majority">KENNERLY, District Judge.

This is a libel in rem by the Government against the oil barge “Sunset Una” under Sections 433 and 434, 33 U.S.C.A., claiming that on June 13, 1943, such Barge discharged, or suffered or permitted to be discharged, petroleum oil into the navigable waters of the United States. The Bay Towing Company, owner of the barge “Sunset Una”, has appeared and answered the Government’s claim.

The facts are as follows:

(a) It is undisputed that on June 13, 1943, in this Division and District, there was petroleum oil discharged into the navigable waters of the United States from the Barge “Sunset Una”.

(b) The evidence shows, however, that such oil was discharged, or suffered or permitted to be discharged, .by such barge because of an unavoidable accident or collision. While the “Sunset Una”, loaded with petroleum oil at Baytown near Houston, was being towed by the Tug “Messenger” from Baytown to Pier No. S at Galveston, it encountered heavy seas and rough weather in Bolivar Roads, which caused the tug to pound against and collide with the barge, and to break a seam in the starboard side of the barge, allowing oil to escape into the water.

(c) The evidence shows that the barge, at the time she was loaded, was seaworthy, and at the time of the accident was being properly towed with proper lines fastening her to the tug, and that the injury was caused solely by weather and heavy seas encountered on the voyage from Baytown to Pier No. 5. There is no evidence that the barge or her owners were guilty of any negligence with respect to the matter,' and it is perfectly clear that the collision was an unavoidable accident.

(d) After reaching Pier No. 5, the barge was pumped out as promptly as practicable, and further discharge of oil prevented.

1. I think the evidence brings the case within the exceptions mentioned in Section 433, and that the discharge of the < il by the barge into the navigable waters was caused by an unavoidable accident and collision, within the meaning of such section. Hegglund v. United States, 5 Cir., 100 F.2d 68, 70.

Judgment will enter that the Government take nothing.

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