The plaintiffs shipped a quantity of goods, at Boston, on board the schooner Brandywine, to be delivered at Hampden, on the Penobscot river. While the schooner lay at anchor in the harbor and bay of Bucksport, on the river, the steamer Penobscot came into collision with her, producing a breach in her side, and causing her to sink, with all her cargo on board, in fifteen or twenty minutes. The schooner and cargo were afterward raised, and the plaintiffs, and other owners of the cargo, submitted, in writing, the question of damages to the appraisal of thee men, mutually selected by themselves and the owners of the steamer ; “ each party protesting that it does not hereby compromise any legal rights; and the owners of said steamer protesting that they do not hereby admit themselves in any way to be liable for said damage, or for said collision. All parties are to be bound by the decision of the appraisers aforesaid, as to the amount of the damage.” The damages sustained by the plaintiffs’ goods were appraised at $¡779,13.

This presents a case of collision, in which damages are claimed by the shipper and owner of goods, on board the schooner, as resulting from the negligence of the defendants, as owners and managers of the steamer.

To the instructions given to the jury by the presiding Judge, as to the burden of proof, — the rights of vessels afloat, and passing on navigable waters, and the respective du*155ties of those managing them, so to use their own as not to impair the rights of others, — and the general right of a vessel to anchor in a passage way for vessels, only in cases of necessity, and then, no longer than the necessity required, the exceptions have not been presented in the argument.

The jury were instructed that they might determine from the evidence, “ if the schooner was conducting with a reasonable degree of care to give others fair use of navigation and it appearing that she was anchored at the time of the accident, nearly, if not precisely in the line or track of the steamer, they were further instructed that they might determine in like manner, whether, if this was the common track of the steamboat since 1836, as contended by the defendants, navigators should not know it. “ If so, then for a vessel to place herself at anchor across the steamer’s track, would be to exercise a right to which she was not entitled, if she might find other places of safety for anchorage. If the schooner met with misfortune, and the master could not use another sail, (than the one impaired,) and could not go to a safe place to anchor, then he would be justified in anchoring, and be entitled to remain as long as that necessity was upon him, and no longer. If he could have stopped and anchored elsewhere, it is for you to consider whether he has performed his duty, or not.”

To these instructions, exceptions were taken, and are pressed in the argument for the defendants. (1.) Because the position of the schooner was not a question of care, or degree of care, but of necessity alone. (2.) Whether that was the common track of the steamer since 1836, was a question of fact for the jury, but whether navigators should have known it, was a matter of law, and improperly submitted to the jury. (3.) If the master of the schooner could have stopped and anchored elsewhere, the law applies itself to the state of facts and fixes his duty.

Though the master of the schooner might have been impelled by necessity to anchor in the passage way of vessels to the wharf, or where anchoring would not be justifiable, ex*156cepting under stress of circumstances, controling the ordinary rights and duties of navigators^- yet he would be required, even under those circumstances, to exercise at least a reasonable degree of care and skill in taking and occupying such position. Not even necessity would justify a reckless disregard of the rights of others. Whether the conduct of the master was such as was required, in conformity with these principles, was a matter for the jury, and properly submitted to them. And whether navigators would know, or be required to know, the track of the steamer, would depend upon the facts proved to the satisfaction of the jury. Not only whether it had been used by the steamer, since 1836, but in what manner it had been used, in what seasons of the year, and how often, and whether or not it was varied by the season, wind, current, or tide. These were facts for the consideration of the jury. The instructions in this respect, we apprehend, are sufficiently stringent upon the master of the schooner. For they do not admit of his justification for anchoring and remaining in the track of the steamer, whether he knew it or not, unless from necessity, resulting from misfortune, and not from carelessness. Taken together they hold him to strict rules of care and skill even in his necessities. Of this the defendants have no cause for complaint.

If the master ’ of the schooner could have anchored elsewhere, the law would not absolutely and imperiously require, him to do so, if, in the exercise of reasonable care and skill, prudent and skilful navigators upon those waters would have deemed it. hazardous and unsafe to do it. The line of duty, in this respect, cannot be pressed to the verge of possibilities. The inquiry would not be, what the master could have done, but what, in the exercise of reasonable care and skill, he should have done, under the circumstances. On this point, therefore, the instructions were not exceptionable.

