120 F. 556 | E.D.N.Y | 1903
September 3, 1900, the Atlantic, Gulf & Pacific Company, claimant in the above proceedings for limitation of liability, and libelant in the above action, by Catt, its president, engaged the Messrs. Ruckenbach to tow a dredge and scow, by the ocean route, from Wilmington, Del., to the mouth of the Potomac, at the agreed price of $450, with an additional $150 if delivered. at Washington. September 10th, Edgar F. Ruckenbach advised Catt that the tug Ruckenbach, intended for the service, was disabled. Thereupon Ruckenbach, in his own name and without disclosing the libelant, engaged the tug Moran, of the Moran Towing Company, to tow the dredge to Washington for $600, and he reported accordingly to Catt. Ruckenbach claims that he made this contract at Catt’s request, while the latter insists that it was done upon the responsibility of Ruckenbach, and without notice to him that the tug Moran did not belong to the Ruckenbach firm, although he admits notice of the disability of the tug Ruckenbach, the request on his part that Ruckenbach should find another tug, and‘that the latter
Had the agreement been that the dredge and scow, one or both, were to be towed without risk on Moran’s part, it would not exempt him or his tug from damages for injury caused through his own or his servant’s negligence. The Syracuse, 79 U. S. 167, 171, 20 L. Ed. 382; Deems v. Canal Line, 14 Blatchf. 474, 7 Fed. Cas. 348 (No. 3,736); Vanderslice v. The Superior, 26 Fed. Cas. 970 (No. 16,843); Williams v. The Vim, 29 Fed. Cas. 1413 (No. 17,744a); The Jonty Jenks (D. C.) 54 Fed. 1021, Coxe, J., March 16, 1893. But this rule does not preclude consideration of the fact, as bearing upon the owner’s privity or knowledge, that he was induced to agree to equip his tug for one burden, sent the tug to Wilmington for such service, was there without an opportunity to adjust his equipment to the superimposed duty of taking the scow, and was urged to start the tow in haste. Hence, on Thursday, September 13th, the undertaking began with towing lines that, under the conditions of weather at times ensuing, proved inadequate for the two vessels, however adequate they may have been for towing the dredge alone. The dredge was, in draft, shape, weight, and superstructure, difficult of navigation, especially in seriously disturbed waters. Her tendency was to flounder rather than to founder. The picture, which does not show the true height of her smokestack, will aid the description.
For the purposes of the voyage planking had been nailed outside of the house, so as to come within 18 inches of the top, and about one foot from the edge of the lower deck. The dredge was about 116 feet long, with 35 feet beam. Her sides were square, 9 feet deep, bottom flat, and ends nearly upright. At the working end, the part aft in towing, there was an open cut into the structure, called the ladder well, about 18 feet long and 12 feet athwart ships, the framework ladder at the outer, and carried a revolving cutter cage which could be raised or lowered by machinery. The ladder frame filled the well, and was at the outer end supported by wire tackle running over a high framework, by which it could be raised or dropped for dredging. On the tow, the ladder dragged in the water, being about two-thirds submerged. Thus ranged horizontally, the ladder projected about 22 feet from the after ends of the dredge;
The cutter cage itself was laden on the scow. In the after end of the hull, next the ladder well, was the pumproom, about 30 feet long, between two side bulkheads; then forward of a wooden cross-bulkhead was the engine room, in front of which (with no separating bulkhead) was the fireroom. Forward of the pumproom the fore and aft bulkheads were open, with the overhead deck resting on the stanchions only, supported by a keelson about 2 or 3 feet high. The boilers were 16 feet long and 14 feet high, rising 3 or 4 feet above the deck, and each had a furnace. The hull was box-shaped, and about 9 feet high. Then came a deckhouse, or machine house, 10 or 12 feet high, and some 70 feet long. This came within 4 feet