THE L.P. DAYTON.

*346 Mr. Edward D. McCarthy, for appellant, cited.

Mr. Joseph F. Mosher, for the L.P. Dayton (Mr. James E. Carpenter was with him on the brief).

Mr. William D. Shipman for the Bowen.

Mr. Charles M. Da Costa, for appellant.

*348 MR. JUSTICE MATTHEWS, after stating the case as reported above, delivered the opinion of the court.

The ground on which the Circuit Court proceeded is, that as the libel alleges negligence and fault in various particulars as against the tug L.P. Dayton and the tug James Bowen, *349 which are denied in the several answers of the respective claimants, in opposition to which the libellant has proven no negligence or fault on the part of either, the libel must be dismissed, as the burden of proof lies upon the libellant to establish a case of negligence against one or the other, or both of the respondents, and that this burden of proof is not changed or shifted by reason of any allegations of fault contained in the answer of either respondent as against the other. On the other hand, it is contended on the part of the libellant, that while it is true that each of the defendants denies the negligence charged against it, yet both the answers show that the loss must have been occasioned by the fault of one of the defendants, and that being so, the law casts upon each defendant the burden of making good its allegations of fault against the other, in order to exonerate itself.

The proposition is stated by one of the counsel for the appellant, in his printed argument, as follows: "A vessel, without propelling or steering power, lashed to the side of a tug, is sunk, as the result of a collision between such tug and another one. In a libel filed by the tow against both tugs, to which answers are interposed, in neither of which is negligence causing or contributing to the collision attributed to the tow and by which each tug seeks to exculpate itself and inculpate the other, a prima facie case of negligence arises without the necessity of proving the specific acts of negligence by either or both tugs, and that the decree to be entered in favor of the libellant, either against one tug alone or against both, is dependent entirely upon the nature of the evidence which it is incumbent upon the tugs to produce, in order to determine as between themselves the issues so made by them by their respective answers."

The propriety and soundness of this rule is supposed in argument to rest upon two general grounds: 1st. It is contended that the tow which was injured by the collision is in the same category, as respects both tugs, as that of a vessel at anchor injured by a collision with a moving vessel, where the burden of proof is upon the latter to show that it was without fault, or that the disaster was the result of fault on the part of the complaining *350 party. 2d. That where it appears, as in the present case, that the tow, being helpless as to its own navigation, was without fault on its part, and it is manifest, from the circumstances appearing on the pleadings, that the collision was caused either by the fault of one or the other of the tugs, or was the result of inevitable accident, the burden of proof rests upon each to establish such facts as excuse it. The argument is, that such a disaster could only occur from fault of navigation, or from that vis major which is styled inevitable accident; that by the supposition the appellant is free from fault; that consequently it must be that either there was fault on the other side or inevitable accident, in either of which cases it is incumbent upon the respondent affirmatively to establish its excuse.

It is also contended for the appellant, that if the truth of the general rule must be admitted, that he who seeks judicially to establish a claim based upon an alleged default of his adversary must affirmatively establish by proof the facts which justify his complaint; and that the burden of proof, as a principle of general jurisprudence, is assumed by the plaintiff, unless the cause of action is confessed or admitted judicially by the defendant; yet, it is also true, that if the defendant accompanies a general denial of the alleged cause of action with the admission of such facts as in law constitute his liability, the plaintiff's case is in fact admitted without other proof. And that, in this aspect, the libellant was entitled to a decree below on the basis of certain admissions of fact in each of the answers inconsistent with the general denials of fault.

In our opinion, the burden of proof was upon the appellant to establish a case of negligence against each of the tugs separately and independently. The rule which presumes fault in a case of collision, against a vessel in motion in favor of one at anchor, does not apply. In the present case, the tow, which was injured, was not at rest as respects either of the tugs. As against the Bowen, the movement and navigation of the tow was under the control and management of the Dayton; and in a suit against the Bowen, the tow can have no other or greater rights, and no other of better standing in court, than would the Dayton have had in case the collision had been *351 directly with her, because the tow in such a suit is identified with its own tug, so far, at least, that she cannot escape the consequences if the collision was caused wholly or in part by the fault of that tug. The Civilta and The Restless, 103 U.S. 699; Sturgis v. Boyer, 24 How. 110; The J.H. Gautier, 5 Ben. 469; The Cleadon, Lush. 158.

It follows, therefore, that, as respects the Bowen, the same burden of establishing the fault charged against it rests upon the libellant in this case, as the law would impose upon the Dayton if she were the libellant prosecuting for damages on its own behalf, as to which there could be no question.

