TIlE
AUS1'RIA.
(Two Cases.)
(Distrt'ct Oourt, D·.
ai, 1882.)
Inevitable accident is where a vessel is a lawful avocation in a Jaw· ful manner, using proper precautions against danger, and an accident occurs, It is enoug.h that the caution exercised should be reasonable under the circumstances; such as is usual in similar cases, and which has been found sufficient, by long experience, to answerthe:end in ,view"'"'ithe safety of life and property. The highest degree of caution that can be used is not required. SAME-CASE STATED: Where a fast to a wharf by a competent band o{stevedores by fasts Which, through long experience, are deemed by them sufficil3,nt,-\.hrough the actiori the winds and waves, breaks her fastenings arid drifts towards a moving to a schoon'er, placing the schooner in such imminent. peril that . place she is capsized andfollllders, it is Ii case of inevitable accident.
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M. Andros, for libelant8. W. H. L. Barnes, for claimants. ,,, , HOFFMAN, D. J. On the eighth of Mareh, 1881, the ship Austria. and the BCow-schoonerModoc were lying at a'pier on the north side ofa slip in Oakland LongWhatf. ,The Modoc arrived about 12 or 1 made fast to the wharf astern of the Austria.-the latterbeirig the wharf, towards its head. At about 4 o'clock p ··M:theModocmoved fnrtherup the .slipto a position south and:abreast of the Austria, with the object of getting nnder her lee, as the 'weather had become threatening. She put out' several lines to th'e' wharf forward and astern of the Austria, Jtnd attached one to the l'atter' vessel about amidships. The wind continued, as night came, on,: to increase inviol:mce, and at abouiB o'clock the Modoc was hailedfroiu the Austria to let go the line attached to thahessel. Before, however, this could be done, the line was cast off by the Aus· The Modoc then harile'd off to the south 'sideofthe slip toaposition'to the south of and not far from abreast of the Austria. A short time afterwards schooner was bailed framtha Austria to gat a.way,aathe latter was drifting. She had in'fa.ct patted her forwa·rd' f3l8M, and her, bow was beginning' to swing ;round towards the seemed' to be imminElnt· dansouth, bdorethe' nol'therly gale. ger:th:atthe,schooner'would be crushed betweerithe Austria and the whlir.f: 8he-i1herefote'commenced out between the Austria's stern and· the stern .of ..the' Transit,! steamer whi.cb 'was attached to the sou:therlypier:of the slip."Irr sodding her:boittwas crushed, but whether by contact with the Aust'ria,;orbythe. falling
TJIEAUSTRIA:i·'·
299
'df the ·schooner'sthain boom, thetopping-lifll:of which had. fouled
with the rigging of the ·Transit, is'ilisputed.· TheMQdoc continued towards the southerly pier, whieh she finally reaohed, to haul but foundered almost immediately on eoming lncontactwith it. The Aust:ria's bows, in the.. mean time, had continued to swing around un.ti1 they were checked by her bowsprit coining in contact with the railroad company's sheds on the southerly pier. As her stern lines still held, this brought her up, 'and she remained in the same position duringtherest of the night. . It is claimed by the libelants that the accident was .the indirectbtit not remote consequence of the Austria's negligence in breaking adrift. 1. The claimants contend that the breaking adrift ·wasthe resnlt of inevitable accident; and, 2. That even if'the Austria was guilty of negligence, ·the foundering of the schOoner was the direct couseqtlElnce of her being overladen and unseaworthy; .that het deck-load hadbeconie tlatnrated witb water, rendering her craIikand top-heavy, and' 'ghing her a list ·to starboard, which constantly increased nntil she capsized in the heavy sea which was setting in under the piles oftha wharf; and that, as there was no actual collision of the vessels, the foundering of the Modoc was too remote a conseqrlence of any 'negligenceofwhichthe Austria might have been guilty, to render her liable.;' The circumstances of t\1is case suggest several interesting questions, which, however,' in the view I takeM it; do notrequire adefinitive solution. In general, it would seem that where a vessel, herself free from fault, has been obliged by the fault of another to change her position, or attempt any other maneuver, to avoid impending danger, and in doing so sustains an injury, the damage should be deemed to have been caused by the vessel by whose fault·she:was cotnpelledtoincur the risks of making the maneuver. But in this, as in O&S\3S of apbound to exerdise reasonable judgment prehendacl collision, she and skill, 'in the absenoe of which thedaimages will be apportioned. 7 Wall. 203. But suppose the new position which she is obliged to take is thore perilous than her original one, and that before she oan move to a safer position a storm arises, the consequences of, which she would have escaped old position.· Is vessel, which originally compelled her to shift her position, liable for· the damage done by the stonn? Again: A vessel threatened with injurythrougbthe'fault of another is; as alrtlady remarked;boohdto exeroise reasonable skill and
300
FEDERAL REPORTER.
