author: . Mr Chief Justice TANEY

text:
    John Jackson, Plaintiff in error, v. Samuel Hale, George C. Many, and John V. Ayer.
    ■Where a warehouseman gave a receipt for wheat which, he did not receive, and after-wards the quantity which he actually had' was divided amongst the respective depositors, an action of replevin, brought by the assignee of the fictitious receipt, .could not be maintained when, under it, one of these portions was seized.
    Evidence offered to show that the wheat in question was assigned to the defendant, was objected to by the plaintiff in the replevin; bu,t such objection was properly overruled. The plaintiff had shown no title in himself.
    So also, evidence was admissible to show that the receiver of the fictitious certificate had never deposited any wheat in the warehouse.
    The defendants in this case were the assignees of the original warehouseman,, and were not responsible, unless it could be shown that wheat was deposited, which had come into their possession.
    'This case was brought up by writ of error from the District Court of the United States for the District of Wisconsin.
    The facts are stated in the opinion of the court.
    It w,as' argued by Mr. Lawrence, for the plaintiff in error, and by Mr. Lee, and Mr. Seward, for the defendants in error.

      Mr. Laivrence, for the plaintiff in error,
    made the following points.

      First. The Judge of the District Court erred in ruling upon the admission of testimony, that a depositary, when there is a joint interest in the deposit, may change the joint interest of depositors' into an interest in severalty, by mere setting apart, without delivery made.

      Second. The court erred in holding, that a depositor, having a joint interest in one- description of property, his depositary could confer a. title upon him, to the extent of such joint interest; from deposits of a different description; or that if his deposits were in part winter wheat, &c., his depositary might set apart to him the spring wheat of other depositors, and such act of the depositary would give-title.
    ■ Third. Testimony was improperly admitted, that “ the property rose. in value after it was taken in replevin,” and “that the agent of the plaintiff was told that the wheat belonged to parties,” in whom defendants had pleaded property — as also the evidence to contradict the receipt.

      Fourth. The Judge of the District Court should not have decided to refuse a new trial, if defendants would consent to remit a part of the recovery for detention, when a recovery had been secured by testimony taken under objection.
   . Mr Chief Justice TANEY

delivered the opinion of the court.

It appears, in this case, that ■ C. H. Hutchinson was a warehouseman at the city of Ranasbo, (formerly Southport,) in "Wisconsin, and in that character had received on deposit large quantities of wheat from different persons, which, by common consent, was mingled in general mass.

On the 22d of February, 1850, Hale, Many, and Ayer, the defendants, succeeded Hutchinson in the business and possession of this warehouse; and at. the time the possession was transferred, the portions of wheat to which the several depositors were respectively entitled, were separated and put into different .bins; and the old receipts given by Hutchinson, surrendered.

In this division, 7000 bushels, which had been deposited at. different times by Adams & Son, were placed in a separate bin for them ; and they, as well as Hutchinson and. Hale, Many and Ayer, were .present when the division was made.

Previous to this, however, ahd while Hutchinson was still carrying on business at the warehouse, he gave the following Receipt to Hubbard, Faulkner & Co.

Received into- store, Southport, January 19, 1850, for account of Messrs. Hubbard, Faulkner & Co., four thousand bushels of spring wheat, deliverable on board vessel free of charge, on return of this receipt, and riot insured against fire.

4000 bushels of wheat. C. L. Hutchinson.

Hubbard, Faulkner & Co. never deposited any wheat at the warehouse, but paid Hutchinson $2,640 as the price of the quantity mentioned in the receipt; and afterwards sold it to John Jackson, the plaintiff in error, for $1,050, and indorsed and delivered to him the receipt.

The plaintiff, claiming to be entitled to this quantity of wheat-under this assignment, sued out a writ of replevin against the defendants, and the marshal, under the direction of the agents of the plaintiff, íeplévied and delivered to him 4000 bushels of wheat, part of the 7000 bushels, placed, in a bin for Adams & Son, as herein before mentioned.

The defendants appeared and pleaded sundry - plea,s, and among others, property in Adams & Son. And at the trial, the. jury found for the defendants, and that the wheat taken, was the property of Adams & Son; and its value, $2,640; and assessed damages for the detention, at the sum of four hundred dollars.

