THAIN v. The NORTH AMERICA, 23 F. Cas. 881

BETTS, District Judge. I think a decided preponderance of proof establishes these facts: That the collision was wholly accidental, free of intentional neglect or fault on either side. That the steamboat was navigated with reasonable care and precaution, and was pursuing the usual course of her voyage at the time of collision with the libellant’s vessel. That it was nighttime, and thick, dark weather on the water.

That the vessel of the libellant, at anchor off Castle Garden, had no watch on deck at the time, and no light exhibited in the rigging, and none within view on deck, and she was not seen on board the steamboat until the boat was too near to avoid collision. That if a light had been suspended in the rigging of the vessel, she might have been discovered from the boat in time to avoid her.

In adopting these conclusions of fact, I do not overlook the pointed contradiction of testimony exhibited against the one side by that of the other, nor the collateral evidence tending to show that the sky was clear, and that the libellant’s vessel could be plainly discernible at a distance amply sufficient to enable the steamboat to go clear of her. The greater number of witnesses, and those placed in a situation best to judge, prove, in my opinion, the facts adopted as the basis of this decree.

The rules of law applicable to such a state of facts are familiar, and clearly established upon authority recognized in this country and England. First, admitting the George Canning was managed with the most prudent precaution, and was therefore in no way accessory to the injury received, yet, if the steamboat was also clear of all fault or neglect, no damages would be recoverable. Each party injured would bear his own loss. Abb. Shipp. 354; 3 Kent, Comm. 251; Story, Bailm. p. 381, §§ 607, 608, 611.

The proof is satisfactory that the steamboat was properly checked in her speed in coming round; that an attentive watch was kept up on board, two pilots were at her wheel, and all hands on deck, and that everything was done that is usual in bringing such vessels into their berths, to avoid coming in contact with other vessels; and that after the George Canning was discovered the headway of the boat was stopped, and the machinery worked for a backward movement as promptly as the order could be given and executed.

This, then, renders the occurrence an accident on the part of the boat, if the vessel at anchor had, on her side, done all that was prudent in her position, to obviate such damages. Lack v. Seward, 4 Car. & P. 106; Handaysyde v. Wilson, 3 Car. & P. 538.

This view of the case dispenses with the necessity of discussing the question whether nighttime, in its general acceptation, is to be regarded as continuing till displaced by that degree of daylight which gives the vision command of surrounding objects; or whether it is to be understood as defined in the criminal law, when there is not light enough began or left, whereby the countenance of a person may be reasonably discerned (2 Russ.

Crimes, 940): for, whatever the hour may have been, or whether the master of the George Canning was guilty of any omission of duty or proper care in not carrying a light in his rigging, the steamboat is alike exempt from a claim of damages, no fault being proved against her, the decided -weight of evidence being that, with the exercise of every reasonable diligence on board, the Canning was not seen in time to be avoided.

But, the case presenting the point directly, I have no hesitation in saying that not only was the ‘George Canning acting in violation of an express law in lying at her place of anchorage without showing a light, but that, independent of the state statute, it was culpable negligence in her to remain in the then darkness of the night without both such light and a watch on deck. Decree dismissing the libel, with costs to be taxed.