UNITED STATES v. RELIABLE TRANSFER CO.

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Argument of John P. Rupp

Chief Justice Warren E. Burger: We'll hear arguments next in United States against Reliable Transfer, 74-363.

Rupp, you may proceed.

Mr. John P. Rupp: Mr. Chief Justice, may it please the Court.

This case is here on a government's petition for certiorari to review a decision of the Court of Appeals for the Second Circuit.

This sole question presented by the petition was whether the Admiralty Rule applied to mutual fault collision cases of dividing damages equally, should be replaced by a rule apportioning damages in proportion to fault.

The facts necessary to provide a context for consideration of this question are few, and are rather fully set forth in the government's brief on the merits.

Briefly on the evening of December 23, 1968, respondent's tanker the Mary A. Whalen, left Constable Hook, New Jersey in heavy winds and high seas bound for Island Park, New York with a load of fuel oil.

During the course of the passage, the vessel became stranded to the west of an inoperative breakwater light, on promontory known as Rockaway Point.

After a trial that lasted for several days, the District Court held that although the Coast Guard had been at fault in failing to complete repairs on the breakwater light earlier, the fault of the captain and crew of the Mary. A. Whalen, respondent's vessel, had been far more egregious.

Specifically the Court found that the stranding was due 25% to the negligence of the Coast Guard, the fault of the Coast Guard, and 75%, to the negligence of the Captain and crew of the Whalen.

Despite the fact that the Court found the respective faults of the parties to have been disparate, and after having observed that while a Division of Damages in proportionate to fault might be more equitable in this case, the Court nevertheless applied the divided damages rule or ordered that the damage hearing beheld in which a divided damages rule would be applied.

The Court of Appeals affirmed, stating that so far as negligence was concerned, the vessel's claim that it was not at fault borders on the frivolous and with respect to remedy, that it was powerless to divide the damages other than equally, even though it recognized the force of the argument that in a case of this sort, an unequal proportional division of damages would be more equitable.

Although respondent chose not to file a cross petition in this case, it nonetheless sought in its opposition to the government's petition for certiorari, and in its brief on the merits to raise an issue entirely separate from the issue of divided damages, with respect to which the government petitioned.

That issue is whether the courts below correctly apportioned fault between the parties.

In its brief in opposition, the thrust of the arguments made by respondent were that -- were to the effect that this case is an inappropriate vehicle for reconsideration by this Court of the divided damages rule.

In its brief on the merits, the argument appears to be that the courts below, the factual findings of the courts below found by the District Court, and affirmed by the Court of Appeals were incorrect, they are seeking a de novo reweighing of those findings by this Court ultimately for a vacating of the judgment below, and a remand to the court with instructions to direct an increase in the judgment in its favor.

The contention that respondent need not cross petition on an issue, such as this I think the cases of this Court relatively clearly answer.

The general rule was perhaps most clearly stated I think in Lang versus Green, and the holding in that case has been approved and extended to some extent in a number of recent cases, including this Court's recent decision in ITT versus Continental Baking.

I should note additionally, since there appears to be a misapprehension on this point, on the part of respondent, that the present case is very much unlike Union Oil Company versus the San Jacinto, the case which this Court took a couple of years ago, to consider the continuing vitality of the divided damages rule.

In that case, petitioner both petitioned, presented the question of whether the finding a fault below was proper, and secondly, so far as the respective negligence of the parties was concerned, the dispute there involved the dispute over a question of law, and not an issue of fact which is involved in this case.

Unlike the situation with which this Court was presented in the San Jacinto then, this case presents in clear and uncomplicated form, the continuing vitality of the divided damages rule.

In our briefs on the merits we attempted to set out in some detail the historical antecedence of the divided damages rule.

As noted there, the rule can be traced with some assurance to rules of admiralty which once prevailed in England and France, and in most other major maritime nations.

Originally the rule was primarily or rather exclusively a risk sharing device.

In the middle of the 16th Century however, with the development of negligence concepts, particularly in English Jurisprudence, the rationale of the rule began to undergo a continuing process of erosion, a process which I would suggest has continued to this day.

By the first quarter of the 19th Century, application of the rule was restricted to cases in England, to cases of sole fault, and was expressly inapplicable, pursuant to the decision of the House of Lords in Hay versus Le Neve, inapplicable to cases of sole fault to cases of inevitable accident, and the cases of inscrutable fault.

