Page:Federal Reporter, 1st Series, Volume 4.djvu/854

 840 FEDERAL REPORTER. �1873, the suit was against an overtaking vessel, whîch was boiind to keep out of the way, The answer admitted the overtaking, and set up inevitable accident by the entangling of the rudder chains of the overtaking vessel. The plaintiffs contended that on these pleadings the defendants ought to begin, while the defendants contended that the plaintiiïs ought to show apnmafacie case. This was on the view that the pleadings did not show a prima facie case of negligence, although the overtaking vessel was bound to keep out of the way. Sir Eobert Phillimore, foUowing The Marpeaia, held that the plaintiffs must begin. �In The Benmore, L. E. e A. & E. 132, in 1873, the an- swer made no charge of negligence against the plaintiffs, but denied generally the averments of the petition, and pleaded inevitable accident. The case was one of a collision betveen two sailing vessels, and it appeared from the pleadings that the vessel sued was on such a tack that she was bound to keep out of the way of the other vessel. Sir Eobert Phillimore faeld that it had been the practice to call on the defendants to begin in cases where no charge of negligence was made against the plaintiff, and the only defence raised on the plead- ings was inevitable accident, but that on the decision in The Marpesia the plaintiffs must begin. �As respects the Dayton, no prima facie case of negligence on her part is shown by her answer. The fact that the col- lision occurred while the Centennial was under the control and direction of the Dayton, and had neither propelling nor steering power of her own, is not prima facie evidence of negli- gence in the Dayton. The answer of the Dayton alleges that the Dayton and the Bowen were approaching in such a way that the proper course was for each to pass on the starboard side of the other ; that the Dayton took the proper measures to pass in that manner, and the proper signais wex'e blown, but that the Bowen failed to give heed to said signais, and to take measures to pass on the starboard hand of the Dayton, and the boats in her tow. There is notbing to the contrary of this alleged in the libel, and this does not show any negli- gence in the Dayton. The answers of the Bowen and the ����