interested in the cargo, requested permission to examine the stowage which was not granted.

During the voyage a slight leak became evident-from some cause unknown. It was sufficient to require from five to ten minutes' spell at the pumps every four hours,-not an unusual thing, as Capt. Spencer testifies,-which did not make the ship in the least unseaworthy. After the discharge of the vessel it was found to arise from what is known as a “private leak”—a slight defect in one of the outer planks of the ship. Its position was such that no sea water could have gained access to the cargo, which was protected by the inner ceiling, and I am satisfied that this had nothing to do with the injury

to the wool.

The claimants received the wool in a good condition for transportation as common carriers; they were bound to deliver it without injury, except from perils of the sea. It was clearly proved that 120 bales were seriously damaged when delivered in New York. This injury occurred while the wool was on board ship. It was not incumbent upon the libellants, therefore, in the first instance to prove the particular cause of the injury. The burden of proof is upon the claimants to show, in exoneration of their liability, that the injury arose by some peril of the sea within the exceptions of the bill of lading.

In Clark v. Barnwell, 12 How. 280, the court say: "After the damage to the goods has been established the burden lies upon the respondents to show that it was occasioned by one of the perils from which they were exempted by the bill of lading;" and if brought "within one of the accidents or dangers of navigation, it is competent to the shippers to show that it might have been avoided by the exercise of reasonable skill and attention; for then it is not deemed to be, in the sense of the law, such a loss as will exempt the carrier from liability, but rather a loss occasioned by his negligence and inattention to his duty." The Sabioncello, 7 Ben. 357; The Black Hawk, 9 Ben. 207.

As regards the 24 bales I think the evidence discloses sufficient probability of injury through sea water from perils of the sea to acquit them of responsibility for that part of the damage. The Neptune, 6 Blatchf. 193. As to the 76 bales, I think their defence is not made out. The peculiar nature of this injury in the caking and rotting of particular portions of the bales shows that it could not well have arisen in any other way than by direct contact with wet wood, or by

such close proximity to it through unprotected openings as would permit its steaming to produce similar damage, and the one was as much negligence as the other. The considerable number of bales rotted in strips, compared with the small number affected by sea water, shows that the wetting of the wood, whether of dunnage or of redwood, could not have arisen from the drip of sweating, nor from sea water taken in through perils of the sea. There was at no time any flooding of the between-decks, and there could be no dripping of the sea water which would not have affected the upper surface of all the bales of the upper tier much more than it could have affected any dunnage strips which might be in contact with the bales of wool. I must find, therefore, that the caking and rotting of the wool were owing to its contact with, or very near proximity to, wet and steaming redwood. Had the wet wood been entirely covered by dunnage it would seem that the wool would have been uninjured; but if, as it is alleged, spaces were needed to be left open for ventilation, this could not be done at the expense of the wool; and either the redwood should have been rejected, or, if taken on board, put where it would not injure other portions of the cargo. The contact or close proximity of the wool and the wet wood could have been easily avoided, and failure to protect the wool properly is such a want of skill and attention as constitutes negligence in stowage which renders the carrier liable. Mainwaring v. The Carrie Delap, 1 FED. REP. 874.

The evidence afforded by the impressions of wood upon the bales, and of the bales upon the redwood, cannot be overcome by mere general testimony that the dunnage was well laid. Along the wings the dunnage was proved to have been insecurely fastened, and the general testimony of the master and other witnesses, that the dunnage over the redwood in the lower between-decks was well laid, is much qualified by the fact that they saw but a small portion of it laid.

Even if the burden of proof was upon the libellants to show the particular cause of the injury, I think it is sufficiently shown. The presence of a sufficient cause is shown in the wet redwood, whether in contact with or in close proximity to the wool, either of which would render the carrier liable; while no other consistent or adequate cause of the damage to the 76 bales appears.

There must, therefore, be judgment for the libellants, with costs, and a reference to ascertain the damage to the 76 bales above referred to.

THE AUSTRIA, etc.*

(District Court, D. California. January 31, 1882.)

1. INEVITABLE ACCIDENT.

A ship and a schooner were fastened, respectively, to the northerly and southerly sides of the same slip. In consequence of the violence of a gale from the north, the forward fastenings of the ship gave way, and her bow was beginning to swing to the south, when those on board of her hailed the schooner to get away, as the ship was drifting. In doing so the schooner foundered. Held, that the ship was not responsible for the injury, as her original fastenings were all that were reasonably necessary under the circumstances, and she was, otherwise, free from negligence.

