The Scioto, on the evening of the 15th of December, being on her passage from Calais to Boston, deeply laden with a cargo of lumber, in consequence of the threatening aspect of the weather, put into the harbor of Portland. The wind was from the N. N. E., so that she could not lay her course into the harbor, but was obliged to beat in. Two other vessels were entering at the same time. As they entered, the Scioto put in upon one tack, as the other two did on the other, and each tacking at the same time, they passed each other in the channel After making three or four tacks, the Scioto, in her passage from the eastern to the western side, came in collision with the Falcon lying at anchor about 40 rods north-west of the block-house, on House Island, where sin-had been lying for a week. This was about one o’clock in the morning. The moon was then just setting, the sky moderately, but not heavily overcast; some of the witnesses say that stars were visible, and others that they were not. During the first part of the night, there were flying clouds sometimes obscuring the moon and sometimes leaving it bright, but in the latter part, the clouds became more dense and heavy. Still it was light enough to see objects at considerable distance' which were broad off on the water, unless land lay behind, so that the shade of the vessel was melted into that of the land be* yond. It was in such a position that the Falcon lay when seen from a vessel entering the harbor, the high land of the town cover ing her hull. She lay also in the channel or passage way, not precisely in the track of a vessel entering the harbor with a fair wind, but within the range taken by vessels beating in, and very nearly in the track of a vessel going into Hog Island roads; and she showed no light.
In the case of a collision of vessels by which damage is done, the first rule, a rule dictated by natural justice, is that the vessel, by whose fault the collision took place, shall be answerable for all the damage. The first inquiry, therefore, is, by whose fault this collision was occasioned. It may be assumed as a general rule, that when a collision takes place between a vessel under sail and one not under sail, the prima facie presumption is that the fault is imputable to the vessel that is in motion. It is said in Jacobson’s Sea Laws, p. 339, generally and without limitation, that when a vessel in full sail occasions damage to one that has no sail set, she
Taking the testimony of the crew, and I have seen no reason for questioning their fairness, I think that there was that degree of vigilance which the case required. The whole of the crew were on deck and stationed in those parts of the vessel where they had the best opportunity of controlling her motions and seeing any object which they might be approaching. But the fact was, that the Falcon was not seen from the Scioto until she was so near that it was impossible to avoid a collision. The master, who was forward, and the mate, at the helm, with one of the hands, saw her at the same moment, and the mate immediately put up the helm to bear away. She was moving in a direction that would have brought her on the Falcon’s bow. but the helm changed her motion, so that she struck her quarter. At first, it may appear surprising that the master, mate, and one of the hands should all have seen her at the same moment when she was just under the Scioto’s bows, a.t not more than the distance of thrice the length of the vessel. The testimony explains it. As they were approaching the Falcon, another vessel beating into the harbor was ap-proaehing them, between the Falcon and the Scioto, and entirely concealing her, and she was seen as soon as this vessel had so far passed as to clear her. It may still be asked why the Falcon was not seen before, when they were approaching her, and before the stranger vessel intervened to prevent it. The first answer is, that the Falcon showed no light. If she had suspended a lamp in her rigging, that would undoubtedly have been seen. But as the night was sufficiently clear to see objects at a considerable distance, it is contended that with a good lookout, she might and would have been seen sooner. It is not a satisfactory answer to this point in the case, insisted upon for the libellant, that the Falcon was seen from the Scioto as soon as the Scioto was seen by the watch in the Falcon. I fully agree with the libellant’s counsel. that the obligation of a vessel entering a harbor, to keep a vigilant watch, is more stringent than it is on a vessel lying at anchor, for the obvious reason that, being in motion, she is in danger of collision, not only with vessels in motion like herself, but with those at anchor. And besides, the fault of the Falcon, if she was in fault, will not excuse the neglect of any precaution on the part of the Scioto. If by any reasonable degree of watchfulness the Falcon might have been seen, I hold that she ought to have been. Á vessel entering a harbor under the circumstances of the Scioto, is responsible de levis-sima culpa.
Might, then, the Scioto, with a vigilant watch, be supposed to have seen the Falcon, while she was approaching her. before the view was intercepted by the other vessel, which was beating into the harbor at the same time; or was the night so obscure that, with a watch intently on the lookout, she might have escaped their sight? Undoubtedly there was light enough to see a vessel broad off on the water, considerably further than these two vessels were apart before the view was cut ■off by the intervening vessel. But then the Falcon was within the land, so that in the direction in which she would be seen as she was approached in any direction, the land rose, behind her, above the line in which her hull would be seen, and then the shade of the vessel would be lost in that of the land; and, in the position in which she lay, she could in fact be discovered by the Scioto, as she approached, at but a short distance. The testimony of the crew is that they were on a sharp lookout; and fault is not ordinarily to be presumed; it must be proved. No vessel can reasonably be presumed wantonly to ran into another, and in eases of collision the presumption. until the contrary is proved, is that it was fortuitous. Kepertoire de Jurisprudence Abordage; Emerig. Assur. p. 414, c. 12, § 14; Boul.-F. Dr. Mar. p. 494, tit. 12, c. 6. Though there is some discrepancy in the testimony as to the obscurity of the night, without supposing it absolutely impossible to have seen the Falcon sooner, I do not feel authorized to
The next question is, whether a fault is imputable to the Falcon, or whether the collision must be considered as a simple misfortune, without fault on either sida When the collision is purely fortuitous and preceded by no fault of either party, the common law as well as that of Rome, following the principles of the law of nature, left the damage and loss to rest where they fell, on the principle that no one was responsible for fortuitous events or accidents of major force. 3 Kent, Comm. 231: Abb. Shipp, p. 1, pt. 3. c. 1; Am. Ed. 1846, p. 301; Dig. 9, 2, 29, §§ 2, 4. And under the term “fault” are included, not only acts of positive misconduct, but every want of due care, vigilance, or skill on the part of the master and crew. "Tmperitia culpse annumeratur.” Dig. 50, 17, 133. But the maritime law, from considerations of public policy, divides the loss equally between them. The whole damage done to both vessels is put into one mass in common, and each pays one half, without regard to the dillerent value of the vessels, when both parties have been in fault, without attempting to discriminate whether the faults had not been greater on one side than the other. Hay v. Le Neve, 2 Shaw, App. 395, cited Abb. Shipp. 230. If, says Valin, it should be objected that it would be more simple to leave each vessel to bear the damage which she has suffered, the answer is, that then the masters of large vessels would have little fear of striking vessels smaller and of less strength. Nothing, then, is more just than a contribution by moieties. Ord. de la Mar. liv. 3, tit. 7, art. 10; 2 Valin, p. 170; Abb. Shipp, p. 301, 8 Kent, Comm. 231. And this rule in the admiralty seems to prevail in three cases, first, when there has been no fault, on either side; second, when there may have been fault, but it is uncertain on which side it lies; and third, when there has been fault on both sides. Story, Bailm. §§ 608a-008d, 609, and notes.
