159 F. 755 | D. Me. | 1908
This libel in personam is brought to recover damages sustained June 3, 1906, by the libelant’s barge Jeannie, while being towed down the Kennebec river by the respondent’s steam tugs Perry and Seguin; also to recover damages sustained August 21, 1906, by the libelant’s barge Kmilie, while being towed down the Kennebec river by the respondent’s steam tugs Seguin and Charlie Lawrence.
On Saturday, June 2, 1906, the barge Jeannie completed her loading at the Independent ice house at Pittston. She had on board 2,345 tons of ice, and was drawing 13 feet forward and 13.3 feet aft. She was under the command of Capt. Herbert W. Jellison, a master mariner of 20 years’ experience. Mr. Haley, the superintendent of the American Ice Company at that point, notified the respondent that the barge was ready for sea. Capt. Dingley, the agent of the towboat company at Bath, gave directions for the two steam tugs, Perry and Seguin, to go to the Jeannie on Sunday morning for the purpose of towing her to the mouth of the Kennebec river. Pursuant to this order, the Perry, in command of Capt. Frank Dingley, proceeded to Swan’s Island on Sunday morning. From that point he towed the schooner Hattie to the Independent ice house at Pittston, anchored her in the river, and then went alongside of the Jeannie, which was
, There is a conflict in testimony as to what the talk was between Capt. Dingley and Capt. Jellison in reference to the manner in which the tugs should tow the barge. Capt. Jellison of the barge testifies:
“We had the tug Perry tied up on our port quarter and the tug Seguin was tied up on our starboard quarter.
“Q. By whose orders did they assume those positions, so far as you know?
“A. By their own. They had no orders from me. They placed them there at their own option.”
Capt. Dingley, the master of the Perry, testifies that he arrived at the Jeannie at 8 o’clock on Sunday morning; that she was then headed up river, with her starboard side against the wharf; that he went on the port quarter, threw a line out at each end, and said to Capt. Jellison:
“Take in yonr lines and we will start you down.”
Capt. Dingley testifies as to his conversation with Capt. Jellison as follows:
“He [Capt. Jellison] says: ‘Where’s the other boat? I’m going to have two boats.’ I says, ‘She will be right along.’ ‘Well,’ he says, ‘we will wait until he comes.’ I says, ‘Captain, let us start you along,’ and he says, ‘Not until the other boat comes.’ He says, ‘How are you going to tow me?’ and I says, ‘With one boat alongside and one ahead,’ and he says, ‘No; I am going to tow with a boat on each side.’ I says: ‘Captain, you had better let us tow you that way. We can handle you better.’ But he says, T want a boat on each side.’ I says, ‘Captain, usually when strangers come here, we generally handle them our own way.’ ‘Well,’ he says, ‘you are going to handle me my way.’ I says, ‘If we handle you your way, you ought to be responsible if you have the say about it.’ I says, ‘When we handle them our way, we assume the responsibility; but when we don’t, we do not.’ He says, ‘You are going to tow me with a boat on each side.’*758 I says, ‘You’re the doctor, but,’ I says, ‘let me start you before the tide gets to hawsing.’ I says, ‘It is about high water.’ He says, ‘Wait until the other boat comes.’ I says, ‘The boat was ready to start about the same ■time and she was taking a boat away from Murdock’s, and I was expecting her every minute.’ While we were talking, Mr. Haley says, ‘There she comes now.’ I took my glasses and looked, but it was not the Delia; it was the Seguin. I says: ‘Captain, here comes the boat now. Let us take in our lines and get started.’ So he did, and we got half swung round when the Seguin got there.
“Q. Now, Captain, ‘when you first hud this talk with him, which was when you first reached the barge, what was the state of the tide? A. Very near high water.
“Q. You say about what time you came alongside of him? A. We left the barge about 8 o’clock.
“Q. Did he say at that time anything with reference to whose orders he was acting under about having a tug on each side? A. Yes; his people’s.
“Q. What did he say about his people? A. He said his people ordered him to have two tugs; he was to have two tugs.
“Q. Did he say how the tugs were to tow him? A. He didn’t say anything about having been ordered as to how the tugs was to tow him. ,
"Q. What did you say to him when he said he was going to have a tug on each side? A. I told him it was an awkward way.
“Q. Anything about what effect it would have to have a tug on each side? A. He says they docked me with boats on either side.
“Q. What reply did you make to that? A. I says, ‘Certainly, Captain, that is the only way they can do.’ ‘But,’ I says, ‘we go down a shoal river, and we have to cross the tides at spme points, and a boat alongside cannot do as well as a boat with a hawser over the bow.’
