DURING the Southern rebellion, the Louisiana, a large steamer, loaded with sick and wounded soldiers from our army in the South, and bound for Philadelphia, stopped at Fortress Monroe; her purpose in going there having been the twofold one of landing certain of the soldiers who were too sick to proceed on their course, and of taking in supplies of coal. At this time, on a place in Hampton Roads known as Hampton Bar, was a steamer (c) called the Flushing, lying aground. (See map at p. 167.) She had been there seventy-two days, unsuccessful efforts only having been made by her owners to float her. The spot where the vessel lay was one that had been selected for the location of a buoy to mark the bar and warn vessels off, and the Flushing had gone aground because the buoy had been carried away. Having lain in this place one hundred and thirty-three days she was finally abandoned by her owners, and was then raised by the wreck-masters. Under orders of the government, in whose service she was, the Louisiana proceeded to a wharf (A), called the old wharf; there being a little below another and much better one (B), called the new one. This old wharf was a narrow projecting pier, having at its extremity toward the roads a widening; the whole being somewhat in the shape of a T; but even at its front the wharf was but eighty-two feet wide. The steamer laid and fastened herself in the only way in which vessels could lay and fasten themselves to this wharf; that is to say, along its front. The Louisiana being, however, a long vessel, two hundred and seventy-five feet long, a small part of her, less in fact than one-third, was capable of being placed in juxtaposition to the wharf. Moreover, as soldiers were to be landed and coal taken in at the same time, it was apparently necessary to have two gangways in operation at once; and, as the after-gangway could not be used in consequence of the narrowness of the front of the wharf, both gangways were rigged forward. This threw the stern part of the boat nearly one hundred and fifty feet distant from the nearest point of the wharf. In addition, owing to the extent to which the wharf ran out into the sea, it was not practicable to fasten the vessel by lines, which should run from her extremities and at right angles to them to the shore. All that could be done was to fasten her towards her bow (where she lay in juxtaposition to the wharf) by lines running at right angles from her to posts, &c., on the wharf; while from the extremities, and more especially the stern, lines ran to fastenings on the wharf also. These stern-lines, running transversely, operated of course much more to steady the boat than actually to hold her. The diagram, in which from necessity the top of the page is made to represent the east, will elucidate the matter.
In the morning, when the Louisiana arrived at the old wharf, the tide was ebb; that is to say, was coming from the west; swinging round the land somewhat to the northeast. On the other hand, the wind, at this time quite gentle, was from the northeast. Tide and wind, in their action on the boat's fastenings, thus counteracted each other. The vessel was placed with her bow against the tide; that is to say, to the west. She put out three lines, one at the stern and two forward; these being sufficient at this time to hold her. Later in the day the tide changed from ebb to flood; that is, it ran west, or somewhat round the land from the northeast, and the wind rose; coming still from the northeast; tide and wind now acting of course in one direction. Shortly before this time the captain, who was about to leave the boat to go and see the surgeons of the fort in regard to the sick and wounded soldiers on his steamer, gave the boat into the mate's charge. He and the two mates conversed, however, previously on the subject of the fastenings. They 'did not anticipate the breaking away of the vessel, and thought the lines sufficient to hold her;' though the captain told the first mate that if he thought it necessary he could put more fastenings still. With the change of tide and the rising of the wind new ropes were accordingly put out by the mate. Five ropes now ran out front and four aft; the 'bights' of these last going over the same posts. The ropes were seven and nine inch ropes, and all were new. No more ropes in fact could be applied forward than were applied. The cleets being all employed, the capstan was used besides. By degrees the wind increased and became high. It came in squalls,' 'a pretty taut breeze,' 'a little more than ordinary;' 'blowing fresh,' 'blowing half a gale. In this gale the vessel snapping her stern-lines first, and then on being forced round with her broadside to the wind, tearing away at the bow-broke off violently from her fastenings. At the stern, as already said, her lines broke; but at the bow the lines were so strong that they did not part. It was only by the cleets and capstan being torn up out of their places and so giving way that the vessel finally at this part got loose. Drifting sideward, to the west, with her bow towards shore, and past the new wharf, the Louisiana came down upon the Flushing, injuring her essentially. The captain and mates considered that 'the accident was unavoidable.' Other vessels, of which there were several in the neighborhood, kept to their fastenings; nor was there any other collision or accident of any king in Hampton Roads on that day. The mate, under whose charge the vessel had been after the captain left her, said, on examination, 'According to my judgment, the vessel was made sufficiently fast to lay at that wharf.' When asked why he did not change the position of the boat to meet the change of tide and wind, he said, 'I did not think there was any necessity for the change. We were lying very nice at the wharf; nor did I think it necessary to do more than I had done.' TAI TABLE
The distance from the old wharf to where the Flushing lay aground was about 800 feet. Testimony tended to show that if an anchor had been dropped anywhere within the first 400 feet of the distance over which the Louisiana drifted-that is to say anywhere between the two wharves, where the water is shallow-it might perhaps or probably have brought her up. No anchor, however, was thrown until she had drifted nearly 700 feet.
The testimony in regard to her manoeuvres after she broke loose was not very clear. It was plain that she had drifted against the Flushing; nor did the witnesses agree as to the movements of her machinery. The captain 'backed' her machinery, though not at immediately on breaking loose, which if he had then done would have cleared the Flushing.
The Circuit Court for Maryland, reversing a decree of the District Court in Admiralty, which had held the Louisiana not in fault, decreed against her for the full damage done, each party to pay his own costs. The case was now here for review.
Mr. Schley, for the owners of the Louisiana, appellants in the suit: The case shows that the owner of the Flushing had been guilty of neglect in suffering her to remain so long on Hampton Bar. She was a public nuisance. It was because she was improperly there at the time, that she was injured by the collision and did injury to the Louisiana. Even then, if the Louisiana was in fault, as the most favorable result for the Flushing, the damages of both should have been blended and divided. But this rule ought not to apply, in a case of public nuisance, especially as against one who did not wilfully commit injury. The owner of the Flushing might have abandoned the wreck, and would thus have escaped responsibility. But, holding possession, responsibility attached. In Brown v. Mallett,  Maule, J., delivering the judgment of the C. P., said:
^1 5 Manning, Granger & Scott (57 English Common Law), 615.