Inevitable accident, that is those cases of collisions resulting from such things as acts of God, an inscrutable fault, where fault cannot be -- precise locus of fault could not be determined.

The first case decided by this Court applying the divided damages rule, that is the first case in which the issue was squarely presented for decision, was The Schooner Catharine which was decided by this Court in 1854.

From the opinion in that case and subsequent cases, it's relatively clear that the rule was adapted by this Court for at least three relatively distinct reasons.

First, because of the assumed difficulty of courts in apportioning damages other than equally in mutual fault collision cases.

Secondly, because it was hoped that the rule would induce a greater degree of care and navigation, and finally because of this Court's [Inaudible] in applying a doctrine of bar of contributory negligence in cases of this sort.

We submit that none of these considerations carries much weight today, but that the later rational is particularly instructive, that is that the divided damages rule represents an improvement over the common law bar of contributory negligence.

This Court's refusal to import into admiralty law, the common law principle of contributory negligence, is a reflection of this court's inherent power often affirmed to give and withhold damages in admiralty cases upon the large principles of equity.

Perhaps no where in the admiralty law has this principle been more uniformly followed than in cases involving personal injury or death.

Even before this Court's decision in the Max Morris in 1890, lower courts were apportioning damages in collisions -- in accidents, subject to admiralty law, accidents involving personal injury, proportionally.

The Court in The Max Morris did not specifically address that issue, or did not decide that issue, although its decision in that case speeded that development.

Over time the remedy of proportional damages has become coterminous with the substantive rights of people to maintain causes of action in admiralty for personal injury and death.

That development has been specifically approved by Congress of course in the Jones Act, and implemented by Congress in the Jones Act, in the Death on the High Seas Act as well as others.

So, as far as property damage is concerned however, a number of commentators, notably among them, Gilmore and Black, have suggested that it is far from clear that replacing a bar of contributory negligence in mutual fault collision cases, represents an improvement over the bar of contributory negligence.

The capacity of the rule to produce inequitable results is I think amply demonstrated by the facts of the present case.

The Government in this case was found to have been 25% at fault, because of its failure to repair the Rockaway Point breakwater light more speedily.

Yet, under the divided damages rule, it's liable for 50% of the total damages suffered in the stranding of the Whalen.

Under the doctrine of contributory negligence, the Government would be immune from any liability in this case, even though it was found it would have been 25% at fault.

In the first case, under the divided damages rule, the windfall is in the favor of the respondent.

Justice William H. Rehnquist: Was there any damage to light or was it just to the tanker?

Mr. John P. Rupp: I think there was no damage to the light.

I think all of the damage in the case, occasioned by the stranding was caused to the vessel, and its cargo.

In the one case, the windfall is 25% in respondent's favor.

If a contributory negligence doctrine were applied in this area, the windfall would be 25% in the government's favor.

The gap between what is equitable in cases of this sort, and the result produced by application of the divided damages rule, I think becomes clearest, in cases which involves statutory fault, and the doctrine of statutory fault, of course emanates from this Court's decision in the Pennsylvania.

The rule of the Pennsylvania, is that the party to a collision, guilty of a statutory violation must prove not merely that its fault might not have been one of the causes of the collision, or that it probably was not, but that it could not have been.

This is a burden seldom carried in practice, with result that parties guilty of simply a technical violation, all -- often find themselves condemned to pay 50% of the damage by virtue of the joint operation of the rule of Pennsylvania, and the divided damages rule.

Not surprisingly, the number of such cases have widely disparate fault covered by the divided damages rule has increased in rough proportion to the proliferation of rules of navigation.

Presently there are four sets of rules of navigation provided by Federal Statute; the International rules, the Great Lakes rules, the Inland rules and a Western River rules, as well as three sets of pilot rules and regulations issued by the Coast Guards in state and local statutes and regulations.

At pages 17 and18 of our brief, we sketch the procedures generally applicable to admiralty cases involving collisions, procedures which I think, put in some perspective the scope and the intensity of the criticism that over time has been directed at application of the divided damages rule and mutual fault collisions.

As we indicated there, while the inequity of the divided damages rule is often shielded to some extent from public scrutiny, there has been an increasing and substantial amount of public criticism, particularly in recent years, concerning application of the rule.

Indeed our research in this case has not turned up a single commentator, it was a proof continue application of the divided damages rule and I hasten to add that that does not mean that there are none, I simply haven't found one.

