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In the United States there are some decisions maintaining the ancient rule. The supreme court, however, has never coincided with the views of the lower courts in this respect; and it may now be considered as well settled that division of damages cannot be had where neither party is shown to be at fault. In the case of The Grace Girdler2 the supreme court held that no recovery can be had where there is reasonable doubt as to which party is at fault. Again, in the case of The Union Steamship Company v. The New York & Virginia Steamship Company, the court, by Mr. Justice Clifford, held the rule of liability to be, that where one party only is at fault he must suffer the damages alone; where both parties are at fault, the damages are apportioned; and where neither is at fault, nothing can be recovered. To entitle a recovery it must be clearly shown that the party seeking redress has suffered loss, and that such loss was caused by the failure of the other to perform some duty imposed upon him to perform. Until this is done the presumption of law is that the vessel is innocent of offense; and where there is a failure to show such neglect of duty, the loss must rest where it falls. Where there is doubt or uncertainty as to the mutuality of the fault, or where it appears that some slight error of one is caused by the original and flagrant fault of the other, no apportionment will be made. Having voluntarily encountered the usual hazards of navigation, in the absence of proven fault the loss must be borne by the one incurring it. In the absence of proof of negli

1 The John Henry, 3 Ware, 264; The David Dows, 16 Fed. R. 154; The Breeze, 6 Ben. 14; The Summit, 2 Curt. 150.

27 Wall. 196. 324 How. 307.

4 The Rebecca Shepard, 32 Fed. R. 926; The Clara, 102 U. S. 200: The Sylph, 4 Blatch. 24; The Continental, 14 Wall. 345; The Brig Verona v. Clark, 1 Tex. 30; The

Morning Light, 2 Wall. 550, 561;
The Athabasca, 45 Fed. R. 651;
Pierce v. The J. R. P. Moore, 45 Fed.
R. 267; Ward v. The Fashion, 6
McLean, 152; Reeves v. The Con-
stitution, Gilp. 579; Stainback v.
Rae, 14 How. 532; The Atlas, 3 Otto,
302; The Sciota, 2 Ware, 360.

5 The Grace Girdler, 7 Wall. 196; Jerrome v. The Floating Dock, 3 Hughes, 508; Ward v. The Dous

gence the court will presume that the collision occurred. from inevitable accident.1

Sec. 195. Inevitable accident.- Inevitable accident, as defined by Mr. Justice Swayne in the case of The Grace Girdler, "is where a vessel is pursuing a lawful avocation in a lawful manner, using the proper precautions against danger, and an accident occurs." Again, in the case of The Union Steamship Company v. The New York & Virginia Steamship Company, the supreme court defines the term as "a collision which occurs when both parties have endeavored by every means in their power, with due care and caution, and a proper display of nautical skill, to prevent the occurrence of the accident."

Where the collision occurs wholly from natural causes, without negligence or fault on the part of either of the respective vessels, or, as is said in the case of The Nicholson and The Adams, "where safe navigation is rendered impossible from causes which no human foresight can prevent, when the forces of nature burst forth in unforeseen and uncontrollable fury, so that man is helpless and the stoutest ship and the wisest mariner are at the mercy of winds and waves," it is inevitable accident. The rhetoric of the learned judge may perhaps have somewhat overstated the definition of the term, as it is not always necessary to show that the collision was brought about by some superior force, vis major, to make the defense of inevitable accident tenable. Where no negligence or fault can be imputed to either vessel, the law presumes that both are navigating in a lawful manner, and the collision will be presumed to be the result

man, 6 McLean, 231; The Bayard v. The Coal Valley, 3 Pitts. Rep. 165; The Kallisto, 2 Hughes, 128; The Joseph W. Gould, 19 Fed. R. 785.

1 Ward v. The Fashion, 1 Newb. 8; The Morning Light, 2 Wall. 550; The Java, 14 Wall. 189. 27 Wall. 196, 203.

324 How. 307; The General Clinch, 21 How. 184; The Austria, 9 Fed. R. 916; The Louisiana, 3 Wall. 164; Van Dyke v. The Bridgeport, 35 Fed. R. 159.

4 28 Fed. R. 889; Killam v. The Eri, 3 Cliff. 456.

of inevitable accident, even though it is not shown that it is caused by storm or vis major. Where inevitable accident is shown, the loss must remain where it falls, on the principle that no one should be held to be in fault for results produced by causes over which human agency can exercise no control. Where it appears that either party or both are at fault, that everything was not done that could and should have been done, that the collision might have been prevented by the use of known and proper precautions, by the display of proper nautical skill and judgment, it no longer becomes inevitable accident, but one for which one or both vessels are responsible. The defense of inevitable accident cannot be sustained unless it appears that both parties have endeavored by all means in their power to prevent the collision; nor can the defense be maintained where a vessel voluntarily puts itself in a situation where it receives the effect of natural forces, the results of which should have been foreseen, and might reasonably have been anticipated.* By inevitable accident is not meant one which it was absolutely a physical impossibility to have prevented. The most that is meant is an occurrence which could not have been avoided by that prudence and forethought which careful men would exercise under the circumstances."

1 Ward v. The Fashion, 1 Newb. 8; The Morning Light, 2 Wall. 550, 561; The Java, 14 Wall. 189.

2 Steinback et al. v. Rae, 14 How. 533; The Austria, 14 Fed. R. 298; Reeves v. The Constitution, Gilp. 579; The Morning Light, 2 Wall. 550;. The Chickasaw, 38 Fed. R. 358; The Moxey, Abb. Adm. 73; The Java, 14 Wall. 189; The Brooklyn, 4 Blatch. 365; The Avid, 3 Ben. 434; Beam v. The Mayurk, 2 Curt. 72; Ward v. The Fashion, 6 McLean, 152; Jerrome v. A Floating Dock, 3 Hughes, 508; The Louisiana, 3 Wall.