“Q. Did you tell him what advantage the hawser over the bow would have about swinging her? A. I told him we could swing much better with a hawser over the bow than he could alongside.
“Q. Anything said as to whether you ever towed with a boat on each quarter on the river? A. I says, ‘We never towed a vessel down the river that way before.’ ”
Later in the examination, Capt. Dingley further testifies:
“The Seguin came up around his bow. His bow was off. He lay diagonally across the river, swinging very slowly. The Seguin came up and says, ‘Where do you want me; a hawser ahead?’
“Q. What reply was made? A. ‘Alongside.’
“Q. Who said that? A. It was asked a second time, and nobody answered the second time. The second time, I says, ‘The captain says he wants you alongside.’
“Q. And what did the Seguin then do? A. Made fast alongside.
“Q. Whereabouts? A. On the starboard quarter.
“Q. And then you started down the river, did you? A. We did.
“Q. When you got started down the river, at the time you started down the river, what time was it? A. Just as we got swung round, the church bells rung at South Gardiner, and I looked at my clock and it was 20 minutes past 10.
“Q. Then as you went down the river did your boat continue on the port side and the Seguin on the starboard? A. Yes, sir.
“Q. And when you got straight down the river what did you do about going full speed ahead? A. We went full speed ahead where the river was straight and good, and when we came to the turns we would slow up or back, as the case would be, whichever way we would turn.
“Q. Make the turns all right? A. Yes; made the turns all right; a little slow at one or two.
“Q. How did the barge appear to answer her helm? A. Slowly.
“Q. But she did respond, did she? A. She did.’'’
This was the first trip that Capt. Jellison had ever made upon the river. No disaster occurred until the arrival at the black buoy, half
The respondent insists that if the tugs had been attached to the tow in the manner first designated by Capt. Dingley, namely, one forward on a short hawser and the other on the port side, the towage service would have been successfully performed; that in fact it could readily have been performed with one tug forward on a short hawser, and without the aid of a second tug. The testimony on the part of the respondent is that Capt. Jellison insisted upon having the barge towed with a tug upon either side of her, and tha1, with great reluctance, Capt. Dingley towed her in this way. But the testimony falls short of proving an agreement on the part of the libelant to bear the responsibility of this method of towage. The tugboats were not common carriers. When Capt. Dingley found that he was unable to convince Capt. Jellison that the latter’s method of towing was open to serious objection, Capt. Dingley had the right to refuse the tow-age service. If the delay occasioned by the protracted conversation had made it too late to start down the river that day, he had the right to delay the towage service until the following day, when an earlier start could have been made.
In the case of The Naos (D. C.) 144 Fed. 292, 299, this court held that the captain of a tugboat was in fault in starting at too late an hour, “even if he was urged to this delay by the charterer.”
In the case at bar, Capt. Dingley adopted this method of towage without obtaining Capt. Jellison’s assent to assuming the responsibility for it. As to the effect of such assumption of responsibility, if there had been any, it is not necessary for me to consider. Capt. Dingley testifies that he had never towed barges in this way before; and he now says that if he had towed the barge in the method which he had suggested he could have done it successfully. But, having adopted this method of performing the towage service when he had the
In The Margaret, 94 U. S. 494, 24 L. Ed. 146, in speaking- for the Supreme Court, Mr, Justice Swayne held that, although the steam tug performing the towage service was not a common carrier, nor an insurer, it was bound to exercise reasonable skill and care in every particular relating to the work until it was accomplished; that she was bound to know the channel of her home port, and whether, under all the circumstances, it was safe and proper to attempt to perform the towage service; and that if what occurred was inevitable the tug should have forecast it and have refused to proceed.
In Transportation Line v. Hope, 95 U. S. 297, 24 L. Ed. 477, the Supreme Court held that, as a necessary incident to the engagement, the tug assumed supreme control of the tow. In speaking for the court, Mr. Justice Hunt said:
“When the master of a tug undertakes to transport a barge he must apply the means for that purpose. He must furnish the motive power not only, but he must direct her location, whether on the port or the starboard side, whether she shall be the inside boat or the outside boat, when and how she shall be lashed to other boats; * * * and what shall be her course of navigation.”
In The Garden City, 127 Fed. 298, 62 C. C. A. 182, it was held by the Court of Appeals for the Sixth Circuit that the master of a tug is bound to possess such degree of skill and judgment for the protection of his tow as might fairly be expected from a man of his calling under all the circumstances in which he is placed.
In Winslow v. Thompson, 134 Fed. 546, 67 C. C. A. 470, it was held by the Court of Appeals in this circuit that the tug is bound, first, to know the condition of the channels and other waters where she assumes to tow.
