amounts to fraud and therefore that the contract was avoided, and that as an action could be maintained for such misrepresentation, the same matters could be pleaded in defense.

These appear to us to be substantially the grounds relied upon by the defendant.

We think the grounds relied upon by the defendant in defense of this action are not tenable, and consequently that the presiding Judge was right in declining to allow the evidence to go to the jury for the purpose requested.

Undoubtedly fraud will vitiate all contracts, but if the defendant insists on fraud as a defense to a bill or note, he must altogether repudiate the contract and retain no benefit under it. We think the evidence given at the trial shows the contrary. The exceptions are therefore overruled with costs, and judgment must be entered for the plaintiff.

The parties having stipulated that another case pending between the same parties on a similar cause of action (L. 2306) should depend upon the result of this case:

Judgment therein must also be entered for the plaintiff.
W. A. Kinney, for plaintiff.

L. A. Thurston, for defendant.

THE PACIFIC NAVIGATION COMPANY vs. S. C. ALLEN. S. C. ALLEN vs. THE PACIFIC NAVIGATION COMPANY.

THE "MOIWAHINE."

THE "JAMES I. DowSETT."

APPEAL FROM THE DECISION OF THE CHIEF JUSTICE SITTING IN

ADMIRALTY.

FEBRUARY 25, 26 AND 28, AS OF JANUARY TERM, 1887.

JUDD, C.J., MCCULLY, PRESTON and FORNANDER, JJ.

BICKER

TON, J., having been of Counsel in the case, did not sit.

On the night of the 29th June, 1886, the steamer J. I. Dowsett had left Kuau, a port near Kahului, on the Island of Maui, and was proceeding under sail and steam down the Molokai Channel for Hono

lulu. The wind was the usual trade-wind, blowing at the rate of about thirty miles an hour in the direction of E.N.E. The J. I. Dowsett had all sail set and her course was W.S. W. The breeze being a fair wind to her, her sails were "wing-a-wing," her foresail being over on her starboard side and her mainsail on the port side. She was going at the rate of from nine to ten knots per hour. The Moiwahine, a schooner, was running close to the wind on the port tack, with all her sails set, and going from seven to eight knots per hour, steering S.E. by E. The night was moonless, but the sky was clear and the stars were shining. Shortly before eleven o'clock the bright mast-head light of the J. I. Dowsett was seen to windward by the lookouts of the Moiwahine, reported to the mate whose watch it was, and to the captain, who, hearing his men talking about a light, came on deck. The vessels were about midway in the channel between Molokai, Lanai and Maul, at a point estimated to be somewhat eastward of the port of Kaunakakai on Molokai. There was plenty of sea room for both vessels, and there are no reefs or obstructions to navigation near the place of collision. The Captain of the Moiwahine saw first the mast-head light of the J. I. Dowsett, then her red light on the Moiwahine's port bow, and judged her to be three-quarters to one mile off; about a minute after he saw her green light and after that her red and green lights. The captain could not tell within two or three points the course the J. I. Dowsett was coming down on; but she appeared to yaw from side to side. When about one hundred or one hundred and fifty feet off, the captain called out to the steamer to "port your helm," and when about seventy-five or one hundred feet off, the helmsman on the J. I. Dowsett gave his wheel a turn to port, and the collision being imminent, the Captain of the Moiwahine ordered his own wheel to port, and his main sheet slacked off, which put the Moiwahine's head off and increased her speed, and brought her stem slightly towards the J. I. Dowsett. The J. I. Dowsett's stem struck the Moiwahine about six feet from the taffrail on the port quarter a violent blow, but did not fasten.

Held, affirming the decree of the Chief Justice, that the navigation of the Moiwahine was proper under the circumstances, and did not contribute to the collision, which had become inevitable, and that by the J. I. Dowsett neglecting to keep a proper lookout, she was solely to blame.

OPINION OF THE COURT, BY PRESTON, J.

THIS is an appeal by the Pacific Navigation Company from

a decision of the Chief Justice whereby he held the steamer J. I. Dowsett solely to blame for a collision which happened between that vessel and the schooner Moiwahine, on the night. of the 29th of June, 1886, and awarded the sum of $676.30 to the owners of the schooner for damages sustained by reason of such collision.

The facts of the case appear fully in the decision of the Chief Justice and need not be repeated here, except so far as may be necessary to properly understand the claim made on behalf of the James I. Dowsett.

The appellant claims that the decision of the Chief Justice is wrong in holding the Dowsett solely to blame, and contends:

1. That the weight of evidence shows the Moiwahine to be in fault in not exhibiting any lights.

2. That therefore the Moiwahine could not recover any damages against the Dowsett, but should be held liable because the neglect to carry lights was a culpable omission and a violation of statute law.

