Sherman v. Mott

BBATOHFORD, District Judge.

The li-bellants, owners of the brig Isola. file their libel against the respondents, owners of the schooner Anne E. Glover, to recover for the damages sustained by the libellants through a collision which took place between the brig and the schooner, in the harbor of Galveston, Texas, on the 3d of October. 1867. On the morning of that day the brig and the schooner were both of them lying, heading to the westward, with their port sides against the outer end of a wharf which was in the shape of the capital letter T. The brig lay farther to the westward than the schooner did, and was in ballast, ready for sea. The schooner lay with her bow toward and near to the stem of the brig, and was loaded with cargo, having just arrived from sea and not yet discharged. Astern of the schooner lay a bark with her starboard side to- the wharf and her stern to the stem of the schooner. These three vessels were all of them made fast by lines to piles on the wharf. A violent wind arose, blowing quartering on the wharf, from abaft the beam on the starboard sides of the brig and the schooner. As the wind increased, the brig broke loose from her moorings, tearing out the piles to which she was fastened, and was driven along the face of the wharf until she cleared the end of it, when an anchor from her bow caused her stem to swing around by the west, until she was brought by the anchor head to the wind, when a second anchor was put out. which brought her up, so that she rode safely at anchor, at a distance of from 75 to 100 yards from the schooner. Not long afterward, the stem of the bark was driven by the wind against the stem of the schooner, and broke in the stern of the schooner, so that the sea entered, and there was danger that the schooner would sink, with her cargo, at the wharf. In this emergency, as stated in the answer, the master of the schooner, “acting for the benefit of all concerned, for the purpose and with the motive and intention of saving her and her cargo from total loss, cut her loose from her moorings, but before her anchors could be let go, and she could be thereby brought up, she was, notwithstanding every effort which it was possible to make to the contrary,. driven upon the brig.” The answer sets up that it was impossible, under the circumstances, to prevent the collision; that such collision, so far as respected the schooner, arose from an inevitable accident, by reason whereof ‘each vessel should sustain her own loss; and that there was no fault on the part of the schooner. The brig was greatly damaged by the collision, and the sehooner, after remaining for some time in contact with and entangled with the brig, was cleared, and then drifted still further, until she grounded in shoal water.

The contention on the part of the respondents is, that, inasmuch as the schooner was in a proper place when she was cut loose, and was sufficiently secured to the wharf, and it was proper for her safety and that of her cargo to cut her loose, after she had been injured by the bark, so that she might be driven by the wind and drift ashore in shoaler water, the case is one of inevitable accident, or vis major, unless there was some fault or negligence on the part of those in charge of her. in managing her after she was cut loose, whereby she collided with the-brig. I cannot assent to this view of the law as to inevitable accident. The act of the schooner, in being adrift, was, on the pleadings and proofs, a voluntary act on her part. It was wilful and deliberate. It was done to save herself from a greater peril by endeavoring to incur a less one. It is established, by the proofs, that, if she had not cast herself loose, she would have remained where she was, only, perhaps, sinking, and would not have collided with the brig. A collision would have been impossible if she had not cut herself loose, as a matter of voluntary choice. How, then, can it be properly said that the collision was an accident which could not have been avoided, when it clearly appears that it would have been avoided, if the schooner had not thus voluntarily chosen to cut herself loose) It may be that, after she was cut loose, all proper skill and caution on her part were observed. But that is not the proper test. In cutting herself loose she took the risk of hitting the brig, and must bear the consequences of having hit her. The brig ought not to be held liable to bear the risk of the voluntar?' act of the schooner, adopted for the benefit of the schooner, and having no connection with the question of any benefit to the brig.

There must be a decree for the libellants with costs, and a reference to a commissioner to ascertain the damages sustained by them by means of the collision in question.