Upon - a motion made by the plaintiff, for a new trial, the court it • seems, were of opinion that a new trial should be granted, unless the defendant remitted all the damages assessed as aforesaid, beyond the interest on the value of the wheat from the day it was taken under the replevin, to the day of trial. And under this opinion of the court, the defendants remitted all of the damages, except one hundred and one dollars, and the judgment was thereupon accordingly entered-

Upon this judgment the present writ of error is brought.

The facts above stated, are set out in an exception taken by the plaintiff. The statement shows, that Hubbard, Faulkner'& Co., in whose favor the warehouse receipt was given by Hutchinson, never deposited any wheat in this warehouse, but paid for this -receipt in money. And the plaintiff offers- no evidence but the receipt itself to show that Hutchinson had any- wheat of his own in this warehouse at the time it was given, or at any other time; and in the division which took place when the possession waá transferred to the defendants, none was set apart as belonging to Hutchinson.

Upon such a state of facts, it is difficult to see how any question of law could have arisen, open to dispute. The plaintiff indeed objected to the evidence offered-to prove that the wheat replevied was, in the division of the general mass, set apart in a bin'as the property of Adams & Co. But if-there was any thing in the objection, (and clearly there was not.,) it would not avail the plaintiff unless he could show that it belonged to him. For he could not maintain the replevin unless he proved that the wheat was his property. And if he had no wheat there, it was perfectly immaterial whether it was lawfully divided, or remained in general mass. And if the want of a legal division among the owners, prevented it from being specifically the property of Adams & Co., it would equally prevent it from being the separate property'of the plaintiff, even if he was entitled to the quantity he claimed in the general mass.

So, too, he excepts to evidence offered to prove-that Hubbard Faulkner & Co, had never deposited any wheat in the warehouse. The evidence was undoubtedly admissible. For whether they had done so or not, was the fact in dispute. Besides, the plaintiff himself had already proved the fact by. his own witness, Faulkner, who stated that Hubbard, Faulkner & Co. paid money to Hutchinson for the wheat. They did hot, therefore, deposit it themselves. And as regards the damages remitted, certainly the plaintiff is not injured by having the judgment rendered against him for a smaller sum instead of a larger. • If either party had a right to complain of the opinion of the court under which the remittitur was entered, it was the defendants., and not the' plaintiff. For, if a party uses the process of the law wilfully ánd oppressively, his conduct may be considered by the jury in estimating the damages sustained by the injured party. And proof of the conduct of the agents of the plaintiff in this respect, and also of the damage sustained by the defendants by the loss of a favorable market, were properly submitted to the consideration of the jury.

The receipt of Hutchinson, upon which the plaintiff relied, did not prove, or tend to prove, that the wheat taken on the replevin was the wheat therein mentioned — or that any wheat belonging to Hutchinson, or to Hubbard, Faulkner & Co., ever came to the hands of the defendants. It showed that Hutchinson held so much wheat for Hubbard, Faulkner & Co. .But the defendants are not answerable for his contracts, or his warehouse receipts, unless it is (shown that the property came into their possession. And there is not the slightest evidence to show that any wheat, belonging either to Hutchinson or to Hubbard, Faulkner & Co., was ever in the warehouse after it was transferred to the defendants.

The judgment of the District Court is affirmed, with costs.

Order.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the District of Wisconsin, and was argued by counsel. On consideration whereof, it is now here ordered, and adjudged by this court, that the judgment of the said District Court, in this' cause be, and the same is hereby, affirmed, with costs, and interest' until the same is paid, at the same rate per annum that similar judgments bear in the courts of the State of Wisconsin.


source: Caselaw Access Project

author: Mr. Justice NELSON

license: Public Domain

text:
    James Stephens, Appellant, v. Isaac H. Cady.
    Where the copy-right of a map was taken out under the act of Congress, and the copperplate engraving seized and sold under • an execution, the purchaser did not acquire the right to strike off and sell copies of the map.
    The court below decided that an injunction to prevent such striking off and selling, could /not issue, without a return of the purchase-mopey. This decision was erroneous.
    A copy-right is a “property in notion, and has no corporeal tangible substance,” and is not the subject of seizure and sale by execution. It can be reached by a credit- or’s bill in chancery, but in such case, the court would probably have to decree a transfer in the mode pointed out in the act of Congress.
    This was an appeal from the Circuit Court of the United States for the District of Rhode Island, sitting as a Court of Equity.
    The facts are stated in the opinion of the court.
    It was submitted- on printed argument by the appellant, -in proper person. No counsel appeared for the appellee.
   Mr. Justice NELSON

delivered the opinion of the court.

