
    L. I. Stainback et al., Claimants of the Ship Washington, her tackle, &c., Appellants, v. William A. Rae, in his own right, and as Administrator of Joseph Porter Wheeler, deceased, and Edmund Crosby, Master, Owners of the Ship Mary Frances, and Frederick Tudor, Owners of the Cargo of said Ship, Appellees.
    There a collision takes place between two vessels at sea, which is the result of inevitable accident,-without the negligence or fault' of either party, each vessel must bear its own loss.
    
      Mr. Justice Curtis did not sit in this cause, having been of counsel in the court below.
    
      This was an appeal from the Circuit Court of the United States for the District of Massachusetts, in. admiralty.
    The facts are stated in the opinion of the court.
    It was argued by Mr. -Badger and Mr. Lawrence, for the appellants, and by Mr: Goodrich, for the appellees.
    The points made by the counsel for the appellants-, were the following:
    
      First. That the watch on board the Washington, was usual, proper, and safe; and thai consequently, no negligence is imputable to her.
    
      Second. That in the state of the weather, and the position of the two vessels in respect to each other, it was impossible that the Washington could hate discovered the Mary Frances at a greater distance than a quarter of a mile, and highly improbable that she could have discovered her at more than half that distance ; and that under such circumstances, considering the admitted rate at which the two vessels were approaching each other, it was impossible for the Washington, by any manceuvre whatever, to have avoided the collision.
    
      Third. That if-the Mary Frances, as stated by some of her witnesses, discovered the Washington ten minutes, and as stated by others, five minutes, before the collision, the two vessels must have been at a distance of two miles, or at least one, from each other, and it was in her power, by changing her course, to have avoided the collision; and if,-, as stated by the sanie witnesses, she perceived that the Washington had not discovered her, It was her duty to have done so, and consequently the collision is attributable to the fault, not of the Washington, but of the Mary Frances.
    And hence, that the collision was either a mere misfortune, without fault in -either party, or without fault on the part of the Washington, and, in either view, the decree must be reversed.
    
      Mr. Goodrich, for the appellees, contended,
    • 1. That on the night of the collision, the weather was fair and starlight overhead, with a hazy horizon, and that the night was' not unusually dark.
    
      2. The ships being each elosehauled on the wind, neither' waá materially to windward of the" other, and each crew was equally' favorably situated to see the other ship, and to hear hailing from the other ship.
    And if either ship was to windward of the; other, and for , this reason less favorably situated in those respects, it was the Mary Frances.
    3. That the crew of the Mary Frances had a good look-oüt before, and at the 'time of the collision, and used all due care to prevent it; and that they actually saw -and hailed the. Washington in time to prevent the collision; and that the crew of the Washington did no act to avoid the collision, and the collision was attributable to the absence of a good look-out on board the latter ship.
    4. The appellees maintain,' that the rule of the sea is, that where two vessels,'closehauléd on the wind, approach each other, and must meet unless the course of one is changed, the vessel having her starboard tacks on board, must keep her course, and the one having her larboard tacks on board, must bear up and give way. The Alexander Wise, 2 Wm. Robinson, Adm. R. 65, 68; The Virgil, Id. 201; The Mary Stewart, Id. 244; The Chester, 3 Haggard, Adm. R. 316; The Ligo, 2 Id. 356, 360; Clapp v. Young, 6 Law Reporter, 111-13; 1 Conkling’s Admiralty Practice, 303 - 6; The Europa, 14 Jurist, 627, (2 Law and Eq. R. 562-4); The Genesee v. Fitzhugh, 12 Howard, 443; Walsh v. Rogers, 13 Id. 283; Pritchard’s Admiralty Digest, art. 12, p. 156; 1 Bell’s Com. 583.
    5. That the appellees having made out a primd facie case of want of skill and care on the part of the crew of the Washington, the burden of proof is. on the appellants to show that due care and skill was used.. Authorities previously cited. The George, 9 Jurist, 282, 4; Notes of Cases, 161; Pritchard’s Admiralty Digest, art. 114, 116, and 117, p. 137, tit. Damage.
    6. That appellees are entitled in law to recover compensation for freight and cargo, as- well as for the ship of appellants. See 3 Rent’s Com. 6 ed. 282; § 8; Story on Bailments, ch. 6, §§ 599, 602, 608; and case of Dundee, note to § 609; 1 Bell’s Com. 580.
    1-2. The Washington was in fault, because1 her officers and crew did hot maintain. that constant - care and vigilance which heir .position required.
    A. The Washington, having her larboard tacks on board, .was bound to give way.
    B. No officer; and only two men oh deck, attending to the
    navigation of’the ship — one, McCoy, was at the wheel, the other, Simmons, a boy, was on the look-out. . -
    C. ,.A large ship, with noisy passengers, nearing the land, under full .sail, in a hazy night, should have had at least two men on the look-out. .
    D. No sufficient look-out-before the call to the pumps.
    E. The Washington might have avoided the collision.
   ML Justice. NELSON

delivered the opinion of the court.