diligence to avoid or mitigate its consequences. Is she not also bound to be well conditioned and appointed, with all necessary appliances to avoid a collision, even thongh the danger of its occurrence may have arisen from the fault of another? Suppose, for example, that in attempting to escape from an impending collision, a vessel, by reason of defective steering apparatus or rigging, sustains damage which she would have escaped had she been sufficiently provided. Or suppose that, being compelled to slip her ancllOr, she might readily have secured her safety had she been provided with proper lines anq. hawsers, but owing to the entire absence of these she is stranded. Or suppose that she isoverladen and unmanageable, and from that cause unable to execute a maneuver which she might otherwise have safely accomplished. It. would seem, in these and similar cases, that where a vessel is endangered by the fau of l!'nother, and unable to secure her safety through the want of the. usual and proper appliances and means, she is herself as much in fault as if her inability arose from the want of proper skill and diligence on the part of her officers and crew. But if her inability has been the result of a peril of the sea or vis major, the consequences of which she has been unable to remedy, then her defective means should not be imputed to her asa fault. It is unnecessary to pursue this subject further. Perhaps what has already been said is superfluous, as it is certainly obiter. In my judgment, the accident in this case is not to be attributed to the negligence of the Austria, but to "inevitable accident." Numerous authorities, defining the meaning of this term and illustrating its application, have been cited at the bar. It will be sufficient to quote the language of supreme court in a single case. "Inevitable accident," says the court, "is where a vessel is pursuing a lawful avocation in a lawful manner, using the proper precautions against danger, and an accident occ.urs. The is not required. It is enough highest degree of caution ,that that it is reasonable unde'l'.thecircumstancesi 8ucha, is usual in similar cases, and has been found, by long experience, to be sufficient to the end in view-the ,afetyof life and p.roperty." The Grace Girdler, 7 Wall. 203. The Austria. WL'"S made fast to the wharf by a gang of stevedores, the direction of Capt. Batchelder, a master stevedore of 30 years' standing, assisted by two foremen of great experieJ;lce. It is unnecessary to enumerate theyarious chains and hawsers by which she was attached tp the wharf. In the judgment of all concerned in
'1'BB AUSTlUA.
301
the operation, they were sufficient to secure her safety under all circumstances likely or possible to occur. Two witnesses" and those of that it would have been better to no very great experience, put out her anchor chain. But this criticism is made after the event, and one ·of them, when informed what fasts were actually put out, admitted that "he thought them sufficient, except in ,ome great emergency." Capt. Batchelder declares that even with his experience of the result, he would not moor the vessel differently if the work had to be done over again. He expresses the opinion that if he had put out the anchor chain, it would either have parted or torn out the pile to which it was attached. If the mooring had been insufficient, it would have been easy to establish the fact by the testimony of experts. No stevedore of experience has been called to express such an opinion. I think, therefore, that the measures adopted by the Austria were, in the language of the supreme court, "reasonable under the circumstances; such as are usual in similar cases, and have been found, by long experience, to be sufficient to answer the end in view It is contended on the part of the libelants that the Austria was negligent in not putting out other fasts after the first one had The in.terval that occurred between the time when her fasts began to part and her bringing up against the shed was from 20 to 25 minutes. No expert has been called to state what the persons on board '(three in number) could have done, more than they actually did, to prevent the vessel from breaking adrift. They were certainly busy paying out chain, etc., and doing what seemed best to them for the safety of the ship. It is not shown that three-men were not the usual .and proper crew or watch for a vessel lying in a slip and supposed to be securely fastened to a wharf. But the conclusive answer to the suggestion is.that the negligence suggested did not and could not have had any effect to avert the disaster. The schooner was warned to move away when the dangar of the ship's breaking adrift became apparent. The latter was in fact brought up by the sheds on the' opposite wharf without touching the schooner, though possibly she may have crushed the boat at her stern. Tl'!,e accideJ;lt o!lcurred during the attempt of the schooner to get out of the .way of the vessel, which she was warned was drifting down on her. That attempt she made as soon as she was apprised of· her danger. If, then, the men on board the ship bad succeeded: in preadrift, the result would have .been in venting her bows from
FED&lU.D· :REPORTER.
uo fespe.ct different. She did bring up agaiust the shed, .touching the. schooner. The latter foundered in the attempt to extricate herself from a posi,tion ,of imminent danger. That. attempt she had already upon:, apd the result would have been the same if additional fasts sufficient to secure ship hadbeen pnt out, and her further drift ing thereby arrested, just as it was a very short time afterwards by her coming in contact with the sheds.· The negligence, if any, to be imputed to the Austria, is negligence in the original mooring; and of this, for the reasons a.ssigned, I do not find her guilty., Libels dismissed.
THE FlUTHEOFll'.
(District Court, D. California. February 8, 1881.) WAGEI!-'- PAYMENTS TO lUll AFFIRMATIVELY ESTABLISHED.
the seaman shows himself entitled to a certain amount of wages, it 1& for the master to show payment in whole or in part; and'where the testimony isconfticting and equally balanced on the question of payments claimed by thlt master to have been made, but of which there is no corroborative evidence, and to justify rejecting the seaman's eVidence, the case must be decided against the party: on whom rests the burden of oroof and duty of making out hi'S case affirmatively. .
Daniel T. Sullivan, for libelant. A. P. Van Duzer, for claimanl·. HOFFMAN, D. Thereis no dispute as to the amount of wages. earned by the libelant on the two voyages., viz., $184.94. The captain ,claims to hav:e paid him on account, various sums, the' greater parto! which the steward. admits.. The master took no receipts, and kept no accounts. He fails to produce a single written memorandum of ',any .payment whatev.er. The man having shown himself entitled to. -a certain sum, ,it ,is for the masoo:z:: to show payment in whole or in part.;: The; te.stimony being conflicting, and there being no circumstances developed which justify me in rejecting the steward's -8videna.e,.I must decide ,thematteragaiust. the party upon whom rests the burden. of pl!'oof and the dllty, of making; out his case a:'ffirm.:atively. T..qe,man, admits having:!received. He charges the capt!l.in ,$L50.·for a ,pig "wm.This,does uotappear to be disputed. I think, too, the. p,fet,tyclearly:, that d.ol-
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