Strout v. Foster

THIS case originated in the District Court of the United States for the eastern district of Louisiana, was carried, by appeal, to the Circuit Court, and finally brought here.

There was much contradictory evidence about some of the facts. Those which were not disputed were these:

The Harriet, a ship of about three hundred tons, sailed from New Orleans for London on the 25th of May, 1836. On the 26th, she passed the bar of the Southwest pass, at the mouth of the river, and came to anchor. The ship Louisville, of five hundred tons burden or upwards, was coming in, and a collision ensued between the two vessels. The Harriet was so much damaged that she put back for repairs. Her owners, Jonathan Strout and others, libelled the Louisville. The District Court, after a hearing, decreed in favour of the libellants, and against the ship Louisville, her tackle, apparel, and furniture, in the sum of $2701 07, and costs of suit. The defendants appealed.

The Circuit Court reversed the decree of the District Court, with costs; and remanded the case to the District Court, with instructions to dismiss the libel. The libellants appealed.

It was given in evidence on the trial below for the libellants, that, on the 26th of May, 1836, the Harriet was at anchor near the mouth of the Southwest pass of the Mississippi, outside the bar, on the western side of it, with her sails all furled; that the Louisville was also lying at anchor with her sails furled, at some considerable distance to the eastward; that the Louisville got under weigh, and stood down to the Southwest pass with all sails set, topsail, and jib, and spanker; that she got within a quarter of a mile of the Harriet, and let go her anchor; that there was no range of cable overhauled; that there was not more than enough cable to let the anchor out of sight; that when the Louisville dropped her anchor, her sails were all set; that she came afoul of the starboard bow of the Harriet, whose helm was hard to starboard, and the jib and fore-top-mast stay-sail set to steer clear; that the people on board of the Harriet bore the Louisville off, and then she came afoul again; that they bore her off again; that instead of the Louisville making sail aft to bring her up, they set the fore-top-sail, and the ship paid off, and came afoul of the Harriet across her bows; that aboard the Harriet they continued to pay out cable, to permit the vessel to go clear; that there was plenty of room for the Louisville to have passed to the eastward of the Harriet, and a good free wind; that the Harriet was lying out of the usual track; that two brigs came down and went to sea to the eastward of the Harriet, after she had anchored; and that the wind was fresh from the S. E. or S. S. E.

On the part of the defendants, it was given in evidence, that the Harriet might have gone to sea when she anchored, as there was wind enough; that she was lying in the thoroughfare of vessels going in and out; that when the Louisville weighed anchor to come in, there was a fresh wind and favourable for coming in; that as she approached the bar, the wind died away; that a strong current set out of the pass; that it was stronger than usual, in consequence of there having been a strong wind the night before from the south; that owing to the lightness of the wind the Louisville drifted; that there was a pilot on board the Louisville, who said some time before, that they would be obliged to go close to the Harriet on one side or the other; that as the Louisville neared the Harriet, the pilot ordered them to let go the anchor and take in sail; that they obeyed the order as soon as they could; that the anchor got afoul of the chain of the Harriet, which had a great scope out; that the chain of the Harriet was not forward of her, but off on the starboard bow; that the Harriet had met with a similar accident in and about the same place, on a former voyage; that the entrances of passes at the mouth of the Mississippi are very intricate and difficult, on account of the currents and counter-currents; that as vessels approach the bar, and the water becomes more shoal, they are apt to become unmanageable, particularly when the wind dies away; that when the water is shoal, the under-tow has a great effect, and frequently with the greatest efforts a vessel cannot be steered; that there is one flood-tide every twenty-four hours on the bar, and the under-tow is the consequence of the flood-tide setting in and the current out.

The opinion of the Circuit Court, as delivered by Mr. Justice McKINLEY, was as follows: