CLIFFORD, Circuit Justice.
Maritime liens are founded in commercial usage, and it is well-settled law, in the jurisprudence of the United States, that the proper remedy of a party to enforce the same, whether the lien arises in consequence of a marine tort or from the breach of a maritime contract, is by a suit in rem commenced in the district court of the United States, where the res or the offending thing is found. The Belfast, 7 Wall. [74 U. S.] 642. Jurisdiction, where the proceeding is in rem to enforce a maritime lien, is exclusive in the district courts, but the suit may be instituted in any district where the res or the offending thing is found, whether the injury for which satisfaction or compensation is sought occurred in that district or elsewhere within the United States, or upon the high seas. Process in rem is founded on a supposed right in the thing, and the object of the process is to obtain the thing itself, or a satisfaction out of it, for some claim resting on an alleged proprietary-right in the thing w. !ch the process commands shall be arrested, and held subject to the final order of the court. The Commerce, 1 Black [66 U. S.] 580.
(At this point the court reviewed the facts found in the foregoing statement.)
Unquestionably the ordeis given by the master of the schooner were the proper ones, if they had been seasonably given, to have avoided a collision, and inasmuch as they were promptly obeyed, the conclusion is irresistible that they were too late to effect the desired object. Two defences are set up by tlie appellants, which are not in all respects consistent, either in theory- or in fact: 1. That the collision was occasioned by the negligence of the officers and crew of the brig in not keeping her on her course just before and at the time when the collision occurred. 2. That it was the result of inevitable accident, and consequently that the owners of the schooner are not liable for the damages sustained by the brig. Testimony was taken on both sides, and the parties were heard and the district court entered a decree for the libellant in the sum of $2.854.80, whereupon the respondents appealed to this court.
Since the appeal the parties have been heard in this court upon the same testimony [473] as that exhibited in the court below. Much comment upon the first defence set up by the respondents is unnecessary, as it finds no substantial support in the evidence. A mere general allegation of negligence, without specifying in what the negligence consisted, is hardly sufficient to constitute a valid defence, even in pleading, and the answer in this case is not much better, as it only alleges that the officers and crew of the brig were negligent in not keeping the vessel on liar course, -without any specification as to what was done or omitted to be done, which caused or promoted the disaster. Suppose, however, that the answer is sufficiently explicit, still it is quite clear that the charge is wholly unsus-tained by the testimony, as the brig was lying-to on the starboard tack, having a competent lookout properly stationed on the vessel, with her signal-lights fully displayed, as required by law. Further argument upon that topic is unnecessary, as the defence finds no substantial support in the testimony, as is pretty much conceded by the respondents. Inevitable accident was the principal defence to the libel in the district court, and it is the defence chiefly relied on in this court. Cases of collision arise where the disaster was occasioned exclusively by natural causes, without any fault either on the part of the owners of the respective vessels or of those intrusted with their care and management, and where the facts are so the rule of law is that the loss must rest where it fell, on the principle that no one is responsible for such an accident. The Pennsylvania, 24 How. [65 U. S.] 307; The John Frazer, 21 How. [62 U. S.] 194; The Morning Light, 2 Wall. [69 U. S.] 550; The Shannon, 1 W. Rob. Adm. 463.
Where either party is guilty of negligence or fault, such a rule cannot be applied, as the libellant is entitled to recover if the respondent alone was in fault: and if the libel-lant alone was in fault, the libel must be dismissed; and it is equally clear that the damages must be apportioned between the offending vessels in ail cases where both vessels were in fault. Sufficient has already been remarked to show that the brig was not in fault, so that the only remaining inquiry is whether fault is justly imputable to the schooner. Fault is imputed to her in the libel, and if that allegation is sustained the decree should be affirmed, and, if not, it must be reversed, as where neither party is in fault the loss must rest where it fell. Both vessels were lying-to just prior to the collision. Doubts were entertained at the argument whether the fact was So in respect to the brig, but a careful revision of the testimony on that point shows that the allegation of the libel as amended, states the case correctly. Two faults are imputed to the schooner, and, if either of the allegations is sustained, the libellants must prevail. They are as follows: 1. That the schooner had no lookout properly stationed on the vessel. 2. That she had no signal-lights, or that they were not properly displayed just before nor at the time when the two vessels came together. All of the schooner’s company were on deck at the time of the collision, but no one of them had been assigned to duty as lookout during any part of the night, and it does not appear that any one of the number was attending to that duty just before the lights of the brig were discovered. On the contrary, they were all abaft the mainmast when the master, having discovered a light ahead, called the pilot and inquired of him what it was, and the case shows that the pilot immediately said it was the red light of a vessel.
