Page:Federal Reporter, 1st Series, Volume 9.djvu/932

THE AUSTBIA. 917 �ued to haiil over towards the southerly pier, whieh she finally reached, but f oundered almost immediately on coming in contact with it. The Austria's bows in the mean time had eontinued to swing around until they were checked by the bowsprit coming in contact with the rail- road company's sheds on the southerly pier. As her stern Unes still held, this brought her up/and she remained in the same position dur- ing the remainder of the night. It is claimed by the libellants that the accident was the indirect but not remote consequence of the Aus- tria's negligence in breaking adrift. The claimants contend : �(1) That the breaking adrift was the resuit of inevitable accident; and (2) that even if the Austria was gailty of negligence the foundering of the schoonfer 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 vessel8,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 eircumstances of this case suggest several interesting ques- tions, which, however, in the view I take of it, do not require a defin- itive sohition. In general, it would seem that when a vessel, herself free from fault, has been obliged by the fault of another to change her position or attempt any other maneuver to avoid impending dan- ger, and in doing so sustains an in jury, 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 judg- ment and skill, in the absence of which the damage will be appor- tioned. The Grace Girdler, 7 Wall. 203. But suppose the new posi- tion 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 in jury 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- ��� �