by the watch in the Falcon. I fully agree with the libellant's counsel, that the obligation of a vessel entering a harbor, to keep a vigilant watch is more stringent than it is on a vessel lying at anchor, for the obvious reason that, being in motion, she is in danger of collision, not only with vessels in motion like herself but with those at anchor. And besides, the fault of the Falcon, if she was in fault, will not excuse the neglect of any precaution on the part of the Scioto. If by any reasonable degree of watchfulness the Falcon might have been seen, I hold that she ought to have been. A vessel entering a harbor under the circumstances of the Scioto, is responsible de levissima culpa.

Might then the Scioto with a vigilant watch be supposed to have seen the Falcon while she was approaching her, before the view was intercepted by the other vessel, which was beating into the harbor at the same time; or was the night so obscure, that with a watch intently on the look out, she might have escaped their sight? Undoubtedly there was light enough to see a vessel broad off on the water, considerably further than these two vessels were apart before the view was cut off by the intervening vessel. But then the Falcon was within the land, so that in the direction which she would be seen, as she was approached in any direction, the land rose behind her, above the line in which her hull would be seen, and then the shade of the vessel would be lost in that of the land; and in the position in which she lay, she could in fact be discovered by the Scioto as she approached but a short distance. The testimony of the crew is, that they were on a sharp look out, and fault is not ordinarily to be presumed. It must be proved. No vessel can reasonably be presumed wantonly to run into another, and in cases of collision the presumption, until the contrary is proved, is that it was fortuitous. Repert. de Jur. abord. Emerig. des Ass. ch. 12, § 14, p. 414; Boulay Paty, Droit Mar. tit. 12, ch. 6, vol. 4, p. 494. Though there is some discrepancy as to the obscurity of the night, without supposing it absolutely impossible to have seen the Falcon sooner, I do not feel authorized to say that she must be in fault for not doing it, or that there was a want of due vigilance on her part. Some light might have been thrown on this obscure part of the case, if the crews of the other two vessels which were passing the Falcon at the same time, had been called as witnesses. We

should then have known at what time she was seen by them. But they have not been called by either party.

The next question is, whether a fault is imputable to the Falcon, or whether the collision must be considered as a simple misfortune, without fault on either side. When the collision is purely fortuitous and preceded by no fault of either party, the common law as well as that of Rome, following the principles of the law of nature, left the damage and loss to rest where it fell, on the principle that no one was responsible for fortuitous events or accidents of major force. 3 Kent. Com. 23; 1 Abb. Shipp. P. 3, ch. 1, p. 1, Amer. Edit. 1846, p. 301; Dig. 9, 2, 29, § 2 and 4. And under the term fault are included, not only acts of positive misconduct, but every want of due care, vigilance, or skill on the part of the master and crew. Imperitia culpæ annumeratur Dig. 50, 17, 133. But the maritime law from considerations of public policy, divides the loss equally between them. The whole damage done to both vessels is put into one mass in common, and each pays one half, without regard to the different value of the vessels, when both parties have been in fault, without attempting to discriminate whether the faults had not been greater on one side than the other. Hay v. Le Neve, (cited Abb. Shipp. 304.) If, says Valin, it` should be more simple to leave each vessel to bear the damage which she has suffered, the answer is, that then the masters of large vessels would have little fear of striking vessels smaller and of less strength. Nothing then is more just than a contribution by moieties. Ord. de la Mar. Liv. 3 Tit. 7, art. 10; Valin. vol. 2, page 179; Abb. Shipp. p. 301; 3 Kent, 231. And this rule in the admiralty seems to prevail in three cases, 1, when there has been no fault on either side; 2, when there may have been fault but it is uncertain on which side it lies; and 3, when there has been fault on both sides. Story Bailm. § 608, a, b, c, d, 609, and notes.

It is contended, on the part of the respondent, that two faults are imputable to the Falcon; first, that she anchored in the channel and thus obstructed the common passage way of vessels entering and leaving the port; the second, that she showed no light. The Falcon arrived on Thursday, the 7th of December, just one week before this misfortune happened, and came to anchor in the place where she then lay. She was bound to

Boston, and came in on account of the weather. On the very evening of her arrival, another vessel, the Medford, in entering the harbor, came in collision with her. That has been the subject of examination in this court, and damages were awarded against the Medford. The Falcon then showed a light, but a question was then raised, whether she was excusable for placing herself in that part of the channel. The facts proved were, that the Falcon came into the harbor as a port of safety on account of the state of the weather, that the captain was unacquainted with the harbor, and that he brought his vessel to anchor in a place where vessels often anchor, and lay for a short time. The Medford was entering with a fair wind and could easily lay his course directly into the harbor. My opinion then was, and I have seen no cause for changing it, that the collision happened from want of due care on the part of the Falcon.