Perhaps the most telling criticism of the rule, and the principle reason that the government is here today, requesting that it be abrogated in favor of the proportional fault rule, is that the United States today stands alone among the major maritime nations of the world, in applying a divided damages rule in mutual fault collision cases.

This fact I think is significant for several reasons.

First, it provides rather conclusive support from the view, for the view rather, that there is a readily available and workable alternative to the rule of divided damages, namely, the proportional fault rule.

Second, the isolated maintenance, the divided damage rule in this country, has the inevitable affect of encouraging transoceanic forum shopping, a point which is made, I think most clearly in Gilmore and Black [Inaudible].

Third, the fact that the United States alone applies a rule of divided damages, introduces in the International Maritime Commerce, a good deal of unpredictability, and I think in a necessary amount of unpredictability.

This Court, we submit, has already recognized the, implicitly recognized the unfairness of the divided damages rule, at least in the most extreme case of disparate fault, by creation of a so called major-minor fault exception.

The major-minor fault rule stems from this court's decision in the City of New York and the Umbria.

The rule we stated in the City of New York is as follows: where fault on the part of one vessel is of itself, sufficient to account for the disaster.

Any reasonable doubt with regards to the propriety of the conduct of such other vessel, should be resolved in the other vessel's favor.

As noted at pages 24 and 25 of our brief, the major-minor fault rule has proven extremely difficult to apply in practice.

One of the problems of the rule is that, it encourages courts to avoid a full and fair consideration of cases on its merits, in cases where the fault is obviously disparate.

More importantly, I think however, is the fact that the major-minor fault rule itself involves inequity, that is, it absolves parties from fault even though, excuse me, it absolves parties from liability, from paying damages, even though found to have been at fault.

The rule is I think then to that extent, but a variation of the contributorily negligence doctrine.

Justice William H. Rehnquist: Well, doesn't the divided damages rule at least make it easier to settle these cases so there is less judicial time taken up with trying to figure out whether you are 65% at fault or 35% at fault?

Mr. John P. Rupp: That was a point which was discussed at some length, I recall in the briefs filed in San Jacinto.

I think that's not the case.

If a party is involved in a collision in which his fault is minor, and the lion's share of the damage occurs to the other vessel, there is every motivation not to settle, because not to settle, both gives the relatively less negligent party a shot at the major-minor fault rule, and also stays the day which there is going to have to be a substantial payment; to be more negligent relatively greater damaged vessel.

I think the best -- the most that can be said, is that whether damages would be encouraged or discouraged relatively, by moving to a proportional fault rule, is specular.

I conceive as and I gave you an example of the case in which the opposite would be the case, my point I am sure can suggest any cool number of cases in which a divided damages rule would encourage settlement.

But I think that my own view is that the court --- this Court ought not to approve a rule which encourages settlements which are unfair, which is something that divided damages rule does, that is if --

Chief Justice Warren E. Burger: They're unfair because of the rule.

Mr. John P. Rupp: That's right, that's right.

Now, while the Court need not necessarily reach the issue in this case, we would suggest that the major-minor fault rule is itself badly in need of reconsideration.

If the rule of proportional fault is adopted as we suggest, I see little residual need left for the major-minor fault rule.

And that rule has masqueraded under various other names as well, it's called Glossing in some courts.

Other courts says analyze fault in terms of their active or passive characteristics, in cases in which the fault is obviously disparate.

The opportunity to move away from the major-minor fault rule, I think represents a major advantage of a proportional fault rule, and people like Black and Gilmore, and Judge Friendly in the Second Circuit agree.

It's important to be clearly understood that the government is not in this case asking the Court to do the Congress' work, and to ratify the Brussels Convention of 1912.

It is true that part of the explanation for the failure of the convention to be ratified, is the fact that various of its provisions have been opposed by specific interest groups.

That opposition has not however, been directed at the proportional fault rule, which appears in paragraph 1 of Article 4, of the Convention.

It has instead been directed at other provisions of the convention which are severable.

Cargo interest, for example, have vigorously opposed the elimination in paragraph 2 of Article 4 of the Convention of joint and several liability in the event of a collision, contending I think, with some justification that such a change in their substantive right to recover should be effective if at all, by the legislative process, rather than by treaty ratification.

A number of other groups have proposed Article 6 which eliminates legal presumptions of fault.

