
    Love & Brother v. Captain and Owners of Steamboat Montgomery.
    This was an action for damage to plaintiffs’ store, resulting from the defendants’steamer having drifted against and ruined it. IIeld: In cases of this kind, it is not usual for other courts than those of admiralty, to relieve either party where both have been guilty of a want of proper care.
    PPEAL from the Third District Court of New Orleans, Kennedy, J.
    
      Thomas, for plaintiffs.
    
      Wolfe & Singleton, for defendant.
   Spopeorb, J.

The steamboat Montgomery, in a season of high water, effected a landing at the town of New Carthage, in the parish of Madison. As the water was over the bank, she made fast to a flatboat, a short distance above a storehouse belonging to the plaintiffs. - There were trees close at hand, to which she might as easily have fastened her lino. There being a strong current, the steamboat and flat began to drift down stream and it was evident that the rope, by which the flat was tied to a tree, was about giving way. Some one on the flat then cast off the line of the steamboat, and she swung against the plaintiffs1 storehouse, with such force as to knock it from the pillars upon which it stood above the overflow, and convert it into a ruin.

The plaintiffs insist that the owners of the steamboat should indemnify them for the loss of their house, and the damage done to a lot of hardware, crockery, drugs and merchandise, stored therein.

There was a judgment for the defendants in the court below.

The appellants contend, that as the storehouse had no power of locomotion, the burden is on the defendants to prove beyond a reasonable doubt, that the collision was the result of inevitable accident. This would bo a correct view of the law in a case where the complainants acted with proper caution themselves or, at least, contributed nothing to occasion the loss complained of.

But hero the plaintiffs owned the flatboat. They moored her at the spot where the steamboat found her, about forty yards above their store, in a swift current, or between two cross currents. They moored her there expressly for a steamboat landing, and, no doubt, made the usual profits out of the investment. Moreover, a passenger, the only witness who gives any intelligible explanation of the catastrophe, and who was examined originally on behalf of the plaintiffs, but whose evidence was offered by the defendants, says that ho believes it was Mr. Love himself (one of the plaintiffs) who cast off the steamer’s line from the flat, to which it had been fastened. It does not appear that he remonstrated against her being thus fastened, or requested the officers of the boat to make fast to any other object. So the plaintiffs themselves are in fault. They should have moved their temporary landing further away from their house, or made it more secure, or, being present, should at least have warned the officers of the Montgomery of its insecurity.

It may be true that the defendants were also in fault.

But, in cases of this kind, it is not usual for oilier courts than those of admiralty jurisdiction, to relieve either party whore both have been guilty of a want of proper caro. Vanderplank v. Miller, 1 Moody & Malkin, 171. 3 Kent’s Com. p. 231. Myers v. Perry, 1 Ann. 374. Carlisle v. Holton, 3 Ann. 48.

The judgment is therefore affirmed, with costs.  