PARDEE, Circuit Judge
(after stating the facts as above). It is assigned as error that neither under the law of Louisiana nor .in admiralty is there any survivorship to, or right of action in, the libelants, or either of them, under the circumstances set forth in the libel and proofs. There is a very grave doubt whether the libelant J. H. Smith, brother of the deceased, John Smith, can maintain an action for damages for the unlawful death of .the said John Smith. The libel pretends to be for the recovery of wages due the said John Smith, and for certain damages accruing to the said John Smith personally, by reason of his sufferings while drowning; and it is contended that, as these damages accrue to the estate of John Smith, his heirs can maintain an action. So far as the action is for wages, the sum due was tendered in court, but no specific action was taken in relation thereto. The decree rendered below does not show that any part thereof was for wages due the said John Smith, or for .damages due his estate. The right of the libelants, as heirs, to recover either wages or debts due the estate of John Smith, would have been adversely settled upon an exception. However, the objection now assigned was not made in the court below, and, from the view we take of the case on the merits, it is unnecessary to pass upon the said assignment, and we decide nothing in regard thereto.
The evidence submitted on the hearing establishes that John Smith, deceased’, was regularly shipped and employed as a roustabout on the stern-wheel steamboat Electra, then -navigating the Mississippi river and tributaries; and at 7 o’clock p. m. of the 12th of December, 1897, when the Electra, with a barge load of cotton in tow, was descending the Red river, the said John Smith lost his life by falling overboard and drowning. The night was dark. It was known that there were many and dangerous bends in the river. The electric lights with which the steamboat was provided were broken down and could not be used, and in lieu thereof, and to furnish light for the transfer of the cotton from the barge to the boat, lard-oil hand lanterns were supplied and used, which, while inferior to, and a poor substitute for, the electric lights, were the best lights that could be furnished under the' circumstances, and the same kind of lights as were used on all steamboats carrying cotton prior to the introduction of electric lights. In fact, the use of coal oil was prohibited to boats carrying cotton, by the underwritérs. On account of the low state of water in the river, the *523method of bringing the cotton out of Red river was to load the same on barges, which were towed by the steamboat to deeper water, and then the cotton was transferred from the barge, and regularly loaded on the boat. On this occasion the steamboat had two barges in tow, one on each side, each nearly as long as the steamboat. They were as closely and securely lashed to the steamboat as the nature of the case permitted; — -with head line, breast line, stern line, and tow line. Although as securely lashed as the case, would permit, on account of the stretching of lines whenever the boat entered the bend or rounded the same, the barges would swing out, first at the bow, and afterwards at the stern, the distance of 18 inches to 2 feet. At the time in question the steamboat was rounding a bend, but she was under no headway, — merely keeping straight in the stream and floating. In transferring cotton from the barge to the boat, no stage planks were used. Although the business carried on as above is of long standing, there is no proof in the record of any custom to use stage planks on such occasions. What proof there is is to the contrary of such usage, and the reasons given for not using stage planks appear to be satisfactory. The customary method of unloading cotton from barges was, as shown by the evidence of the master of the Eleetra, as follows:
“Q. Did you have, or is it customary to have, in unloading from barges onto the boat, staging between the two? A. No-, sir. Q. Why? A. Because it is always one or Hie other: The cotton on the barge will be higher than the cotton on the boat, or the boat’s cotton will be higher than the cotton on the barge. Therefore we can’t use them. Q. What is the method pursued in taking tiie cotton from the barge onto the boat? A. We roll it as long as— Dump it off onto tiie boat as long as we can. Or, if It Is on a level, we roll it from the barge to the boat; and, after it gets too low below the boat to roll or dump it on there, why, we ship It with the capstan. Q. Have you any employes at the same time on board the boat, and for what purpose, in connection with the cotton, at the same time that men are rolling the cotton off the barge to the boat? A. Yes, sir; we have from four to six men stowing the cotton. Q. How long have you been steamboating? A. I have been steam-boating ever since I was 13 years old, and 1 am -11 years old.”