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CLIFFORD, Circuit Justice.
Maritime liens are founded in commercial usage, and it is well-settled law, in the jurisprudence of the United States, that the proper remedy of a party to enforce the same, whether the lien arises in consequence of a marine tort or from the breach of a maritime contract, is by a suit in rem commenced in the district court of the United States, where the res or the offending thing is found. The Belfast, 7 Wall. [74 U. S.] 642. Jurisdiction, where the proceeding is in rem to enforce a maritime lien, is exclusive in the district courts, but the suit may be instituted in any district where the res or the offending thing is found, whether the injury for which satisfaction or compensation is sought occurred in that district or elsewhere within the United States, or upon the high seas. Process in rem is founded on a supposed right in the thing, and the object of the process is to obtain the thing itself, or a satisfaction out of it, for some claim resting on an alleged proprietary-right in the thing w. !ch the process commands shall be arrested, and held subject to the final order of the court. The Commerce, 1 Black [66 U. S.] 580.
(At this point the court reviewed the facts found in the foregoing statement.)
Unquestionably the ordeis given by the master of the schooner were the proper ones, if they had been seasonably given, to have avoided a collision, and inasmuch as they were promptly obeyed, the conclusion is irresistible that they were too late to effect the desired object. Two defences are set up by tlie appellants, which are not in all respects consistent, either in theory- or in fact: 1. That the collision was occasioned by the negligence of the officers and crew of the brig in not keeping her on her course just before and at the time when the collision occurred. 2. That it was the result of inevitable accident, and consequently that the owners of the schooner are not liable for the damages sustained by the brig. Testimony was taken on both sides, and the parties were heard and the district court entered a decree for the libellant in the sum of $2.854.80, whereupon the respondents appealed to this court.
Since the appeal the parties have been heard in this court upon the same testimony [473] as that exhibited in the court below. Much comment upon the first defence set up by the respondents is unnecessary, as it finds no substantial support in the evidence. A mere general allegation of negligence, without specifying in what the negligence consisted, is hardly sufficient to constitute a valid defence, even in pleading, and the answer in this case is not much better, as it only alleges that the officers and crew of the brig were negligent in not keeping the vessel on liar course, -without any specification as to what was done or omitted to be done, which caused or promoted the disaster. Suppose, however, that the answer is sufficiently explicit, still it is quite clear that the charge is wholly unsus-tained by the testimony, as the brig was lying-to on the starboard tack, having a competent lookout properly stationed on the vessel, with her signal-lights fully displayed, as required by law. Further argument upon that topic is unnecessary, as the defence finds no substantial support in the testimony, as is pretty much conceded by the respondents. Inevitable accident was the principal defence to the libel in the district court, and it is the defence chiefly relied on in this court. Cases of collision arise where the disaster was occasioned exclusively by natural causes, without any fault either on the part of the owners of the respective vessels or of those intrusted with their care and management, and where the facts are so the rule of law is that the loss must rest where it fell, on the principle that no one is responsible for such an accident. The Pennsylvania, 24 How. [65 U. S.] 307; The John Frazer, 21 How. [62 U. S.] 194; The Morning Light, 2 Wall. [69 U. S.] 550; The Shannon, 1 W. Rob. Adm. 463.