As between the tow and its tug, the Dayton, the contract of towage involves a responsibility for loss upon the tug only by reason of the want of ordinary care; for a tug is not a common carrier, and does not insure the safety of its tow. In some cases the facts of the collision, as admitted in the pleadings, might constitute a prima facie case of negligence, which would impose upon the tug the duty of explanation and exoneration; but no such presumption of fault arises in the present case. Here there was a collision between the tow of one tug and the tow of another, which may have been caused by a fault of navigation upon the part of one or both of the tugs. Each charges fault against the other. As the matter stands, it is indeterminate, being a mere matter of controversy to be adjudged between them upon proof of all the circumstances. In favor of the injured tow, the libellant in this case, there is no presumption of fault as against either, nor against both jointly. There is no presumption against the Bowen, for the reason we have already stated; there is none against the Dayton, because on her behalf all the alleged negligence is denied, and the contrary allegations of the libel cannot be legally maintained merely by corresponding allegations in the answer of the Bowen. To hold otherwise would require that in every case, as between the tow and its tug, the latter should be required affirmatively to establish its defence against the presumption of its negligence. There is no ground, in reason or authority, for making such an exception to the general rule, which requires the plaintiff, in the first instance, to establish *352 by proof the allegations of its complaint. It does not tend to establish such an exception that it appears by the record that one or the other of the respondents must have been so in fault as to be liable for the consequences. It still remains that there is a controversy as to which of the two is guilty, and no decree can pass without affirming the liability of one or both. That affirmation must stand upon proof, unless it appears on the record which one of the two is at fault, or that both are.

Neither is it material that the facts of the case and the causes of the collision are peculiarly within the knowledge of the respondents. It is alleged in the present case, as one of the inconveniences of the libellant's situation, that it would be compelled, in order to establish the allegations of the libel, to resort to the testimony of those navigating the respective tugs, and thus call witnesses interested to exonerate the vessel to which they were attached. We are not aware, however, of any ground on which such an inconvenience can affect the rule of law which governs the rights of the parties. And perhaps it is counterbalanced by the corresponding interest on the part of each set of witnesses to fix the fault upon the opposing vessel.

It is further argued on the part of the appellant, that it was entitled to a decree below, as against the Bowen, on the ground of admissions, in the answer filed on its behalf, affirmatively showing negligence and a violation of the rules of navigation tending to produce a collision. This aspect of the case was disposed of by the Circuit Court in the opinion of Mr. Justice Blatchford, which we adopt, as follows:

"It is urged for the libellants that the answer of the Bowen shows that she had the Dayton on her starboard side, with the courses of the two vessels crossing so as to involve risk of collision, and that, therefore, under rule 19 of § 4233 of the Revised Statutes, it was the duty of the Bowen to keep out of the way of the Dayton, and, as she did not, a prima facie case of negligence is thus made out against her by her answer. This is an error. The facts stated in the answer of the Bowen do not show that the courses of the two tugs were crossing when the Bowen discovered the Dayton. On the contrary, *353 the green light of the Dayton was then visible to the Bowen, and not her red light, and the Dayton appeared to be going between the Bowen and the New York shore, to the eastward, and in a direction which would cause her green light to still be visible to the Bowen, and her red light to be still invisible. This would ensure safety and no collision; and, to ensure it still more, the Bowen blew two whistles and the Dayton answered with two whistles. After that the Bowen starboarded. Even if — before so starboarding, and while so starboarding — the Bowen is to be considered as having the Dayton on her starboard side, with the courses of the two vessels crossing, (which is by no means clear on the averments in the answer of the Bowen,) her answer shows that she took proper measures to keep out of the way of the Dayton; that such measures were assented to at the time by the Dayton as proper, and that then the Dayton changed her course and went across the bow of the Bowen. Under these circumstances the Bowen slowed, stopped, and backed.

"The answer of the Bowen states substantially that there was imminent danger of collision if she kept on. There is nothing in all this to show negligence in the Bowen. When the Dayton so came suddenly across the bow of the Bowen, a case was not made within rule 19, although in that position the Bowen had the Dayton on her starboard side, and their courses were crossing; and even if it were, the answer shows that the Bowen did all she could to keep out of the way of the Dayton.

"The libel, so far from alleging that it was a fault in the Bowen to slow, stop, and back, alleges, as a fault in her, that she did not reverse, or did not do so soon enough. The isolated fact of her slowing, stopping, and backing cannot be taken away from the connection in which it is found in the answer and separated from the circumstances under which the answer states it occurred, particularly as the libel states distinctly that it was a fault in her not to reverse." 18 Blatchford, 411, 418.

Decree affirmed.