250 F. 956 | 9th Cir. | 1918
The appellee, who was master of the American barkentine Jane E. Stanford, brought on behalf of the owner of the ship and its cargo in the court below the present libel against the appellant tugboat company for damages growing out of the alleged grounding of the ship in crossing the bar at the entrance of Gray’s Harbor in the state of Washington, while being towed by one of the company’s tugs, na,med John Cudahy, of which Chris Olson was at the time master. By stipulation of the parties the controversy between them is here limited to the question of the appellant’s liability for any damages, and to' the right of the libelant to recover certain specified expenses and interest.
It appears from the record that in October, 1910, the ship was at Aberdeen, Gray’s Harbor, having on board a cargo of more than a million feet of lumber and bound for Australia. Needing a tug to cross the bar, the appellant furnished her with one for that purpose, but because of the then condition of the weather towed her to an anchorage within the harbor, where she remained storm-bound for about 3 weeks. The draft of the ship, loaded as she was, was 19 feet and 10 inches forward, and 20 feet and 2 inches aft. While at her anchorage, and with her anchors down, the ship was blown on a spit of Sand Island, from which she was pulled within a few hours by tugs of the appellant company, from which time she remained at anchorage for about 12 days awaiting the abatement of the storm. Finally, and in the morning of the 25th day of October, 1910, Capt. Olson, of the appellant’s tug John Cudahy, made an examination of the bar with the view of taking the ship out, but, returning, reported to her master, Capt. Petersen, that the conditions were unfavorable. At 1 p. m. of the same day Capt. Olson made a second examination, and,
The evidence shows without conflict that at the time he undertook to tow the ship across the bar there was a heavy swell, and that the sea was breaking on it — indeed, it is so admitted in the answer of the appellant. It was from 1 to 2 hours before high tide, and a warning appears to have been given to Capt. Olson that the swell was too heavy by another tug captain of the appellant company, who was preceding him across the bar in the towing of a lighter vessel. Moreover, the evidence shows that as the bar was approached soundings were taken by the tug,' which soundings, however, were not shown — a fact we cannot but regard as very signifidánt. Blit a sounding was taken on the ship which showed 7 fathoms of water, followed by another, just before the ship, struck showing 4% fathoms — the least depth of water found — thereby clearly showing that the sinker there rested on an incline, and within 2 minutes after tlie ship struck she was in deep water. Obviously, therefore, there would have been only about 2 feet of water under the ship’s keel on the crest of the bar had the sea been smooth, instead of which the evidence shows without substantial conflict that there were three great swells encountered right on the bar, which were reasonably to be anticipated, in view of the undisputed knowledge on the part of the-tug’s captain.
We here insert a few lines from the testimony of Capt. Petersen:
“Q. After sounding the second time, Oaptain, with a report of 20 inches of water, what did you do? A. Well, at that time we had set all the sails; that is a majority of the sails. We had all our sails set outside of the skysail. I ordered all the small sails dued up and made fast. After they were fast, I sent all hands to the pumps, everybody, mate and all hands, outside of the man on the lookout. We worked two pumps. I could just hold her by working both pumps; we had then 42 inches in her. * * * That same evening, at 11 p. m., I set the ship’s course for the Columbia River Lightship. At 11 o’clock the nest morning the -tug Oneonda picked us up and towed the ship to Astoria. She was anchored there a day and a half, and then towed to St.*959 Johns and anchored. The next day she wab put into the wharf of the port of Portland dry dock and began to discharge lumber. " * * The ship went on the Oregon dry dock. I examined her on the dry dock.”
The damages sustained by the ship were thus testified to by “Capt. Crowe, surveyor for the Marine Underwriters:
•T examined the Jane It. Stanford. I found the vessel, after putting her on the dry dock, to have apparently hit with her lieei on a sandy bottom. About 30 feet of the outer shoe and ten feet of the Inner shoo on the heel were torn off the whole length; the whole after end of the vessel, extending' to about one-third of her length. The vessel was all shaken, in the seams; the butts along the bottom and all over the vessel were more or less started; the keel in several places on the places mentioned before, the pieces of shoo spilt olf and in some places eat in deep enough to take off or scalp off the keel. In the vicinity of the foremast, underneath the foremast on the port side there were two pretty deep cuts and the planks bruised and cut in two and a quarter inches deep. The keel right opposite that place was slightly damaged, and the shoe for a distance of about 10 feet badly split up; right across the «larboard side of the planks there was one bad bruise, and a score of considerable length; these latter damages were fresh, and had apparently been made by the vessel going upon sharp rocks; also places damaged along the keel to about within 30 feet of her heel; the stem post was found set about one-fourth of an inch in the ship’s counter; rudder not working true; steam pumps out order; I think that comprises about the damage.”
The judgment is affirmed.