Where either party is guilty of negligence or fault, such a rule cannot be applied, as the libellant is entitled to recover if the respondent alone was in fault: and if the libel-lant alone was in fault, the libel must be dismissed; and it is equally clear that the damages must be apportioned between the offending vessels in ail cases where both vessels were in fault. Sufficient has already been remarked to show that the brig was not in fault, so that the only remaining inquiry is whether fault is justly imputable to the schooner. Fault is imputed to her in the libel, and if that allegation is sustained the decree should be affirmed, and, if not, it must be reversed, as where neither party is in fault the loss must rest where it fell. Both vessels were lying-to just prior to the collision. Doubts were entertained at the argument whether the fact was So in respect to the brig, but a careful revision of the testimony on that point shows that the allegation of the libel as amended, states the case correctly. Two faults are imputed to the schooner, and, if either of the allegations is sustained, the libellants must prevail. They are as follows: 1. That the schooner had no lookout properly stationed on the vessel. 2. That she had no signal-lights, or that they were not properly displayed just before nor at the time when the two vessels came together. All of the schooner’s company were on deck at the time of the collision, but no one of them had been assigned to duty as lookout during any part of the night, and it does not appear that any one of the number was attending to that duty just before the lights of the brig were discovered. On the contrary, they were all abaft the mainmast when the master, having discovered a light ahead, called the pilot and inquired of him what it was, and the case shows that the pilot immediately said it was the red light of a vessel.
Prior to the time when the pilot came on deck at the call of the master, it does not appear that the lights of the brig had been discerned by any person on board the schooner, except by the master, although the vessels were in very close proximity, and the danger of collision was imminent, as is apparent from the testimony of the master, who first discovered the light. By his own testimony, it appears that he gave immediate orders to the man at the wheel to port the helm, and directed the men to hurry forward and hoist the jib as quick as possible, telling them to cut the gaskets if they found it difficult to unfasten them, showing that the danger, in his view, was a pressing one, and that it called for the utmost promptitude. Before he gave that order he says he noticed that the red light of the schooner was burning brightly in the screen where it belonged, and that he also looked at the green light as he went forward, and that it also was burning, but not so brightly as it ought to have been; that he tried to “turn it up,” and that it went out entirely; that he then took it down and handed it to the first man he met, and he admits that he does not know that it was again put into the rigging. He subsequently saw that light in the hands of one of the crew on the starboard side of the vessel, but he states in the same connection that the jib-boom of the brig was at that time nearly over the schooner. Evidently the time for precautions was past, as the collision was inevitable. Lookouts and lights were wanted earlier, and any attempt to supply their deficiency at that moment cannot operate as a valid excuse for the neglect to supply them in season, as required by the rules of navigation. Extended argument to show that the rules of navigation require that a vessel should have a lookout properly stationed on the vessel is unnecessary, as the views of this court have been too fully and too often expressed upon the subject to require their repetition to enforce the proposition. Sailing-ships as well as steamers navigating in the thoroughfares of commerce must have a constant and vigilant lookout stationed in a proper place on the vessel, and charged with the duty for which a lookout is required, and he must be actually employed in the duty to which he was assigned. Lookouts stationed in positions wheré the view is obstructed either [474] by the lights, rigging, or spars of the vessel, do not constitute a compliance with the rules of navigation, as seamen when they are so situated are as incompetent to perform that duty as if they were physically incapable of seeing an approaching vessel. Chamberlain v. Ward, 21 How. [62 U. S.] 570. Perhaps one lookout is sufficient for small vessels, but they should never be without some one to perform that important duty. The Keystone State, 22 How. [63 U. S.] 471; Whitridge v. Dill, 23 How. [64 U. S.] 448; The Morning Light, 2 Wall. [69 U. S.] 550; Amoskeag Manuf’g Co. v. The John Adams [Case No. 338].
Strong doubts are also entertained whether the schooner can be held to be excused for the condition in which her lights were at the time of the accident, but it is not deemed necessary to enter very fully into the consideration of that subject, as it is clear that she was in fault in not having a competent lookout properly stationed on the vessel. Her lights certainly did not comply with the fifth article of the sailing rules, and the evidence does not bring the case satisfactorily within the exceptional regulations established by the sixth article (13 Stat. 59).
Decree affirmed with costs.