This is an appeal from the Circuit Court of the United States for the District of Rhode Island.

The bill was filed by the appellant in the court below, to restrain the defendant from printing and publishing a map of the State of Rhode Island and Providence Plantations, in violation of the complainant’s copy-right.

The facts are briefly these: The complainant, on the 23d of April, 1831, took out the copy-right of a map, the title of which is as follows: “A Topographical Map of the State of Rhode Island and- Providence Plantations, surveyed trigonometrically and in.detail, by James Stephens, topographer and civil engineer, Newport, R. I., 1831, the right whereof he claims as author, in conformity with the act of Congress, entitled an act to amend the several acts respecting copy -rights,” and since then has been engaged in printing, publishing, and vending the said maps, by virtue of the copy-right thus obtained. In March, 1846, a judgment was recovered against him, in the Common Pleas of Bristol county, Massachusetts, for. $194.23, upon which an execution was issued, and the copperplate engraving of the map in question seized, and sold, and bid off by the defendant for the sum of $245, he being the highest bidder. Having thus become entitled to the property in the engraving, he claimed the right to print and publish the maps, and in pursuance of this supposed right, he has been engaged in printing, publishing and vending the same.

On the hearing upon the bill, answer,.and proofs, the court below differed in opinion, as to the effect of the sale of the copperplate engraving of the map; but agreed that no injunction could issue without a repayment of the purchase-money, which was refused by the complainant; whereupon the court dismissed the bill with costs.

The single question in the case is, whether or not the property-acquired by the defendant in the copperplate, at the sheriff’s sale,- carried with it, as an incident, the right to print and publish the map engraved upon its face.

Upon this question the court below divided in opinion, but finally agreed in dismissing the bill. .

The appellee has not followed the case into this court, and we have not, therefore, been favored with the grounds and reasons relied on for sustaining the decree; nor have we been furnished with the reasons of the court for the same. The ground upon which the decision was ultimately placed, namely, the .refusal 'of the complainant - to refund the purchase-money, is certainly not satisfactory; for if the copy-right of the map, or any right to print or publish the same, passed with the purchase of the plate, as incidental, as there is nothing in the facts of the case to invalidate the sale, the title became complete in the purchaser, and could not be rightfully interfered with. But if otherwise, then there was np ground for imposing the repayment of the purchase-money, as a condition to the relief prayed for ; the injunction should- have been awarded, and the defendant directed to account.

But from the consideration we have given to the case, we are satisfied that the propérty acquired by the sale in the engraved plate, and the copy-right of the map secured to the author under the apt of Congress, are altogether difierent and independent of each other, and have no necessary connection. The copyright is an exclusive right tó the multiplication of the copies, for the benefit of the author or' his assigns, disconnected from the plate, or any other physical existence. . It is an incorporeal right to print and publish the map, or, as said by Lord Mansfield in Millar v. Taylor (4 Burr. 2396,) “ a property in notion, and. has no corporeal tangible substance.”

The engraved.plate and the press are the mechanical instruments, or means by which the copies are multiplied, as the types and press are the instruments by which the copies of a book are produced. And to say that the right to print and publish the copies, adheres to and passes with the means by which they are produced, would be saying, in effect, that the exclusive . right to make any given work of art necessarily belonged to the person who happened to become the owner of the tools with which it was made; and that if the defendant in this case had purchased the stereotyped plates of a book, instead of the engraved plate, he would have been entitled to the copy-right of the work, or a't least, to the right to print, publish, and vend it; and yet, we suppose that the statement of any such pretension is so extravagant as to require no argument to refute it. Even the transfer of the manuscript of a book will not, at common law, carry with it a right to print and publish the work, without the express consent of the author, as the* property in the manu-, script, and the right to multiply the copies, are two separate and distinct interests. 4 Burr. 2330, 2396; 2 Eden, R. 329; 2 Atkyns, R. 342; 2 Story, R. 100.

Lord Mansfield observed, in Millar v. Taylor, that ’ “ no disposition, no transfer of paper upon which the composition is written, marked, or impressed, (though it gives the power to print and publish,) can be construed a conveyance of the copy, (by which he means copy-right, as appears from a previous part of his opinion,) without the author’s' express consent (to print and publish,’ much less against his will.”

