Beane et al. v. The Mayurka. tune; and it is in terms stated, that the decision correctly declares the law as it stood before that act. The same rule, as found in Yates v. held by courts of common law, may be Brown, in 8 Pick. R. 23, and the cases there cited. And in Smith v. Condry, 1 How. 28, it is said to be undoubtedly the law. The result is, that the decree of the District Court must be affirmed, with costs, and damages at the rate of six per centum per annum from its date. E. D. Sohier, för the appellant. AMAZIAH BEANE et al. v. THE SCHOONER MAYURKA. The allegation of negligently anchoring so near to another vessel, as to come in collision in a storm repelled. There is no maritime lien created by a general average loss, and consequently the admiralty has not jurisdiction in rem. Where two vessels at anchor come in collision without fault, and it was necessary, to prevent the destruction of both, for one to slip the cable and go ashore, this gave no claim against the other for a salvage service. The case is stated in the opinion of the Court. CURTIS, J. This is an appeal from a decree of the District Court in a cause of collision. The libel states that the schooner Sarah and Adeline being at anchor inside the breakwater at the mouth of the Delaware Bay, on the night of the third of January, 1853, the Mayurka dragged her anchors, drifted foul of the Sarah and Adeline, and after the two vessels had been some time in collision, and while they were both in imminent danger of sinking at their anchors if not extri Beane et al. v. The Mayurka. cated, the Sarah and Adeline slipped her cable and drifted to leeward a short distance, let go her small and kedge anchors, held on by them for some hours, and then was driven on shore and wrecked. The libel is framed in three aspects. First. It alleges that the collision occurred through the negligence of the people of the Mayurka in not having out, proper ground tackle, and not keeping a suitable anchor watch. Second. If there was no such negligence, and the vessels came in collision by inevitable accident, it insists that the cable and anchor of the Sarah and Adeline were voluntarily slipped, for the safety of both vessels, and upon the urgent request of the master of the Mayurka, as the only means of preventing the destruction of both, and that the stranding which followed was a direct and necessary consequence of the voluntary sacrifice of the cable and anchor, and therefore the entire loss should be borne pro rata by both vessels and cargoes as a general average loss. Third. That if this be not so, the libellants should be treated as salvors of the Mayurka. Upon the first of these questions, the evidence derived from the officers and crews of the two vessels, and of another vessel called the Harbinger, which was anchored near, is even more than usually conflicting. I have carefully examined it, with the endeavor not to reconcile it, for that is plainly impossible, but to arrive at some leading facts, in a manner satisfactory to my own mind. To some extent I have been able to do so; and without detailing the evidence I will state what those conclusions are. First. I find that the Mayurka came into the harbor before dark and came to anchor, with her best bower; that she does not appear to have drifted before twelve o'clock that night; that just before twelve o'clock, her second anchor was dropped, and about twenty-five fathoms of chain was payed out. VOL. II. 7 บ Beane et al. v. The Mayurka. Second. That the Sarah and Adeline came to anchor with her best bower, after dark, on the lee quarter of the Mayurka, and by reason of the scope of her chain, when she swung to her anchor, was somewhat astern of the Mayurka. But I am not satisfied, that any one on board either vessel saw the other vessel, when the Sarah and Adeline came to anchor, nor do I find it possible to determine, with any approach towards precision, how near together they were, when the Sarah and Adeline was first anchored. Third. I do not attribute this failure to see each other, to the want of a light on board either vessel, for I am satisfied there was no neglect in this particular; nor do I find any want of due care in the selection of a berth, by the Sarah and Adeline. The testimony is direct and strong to prove, that the master had the helm, and the mate and all hands were on the look-out forward, to discern a proper place for anchorage. That they believed they had selected such a place is probable in itself, and, as already stated, there is not sufficient evidence to satisfy me, that in point of fact, the Sarah and Adeline was anchored in dangerous proximity to the Mayurka. Fourth. I find that after twelve o'clock at night, the ground tackle of the Mayurka was sufficient, and was properly attended to, and that a suitable anchor watch was kept on