The next instructions were that, “ if there was no necessity for anchoring there, or if the schooner remained longer than she should have done, that would not authorize neglect on the part of the Penobscot. She would be bound to use *157ordinary care and skill, even if the master of the schooner was in the wrong.” The attention of the jury was then called to the evidence, and they were directed to determine thereby, whether “ the master of the Penobscot was in the exercise of ordinary care and skill,” or whether “ the accident was the result of the course she was compelled to take, by reason of the vessel lying in her course. The question then returns, was there want of skill and care on the part of the master of the Penobscot, or was it the result of accident, considering the course she was compelled to pursue, from the position of the schooner; if the former, the defendants are liable, if the latter they are not. If the accident was the result of fault on the part of both, then the plaintiff is not entitled to recover.”

It is a general principle of maritime law, that a vessel under sail must avoid one at anchor; so one that can command her movements must give way to one that is not under control. A vessel propelled by steam, is considered, in the application of this principle, as under sail, and with the wind at all times, and must give place accordingly. The Shannon, 2 Hagg. 173; Luxford v. Large, 5 Carr. & Payne, 421.

If a collision of vessels takes place by the fault of one of the vessels; without any fault of the other, or if the fault of the latter did not contribute to the injury, the former is responsible for all the damages. The Ligo, 2 Hagg. 356; The Thomas, 5 Robinson, 345; Vanderplank v. Miller, Moody & Malk. 169; Sills v. Brown, 9 Carr. & Payne, 613; The Scioto, Daveis’ R. 359, (U. S. Dist. Court, Maine, Ware, J.)

If the collision happened by accident, and without any fault on the part of either vessel; or if it do not appear which is in fault, or if both were in fault, and contributing to the injury, the misfortune must be borne by those on whom it falls, and damages are not recoverable by either party, at common law. But in admiralty, if the collision were occasioned by a want of care or skill on both sides, the loss would be apportioned, or divided equally between them, as having been produced by the fault of both. The Wood*158rop Sims, 2 Dods. 83; Abbott on Shipping, 302, (5th Amer. ed.); 3 Kent’s Com. 230, 231; Story on Bailments, § 609 and notes.

As in cases of collision of carriages on land, so of vessels on water, the party who sues for damages occasioned by the collision, in order to support his action, must prove that the defendant was in fault, and that there was no want of ordinary care which contributed to the injury on the part of the plaintiff. The fault of one will not justify the fault of the other. Each must exercise, at least, ordinary care and skill for himself: — Imperitia culpae enumerantur.' Owners of vessels, are responsible for the negligence and want of skill of masters, while acting within the sphere of their employment. The instructions were in accordance with these principles, and could not, we think, have been misunderstood by the jury.

On the subject of damages the jury were ‘informed that, “ as to what took place after the collision, and as to the conduct of the master, and as to the soundness of the vessel, you may lay that all aside, as having nothing to do with the case. The rights of the par-ties depend upon what took place before and at the time of the collision, and not after.” To this the defendants except, as misleading the jury on the question of damages.

While it is true that the subsequent conduct of the party injured, and the condition of the damaged vessel, might not contribute to the occurrence of the accident, yet they might materially affect the amount of damages. A party injured in his character, person or property, cannot, by his own misconduct, or negligence, enhance the damages for which he claims compensation from another. But in this case, the amount of damages had previously been determined by the appraisers, selected by the parties, and the question of amount, did not properly arise at the trial. These instructions were therefore correct.

From a careful examination-of the testimony reported, we cannot say, that the jury have erred in their conclusion. *159There was evidence from which they might properly determine, that the injury was occasioned without any fault of the plaintiffs or their agents, and that it was caused by the want of ordinary care and skill of the defendants. Though, in some respects, the testimony was conflicting, yet it was submitted to the jury under proper instructions, and in our opinion, their verdict is neither against the evidence, nor the weight of evidence. Exceptions overruled.