HOUGH, Circuit Judge
(after stating the facts as above). It is perhaps unfortunate that so many terms have been used by the courts for describing the kind of excuse presented at bar for inflicting upon an innocent sufferer what the law'ordinarily calls a tort. “Accident” is a very plastic word. Ætna, etc., Co. v. Vandecar, 86 Fed. 285, 30 C. C. A. 48. Vis major, or the act of God (Southern Pacific Co. v. Schuyler, 135 Fed. 1015, 68 C. C. A. 409) has been thought to be identical in meaning with inevitable accident (Bouv. Law Dict., sub nom “Vis major”). The phrase “pure accident” (The Transfer No. 19, 194 Fed. at 78, 114 C. C. A. 155) is not practically distinguishable from “unavoidable accident” (Merrit, etc., Co. v. Cornell, etc., Co., 185 Fed. 262, 107 C. C. A. 367). The most widely accepted phrase, “inevitable accident,” is preferable in maritime law, not only because it is the most commonly used, but because it has acquired, under repeated decisions of authority, a plain and easily stated technical meaning.
[1] It was very early pointed out that the word “inevitable” must be considered as a relative term, and construed, not absolutely, but reasonably with regard to the circumstances of each particular case. Amoskeag, etc., Co. v. The John Adams, 1 Cliff. 404, Fed. Cas. No. 338, citing The Europa, 2 Eng. L. & E. 559. Remembering this limitation, which really signifies no more than that inevitableness is always a question of fact governed by evidence, our courts have, we think, uniformly adopted the rule of The Merchant Prince, L. R. Prob. Div. (1892) 179, and it has been restated at length by Justice Rurton (when Circuit Judge) in The Olympia, 61 Fed. 120, 9 C. C. A. 393, and specifically adopted by this court in a line of cases from The Edmund Moran, 180 Fed. 700, 104 C. C. A. 552, to The Westchester, 254 Fed. 576.
[2] In any discussion of the defense of inevitable accident it is to be borne in mind that that which is to be found inevitable is the injury done to the complaining party. What the law would normally call a tort becomes an accident, if its infliction was inevitable in the sense [195]*195Lacombe, J., ascribed to the word in The Lackawanna, 210 Fed. 264, 127 C. C. A. 80. The law allows the injuring party to relieve himself of responsibility by proving if he can—
“tliat the accident was inevitable in the technical admiralty sense; that is, that it was of such a sort that it would not have been prevented by the use of that degree of reasonable care and attention which the situation demanded. The burden, of course, is heavily upon [the party] asserting such a defense. Sometimes it is established by showing what was the real cause of the accident, * * * and further showing that such cause became efficient without any negligence on the part of” the injuring person or thing.
In the present case the second branch of the rule of The Merchant Prince—i. e., the exhaustion of all possible causes—is not applicable, because there is no doubt as to how the Minch came to go adrift and to continue her drifting. We are concerned only with the question of fact whether the operation of those causes could have been prevented by “reasonable care and attention,” which is but another way of inquiring whether the injury complained of was proximately caused by the force or power over which the party defendant had by the exercise of ordinary care and skill no effective control. And proximate cause also is a question of fact. Muller v. Insurance Co., 246 Ted. 759, 159 C. C. A. 61, citing cases. Nor is the nature of the problem changed by the statement that the conclusion of inevitable accident is “not to be lightly arrived at” (The Bayonne, 213 Fed. 217, 129 C. C. A. 561), which is but a variant of the above-quoted remark from The Lackawanna, that the burden of this defense is heavily upon him who asserts it.
[3] It is not denied that when the Minch went to her mooring place she was properly fastened, even for ordinary spring weather in Buffalo river. Several hours before this disaster conditions evidently demanded additional fastenings, and the master accordingly put out lines, until' he had running from a heavy bridle at his bow an eight-inch harbor towline securely fastened to two spiles on the wharf. Three parts of a six-inch mooring line joined his forward port and starboard bitts to another spile on the wharf, while the connection between the wharf and the forward starboard bitts was further strengthened by two parts of a ten-inch hawser. No attack is made upon the quality of any of these lines, yet, as above stated, they all went at once.
It is used as an argument against the Minch that the other vessels in the river for the most part held to their moorings; but we find as a fact that the Minch was so placed as to be peculiarly exposed to the flood of ice and water caused by the breaking of what was practically a dam at the Ohio street bridge. The other craft encountered the torrent only when its initial force had been somewhat exhausted. Undoubtedly it was the duty of the Minch’s master to take precautions against trouble; we think he did so, so far as the number and placing of his lines was concerned; indeed, the matter is summed up by a statement of one of libelant’s witnesses that the Minch “had lots of lines out”; and when asked, “You don’t condemn the number of lines he had out as too little?” the answer was, “No.”