of the sides of the hull. On this was a nearly square pilot house aft, and another upper house forward, with two rooms. The smokestack rose 60 feet above the top of the engine house, and was 64 inches in diameter, and was held in place by steel guys leading fore and aft, and by temporary rope supports at the sides. There were three anchors, one weighing 996 pounds, another 500 pounds, and another 550 pounds. She had a wire bridle for towing. The scow, which was used as a tender, was 65 feet long, 26 feet wide, and 5 or 6 feet deep, with a draft 2 feet forward and 3 feet aft. She was decked over, and carried about 30 tons of spare parts of machinery, and a crew of 2 men. She had a house seven feet high and six feet square. She was attached to the dredge by two lines, each 350 feet long, running from her forward corners. The Moran was a steel tug, built in April, 1900, 94 feet 10 inches long, with 19 feet beam and 11 feet depth of hold. She had a steel deckhouse, with a pilot house on the forward end thereof, and carried an eight or nine hundred pound anchor. Her consumption of coal was five tons in 24
With this ponderous dredge and clumsy scow, the tug made her way to Delaware Breakwater, where, on account of the weather conditions outside, she stayed until Sunday morning, September 16th, when she started down the coast. The weather and sea were favorable, save for a heavy southeasterly swell, which moderated so that the tow went well, until about 10 o’clock on Sunday evening, when, in a heavier undertow, the hawser, which ran from the stern of the tug to the steel bridle of the dredge, broke, causing an hour’s delay. The hawser, which was 200 fathoms in length and about 8 inches in size, was new in the previous May, and had received such use that the tug’s captain requested and received a new 7 or 7J2 inch hawser in July, which had been used sparingly. After the parting of the hawser a line was made fast to the dredge, whereby she was held in position until the bridle of the dredge was drawn aboard by hand, whereupon the tug bent on both hawsers, thereby extending the scope of the line, for the purpose of easier towing, which readjustment gave some of the crew of the dredge the erroneous notion of a second parting of the line at that time. There was no further interruption until the next afternoon. At this time the wind was light, but there was a heavy southeasterly swell, with undertow, and when about a mile inside the Cape Charles Lightship, at 4 p. m., oh Monday, September 17th, the hawser parted again in the older part thereof. After a delay of an hour the line composed of the two hawsers, except as wasted by former partings, was readjusted, and the tow proceeded. On account of the approaching night, the course into Chesapeake Bay nearer to Cape Charles was deemed inadvisable, and the channel nearer to Cape Henry, although some five miles longer, was attempted, the weather at the time being propitious. But the swell ahead grew more violent, the wind increased until it reached 26 miles from 6 to 9 o’clock, 35 miles between 10 and 11 o’clock, and continued at about that velocity while the tug remained with her tow. The tide was strong ebb, with low water at Cape Henry at 9146 p. m., and at Cape Charles at 10:28 p. m. Between 10 and 11 o’clock the smokestack of the dredge fell, and was securely lashed, although the fall injured the pilot house roof and crushed one of the small boats. No vital damage was done. However, the repeated breaking of the hawser permitted the dredge to roll heavily in the sea, and enabled the scow to come against her in a manner calculated more to excite alarm of the crew than to produce essential damage to the scow or dredge. Sometime before 11 o’clock the hawser again parted, this time in the newer part thereof. Thereupon the two men on the scow signaled, and were taken upon the tug. The tug then went alongside of the dredge, and received from her an 80 fathom 6-inch line — upon the offer of the dredge, as the tug claims; upon the request of the tug’s captain, as some of the crew of the dredge state. If the use of this line imputes fault to anybody, as it does not, the master of the tug was the final judge of its sufficiency. The Margaret, 94 U. S. 494, 496, 24 L. Ed. 146. In any case the captain of the tug preferred it to his own hawsers, and used
