delivered the opinion of the court.
We are clearly of opinion that the charge of the court, framed as it was, may have misled the jury. The statute under which the proceedings in this case were had, provides that “every boat or vessel, shall be liable for all injuries done to persons or property by such boat or vessel, in all instances, where the same is shown to have occurred through, the negligence or misconduct of the master or hands thereon employed.” S. L. 1839, p. 70. To entitle the complainant to a recovery under this statute, he must prove that the injury complained of proceeded from the negligence or misconduct of the master or hands employed on the boat or vessel against which the proceedings are instituted.
If it were shown satisfactorily to the jury, that it was customary for boats or vessels descending the Detroit river to keep the American side of the channel, and that the Chesapeake was in the accustomed track at the time she came into collision with the complainant’s vessel, her master or hands could not be charged with negligence or misconduct, unless it were also shown, either that they had neglected the precautionary measures usual and necessary to prevent such disasters, such as lights, men to keep a look out, &c. or that, seeing the plaintiff’s vessel in time, and having sufficient sea room to avoid a collision, they had neglected or refused to do so: and the burthen of proof is on the complainants; they must adduce the evidence necessary to fix the liability of the defendant. “In cases of collision, the burthen of proof is on the plaintiff, not only to show negligence on the part of the defendant, but ordinary care on his own part.” 1 Western Law Journal, 30; Lane v. Crombie, 12 Pick. 177. In this view *37of the case, the circuit court should have been prepared to assert that, the custom in question, if proved, had the force of law, and should have so instructed the jury.
“A general custom is a general law, and forms the law of a contract on the subject matter, though at variance with its terms; it enters into and controls its stipulations, as an act of parliament, or of a state legislature. The court not only may, but are bound to notice and respect general customs and usages, as the law of the land, and, when clearly proved, they will control the general law.” United States v. Arredondo, 6 Pet. 715, and cases there cited.
“ Whether there be any general custom of navigation, and what it is, are matters to be proved by the testimony of persons skilled in navigation. If there be such a custom, a departure from it, occasioning collision, will render the party liable, unless the other party by reasonable effort might have prevented it; and each party should act upon the presumption that the other party will adhere to the custom.” 1 Western Law Journal, 30; Jamison v. Drinkald, 12 Moore, 148; S. C. 22 E. C. L. R. 442; Lowry v. Steamboat Portland, 1 Law Reporter, 313; Handayside v. Wilson, 3 Carr. & Payne, 528.
Several questions were presented on the argument of the motion, which we have not deemed it necessary to consider, satisfied as we are, that the motion should prevail, on the ground that the jury may have been misled by the charge of the court as to the effect of the custom, in relation to which testimony was adduced on the trial.
The opinion of this court, then, is, that the defendant’s motion that the verdict be set aside, and for a new trial, ought to be granted; and we direct that the same be so certified to the circuit court.
Certified accordingly.