The Hamilton

¶40COXE, Circuit Judge

¶41(after stating the facts). The three opinions, which have already been delivered in the course of this litigation,' so fully and clearly state the facts and the law that little can be said by this court which is not a repetition of what appears in the Reports.

¶42In International Nav. Co. v. Dindstrom, 123 Fed. 475, 60 C. C. A. 649, this court decided that the sovereignty of a state extends to the vessels of the state upon the high seas, and if the law of the state permits a recovery for damages occasioned by a tortious act the law is as applicable to said vessels on the high seas as when actually within the boundaries of the state.

¶43In the recent case of La Bourgogne (C. C. A.) 139 Fed. 433, 439, we had occasion to reaffirm this doctrine as to death claims growing out of a collision in a fog on the high seas, the Bourgogne being sunk with great loss of life. The law of France permits a recovery in such circumstances and, in a proceeding to limit the liability^ of the owner, we held that the French law extended to and operated upon the Bourgogne in midocean.

¶44We are informed that the Supreme' Court has recently granted a certiorari in the Burgogne Case and, in view of the similarity of the questions' involved, it is not improbable, should a petition for a writ be filed, that a similar course may be taken in the case at bar. We see no impropriety in saying that such -a result would be gratifying to us.

¶45The facts in hand, of course, are not identical with those in the cases cited, but we are of the opinion that they cannot be successfully distinguished because of these differences.

¶46The right of action provided by the Delaware statutes is not founded on contract but on tort. “Whenever death shall be occasioned by unlawful violence or negligence” the personal representatives may maintain a suit in every case where the decedent could have maintained it had the injuries not resulted in death. Both vessels belonged to Delaware and those on board, whether passengers or members ■ of the crew, were, in contemplation of law, within the, territory of that state.

¶47Assume that the Hamilton had negligently run into and sunk the Saginaw in tire harbor of Wilmington, Del., causing the death of the persons in question, can there be a doubt that the claimants here would have a right of action at common law against the Old Dominion Company under the statute of that state? It would be no defense to such an action to show that the owner of the Saginaw was also negligent. One of two joint tort-feasors may not defend *727an action against himself by showing that the other wrongdoer was equallv responsible. Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. 391, 29 L. Ed. 652.

¶48We do not see, either, how the question of negligence of a fellow servant could arise in such an action. The crew of the Saginaw were not fellow servants with the crew of the Hamilton and the persons who were drowned cannot be considered as fellow servants with the master of the Saginaw who, so far as that ship is concerned, was the only person at fault for her excessive speed. No case with which we are familiar has gone to the extent of holding that the captain of a vessel is a fellow servant with the cook, the stewardess and the •other inferior members of the crew. A better illustration of the doctrine of alter ego can hardly be imagined. Goslee, the chief officer, was not negligent; what he did was under the direction of the master and it would be a dangerous doctrine to hold a subordinate guilty of fault for obejiug the orders of his superior.

¶49But assuming that the rule as to the negligence of a co-servant can be invoked where the action is against another vessel, it would seem that the common-law rule that the negligence of a co-servant does not defeat the action unless such negligence is the sole cause of the disaster is also applicable. No matter how much such negligence may contribute the defendant is not relieved if he himself be at fault. Grand Trunk Co. v. Cummings, 106 U. S. 700, 1 Sup. Ct. 493, 27 L. Ed. 266.

¶50Were this action against the Saginaw, of course, a different rule would apply as to the members of the crew, but it is doubted whether the maritime law based upon the ancient Codes is applicable to the case at bar. The Osceola, 189 U. S. 158, 23 Sup. Ct. 483, 47 L. Ed. 760.

¶51There is no pretense that any one of the deceased persons was negligent and the finding' that both vessels “were to blame” has been accepted by all. This is enough. We cannot doubt that had suits been brought for these deaths in the courts of Delaware the plaintiffs would have succeeded. By the action of the petitioners they are enjoined from prosecuting their claims in the home forum and are compelled to present them here.

¶52Every consideration based on equity and natural justice impels us to hold that it was not the purpose of the limited liability act to enable vessel owners to force claimants into the admiralty, and thus avoid claims which are valid and enforceable at common law. The intent was to limit the liability, not to- destroy it.

¶53It is true that no contractual relation existed between the claimants’ intestate and the Old Dominion Company or the Hamilton, but we see no reason, based on sound logic, why a passenger of the Hamilton should be permitted to recover for her negligence and a similar right be denied to the passengers of the Saginaw injured by the identical negligence.

¶54As to members of the crew, although their legal status differs in many respects from that of the passengers, we are unable to perceive how any valid distinction can be drawn as to their contractual *728relations to the ship which would permit the passengers to maintain an action against an outside vessel and deny that right to the crew. There is here no conflict of law as the statute invoked applies equally well to both vessels.

¶55The claimants, representing innocent third parties in no way responsible for the collision either directly or by imputation, are entitled to recover the full amount of their damages. The fact that both ships were negligent does not change the rule, as the fault of the Saginaw cannot be imputed to persons who were wholly free from blame. The Atlas, 93 U. S. 302, 23 L. Ed. 863; The Juniata, 93 U. S. 337, 23 L. Ed. 930.

¶56The claims of Sallie T. Morris and Mary Swanson were proper in the form in which they were originally filed. The objection is that the Delaware statute gives a right of action to the widow and that these claims were filed not by the widow but by the administratrix and that an amendment permitting the claim to be filed in the name of the widow presented a new cause of action which was barred by the Delaware statute of limitations.

¶57In the Morris Case the opening statement of the verified claim is:

“I reside at 2415 East Main Street, Richmond, Virginia, and am tlie widow and executrix of William Morris.”

¶58In the Swanson Case the opening statement is:

“Tlie claimant, Mary Swanson, administratrix of tlie estate and widow of Peter Swanson, deceased, alleges,” etc.

¶59Both claims state all the facts necessary to constitute a good cause of action. Grant that in each case the claimant might have rested with the allegation that she was the widow of the drowned person, the subsequent statement that she was also executrix was absolutely immaterial and might with perfect propriety have been disregarded as surplusage. It was merely descriptio personas and was as innocuous as the statement “I reside at 2415 East Main Street.” Where a pleading alleges two representative capacities, in one of which the claim may be successfully prosecuted, we know of no rule of construction which requires the court to select the other and thus defeat the claim in limine. The court would have been justified in disregarding the unnecessáry' averments, interpreting the claims as filed by the claimants in their capacity as Widows, but for greater caution an amendment was permitted in each instance. That such an amendment was within the discretion of the court there can be no doubt. The Minnetonka (decided May 22, 1906), 146 Fed. 509.

¶60As before stated all the facts were before the court showing that the claimants were both widows and administratrices and the amendment allowing them to say that they claimed as widows permitted no new cause of action, created no surprise and required no additional proof. Such amendments are being constantly granted and particularly so in the admiralty where the practice is much more liberal in this regard than in the courts of common law. We have examined the awards made by the court with greater care than would ordinarily be required because both parties are dissatisfied. We are *729convinced that the amounts allowed by the District Court are fair and conservative and we see no reason for disturbing them.

¶61We do not deem it necessary to pass upon all the questions presented upon this branch of the case or to express our approval or disapproval of all the reasons advanced by the commissioner and the judge in support of their respective findings; it suffices to say that upon the facts proved we are of the opinion that the amounts allowed by the final decree do substantial justice to the claimants.

¶62The decree is affirmed with interest but without costs in this court.