In Schuyler v. Tillyer (C. C.) 41 Fed. 477, it was held by the Circuit Court, Eastern Pennsylvania District, that, while the tug did not stipulate for the absolute safety of the schooner, yet she was bound to meet such requirements of her service as would enable her to render it with safety to the schooner. She must know the depths of water in the channel, the obstructions that exist in it, the state of the tides, the proper time of entering upon her service and, generally, all the conditions which are essential to the safe performance of her undertaking. In that case, the court said:
“If she failed in any of these requirements, or in the exercise of adequate skill or care, she is justly subject to an imputation of negligence.”
In the case of The Florence (D. C.) 88 Fed. 302, Judge Coxe, sitting in the District Court, held that it was the duty of the master of a tug to see that the tow is properly made up, and that he must know the conditions of the river, the width of the channel, and the effect of the tide; that he is the pilot of the voyage, and responsible for the navigation of both vessels.
In the case of The Deer, Fed. Cas. No. 3,737, Judge Blatchford says:
“Tbe fact that tlie existence of the sunken pier was known to those navigating the steamboat makes the running of the barge upon it conclusive evidence*761 of negligence, under the circumstances, in the absence of proof of any vis major.”
Tn Thompson v. Winslow (D. C.) 128 Fed. 73, this court quoted these words of Judge Webb in an unpublished opinion:
“The slightest departure from the highest skill and care is almost certain to be attended with loss, and, although the mere fact of trouble raises no presumption of fault, it does call for the sharpest scrutiny of all the attending circumstances.”
In The Somers N. Smith (D. C.) 120 Fed. 572, this court quoted Judge Fox:
“Knowing * * * all these dangers, * * * a much higher degree of skill, care, and attention is demanded of him [the master of the tug] than if he had undertaken the same movement, under circumstances free from danger.”
Moore v. The C. P. Morey, Fed. Cas. No. 9,756, has been called to my attention as a controlling authority. In that case a tug took in tow a schooner and was furnished by the schooner with a frozen towline. The tug asked for a better line. She was told, substantially, to do the best she could with the frozen line. Judge Blatchford held that she did the best she could with it, and there her duty terminated: and he held that the tug was not in fault for any difficulties arising in consequence of the use of the line, provided it was used with reasonable care.
Goodwin v. The C. Durant, Fed Cas. No. 5,552, has also been called to my attention. In that case the tug acted in pursuance of the directions of the libelant, and of the pilot placed in control by the libelant. The action was in contract. The court held that the respondent had not broken the contract of towage.
In the ease at bar the respondent cannot be held as an insurer. The fact that there was an injury is not sufficient to find the respondent in fault. It must be held to the use of the reasonable care exercised by ordinarily prudent mariners under all the circumstances. Tn Th'> Niagara (D. C.) 20 P'ed. 153, Judge Addison Brown held this “reasonable care” to be “such due care and diligence in handling the low as a man of ordinary precaution would exercise in the preservation of his own properly.”
Did the respondent use such care in this towage service? The fact that Capí. Dingley never had towed in this way before, and that he says he was unwilling to do so, are facts that suggest a very close scrutiny into the details of his actual performance of the towage service. Was he in the exercise of such skill as prudent mariners employ when towing a barge with a lug made fast to either quarter? The fact that he was averse to this method of towage does not excuse him from the exercise of reasonable care in performing it. The fact that he knew enough about the dangers of this- method of performing" the towage service to warn the barge is not conclusive on the question whether he competently knew the condition of the channels and the effect of the tides upon a barge towed with a tug on cither quarter, within the meaning of the first proposition of Winslow v. Thompson, supra. The evidence persuades me that he did not uu
In Hall v. Tittle, Fed. Cas. No. 5,939, it was held that steamers-which navigate in a channel with which they are familiar must be held to a knowledge of the currents incident to the state of the water, and they must be held responsible if the}r allow themselves to be driven by such current to the infliction of an -injury.
In The Granite State, 70 U. S. 310, 18 L. Ed. 179, the Supreme Court held that where a vessel had the power to move or stop at pleasure in a channel of sufficient breadth, without any superior force compelling her, the court is not called upon to inquire as to the precise detail wherein the steamer was not managed with nautical skill.
In the case before me it is not necessary to decide which fault in seamanship produced the disaster; nor is it necessary to decide whether the libelant is correct in its testimony that this peculiar method of towing was adopted at the option of the respondent, or whether it was a service urged upon it, as its testimony indicates. The master in control of the tugs adopted a certain method of towage', which he was not at law or in fact compelled to adopt. In the carrying out of such service he must be held to the reasonable care of a prudent mariner.
