiralty rule of divided damages.

52

The judgment of the District Court is reversed and the case is remanded to that
court with instructions to hold both the plaintiff, Somerset, and the defendant,
United States, guilty of negligence contributing to the sinking of The Anderson,
to assess the damages, and to divide these damages between the plaintiff and
the defendant.

53

Reversed and remanded.