There is sufficient evidence that the dredge drifted down the coast in apparently good condition, within sight of persons at Currituck life-saving station and Whale’s Head live-saving station, respectively 40 and 45 miles south of Cape Henry, and that her wreckage came ashore at Kitty Hawk, about 65 miles south of such Cape, on Wednesday morning, September 19th. The keeper of Whale’s Head lifesaving station testified that he saw what is now considered to have
The Moran’s abandonment of the dredge, and departure for, and delay at, Norfolk, are not excusable, and the fault is emphasized by her indolent and insufficient search. The excuses are (i) that the tug was in danger from the storm; (2) that it was useless to stand by the dredge, as she could not be retaken; (3) that the crew had abandoned the dredge. The first plea is obviously untrue. The weather on the night of the abandonment was doubtless boisterous, but several tugs anchored their tows in the general neighborhood of the entrance of the bay and kept near them all night, while the Moran, within an hour or two of daybreak, and in the face of no greater danger than brave seamen ordinarily encounter successfully, left the dredge to her fate, and not content, even on a flood tide, within the protecting shelter of the Cape, where the light could be awaited for pursuing and taking up the dredge, did not stop until she had reached the utmost security of Norfolk, 40 miles away, where she renounced practically all effort to reclaim her tow. The pilot boat Relief lay three or four miles inside the Capes, where she had gone that she might lie easier, but her pilot stated that he could have gone outside if occasion required. The tugboat Delmar, with a car float containing 28 cars in tow, during the night, bound for Norfolk, parted her hawser three times about midnight. After the tow anchored, her tug stood by until after daybreak. She was then inside and almost abreast of Cape Henry, and about a mile from the shore. The next morning the Delmar took her tow to Old Point Comfort. One of the Duckenbach tugs, the Ocean King, was towing to Norfolk the barge Brooklyn. She overtook and passed two miles away the Moran about 9 p. m. on Monday, when the latter was southwest of the lightship, between the lightship and the whistling buoy No. 2. The barge, a converted sailing ship, carried 2,600 tons, At.11 o’clock at night the Ocean King, with her tow, was abreast of Cape Henry; between 11 and 12 o’clock her hawser parted, and thereupon the tug anchored the barge by the whistling buoy. -The engineer, a witness from the Ocean King, describes the anchorage as abreast of, and- four miles off, Cape Henry. He stated: “We anchored the barge until daylight so we could pick her up. We couldn’t pick her up that night. We just kept under steam, worked around the barge until daylight, and got her picked up at 6 o’clock in the morning.” At 6 a. m. the weather moderated somewhat, and the Ocean King succeeded in pulling in her tow. Thus it appears that while the other tugs carried their tows into the bay, stood by them through the night, and delivered them when the day came, the Moran, with the morning not far away, left her valuable tow tp float along down the coast to destruction. The Moran was a
“But the claimants of the tug deny that their vessel was in fault, and.insist that the disaster occurred by the violence of the storm and gale of wind which prevailed at the time. If this be so, how did it happen that two of the canalboats that got loose from the fleet survived the perils of that night? One of these boats anchored, and was saved without difficulty; the other, loaded with iron, drifted about, and was picked up the next morning without having sustained any damage. The fact that these boats did not experience any bad effects from the severity of this storm explodes the theory advanced by the claimants on the subject.”