In support of this contention counsel cited (inter alia) The Olivia, 1 Lush., 497. Larco vs. The Martha & Elizabeth, 1 Sawyer, 129. The Carroll, 8 Wallace, 302. The D. P., 1 Lowell, 124. Taylor vs. Harwood, Taney's Decisions, 437. The Helen Mar, 2 Lowell, 40.

3. That the neglect to exhibit lights contributed to the collision, and therefore the damage should be divided.

4. That the collision was caused by the improper navigation. of the Moiwahine, immediately preceding the collision, through her captain ordering her helm to be put up and to slack off the sheet, instead of ordering the helm to be put down, or keeping her course.

The Scotia, 14 Wall., 170: St. John vs. Paine, 10 How., 557: The Genesee Chief, 12 How., 443, and other authorities, were cited in support of this argument.

On behalf of the respondents it was contended the evidence showed that the Moiwahine carried proper lights, that the maneuvre ordered by the captain was proper under the circumstances in which his vessel was placed, and even supposing the

Moiwahine did not show any lights, yet if the Dowsett could have avoided the collision, she would be responsible, and that it would have been avoided had the Dowsett kept a proper lookout. The Ariadne, 13 Wallace, 475.

Counsel for the respondent also cited: 1 Parsons on Maritime Law, pp. 190, 192, 198, 395, 396. Chamberlain et al. vs. Ward, 21 Howard, 570, 571. St. John vs. Paine et al., 10 How., 557. Genesee Chief vs. Fitshugh, 12 How., 443. Ward et al vs. The Ogdensburg, 5 McLean, 634. Larco vs. Schooner Martha and Elizabeth, 1 Saw., 134. Baker vs. City of New York, 1 Clifford, 83. Steamboat Neptune, Olcott, 495. Empire State, 1

Benedict's Adm., 57.

BY THE COURT:

In respect to the point, that the Moiwahine did not show any lights, the evidence is certainly very conflicting, as is usual in cases of this nature. The Court below found that the Moiwahine did carry the proper lights, and in this respect gave more credit to the witnesses on behalf of that vessel than to those on board the Dowsett, and we see no reason, on a careful consideration of the whole of the testimony and of the arguments of counsel, to differ from the conclusions arrived at by the Chief Justice on this point; on the contrary we think and feel no doubt that the Moiwahine did carry the lights required by law, and in their proper positions.

As to the second point, that the alleged neglect of the Moiwahine to exhibit any lights disentitles her to recover any damages, it is hardly necessary, from the views we have taken of the evidence, to consider it, except for the purpose of passing upon the authorities cited by counsel for the appellants.

The principal case relied upon is The Olivia, in which Dr. Lushington says: (1 Lushington, 502), "The question now to be determined is, whether this culpable omission of the Safe Return to show a light is to be considered as a blameable disregard of ordinary nautical precaution, or a violation of statute law. If the former only, then the plaintiffs will be entitled to recover half their damages; but if the latter, a question may

arise, whether the plaintiffs are not altogether barred of recovery."

The statute here referred to is the "English Mercantile Shipping Act, 1854," Section 298 of which provides that if a collision is occasioned by the non-observance of any rule for the exhibition of lights, etc., the owner of the ship by which such rule has been infringed shall not be entitled to recover any recompense whatever for any damage sustained by such ship in such collision, unless it is shown to the satisfaction of the Court that the circumstances of the case made a departure from the rule necessary. (See the Section in The Milan, 1 Lush., 389). No such provision is contained in our statutes, and it is contrary to the course of decisions since the issuance of the "Regulations for preventing Collisions at Sea," of 1863, which were adopted in this Kingdom and afterwards modified in accordance with the amended Regulations.

The case of The Martha & Elizabeth was decided in the U. S. District Court, District of California, and although the head note in the report, (1 Sawyer, 129), tends to show that the decision was solely on the ground that "Lights required by law must be displayed," yet the learned Judge Hoffman, who heard the case, admitted testimony to show that the collision was caused by the gross fault and mismanagement of the colliding vessel, and held that the evidence negatived such allegation.

There can be no doubt as to the rule observed in the whole course of the decisions of Courts of Admiralty, that where the neglect of the vessel to obey the statutory rules as to carrying lights, or of navigation, has contributed to a collision, the vessel in default is held responsible to the extent of one-half or the whole of the damages, as the case may be, and the authorities cited on behalf of the appellant maintain this view.

As to the contention on behalf of the appellant that the Moiwahine executed a wrong maneuver immediately before the collision, we agree with the opinion of the Court below, that such maneuver was justifiable under the circumstances, and indeed prevented greater damage than would have been sustained had she continued on her course. It was made when the collision was inevitable through the default of the steamer.