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January 5, 1972

Beryl T. NICKERT, Executrix of the Estate of John Nickert, deceased, Plaintiff,
PUGET SOUND TUG & BARGE COMPANY, a Washington corporation, et al., Defendants

Beeks, Chief Judge.

The opinion of the court was delivered by: BEEKS

John Nickert, assistant engineer of the diesel tug MERCURY, died in an engine room fire while on watch, during the course of a voyage from Seattle to Alaska. The executrix of his estate brought a wrongful death action against three parties: Puget Sound Tug & Barge Company (Puget), which owned and operated the MERCURY at the time of the tragedy, San Diego Marine Construction Company (San Diego), which constructed said tug, and General Motors Corporation (GMC), which manufactured the engine. *fn1" After trial, final judgment was entered for plaintiff against all defendants on a jury verdict, but a mistrial was declared as to the various cross-claims of defendants.

 GMC has moved for partial summary judgment against Puget on two issues: (1) that Puget be denied relief on its cross-claim for indemnity as to damages paid to Nickert's widow if Puget is found to have been negligent, and if such negligence was a cause of the fire; and (2) that damages to the tug MERCURY be apportioned between GMC and Puget according to the percentage of fault attributable to each.

 The law as to the first issue has been conclusively settled, and defendant GMC's motion is therefore granted. Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S. Ct. 277, 96 L. Ed. 318 (1952). It is true that Halcyon pertains to the question of contribution, while Puget phrases its cross-claim in terms of indemnity. The substance of Puget's claim, however, is indistinguishable from the position so clearly rejected in Halcyon. Therefore, if it is established at trial that negligence of Puget contributed to Nickert's death, such negligence will completely bar Puget's claim.

 As for the second issue, the rule is not so clear. Neither party has cited a case from this Circuit or the Supreme Court clearly articulating the rule for apportioning damages in a mutual fault, non-collision, property damage case. In collision cases involving property damage where two or more ships are at fault, the undisputed rule is that of divided damages -- the total of the damage suffered by both ships is divided equally. *fn2" This rule has

for more than 100 years . . . governed . . . the correlative rights and duties of two shipowners whose vessels have been involved in a collision in which both were at fault. . . . *fn3"

 If this Court were to follow its own preference, it would rule that the doctrine of comparative negligence governs. That method of apportioning damages is well known to admiralty courts; it was also recently the subject of favorable comment by the United States Supreme Court in a non-admiralty setting. *fn5" Commentators have long expressed a preference for the doctrine of comparative negligence over the more easily applied but often inequitable rule of equal division of damages.

The only objection [to doing so] that really has any plausibility is the one based on the difficulty of assigning degrees of fault in exact percentages. The answer is, of course, that judges would simply approximate, as best they could, as is done every day in other cases in matters of amounts of damages, degree of disability, etc. An attempt at a division on the basis of degree of fault would at least not be foredoomed to go badly wrong in a large number of cases, as is the present rule. *fn6"

 However, very few courts have applied the doctrine of comparative negligence to facts such as herein involved. *fn7" Tracy Towing was never appealed, is now almost twenty years old, and represents an isolated departure from the general rule. The only court to expressly follow the case was reversed on appeal. *fn8" In Hartford, the Fifth Circuit affirmed the trial court's award of a 50-50 split of the damages, but did not expressly rule that the doctrine of comparative negligence applied. The MARY IDA and Marine Fuel are anomalous, both apportioning damages in collision cases without citation to any authority. The MARY IDA was not appealed, and is clearly contrary to the general rule. Although Marine Fuel was affirmed on appeal, the question of damages was not considered. The JAMES D. LEARY did not identify which rule was being applied. Apparently it applied the rule of equal division of damages, but since ownership of the scows was not clearly identified, and since the court made findings as to percentages of fault, it is possible that the court used the doctrine of comparative negligence.

The admiralty rule of evenly-divided damages in cases of injury to property -- although a highly desirable departure from the "harsh" common-law doctrine which denies all relief to one suing for negligence if guilty of contributory negligence -- has frequently received criticism as unfair. On that ground, virtually every country except ours has abandoned it. Nevertheless, we feel obliged to apply that rule until the Supreme Court or Congress instructs us otherwise. *fn9"

 The Seventh Circuit, reversing a trial court which had apportioned damages to property under the doctrine of comparative negligence, also felt compelled to invoke the rule of equal division of damages.

The claimed shortcomings of the rule are features inherent in it and have always coexisted with it. We are aware of no change in the nature or circumstances of the subject matter of its application which would justify its judicial rejection, or its restriction to mutual but equal fault cases, on the basis that it no longer serves to accomplish its original purpose. In our opinion the substitution of any alternative rule is a matter for ...

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