As to the second excuse, it is enough that the dredge was substantially in good condition for some three-quarters of an hour after her crew left her, and while the Moran was circling about her, and she was floating in apparently good preservation when seen all of the next day at various points down the coast. Why could not the Moran have retaken her? Even from the calmer waters of the bay the tug could have waited, and have come up with the slowly drifting dredge, and the moderating-weather conditions favored her recovery. Lastly, it is urged that the fact that the crew left the dredge justified the Moran in abandoning her. That in itself is not a reason for a tug deserting her tow. There might be very good réason for the crew coming off, and yet for the tug to stand by. The crew left her because the tug did not hold the tow. If the dredge escaped, the crew feared the result ; undoubtedly the happenings of the night had made the crew, one and all, fear to stay on the dredge. Surely an apprehension that would lead and justify men going from a ship in danger to a vessel in safety might not justify men in a place of safety deserting the endangered ship and allowing it to float away. There is no intention to suggest that the crew of the tug were cowardly, for they had faced the night almost to its ending; and it is considered that a sense of personal danger for himself, his men, or tug, did not influence considerably the departure of the Moran’s captain. But surely his leaving his tow, almost on the edge of the morning, when it was .floating successfully, and going 40 miles away, and staying away, showed neither good judgment, fidelity to his charge, nor that sturdy and obdurate endeavor to hold onto his tow that the law should demand under the conditions then existing. If the master of a tug may regard the tow as lost whenever there is a hard storm and his hawsers break, and the men on the tow come off, then Capt. Ellis was right. Such action' is far from that cool judgment and dauntless endeavor to discharge his trust that should characterize the master of an American vessel. For the purposes of transportation, the tug has dominion over the tow (Transportation Line v. Hope, 95 U. S. 297, 300, 24 L. Ed. 477), and if in a
The plea is made that the master’s judgment is best and should control. That is a rule to be honored in a proper case (The Hercules ,[D. C.] 75 Fed. 274; The E. Luckenbach, 51 C. C. A. 589, 113 Fed. 1017, affirming [D. C.] 109 Fed. 487; The J. P. Donaldson [D. C.] 19 Fed. 264, 266; The Packer [C. C.] 28 Fed. 156), but should not relieve all offending tugs. When a tug deserts her tow, there ought to be a good reason assigned for it. In the present instance, the master went away without a justifiable motive, without the influence of a warranted apprehension, with his tow afloat and not seriously damaged. He went because he lost hope, and he stayed away for the same reason; yet the evidence does not offer any substantial ground for his hopelessness. Neither danger, nor necessity, nor advantage, nor convenience, constrained the tug to go to Norfolk, or to remain there 17 hours; she obtained nothing but unneeded coal, and, if she needed a hawser, did not even inquire for one, although they were sold there. But whatever she needed she could have obtained in a brief time, and thereupon gone in pursuit. If the shelter of the bay was desirable, and the master was justified in seeking it, how does that, excuse him? To excuse a tug for leaving and remaining away from her tow, there should be proof that the tow was sinking, or past saving, or that the tug was so injured or in such danger that it could not stay or return, or similar condition. Several cases are cited, which do not absolve the Moran, for, where they favor the tower, either the tug was injured or in danger, or the tow was beyond conservation, and departure was justified and return excused. In The W. J. Keyser, 6 C. C. A. 101, 56 Fed. 731, the tug abandoned a barge in the Gulf of Mexico, about 36 miles out from Pensacola, Fla. The latter’s crew went off in a small boat, whereupon the tug cut the towing line and rescued the crew, who represented that the barge was in a sinking condition, was leaking badly, that they were unable to use the pumps, and were unwilling to return to her. Some of the crew stated that the
Neither the tug nor her owner are liable on account of the hawser, or the use made thereof. It is urged that the owner guaranties the equipment of the tug; that is, that he engages absolutely that each line, rope, etc., when properly used shall bear without breaking the strain made necessary by its office, caused by the ordinary violence of wind and weather, and that he will be liable for any damages happening-under such conditions approximately from an unworthy sea line. It would be interesting to discover by what analogy or reasoning a tower not held to be a common carrier (The Syracuse, 79 U. S. 167, 20 L. Ed. 382; The Margaret, 94 U. S. 494, 497, 24 L. Ed. 146; The J. P. Donaldson, 167 U. S. 603, 17 Sup. Ct. 951, 42 L. Ed. 292) is regarded as an insurer of his tug’s equipment. Mr. MacLachlin, in his Law of Merchant Shipping, states the law as follows:
■ “The employment of a steam vessel by the master or owners of another ship, for- the purposes of towage, is a contract which implies the exercise of diligence, care, and reasonable skill in the fulfillment of their engagement by the parties to it on both sides, and their agents and servants, the master and crew of the tug, and the master and crew of the ship in tow.
“The parties to the contract contemplate risk in the performance of it, the risk of winds and waves, and of obstacles, floating or fixed, that lie about or ip their path. They both engage to be ready, armed with diligence, vigilance, and competent skill, against these risks, and besides this, on the part of the tug, with such' a crew, tackle, and equipments as are reasonably, to be expected in a vessel of her class. The Galatea, Swab. 349; The Minnehaha, 30 Law J. Adm. 211, 212. With all this performed, if there be, notwithstanding, Inevitable accident and consequent damage to one of the parties, there is no liability in the other. But neither may by his fault or negligence aggravate i;he risk of the other with injury to him, without liability for the damage accrued, unless the other have contributed to the loss by his own fault or negligence. The Julia, Lush. 224. In all this it is assumed on both sides, when the contract is made, that the risk will be no more than ordinary, under ordinary bad weather.
