The Comet.

Grotius, made by Emerigon, as above stated, is a different translation of a part of section 21, liber 2, ch. 17, which has been hereinbefore referred to in another translation.

Lord TENTERDEN says, Abb. on Shipp. 229: "By the law of most of the maritime states, differing in this particular from the Roman law, which leaves each party to bear his own loss, the cost of damage resulting from collision without fault in the persons belonging to either ship, is to be divided equally between them. The same rule obtains when both vessels are to blame, and when the blame cannot be detected."

The division of damages in cases of mutual fault has been more seriously controverted than the rule which requires such division in cases of inscrutable fault; and so late as 1837, a learned and able writer on mercantile law, in the London Law Magazine, in questioning the rule in cases of mutual fault, ventured to declare that no writer on maritime law applied the rule of equal partition to any case but that of inscrutable fault. Note to Curtis' Adm. Dig. 145, and 17 Law Mag. 327.*

*In the head-note to the case of Mary Stewart, decided in 1844, 2 Wm. Rob. 244, it is stated that "in cases of collision, where the evidence on both sides is conflicting and nicely balanced, the court will be guided by the probabilities of the respective cases which are set up, &c." And see The Speed, Id. 225.

Again, in The Wheatsheaf v. The Intrepide, Holt's Rule of the Road, 210, 212, 213, Dr. LUSHINGTON, in addressing the trinity masters, said: "I am exposed to great difficulty from the extreme contradiction in the evidence in the case;" . . . and "you must consider from the evidence the probabilities on the one side and on the other." And there was a decree for the libelants. And see The Jane & Ellen v. The Emma, Id. 207; The Saucy Lass v. The Boldera, Id. 205; The Esther v. The Concordia, Id. 142; The Benedetto v. The Calypso, Id. 117. In the case of The Emperor v. The Zephyr, Id. 24, it was said by the court that the evidence was so conflicting that it was impossible to reconcile it, and that in cases of that description they must be governed by the probabilities.

H.

The Comet.

And in 1848, in the case of Wells v. The Bay State, 6 N. Y. Leg. Obs. 198, Judge BETTS, of the southern district of New York, after stating that it was the first case which had occurred in that district in which the question had arisen, and after declaring himself better satisfied with the common law rule, adopted the rule of division in a case of mutual fault as having been sanctioned by Judges WARE and HOPKINSON, and impliedly admitted by the supreme court of the United States in Strout v. Foster, 1 How. 92; but adding, that the principle deserved the solemn adjudication of our highest tribunals.

The American authorities, with scarcely an exception, affirm the rule of equal division in cases of inscrutable fault.

In 1847, in the case of The Scioto, Davies, 359, one of the most learned, as well as one of the most careful of our admiralty judges,-Judge WARE, of the Maine district, sanctioned the rule in a very carefully prepared and able opinion; and in 1854, in the case of The Nautilus, Ware, 2 ed. 529, the same learned judge again applied the rule of division in a case of inscrutable fault. And, also in 1854, the learned judge of the Ohio district, in the case of Lucas v. The S. B. Swan, 6 McLean, 282; S. C., Newb. 158, unhesitatingly applied the rule of division in a case held to be one of inscrutable fault. In Jarvis o. The, State of Maine, in the southern district of New York, in 1857, 36 Hunt's Mer. Mag. 323, the same rule was adopted under like circumstances. The rule has been acted upon in other districts, in like cases, and it is believed that in all such cases the decisions upon that question have been submitted to without appeal.

The American writers on maritime law, it is believed, without exception, accept the rule of division of damages in cases of inscrutable fault. Story Bailm. $$ 608, 609, and notes; 3 Kent Com. 231; 1 Pars.

The Comet.

Merc. L. 1 ed. 188; 1 Conk. Adm. 2 ed. 378, &c.; Bouv. Law Dic. tit. Collision; Flanders Mar. L. §§ 357, 358.