3 The Union Steamship Co. v. The New York & Virginia S. S. Co., 24 How. 307; The Nacooche, 22 Fed. R. 855; The Clarita and The Clara, 23 Wall. 1; Ladd v. Foster, 31 Fed. R. 827; The David Dows, 16 Fed. R. 154.

4 The C. P. Raymond, 26 Fed. R. 281; The Minnie R. Childs, 9 Ben. 200; Bodin v. The Thule, 3 Woods, 670.

5 The Olympia, 61 Fed. R. 120; The Michigan, 52 Fed. R. 501; The Morning Light, 2 Wall. 550.

Sec. 196. In extremis.-The international rules of 1890, as well as all rules that have ever been adopted for the prevention of collisions at sea, recognize the impossibility of framing regulations applicable to every situation that may arise. The regulations of 1890, therefore, provide that “In obeying and construing these rules due regard shall be had to all dangers of navigation and collisions, and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate danger." 1

Where vessels are suddenly brought close together, and the ordinary rules of navigation will not apply to prevent collision, it is the duty of each to act according to the emergency, and to take any measure likely to attain that object, whether it is provided for by the rules or not, even though it may be in direct violation of them under ordinary circumstances.2

Where a vessel comes suddenly and without warning into imminent peril of collision, without antecedent fault on its part, the courts will take into consideration the attending uncertainty and confusion, created by the surprise, in determining whether the management of the vessel is proper or blameworthy. They do not require that degree of good judgment and careful consideration required of a ship's company when not face to face with instant and impending peril.

Where an injudicious order is given, or there is a failure to adopt the most prudent measures for safety, or error is committed by a vessel not otherwise at fault, and is brought into immediate jeopardy by the fault of another in a moment of alarm, such error or mistake will not subject the vessel to damages or prevent a recovery from another. Mere error of judgment under such circumstances is not a

126 U. S. Stat. at L. 320, art. 27; Art. 23, Rules 1885, 23 U. S. Stat. at L. 442; Rule 27 of Rules for the Great Lakes.

2 Peck v. Sanderson, 17 How. 178; The Havanna, 54 Fed. R. 411.

3 The Columbus, 1 Abb. 384; Cha

pin v. The Hattie Ross, Fed. Cas. 2598; The Robert Holland and Pavonia, 59 Fed. R. 200; The Genesee Chief v. Fitzhugh, 12 How. 444; The City of Paris, 1 Ben. 174; 9 Wall. 634; The Iron Chief, 63 Fed. R. 289.

fault. To enable a vessel to avail itself of the plea of mistake, made in extremis, it must appear that the situation was induced by the fault of the other. Where the evidence shows that the antecedent misconduct of a vessel has brought it into a situation where there is no time for judicious action, the fact that an injudicious order is given, under the excitement of the moment, will not relieve it from the antecedent fault, and it may not avail itself of the plea of imminent peril as an excuse.3

1 Mosley v. The Nacooche, 137 U. S. 330; The City of Springfield, 29 Fed. R. 923; The Belle, 1 Ben. 317; Bartlett v. Williams, 1 Holmes, 229; The Jupiter, 1 Ben. 536; The John Mitchell, 12 Fed. R. 511; The Nichols, 7 Wall. 656; The Ella B., 19 Fed. R. 792; The John H. Abeel, 4 Ben. 58; The Elizabeth Jones, 112 U. S. 514; The Fairbanks, 9 Wall. 420; The Dexter, 23 Wall. 69; The Columbus, Abb. Adm. 384; The State of Alabama, 17 Fed. R. 847; The Cadiz, 20 Fed. R. 157; The Renovator, 30 Fed. R. 194; The Genesee Chief v. Fitzhugh, 12 How. 443; Ward v. The Fashion, 6 McLean, 152; The F. W. Gifford, 7 Biss. 249; The Northern Indiana, 3 Blatch. 92; The Norwalk, 11 Fed. R. 922; Orhanovich v. The Steam-tug America, 4 Fed. R. 337; The Osceola, 33 Fed. R. 719; The Galileo, 28 Fed. R. 469; The Carroll, 8 Wall. 302; The New Orleans, 8 Ben. 101; The Agnes Manning, 44 Fed. R. 110; The Harry White, 50 Fed. R. 624; The Blue Jacket v. Tacoma Mill Co., 144 U. S. 371.

sought to show negligence on the part of the vessel because it did not put to sea when it observed the storm approaching, and because it was not properly attached to its buoy; and it was shown that the vessel did all that nautical skill could do to prevent the accident, and that it would have been perilous to have put to sea, it was held to have been inevitable accident. Stearns v. Hooper, 20 Pac. R. 734.

Where a collision occurred on a bright starlight night between two canal-boats going in opposite directions at a speed of less than three miles an hour, it was held not attributable to inevitable accident, especially as each was discovered in time to have avoided the accident. The Thomas Carroll, 23 Fed. R. 912.

Where a collision occurred in the Detroit river by reason of the breaking of a steamer's tiller rope, and it appearing that the tiller rope was of a suitable size, had been purchased of a reputable dealer, and at a price sufficient to have se

2 The Elizabeth Jones, 112 U. S. cured a good article; and it appear

514.

3 Ward v. The Fashion, 1 Newb. 8. Where an action was brought for injuries to a wharf, and it was

ing that it had not been in use a sufficient length of time to injure it, and that it had been inspected but a short time before, it was held

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