“But there is no implied warranty on the pa;-t of the tug to bring the tow to the point of destination under all circumstances and at all hazards. The Minnehaha, 30 Law J. Adm. 211. She engages to use her best endeavours for that purpose; but she is relieved from her obligation if she be prevented by vis major, or by accidents not contemplated,- which render performance of her contract impossible. The Minnehaha, 30 Law J. Adm. 211.
“She is not. relieved, however, from her obligation because unforeseen difficulties occur in the completion of her task — because the performance of her task is interrupted or cannot be completed in the mode in which it was originally intended, as by the breaking of the ship’s hawser. But if, in the discharge of her task, by reason of the sudden violence of winds or waves, or other accidents beyond, the control of and without default in the tug, the tow is placed in danger, and the tug incurs risks and performs duties which were not within the scope of her original engagement, she is entitled, on proof of this, if the ship be saved, to. claim as a salvor instead of being restricted to the sum stipulated for mere towage. The Minnehaha, supra; The Pericles, Brown. & L. 60. The Charles Adolphe, Swab. 153; The Albion, Lush. 282; The Robert Dixon, 42 Law T. (N. S.) 344. Such a remuneration under the supposed circumstances becomes her right; but in such circumstances it is not optional with her whether she will render the services — she. is. bound to do*567 so. This is implied in her driginal contract, from which she is not relieved except by circumstances of difficulty that render the performance of it impossible. The Saratoga, Lush. 318; The Minnehaha, supra; The White Star, L. R. 1 Adm. & Ecc. 66.”
In The Syracuse, 79 U. S. 167, 20 L. Ed. 382, and The Margaret, 94 U. S. 497, 499, 24 L. Ed. 146, it is said that the care and skill required of persons in the management of the towing boat must be reasonable. In The J. P. Donaldson, 167 U. S. 403, 17 Sup. Ct. 951, 42 L. Ed. 292, it is stated that “the contract requires no more than that he who undertakes to tow shall carry out his undertaking with that degree of caution and skill which prudent navigators usually employ in similar services.” Notwithstanding the holding in The Francis King, 7 Ben. 11, Fed. Cas. No. 5,042, that, in any case of disaster arising from a failure of the hawser, it is incumbent upon the tug to show plainly that its failure arose from no defect in quality or size, the rule is firmly established that “the burden is always upon him who alleges the breach of such a contract (of towage) to show either that there has been no attempt at performance, or that there has been negligence or unskillfulness to his injury in the performance. Unlike the case of common carriers, damage sustained by the tow does not ordinarily raise a presumption that the tug has been in fault” (The J. P. Donaldson, 167 U. S. 603, 17 Sup. Ct. 951, 42 L. Ed. 292; The Webb, 14 Waii. 406, 20 L. Ed. 774; The Burlington, 137 U. S. 391, 11 Sup. Ct. 138, 34 L. Ed. 731; The L. P. Dayton, 120 U. S. 337, 351, 7 Sup. Ct. 568, 30 L. Ed. 669; The Startle (C. C.) 115 Fed. 555, 560, 561) — although it is said, in The Webb, supra, “There may be.cases in which the result is a safe criterion by which to judge of the act which has caused it”; and the case of a ship towed on a known and easily avoided shoal is instanced as sufficient evidence of unskillfulness or carelessness in the navigation of a tug, in the absence of explanation.
