Sterling v. The Jennie Cushman

22 F. Cas. 1308, 2 Cliff. 636

• Court: U.S. Circuit Court for the District of Maine
• Decided: September 15, 1866
• Status: Published

Opinion

CLIFFORD, Circuit Justice.

Taken as a whole, the circumstances show to a demonstration that this was a case of fault and not of inevitable accident. Inevitable accident is never admitted as a good defence except when it appears that neither vessel was in fault, because if the vessel of the respondent was in fault, the libellant is entitled to recover, and if the vessel of the libellant is in fault then the libel should be dismissed; but if both were in fault, then the damages should be divided. The Pennsylvania. 24 How. [65 U. S.] 313: The James Gray, 21 How. [62 U. S.] 194. The general rule is, that when a ship is at anchor in a proper place or anchoring, and with no sails set, if another ship under sail collides with her and does her damage, the vessel in motion is liable. The Batavier, 2 W. Rob. Adm. 407; The Scioto [Case No. 12,508]; Strout v. Foster, 1 How. [42 U. S.] 89.

The appellants do not controvert that general rule, but insist that the evidence in the record shows that the case falls within the qualifications which are included in the rule. The harbor regulations of the port of Bangor provide that no vessel, steamboat, or raft shall be allowed to anchor or lie in the main channel of the river between the Bangor bridge and the north line of Hamp-den, so as to obstruct the free passage of vessels, boats, or rafts up or down the river. The duty of the harbor-master is to board vessels as soon as practicable after their arrival, and to exhibit to the proper officer the regulations of the port, and, if necessary, to direct them where they shall lie. The argument of the appellants is that the vessel of the libellants was not anchored in a place allowed by the harbor regulations, but in a place where she obstructed the free passage of vessels up and down the river. But the harbor-master, and the owner of the wharf to whom the cargo was consigned, testified otherwise, and so do the master and all others on board the damaged vessel. They testify that she was on the Brewer side of the main channel, where at low tide the water was not more than seven feet deep. The witnesses examined by the appellants strongly support their theory, but after a careful examination of the whole evidence I concur with the district judge that their testimony is not sufficient to overcome the facts and circumstances adduced by the libellants. Several other defences were set up by the respondents, but it is sufficient to say that no one of them is sustained by the evidence. Decree affirmed with costs.