Argument for Appellant. and subject to the direction of the L. P. Dayton, having neither propelling nor steering power of her own. "And as to the various allegations of fault on the part of the L. P. Dayton, he denies the same and each one of them. "And as to the allegations in said libel in respect to the damages sustained by the libellant, he has no knowledge and leaves the libellant to his proof thereof. "And he further avers that said tug L. P. Dayton was wholly without fault which caused or contributed to said collision, and the same was wholly caused by fault of those on board and in charge of the said tug James Bowen and said scow Number Four, as alleged in said libel. "And he alleges that the tug L. P. Dayton was well and properly manned and had the requisite lights set and burning brightly according to law, and that the tow was in all respects properly made up; that the two tugs were approaching in such a way that the proper course was for each to pass on the starboard side of each other, and that the proper measures were taken by said tug L. P. Dayton to pass in that manner and the proper signals were blown, but that said tug James Bowen failed to give heed to said signals and to take proper measures to pass on the starboard hand of said tug L. P. Dayton and the boats in her tow, but so negligently navigated as to bring the said scow against the said boat Centennial and also the boat on the port side of the L. P. Dayton." The case was heard in the District Court on the pleadings without testimony, and a decree was passed dismissing the libel. 10 Ben. 430. On appeal to the Circuit Court, the case was again submitted on the pleadings alone, when the same decree was rendered. 18 Blatchford, 411. The present appeal was from that decree, and presents the single question of law whether upon the pleadings, without testimony, there is error in that decree. Mr. Edward D. McCarthy, for appellant, cited: The Scioto, 2 Ware, 359; The Nautilus, 1 Waré, 529; The Alabama and The Gamecock, 52 U. S. 695; The Johnson, 9 Wall. 146; Sproul v. Hemmingway, 14 Pick. 1; S. C. 25 Am. Dec. 350; Argument for Appellee. Sturgis v. Bowyer, 24 How. 110; The Atlas, 93 U. S. 302; Clark v. Barnwell, 12 How. 272; Canfield v. Balt. & Ohio Railroad, 93 N. Y. 532; Stokes v. Saltonstall, 13 Pet. 181; Platt v. Iibbard, 7 Cowen, 497; Clark v. Spence, 10 Watts, 335; Beardslee v. Richardson, 11 Wend. 25; S. C. 25 Am. Dec. 596; Doorman v. Jenkins, 2 Ad. & El. 256; Ware v. Gay, 11 Pick. 106; Christie v. Griggs, 2 Campb. 79; Transportation Co. v. Downer, 11 Wall. 129; The Marpesia, L. R. 4 P. C. 212; The Benmore, L. R. 4 A. & E. 132; The Abraham, 2 Aspin. 34; The Bolina, 3 N. of Cas. 208; Scott v. London, &c., Dock Co., 3 II. & C. 596; The Quickstep, 9 Wall. 665; Dutton v. The Express, 3 Cliff. 462; The Express, Olcott Adm. 258; S. C. 1 Blatchford, 365; The Rhode Island, Olcott Adm. 505; Treadwell v. Joseph, 1 Sumner, 390; The John Adams, 1 Cliff. 404; The Lochlibo, 3 W. Rob. 310; The Gautier, 5 Ben. 469; The Sea Nymph, Lush. 23; The Webb, 14 Wall. 406; The Brazos, 14 Blatchford, 446; Ins. Co. v. Newton, 22 Wall. 32; Carver v. Tracy, 3 Johns. 427; Wailing v. Toll, 9 Johns. 141; Fenner v. Lewis, 10 Johns. 38; Credit v. Brown, 10 Johns. 365; Burmon v. Woodbridge, 2 Doug. 781; Rex v. Clews, 4 C. & P. 221; Delamater v. Pierce, 3 Denio, 315; Bearss v. Copley, 10 N. Y.. 93; Barnes v. Allen, 30 Barb. 663; Trimleston v. Kemmis, 9 Cl. & Fin. 749, 780-784; Morrison v. Clark, 7 Cush. 213; Cent. Bridge Co. v. Butler, 2 Gray, 130; de Nemours v. Vance, 19 How. 162; Pope v. Nickerson, 3 Story, 465; The Clement, 2 Curtis, 363. Mr. Joseph F. Mosher, for the L. P. Dayton (Mr. James E. Carpenter was with him on the brief), cited: Transportation Line v. Hope, 95 U. S. 297; The Margaret, 94 U. S. 494; The Webb, 14 Wall. 406; The Brazos, 14 Blatchford, 446; The Brooklyn, 2 Ben. 547; The Frank G. Fowler, 21 Blatchford, 410; The M. Vandercook, 24 Fed. Rep. 472; The Quickstep, 9 Wall. 665; The Deer, 4 Ben. 352; The W. E. Gladwish, 17 Blatchford, 77; The B. B. Saunders, 23 Blatchford, 378 The New Champion, Abbott Adm. 202; The William Young, Olcott Adm. 38; The Neptune, Olcott Adm. 483, 493; The Breeze, 6 Ben. 14; The Columbus, Abbott Adm. 384; The Summit, 2 Curtis, 150; The Eri, 3 Cliff. 456, 460; The Opinion of the Court. Kallisto, 2 Hughes, 128; The Ligo, 2 Hagg. Adm. 356, 360; The Bolina, 3 N. of Cas. 209; The Adolph, 4 Fed. Rep. 730; The Marpesia, L. R. 4 P. C. 212; The Abraham, 2 Asp. N. S. 34; The Benmore, L. R. 4 A. & E. 132. Mr. William D. Shipman for the Bowen. Mr. Charles M. Da Costa, for appellant, cited the following cases not cited by Mr. McCarthy: The George, 9 Jur. Pt. I, 670; The Victoria, 3 W. Rob. 49: The Telegraph, 1 Spinks, 427; S. C. 8 Moore P. C. 167; The Hibernia, 4 Jur. N. S. Pt. I, 1244; The Bothnia, 2 Law Times N. S. 160; The Despatch, 3 Law Times N. S. 219; The Annapolis, 5 Law Times N. S. 326; The Kepler, 2 P. D. 40; The Glengarry, 2 P. D. 235; The Andalusian, 3 P. D. 182; The La Cahapool, 7 P. D. 217; The George Roper, 8 P. D. 119; The Louisiana, 3 Wall. 164; The Granite State, 3 Wall. 310; The Syracuse, 12 Wall. 167; The Clarita and Clara, 23 Wall. 1; The Belknap, 2 Lowell, 281; Sterling v. The Jennie Cushman, 3 Cliff. 636; The Julia M. Hallock, Sprague, 539; The Bridgeport, 7 Blatchford, 361; The Delaware, 20 Fed. Rep. 797; The Brady, 24 Fed. Rep. 300; The Charlotte Raub, Brown Adm. 453; Hall v. Little, 2 Flipp. 