Prior to the statute, vessels were accustomed to carry in the night time lights of warning to other vessels navigating the same waters; and the want of such a light where it was customary to carry one, was regarded as a circumstance of neglect, for which when it caused a collision the carrier was answerable. The difficulty was, the want of a uniform usage in respect to the lights and the mode of carrying them;2 a want which is supplied by the specific provisions of the statute.

a

Where the statute is silent, a State law will remain in force; e. g., State law requiring rafts of timber or lumber in motion, on the Hudson, to show two red lights, one on each end of the raft, at least ten feet high.3

§ 735. One of the precautions, which the master of a vessel is bound by the dictates of prudence to take to avoid collision in a dark night, is to hang out a light in some conspicuous place, elevated so that it may be seen afar or as early as possible, by other vessels passing that way. And this duty is quite imperative when a vessel lies at anchor, at the mouth of a harbor, in a much frequented track, or in the channel of a river. Independent of any positive rule of law, prudence demands the act as a natural means of safety; and now the statute, recognizing the duty, requires expressly that all vessels at anchor in roadsteads or fairways shall exhibit a white light, visible all round the horizon at a distance of at least one mile.5

The lights must be carried in a proper manner, and in the absence of positive law, the custom is to be followed. The general duty of the master is to exercise due skill, care and caution in the navigation of his vessel, and he is to hang out a light of warning where that is the most appropriate and efficient, or the recognized mode of exercising the required care. He is bound to keep a vigilant lookout for the same reason, and to use all proper precaution to avoid and prevent accidents; having done this, he is not liable for the results of an accident; though

1 Rathbun v. Payne, 19 Wend., 399; Barnes v. Cole, 21 Wend., 188; Waring v. Clarke, 5 How. U. S., 441.

2 Carsley v. White, 21 Pick., 254.

32 R. S. of N. Y., 951, 5th ed.; Craig v. Kline, 65 Penn. St., 399.

4 Simpson v. Hand, 6 Whart. (Penn.), R., 311, 324; Knowlton v. Sandford, 32 Maine, 148; Walker v. U. S. Ins. Co., 11 S. & R., 61; Secombe v. Wood, 2 Moody & R., 290.

Rule Ten, R. S. of U. S., 822.

6 Steamboat Co. v. Whilldin, 4 Harring. R., 228. On the Delaware the custom is that vessels going against tide keep in shore, whilst those going with the tide keep out in the strength of the tide. This rule qualifies the general rule that steamboats keep to the right in passing. For a similar custom on the Thames, see Malcomson v. Gen. Steam Nav. Co., 4 English (Moak) 183.

in a court of admiralty, where a collision occurs from misfortune, the damages are apportioned between the vessels.1

§ 736. Under the common law rule a party cannot recover damages for an injury caused by a collision, where his own negligence contributes to the collision; or where the collision results from the want of care in the management of both vessels.3

2

The owners of an injured vessel lying aground in or near the channel of a navigable river, may recover against the owners of a steamboat driving against her, or colliding with her, notwithstanding there was prior negligence in permitting the vessel to run aground; this prior negligence not being regarded as a proximate cause of the collision, which might have been prevented by the exercise of reasonable care and prudence in the management of the steamboat. The officers in command, having perfect control of her movements, are bound to use timely care and foresight in passing the stationary vessel.

The master may be guilty of negligence and want of skill in selecting the place where he will anchor his vessel, or in failing to exhibit proper lights. The case is different where his vessel runs and lies aground without fault on his part; and he may recover damages against the owners of a vessel running foul of his, by reason of a failure on their part to use all the precaution and care called for by the circumstances. This rule was applied where the Ontario ran aground near the mouth of the harbor of Cleveland, and within the piers; and the Chesapeake in enter ing the harbor, ran against her in that position, in the night time. Conceding that a vessel entering a harbor in the night time is put upon her utmost vigilance, the Court held that the bare possibility that the master and men on the Chesapeake might have seen the Ontario in time to have stood off without entering the harbor, did not render the owners liable for the damages resulting from the collision.

6

"The law imposes upon all persons using a highway, whether upon

1 Waring v. Clarke, 5 How. U. S., 441, 502.

2 Vanderplank v. Miller, 1 Moody & M., 21.

3 Lack v. Seward, 4 Carr. & P., 103; Vennal v. Garner, 1 Cromp. & M., 21; Mellon v. Smith, 2 E. D. Smith, 432; Steamboat Farmer v. McGraw, 26

Ala., 189.

