On Rehearing.
PER CURIAM.In the aforegoing opinion this court directed that the decree of the trial court, holding each ship liable for one-half the damages of the other ship, be modified so as to allow the Margaret to recover three-fourths of her damages from the Merchant and the Merchant one-fourth of her damages from the Margaret. This direction was based on two definite findings of fact; one, that both ships through negligent navigation contributed to the collision; the other, that their contributions were markedly-different in degree. Thus there developed a situation of mutual faults to which it seemed that the rule of mutual liability should not, in view of the found inequality of fault, be applied; but rather tha-t the damages should be apportioned to the negligence respectively attributable to the two ships, when, as here, it can be fairly ascertained. Therefore the court, in an endeavor to conform the deeree to its fact findings and to do justice to the ship least offending, directed apportionment of the damages in the manner indicated. Experiencing a growing doubt, not as to its power to make the order apportioning damages, but as to its conduct in not literally and respectfully following the moiety rule which- the Supreme Court has from time to time applied, this court, of its own motion, called for a rehearing on the sole question of division of damages.
At the rehearing all doubts were dispelled by the thorough research made and assistance rendered by proctors for the several parties on a showing that, a few cases in lower courts to the contrary, the rule of the Supreme Court has been not to appraise different degrees of blame when injuries have resulted from mutual though unequal faults and apportion the loss accordingly, but to regard liability as mutual and to apportion the loss equally between the offending ships on the principle that damage by a common fault is a common loss. Beginning with The Schooner Catharine v. Dickinson, 58 U. S. 170, 15 L. Ed. 233, the first case which raised the question before that court, and running through a long line of cases, 11 Corpus Juris, 1200, et seq., from which the following may be selected at random, The Atlas, 93 U. S. 302, 23 L. Ed. 863; The North Star, 106 U. S. 17, 1 S. Ct. 41, 27 L. Ed. 91; The Max Morris 137 U. S. 1, 11 S. Ct. 29, 34 L. Ed. 586; The Eugene F. Moran, 212 U. S. 466, 29 S. Ct. 339, 53 L. Ed. 600; White Oak Transp. Co. v. Boston Cape Cod & New York Canal Co., 258 U. S. 341, 42 S. Ct. 338, 66 L. Ed. 649, this court, in its own research aided by the industry of proctors, has found no ease in which the Supreme Court has departed, even by variation in exceptional circumstances, from its rule of equal liability for mutual faults and equal division of damages, adopted expressly as the best rule for distributing justice between mutual wrongdoers. The.Max Morris, supra. Yielding to these authoritative pronouncements, this court, wholly aside from whatever views it may have on the subject, is constrained to follow the rule and in consequence change its decision to that of affirmance of the deeree dividing the damages equally in the manner which the law prescribes. The North Star, supra.