Mr. Justice CLIFFOI1D
delivered the opinion of the court, in effect as follows:
The pleadings and proofs sufficiently show that the approaching vessels were respectively ignorant of each other's intention as to the course they would pursue; that nothing was done by the officers and crew of the steamer which could enable those in charge of the steamship to ascertain or determine what course the steamer intended to pursue, and that those in charge of the steamer were equally in doubt and uncertainty as to wüat were the intentions of the steamship.
The collision occurred between eleven and twelve o'clock at night. The night was dark. Both vessels were in a pretty dense fog just prior to the collision, and inasmuch as they had failed to come to an understanding from the signals given as to what precautions would be necessary to avoid a collision, it was manifest rashness to advance until they could in some way accomplish that object. This is virtually admitted by both parties, as each alleges that they stopped their engines, though it is not possible to credit the statements that they did so, as it is clear that if such orders had beerf given by both parties and seasonably and effectually executed, the collision would have been avoided. The circumstances disclosed in the testimony satisfy the court that both vessels were under headway when the collision occurred. The contradictory allegations in the libel and answer cannot be reconciled, nor is there anything in the testimony to afford much aid in that direction.
Great reliance to support the theory that the steamship struck the steamer upon the starboard side is placed by the libellants upon the testimony of a witness employed by them to examine the wrecked éteamer some fourteen months after the collision. But the argument for the appellees is that such a theory cannot be supported, as the steamer of the libellants was bound down the river, and it must be admitted that the argument is entitled to weight. Still it is not difficult to see that it may be true if the residue of the libellants' theory is well founded, that the steamship actually attempted to pass up the river between the steamer of the libellants and the eastern shore of the river, as the testimony of the libellants tends strongly to prove.
Inconsistencies, however, such as these cannot be reconciled with any satisfactory degree of certainty, nor is it necessary to make any such attempt in the case before the court, since, as already said, it is clear in the judgment of the court, that both vessels were under considerable headway when the collision occurred. Those in charge of each of them knew that the other was approaching from the opposite direction, and that their efforts to come to an understanding as to the respective courses they should pursue had been unsuccessful; and they also knew that the night was dark and foggy to such an extent as to render navigation peculiarly dangerous.
Attempt is not made to set up the defence of inevitable accident, nor could it have been successful if it had been set up, as such a defence can only be maintained in a case where neither vessel is in fault. Inevitable accident in the ease of a collision is where both parties have endeavored by all means in their power, with due care and a proper display of nautical skill, to prevent its occurrence, or it may result from the darkness of the night if it clearly appears that both parties were without fault from the time the necessity for precaution began to the moment when every opportunity to avoid the danger ceased.
Precautions must be seasonable in order to be effectual, and if they are not so and a collision ensues in consequence of the delay, it is no defence to allege and prove that nothing could be done at the moment to prevent the disaster, or to allege and prove that the necessity for precautionary measures was not perceived until it was too late to render them availing. Inability to avoid a collision usually exists at the moment it occurs, but it is generally an easy matter, as in this case, to trace the cause to some antecedent omission of duty on the part of one or both of the colliding vessels. Plainly both were in fault in this case in that they continued to advance under headway in a dark night, when those in charge of them knew that there was imminént danger that they would collide. Both vessels having been in fault the rule is that the damages should be divided between the offending vessels.
Decree reversed, with costs in this court, and the cause is remanded with directions to divide the damages found in the District Court, together with the costs in both of the subordinate courts.
Reversal and remand accordingly.