This case does not present the question which came before the court in Moore v. The C. P. Morey, supra. I have already stated the decision in that case. In the case at bar I will assume, for the purpose of comparison of the two cases, that Capt. Dingley is wholly correct in his statement that the method of towage was urged upon him and that he adopted it reluctantly. I have found that, not being a common carrier, he had the right to refuse such towage service, and that, as a. matter of fact, having adopted this method of towage, he did not perform it with the reasonable skill to be expected of a prudent mariner. In other words, I have found that he did not “do the best he could under all the circumstances of the case.”
Goodwin v. The C. Durant, supra, does not present a case in point. In that case the action was in contract, and the court held that the respondent had not been shown to have broken the contract, in that it
In She case at bar the tugs had full control. Whatever fault then* was in seamanship in coming around the turn wats the fault of the tugs and not of the barge. The testimony is indefinite; but it is sufficient to convince me that if Capt. Dingley had caused the Perry on the port side to begin backing at the proper time, and if the Seguin had continued to go ahead, the movement of the'vessels to port would have been sufficient to escape Thorn’s Head, and to make the mru successfully.
I am, therefore, of the opinion that, in the case of tlie injury to the Jeanuie, the respondent did not, in its towage service, exercise the degree of skill and care that might be fairly expected of a prudent mariner under the circumstances. I hold that the respondent was in fault, and that the injury happened solely on account of the fault of the respondent.
2. The facts relating to the injury to the Emilie are, in substance, as follows: The barge Emilie is a vessel of 1,069 gross tons, 216 feet long, 35 feet beam, and at the time of her injury was drawing 15 feet 6 inches forward and aft. On August 21, 1906, she completed her loading of ice at Pittston. About 12 o’clock the steam tug Charlie Lawrence, in command of Capt. Blanchard, started her from the wharf raid carried her into the stream. The tide was then flowing. Half an hour later the steam tug Seguin arrived in command of Capt. Hogan. The tugs waited nearly an hour before starting, so as to start before high water. The Seguin took a hawser about 20 fathoms in length through the bow chock. -The Lawrence was made fast on the port quarter to help steer. At the time of starting and during the towage service the wind was light from the eastward, and the weather ivas clear. The tugs proceeded down the river. Capt. Blanchard of the Lawrence was standing on the port side of the bridge of the barge forward of the pilot house, while his mate was standing at the wheel of the tug. Capt. Nordell and the assistant engineer were at the wheel of the barge. Capt. Blanchard gave the captain of the barge orders to follow the Seguin. The tugs with their tow proceeded for about three-quarters of an hour under one bell, giving a speed of 2T> or 3 miles, as estimated by Capt. Blanchard, and 5 knots, as estimated by Capt. Nordell. When in the vicinity of Goodwin’s Point, off the southern end of Neliumkeag Island, the barge dragged across a point of rocks, striking a glancing clip and sliding by. The alleged fault in towage is that the barge “was towed violently upon some rock or ledge at or near Goodwin’s Point,” and, further, that the damages and injuries sustained were caused wholly by the negligence and unskillfulness of defendant, its servants and agents controlling the tugs, “in not following the safe channel of said river, instead of towing said barge upon the rocks or ledge aforesaid, and, further, laying a course so near said submerged rocks at Goodwin’s Point as to cause a vessel of the size and capacity of libelant’s barge, heavily .laden, to strike upon said submerged rocks.”
