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RAY V. BLAIR.

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JACKSON, J., dissenting.

proper place in a truly liberal or progressive scheme of government. Who will come to possess this weapon and to whose advantage it will prove in the long run I am not foresighted enough to predict. But party control entrenched by disfranchisement and exclusion of nonconforming party members is a means which to my mind cannot be justified by any end. In the interest of free government, we should foster the power and the will to be independent even on the part of those we may think to be independently wrong.

Candidates for elector, like those for Senator, of course, may announce to their constituents their policies and preferences, and assume a moral duty to carry them out if they are chosen. Competition in the primary between those of different views would forward the representative principle. But this plan effects a complete suppression of competition between different views within the party. All who are not ready to follow blindly anyone chosen by the national convention are excluded from the primary, and that, in practice, means also from the election.

It is not for me, as a judge, to pass upon the wisdom or righteousness of the political revolt this measure was designed to suppress. For me it is enough that, be it ever so benevolent and virtuous, the end cannot justify these means.

I would affirm the decision of the Supreme Court of Alabama.

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UNITED STATES V. ATLANTIC MUTUAL

INSURANCE CO. ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT.

No. 450. Argued March 7, 1952.-Decided April 21, 1952.

1. A “Both-to-Blame” clause of an ocean bill of lading, which, in

the case of a collision due to the negligent navigation of both ships, requires the cargo owner to indemnify the carrier for such amount as the carrier may lose by reason of a recovery by the cargo owner from the noncarrier for cargo damages which are included in the aggregate damages to be divided between the two ships, held invalid. Pp. 237-242.

(a) It is a general rule of law that common carriers cannot stipulate for immunity from their own or their agents' negligence. P. 239.

(b) The language of the Harter Act, 46 U. S. C. $ 192, substantially reenacted by the Carriage of Goods by Sea Act, 46 U.S. C. § 1304 (2), did not carve out a special statutory exception to the general rule so as to permit a carrier to deprive its cargo owners of part of the fruits of any judgment they obtain in a direct action against a noncarrying vessel that contributes to a

collision. Pp. 239-241. 2. Neither the Harter Act nor the Carriage of Goods by Sea Act

altered the long-established rule that the full burden of the losses sustained by both ships in a both-to-blame collision is to be shared

equally. Pp. 241-242. 3. If the rule that, without congressional authority, ocean common

carriers cannot stipulate against their own negligence (or that of their agents or servants) is to be changed, the change should be

made by Congress, not by the shipowners. P. 242. 4. The Jason, 225 U. S. 32, distinguished. P. 242, n. 10. 191 F.2d 370, affirmed.

In a suit brought in the District Court to determine liability arising out of a collision in which both vessels were at fault, the District Court held valid a "Both-to

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Opinion of the Court.

Blame” clause of an ocean bill of lading. 90 F. Supp. 836. The Court of Appeals reversed. 191 F. 2d 370. This Court granted certiorari. 342 U. S. 913. Affirmed, p. 242.

James L. Morrisson argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Baldridge, Samuel D. Slade, Roscoe H. Hupper and Ray Rood Allen.

Leonard J. Matteson argued the cause for the Farr Sugar Corporation et al., respondents. With him on the brief were Oscar R. Houston and Richard F. Shaw.

Cletus Keating, Edwin S. Murphy and Louis J. Gusmano submitted on brief for the Belgian Overseas Transport, S. A., respondent. .

MR. JUSTICE Black delivered the opinion of the Court.

Respondents are cargo owners who shipped goods on the steamship Nathaniel Bacon owned by petitioner, the United States, and operated as a common carrier of goods for hire. It collided with the Esso Belgium and respondents' cargo was damaged. The ships were also damaged. This litigation was brought in the District Court to determine liability for the damages suffered by the cargo owners and for the physical damage caused the ships. It was agreed in the District Court that:

(a) The collision was due to negligent navigation by employees of both ships. The cargo owners were in no way at fault.

(b) The Belgium, as one of two joint tortfeasors, must pay "100%" of damages suffered by the Bacon's cargo owners.

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1 Certain insurance companies are parties to this suit as subrogees of their insured cargo owners. Some cargo owners were not insured.

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(c) Because of § 3 of the Harter Act? and § 4 (2) of the Carriage of Goods by Sea Act, the cargo owners are barred from directly suing the Bacon for cargo damages.

(d) Since the two ships were mutually at fault, the aggregate of all damages to both should be shared by both.

(e) In computing the aggregate damages caused both ships, account should be taken of the cargo damages recovered from the Belgium by the cargo owners.

(f) The bill of lading issued by the Bacon to the cargo owners contained a “Both-to-Blame" clause.5 This clause, if valid, requires the cargo owners to indemnify the carrier Bacon for any amounts the

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2 27 Stat. 445, 46 U. S. C. § 192. This section provides that if due diligence is exercised by the shipowner in making the ship seaworthy and properly manned, equipped, and supplied, then "neither the vessel, her owner or owners, agent, or charterers, shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel ...."

3 49 Stat. 1210, 46 U. S. C. § 1304 (2). This section provides that “Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from-(a) Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship; ...."

4 The shipowners have stipulated that in this case the Esso Belgium is to bear two-thirds and the Nathaniel Bacon one-third of the total damages, although the normal admiralty rule requires an equal division of damages. Halcyon Lines v. Haenn Ship Corp., 342 U. S. 282, 284,

5 The clause reads as follows:

"If the ship comes into collision with another ship as a result of the negligence of the other ship and any act, neglect or default of the Master, mariner, pilot or the servants of the Carrier in the navigation or in the management of the ship, the owners of the goods carried hereunder will indemnify the Carrier against all loss or liability to the other or non-carrying ship or her owners in so far as such loss or liability represents loss of, or damage to, or any claim what

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Opinion of the Court.

Bacon loses because damages recovered by the cargo owners from the Belgium are included in the aggre

gate damages divided between the two ships. The only question presented to us is whether the “Bothto-Blame” clause is valid. Respondent cargo owners contend that it is void and unenforceable as a violation of the long-standing rule of law which forbids common carriers from stipulating against the consequences of their own or their employees' negligence. Petitioner, the United States, contends that § 3 of the Harter Act, as substantially reenacted in § 4 (2) of the Carriage of Goods by Sea Act, provides special statutory authorization permitting ocean carriers to deviate from the general rule and to stipulate against their negligence as they did here. The District Court held the clause valid. 90 F. Supp. 836. The Court of Appeals reversed. 191 F. 2d 370. Deeming the question decided of sufficient importance to justify our review, this Court granted certiorari. 342 U. S. 913.

There is a general rule of law that common carriers cannot stipulate for immunity from their own or their agents' negligence. While this general rule was fashioned by the courts, it has been continuously accepted as a guide to common-carrier relationships for more than a century and has acquired the force and precision of a legislative enactment. Considering the relationship of the rule to the Harter Act, this Court said in 1901 that "in view

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soever of the owners of said goods, paid or payable by the other or non-carrying ship or her owners to the owners of said goods and setoff, recouped or recovered by the other or non-carrying ship or her owners as part of their claim against the carrying ship or Carrier."

See, e. g., Liverpool Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 438–444 (1889); Knott v. Botany Mills, 179 U. S. 69, 71 (1900); Railroad Co. v. Lockwood, 17 Wall. 357 (1873); Boston & Maine R. Co. v. Piper, 246 U. S. 439, 445 (1918); San Giorgio I v. Rheinstrom Co., 294 U. S. 494, 496 (1935). And see cases collected in 9 Am. Jur. 874-877.

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