Page:Federal Reporter, 1st Series, Volume 4.djvu/853

 M'nALLY V. STEAM-TUa L. P. DAYTON. S39 �Bowen and in the answer of the scow, that the collision was due wHoUy to the fault of those managing the Dayton and the boats in tow of her, is only an admission of an allegation made in the libel as respects the Dayton, and can have no effect to throw on the Bowen or the scow, as between eiiher of them and the libellant, any burden of showing fault in the Dayton. �Whatever cases are found, where, on a libel filed by a vessel at anohor, or lying at a pier, or in stays, against a vessel colliding with her, it bas been held that the mere fact of a collision by a vessel with another one thus helpless is priit'-a fade evidence of negligence and fault in the former, and throws on her the burden of proof, such doctrine does not apply to this case, even though the Centennial was helpless, lash%d to the aide of the Dayton, and having no motive or steering power. There must, in ail cases, be prima facie evi- dence of negligence. There is none in this case, as between the libellant and any one of the three vessels sued. The Cen- tennial was in motion with the Dayton. Her helplessness, and even the absence of any allegation of fault against her, does not establish prima fade any fault in any particular one of the three vessels sued. Even though it may be the proper conclusion from the pleadings that some one or two, or ail of the three vessels sued must bave been in fault, it is for the libellant to show whieh one, and not for any "one of the three to exculpate itself, or prove fault in either or both of the otber two. In an admiralty suit between two parties only, for a collision, the rule in England seems now to be that the burden of proof is not on the claimant, even when he sets up matter strietly justificatory or excusatory, until a prima fadi case of negligence is shown. �In The Marpesia, L. E. 1 Privy Council Appeals, 213, in 1872, inevitable accident was set up as a defeuce by the claimant in a collision case, and it was held that in such a case the burden of proof lies, in the first instance, on hi/i who brings the suit, and does not attach to the vessel sued until a. prima fade case of negligence is shown. �In The Abraham, 2 AspinaU's Mar. Law Cases, N. S. 34, in ����