The Louisiana/Opinion of the Court

'There seems no doubt that it is the duty of a person using a navigable river with a vessel of which he is possessed and has the control and management, to use reasonable skill and care to prevent mischief to other vessels,. . . and the liability is the same whether his vessel be in motion or stationary, floating or aground, under water or above it. In all these circumstances the vessel may continue to be in his possession and under his management.'

And this view was approved in a later case, in the Exchequer, by Baron Alderson, speaking also for the court:

'The mere fact that one vessel strikes and damages another does not,' said the late Chief Justice Taney, 'of itself, make her liable for the injury. The collision must, in some degree, be occasioned by her fault. A ship, properly secured, may, by the violence of a storm, be driven from her moorings, and be forced against another vessel, in spite of her efforts to avoid it. Yet she certainly would not be liable for damages, which it was not in her power to prevent.' In The Ligo, Sir C. Robinson said: 'The law requires that there should be preponderating evidence to fix the loss on the party charged, before the court can adjudge him to make compensation.' And in The Bolina, Dr. Lushington decided, that where there is no prim a facie evidence of negligence and want of seamanship, the onus does not necessarily attach to the party proceeded against, alleging inevitable accident, to prove it; but, on the party, seeking indemnification, to prove that blame attaches to the other party.

The mere fact, therefore, of the Louisiana breaking away from the old wharf is no sufficient evidence of fault.

It will be remembered that soldiers had to be landed and coal to be taken in, at the same time. The vessel was laid at the wharf and rigged in the only way practicable; her stern necessarily projecting far past the wharf. Expedition was a duty. It was a time of war. It is not pretended that sufficient fastenings were not made forward. No more ropes could be passed through the cleets, and therefore the capstan also was used; and to show the sufficiency and strength of the fastenings forward, the facts are shown, that the cables forward did not part; that the cleets gave way, and the capstan was broken. It is clearly proved that when the wind increased and the tide changed, additional lines were put out. The argument, therefore, must rest on the alleged insufficiency of the fastenings from the stern of the boat to the wharf. Now, the case shows that, when the vessel first laid at the wharf, she had three lines out; one at the stern, and two forward. Subsequently, the two forward were increased to five; and the one aft was increased to four; and the bights of those lines went over the same posts, which, in effect, doubled the number. There is nothing in the case to show specially that the boat was carried off by any regular action of the reversed tide and increased wind. Against these the captain and mate guarded. We infer that it was some one irregular action of the water-something not to have been foreseen as a result even of the changed conditions of tide and wind, which lifted up the stern of the vessel, slackened the stern fastenings, and thus enabled the storm at one special moment to get hold of the boat, and to cause the lines to snap, the wharf to give way, or the vessel to be torn asunder; no matter how strong the lines were. To consider this result as evidence of neglect, would destroy the notion of a special and inevitable accident, and would make the owners responsible not only for the storm, but for those hidden perils of the sea, not to be calculated against.

Will it be said that seamanship required of the captain to change his position at the wharf when the tide changed; that is to say, to liberate the steamer from her fastenings, and to go out into Hampton Roads, and come back to the wharf, and lay her bow to the eastward, facing the wind and tide? It is easy to be wise after a catastrophe; easy to avoid perils on which the stern-lights of experience are shining. But the question is, what was obligatory before the accident? The fact that the captain and mate of this vessel were appointed by the government to the discharge of a most responsible duty raises a presumption of their general capacity and carefulness. A general competency for their office of seamen must be inferred from it; and indeed is otherwise presumable. Now, as a matter of fact, the captain and mates believed that the vessel, fastened as she was, was safe. They thus thought upon considering the matter and looking at the case with all the evidences of risk before them. It was their conclusion super materiem subjectam, after discussion and advisement upon it. It was no fault of theirs that they thus believed; and as matter of fact, we repeat, they did thus believe. Now, suppose, believing as they thus truly did, that the vessel was safe-that the risks of staying still were greatly less than those of any attempt to reland in a high wind-that they had, nevertheless, cut loose, put out, attempted to reland, and in such attempt had met with some terrible disaster to their sick and wounded charge and cargo, what words, on such a result, would be wanting to express indignation at their rashness and folly? If in the effort to change the position of the steamer, the captain had been caught by a sudden squall, he would have been without excuse. It would then have been said, that he would have done right if he had remained at the wharf, and that if, in remaining there, he had been driven from its moorings, it would have been a case of inevitable accident. The Juliet Erskine would have been quoted on him. Dr. Lushington there says: 'Where a collision takes place, when every prudent measure, consistent with ordinary seamanship, has been adopted, and carried into effect by the vessel proceeded against,' it is a case of inevitable accident. So would the language of Taney, C. J., already cited. The argument then would be that the captain had abandoned a sure protection, and had undertaken an unwise and dangerous and improper experiment.

