not presume that any damages have been received; and to entitle a recovery the injured party must show the nature and extent of the damages received. Where a statutory requirement or a precaution demanded by good seamanship has been omitted immediately preceding the collision, and the omission is one well calculated to bring about the same, the law will presume that the collision occurred as a result of such neglect, to remove which presumption the burden of proof is upon the one omitting such precaution or requirement to clearly show that the thing omitted did not contribute to or produce the collision.2

minion S. S. Co., 31 Fed. R. 234; Ward v. The Fashion, 6 McLean, 152; The Colorado, 91 U. S. 692; Griswold v. Sharpe, 2 Cal. 17.

1 The City of New York, 23 Fed. R. 616. In this case it was held that the court would not make an allowance for a presumed loss by the injured vessel of such stores

as similar vessels usually carry without proof of what stores were actually on board.

2 The Genesee Chief v. Fitzhugh, 12 How. 443; Gaslee v. Shute, 18 How. 463; The Emily, Olc. 132; 1 Blatch. 236; Cohen v. The Mary T. Wilder, Taney, 567.

CHAPTER XIII.

DAMAGES.

Sec. 187. Negligence.-Negligence is defined as "failure to observe for the protection of the interests of another person that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury." The supreme court have defined the term as "the failure to do what a reasonably prudent person would ordinarily have done under the circumstances, or the doing what such a person, under the existing circumstances, would not have done." The term, in its application to maritime conduct, has the same signification it has at common law-a failure to perform some duty which the law requires to be performed. When collision results from neglect to observe the rules of navigation, such violation is, in contemplation of law, negligence; and in the absence of circumstances rendering such violation excusable, the vessel guilty of such neglect is liable for the damage it inflicts.3

2

The first requisite for a libelant seeking to maintain an action based upon the alleged negligence of another is to show the existence of the duty which he alleges has not been performed; and having shown this, he must clearly show a failure to observe this duty on the part of the other. The omission of a well-known legal duty is such evidence of carelessness, that, where collision occurs by reason of such omission, the court will require clear and strong proof of the facts tending to relieve the delinquent vessel from the liabilities attending its unlawful acts before it will shield it

1 Cooley on Torts, 630.

Woods, 58; The Niagara, 3 Blatch.

2 The Railroad Co. v. Jones, 95 37; The City of New York, 15 Fed. U. S. 441. R. 624; The Scotia, 14 Wall. 170;

3 Sherley v. The Richmond, 2 The America, 29 Fed. R. 304.

from the penalties following its unlawful conduct.' Where, however, it appears that the vessel charged with negligent navigation has taken all precautions that should be taken by ordinarily prudent and skilful seamen to avoid danger, no recovery can be had, as no higher degree of care is required of any vessel than such caution and skill as a reasonably prudent and skilful navigator would exercise under all the circumstances.2

Sec. 188. Proximate cause of collision. In determining the question of the liability of ships and their owners, in admiralty, as at common law, only proximate causes of collision can be taken into consideration; were the rule otherwise, the indefinite extent to which the court's attention might be directed would so embarrass and distract it that consideration of the real question at issue would often be rendered difficult if not impossible; so that as at common law, admiralty courts look only to the direct and proximate cause of the collision, and remote or contingent possibilities are not taken into consideration.3 Liability for the immediate damages resulting from the negligent acts of a vessel, together with the damages resulting from the reasonable and proper efforts of the master and crew of the injured vessel to save it, together with the consequential damages immediately resulting, and fairly attributable to such negligence, are such damages as may be recovered; but damages accruing to the injured vessel subsequently, and resulting only as indirect consequences, are too remote for consideration. Where, however, the damages sustained are a direct

1 Taylor v. Harwood, Taney, 437. 2 McCabe v. Old Dominion S. S. Co., 31 Fed. R. 234.

3 The Maria Martin, 12 Wall. 31; The Leland, 19 Fed. R. 771.

4 The Grand Trunk R. R. v. Griffin, 21 Fed. R. 733; The S. O. Pierce, 40 Fed. R. 767; The Narragansett, 1 Blatch. 211; The Ballamore, 8

Wall. 377; The Union, 2 Biss. 18; Mould v. The New York, 40 Fed. R. 900; The Reba, 22 Fed. R. 546.

Where a schooner came into collision at sea, and was towed in a water-logged condition to Fortress Monroe, and there left in charge of the master, who afterwards employed a tug to tow it to Norfolk,

consequence of the collision, even though inflicted by others, recovery may be had against the offending party responsible for the collision.' The originator of a train of circumstances subjecting a vessel to injury is responsible, though done through the medium of others; where such primary cause is clearly shown it will be considered the proximate cause. A master of a vessel may not proceed in a careless manner, and when circumstances afterwards arise, when it is too late to do what he ought to have done, escape responsibility. The law requires him to act seasonably.2

a distance requiring but a couple of hours to complete, during which it was sunk, held, that the subsequent expenses arising from the sinking of the schooner were too remote to be considered, and were not properly chargeable against the offending vessel. Gilky v. The Beta, 44 Fed. R. 389.

Where the previous fault, if committed, does not directly involve the risk of collision, it will be deemed immaterial, and not the proximate cause of collision, if there was sufficient opportunity for the other vessel to have avoided collision by the use of ordinary skill and judgment. The Nereus,

1 The Oler, 2 Hughes, 12; The Le- 23 Fed. R. 448. land, 19 Fed. R. 771.

Where a boatman remained on board voluntarily after collision, and by reason of the exposure following his health was materially affected, it was held that damages for such personal injury were not properly assessable against the of fending vessel, the cause of the injury being too remote for consideration. The Brinton, 50 Fed. R. 581; Railroad Co. v. Reeves, 10 Wall. 176; Milwaukee & St. Paul Railroad Co. v. Kellogg, 94 U. S. 469. Where the proximate cause is the misconduct of the colliding vessel, it is not shielded from liability by proof of negligence or fault on the part of the other vessel, which had no connection with the act that produced the injury. Mills v. The Nathaniel Holmes, 1 Bond, 352.

2 The Juliet Erskine, 6 Notes of Cases, 634.

In the case of The Austria, 9 Fed. R. 917, it was held that where a vessel free from fault itself is obliged to move by the fault of another from a position assumed by it, and in doing so sustains an injury, the fault should be deemed to be that of the vessel by whose fault it is compelled to incur the risks of a change of location; but where a vessel is endangered by the fault of another, and is unable to secure safety through the want of the usual and proper appliances, it itself is as much at fault as if wanting in the proper skill and diligence on the part of her officers and crew; but if its inability to act is the result of a peril of the sea, or vis major, the consequences of which it has been unable to rem

Sec. 189. Where only one is at fault.- Where only one of two or more vessels is at fault, it is solely responsible for