But if it be agreed that the Moran engaged, absolutely and at all events, irrespective of negligence, to have such necessary towing hawser or hawsers “as are reasonably to be expected in a vessel of her class,” there was a further implied stipulation that the hawser should not be subjected to more than ordinary risks. In fact, a hawser is seaworthy when it is sufficient to resist the violence of ordinary winds and weather. When the dredge was lost there was a combination of southeasterly swell, a condition expectable at times at that place, a northwest wind amounting to a gale of 35 miles per hour, a wind not uncommon or usually hurtful to navigators, and an adverse ebb tide, later changing to a favorable flood tide. Such a combination might be expected, as tempests are expected by seafaring men, but it was not ordinary. It was in fact an exceptionally stormy night for towing. Hawsers were broken on two other tows, and several tugs and tows were obliged to anchor or discontinue their voyage, and lie wholly or partly within the shelter of the Capes The law does not contemplate that the owner should provide a hawser that would absolutely hold the dredge under the conditions then existing. Upon the trial, the excellence of the hawser in material and manufacture was shown, although it was condemned by an expert in its final state. Any fragility or impairment of fiber of the hawser was a condition expect
It follows from these views that the duty resting immediately on the owner was discharged as regards the provision of the new hawser, which broke between io and n o’clock on Monday night. The older hawser parted on Sunday night, but the owner had provided a newer and adequate one, which the master could have used at that time. If there was any fault it was that of the master. The older hawser broke again Monday afternoon. But the towing at that time did not absolutely require the use of the old line, and, if there was any negligence in its use, it was still that of the master and not of the owner. The new line was 900 feet long, and, on a sea then disturbed only by a southeasterly swell, it furnished sufficient scope of line for the purposes of safety. The conjoined lines made easier towing and accelerated the voyage, but the owner did not guaranty that he would furnish lines sufficiently long to make the easiest towing or earliest arrival. The greater speed and ease with which the tow was taken along perhaps more than compensated for the detention. The only, harm arose from the detention and injury to the dredge while awaiting readjustment of the hawser after parting, but such injury to the dredge as occurred on Sunday night, and on the afternoon of Monday, was-inconsiderable, and was not the proximate cause of the loss of the barge. Hence, the injury from the use of the old line is confined to-some two hours of delay. How much was gained by the greater scope of hawser afforded by the conjoined lines does not appear, but. the tow traveled from Delaware Breakwater to Cape Charles Light, between 6-a. m., September 16th, and 4 p. m., September 17th, a distance of 125 miles, in 35 hours, including two hours’ detention, or at the rate of more than 34/io miles per hour, with a clumsy dredge and an impeding scow. Such progress was sufficient. It is urged that the failure to-arrive in time to pursue the Cape Charles entrance necessitated the tow traveling five miles farther, whereby she encountered more serious weather. At the time the captain of the Moran decided to pursue the-Cape Henry entrance, there were no unusual storm conditions present or forecast, nor had there been since the tug left the Delaware Breakwater. It would be a stringent rule that would entail upon the tug-all damages arising from a sudden storm which it might have avoided if it had not been detained for two hours by the breaking of the hawser, which had been used in good weather for the purpose of giving-
“There are always many antecedents to a given catastrophe, hut for the existence of which the result inquired about would not have occurred. It is, however, only the direct and immediate cause, under the control of human, agency, which can be judicially considered.” (Citing cases.)
In The E. V. McCaulley, 33 C. C. A, 620, 90 Fed. 510, the disconnection between the negligent act and loss are noticed. In The W. E. Cheney, 6 Ben. 176, Fed. Cas. No. 17,344, there was an interruption of the towing service for two days, and after it was resumed the tow was lost in a storm. The court put the burden of accounting for the deviation upon the tug. The case was one of serious deviation and temporary abandonment, and is quite different from a two-ho.urs detention from the parting of towing lines on a course of 125 miles, during which the use of a hawser too weak for the load facilitated the-towing.
It follows from the foregoing views that the abandonment of the dredge, and continued absence therefrom, on the part of the tug, was-negligent, and was the sole proximate cause of the loss of the dredge, and that the tug is liable for such loss; that the owner of the tug was-without fault, and may limit his liability; that the respondents Messrs. Euckenbach are not liable; that the scow was cut loose by the crew of the dredge, and that no recovery can be had therefor.