This is an .appeal from'the Circuit Court of the United Statea for the' Dir rict of Massachusetts, in admiralty.

The libel charges, that-the ship Mary Frances, laden -with ice, was on a voyage from Boston to New. Orleans, and that on the 11th December, 1847, at about' half-past threé o’clock in the morning, while on her starboard tack, im-the prosecution of the voyage,-she was struck by the ship 'Washington, nearly midships' on her larboard sidé, breaking in her bulwarks and stanchibns, and starting her planks and timbers, so that in a few horns she filled with water, and the master and ■ hands were obliged to abandon her, and she went to the bottom.-

. The respondents, in their answer, state, that the ship' Washington, at the time mentioned in the libel, was upon the high seas between George’s Shoals and the south shore of Nantucket Island, at a distance of about sixty miles from land; - that the wind was blowing a moderate breeze from the south-south-west, and the Washington,'with all her reefs out, .with courses free, and main-topgallant sails, jib, and flying-jib,' and fore and main-topmast-stay-sails set, was sailing full and by, upon her larboard tack, and steering dxxe west by the compass, and as near the wind as possible; that she had a competent, watch on deck, keeping a good look-out, the weather being dark and hazy towards the horizon, especially to the leeward of the ship, but the stars visible above. That while she was thus pursuing her course, at about half-past three o’clock in the morning, the Mary Frances was seen about four points on the le'e bow of the Washington, and was then in the act o&running up, and did immediately run up into the wind athwart the hawse of the Washington; and, that instantly, on the discovery of the Mary Frances, and of the course she was pursuing, the helm of the Washington was put hard up, and every endeavor made by the - hands on-deck to pxxt her before the wind, and to avoid a collision.

The facts, as proved on the part of the libellants, are substantially as follows:

That about half-past three o’clock, on the morning of the 11th December, 1847, the hands on board the Mary Frances, while she was standing to the eastward, on her starboard tack, the wind from the south-south-west, closehauled, descried the Washington something less than a quarter of a mile distant, about a point and a half forward of the Mary Frances’s larboard beam, some of the hands say, on the larboard bow two or three points. The Washington was standing to the westward when first'seen, and orders were immediately given to put the helm hard down, and, at the same time, the hands cried out to those on board-, the Washington, to keep off. The collision took place, as estimated, from five to seven minutes after the Washington was first discovered. The Mary Frances was struck midships, on the larboard side, her bulwarks stove in, and her planks below the white streak on the opposite side were broken, and all her fore-rigging carried away. The ship was abandoned with' thirteen feet of water in her hold, being a wreck, and. wholly unmanageable,. The Washington was not at first seen plainly, as the Weathbr was hazy. The second mate of the Mary Frances, who had charge of -the watch, and .one of the first to descry the Washington, says the weather was hazy find thick, the sky was overcast, no moon or • stars visible. The Mary Frances was about 320 tons burden; the Washington about 500 tons

The.evidence, on behalf of the respondents, is substantially as follows

The Washington was bound from Liverpool, to Virginia by the; way of New York, and had On board a cárgo of salt, and some 170 steerage passengers. She was on her larboard tack, .closehauled; the wind about south-south-west. The man. at the wheel states, that an order was " given from the. deck, “ put the' helm hard up, there is a ship iuto us;” that the order was obeyed instantly, but the collision immediately followed.. Simmons, one of the hands, states; that he was on the weather side of the Washington’s windlass on the look-out; that the weather-was dark, cloudy, and hazy; that he descried the Mary Frances abput a minuté and a half or two minutes' before the collision; that she. was on the lee bow of. the Washington, between •three and four ppjnts; that at first-he could not determine her course on account of the thick weather. ' When he first saw her he. sang out to the man at the wheel to put helm hard up. The witness heard' a noise or hail about half a minute before he descried, the Mary Frances, but could not ’determine whence it came; supposed it might be from some of the passengers, as they were in the habit of making a noise.

This witness is substantially corroborated by several others on board the Washington. Part of. the watch were at the pumps at the time the collision took place.

The testimony on both sides agree, that each vessel was going at the rate of five and a half knots Jhe hour.

The court below decreed in favOr of the libellants.

Upon a careful' perusal of the evidence in behalf of the libellants and the. respondents, if is appaient that there is much less discrepancy, and/contradiction among the witnesses called .by the respective parties, as to the material facts, than are usually found in these collision casos.

'.All agree as to. the state of the weather — thick, hazy and dark; as to the direction of the wind — =-from the south-southwest;, the course of the vessels —the Mary .Frances on the starboard tack, standing south-east, and the Washington on the larboard, standing nearly due west; the rate of speed — five and a half knots the hour. Arid' even as it respects the distance the vessels were from -each other when first descried, there is v.ery little, if any difference.

