A small schooner, having no watch on deck, was lying at anchor
inside the Delaware Breakwater in a very dark night, when vessels
were constantly arriving for shelter from an approaching storm.
Among them was one well manned, which, in proceeding to a proper
anchorage, without any fault of either omission or commission on
her part, collided with and sunk the schooner. If a sufficient
watch had been on the deck of the latter, the collision might have
been avoided.
Held that the vessel was not liable.
The facts are stated in the opinion of the Court.
MR. JUSTICE SWAYNE delivered the opinion of the Court.
This is an appeal in admiralty. The case grew out of a collision
between the schooners
Clara and the
Julia
Page 102 U. S.
201
Newell on the 25th of February, 1874, inside the
Delaware Breakwater. The owners of the latter vessel libeled the
former. The libel was dismissed below. Hence this appeal. The facts
were found by the circuit court pursuant to the Act of Congress of
April 13, 1876, c. 77, 18 Stat. 315, which in this respect is a
reenactment of the nineteenth section of the Judiciary Act of 1789,
c. 20. 1 Stat. 83.
The first-named act limits the power of this court upon appeals
in such cases
"to a determination of the questions of law arising upon the
record, and to such rulings of the circuit court, excepted to at
the time, as may be presented by a bill of exceptions."
Here there is no bill of exceptions. As respects the facts, we
cannot under any circumstances look beyond the findings in the
record.
The Abbotsford, 98 U. S. 440. The
only question before us is as to the correctness of the conclusion
of law arrived at by the circuit court. That also is set forth
pursuant to the requirement of the act of 1876, and follows in the
record the findings of fact.
The facts as found are as follows:
1st, the collision occurred inside of the Delaware Breakwater,
and the
Newell was thereby sunk. The
Newell was a
small vessel of seventy-eight tons burden. In the afternoon of the
23d of February, 1874, she anchored within the breakwater for
shelter from an approaching storm. The
Clara, being on a
voyage from New York to Baltimore, foreseeing the coming storm,
bore away and also put into the breakwater for safety. She arrived
about five o'clock A.M. on the 25th of February, 1874, and while
proceeding to a proper anchorage collided with the
Newell.
There were then a large number of vessels in the breakwater, and
others were constantly arriving.
2d, that at the time the
Clara entered the breakwater,
the night was cold and very dark, the moon having gone down several
hours before. That the
Julia Newell was improperly lying
without a watch on deck. That the storm was increasing, and set in
about the time the
Clara came to anchor, and was a very
severe snow storm.
3d, if the
Newell had had a sufficient watch on deck,
the accident might have been prevented.
Page 102 U. S. 202
4th, the
Clara was well manned, and had proper lights
and a proper lookout.
The conclusion of the court as to the law of the case is thus
expressed:
The failure to keep a watch on the deck of the
Julia
Newell was the cause of the collision.
Looking at the case in the light of the findings of fact, no
fault whatsoever, of omission or commission, is imputable to the
Clara. It is true it was her duty, under the
circumstances, to enter the breakwater and proceed to her anchorage
with the greatest care and circumspection.
Culbertson
v. Shaw, 18 How. 584.
Whether there was any failure on her part to comply with this
requirement is not shown. But the maxim applies
quod non
apparet non est. The fact not appearing is presumed not to
exist. The libellants brought the case into court and thus assumed
the affirmative. The burden of proof rested primarily upon them. If
in this or in any other respect there was delinquency on the part
of the respondents, it was for the libellants to prove it. As the
case is presented to us in the record, the
Clara must be
held entirely blameless.
Such is not the position of the
Newell. The findings as
to her put her deeply in the wrong. The night was dark. The moon
had gone down. The tempest had begun and was increasing. A large
number of vessels were already within the breakwater, and others
were constantly arriving.
This condition of things demanded the greatest vigilance on the
part of all concerned.
It was necessary to their safety. Life and property were both at
stake. The
Newell had been at anchor more than twenty-four
hours, and the officers in charge of her had ample time for thought
and preparation. Yet it is found that amid these perils she was
"lying without a watch on deck," and if she had had "a sufficient
watch," the collision that ensued "might have been prevented."
There is nothing in the record which mitigates in any degree the
severe condemnation which such recklessness invokes. Her fault is
without excuse.
The rules of law which apply in these cases are well
settled.
Page 102 U. S. 203
Where the fault is wholly on one side, the party in fault must
bear his own loss and compensate the other party if such party have
sustained any damage. If neither be in fault, neither is entitled
to compensation from the other. If both are in fault, the damages
will be divided. 1 Parsons, Shipp. & Adm. 525, 526;
The Morning
Light, 2 Wall. 550;
Union
Steamship Co. v. New York & Virginia Steamship
Co., 24 How. 307.
The want of a proper watch is a fault of great weight. 1
Parsons, Shipp. & Adm. 576, 577;
The
Sapphire, 11 Wall. 164;
The Indiana,
Abb.Adm. 330;
The Mary T. Wilde, Taney's Dec. 567;
The
Ferryboat Lydia, 4 Ben. 523. In a cause of collision, the
plaintiff, in order to recover entire damages, must prove both care
on his own part and want of it on the part of the defendant. 1
Parsons, Shipp. & Adm. 529 and note 2.
This case falls clearly within the first of the categories above
stated.
Decree affirmed.