[196]*196It is next asserted that the lines were not equalized, because, when the. additional fasts were put out, the vessel was not slacked back on the current until all lines were taut. At the time, however, when these lines were put out, the current was not heavy; additional fastenings were provided against what might occur, and the new ropes were tautened by the use of a tackle with two double blocks and the capstan. When libelant’s witnesses (or some of them) say that you cannot do “much more with a tackle than with hand power,” the statement is disproved by the engineering evidence in the record and by common knowledge. Luce’s Seamanship, p. 70 et seq.
But what we deem the conclusive proof that the Minch’s lines were all tarit and all holding at the same time is the fact that they all went together. If they had been unequally tautened, there would naturally have been a perceptible interval between the snapping of the taut lines and that of those that were slack when the taut ones parted.
[4] Criticism of the Minch’s management is also made, in that she had left one anchor out in the harbor. It is proved that such is the ordinary custom of lake craft in Buffalo Harbor and river, and entirely apart from the fact that in harbor waters one two-ton anchor was-obviously sufficient for the reasonably to be expected needs of a vessel of the Minch’s size, we hold as matter of law that it was no fault of the master to comply with the ordinary custom of his trade; to do so was exercisjng that ordinary care and skill which is all that is expected of him.
Finally, it is said that it was negligence to open the compressor and start the anchor without examining, into the condition of the riding pawl. Negligence is never anything more than lack of care according to the circumstances; the circumstances surrounding this episode were that haste was required. It is close to a miracle .that the Minch drifted ' safely, injuring neither herself nor any one else, through two drawbridges and past a double line of shipping.
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HOUGH, Circuit Judge
(after stating the facts as above). It is perhaps unfortunate that so many terms have been used by the courts for describing the kind of excuse presented at bar for inflicting upon an innocent sufferer what the law'ordinarily calls a tort. “Accident” is a very plastic word. Ætna, etc., Co. v. Vandecar, 86 Fed. 285, 30 C. C. A. 48. Vis major, or the act of God (Southern Pacific Co. v. Schuyler, 135 Fed. 1015, 68 C. C. A. 409) has been thought to be identical in meaning with inevitable accident (Bouv. Law Dict., sub nom “Vis major”). The phrase “pure accident” (The Transfer No. 19, 194 Fed. at 78, 114 C. C. A. 155) is not practically distinguishable from “unavoidable accident” (Merrit, etc., Co. v. Cornell, etc., Co., 185 Fed. 262, 107 C. C. A. 367). The most widely accepted phrase, “inevitable accident,” is preferable in maritime law, not only because it is the most commonly used, but because it has acquired, under repeated decisions of authority, a plain and easily stated technical meaning.
[1] It was very early pointed out that the word “inevitable” must be considered as a relative term, and construed, not absolutely, but reasonably with regard to the circumstances of each particular case. Amoskeag, etc., Co. v. The John Adams, 1 Cliff. 404, Fed. Cas. No. 338, citing The Europa, 2 Eng. L. & E. 559. Remembering this limitation, which really signifies no more than that inevitableness is always a question of fact governed by evidence, our courts have, we think, uniformly adopted the rule of The Merchant Prince, L. R. Prob. Div. (1892) 179, and it has been restated at length by Justice Rurton (when Circuit Judge) in The Olympia, 61 Fed. 120, 9 C. C. A. 393, and specifically adopted by this court in a line of cases from The Edmund Moran, 180 Fed. 700, 104 C. C. A. 552, to The Westchester, 254 Fed. 576.
[2] In any discussion of the defense of inevitable accident it is to be borne in mind that that which is to be found inevitable is the injury done to the complaining party. What the law would normally call a tort becomes an accident, if its infliction was inevitable in the sense [195]*195Lacombe, J., ascribed to the word in The Lackawanna, 210 Fed. 264, 127 C. C. A. 80. The law allows the injuring party to relieve himself of responsibility by proving if he can—
“tliat the accident was inevitable in the technical admiralty sense; that is, that it was of such a sort that it would not have been prevented by the use of that degree of reasonable care and attention which the situation demanded. The burden, of course, is heavily upon [the party] asserting such a defense. Sometimes it is established by showing what was the real cause of the accident, * * * and further showing that such cause became efficient without any negligence on the part of” the injuring person or thing.
