
    BARRAGON vs. LOUISIANA STEAM TOW-BOAT COMPANY.
    BASTEnil Bist-
    
      February, 1837.
    APPEAL FROM THE COURT OP THE FIRST JUDICIAL DISTRICT.
    A tow-boat will not be liable for injury sustained by the collision of two ships she was about taking in tow, when the fault was in the manner the crew of one of the ships, which was dropping down stream, executed the mameuvre, and when the tow-boat was incapable of preventing the accident.
    The plaintiff alleges, that in July, 1835, the brig Fénix being ready for sea, engaged the defendant’s tow-boat, the Whale, to take her to the Balize; that said boat ordered a large ship, (Girard,) lying two tiers above the brig, to drop down, and take place on the larboard side of the tow-boat, and that, while performing this manoeuvre, the ship and steam-boat not having taken, in time, sufficient measures to check and make fast the Girard, the latter vessel fell astern of her, and finally drove broadside against the Fénix, and done her great injury, to the amount of four hundred and ninety-eight dollars and seventy-seven cents, for which he alleges the defendants are liable, and for which he prays judgment.
    The defendants admitted their corporate capacity, as alleged, and that they were the owners of the tow-boat Whale, at the time of the alleged accident; but deny all the other allegations, and especially any liability, &c.
    Upon these pleadings and issues, the parties went to trial before the court- A survey of the vessel, by the port wardens, was had, and their report produced in evidence. , Testimony was produced, showing the manner of the collision between the two vessels, from all of which the district judge concluded, that the accident, and injury sustained, was not by the fault of the defendants. Judgment being rendered in their favor, the plaintiff appealed.
    A tow-boat ■will not be liable for injurv sustained by the collision of two ships she was about taking In tow, when the fault was in the manner the crew of one of the . ships, which was dropping down stream, executed the manreuvre, and when the tow-boat was incapable of preventing the Accident.
    
      Canon, for the plaintiff.
    
      G. B. Duncan, contra.
    
   Bullard, J.,

delivered the opinion of the court.

This case has been submitted to us without argument on either side. It is an action for damages, alleged to have been occasioned by the fault of the defendants’ agent, while in the performance of a contract to tow a brig, belonging to the plaintiff, from the port of' New-Orleans to the Bafize. The immediate cause of the damage appears to have been this : The ship Girard, which was to have been towed at the samé time, while dropping down stream to get abreast of the brig, which had been placed a tier or two below, took a sudden sheer, and ran foul of the Fénix. The tow-boat had at first started to bring down the Girard, by force of steam; but, from an impression that she was aground, it was concluded to adopt a different course, and the Girard was ordered to drop down stream, along side of the Fénix. This change of manoeuvre cannot, in our opinion, be imputed to the defendants, as a fault for which they are liable in damages, inasmuch .as it appears to b,e quite common, and considered safe, to drop vessels down under such .circumstances. The fault seems to have been in .the manner in which the manoeuvre was executed by the crew of the Girard, at a time when the steam-boat was incapable of preventing the atcident. We, therefore, concur with the court below, in the conclusion that the defendants are not liable,

It is, therefore, ordered, adjudged and decreed, that the judgment of tbe District Court be affirmed, with costs.  