
    [No. 2,021.]
    J. M. BOHANNAN v. J. HAMMOND and C. SCHUTT.
    Jurisdiction op State Courts.—State Courts have concurrent jurisdiction of cases of action cognizable in admiralty where only a common law remedy is sought.
    Liability op Common Carrier.—A common carrier is not only responsible for negligence but is an insurer against any loss not occasioned by act of God, the public enemies, or the fault of the party suffering the loss.
    Idem—Burden op P&oop.—When loss occurs, the burden of proof is upon. the carrier to show that it resulted from one or the other of these excepted cases.
    Liability por Damage to Cargo op Vessel.—Where the cargo of a vessel is damaged in consequence of an accident which results from the falling of the tide, unless it appear that the vessel could not have been so moored as to prevent it being left aground, the owner of the vessel is liable for the damage.
    
      Appeal from the District Court of the Fifth Judicial District, County of San Joaquin.
    The facts are stated in the opinion of the Court.
    
      Byers & Elliott, for Appellants, argued that the Court had . no jurisdiction of the subject matter of the action, and cited 2 Story on Const. Secs. 1663, 1665; 1 Kent’s Com. 366, 367; The People v. The Steamer America, 34 Cal. 679. They’also argued that the damage resulted from an inevitable accident, for which a carrier is not responsible. (2 Kent, 826; Faulkner v. Wright, 1 Rice, 107; Neal v. Sanderson, 2 Swedes & Marsh, 572; Eveleigh v. Sylvester, 2 Brevard, 178.)
    
      J. H. Budd, for Bespondent.
   By the Court, Temple, J.:

In this case there is no brief on file on the part of the respondent, although there is on file what purports to be a reply to respondent’s brief. We are therefore compelled to investigate the case without the assistance of counsel, so far as respondent is concerned.

The complaint charges that defendant is a common carrier, 'and as such undertook to carry for plaintiff twenty-one tons of wheat from the City 'of Stockton to San Francisco; that, the wheat was delivered, to the defendant and received by him, "but-was, while in transitu, damaged through the fault of defendant. To recover this damage is the object of this suit. The answer admits that the defendant was a common carrier. The contract and the loss were proven substantially as.alleged. This appeal is by the defendant from a judgment in favor of plaintiff, and from an order denying a new, trial;

• The defendant contends that the Court has no jurisdiction, because the action arises upon a maritime contract, and is cognizable in admiralty. This position is manifestly untenable. The Judiciary Act, which defines the jurisdiction of the District Courts of the United States, and confers upon them admiralty jurisdiction, secures to suitors a common law remedy, where the common law is competent to give it. It has been repeatedly held that the State Courts have concurrent jurisdiction of causes of action cognizable in admiralty where only a common law remedy is sought.

The vessel of the defendant, at the time of the Joss, was moored at the wharf at the City of Stockton, where vessels usually lie while loading and unloading. But a portion of plaintiff’s wheat had been taken on board, yvlien the tide receding left the vessel upon the mud in the slough. There happened to be under the vessel a piece of cord-wood which was pressed down into the mud, but which, owing to the weight of the vessel, punched a hole in the bottom of the' vessel, which caused it to fill with water, and hence the loss.

The Court finds, that the damage was occasioned by a large piece of cord-wood, which had sunk to the bottom of the place where the vessel lay; but whether it came to lie there accidentally, or had been placed there by some person, the Court was unable to determine. The parties were both ignorant of its being there, until after the damage had been done; that at the time of the injury the defendant’s vessel was strong and in good condition and sufficient to have safely carried the plaintiff’s goods, but for the accident.

Under these circumstances there can be no doubt of the (r liability of the defendant. A common carrier is not only responsible for negligence, but is an insurance!’ against any loss not occasioned by act of God, the public enemies, or the fault of the party suffering the loss. When loss occurs the burden of proof is upon the carrier, to show that it resulted from one or the other of these excepted cases.

It is not necessary to decide whether defendant would have been liable, had it appeared that the stick of wood had sunk to its place without the interposition of the agency of man. The falling of the tide, leaving the vessel upon the bottom of the slough, must have been anticipated. There was no sudden, unlooked-for physical event, against which no prudence could guard. It does not appear that the vessel could not have been so moored that it would not have been left aground when the tide receded. It may be claimed, with some degree of plausibility, that the defendant would be liable for want of proper care.

Judgment and order affirmed.  