4 Austin v. New Jersey Steamboat Co., 43 N. Y., 75; Holey v. Earle, 30 N. Y., 208; Davies v. Mann, 10 M. & W., 545.

Strout v. Foster, 1 How. U. S., 83; ante § 735.

6 Kelsey v. Barney, 12 N. Y., 425; The Scioto, Davies R., 359.

A steamer entering a harbor is bound to use every reasonable precaution to avoid a collision with a vessel lying at anchor; and the anchored vessel is bound to use the diligence called for by her position. A decision recently rendered in the District Court at Baltimore, illustrates the rule: "In the United States Dis.

land or water, the obligation to exercise ordinary care to avoid inflicting injury upon others. The degree of care which is thus imposed is not capable of exact definition in words. It is sometimes said to be that degree of care which a prudent man exercises about his own affairs. This definition, and all similiar ones, plainly do not greatly aid the inquiry as to the exact limits of the care to be exercised in any particular case. The difficulty is inherent in the subject. Under some circumstances a very high degree of vigilance is demanded by the requirement of ordinary care. Where the consequence of negligence will probably be serious injury to others, and where the means of avoiding the infliction of injury upon others are completely within the party's power, ordinary care requires almost the utmost degree of human vigilance and foresight." 1

§ 737. The party suffering damages by a collision cannot recover "where no fault can be found on either side;" that is to say, no recovery can be had for damages resulting from inevitable accident; and we find that the colliding of vessels is considered an inevitable accident, when it results notwithstanding both use every proper precaution against danger.2

trict Court, Judge Giles rendered a decision in the four cases of libel against the German steamship Nurnberg, growing out of the collision between the steamship and the Norwegian bark Azow, on the 8th of May, 1877. The principal libel was that of Morton Beyer, and other owners of the bark, who claimed $35,000. It was stated in the libel that the bark Azow, while going down Chesapeake Bay, May 7, came to auchor. The steamship Nurnberg, coming up between 12 and 1 a. m., May 8, ran into the bark, the latter sinking in a few minutes. Four of the crew of the bark were killed or drowned, and the bark and cargo were lost. It was alleged that the bark had all the proper lights set, and that the collision was caused by the fault of those in charge of the steamship. The second libel was for $22,500, the value of the cargo of corn, shipped by Gill & Fisher of Baltimore. The third libel was for $5,000, for personal inju ries inflicted by the collision, and the fourth, in a small amount of cargo shipped. The answer of the owners of the steamship denies that the lights required by law were lighted on the bark, or that she adopted any of the usual precautions to prevent a collision, or that the collision was caused through any fault or carelessness in the management of the steamer." Judge Giles, in deciding the cause, held, that usually the burden of proof is on the vessel in motion, and that the question is whether she used due care; that if she used duc care, and the bark Azow failed to exhibit proper lights, that circumstance was to be considered as placing her in the wrong. He goes on to speak of the absence of a fog, and of the moderate speed of the steamer; of the failure in duty of the lookout on the bark, and of her want of a light, as bearing on and determining the fact of negligence on her part; dismissing the libel.

1 Per JOHNSON, J., in Kelsey v. Barney, supra.

2 Grace Girdler, 7 Wall., 203; Fashion, 1 Newb. Ad., 8; Steinbach v. Rae, 14 How. U. S., 532.

In determining the degree of skill and care required by law, it is a rule that the master and men on board of a vessel cannot excuse their failure to control her movement at the very moment of the collision, where they have negligently brought her into a position rendering the accident inevitable; they are bound to exercise foresight to prevent reaching a point, where her movement cannot be controlled. They are bound to use skill in the navigation of their vessel, and they have a right to assume, and act upon the assumption that every other vessel will be navigated with like skill, especially upon a river crowded with craft of every kind; and so they are not chargeable with an accident resulting from a sudden failure in the movement or control of another boat. And it appears that a person on the vessel, or having property on the vessel thus mismanaged, cannot recover against the other vessel for injuries or losses arising from this fault in navigation; a recovery can only be had against the owners of the vessel which is in fault. But under the principle affirmed in this State, a passenger on the injured vessel should not be considered as so identified with the vessel, that negligence in its management will defeat his recovery for a personal injury caused by the colliding vessel.5 If the collision results from negligence on the part of both vessels, he has a right to recover against both.

