61 F. 300 | 3rd Cir. | 1894
The libel in this case was filed to recover the value of two coal boats and their cargoes, which became a total loss, on their voyage from Pittsburgh, Pa., to Louisville, Ky., at a point on the Ohio river known as “Deadman’s Island.” The boats and cargoes were the property of the libelants and appellants. As owners, they had made a contract with the owner of the steamer George Shiras for the towage of these boats, and at the time of the loss the Shiras was engaged in performing such contract. The allegation of the libelants is that while “on this voyage down the Ohio river from the port of Pittsburgh to the port of Louisville, under said contract of towage, and at Deadman’s island, the said steamboat [the Shiras], through the negligence of its master, pilot, engineer, and crew, or some thereof, ran the said two boats upon the. shore bar, and the said two boats and their contents became and were a total loss.” It appears from the testimony that the Shiras, having in tow five coal boats and a barge, left Pittsburgh between 9 and 10 o’clock of the morning of February 7, 1890. The tow itself seems to have been properly made up, and the Shiras was in the position usual and customary for towboats on this river, with all of the boats making up the tow in front of her. At the time when the Shiras left Pittsburgh the wind was light, and there was some snow falling. She arrived between 1 and 2 o’clock in the afternoon at Deadman’s island. The wind had increased in velocity, and the snow continued falling, but it nowhere appears that the range of vision was seriously affected or diminished
As is not unusual, the testimony on these points is not in harmony. However, without repeating in full the statements of the several witnesses, and having regard, at first, to the testimony offered by the respondent only, it seems that from official observations taken at the United States weather bureau at Pittsburgh, the day in question,—February 7, 1890,—was, in the early morning, exceedingly cloudy, doubtless presaging the sleet, snow, and rain which soon commenced falling; the wind blowing from the north, but early in the afternoon veering around to the southwest, from which point it continued to blow on into the evening. The wind was brisk from 11 o’clock in the forenoon until perhaps 2 o’clock in the afternoon, the average velocity for the day being about 8-¿ miles per hour. Between 1 and 2 o’clock the highest velocity was registered,'which was 20 miles per hour; but this, the officer in charge of the bureau, declared was a “gust,” which lasted apparently a short time,—only three or four minutes, in fact. Between 12 and 1 o’clock the wind was steady, and its velocity about 14 miles an hour. Down at Deadman’s island the same condition of weather and wind seems, apparently, to have been experienced by the Shiras and her tow. That condition is variously described by the witnesses. Thus, one speaks of the day as a “pretty fierce one,” but “not too bad to navigate.” He declares that the “weather was worse at Deadman’s than anywhere else;” that it was “blowing very hard, and snowing;” that “it kept getting stronger, and blew the hardest three-quarters of a mile above Deadman’s.” Another says “it approached a storm;” and another illustrates the force of the wind by describing the “whitecaps” on the river; and characterizes the weather, generally, by calling it “a pretty blustery night.” And still another says the wind got higher, as the day opened, and blustery, and blew harder at some times than at others. It may be remarked, in passing, that while, the snow storm is generally alluded to in their description of the weather by the witnesses for the respondent, it may be eliminated wholly from this case, as of no importance whatever. There is not a scintilla of evidence, direct or inferential, that the falling snow in any wise contributed to the accident, or formed in the slightest degree a component part of the asserted vis major. The statements quoted above comprise all the material testimony offered by the respondent to sustain this defense. It is admitted that the burden is upon him to satisfy the court affirmatively of the sufficiency of the explanatory excuse. Has this been done? If this evidence be given the most liberal effect, it simply tends to prove that a high wind was blowing at Dead-
“Q. Tell us wlmt occurred niter you sa,w the Shiras. A. Well, what made us notice her was, when they were coming out at the head of Hie-island, they started ahead on her, and Captain McDonald made the remark, something about her going ahead, and 1 think I said to him, T suppose they have flanked too much, and maybe they are going ahead to counteract their flanking.’ _ Captain McDonald remarked something about, them going ahead, and going to kill her. Q. Well, what happened? A. Well, we came on, and stopped our boat, or ran slow, to see where she would go, so that we would know where to go to get out of the road. The i-Onras kept on going ahead, and McDonald told the pilot to toot his whistle, to call his attention to what ho was doing. He did so, but the Shiras kept on going ahead until about Uie time she struck. Could not say .positively whether she stopped before she struck, but stopped about that time. I think she was backing- before the tow went out on the bank.”
And again, on cross-examination:
•‘Q. She was going ahead? A. Yes, sir. Q. At any considerable head of speed, or slowly? A. Going ahead as hard as she could.”
And Mr. Douds, the pilot of the Pierpont, gave the folJowing evidence:
“I first noticed the Shiras. I was on watch, and, as T have stated,—about it being a narrow place in the river,--! wanted to pass Hie Shiras, and for that reason was watching her movements, idlie was stopped, and then started ahead; and I thought perhaps she had stopped her headway too much, a,nd was perhaps drifting on the bar. But she continued to go ahead. The boat did not stop; boat did not; stop; boat going ahead, and tlie boat was crossways of the river. Then she came ahead stronger, and full head; and then I seen something was wrong, and began to sound the whistle,—-sounded tlie whistle two different times, to draw their attention, as I thought they were likely mistaken, and that Hie boat was going into (he bank. Slie continued to go ahead until the coal boat struck the bank, without stopping.”