153; The Fremont, 3 Sawyer, 571; Rose v. Transportation Co., 20 Blatchford, 411; Mullen v. St. John, 57 N. Y. 567; Seybolt v. N. Y., Lake Erie & Western Railroad, 95 N. Y. 562; Feital v. Middlesex Railroad, 109 Mass. 398; Philadelphia & Reading Railroad v. Anderson, 94 Penn. St. 351; Iron Railroad v. Mowery, 36 Ohio St. 418; Pittsburg, Cincinnati & St. Louis Railroad v. Williams, 74 Ind. 462; Eagle Packet Co. v. De Fries, 94 Ill. 598; Byrne v. Boadle, 2 H. & C. 721; Bridges v. North London Railway, L. R. 6 Q. R. 377. MR. JUSTICE MATTHEWS, after stating the case as reported above, delivered the opinion of the court. The ground on which, the Circuit Court proceeded is, that as the libel alleges negligence and fault in various particulars as against the tug L. P. Dayton and the tug James Bowen, Opinion of the Court. which are denied in the several answers of the respective claimants, in opposition to which the libellant has proven no negligence or fault on the part of either, the libel must be dismissed, as the burden of proof lies upon the libellant to establish a case of negligence against one or the other, or both of the respondents, and that this burden of proof is not changed or shifted by reason of any allegations of fault contained in the answer of either respondent as against the other. On the other hand, it is contended on the part of the libellant, that while it is true that each of the defendants denies the negligence charged against it, yet both the answers show that the loss must have been occasioned by the fault of one of the defendants, and that being so, the law casts upon each defendant the burden of making good its allegations of fault against the other, in order to exonerate itself. The proposition is stated by one of the counsel for the appellant, in his printed argument, as follows: "A vessel, without propelling or steering power, lashed to the side of a tug, is sunk, as the result of a collision between such tug and another one. In a libel filed by the tow against both tugs, to which answers are interposed, in neither of which is negligence causing or contributing to the collision attributed to the tow and by which each tug seeks to exculpate itself and inculpate the other, a prima facie case of negligence arises without the necessity of proving the specific acts of negligence by either or both tugs, and that the decree to be entered in favor of the libellant, either against one tug alone or against both, is dependent entirely upon the nature of the evidence which it is incumbent upon the tugs to produce, in order to determine as between themselves the issues so made by them by their respective answers." The propriety and soundness of this rule is supposed in argument to rest upon two general grounds: 1st. It is contended that the tow which was injured by the collision is in the same category, as respects both tugs, as that of a vessel at anchor injured by a collision with a moving vessel, where the burden. of proof is upon the latter to show that it was without fault, or that the disaster was the result of fault on the part of the com Opinion of the Court. plaining party. 2d. That where it appears, as in the present case, that the tow, being helpless as to its own navigation, was without fault on its part, and it is manifest, from the circumstances appearing on the pleadings, that the collision was caused either by the fault of one or the other of the tugs, or was the result of inevitable accident, the burden of proof rests upon each to establish such facts as excuse it. The argument is, that such a disaster could only occur from fault of navigation, or from that vis major which is styled inevitable accident; that by the supposition the appellant is free from fault; that consequently it must be that either there was fault on the other side or inevitable accident, in either of which cases it is incumbent upon the respondent affirmatively to establish its excuse. It is also contended for the appellant, that if the truth of the general rule must be admitted, that he who seeks judicially to establish a claim based upon an alleged default of his adversary must affirmatively establish by proof the facts which justify his complaint; and that the burden of proof, as a principle of general jurisprudence, is assumed by the plaintiff, unless the cause of action is confessed or admitted judicially by the defendant; yet, it is also true, that if the defendant accompanies a general denial of the alleged cause of action with the admission of such facts as in law constitute his liability, the plaintiff's case is in fact admitted without other proof. And that, in this aspect, the libellant was entitled to a decree below on the basis of certain admissions of fact in each of the answers inconsistent with the general denials of fault, In our opinion, the burden of proof was upon the appellant to establish a case of negligence against each of the tugs separately and independently. The rule which presumes fault in a case of collision, against a vessel in motion in favor of one at anchor, does not apply. In the present case, the tow, which was injured, was not at rest as respects either of the tugs. As against the Bowen, the movement and navigation of the tow was under the control and management of the Dayton; and in a suit against the Bowen, the tow can have no other or greater rights, and no other of better standing in court, than would the Dayton have had in case the collision had been |