. Now, it seems to us, that the transfer of the manuscript of a book by the author would, of itself, furnish a much stronger argument for the inference of a conveyance of the right' to multiply copies, than exists in the case of a transfer of the plate in question, or of the stereotype plates, as the ideas and sentiments-, or in other words, the composition and substance of the work, is thereby transferred. But the property in the copy-right is regarded as a different and. distinct right, wholly detached from the manuscript, or'any other physical’existence, and will, not pass with the manuscript unless included by express words in the transfer.

The copperplate engraving, like any other tangible personal property, is the subject- of seiztire and sale, on execution, and the title passes to the purchaser, the same as if made at a private sale. But the incorporeal right, secured by the statute to the author, to multiply copies of the map, by the use of the plate, being intangible, and resting altogether in grant, is not, the subject of seizure or sale by means of this process — certainly not at common law. No doubt the property may be. reached by a creditor’s bill, and be applied to the payment of the debts' of the author, the same as stock of the debtor is reached and applied, the court compelling a transfer and sale of the stock for the benefit of the creditors. 20 J. R. 554; 5 J. Ch. 280; S. C. 4 Id. 687; 1 Paige, 637. But in case of such remedy, we suppose, it would be necessary for the court to ' compel a transfer to the purchaser, in conformity with the requirements of the copy-right act, in order to invest him with a complete title to the property. . The first section of that act provides, that the author of any map, chart, &c., his executors, administrators, or legal assigns, shall have the sole right of printing, publishing, and vending'the same, during the period for which the copy-right has been secured. And the seventh section forbids any person from printing, publishing, or selling the map or chart, under heavy penalties, without the consent of the proprietor of the copy-right, first' obtained in writing, signed-in the presence of two credible witnesses. Act of Congress, Fob. 3,1831.

An assignment, therefore, that would vest the assignee with the property of the copy-right, according to the act of Congress, must be in writing, and signed in the presence of two witnesses,- and it may, I think, well be doubted whether a transfer even by a sale, under a decree of a court of chancery, would pass the title so as to protect the purchaser, unless by a conveyance, in conformity with this requirement. 6 B. & Cr. 169; 1 Car. & P. 658; R. & M. 187; D. & K. 215.

It is unnecessary, however, to express an opinion upon the point. It is sufficient, for the' purposes of this case, to say, that the right in question is wholly independent of, and disconnected from, the engraved plate; and, that there is no foundation for the defence set up, that it passed as appurtenant to the sale and transfer of the property, in the engraved plate, from which the copies of the map were struck off.

For these reasons, we are of opinion that the- decree below, must be reversed with costs, and the proceedings remitted, with directions ■ that a decree be entered for the complainant, in conformity with this opinion.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Rhode Island, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged,-'and decreed by this court, that the. decree of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to enter a decree therein, in conformity to the opinion of this court.


author: ML Justice. NELSON

text:
    L. I. Stainback et al., Claimants of the Ship Washington, her tackle, &c., Appellants, v. William A. Rae, in his own right, and as Administrator of Joseph Porter Wheeler, deceased, and Edmund Crosby, Master, Owners of the Ship Mary Frances, and Frederick Tudor, Owners of the Cargo of said Ship, Appellees.
    There a collision takes place between two vessels at sea, which is the result of inevitable accident,-without the negligence or fault' of either party, each vessel must bear its own loss.

      Mr. Justice Curtis did not sit in this cause, having been of counsel in the court below.

      This was an appeal from the Circuit Court of the United States for the District of Massachusetts, in. admiralty.
    The facts are stated in the opinion of the court.
    It was argued by Mr. -Badger and Mr. Lawrence, for the appellants, and by Mr: Goodrich, for the appellees.
    The points made by the counsel for the appellants-, were the following:

      First. That the watch on board the Washington, was usual, proper, and safe; and thai consequently, no negligence is imputable to her.

      Second. That in the state of the weather, and the position of the two vessels in respect to each other, it was impossible that the Washington could hate discovered the Mary Frances at a greater distance than a quarter of a mile, and highly improbable that she could have discovered her at more than half that distance ; and that under such circumstances, considering the admitted rate at which the two vessels were approaching each other, it was impossible for the Washington, by any manceuvre whatever, to have avoided the collision.