§ 738. The omission to comply with a statutory regulation or precautionary measure, directly contributing to an injury, deprives the negligent party of any claim to compensation. A failure to comply with a prescribed rule of navigation, specifying the lights to be carried, is negligence; and existing at the time of a collision, it raises a strong presumption against the master and owners; it casts upon them the burden of showing that the injury did not result from the omission. The want of the required lights is of no avail, where it appears that the collision resulted from other causes; and where the evidence tends to show that

1 Crockett v. Newton, 18 How. U. S., 581; Austin v. N. J. Steamboat Co., 43 N. Y., 75, 80.

2 Beck v. East River Ferry Co., 6 Robt. R., 82.

3 Hoffman v. Union Ferry Co., 47 N. Y., 176.

4 Simpson v. Hand, 6 Whart., 311; Kennard v. Burton, 12 Maine, 39.

Chapman v. New Haven R. Co., 19 N. Y., 341; Brown v. N. Y. Central, 32 N. Y., 597; Webster v. Hudson River Road, 38 N. Y., 260; Eaton v. Boston &. Lowell R., 11 Allen, 500.

6 Colegrove v. N. Y. & N. H. & Harlem R. Co., 20 N. Y., 492; see Bridge v. Grand Junction R. Co., 3 Mees. & Wels., 244; Catlin v. Hills, 8 Com. Bench, 123; Child v. Hearn, L. R. 9 Exch., 176; Lockhart v. Lichtenthaler, 46 Penn. St., 151; see also Hoffman v. Union Ferry Co., 47 N. Y., 176, 181.

Thorp v. Hammond, 12 Wall., 408.

8 Waring v. Clarke, 5 How. U. S., 441.

the collision resulted from other causes, it becomes a question of fact for the jury, whether the want of lights contributed to the injury.1

A failure to carry the required lights in a fog does not absolve another vessel from the duty of using all the usual and proper means to avoid a collision, such as reversing the engines or changing the course. As soon as the danger is discovered, both vessels are bound to accept the situation, and do all that can be done with safety to prevent injury; and if the vessel carrying proper lights fails in this duty, and a collision results from such failure, the master and owners are liable for the resulting damages. "If the absence of the proper signal lights, or the attempt to traverse the harbor in a dense fog, did not cause the collision or contribute to it, but the situation of the injured vessel was, notwithstanding these circumstances, seen by and known to the colliding vessel, and the collision could by the exercise of reasonable care and skill on the part of the latter have been avoided, the injured vessel doing all that could be done to avert the danger, the consequences must fall upon the vessel by whose acts and neglects the injury was caused. The dam-ages in that case are attributable solely to the neglect and want of care and skill of the colliding vessel."2

§739. When two steam vessels are meeting end on, or nearly endon, so as to involve risk of collision, the helms of both must be put to port, so that each may pass on the port side of the other; and the rule, is the same where two sail vessels are meeting end on, or nearly end on, or as it is often termed, head and head, or nearly head and head. These rules, reduced to the form of statute law in 1864, are often referred to as the law of the road; they did not originate in the statute; they had their origin in the rules of navigation existing long before the statute was passed. They apply when sailing vessels or steam vessels are

'Whitehall Transp. Co. v. N. J. Steamboat Co., 51 N. Y., 369; 47 N. Y., 716. 2 Per ALLEN, J., in Hoffman v. Union Ferry Co., 47 N. Y., 176, 184.

* Rule Eighteen, R. S. of U. S., 823; Act of 1864.

4 Rule Sixteen.

The Johnson, 9 Wall., 146, 150. Damages were claimed in this case on account of a collision which occurred in the East River on the 9th of December, 1863, when the following Rules of Navigation were considered in force :—

"RULE 1. When steamers meet 'head and head,' it shall be the duty of each to pass to the right, or on the larboard side of the other; and either pilot, upon determining to pursue this course, shall give as a signal of his intention one short and distinct blast of his steam-whistle, which the other shall answer promptly by a similar blast of the whistle. But if the course of each steamer is so far on the starboard of the other as not to be considered by the rules as meeting head and head,' or if the vessels are approaching in such a mauner, that passing to the right (as above directed) is unsafe, or contrary to rule, by the pilot of either vessels, the pilot so deciding shall immediately give two short and distinct blasts of his steam-whistle, which the other pilot shall an-