And this evidence is not contradicted.
Jolm Smith fell overboard and was drowned while cotton was being transferred from the barge to the steamboat, but exactly how he fell overboard is uncertain. Tiie libel charges that he was rolling cotton from the barge to the steamboat, and, owing to the darkness, — want of light, — he, the said John Smith, in endeavoring to step from said barge onto said boat, as he and the rest of the crew had been doing, and not being able to see the space which then existed bel:ween the said barge and the said steamboat, fell overboard into the river and was, drowned. Edward Ross, roustabout, for the libelants, testifies that, “In jumping down from the barge to the boat, Smith did not jump far enough, and went into the river.” Jell Henry Smith, one of the libelants in this case, says that “the barge swung out from the boat as John Smith was rolling a bale of cotton from the barge to the boat; and, by way of being rushed, and no light at all, he goes in this hole between' the boat and the barge.” Charlie Hughes, roustabout, for libelants, says that “the barge swung out, and Smith tumbled and went *524óVetboaríl:’’ -'Heywood Stephens, another witness for libelants, says that' “the night was' dark. The mate was rushing them, and Smith could' not ■' see. ' He stepped backwards overboard.” James W. Doublean, porter of boat, for libelants, says that “the barge swung out, and, in stepping from one bale to another, John Smith missed the bale, and went in between the barge and the boat, and fell into the river.”- George Hawkins, roustabout, for the respondent, says that “Smith -was careless, — stepping and not looking, — and fell in 'between the barge and the boat.” George McCutcheon, roustabout, for respondent, says: “John.Smith rolled a bale of cotton off the barge to me,' and I put my' hook in the bale, — took it away from him; and, as he turned it loose, he turned around, turned away from me, and then stepped down between the boat and the barge.- -He was actually crossing over from the barge onto the boat: He had one foot on the barge and one foot on the boat, and when hé fell he was returning to - the barge.” When Smith fell in the river,' it appears, he went with the current, ahead of the boat. As soon as' the alarm was given, which was immediate, his cries -being heard ahead of the boat, attempts were made to throw him a head line; and as soon as it could be done, under the circumstances, á yawl was lowered, and search made for him, but without avail. It is not disputed that the steamboat Electra, when she Started On the voyage in question, was staunch and strong, fully planned and equipped, and fully supplied with all the appliances required by law, or usual to boats engaged in her trade. The negligence assigned as resulting in the death of John Smith is that the Work of unloading the barge was carried on after dark, and while the .boat whs moving down the river; that the lights furnished were insufficient; that the mate was hurrying up the work; and that no stage planks were used between the barge and the boat. It is not only the common practice, but it is the duty, of the masters and crews -of boats engaged in the river trade, to push their employment, and, when called for, to receive, deliver, and stow freight at night as well as in the daytime. The risks attendant upon such service aré Well known to the people employed, and are assumed by all hands composing the crew. The failure of the electric lights is not shown to have been the fault of the owners, or even of the master, but was an incident common to the employment of such lights. The lights furnished as a substitute were the best that could be obtained, — formerly were considered as fully sufficient for the purpose; and we think no negligence, particularly on the part of the owners, can be deduced from using them. We have already shown that the use of staging in transferring cotton from barge to boat is neither customary nor practical. Under the circumstances, we are unable to hold that the owners of the Electra were guilty of any fault resulting in the death of John Smith. Ho negligence on .their- part' for which they wrere responsible is shown, but the case dóés show that: all the matters complained of were customary perils of navigation,' which. John Smith necessarily assumed when he shipped ón thé. Steamboat. . Howes v. The Eed Chief, 15 La. Ann, 321, is not Applicable here;- That-suit was to recover-the value of a hired slave, *525and was ruled on the law of bailment, instead of on maritime law. The decree of the district court is reversed, and the cause is remanded, with instructions to dismiss the libel.