      Third. That if-the Mary Frances, as stated by some of her witnesses, discovered the Washington ten minutes, and as stated by others, five minutes, before the collision, the two vessels must have been at a distance of two miles, or at least one, from each other, and it was in her power, by changing her course, to have avoided the collision; and if,-, as stated by the sanie witnesses, she perceived that the Washington had not discovered her, It was her duty to have done so, and consequently the collision is attributable to the fault, not of the Washington, but of the Mary Frances.
    And hence, that the collision was either a mere misfortune, without fault in -either party, or without fault on the part of the Washington, and, in either view, the decree must be reversed.

      Mr. Goodrich, for the appellees, contended,
    • 1. That on the night of the collision, the weather was fair and starlight overhead, with a hazy horizon, and that the night was' not unusually dark.

      2. The ships being each elosehauled on the wind, neither' waá materially to windward of the" other, and each crew was equally' favorably situated to see the other ship, and to hear hailing from the other ship.
    And if either ship was to windward of the; other, and for , this reason less favorably situated in those respects, it was the Mary Frances.
    3. That the crew of the Mary Frances had a good look-oüt before, and at the 'time of the collision, and used all due care to prevent it; and that they actually saw -and hailed the. Washington in time to prevent the collision; and that the crew of the Washington did no act to avoid the collision, and the collision was attributable to the absence of a good look-out on board the latter ship.
    4. The appellees maintain,' that the rule of the sea is, that where two vessels,'closehauléd on the wind, approach each other, and must meet unless the course of one is changed, the vessel having her starboard tacks on board, must keep her course, and the one having her larboard tacks on board, must bear up and give way. The Alexander Wise, 2 Wm. Robinson, Adm. R. 65, 68; The Virgil, Id. 201; The Mary Stewart, Id. 244; The Chester, 3 Haggard, Adm. R. 316; The Ligo, 2 Id. 356, 360; Clapp v. Young, 6 Law Reporter, 111-13; 1 Conkling’s Admiralty Practice, 303 - 6; The Europa, 14 Jurist, 627, (2 Law and Eq. R. 562-4); The Genesee v. Fitzhugh, 12 Howard, 443; Walsh v. Rogers, 13 Id. 283; Pritchard’s Admiralty Digest, art. 12, p. 156; 1 Bell’s Com. 583.
    5. That the appellees having made out a primd facie case of want of skill and care on the part of the crew of the Washington, the burden of proof is. on the appellants to show that due care and skill was used.. Authorities previously cited. The George, 9 Jurist, 282, 4; Notes of Cases, 161; Pritchard’s Admiralty Digest, art. 114, 116, and 117, p. 137, tit. Damage.
    6. That appellees are entitled in law to recover compensation for freight and cargo, as- well as for the ship of appellants. See 3 Rent’s Com. 6 ed. 282; § 8; Story on Bailments, ch. 6, §§ 599, 602, 608; and case of Dundee, note to § 609; 1 Bell’s Com. 580.
    1-2. The Washington was in fault, because1 her officers and crew did hot maintain. that constant - care and vigilance which heir .position required.
    A. The Washington, having her larboard tacks on board, .was bound to give way.
    B. No officer; and only two men oh deck, attending to the
    navigation of’the ship — one, McCoy, was at the wheel, the other, Simmons, a boy, was on the look-out. . -
    C. ,.A large ship, with noisy passengers, nearing the land, under full .sail, in a hazy night, should have had at least two men on the look-out. .
    D. No sufficient look-out-before the call to the pumps.
    E. The Washington might have avoided the collision.
   ML Justice. NELSON

delivered the opinion of the court.

This is an .appeal from'the Circuit Court of the United Statea for the' Dir rict of Massachusetts, in admiralty.