It is deemed proper also to refer again to the particular language of the dictum of Mr. Justice SWAYNE, not for the purpose of verbal criticism, but as furnishing additional evidence that it was a hasty and inconsiderate expression, not based upon any well considered or deliberate opinion of that learned judge.

In a case of collision, the term reasonable doubt, may, perhaps, have a somewhat different signification from that given to it upon a criminal trial; but lawyers and judges accustomed to the trial of collision cases (in which, perhaps, more than in any other class of cases, the testimony is very often so conflicting and irreconcilable, that there must be reasonable doubt which party was to blame), will at once admit that if these cases are not to be decided, like other civil cases, upon the clear preponderance of testimony, the majority of those who suffer damage by collision, occasioned by negligence, will find that a remedy is often denied them when it would have been afforded by the admiralty courts under precisely the same circumstances if the new rule had not been adopted.

As further additional evidence of the same character, it may be observed that the dictum of Mr. Justice SWAYNE is not justified by the dictum of Sir CHRISTOPHER ROBINSON, cited in its support. "A state of reasonable doubt as to the preponderance of evidence" in a collision case, is a very different thing from a sonable doubt as to which party is to blame;" for in many cases a very clear and decided preponderance of testimony may exist, and the judicial mind yet be subject to reasonable doubt as to which party was to

blame.

rea

For these reasons the dictum referred to has not been considered as binding upon this court, and its

The Neaffie.

final decree in this case will provide for a division of the damages.

Decree accordingly.

THE NEAFFIE.

Circuit Court, Fifth Circuit; District of Louisiana, April T., 1870.

COMMON CARRIERS.-LIABILITY OF STEAM-TUGS.

The owners of a steam-tug or tow-boat, engaged in the business of towing vessels from point to point, but not receiving the vessels or the property on board of them into their carc or custody otherwise than is involved in the mere act of towage, are not liable as common carriers in respect of such employment. To charge them for an injury to the tow, such injury must be shown to have resulted from some neglect or fault in the management of the tug.

Appeal from a decree of the district court.

N. H. Armstrong, for libelants.

Carleton Hunt, for claimants.

WOODS, J.-The case was this: On May 28, 1866, the steam-tug Neaffie undertook to tow a flat or barge laden with hay from Jefferson city to the flat-boat wharf in the city of New Orleans-a distance of three or four miles. She made fast to the flat and towed her

The Neaffie.

down the stream to said wharf, the master and crew of the flat remaining aboard of her. As she was about landing the flat, the latter collided with another flat made fast to the wharf. In a short time after the collision, the flat towed by The Neaffie sunk. The damage sustained by the sinking of the flat is agreed to be thirty-one hundred and fifty dollars.

The libelants charge that the sinking of the flat was in consequence of the collision, and that the collision was brought about by the carelessness of Cook, the master of The Neaffie; and in argument they allege that The Neaffie was a common carrier, and responsible for all damages to the flat not occasioned by the act of God or the public enemy.

The claimants answer, that when The Neaffie approached the flat for the purpose of towing down to the flat-boat wharf, they found her in a leaky condition, and refused to take her in tow except at the risk of her owners, to which the captain and part-owner of the flat assented. They deny any carelessness on the part of the master of The Neaffie, and deny that there was any collision whereby the flat was damaged; or that the sinking of the flat was the consequence of any damage received by her collision with the other flat lying at the wharf. They allege that the slight impingement of the one flat against the other was caused by a sudden eddy or boil in that part of the river.

In the view I have taken of this case, these are the only facts alleged on either side which it is necessary to recite.

The naked fact that the flat of the libelants, while in tow of The Neaffie, did impinge upon the flat made fast to the wharf, and that in a very short time thereafter she sunk, raises a presumption of mismanagement and negligence on the part of the captain of the steam-tug, and fixes a liability for damages sustained upon her owners, unless contrary proof is adduced showing or