This clearly is not a case of collision within the nautical acceptation of that term, which imports the impinging of vessels together, whilst in the act of being navigated; Common usage, however, applies the term equally to cases where a vessel is run foul of when entirely stationary, or is brought in contact with another by swinging at her anchor. Jac. Sea Laws, 326, note; 1 Condy’s Marsh. Ins. c. 12, § 2; Abb. Shipp. 238.
A loss under the circumstances of the present case is, moreover, a loss from the peril of the sea, (1 Phil. Ins. 240,) and it falls also within the class of losses adjusted, under many maritime codes, by mutual contribution of the vessels injuring and receiving injury. Thus Weskett says: “When two or more ships are lying at anchor, -and another, in what manner soever it may happen, is in danger of coming too near, the master who lies foremost shall, if he can, make way, and be obliged, at the other's call, to weight anchor and remove; in failure whereof, he shall be answerable for whatever damages may ensue, especially if happening in a harbor where the water may ebb away and the ship be aground; — -in case he who in this manner endeavors at the other’s call to make way, shall receive any damage in ship or goods, he shall be indemnified by the other according to arbitration; but if in making way he shall happen to do any damage to the other ship or goods, he shall not be answerable for it.” Wesk. Ins. tit. “Iiunning Foul.”
I do not think that the term “collision,” as used in the maritime law, is to be construed with the absolute strictness contended for by the claimant’s counsel. An injury received by a vessel from being violently nibbed by another, or pressed by her with force against a pier or wharf, as in this case, may, I am inclined to think, be recovered for in admiralty under the general charge of collision, as well as where the injury is derived directly from the headway of a vessel under navigation,- or drifted against her.
But conceding that this description of injury, whether technically a ease of collision or not, is still one for which the libellants could sustain an action in rein, I do not think the particulars essential to the support of such action have be.en established by the proofs.
The brig was placed alongside the barge at the request of those who had her in charge, and in such a way as to accommodate them in unlading cargo from their own barge into her. She was adequately secured in the mode usual in this harbor, and was manned and managed in her berth conforma-bly to the usage of the port. The injury inflicted occurred during a violent gale of wind arising suddenly in the night. Whether that injury was occasioned by the swell of the waves rubbing the two vessels together as they were lifted up and down, or whether the causa causans was the drifting of another vessel, which had broken loose in the gale, against the brig, neither circumstance affords ground for imposing the loss upon the brig. No fault is proved against her in taking the place she occupied, or in any thing done on board of her conducing to the injury of the harge.
It is asserted that there was blameable negligence on the part of the brig, in not placing fenders between herself and the barge, and also in omitting to cany a line across the slip to the opposite pier, so as to ease off the pressure against the barge.
As to the first particular, it is to be remarked, that the duty of using fenders between the two vessels was mutual and reciprocal, the brig being by law equally entitled with the barge to the berth she occupied, and not bound to do more than the other vessel for their common protection. But there is proof that the brig had a competent supply of fenders, and used them on each side of her till they were broken up by the jamming of the two vessels in the severity of the storm. Indeed, the evidence renders it quite probable, that the efforts to protect the barge in this way led to her injury, as it would seem she was principally damaged at the points where fenders had been placed against her.
¡ j In regard to the second point, wherein it is j asserted that the brig.was culpably negligent in omitting to carry a line to the opposite pier, the city ordinances prohibit running lines in this manner across the opening of slips (Ordinance N. Y. City, 1839); but if it had been lawful to use one in the emergency of the case, it was as much the duty of the libellants as of the claimants to take that | • precaution. This was not a common culpable act, conducing to the collision, but a mutual omission to do an act on shore which might have prevented or lessened the injury, *942and neither party can make the other responsible to him for such an omission.
Two circumstances are to be regarded:—
1. The brig was entitled by the law of the port, to the berth she occupied; she had entered it without injuring the barge, and was secured there by the usual and competent fastenings. When, therefore, the peril of this storm came upon them, the barge had no right to require the brig to leave the slip, or to change her position, unless it be clearly shown that the change could have been made at the time and under the circumstances, without hazard to her.
2. The Avenger, another vessel, was driven from her fastening and into this slip against the brig by the gale; and as the wind crowded her directly upon the brig, and thereby increased the pressure of that vessel against the barge, the damage incurred by the latter would be attributable to the Avenger, her action being the direct cause of the injury. In legal contemplation, she was in fault in taking a berth in an insecure place, or in not using fastenings sufficient to hold her there, and adequate to protect her from being driven off by the storm.
The brig has no connection with that fault; and in so far as she participated in the injury inflicted upon the barge, the collision was by vis major, without negligence or blame on her side, and the loss must be borne where it falls. 3 Kent, Comm.' 231.
Although the rule of mutual contribution may be adopted by our courts in cases of loss by collision at sea or in port, occurring by accident or through the mutual fault of both vessels, there would be no reason for applying it where there was no common fault, and where the management of the two vessels in taking their positions in relation to each other was by mutual agreement. On the contrary, where damage is incurred without fault on the part of either vessel, and by some irresistible force constituting a case of vis major or inevitable accident, the loss must be' borne by the party upon whom it happens to fall, the other not being responsible to him in any degree. By the maritime-law of both England and the United States, where a collision happens by inevitable accident and without fault of either vessel, each must bear the damage received by her, whatever it may be. and has no claim upon the other for contribution.2 The Woodrop Sims, 2 Dod. 85; The Catherine of Dover, 2 Hagg. Adm. 154; The Shannon and The Placidia, 7 Jur. 380; The Ebenezer, Id. 1118, 2 W. Rob. Adm. 206; Reeves v. The Constitution [Case No. 11,659]; The Eliza and Abby [Id. 4,349]; Abb. Shipp. 238; Story, Bailm. § 608, and note 2; 3 Kent, Comm. 231.
In my opinion the action cannot be sustained, and the libel must be dismissed with costs to be taxed.
This rule has since been laid down by the supreme court of the United States, in Stainback v. Rae, 14 How. [55 U. S.] 532. The same principle appears to be recognized in Scotland. Innes v. Glass. 4 Murray, 167. By the law of other maritime states, however, the aggregate damage to both vessels incurred through a collision for which neither was to blame, is apportioned equally between them.