The libel charges, that-the ship Mary Frances, laden -with ice, was on a voyage from Boston to New. Orleans, and that on the 11th December, 1847, at about' half-past threé o’clock in the morning, while on her starboard tack, im-the prosecution of the voyage,-she was struck by the ship 'Washington, nearly midships' on her larboard sidé, breaking in her bulwarks and stanchibns, and starting her planks and timbers, so that in a few horns she filled with water, and the master and ■ hands were obliged to abandon her, and she went to the bottom.-

. The respondents, in their answer, state, that the ship' Washington, at the time mentioned in the libel, was upon the high seas between George’s Shoals and the south shore of Nantucket Island, at a distance of about sixty miles from land; - that the wind was blowing a moderate breeze from the south-south-west, and the Washington,'with all her reefs out, .with courses free, and main-topgallant sails, jib, and flying-jib,' and fore and main-topmast-stay-sails set, was sailing full and by, upon her larboard tack, and steering dxxe west by the compass, and as near the wind as possible; that she had a competent, watch on deck, keeping a good look-out, the weather being dark and hazy towards the horizon, especially to the leeward of the ship, but the stars visible above. That while she was thus pursuing her course, at about half-past three o’clock in the morning, the Mary Frances was seen about four points on the le'e bow of the Washington, and was then in the act o&running up, and did immediately run up into the wind athwart the hawse of the Washington; and, that instantly, on the discovery of the Mary Frances, and of the course she was pursuing, the helm of the Washington was put hard up, and every endeavor made by the - hands on-deck to pxxt her before the wind, and to avoid a collision.

The facts, as proved on the part of the libellants, are substantially as follows:

That about half-past three o’clock, on the morning of the 11th December, 1847, the hands on board the Mary Frances, while she was standing to the eastward, on her starboard tack, the wind from the south-south-west, closehauled, descried the Washington something less than a quarter of a mile distant, about a point and a half forward of the Mary Frances’s larboard beam, some of the hands say, on the larboard bow two or three points. The Washington was standing to the westward when first'seen, and orders were immediately given to put the helm hard down, and, at the same time, the hands cried out to those on board-, the Washington, to keep off. The collision took place, as estimated, from five to seven minutes after the Washington was first discovered. The Mary Frances was struck midships, on the larboard side, her bulwarks stove in, and her planks below the white streak on the opposite side were broken, and all her fore-rigging carried away. The ship was abandoned with' thirteen feet of water in her hold, being a wreck, and. wholly unmanageable,. The Washington was not at first seen plainly, as the Weathbr was hazy. The second mate of the Mary Frances, who had charge of -the watch, and .one of the first to descry the Washington, says the weather was hazy find thick, the sky was overcast, no moon or • stars visible. The Mary Frances was about 320 tons burden; the Washington about 500 tons

The.evidence, on behalf of the respondents, is substantially as follows

The Washington was bound from Liverpool, to Virginia by the; way of New York, and had On board a cárgo of salt, and some 170 steerage passengers. She was on her larboard tack, .closehauled; the wind about south-south-west. The man. at the wheel states, that an order was " given from the. deck, “ put the' helm hard up, there is a ship iuto us;” that the order was obeyed instantly, but the collision immediately followed.. Simmons, one of the hands, states; that he was on the weather side of the Washington’s windlass on the look-out; that the weather-was dark, cloudy, and hazy; that he descried the Mary Frances abput a minuté and a half or two minutes' before the collision; that she. was on the lee bow of. the Washington, between •three and four ppjnts; that at first-he could not determine her course on account of the thick weather. ' When he first saw her he. sang out to the man at the wheel to put helm hard up. The witness heard' a noise or hail about half a minute before he descried, the Mary Frances, but could not ’determine whence it came; supposed it might be from some of the passengers, as they were in the habit of making a noise.

This witness is substantially corroborated by several others on board the Washington. Part of. the watch were at the pumps at the time the collision took place.

The testimony on both sides agree, that each vessel was going at the rate of five and a half knots Jhe hour.

The court below decreed in favOr of the libellants.

Upon a careful' perusal of the evidence in behalf of the libellants and the. respondents, if is appaient that there is much less discrepancy, and/contradiction among the witnesses called .by the respective parties, as to the material facts, than are usually found in these collision casos.

'.All agree as to. the state of the weather — thick, hazy and dark; as to the direction of the wind — =-from the south-southwest;, the course of the vessels —the Mary .Frances on the starboard tack, standing south-east, and the Washington on the larboard, standing nearly due west; the rate of speed — five and a half knots the hour. Arid' even as it respects the distance the vessels were from -each other when first descried, there is v.ery little, if any difference.

