The Java

Mr. Richard Henry Dana, for the libellants, and in support of the ruling below: It is a well-settled rule of admiralty law, one enforced by statute,1 that if a steamer approach a sailing vessel, the steamer is required to take the necessary measures to avoid collision; and if collision occurs, and it is not shown to have been inevitable, the steamer is, prim a facie, in fault.2 Inevitable accident is not simply when it is too late, but it must appear that its being too late was not the fault of either side. It must be understood to mean 'a collision which occurs when both parties have endeavored, by every means in their power, with due care and caution, and a proper display of nautical skill, to prevent its occurrence.'3 It is an equally settled rule that a steamer, in entering a harbor is bound to great caution. The vigilance is thrown on her Ordinary care will not excuse her. Steamers, in such in stances, have been held in fault for not using precaution, although they may have done their utmost at the time.4 If the night is too dark to distinguish a small vessel in season, a large steamer should not attempt to go down the harbor.5 This court indeed always holds a steamer responsible for the selection of her course. If she takes an unusual course, or one that involves more risk than another, when she has an election, or voluntarily puts herself in a position where, if a sailing vessel shall happen to come in the way, she cannot avoid her, or cannot do so without extreme measures on her part, she is responsible for the damage. And, in such cases, it is not an excuse to show, that but for some mere error, not a fault, in the other vessel, or some accident to her, the collision might not have occurred; it not being made clear that the collision was occasioned by a fault of the other vessel to which the course taken by the steamer did not contribute.6