In Admiralty.

Milton Andros, for libellants.

W. H. L. Barnes, for claimants.

HOFFMAN, D. J. On the eighth of March, 1881, the ship Austria and the scow-schooner Modoc were lying at a pier on the north side of a slip on Oakland Long Wharf. The Modoc arrived at about 12 or 1 o'clock, and made fast to the wharf astern of the Austria; the latter being further up the wharf towards its head. At about 4 o'clock P. M. the Modoc moved further up the slip, to a position south and abreast of the Austria, with the object of getting under her lee, as the weather had become threatening. She put out several lines to the wharf, forward and astern of the Austria, and attached one to the latter vessel about amidships. The wind continued, as night came on, to increase in violence, and at about 8 o'clock the Modoc was hailed from the Austria to let go the line attached to that vessel. Before, however, this could be done, the line was cast off by the Austria's crew. The Modoc then hauled off to the south side of the slip, to a position to the south of and not far from abreast of the Austria.

A short time afterwards the schooner was hailed from the Austria to get away, as the latter was drifting. She had in fact parted her forward fasts, and her bow was swinging-beginning to swing round towards the south before the northerly gale. There seemed to be imminent danger that the schooner would be crushed between the Austria and the wharf. She therefore commenced hauling out between the Austria's stern and the stern of the Transit, a large steamer which was attached to the southerly pier of the slip. In so doing her boat was crushed, but whether by contact with the Austria or by the falling of the schooner's main boom, the topping-lift of which had fouled with the rigging of the Transit, is disputed. The Modoc contin.

*Re-reported, 14 FED. REP. 298,

ued to haul over towards the southerly pier, which she finally reached, but foundered almost immediately on coming in contact with it. The Austria's bows in the mean time had continued to swing around until they were checked by the bowsprit coming 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 during the remainder of the night. It is claimed by the libellants that the accident was the indirect but not remote consequence of the Austria's negligence in breaking adrift. The claimants contend:

(1) That the breaking adrift was the result of inevitable accident; and (2) that even if the Austria was guilty of negligence the foundering of the schooner was the direct consequence of her being overladen and unseaworthy; that her deck load had become saturated with water, rendering her crank and top-heavy, and giving her a list to starboard, which constantly increased until she capsized in the heavy sea which was setting in under the piles of the wharf; and that, as there was no actual collision of the vessels, the foundering of the Modoc was too remote a consequence of any negligence of which the Austria might have been guilty, to render her liable.

The circumstances of this case suggest several interesting questions, which, however, in the view I take of it, do not require a definitive solution. In general, it would seem that when a véssel, 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 compelled to incur the risks of making the maneuver. But in this, as in cases of apprehended collisions, she is bound to exercise reasonable judgment and skill, in the absence of which the damage will be apportioned. The Grace Girdler, 7 Wall. 203. But suppose the new position which she is obliged to take is more perilous than her original one, and that before she can move to a safer position a storm arises, the consequences of which she would have escaped in her old position. Is the offending vessel, which originally compelled her to shift her position, liable for the damages done by the storm?

Again. A vessel threatened with injury through the fault of another, is, as already remarked, bound to exercise reasonable skill and diligence to avoid or mitigate its consequences. Is she not also bound to be well conditioned and appointed, with all the necessary appliances to avoid a collision, even though the danger of its occur

rence may have arisen from the default of another? Suppose, for example, that in attempting to escape from an impending collision a vessel sustains damage by reason of defective steering apparatus or rigging, from which she would have escaped had it been sufficiently provided. Or suppose that, being compelled to slip her anchor, she might readily have secured her safety had she been provided with proper lines and hawsers, but owing to the entire absence of these she is stranded. Or suppose that she is overladen and unmanageable, and from that cause unable to execute a maneuver which she might otherwise have safely accomplished.

It would seem that in these and similar cases that when a vessel is endangered by the fault of another, and is 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 comes 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 as a fault.

It is unnecessary to pursue this discussion 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 the 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 occurs. The highest degree of caution that can be used is not required. It is enough that it is reasonable under the circumstances; such as is usual in similar cases, and has been found by long experience to be sufficient to answer the end in view-the safety of life and property." The Grace Girdler, 7 Wall. 203.

The Austria was made fast to the wharf by a gang of stevedores, under the direction of Capt. Batchelder, a master stevedore of 30 years' standing, assisted by two foremen of great experience.

It is unnecessary to enumerate the various chains and hawsers by which she was attached to the wharf. In the judgment of all concerned in the operation they were sufficient to secure her safety