Congress' failure to replace the divided damages rule with the proportional fault rule in the face of the almost unanimous support for that course evidenced during the hearings in Brussels Convention.

Simply means we would suggest that the responsibility for the rule has remained where it began with this Court.

As this Court stated in a not dissimilar context in Moragne versus States Lines, we do not think that Congress' failure to take action on depending bail or to pass a similar measure over the years as the law of deaths on territorial waters became more in Congress, provides guidance for the course that we should take in this case.

To conclude the Congress by not legislating on this subject, it has an affect foreclosed by negative legislation as it were, reconsideration of prior judicial doctrine would be to disregard the fact that Congress has already left in this Court the responsibility for fashioning the controlling rules of admiralty law.

I think that applies with equal force here.

We are satisfied moreover that there no impediments to adoption of the Proportional Fault rule by this Court in this case.

Although the rule of divided damages has been applied in this country for over a hundred years, it is becoming increasingly anomalous over time, and the reasons originally invoked in support of it have become increasingly unpersuasive I would suggest.

It seems a little late to argue for example, that courts will prove incapable of applying a Doctrine of Comparative Negligence.

Contrary is proven to have been the case in all other places in the World where the Proportional Fault rule has been adopted by Treaty or by Judicial Decisions, and courts in this country have long been become accustomed to applying Proportional Fault rules as well, and have been proven capable of doing so more particularly in Admiralty where personal injuries have been involved.

If mathematical certitude is not possible, Gilmore & Black are nevertheless surely correct in suggesting that the Proportional Fault rule would at least not be designed to go wrong in as many cases as the divided damages rule.

It does repeating in addition I think, that we are not asking in this case for the abrogation of the divided damages -- of divided damages, or fifty-fifty division of damages.

In cases where the locus of fault, the precise locus of fault, or the percentage of contribution of fault cannot be determined, or in cases in which fault is relatively equally borne by both parties.

Justice William H. Rehnquist: I suppose all we could decide in this case if we followed your suggestion is that 75:25 fault means 75:25 division of damage.

Mr. John P. Rupp: That's right, that's --

Justice William H. Rehnquist: We wouldn't write a statute I suppose?

Mr. John P. Rupp: No, that's right, and that's precisely what we are asking for.

To the extent it was contended that the divided damages rule is more likely to induce care in navigation to a proportional fault rule, which was one of the principle motivations for the decision in The Schooner Catharine, I would suggest that the contention at this point at least runs directly counter to logic and experience.

The divided damages rule lumps the egregiously negligent, with a party guilty of only minor fault, the result is to make the degree of respective fault irrelevant, is to remove any inducement to the practice of greater and greater degrees of care.

Finally, I should like to address myself briefly to another point discussed at some length in the merit's briefs in the San Jacinto case, but not touched upon to this point by respondent in this case, that is, as for this Court at this point, to adopt a Proportional Fault rule with the inconsistent with the policies expressed by Congress in the Harter Act in the Carriage of Goods by Sea Act.

I think that that argument fails for several reasons.

One, is that the only problem in that respect, if it is a problem, when we contend that it is not, stems from this Court's decision in the Chattahoochee in 1899, the Harter Act was passed in 1893.

The Harter Act generally with a number of exceptions released from direct suit, the carrying vessel for damage to cargo.

In the Chattahoochee, this Court decided that Congress did not mean by the Harter Act to effect the relationship between one vessel and another, or in a case of this sort, between the United States and the Carrying Vessel, and I think the same result, I think that that decision was correct, and the court has I should point out reached the same result in cases arising under the Workers and Longshoreman Compensation Act in Admiralty, as well under other statutes, Workmen Compensation type statutes.

There is no evidence in the legislative history of either the Harter Act or the Carriage of Goods by Sea Act.

The Congress meant to remove from this Court its historical discretion to enforce rules which go to remedy in Admiralty, I see no inconsistency with the Harter Act, and the course of the government is asking this Court to take in this case.

Justice Byron R. White: [Inaudible] automatically mean that in addition to overruling the divided damage, equal division of damages rule in cases of mutual fault, does it also mean that imposing the rule of proportional damages or division of damages in accordance with fault or the alternative is – I suppose to say will just – or rules of contributory negligence?

Mr. John P. Rupp: Well of course that, this Court could do that.

This Court could replace the divided damages rule with the doctrine of contributory negligence in Admiralty.

