would have been of no service in guarding against collision that his absence is excusable.1

The absence of a lookout is prima facie evidence that the collision was the result of such omission. The fact being shown that there was no proper lookout in performance of his duties, the burden of proof is upon the delinquent vessel to show that such absence did not contribute to the result.2 It affords no justification for such omission that the lookout had been called to assist in another part of the ship, except in case of imminent peril; it being the duty of the ship to have sufficient crew to perform the usual duties of navigation without taking the lookout from his station and duties.3

Circumstances of great peril and of an unusual nature may of course arise where the master would be justified in ordering the lookout from his post to perform other service. The situation of the vessel and stress of circumstances must determine whether such removal is justifiable. Where a vessel is navigating waters thick with shipping, the law imposes upon a lookout sleepless watching; a higher degree

lanta, 41 Fed. R. 639; The Genesee Chief v. Fitzhugh, 12 How. 443; The Iberia, 40 Fed. R. 893; The William Orr, 54 Fed. R. 904; Law v. Baker, 26 Fed. R. 164; The Ping-On v. Blethen, 11 Fed. R. 607; McCabe v. Old Dominion S. S. Co., 31 Fed. R. 234; The Bermuda, 17 Fed. R. 397; The George Murry, 22 Fed. R. 117.

of itself sufficient to charge the schooner. The Nessmore, 41 Fed. R. 437.

1 The Titan, 23 Fed. R. 413.

2 Jones v. The St. Nicholas, 49 Fed. R. 671.

The Catherine v. Dickinson, 17 How. 170; Rusk v. The Free Stone, 2 Bond, 234; The Fannie Crocker, 23 How. 448.

In The Riverdale, 53 Fed. R. 286, a schooner being dropped by a tug, employed all hands in making sail and paid no attention to the danger signals of an approaching steamer. Held liable for failure to have a proper lookout.

Where a lookout on a schooner was not in his place at the time of the collision with a steamer, where it appeared that the schooner continued to hold its course, and there were no facts that made it her duty to do otherwise, it was held that such absence, unless contributing to the collision, was not 447.

4 The Southern Home, 16 Blatch.

of vigilance than if navigating unfrequented places, where the presence of others might not reasonably be expected.' The presumption of negligence for omitting a lookout is conclusive unless the offending vessel clearly shows that such omission did not contribute to the result. It is no justification to show that it is the custom for vessels of the class in question to run without a watch or lookout. A custom so fraught with danger cannot be countenanced, and admiralty courts will not permit such practice to mitigate the burden the law imposes upon those guilty of such negligent conduct.2

Sec. 177. When at anchor.-It is the duty of vessels at anchor to keep a proper lookout on duty when in a situation where the approach of others may reasonably be expected; the measure of whose vigilance is determined by the nature of the situation,-a greater degree of vigilance being required of a ship anchored in a crowded channel or thoroughfare than if in a situation where there is little likelihood of others passing.3

Sec. 178. Liability of ship not under control of owners. Vessels engaged in navigation in charge of officers and crew selected by the owners are not only liable for damages inflicted, but also render the master and owners liable as well, where the damages inflicted are occasioned by the negligence

1 The Ariadne, 13 Wall. 475; Cohen v. The Mary T. Wilder, Taney, 567.

2 The Rebecca, 1 Bl. & How. 347; Jones v. The St. Nicholas, 49 Fed. R. 671.

In The Milwaukee, Brown, Adm. 313, it was held that the presence or absence of a lookout is not material where it appears that the officer in command was in possession of all the information a lookout could have given him, in time to have avoided the collision.

In The Dexter, 23 Wall. 69, where the officer in charge of the deck saw the approaching vessel when so far distant that precautions against collision were not necessary, it was held that the absence of a lookout did not contribute to the collision, and did not relieve the other vessel from the results of its conduct.

3 The Henry Warner, 29 Fed. R. 601; Churchill v. The Altenower, 39 Fed. R. 118; The Ophelia, 44 Fed. R. 941.

or want of care and skill on the part of those employed in their navigation.' But where the ship is under the entire control of a charterer or other person, over whom the owner has no control, the liability of the owner ceases. Whether the ship itself is absolved from liability for the tortious conduct of those in charge of or directing it, when not in command of the owners or persons selected by them, has been a question of much speculation. In the case of The Clarita and The Clara Mr. Justice Clifford says: "Owners appoint the master and employ the crew and are responsible for their conduct. Whenever, therefore, a fault is committed whereby a collision ensues, that fault is imputed to the owners, and the vessel is just as much liable for the consequences as if it had been committed by the owner himself. Consequences of this kind, however, do not follow when the person committing the fault does not in fact or by implication of law stand in the relation of agent to the owners. Unless the owner and the person or persons in charge of the vessel sustain in some way to each other the relation of principal and agent, the injured party cannot have his remedy against the colliding vessel." The law as stated by the court is doubtless correct as it applied to the case then under consideration,— a case where a vessel was in charge of a tug. Under such circumstances the law is well settled that the tug, having full charge of it, is responsible for the damages done by collision, where the vessel is not guilty of independent wrong. But where a ship is acting independently and alone, it is itself an actor and is a responsible thing, irrespective of the question of ownership; otherwise the owners of vessels could escape all liability, both on their own account and on the part of the ship, by chartering it to an irresponsible person. In permitting a vessel to go into the hands of another, the owners may be said to constitute such person their agent for the navigation of the vessel, so far as binding it for the

