THE E. M. PECK, 228 F. 481

McCALL, District Judge (after stating the facts as above). The court below reached the conclusion that the steamer Peck was at fault and decreed accordingly. The Calumet Trust Company, the owner of the Peck, appealed and assigned error.

Judge Day was of the opinion: “That the Peek broke loose by reason of the compressor slipping and permitting the chain to slack and then tighten, thus breaking or loosening tile jiile to which the Peck was moored,” and that “this was the fault either in the construction of the compressor or more probably in the conduct of the caretaker of the Peck.” If this finding of fact is warranted by the evidence, the appellant was properly adjudged liable for such damages as the appellee sustained, resulting from the Peck’s colliding with the dredge, under the rule announced in The Louisiana, 3 Wall. 164, 18 L.

Ed. 85, that in a collision caused by a vessel 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 or precaution and a proper display of nautical skill could not have prevented.” This court has adopted the principle announced in The Louisiana, supra, and applied it in The Win. E. Reis, 152 Fed. 673, 82 C. C. A. 21, and in Bradley v. Sullivan, 209 Fed. 833, 126 C. C. A. 557.

There was no dispute, therefore, as tor the law governing this case; but the appellant stoutly insists that the evidence clearly sustains its defense that the damage sustained by the dredge was the result of inevitable accident or a vis major, and that all was done that human skill or foresight could reasonably suggest to properly moor the Peck and hold her fast, and thus it has brought itself within the rule announced in The Louisiana, supra. An attentive examination of all the evidence leads us to the conclusion that such contention is not without merit.

On January 21st, when it was apparent that a thaw had set in and that there would be a breaking up of the ice, and probably a rise in the river to flood tide, the acting harbor master, an experienced mariner, went to the Peck (as he. did to. the other vessels in the harbor), and assisted her caretaker, who was also an experienced seaman, to put out five additional 6-inch lines. It was their opinion that the Peck was then properly moored, with sufficient lines to hold her against any condition that under the circumstances might he reasonably anticipated.

The additional lines parted when the gorge moved down the river, but the anchor chain held fast. Nor did the compressor, to which it was attached on the boat, break or give way. It slipped once or twice, causing the steamer to lurch. Still the chain held fast, but when the pressure ol the ice' gorge upon the how of the steamer became so great that something liad to give way, the 15-inch white oak pile, to which she was moored, broke off below the surface of the ground, and the vessel was set adrift.

The conditions were very unusual, if not unprecedented, in the harbor at Lorain on January 22, 1904; for, as has been stated, nine other vessels were either torn from their moorings or cast ashore on the occasion under consideration. If the Peck alone had been swept away, we would be more impressed with the contention of the ap-pellee that there was some negligence or want of nautical skill in her mooring. While the facts in the cases of The Wm. E. Reis and Bradley v.

Sullivan, supra, when considered generally, are very similar to the facts in the instant case, yet they differ in material and important particulars. In the case of The Wm. E. Reis, she had aboard a cargo of 4,800 tons of iron ore, no dock timber or pile gave way, but the lines and cables parted, and, although there were 50 or more vessels moored in the harbor at that time, the Reis was the only one that broke loose- and went adrift. In Bradley v.

Sullivan, the vessel had a cargo of 70,000 bushels of flax seed aboard; and; though the piles to which she was moored broke off, it was not shown that the flood and floating ice were unprecedented. Furthermore, the conditions prevailing at the time the Alva went adrift, as well as a few hours later, “were anticipated and overcome by those in control of other vessels then moored in neighboring portions of the river and equally exposed.” The Alva alone went adrift.

The material distinguishing facts are these: Both the Reis and the Alva had on board large cargoes, and therefore required greater skill and care in mooring. They were the only vessels that went adrift on the respective occasions, thus strongly indicating that the fault was either in the manner of their mooring or handling, while in the instant case the Peck was without cargo and 9 of the 14 craft moored in the harbor at Lorain (including the Peck) either were swept away or cast ashore, and of- the remaining 5 all were damaged, except the Steinbrenner.

What might have been her fate, had the great pressure of the moving ice gorge come against her bow, is problematical. The court below found that the drifting of the Peck resulted either from a fault in the construction of her compressor, or in the conduct of her caretaker — more probably the latter. Can it be justly said he was at fault, in that he was unable to adjust the lines about the Peck so as to. equalize the.strain, and thus have prevented them parting? or that he was at fault in going below to hold the lever to the compressor down?

In the light of the wholesale havoc wrought in the port of Lorain, we cannot think the caretaker was guilty of actionable negligence or fault in either instance. What fault was there in the construction of the compressor? The chain slipped on it once or twice. The caretaker says that was the result of “an extraordinary strain on it.” There is no direct evidence touching its construction. That it did not give way, but held the cable firmly, after the first extraordinary strain, until the pile broke off, strongly tends to refute the idea of faulty construction.

We conclude that the evidence proves that appellant did that which careful, prudent, and experienced men would have done under like conditions, that those in charge of her exercised such care and prudence in mooring the Peck as the circumstances reasonably required, and that her drifting was the result of inevitable accident. The C. H. Northam (D. C.) 181 Fed. 986; Sharpsburg Sand Co. v. Coal & Coke Co. (D. C.) 145 Fed. 424; The Mary J. Robbins (D. C.) 100 Fed. 41; The Waterloo and The Glenalvon, 100 Fed. 332, 40 C. C. A. 386; The Mary L. Cushing (D. C.) 60 Fed. 110.

There are other questions raised, but we deem it unnecessary to discuss them. It results that the case must be reversed and remanded, with costs, and with direction to dismiss the libel.