FEDERAL REPORTER. ARBO v. BROWN and others.. (Oircuit Uourt, E. D. Louisiana.
Damages resulting from an inevitable accident must be borne by the party on whom they fall. Hence, where a steamer that was safely moored for all ordinary emergencies broke loose in a storm and intlicted damage on other shipping, her owners cannot be compelled to make good the loss.
R. K. Outler, for libellant. E ..H. Farrar, for defendants. PARDEE, C. J. The evidence shows that September 1, 1879, libel·
lant was the owner of a barge loaded with wood, moored in the harbor of New Orleans, at the foot of Delachaise street, near the Louisiana ice works.
ARBO V. BROWN.
Allen reached this side two of the libellees, alleged owners of the Allen, reached the place. These parties, with others, made various efforts to prevent fnrtherinjury, and to get the Allen off, without avail. Everything was done or attempted that could be done, or was suggested, except that the parties favorable to the wood-boat asked or suggested that the lines of the Allen should be loosed and so let her float down stream and sink by herself. Upon this last suggestion a difference of opinion was expressed. Some thought that such a course would save the wood-boat; .others that the Allen was a protection to the wood-boat; and there was still another opinion; which was probably the better one, that the Allen could not be got out or 110ated out until the gale that blew her in had subsided. Anyhow, nothing was done at that time, and soon after Capt. Brown, the managing man, went away. Some time after this, and after the Allen sank, a Mr. Buck, under the direction of a lame man, cast off the bow-line, so as to let the Allen go clear of the wood-boat, and the Allen slid down stream; but her stern-line not being cast off she pulled out a check-post on the wood-boat, and that and the Allen together tore off some of the planks of the wood-boat and set a lot of the wood adrift. This sUit is brought by the libellant to make the owners of the Allen liable for his damages suffered to the wood and barge.
Under the facts of the case I am of the opinion that the ownerr were not in fault, and that the damages suffered by the libellant were the result of inevitable accident. The Allen was safely moored for all ordinary and foreseen emetgencies. The evidence shows that when she broke away one check-post pulled up and was carried by the hawser across the river, and was a cypress stick of about 15 feet in length, that had been standing for years for the earth to settle and pack around it, and it was set some 10 feet in the ground. The hurricane was unusual, and could not have been foreseen. As coun· sel say, "that storm was historic;" it flattened cane crops, blew down and unroofed houses and sugar.houses; trees were blown up by the roots; wood-boats, steam·boats, and coal-boats were blown adrift and wrecked in this harbor. What took place on this side of the river was the inevitable result of the collision of the Allen with the woodboat; and, so far as I can see, there was no carelesness nor negligence on the part of the owners notified, on this side of the river. Everything seems to be done that would likely to be of any service in protecting property. What was asked by the libellant's friends,the loosening of the new lines put out on the Allen, and the neglect and refusal of which is the gravamen of the libel,-seems to have been improper, because, when done later, the damage was increased. Inevitable accident is that which the party charged with the offence could not possibly prevent by the exercise of ordinary care, caution, or nautical skill. See 2 Wall. 556; 14 Wall. 215; 24 How. 307.
I am satisfied that neither ordinary care, caution, nor nautical skill could have prevented the occurrences which resulted in the damages of which libellant complains. When a collision takes place by any inevitable accident, or by any vis major, the loss is to be borne by the party on whom it falls. See Desty, Adm. § 384, and authorities cited in note 11. This conclusion reached, renders it unnecessary to go further into the case; but, having carefully examined the whole evidence, I may say that I have been forced to the conclusion that the damages actually suffered by libellant, growing out of the collision with his woodboat and the Allen, have been enlarged and magnified, and, if he had otherwise a case, he could not recover over some $40, with costs doubtful. The custom of selling wood by short measurement is not lawful, reasonable, or moral, and, if proved, cannot be invoked to prove more cords of wood on a flat-boat than the boat will hold, so as to enhance damages in a case of collision. Let a decree be entered dismissing the libel, with costs.
& Co. v.
EIGHTy-SEVEN BLOCKS OF MARBLE.
(Dist'l'ict OOU'I't, E. D. Louisiana.
1. BILL OF LADING-UNLOADING CARGO.
March 24, 1881.)
The ship-owners can recover from the consignees the expense incurred by them in unloading the vessel, where the bill of lading provides that the cargo should be delivered from tho ship's deck, when the ship's responsibility should cease.
In Admiralty. E. W. Huntington, for libellants. T. O. W. Ellis and Emmet D. Craig, for claimants. BILLINGS, D. J. The amonnt claimed by the libellants in this cause is made up of three items, viz.: freight, $1,476.97; demurrage, at $150 per day, $450; and expenses for labor, $445.50. It is admitted by the claimants that the amount claimed for freight is due, and that sum has been tendered and deposited in the registry of the conrt. As to the second item, demurrage, it does not appear by preponderance of evidence that the delay in unloading was caused by the fault of the consignees. The claim for this item is therefore rejected. As to the third item-$445.50 expenses in unloading the marble. This expense was incurred in transporting the marble from the ship over the wharf to the firm land or shora. It is not