Justice Byron R. White: Well just overruling the, overruling the Harrisburg wouldn't get you to the --

Mr. John P. Rupp: The Schooner Catherine – the Schooner Catherine.

Justice Byron R. White: That's right.

Mr. John P. Rupp: Yes, no, that's right, simply overruling the Schooner Catherine would not get us where we feel we should be in this case.

The Court would have to affirm -- would have to reverse the decision of Court of Appeals, and direct that judgment be entered for damages in proportion to the degrees of fault found.

Justice Potter Stewart: Except with the law of admiralty generally, in personal injury and death cases it has been one of --

Mr. John P. Rupp: Apportioning fault --

Justice Potter Stewart: Apportioning the fault.

Mr. John P. Rupp: Yes, that's right.

Justice Potter Stewart: The law of contributory negligence is unknown to the law of admiralty.

Mr. John P. Rupp: Yes, that is correct, yes --

Justice William J. Brennan: Is there any difference, maybe like, you would like this Court to say the rule henceforth shall be that which was agreed upon by convention of 1912, not yet ratified by the [Inaudible]

Mr. John P. Rupp: That's right, essentially what we were asking you --

Justice William J. Brennan: You want to put us on parity with the other major maritime, is it that --?

Mr. John P. Rupp: That is correct, we are asking that this Court move away from the rule of divided damages in light of the movement of the rest of the world, and the problems which that has occasioned, not --

Justice William J. Brennan: Specifically the type of rule as it's now stated in the 1912 convention.

Mr. John P. Rupp: Yes, that's correct --

Justice William J. Brennan: In that section you gave us, is it correct?

Mr. John P. Rupp: Yes, the first paragraph of Article 4.

Justice Byron R. White: [Inaudible]

Mr. John P. Rupp: Yes, that is correct.

Justice Potter Stewart: Plus the rest of American admiralty law?

Mr. John P. Rupp: Yes, that is right, and I want to emphasize at that point.

Congress has proved, the Court has led the way in the area of personal injuries in enforcing proportional fault, and importuning damages in proportion to fault.

There are no circumstances which make it more appropriate or inappropriate for this Court to act in this case, other than the fact that the rest of the world has already done it, which we suggest makes it all the more justifiable.

Justice Lewis F. Powell: Mr. Rupp, the government in the courts below relied also on the doctrine of last cleared chance.

I take it you are not pressing that issue here?

Mr. John P. Rupp: No, we are not.

We did not petition on the issue of the party's respective fault in heart, because we felt it wasn't the matter which we assert reaally and consequently I don't press it here.

Justice Lewis F. Powell: There is good deal of equity in it though, isn't there?

Mr. John P. Rupp: There may well be.

Justice Lewis F. Powell: Mr. Rupp, I couldn't hear Mr. Justice Powell's question, and I hope this isn't really repetitive, is the government's position here consistent in your estimation with trend toward no fault insurance?

Mr. John P. Rupp: Well, I am not as conversion as no fault insurance as I might be, I think probably not.

We are not here concerned about the speediest most expeditious resolution of these disputes, although in my answer to Mr. Justice Rehnquist, I think there is no reason to believe that the approval by this Court of the proportional fault rule would lead to any less expedition.

The rule which we were asking the Court to adopt here is consistent with the normal rules of negligence, negligence particularly as applied in the area of personal injury and admiralty law.

Justice Harry A. Blackmun: I notice there are no amicus briefs filed, does this indicate in your view that the insurance industry is not very concerned about the present state of affairs?

Mr. John P. Rupp: It does indeed.

I think that's particularly so, given the fact that two years ago this Court gave very clear indication that it was prepared to consider again on the merits, the vitality of the divided damages rule.

In the San Jacinto you got no merits briefs from insurance companies or any other group.

I think that, that's explicable, because if one reads the hearings which have been held in the Brussels Convention, it's apparent that no one opposes this.

You have got no amicus briefs here, and I think again, it suggests that there is no real opposition, other than the party standing to lose first by application of a proportional fault rule.

Justice William H. Rehnquist: That's why you say there are no real support there?

Mr. John P. Rupp: No real support for -- oh, for opposition. Perhaps they were prepared to rely on us.[Attempt to Laughter]

Justice Byron R. White: Is that something [Inaudible]

Mr. John P. Rupp: I think not, we attempted to set that out as clearly as we could and in some detail in our brief.

