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70 U.S. 164 (1865)
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U.S. Supreme Court
The Louisiana, 70 U.S. 3 Wall. 164 164 (1865)
70 U.S. (3 Wall.) 164
ERROR TO THE CIRCUIT
COURT FOR MARYLAND
1. A vessel drifting from her moorings and striking against another vessel aground on a bar out of the channel or course of navigation will be liable for damage done to the vessel aground unless the drifting vessel can show affirmatively that the drifting was the result of inevitable accident or of a vis major which human skill and precaution could not have prevented.
2. The fact that a vessel on arriving at a wharf is moored in a way which, in reference to the state of the tide and wind at that time, is proper, and that in this position she is made as fast as she can be, is not an excuse for her breaking away on a change of tide and wind if ordinary nautical skill would have suggested that such a change would produce different and reversed conditions of risk.
During the Southern rebellion, the Louisiana, a large
steamer, loaded with sick and wounded soldiers from our army in the South and bound for Philadelphia, stopped at Fortress Monroe, her purpose in going there having been the twofold one of landing certain of the soldiers who were too sick to proceed on their course and of taking in supplies of coal. At this time, on a place in Hampton Roads known as Hampton Bar, was a steamer (c) called the Flushing, lying aground. (See map at p. <|70 U.S. 167|>167.) She had been there seventy-two days, unsuccessful efforts only having been made by her owners to float her. The spot where the vessel lay was one that had been selected for the location of a buoy to mark the bar and warn vessels off, and the Flushing had gone aground because the buoy had been carried away. Having lain in this place one hundred and thirty-three days, she was finally abandoned by her owners, and was then raised by the wreck-masters. Under orders of the government in whose service she was, the Louisiana proceeded to a wharf (A), called the old wharf; there being a little below another and much better one (B), called the new one. This old wharf was a narrow projecting pier, having at its extremity toward the roads a widening, the whole being somewhat in the shape of a T, but even at its front, the wharf was but eighty-two feet wide. The steamer laid and fastened herself in the only way in which vessels could lay and fasten themselves to this wharf -- that is to say, along its front. The Louisiana being, however, a long vessel, two hundred and seventy-five feet long, a small part of her, less in fact than one-third, was capable of being placed in juxtaposition to the wharf. Moreover, as soldiers were to be landed and coal taken in at the same time, it was apparently necessary to have two gangways in operation at once, and as the after-gangway could not be used in consequence of the narrowness of the front of the wharf, both gangways were rigged forward. This threw the stern part of the boat nearly one hundred and fifty feet distant from the nearest point of the wharf. In addition, owing to the extent to which the wharf ran out into the sea, it was not practicable to fasten the vessel by lines, which should run from her extremities and at right angles to them to the shore.
All that could be done was to fasten her towards her bow (where she lay in juxtaposition to the wharf) by lines running at right angles from her to posts &c., on the wharf, while from the extremities, and more especially the stern, lines ran to fastenings on the wharf also. These stern lines, running transversely, operated, of course, much more to steady the boat than actually to hold her. The diagram, in which from necessity the top of the page is made to represent the east, will elucidate the matter.
In the morning, when the Louisiana arrived at the old wharf, the tide was ebb -- that is to say, was coming from the west, swinging round the land somewhat to the northeast. On the other hand, the wind, at this time quite gentle, was from the northeast. Tide and wind, in their action on the boat's fastenings, thus counteracted each other. The vessel was placed with her bow against the tide -- that is to say, to the west. She put out three lines, one at the stern and two forward, these being sufficient at this time to hold her. Later in the day the tide changed from ebb to flood -- that is, it ran west, or somewhat round the land from the northeast -- and the wind rose, coming still from the northeast; tide and wind now acting, of course, in one direction. Shortly before this time, the captain, who was about to leave the boat to go and see the surgeons of the fort in regard to the sick and wounded soldiers on his steamer, gave the boat into the mate's charge. He and the two mates conversed, however, previously on the subject of the fastenings. They "did not anticipate the breaking away of the vessel, and thought the lines sufficient to hold her," though the captain told the first mate that if he thought it necessary, he could put more fastenings still. With the change of tide and the rising of the wind, new ropes were accordingly put out by the mate. Five ropes now ran out front and four aft, the "bights" of these last going over the same posts. The ropes were seven and nine inch ropes, and all were new. No more ropes in fact could be applied forward than were applied. The cleats being all employed, the capstan was used besides. By degrees the wind increased and became high. It came "in
squalls," "a pretty taut breeze," "a little more than ordinary;" "blowing fresh," "blowing half a gale." In this gale, the vessel -- snapping her stern lines first and then, on being forced round with her broadside to the wind, tearing away at the bow -- broke off violently from her fastenings. At the stern, as already said, her lines broke, but at the bow the lines were so strong that they did not part. It was only by the cleats and capstan being torn up out of their places and so giving way that the vessel finally at this part got loose. Drifting sideward, to the west, with her bow towards shore, and past the new wharf, the Louisiana came down upon the Flushing, injuring her essentially. The captain and mates considered that "the accident was unavoidable." Other vessels, of which there were several in the neighborhood, kept to their fastenings, nor was there any other collision or accident of any kind in Hampton Roads on that day. The mate under whose charge the vessel had been after the captain left her said on examination, "According to my judgment, the vessel was made sufficiently fast to lay at that wharf." When asked why he did not change the position of the boat to meet the change of tide and wind, he said, "I did not think there was any necessity for the change. We were lying very nice at the wharf; nor did I think it necessary to do more than I had done."
The distance from the old wharf to where the Flushing lay aground was about 800 feet. Testimony tended to show that if an anchor had been dropped anywhere within the first 400 feet of the distance over which the Louisiana drifted -- that is to say anywhere between the two wharves, where the water is shallow -- it might perhaps or probably have brought her up. No anchor, however, was thrown until she had drifted nearly 700 feet.
The testimony in regard to her maneuvers after she broke loose was not very clear. It was plain that she had drifted against the Flushing; nor did the witnesses agree as to the movements of her machinery. The captain "backed" her machinery, though not at immediately on breaking loose, which if he had then done would have cleared the Flushing.
The Circuit Court for Maryland, reversing a decree of the district court in Admiralty which had held the Louisiana not in fault, decreed against her for the full damage done, each party to pay his own costs. The case was now here for review.
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 defense.
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 was driven from its 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.