board. Through what causes the two vessels came together, is the difficult question. The collision occurred in a dark night, a snow-storm, and a violent gale of wind. The Sarah and Adeline was found to be just astern of the Mayurka, heading, in nearly the same direction, and almost immediately struck the boat of the Mayurka with her bowsprit, then came with her bows on the quarter of the Mayurka, her bowsprit sliding along until it was caught between the mainmast and rigging, and in this position the two vessels lay until the chain of the Sarah and Adeline was slipped, and she drifted to leeward. On the one side it is asserted, that the Mayurka drifted on to the Sarah and Adeline; on the other, that the Sarah and Ade Beane et al. v. The Mayurka. line, swinging at one anchor, was forced by a strong current, when the squalls lulled, in the direction of the Mayurka, and thus came in collision. There are very material facts sworn to in the case, which tend, and if they stood alone, would be sufficient to support either hypothesis. I will advert briefly to some of them. The mate of the Mayurka swears he observed the chains carefully after the small anchor was let go; that its chain at no time bore an equal strain with the chain of the best bower. There is much evidence to prove that the relative positions of the Mayurka and Harbinger were not materially changed during the night, and that the latter vessel had both anchors down, and sufficient chain out, and that her master, who seems to have been anxiously vigilant during the night, was not aware that his vessel drifted. The Sarah and Adeline, a vessel of nearly the same size, model, and burden of cargo as the Mayurka, had but one anchor down, and about the same scope of chain out as the Mayurka's best bower had, after twelve o'clock, and is not alleged, and does not appear to have drifted. On the other hand, it is difficult to believe that these two vessels were anchored so near each other, that the Sarah and Adeline could, in that gale, have come up into the wind far enough to reach the Mayurka; and it is very difficult to reconcile the fact, that as soon as her cable was slipped, she immediately went astern, with any other hypothesis than that she was then held by her anchor. I attach some weight, also, to the testimony of the mate of the Sarah and Adeline, concerning the manner in which the two vessels came together. It was also urged that the Mayurka did not drift after the collision. But more scope was given to her chains after the collision. How soon after, does not satisfactorily appear. If immediately after, it would have a tendency to prove, that her people thought she had been drifting and needed more scope to hold her. Some of them say, it was a considerable time after the collision, that more chain was let out. Length of time is Beane et al. v. The Mayurka. a fact, extremely difficult to be judged of with accuracy, on such occasions, and I have not been able to allow much force to this circumstance. On the whole, I think the evidence so far preponderates in favor of the hypothesis that the Mayurka did drift, that I consider the Sarah and Adeline relieved from the blame which would be attributable to her, if it had sufficiently appeared that the disaster was caused by her anchoring so near the Mayurka, that she was carried by the tide in collision with her. The result to which I have come upon the best consideration I have been able to give to the evidence, relieves both vessels of blame, and attributes the disaster to a vis major merely. Of course the libellant cannot recover, treating this as a simple cause of collision, and in this respect the decree of the District Court must be affirmed. It remains to consider the other claims; - and first, that for a general average contribution. This is a novel question of much interest. Whether such a claim can ever exist save as between those who have voluntarily embarked their several property in a common adventure, is worthy of great consid eration. But I do not feel at liberty to express any opinion upon it, because I consider there is not jurisdiction in the admiralty to try and determine it. In Stainback v. Rae, 14 How. R. 532, it was settled, that where a loss happens from a collision which is the result of inevitable accident, without negligence or fault of either party, each should bear his own loss. Viewed, therefore, simply as a case of collision, and damage proceeding therefrom, the libellants have no valid claim. The question is, whether in a proceeding in rem, the admiralty may examine, whether a voluntary sacrifice was made, to diminish the damage which would otherwise have been suffered, from a collision without fault, and may pronounce in favor of a lien, upon the vessel benefited by the sacrifice. I say, pronounce in favor of a lien upon that vessel, |