Saune v. Tourne

Bullard, J., delivered the opinion of the court. In this case a re-hearing was allowed, and we have deliberately examined the testimony again, and considered the arguments offered, and proceed to state our reasons for adhering to the judgment first pronounced. The question presented by the case is, whether the officers of the steam-boat Abeona took the proper measures of precaution to avoid the collision. We are satisfied from the evidence that the schooner was not at the time propelled by the wind, and had not the use of her sails, but was floating sideways down stream, making efforts by means of sweeps, and a small skiff ahead, to make the port of New-Orleans. It was, therefore, manifestly impossible for her to change her course so as to avoid a steam-boat approaching her path under a head of steam. We repeat, therefore, that it is incumbent on the defendants to show that the steam-boat did make use of proper means’of precaution to avoid running upon the schooner. The most obvious means to avoid collision is clearly an alteration of the course or direction of the vessel. In this case it is not pretended that the .steam-boat changed her course, so as to pass on either side of the schooner, although the schooner was seen at the distance of a mile ahead. The ■chief pilot left the helm just before the'two vessels met. At [430] what moment the wheels of the steam-boat were stopped is ]eft uncertain, but we are satisfied from the violence of the shock, and the extent of the damage done, that she must still havebeen under head way. The foggy weather called for additional vigilance on the part of the steam-boat, which had left port in such kind of weather. The right of steam-boats ascending the river to keep along the left bank, according to a pretended usage, can only apply in relation to vessels of the same kind, descending. It would be no excuse for a steam-boat to run down a vessel propelled by wind, that the latter was too near shore, and in the usual track of steam-boats ascending. Story on bailments, 386. Believing as we do from the whole evidence in the case, that with proper vigilance and precaution, on the part of the officers of the Abeona, the collision might haye been avoided, and that no fault can be attributed to the captain of the schooner, it is ordered that the judgment first pronounced remain unchanged.