There was a problem initially at the convention of a poor translation, that led to a good deal of confusion.

We explained to some extend the delay --

Justice Byron R. White: [Inaudible]

Mr. John P. Rupp: No, there is absolutely not – yes --

Chief Justice Warren E. Burger: Thank you Mr. Rupp.

Mr. Mintz.

Argument of Copal Mintz

Mr. Copal Mintz: Mr. Chief Justice, may it please the Court.

I think that the United States stands alone as stated by my friend here, because Congress has chosen to retain the rule as is.

It's had ample opportunity to either confirm the Brussels Convention or to adopt a statute which would incorporate the rule in respect to divided the damages.

Chief Justice Warren E. Burger: You don't think it's just legislative inertia?

Mr. Copal Mintz: I doubt it very much, because Congress has been very active in legislating in this area, the admiralty.

It's adopted any number of statutes, and to assume that Congress has not taken up this out of [Inaudible] it seems to me, it isn't being unfair to Congress.

I think it's more fair to say that Congress has decided the rule as is is better than proposed one.

I would like to now go to my argument.

Contrary to the contentions that have been made by my friend, I think the issues here still are; one, is this case an inappropriate basis for the reconsideration of the divided damage rule?

I will elaborate on that in just a minute, but in the meantime, I want to set forth the other merits, issues.

Two, is this Court the appropriate forum or body to consider changing the rule, or should it be left to Congress?

And three, on the merits of the rule, and of the alternative fair to urged by petitioner, is the latter equitable, more logical, more practical, and thus more desirable than the present rule.

I now suggest that the government must prevail on each of these issues in order to be entitled to a judgment in its favor from this Court.

Now on the first issue, there is no finding really of 25% and 75%, that's an adjudication, it's a judgment, so expressed by Judge Judd.

He said, “It's difficult to arrive at mathematical determinations, and on all the evidence I conclude that 25% and 75% is fair --

Chief Justice Warren E. Burger: Well, you would agree I think, that in some cases, it's more readily done than in others?

Mr. Copal Mintz: Yes, and in those cases where it's evident that one is very slightly at fault, then you don't give him a recovery, and you don't hold him liable, I should say don't hold him liable.

But where have you come to, how does one say it's 25, and not 30, not 35, it's 75, not 65, and all that, what basis is that to make those determinations as far as the fault is concerned, beyond that I suggest, that's irrelevant.

Because where you have a situation, where but for the negligence of both, there would be no accidents then it's irrelevant, whether the contribution of one or the others, 25 or 75, whatever the ratio maybe, if he hadn't been at fault, there would have been no accident.

Therefore, why should he not share in the damage, because that is the result of the co-negligence of both parties.

Now here on more over, the government has been guilty of a statutory violation for over 24 hours has left that light unlit.

It knew it, it had notice on it, and under the rules that my friend has cited this Court has several times decided that where the cause of a disaster or accident is a violation of a statutory duty, that then it bares the entire liability, unless it's conclusively demonstrated, and that it wasn't the sole cause.

So we have here prima facie case where sole cause was the government's and yet Judge Judd's finding that the accident would not have occurred, that is the finding of the fact, that the accident would not have occurred, and the damages would not have been sustained if the light had not been burning.

So we have here a straightforward finding which brings it into play the rule that I have just adverted to, and that my friend adverted to, that where the negligence consists of violation of a statutory duty, the violator bears the entire brunt of the damage.

So that here we have a case which under normal rules, would have resulted -- by application of the normal rules would have resulted in the finding that the government is liable for the entire damage.

And yet we have asked here to -- the Court is asked here to make a determination nevertheless, the damages should remain apportioned or should be apportioned, 75 to the government -- I mean 25 to the government, and 75 to the vessel, which I think is a gross injustice, and which I think illustrates that the rule for which the government is now asking is really an unfair rule, and I --

Justice Thurgood Marshall: You think 50-50 is unjust to those?

Mr. Copal Mintz: In a case like this, where the negligence was entirely the government's or well whoever it may be, in such a case, ot the entire damage would be borne by the person who is less negligent, and that was the determination of several cases by this Court, where they held the violation of the duty cast upon the violator, was the complete responsibility for the consequences.

Justice Thurgood Marshall: Do you still want to get off with 50%?

You wouldn't get off with 50%?

Mr. Copal Mintz: No, I am not.

I am not.

