2. Liability Dependent on Negligence.—
Liability for collision depends on negligence or fault causing or contributing to the disaster. Such negligence may be on the part of the ships actually in contact with each other or of outside vessels and consists in the violation of the statutory regulations for preventing collisions at sea or the failure to exercise that skill, care, and nerve ordinarily displayed by the average competent master. Collisions may occur without negligence, or by inscrutable fault, and then there is no liability for the resulting damage. Such are collisions solely due to the darkness of the night or to storms. In the Morning Light, 2 Wall. 550, the collision occurred at 4 A. M., on an intensely dark night in a dense fog and rain. The court (Clifford, J.) said:
Reported cases where it has been held that collisions occurring in consequence of the darkness of the night and without fault on the part of either party, are to be regarded as inevitable accidents are numerous.
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Where the loss is occasioned by a storm or any other vis major, the rule as established in this court is, that each party must bear his own loss, and the same rule prevails in most other jurisdictions.... Different definitions are given of what is called an inevitable accident, on account of the different circumstances attending the collision to which the rule is to be applied.
Such disasters sometimes occur when the respective vessels are each seen by the other. Under those circumstances, it is correct to say that inevitable accident, as applied to such a case, 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 the occurrence of the accident. When applied to a collision, occasioned by the darkness of the night, perhaps a more general definition is allowable. Inevitable accident, says Dr. Lushington, in the case of the Europa, 2 Eng. Law & E. 559, must be considered as a relative term, and must be construed not absolutely, but reasonably with regard to the circumstances of each particular case. Viewed in that light, inevitable accident may be regarded as an occurrence which the party charged with the collision could not possibly prevent by the exercise of ordinary care, caution and maritime skill.