Capt. Nordell, the master of the barge, a mariner of experience, testifies that he was never on the river before; that the Seguin was
Capt. Blanchard, who was in charge of the towage service, has been engaged in service on the Kennebec river for 42 or 43 years, and had been master of the Charlie Lawrence for 24 years. He testifies that he is familiar with the waters at Nehumkeag Island, had sounded there every year, and had not observed any change; that the channel at that point is scant 100 feet in width, and that it carries a depth of 17 feet; that such draft is sufficient to tow a barge of the Emilie’s size; that at the- time of the towage service he supposed the Emilie was drawing 16 feet, when, as a matter of fact, she was only drawing 15 feet 6 inches, both forward and aft; that he asked Capt. Nordell about the steering of the barge, and that the latter said she did not steer very well; that he told Capt. Nordell that he would have to steer pretty fine, as the river was crooked and narrow; that they started about an hour before high water; that he does not know of any better way to handle a barge than the method adopted, with a tug ahead on a short hawser and a tug made fast on the port quarter, because with steam tugs, made fast in that way, they can swing back and forth quicker than they can do with a tug on each quarter, and that they are in the, habit of towing in this way on the Kennebec river; that in towing down the river they have ranges to run by, so as to tell whether they are in the deep water of the river or not; that he steered by such ranges; that as they came down the river the Seguin followed the ranges, but the barge did not.do quite so well; she would vary a little; and when they got to the northern end of Nehumkeag Island, ready to turn, she took a rank and sudden sheer to starboard, towards the island; that he then stopped his tug, which was working under a slow bell; that he reversed his engines and ordered the wheels of the barge and tug to starboard; that the tug’s wheel was rolled over quickly; that he thinks the barge sheered toward the island about 3 points from a straight course down the river; that when she sheered the Seguin hauled to port about 3 or 3% points; that when they checked the sheer to starboard the tug started to go to port, and at that time they were a length or more above the rocks on Goodwin’s Point; that the barge made a rank sheer to port about 3 points from a straight course down the river; that he then ordered his boat to come ahead under a hard-aport wheel, which would tend to twist her off; that at that time
I heard the testimony of the witnesses. When they were upon the stand I saw that they had a careful examination. I have considered the whole testimony with care. I cannot find that the libelant has adduced sufficient evidence to sustain the burden that is upon it to prove negligence on the part of the respondent. Clearly it has not sustained the contention in the libel that the tugs were at fault in not following the channel of the river and in towing the barge too rear the submerged rocks. It is true that the testimony show's the Emilie some 30 feet outside the channel at the time she struck, and that the burden is thus cast upon the respondent to explain this fact. But the fact is explained by the evidence, to the substance of which I have already referred. The whole evidence convinces me that the divergence from the channel was caused by the sheering of the barge. It does not appear that the sheering w'as caused by any negligence on the part of the tugs. It does affirmatively appear that the tugs followed the channel closely; that they followed the ranges along the shore. The courts
In the case of The Bady Wimett (D. C.) 92 Fed. 399, Judge Coxe, sitting in the United States District Court, said:
“Tlie course which the Wimett took was the usual one. * * * When the Niobe encountered the return current near the end of the Erie Basin Pier she took a decided sheer to starboard. The Wimett endeavored to overcome this sheer by every means in her power and would, in all probability, have succeeded had not the chock and cleat given way in succession, leaving the Niobe helplessly adrift. The .court has read the entire testimony, having in mind the allegations of fault against the Wimett and is forced to the conclusion that none of them has been established. * * * The Wimett’s course was not too close to the breakwater. * * * The Wimett was entirely capable of towing a single canal boat to Buffalo and there is no reliable testimony to the contrary. The line was the ordinary length, and the pretense that a bridle was necessary seems wholly without support.”
In The Winnie, 149 Fed. 725, 79 C. C. A. 431, delivering the opinion of the Circuit Court of Appeals, Judge Coxe said:
“The burden was on the libelant to prove fault on the part of the tug; in this he failed. The testimony preponderates overwhelmingly in favor of the claimant to the effect that the tow was made up in the usual way. This being so, we cannot escape the conclusion that liability cannot be predicated of a finding that the tow was made up in an unusual way. The libelant alleged negligence and failed to prove it. It was then the duty of the court to dismiss the libel.
“It is not at all unlikely that the damage was caused by the swells of passing ferryboats, but the court is not called upon to enter the realms of conjecture in an attempt to ascertain how the accident was caused. It is enough for the present cause that the tug did not cause it. * * * The master, according to the great preponderance of proof, exercised' the reasonable care, caution and maritime skill required. The tug was not an insurer, and cannot be held liable merely because the Fermoil received an injury while in her custody.”
In the case at bar it is unnecessary to decide whether the towage would have been safer in reference to sheering if the unaccustomed method had been pursued of putting a tugboat on either side of the barge. The result in the case of the Jeannie a few weeks before created no presumption in favor of that method of towing; and in the
In the matter of the Emilie, I am constrained to find that the libelant has not sustained its contention that the respondent was at fault, either in not following the channel of the river, or in towing the barge too near the submerged rocks, or in any other allegation of its libel. The testimony shows that the tugs were, in fact, following the channel of the river and were not towing too near the submerged rocks. It persuades me that the injury resulted from the sheering of the barge; that this sheering accounts for the barge going out of her course upon the rocks in spite of the efforts of the tugs to break her sheer. In the case of the Emilie, I find that the respondent was not at fault.
The result, then, is that in the matter of the first injury, namely, to the Jeannie on June 3, 1906, I find the respondent at fault. In the case of the injury to the Emilie, on August 21, 1906, I find that the respondent was not at fault.
An interlocutory decree may be entered in favor of the libelant. An assessor may be appointed to assess damages in accordance with this opinion. The libelant may recover its costs.