We may have to, but that is not our case, we were cross-appellants in the Court of Appeals.

Justice Potter Stewart: [Voice Overlap] cross-petitioner here?

Mr. Copal Mintz: We couldn't have been a cross-petitioner here, because I don't think under Rule 19, we could have responsively petitioned this Court to consider this case on determination of who is more liable than the other.

That's a question that arises in normal cases, and this Court takes cases only when there is a rule of law involved, and not when the issue of fact.

Justice Lewis F. Powell: Mr. Mintz, did I understand you to say that the fault was entirely that of the Coast Guard?

Mr. Copal Mintz: Yes.

Justice Lewis F. Powell: The district judge found to the contrary, didn't he?

Mr. Copal Mintz: No, he didn't.

Justice Lewis F. Powell: But he said --

Mr. Copal Mintz: He is inconsistent.

He says, but-for the negligence of the government this accident would not have happened, that's the finding of fact.

The rest is the conclusion of law.

Justice Lewis F. Powell: You think this is a conclusion that fault of the vessel was more egregious than the fault of the Coast Guard?

Mr. Copal Mintz: Yes, I think it is where the evidentiary finding is, that but-for the fault of the government, this would not have happened, that his evidentiary finding.

Chief Justice Warren E. Burger: Where is it?

Mr. Copal Mintz: In this decision, repeated twice.

And the Court of Appeals said, it's commonsense.

The Court of Appeals agreed with that determination, that but for the negligence of the government, this fault would not have happened.

Justice William H. Rehnquist: Any time you have a finding of negligence plus approximate cause on the part of two parties to an accident, they are both responsible to a degree, I think?

Mr. Copal Mintz: But what I am saying Your Honor is that where the judge determines, that for the negligence of the government, there would have been no accident, then there is no causative negligence on the part of the one who has been hurt.

Justice William H. Rehnquist: I just don't follow you on that at all.

Surely he could find it with probably more reason on this record, that had it not been for your master's fault, there would have been no accident?

Mr. Copal Mintz: No, because the master's fault was occasioned by the absence of the light.

He would not have been -- that's what the finding is.

He would not have made the maneuver he did, if he had known where he was, and he would have known where he was, if he had the light.

If Your Honors will read the decision of Judge Judd, you will find those are his basic findings, and those were confronted by the Court of Appeals.

Justice William H. Rehnquist: But that's kind of a but-for causation type of thing, that even though it's a fairly minor fault, that you can say, that but-for the government's fault, it wouldn't have happened, even though your man was very far field from normal care after he acted on his own?

Mr. Copal Mintz: But why was he where he was?

Not by reason of poor navigation, he was where he was because he was misled by the absence of the light.

Justice William H. Rehnquist: But that but-for type of causation as a final conclusion has been rejected in almost every branch of jurisprudence, hasn't it?

Mr. Copal Mintz: Well, I am not -- I don't know that at all, and I don't see that if you say that's not a finding of facts, I think 75 and 25 are not findings of fact either.

Justice Thurgood Marshall: Then I read from the Court of Appeals opinion.

We hold that the Court was not clearly erroneous in finding that the negligence of both parties in the portions stated caused the stranding.

The vessel's claim that it was not its fault borders on the privilege.

Mr. Copal Mintz: Yes, I am --

Justice Thurgood Marshall: You will say that's the finding of the court that you were right?

Mr. Copal Mintz: No, if -- [Voice Overlap] No, the court was saying [Voice Overlap] I rely on the finding of Judge Judd that but for the negligence of the government, this accident would not have happened.

Justice Thurgood Marshall: Which the Court of Appeals --

Mr. Copal Mintz: And the Court of Appeals said, yes, a matter of commonsense.

Justice Thurgood Marshall: Where is this [Inaudible] I find --

Mr. Copal Mintz: It's there on --

Justice Thurgood Marshall: This is the other one.

Mr. Copal Mintz: The Court found as the Court of Appeals.

The court found as -- I am reading from page 4 of my brief -- or it's -- you will find it on page 10 of the Appendix.

The court found as commonsense would dictate that the if the breakwater light had been operating, the Captain would not have stranded the vessel.

Justice Thurgood Marshall: It's in the next paragraph after saying which is its privilege.

Mr. Copal Mintz: That's correct.

Those again are inconsistent and Judge Judd said, if the breakwater lights had been flashing, the Captain would doubtless have been able to change his course in time to avoid stranding.

