The Gray Eagle

Mr. Justice BBADLEY
delivered the opinion of the court.
The appellants in this court, as in the courts below, strongly relied on the point, that the Perseverance was sailing with a white light at night, contrary to the express prohibition of the statutory regulations in that behalf, and, therefore, that the common law rule, which prohibits a recovery by a party who was himself in fault, and who contributed to the damage sustained, ought to be applied to her. But this court has frequently held that the omission to exhibit the proper light, though a fault which undoubtedly puts a vessel primñ facie in the wrong, does not exempt other vessels from the consequences of negligence on their part. It was so decided in the case of Chamberlain v. Ward That case arose under the act of March 2d, 1849, it is true; but that act seems quite as stringent in its provisions as the act of 1864, and the court, in reference to this question, says: “Failure to comply with the regulation, in case a collision ensues, is declared to be a fault, and the offending party is made responsible for all losses or damage resulting from the neglect; but it is not declared by that section, or by any other rule of admiralty law in the jurisprudence of the United States, that the neglect to show signal lights, on the part of one vessel, discharges the other, as they approach, from the obligation to adopt all reasonable and practicable precautions to prevent a collision. Absence of signal lights in cases falling within the acts of Congress renders the vessel liable to the extent already mentioned, but it does not confer any right upon the other vessel to disregard or violate the laws of navigation, or to neglect any reasonable and practicable precaution to avoid a collision which the circumstances afford the means and opportunity to adopt.” We are of opinion that the same construction must be given to the act of 1864, and that the exhibition of a prohibited light, as well as the omission to exhibit the proper lights, is insufficient to relieve another vessel from the duty of observing the laws of navigation and of using all practicable precautions to avoid a collision. It is a fundamental rule of admiralty law that where both parties are in fault, both must contribute to make good tbe damage, and this rule will not be deemed to be abrogated without an express declaration of Congress to that effect.
Supposing, then, the Perseverance to have been in fault for not supplying herself with red and green lights, and for exhibiting a white light, or for not casting anchor and lying by till morning, or for any other reason (which, as her owner or master has not appealed, it is to be presumed she was),* the only remaining question for us to consider is, whether the Gray Eagle was also in fault, so as to be chargeable with contributing to the collision. This question, we think, has been properly answered by the Circuit Court. It is admitted by the answer of the appellants that the light of the Perseverance was seen when about a mile distant, bearing about one point on the Gray Eagle’s port bow, and was supposed to be a light on shore, or upon a vessel at anchor; and that the Gray Eagle was kept away about a point and steadied in her course to give berth to the light; and that it was not discovered to be a vessel’s light in motion, by the commanding officer, until the Perseverance was within about three lengths of her. This is a very remarkable admission. The courses of the two vessels, after this light was seen, must have been at an angle of about two points of the compass with each other, and it is demonstrable from all the evidence taken together that the Perseverance must have passed from the Gray Eagle’s port bow to her starboard bow before the collision took place, and yet it is said that the com man ding officer did not discover that the light was in motion until within three lengths of her. The appellees’ witnesses all testify that the red light of the Gray Eagle was first seen, and then disappeared, after which her green light only was seen until just before the collision. This shows that the Perseverance had crossed the Gray Eagle’s course, and that her motion must have been seen had a proper lookout been kept on the latter. It also shows that the Perseverance properly kept on her course; and had the Gray Eagle kept on hei-s the collision would not have occurred. The night was not dark; the sails of the vessels could be seen nearly or quite a quarter of a mile. It seems to us evident that there must have been great negligence on the part of those having charge of the Gray Eagle. Erom the evidence of the appellants’ witnesses it appears that there was much confusion on board of her just as the collision was about to take place. One of the men on the lookout forward says : “ When I sung out to put the wheel down, the mate sung out to put the wheel up.” The man at the wheel testified to the same thing, and says that he obeyed the mate’s orders, and that undoubtedly caused the collision. Had the mate been on the lookout, as an officer in command, with a light ahead, ought to have been, the difficulty would not have occurred. We are, therefore, of opinion that the men in charge of the Gray Eagle were delinquent in their duty under the circunistances of the case, and that this delinquency contributed to cause the collision in question, and, as a consequence, that the loss should be divided between the parties.
Decree affirmed.
21 Howard, 648, 667.
See Chittenden v. Brewster, 2 Wallace, 196; McDonough v. Dannevy 8 Dallas, 198.