But the facts now before the court present a widely different case. The Falcon lay a little out of the tract of a vessel entering the harbor as her home port with a fair wind, but precisely, as it was expressed by one of the witnesses, in the gang way leading to Hog island roads, and that is the place aimed at by many, if not by most vessels which come into the harbor for safety from stress of weather. All the experienced ship-masters without exception, who have been examined, say that it was not a fit place for a vessel to anchor in case of necessity, but that it was a place of danger both to herself and other vessels that were entering into the harbor; and that no vessel anchoring there from necessity, ought to remain in so exposed a situation longer than the necessity continued. Now the master had been very strongly admonished by one collision that he lay in an unsafe place, yet he remained there for a week after, without attempting to change his place.

Admitting that the master of the Falcon, being little acquainted with the harbor, is excusable for bringing his vessel to anchor in that place when he first entered the harbor, is he excusable for remaining there after he had the most convincing proof that he was in a place that exposed him to collision with other vessels entering the harbor? It is contended by his counsel that he was, first, because the subject of the first collision was then under judicial examination, and that he might

naturally suppose that he would be chargeable with some impropriety if he removed while that matter was pending; and, secondly, that there being no harbor-master or port regulations directing where vessels may lie, that every master has a perfect right to choose his own place of anchorage, and that he has as much right to one part of the harbor as another.

I can see no sufficient reason for his not removing his vessel from the channel where she was in constant danger of collision with vessels entering the port, from the fact that the process for the first collision was still pending and undecided. He might easily, by calling witnesses, have determined her exact position, or at least nearly enough for the purposes of that case. And though in the absence of any harbor regulation, every master may choose his own place of anchorage, he makes the choice on his own responsibility. It does not follow, because there are no special laws or regulations for the port and harbor, that they are left without law. The general law of the sea then governs. In all situations men are bound by the common obligation of social duty, so to use their own right as not to injure others. Sic utere tuo ut alienum non lædas, is a principle of the law, as well as morals. The law of the state does not, it is true, attempt to enforce by penalties all the obligations of high and strict morality, but this one in which, in a great variety of circumstances, it does come in aid of social duty and Christian charity. It requires men to care for others as well as themselves, and so to exercise their own unquestioned right, as not to violate or infringe the equal rights and endanger the security of others. Admit that in a case of urgent necessity, a master has a right to bring his ship to anchor in the very middle of the channel. Others have a right to that channel as a passage way, as well as he. He could not remain there longer than his necessities required, without encroaching on the rights which others have to the free use of the channel in passing in and out, without dangerous obstruction. He is bound as soon as he is able, to remove his vessel to a place where she may be safe herself, and not endanger the safety of others. It is an old rule of the maritime law, that a vessel improperly moored or in an improper place, can claim nothing for damages she may suffer from collision with another vessel. Ord. de la Mar., L. 3, Tit. 7, art. 11, and L. 4, Tit.

8, art. 3; Valin, vol. 2, p. 183-579; 1 Emerig. Ass. ch. 12, sect. 14, page 412; Laws of Oleron, art. 15. Notwithstanding the injury which the vessel had received in the former collision, I am entirely satisfied that she might have been moored with ease and with perfect safety, where she would have been out of the way of vessels beating into the harbor, and in my opinion, she was in fault in not doing it. All the witnesses agree on the point, which indeed seems too plain to require proof, that a vessel ought not to lie day after day, in that part of the channel which is in the range vessels take in beating into the harbor.

Another fault is imputed to the Falcon, that of not showing a light. If she had shown one, it seems to me nearly certain that she would have been seen from the Scioto in approaching her, in season to have avoided the collision. If she had had a light suspended in a conspicuous place, and a collision had taken place, it would, to say the least, have been extremely difficult for the colliding vessel to have excused herself. For admitting that she was anchored in an improper place, her fault would not excuse any want of care and caution in another vessel. But here it is again said, that there are no port regulations requiring vessels to show a light, and that in point of fact it is not customary for vessels to do so in this port. It is true that the testimony is that, though vessels lying in the harbor sometimes show a light, they usually do not. But whatever may be the custom, it appears to me that a vessel lying in a channel at the entrance of a harbor where vessels are often passing and repassing, ought in the night time in common prudence to show a light. When she lies out of the channel way where vessels pass, it may not perhaps be required; but if she places herself in the common passage way, though she may have a right to lay there in a case of necessity, certainly it is not demanding too much to require her, while she is occupying the common high way, to give notice by a light, of her position to others who are passing, and who are entitled of common right to a free and unobstructed passage. If she does not, it appears to me that no court could hold her free from fault. In some parts of this country this is said to be required by port regulations. apprehend that it is required by the law of the sea.

And I

In the