Justice Thurgood Marshall: What was he talking about there?

The Last clear chance doctrine, that's what he was talking about, which is not here?

Mr. Copal Mintz: Well, I don't know what he is talking about the Last clear chance.

Justice Thurgood Marshall: Further down in the paragraph you will see it.

We refuse to apply here the doctrine of the last clear chance, which has been give only limited application in admiralty.

Chief Justice Warren E. Burger: There's general inconsistency in the judge's findings and statements?

Mr. Copal Mintz: Is there any inconsistency?

Chief Justice Warren E. Burger: In general, inconsistency.

Mr. Copal Mintz: I think there is, I think there is, that now --

Chief Justice Warren E. Burger: [Inaudible]

Mr. Copal Mintz: It does sir, it does.

I am glad Your Honor I feel that there is an inconsistency, but it has been my argument all along that you can't put the two together and justify both of them.

And for the Court of Appeals to have said that we bordered on the frivolous, and arguing that, I would like to say, if I may, that attending recently a session of the Court of Appeals where applications for parole after conviction pending appeal, the arguments was always made -- the trial judge said that was a frivolous appeal, and one of the justices answered, well -- he remembers that when he was a District Judge, he regarded many applications for bail as being frivolous, but now that he is on the Court of Appeals, he has a different view of that.

So I think that applies to the statement that borders on the frivolous when we have a situation of the kind Your Honor has just pointed to.

Now, assuming that we have here a split liability case or a split fault case, the question then is, should to this Court reconsider the rule?

Now this has been a rule of this Court since 1843.

It has been mentioned and repeatedly discussed and repeatedly sustained in a number of cases, and I can roll them off, Catharine v. Dickinson, 17 How in 1943, The North Star in 1882, The Max Morris in 1890, The Chattahoochee in 1899, The Eugene Moran in 1909, White Oak Transportation in 1922, Weyerhaeuser in 1963, and just recently a few years ago, Cooper Stevedoring versus Kopke in 1974, where in opinion by Judge Marshall, there was express approval of the rule although he did make a footnote that you are not called upon to reconsider it, because there was no finding that had to be reviewed or something to that effect.

And we also have the fact that we had the Brussels Convention.

It had been submitted to Congress for ratification; Congress failed, has failed continually.

There has been no pressure for Congress to go ahead, and for this Court to undertake to refashion the rule, which has been in existence for so many years, and has been repeatedly [Inaudible], taken into account, it seems to me is rather inappropriate.

I suggest that if this is really legislation and not adjudication, and it's more more properly in the area of Congress, than the area of the Judiciary.

To be sure, there have been have many commentators who have said that -- have found fault with the rule, including among them very eminent jurists, but that in of itself is not sufficient, because there is always disagreements among lawyers and among judges on various phases of the law, and that doesn't mean that the courts refashion the rules.

I am not suggesting that the Court is without power to do so.

I am suggesting that under the circumstances of this case, where there has been -- where the history is as it is, it would be inappropriate for this Court to undertake to do the work which Congress should do, and which it has refused to do indicating that it is quite content to let the rule stay as it is.

Now, on the merits of the rule, I think I indicated to some extent my thinking on the subject.

I think that where an accident is the result of co-negligence on two parties or three parties, whatever it maybe, in a situation where but for the negligence of both, there would have been no accident, it is immaterial, it is irrelevant, as to how much fault -- in what proportion the parties were at fault, because the accident would not have happened if both had not been at fault, and both had been at fault, it's fair and just that the damages should be borne equally.

Rather than an attempt to say, well, you hold only 10% negligence, so we are going to hold you liable for 10% of the consequences, but for the 10% it would not have been the accident.

And then again, we have this practical problem, how do you assess fault on a mathematical basis when the conduct is not in the mathematical area.

It's easier to see some party was negligent or not negligent, but it is not easy to say you were at fault to a certain extent.

And I rest on that, and more importantly I rest on the proposition that it is an immaterial consideration.

But if, I contribute to somebody's damage, and I did that to substantial degree, that is, I am normally liable for the whole damage, but if the other fellow was also damage liable, it's perfectly fair for me to pay half of his damages, or have him to pay half of my damages where the accident would not have otherwise have happened.

I think I have covered substance of my argument, and will not detain this Court any longer.

Chief Justice Warren E. Burger: Thank you Gentlemen.

The case is submitted.