In the present case the second branch of the rule of The Merchant Prince—i. e., the exhaustion of all possible causes—is not applicable, because there is no doubt as to how the Minch came to go adrift and to continue her drifting. We are concerned only with the question of fact whether the operation of those causes could have been prevented by “reasonable care and attention,” which is but another way of inquiring whether the injury complained of was proximately caused by the force or power over which the party defendant had by the exercise of ordinary care and skill no effective control. And proximate cause also is a question of fact. Muller v. Insurance Co., 246 Ted. 759, 159 C. C. A. 61, citing cases. Nor is the nature of the problem changed by the statement that the conclusion of inevitable accident is “not to be lightly arrived at” (The Bayonne, 213 Fed. 217, 129 C. C. A. 561), which is but a variant of the above-quoted remark from The Lackawanna, that the burden of this defense is heavily upon him who asserts it.
[3] It is not denied that when the Minch went to her mooring place she was properly fastened, even for ordinary spring weather in Buffalo river. Several hours before this disaster conditions evidently demanded additional fastenings, and the master accordingly put out lines, until' he had running from a heavy bridle at his bow an eight-inch harbor towline securely fastened to two spiles on the wharf. Three parts of a six-inch mooring line joined his forward port and starboard bitts to another spile on the wharf, while the connection between the wharf and the forward starboard bitts was further strengthened by two parts of a ten-inch hawser. No attack is made upon the quality of any of these lines, yet, as above stated, they all went at once.
It is used as an argument against the Minch that the other vessels in the river for the most part held to their moorings; but we find as a fact that the Minch was so placed as to be peculiarly exposed to the flood of ice and water caused by the breaking of what was practically a dam at the Ohio street bridge. The other craft encountered the torrent only when its initial force had been somewhat exhausted. Undoubtedly it was the duty of the Minch’s master to take precautions against trouble; we think he did so, so far as the number and placing of his lines was concerned; indeed, the matter is summed up by a statement of one of libelant’s witnesses that the Minch “had lots of lines out”; and when asked, “You don’t condemn the number of lines he had out as too little?” the answer was, “No.”
[196]*196It is next asserted that the lines were not equalized, because, when the. additional fasts were put out, the vessel was not slacked back on the current until all lines were taut. At the time, however, when these lines were put out, the current was not heavy; additional fastenings were provided against what might occur, and the new ropes were tautened by the use of a tackle with two double blocks and the capstan. When libelant’s witnesses (or some of them) say that you cannot do “much more with a tackle than with hand power,” the statement is disproved by the engineering evidence in the record and by common knowledge. Luce’s Seamanship, p. 70 et seq.
But what we deem the conclusive proof that the Minch’s lines were all tarit and all holding at the same time is the fact that they all went together. If they had been unequally tautened, there would naturally have been a perceptible interval between the snapping of the taut lines and that of those that were slack when the taut ones parted.
[4] Criticism of the Minch’s management is also made, in that she had left one anchor out in the harbor. It is proved that such is the ordinary custom of lake craft in Buffalo Harbor and river, and entirely apart from the fact that in harbor waters one two-ton anchor was-obviously sufficient for the reasonably to be expected needs of a vessel of the Minch’s size, we hold as matter of law that it was no fault of the master to comply with the ordinary custom of his trade; to do so was exercisjng that ordinary care and skill which is all that is expected of him.
Finally, it is said that it was negligence to open the compressor and start the anchor without examining, into the condition of the riding pawl. Negligence is never anything more than lack of care according to the circumstances; the circumstances surrounding this episode were that haste was required. It is close to a miracle .that the Minch drifted ' safely, injuring neither herself nor any one else, through two drawbridges and past a double line of shipping. The anchor was a last resort to save the vessel from contacts reasonably to be expected before she would drift more than her own length. Speed was of the essence; the riding pawl had been triced up shortly before. We find it fairly established as matter of fact that the flying cable ends in the windlass room had severed the lanyard; so that the question becomes one, of fact: Was it the absence of the ordinary skill of his calling on the . part either of the mate or the master to fail to.examine the conditions of the riding pawl before opening the compressor ?
The matter is not one of law, but of fact, and we answer the question in the negative. It may be argued thus—that if the mate had examined and tested his machinery including the riding pawl before he started the compressor, and a collision had happened (as it well might) , within the time that would have been required for such examination—■ he would most certainly have been accused of negligence for doing that which it is here said he ought to have done. No trier of the facts can hold an'ordinarily skillful man to such exiguous care.
In conclusion, it may be observed that we are here favored with Judge Hazel’s very careful and' persuasive exposition of evidence [197]*197(largely expert), given in open court. The differences of opinion manifested in the record are acute; in our judgment, most of the criticisms of the Minch’s management are excellent illustrations of how much more accurate is hindsight than foresight. But all that the crew of the Minch were bound to was a reasonable exercise of that foresight which grows out of ordinary skill in their several occupations. This we think they manifested, and conclude that the accident to libelant’s boats was in the technical admiralty sense inevitable.
Decrees affirmed, with costs.