According to the witnesses on. board the Mary Frances, the Washington was less -than a quarter of a mile distant, when she was first seen. The distance of the former vessel, when first seen by the hands on board the Washington, is not stated directly; but- Simmons, the look-out, testifies, she was seen from one and a half to two minutes before the collision, which, regarding the cdmbined speed of the two vessels, must have been at about the same distance. The probability is, that the two vessels were much nearer each other -than a quarter of a mile, when first seen. The chief mate -of the Mary Francés, who was asleep in his berth at the time, but immediately^ afterwards on deck, fixes the distance the vessel could be seen in that -state of the weather at about two hundred yards; and this, corresponds with the opinion1 expressed by the master of the Washington, where he says, the Mary Frances might have been seen at a distance of about four times her length. The answer of the experts is that the distance a vessel could be seen in such weather would be uncertain. The course the two vessels 'were steering was calculated to increase the difficulty, and embarrass the look-out in descrying- the vessel ahead, for, as they were approaching each other by the wind, they presented,to the eye the edge's of the sails, and not the breadth of them, as in other positions.

There is some apparent discrepancy between the witnesses of the two vessels in respect to their relative position at the time they were first seen. The hands on board the Mary Frances state, when they first descried the Washington,* she was two or three points on their larboard bow, one of -them states, she was a point and a half forward of their larboard beam.

The hands on board the Washington state that the Mary Trances was on their lee bow when first seen, which would place the Washington to the windward. This may be reconciled probably by what is stated by the experts, who agree, that two vessels, approaching each other as these'were, the hands on each would necessarily see the approaching vessel over the lee bow, and which may have led those, on board the Washington to suppose this vessel was on the weather side.

The manoeuvre of each, on discovering the other, it is agreed, was proper,' and, indeed, the only one that could have afforded any chance of preventing the collision. The Mary Frances was thrown into the wind by putting her helm h >'d down, and the Washington bore away before the wind by putting-her helm hard tip. The orders were not only proper and skilful, but were promptly given and instantly executed; and unless fault can be imputed to the latter vessel in not descrying the Mary Frances sooner, so as to have afforded time for these manoeuvres to have avoided, the disaster, we do not • see how she can be properly chargeable with the consequences; and as to that, the difficulty, if not impossibility of discovering a vessel ahead at a greater distancé than the Mary Frances was seen by the hands on the Washington, the relative position of the two vessels, while approaching each other by the wind, presenting only the edges of the sails instead of their breadth, and in thick and hazy weather, such as existed in this case, in connection with the combined- speed of the vessels at the time, seem to furnish evidence sufficient to repel' any such imputation. ■ The two vessels must have come together probably in less than two minutes after they were first seen.. The look-out appears to have been competent and sufficient, and. such is, as we understand it, the opinion of the experts examined, and who were selected by both the parties.

Indeed, the fact that the Mary Frances must have been seen about the same'time by the hands of the Washington that she was seen by those on board, of the Mary Frances, and which we think. is fairly borne out by the evidence, of itself, should' be regarded as conclusive against the charge of fault in this respect.

.We are of opinion, therefore, that the collision was the result of an- inevitable accident, arising out of one of. the perils of navigation, and, in judgment of .law, is not attributable to -the fault of either party. And in such cases the settled rule in ad-^ miralty in England is, that each vessel must bear its own Toss, which rule, has been heretofore recognized by this court, but has not been before directly applied. 2 Dodson’s Adm. R; 83; Woodrop Sims, 1 How. Rep. 28; Id. 89; 3 Kent’s Com. 231; Abbot on Shipping, Pt. 3, ch. 1, and Pt. 4, ch. 10, §. 10; 2 Brown’s Civ. & Adm. Law, 204-7; 5 How. Rep. 503, and cases.

The rule is not uniform upon the continent, as several of'the maritime states'in such cases apportion the loss upon the two vessels. Abbot, 224, 230; 2 Brown’s Civ. & Ad. Law, 204-6; 3 Kent’s Com. 230, 231, 232.

But we think it more just and equitable, and more consislent .with sound principles, that where the loss happens from a. collision Which is the' result of inevitable accident, without the negligence or fault of either- party, each should bear his own.

Therp seems .no good reason for charging one of the vessels with-a share of a loss resulting from á common cálamity beyond that happening to herself, when she is without fault, and therefore in no just sense responsible for it.

Our opinion is, that the decree of' the court below must be reversed,’with costs, and the proceedings remitted, with directions’to enter a decree dismissing the libel with costs.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Massachusetts, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed, by this'court, that the decree of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is' hereby, remanded to'the said Circtiit Court with directions, to dismiss the libel with costs.