According to the witnesses on. board the Mary Frances, the Washington was less -than a quarter of a mile distant, when she was first seen. The distance of the former vessel, when first seen by the hands on board the Washington, is not stated directly; but- Simmons, the look-out, testifies, she was seen from one and a half to two minutes before the collision, which, regarding the cdmbined speed of the two vessels, must have been at about the same distance. The probability is, that the two vessels were much nearer each other -than a quarter of a mile, when first seen. The chief mate -of the Mary Francés, who was asleep in his berth at the time, but immediately^ afterwards on deck, fixes the distance the vessel could be seen in that -state of the weather at about two hundred yards; and this, corresponds with the opinion1 expressed by the master of the Washington, where he says, the Mary Frances might have been seen at a distance of about four times her length. The answer of the experts is that the distance a vessel could be seen in such weather would be uncertain. The course the two vessels 'were steering was calculated to increase the difficulty, and embarrass the look-out in descrying- the vessel ahead, for, as they were approaching each other by the wind, they presented,to the eye the edge's of the sails, and not the breadth of them, as in other positions.

There is some apparent discrepancy between the witnesses of the two vessels in respect to their relative position at the time they were first seen. The hands on board the Mary Frances state, when they first descried the Washington,* she was two or three points on their larboard bow, one of -them states, she was a point and a half forward of their larboard beam.

The hands on board the Washington state that the Mary Trances was on their lee bow when first seen, which would place the Washington to the windward. This may be reconciled probably by what is stated by the experts, who agree, that two vessels, approaching each other as these'were, the hands on each would necessarily see the approaching vessel over the lee bow, and which may have led those, on board the Washington to suppose this vessel was on the weather side.

The manoeuvre of each, on discovering the other, it is agreed, was proper,' and, indeed, the only one that could have afforded any chance of preventing the collision. The Mary Frances was thrown into the wind by putting her helm h >'d down, and the Washington bore away before the wind by putting-her helm hard tip. The orders were not only proper and skilful, but were promptly given and instantly executed; and unless fault can be imputed to the latter vessel in not descrying the Mary Frances sooner, so as to have afforded time for these manoeuvres to have avoided, the disaster, we do not • see how she can be properly chargeable with the consequences; and as to that, the difficulty, if not impossibility of discovering a vessel ahead at a greater distancé than the Mary Frances was seen by the hands on the Washington, the relative position of the two vessels, while approaching each other by the wind, presenting only the edges of the sails instead of their breadth, and in thick and hazy weather, such as existed in this case, in connection with the combined- speed of the vessels at the time, seem to furnish evidence sufficient to repel' any such imputation. ■ The two vessels must have come together probably in less than two minutes after they were first seen.. The look-out appears to have been competent and sufficient, and. such is, as we understand it, the opinion of the experts examined, and who were selected by both the parties.

Indeed, the fact that the Mary Frances must have been seen about the same'time by the hands of the Washington that she was seen by those on board, of the Mary Frances, and which we think. is fairly borne out by the evidence, of itself, should' be regarded as conclusive against the charge of fault in this respect.

.We are of opinion, therefore, that the collision was the result of an- inevitable accident, arising out of one of. the perils of navigation, and, in judgment of .law, is not attributable to -the fault of either party. And in such cases the settled rule in ad-^ miralty in England is, that each vessel must bear its own Toss, which rule, has been heretofore recognized by this court, but has not been before directly applied. 2 Dodson’s Adm. R; 83; Woodrop Sims, 1 How. Rep. 28; Id. 89; 3 Kent’s Com. 231; Abbot on Shipping, Pt. 3, ch. 1, and Pt. 4, ch. 10, §. 10; 2 Brown’s Civ. & Adm. Law, 204-7; 5 How. Rep. 503, and cases.

The rule is not uniform upon the continent, as several of'the maritime states'in such cases apportion the loss upon the two vessels. Abbot, 224, 230; 2 Brown’s Civ. & Ad. Law, 204-6; 3 Kent’s Com. 230, 231, 232.

But we think it more just and equitable, and more consislent .with sound principles, that where the loss happens from a. collision Which is the' result of inevitable accident, without the negligence or fault of either- party, each should bear his own.

Therp seems .no good reason for charging one of the vessels with-a share of a loss resulting from á common cálamity beyond that happening to herself, when she is without fault, and therefore in no just sense responsible for it.

Our opinion is, that the decree of' the court below must be reversed,’with costs, and the proceedings remitted, with directions’to enter a decree dismissing the libel with costs.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Massachusetts, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed, by this'court, that the decree of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is' hereby, remanded to'the said Circtiit Court with directions, to dismiss the libel with costs.  