It is contended on the part of the respondent, that two faults are imputable to the Falcon: First, that she anchored in the channel and thus obstructed the common passage way of vessels entering and leaving the port; the second, that she showed no light. The Falcon arrived on Thursday the 7th of December, just one week before this misfortune happened, and came to anchor in the place where she then lay. She was bound to Boston, and came in on account of the weather. On the very evening of her arrival, another vessel, the Medford, in entering the harbor came in collision with her. That has been the subject of examination in this court, and damages were awarded against the Medford. The Falcon then showed a light, but a question was then raised, whether she was excusable for placing herself in that part of the channel. The facts proved were, that the Falcon came into the harbor as a port of safety on account of the state of the weather, that the captain was unacquainted with the harbor, and that he brought his vessel to anchor in a place where vessels often anchor and lay for a short time. The Medford was entering with a fair wind and could easily lay her course directly into the harbor. My opinion then was, and I have seen no cause for changing it, that the collision happened from want of due care on the part of the Medford, without fault on that of the Falcon.
Another fault is imputed to the Falcon, that of not showing a light. If she had shown one. it seems to me nearly certain that she would have been seen from the Scioto in approaching her, in season to have avoided • the collision. If she had had a light suspended in a conspicuous place, and a collision had taken place, it would, to say the least, have been extremely difficult for the colliding vessel to have excused herself. For, admitting that she was anchored in an improper place, her fault would not excuse any want of care and caution in another vessel. But here it is again said, that there are no port regulations requiring vessels to show a light, and that in point of fact it is not customary for vessels to do so in this port. It is true that the testimony is, that though vessels lying in the harbor sometimes show a light, they usually do not. But whatever may be the custom, it appears to me hardly to admit a question, that a vessel lying in a channel, at the entrance of a harbor, where vessels are often passing and repassing, ought in the night time in common prudence to show a light. When she lies out of the channel way where vessels pass, it may not perhaps be required; but if she places herself in the common passage way, though she may have a right to lay there in a case of necessity, certainly it is not demanding too much to require her, while she is occupying the common highway, to give notice, by a light, of her position to others who are passing, and who are entitled of common right to a free and unobstructed passage. If she does not, it appears to me that no court could hold her free from fault. In some parts of this country this is said to be required by port regulations. And I apprehend that it is required by the law of the sea. In the case of Hay v. Le Neve, cited in Abb. Shipp. 230, which arose and was much litigated in Scotland and was ultimately decided on appeal by the house of lords, the Wells was lying at anchor in the Frith of Forth, and, in a cloudy night, was run down by the Sprightly and entirely lost. The bouse decided that both vessels were in fault, and following the rule of the maritime laws divided the loss between them, each bearing one-half. Lord Gifford, in delivering his opinion to the house, said he was strongly impressed with the negligence on the part of the Wells in not showing a light, and it would seem from the report of the case in Abbott that this was the only fault imputable to her. In Jacobson’s Sea Laws, 340, it is said that the want of a lantern, in narrow waters, has always been looked on as an omission and neglect not entitling a party to redress when injured. And it is added, that it was so decided by the supreme court of Hol-land on the advice of Bynkershoek, and there is no higher authority in maritime law than this great civilian. The Ordonnanee of the Marine, liv. 4, tit. 3, art. 4, directs that “when there are several vessels lying in the same road, that which shall be most outward to the water shall have, during the night, a light in the ship’s lantern to warn vessels coming from the sea.” “An extremely wise precaution,” says Yalin, “but too much neglected; but if not observed, the vessel receiving damage would not be entitled to an indemnity for it.”
On these authorities, as well as the obvious reason of the thing, I feel justified in stating that a vessel lying in the channel of this port (and by the channel I mean that part of the water which is traversed by vessels coming into the harbor, whether they can lay their course in, or are under the necessity of beating in) is bound to show a light in the night time, whether the night is obscured by clouds, or it is star-light, provided there be no moon. It is required in my opinion by the general law of the sea, independent of all port regula
Notes
The case of the Medford is not reported, an oral opinion only having been given.