Will it be said that the steamer was not properly managed after she broke loose? Even if this had been the case, great allowance should be made for any seeming errors, if such appeared, and the remarks in The Genesee Chief would apply. In that case the court say: 'If in the excitement and alarm of the moment, a different order might have been more fortunate, still, under the special facts, the court will not hold the party who might have given it responsible. He was in a situation where there was no time for thought. If an error had been committed, it would not, under the circumstances have been a fault.' But, to those familiar with Hampton Roads, this mate's conduct was, in a high degree, judicious, and his orders precisely such as were necessary. When the steamer broke loose, she was drifting sideways and westward, her bows towards the beach. Unless backed she would have grounded; and, even if she had escaped the shoal, she would have come into collision with the vessels at the 'new wharf.' She was, therefore, properly backed, and escaped both. There was no room to work her, unless her bow could be brought to face the wind and tide, both of which were from the east. He cast an anchor-not for the purpose of riding to the anchor-but to produce the effect of changing the position of the steamer. This was the right manoeuvre.

After an excellent argument by Mr. Bernard Carter, of Baltimore (his first before this bench), and Mr. J. M. Campbell, contra,

Mr. Justice GRIER delivered the opinion of the court.

The steamer Flushing being aground on Hampton Bar, out of the channel or course of vessels navigating the bay or harbor, and incapable of motion, cannot be justly charged with any participation in causing the collision.

The collision being caused by the Louisiana drifting from her moorings, she must be liable for the damages consequent thereon, unless she can show affirmatively that the drifting was the result of inevitable accident, or a vis major, which human skill and precaution, and a proper display of nautical skill could not have prevented.

Now the facts show that the Louisiana has entirely failed to establish her defence.

1. The drifting of this vessel was not caused by any sudden hurricane which nautical experience could not anticipate. None of the other numerous vessels, at that time in the harbor, were driven from their moorings. The wind which arose was only of such a character that its effects might have been anticipated, and, by proper precaution, prevented;-'a half gale,' 'a stiff breeze,' 'a little more than ordinary.'

The fact that the steamer was ordered by the government officers to take in coal at the old wharf, which had a narrow front when compared with the great length of the vessel, could not relieve the officers of the boat from the duty of securing her in such a manner as to prevent her drifting when the change of the tide and winds changed the direction of the forces acting upon the vessel. And the fact that under these circumstances she did drift, is conclusive evidence that she was not sufficiently and properly secured.

It requires no assumption or affectation of any very great nautical skill in this court to point out the defects of the management of this vessel by the mate, who was left in charge of her. If the tide and wind could have been reasonably expected to remain as it was when, according to the mate's idea, the vessel was lying so 'very nice to the wharf,' we should probably not have heard of this case.

So long as things were in the condition in which they were when the vessel was first moored, she was sufficiently secured to meet any stress or force likely to be opposed to her in that direction. But when the tide changed so as to strike the stern with a momentum increased by a high wind, and multiplied by the leverage resulting from the length of the vessel exposed below the wharf, the 'necessity' for a change of position ought to have suggested itself to a person of nautical skill, as a proper precaution against a danger which might justly have been anticipated. The fact that the captain and mate 'did not anticipate the breaking away of the vessel, and thought the lines sufficient to hold her,' may prove their want of judgment, but not that 'the accident was unavoidable;' and this more especially, as other persons of nautical skill-disinterested witnesses in this case-found no difficulty in securing their vessels at the same place, and under similar circumstances.

2. It is not necessary to a decision of the cause to show that this collision might have been averted by a proper use of the anchors of the Louisiana, after she had broken away from her mooring at the wharf, or by a proper use of her steam power, further than to say, that the testimony in the case would well justify that conclusion.

We are of opinion, therefore, that the appellant has failed to show that the collision is the result of inevitable accident, and that the decree of the Circuit Court should be

AFFIRMED WITH COSTS.