Sturgis v. Boyer, 24 How. 110.

2 Workman v. The City of New York, 63 Fed. R. 298.

323 Wall. 1–19.

torts arising from its navigation is concerned; and that it is one of the risks assumed by the owner that the charterer or person intrusted with their property will navigate it in a safe and lawful manner, and that failing to do so the ship may become responsible.' So that the law as stated by Mr. Justice Clifford, it would seem, was not intended to state the general irresponsibility of a ship for collision when in charge of a charterer or one having entire and independent control of it acting independently of the owners. Circumstances doubtless may arise where a vessel is not liable for the acts of those in control of it, as where it is stolen or navigated by persons against the will of and without the permission of the owner; but where the owner voluntarily permits his vessel to be navigated by another, he thereby assumes the risk that the vessel will become liable for the torts of those navigating it, so far as its liability for collisions is concerned. To relieve the owner from personal responsibility it must appear that the entire control is assumed by the persons in charge and that the owner has no voice in its management.?

Sec. 179. Defective appliances. It is the duty of the owner to provide his ship with the usual and proper appliances for its navigation, although the law does not require him to adopt every new device that may be had, notwith

1 The Lymington, 32 L. T. (N. S.) 69; The Freeman v. Buckingham, 18 How. 182, 183; The Alert, 61 Fed. R. 113.

2 Richardson v. Winsor, 3 Cliff. 395; The T. A. Goddard, 12 Fed. R. 174.

Where one of several owners sailed a vessel on shares under an arrangement between himself and the other owners, whereby he became in effect the charterer, hiring his own crew, paying and victualing them, having entire control of

the ship, it was held that he was the owner pro hac vice and personally liable for a collision. Thorp v. Hammond, 12 Wall. 408.

In the case of The Siren, 7 Wall. 152, where a prize, in charge of a prize-master and crew, while on its way to port came into collision with a vessel and sunk it, it was held that the owners of the sunken ship were entitled to recover for the negligence of those in charge of the prize.

standing it may be better than the one in use, providing the latter is safe and reasonably well calculated to perform the service required of it. It is negligence on the part of a master to proceed on a voyage where the equipments of his vessel are in such condition as to make her navigation dangerous and uncertain: the want of usual and proper appliances by which the navigation of a vessel is rendered difficult and dangerous is as much a fault as is the want of proper skill and diligence on the part of the officers and crew, and the vessel is liable to the same extent. The statute provides that all vessels shall be provided with certain mechanical devices for their better and safer navigation, and they are not only bound to be provided with such appliances but they are bound to use them when occasion requires, and to keep them in condition fit for use.2

When a vessel is built and equipped in the mode usual and customary for vessels of its class, and in a manner approved by nautical experience, and collision occurs by reason of a latent defect, no recovery can be had. The law only re

2 The Wyanoke, 40 Fed. R. 702. The statute requires that sailingvessels shall be provided with a fog-horn of mechanical construction. Where it uses a horn sounded by the breath instead of the one provided by statute it is guilty of negligence. The Catalonia, 43 Fed. R. 396; Adams v. The Bolivia, 43 Fed. R. 173.

1 The Austria, 9 Fed. R. 916; The of negligence either by showing Edith Godden, 23 Fed. R. 43. the cause which broke the rope, or that the breaking was the result of inevitable accident. Where the evidence showed that the rope was one of the usual kind used for that purpose, was purchased of a reputable dealer, that there were no indications of defects, and that it had recently been examined by the ship's officers and found in proper condition, the collision was held to be the result of inevitable accident. The Olympia, 61 Fed. R. 120.

A vessel navigating with a defective compass is guilty of negligence where this contributes to the collision. The Mohawk, 42 Fed. R. 189.

Where the tiller rope to a steamer broke, causing collision, it was held that the burden of proof was upon her to rebut the presumption

3 The Lizzie Frank, 31 Fed. R. 477; The Titania, 19 Fed. R. 101; The Flower Gate, 31 Fed. R. 762.

Where the rudder chain of a steamer was shown to have been reduced in strength by long and constant use, and collision resulted