THE IRA M. HEDGES

Mr. Justice Holmes delivered the opinion of the court.

This is a libel for contribution. The libel was excepted to by the claimant and was dismissed on the ground that the District Court sitting as a Court of Admiralty had no. jurisdiction to. enforce contribution bétween the parties' on the facts.

The facts alleged are as follows. The appellant was in possession of the tug Slatington under a demise, and the tug was crossing the North RAyer .with car-float No. 22 alongside on the port side. The tug Ira M. Hedges vas coming up the river on the port side with two stone scows in tow, one on each side.. There was a collision between, one of those scows, thé Helen, and .car-float No. 22, which was caused or contributed to by the Ira M. Hedges. The owner of the Helen, nob being the owner of the Ira M. Hedgés, brought an action a.t common law and recovered, a judgment against the appellant, the owner of the Ira M. Hedges not being made a party defendant in that suit. The.appellant paid the judgment and brought this libel against the Ira M. Hedges, in terms to recover the amount of the claim set forth in the libel, but, it fairly may be held, in substance to recover, if not the whole, then contribution for what the libellant has had to expend.

The firét question is whether this court has jurisdiction of the appeal. It is said that the dismissal of the'libel, although'.expressed, to be for want of jurisdiction, really is on the merits, because payment of , a judgment at common law is not a ground for contribution from a joint wrongdoer, not a party to the suit. There sometimes is difficulty in distinguishing between matters going to the jurisdiction and those determining the merits. Fauntleroy v. Lum, 210 U. S. 230, 235, and, no doubt, this case, presents that, difficulty. But perhaps i0t may be said that the .two considerations coalesce here. The admiralty has a limited jurisdiction. If there are no merits in the claim it is of a kind that the admiralty not only ought not. to' enforce but has no power to enforce. At all events, the form of the decree must be taken to express the meaning of the judge. If the decree was founded, as it purports to be, on a denial of jurisdiction in the court, this court has jurisdiction of the appeal. For all admiralty jurisdiction belongs tó courts of the United States as such, and therefore the denial of jurisdiction brings the appeal within the established rule. See The Steamship Jefferson, 215 U.S. 130, 138. "

Coming to the substance we are of opinion that the decision was wrong. Thé right to contribution belongs to the substantive law of the admiralty. Erie R. R. Co. v. Erie & Western Transportation Co., 204 U. S. 220. It is not a mere incident of a form of procedure. Therefore the fact, over which the libellaut had no control, that the injured party saw fit to sue at common law cannot take .that right aWay. The passing of the claim, against the libellant into the form,-of a judgment before the claim was satisfied has no. bearing upon the question whether the right to contribution remains.. It does not matter to this question, even if it be true, as thought by the court below, that the libellant might have required the owner of the Ira M. Hedges to be made a party. For it still would have rested with the plaintiff in the former suit to collect frpm the appellant alone if it saw fit, and, if it had done so, it is at best but a speculation to suggest that the libellant could have recovered from its co-defendant at common law.

The question as to what is conclusively established by the common law judgment is not before us, but only the jurisdiction of the court. But we may add that the appellant seeks to recover contribution for the amount paid, not as res judicata, but as one of the consequences of a joint tort from which it could not escape, and which its fellow wrongdoei was bound to contemplate. The claimant of course does not desire to dispute the appellant’s negligence. It is free to deny its own. Whether if it were so minded it could controvert the amount of the damage as determined by the judgment need not be discussed. No doubt it would have been a prudent course for the appellant to give notice to the owner of the Ira M. Hedges to take part in the defence, with a view to its possible ultimate liability. Whether a failure to do so. would affect its rights is not before us to decide. We do not mean to intimate that the failure is material where there has been a bona fide defence.

Decree reversed.