And again:
“Q. When you first noticed the Shiras, what was her position in the river? A. Well, she was what we would say ‘crosswise.’ Q. Quartering? A. Yes, sir. Coming down such a current, you conic with tlie current, straight in, with your head right towards the shore,—coming right in, straight, of course, with the current, but the 1urn to make; and that requires that a tow should be flanked, because we cannot steer around fast enough to make the turn; as a general thing. We do, on some occasions, sieer; but it is much safer to flank. Q. State whether or not the Shiras did flank. A. She commenced to flank, in the first place, but, instead of continuing on to back, they came ahead on Hie boats. Q. Could you tell wliat boll they were under when they struck tlie bank? A. No, sir; was not in hearing distance of the bells. Q. And why did you give those whistles that you spoke of? A. Because I thought that it was a mistake. We talked of it in the pilot house,—Captain McDonald, and the captain on the boat:,—and seen that it could not be anything- else but a mistake, and that they thought they were backing.”
The statements of these witnesses are more or less corroborated by certain of the deck hands of the Shiras; but, as their evidence was given under objection, it will be disregarded. A much stronger (and, as it seems, conclusive) corroboration is to be found in the un
“Q. Did you have any telephonic communication with Captain Morris after this contract or agreement was made? A. I did. Q. On what day? A. On the 7th of February, 1890. Q. And where were you? A. In C. Jutte & Co.’s office. Q. And where was Captain Morris? A. Mr. Morris told me he was at Economy when I talked to him. Q. Did you talle to him through the telephone? A. Yes, sir. Q. Did you recognize Mr. Morris? A. Yes, sir. Q. What was said? A. The conversation was: He asked if Bill or August were in the office, and I told they were, and he asked me to tell one of them to go down as soon as possible; that he had struck his tow. I inquired from him how it came about, and he said the engineer had made a mistake in the bells, and went ahead, instead of back.”
A similar account of the cause of the accident was given by Capt. Morris to James Slade, the pilot of the steamboat Dave Woods, which was immediately sent down to the scene) of the accident, to render such assistance as she could. Mr. Slade testified as follows:
“Q. Did you ever talk with Captain Morris about the accident while you were there? A. Why, down on the barge, after we landed alongside the stuff, I asked Mr.,Morris how it happened; and he made the statement that, if the boat-had been backing, it would not have happened.”
And again, when Mr. O. Jutte inquired of Capt. Morris the cause of the accident, Capt. Morris gave the same reason. Mr. Jutte testified as follows:
“Q. Did you have any conversation with Mr. Morris? A. Yes, sir. Q. Just tell us where it was, and when. A. It was after I got down to the boat on the Dave Wood. Mr. Morris told me that he noticed the boat going through the water, ahead, and he went downstairs, and asked the engineer why he didn’t give him steam sooner. The engineer told him he had given him steam as soon as the bell rang, and he went forward, and noticed the boat going ahead, and he went back, and looked at the wheel, and he was satisfied that the boat was a-going ahead, and he ran downstairs, and went to the engineer.”
And finally, to Mr. W. C. Jutte, Capt. Morris reiterates tbe same explanation. Mr. Jutte testified as follows:
“Q. Did you have any conversation with Captain Morris? A. Yes, sir. Q. When? A. The evening, right there, on. the boat. Q. Tell us, in detail, what it was. A. I asked Mr. Morris how they come to sink the boats, and Mr. Morris said that it occurred through a mistake of the engineer,—going ahead, instead of backing the boat; that when the backing bell rang the boat went ahead. He said • there was nobody more c'areful than he was. He said he felt the loss as much as we did. He said the boat could not have been in a nicer shape for going through Deadman’s; if they had let her alone, she would have floated through herself; but he thought he would flank her a little more, and they rang backing bell, and the boat didn’t answer as she ought to, and he went back downstairs to see why it was not answered more promptly. And he said he went back into the engine room, and saw the machinery working, but did not notice which way it was working, and he said he asked the engineer why he did not answer sooner. He did not notice which way it was answered until he went upstairs. He went upstairs, and looked around, and the boat was closer to the shore than it was when he went down to the engine room,'—to-the right-hand shore,—and it occurred to him then that the boat was going ahead, instead of backing; that he run back to the engine room, and just about that time she was hitting the bank. Q. Did*307 you have any other conversation? A. I don’t know. We had other conversalions with him. He asked me if we would give him enough tow to go down. Q. Did you have conversations with the engineer about the accident? A. Yes, sir; I had a conversation with him the same evening, and 1 got him to repeat the same thing ihe next day. Q. What was it? A. I asked Mr. Lozier how they come to make the mistake to cause them to sink the boats at Deadman’s,' and here is what Mr. Lozier told me; 1 took it down in pencil. Q. Look over it, and tell us what ho did tell you, taking that as a memorandum. A. I saw, Mr. Lozier, and asked him how lie came to make the mistake that caused him to sink the boat; and Mr. Lozier said the engines were reversed for hacking, and he said the going-ahead hell rang, and he said ho reversed the engines, and set them in motion for going ahead. And he said the engines had been going ahead for about a minute, when Mr. Morris went into the engine room, and asked him what he was doing, and he said the boat was going ahead until she hit the hank. Q. Did you make a memorandum of this conversation? A. Yes, sir. Q. When? A. On the 8th,—the day of the accident. I asked him the same day of the accident the same tiling, when we were there, and 1 asked him the next day, to get him to repent it again. Then I made a memorandum of it again, and repeated it, right in ills presence. Q. Did you refresh your recollection of this conversation from this memorandum you made at this time? A. Yes, sir. Q. Did you see the pilot, George W. Moore, there? A. Yes, sir; l saw Mr. Moore the evening of the accident, and asked him the same thing; and Mr. Moore told me that, if the engineer hadn’t made a mistake, ikey would not have sunk the coal.”
That these statements were made by the men upon the Shims is not contradicted. Capt. Morris alone seeks to explain liis admission by asserting it was simply based upon his opinion, and he bad become satisfied at the lime he testified that he had made a mistake. Kb explanation is offered at all hv the others. In their testimony, it is true, they now deny that ihe Shiras was going ahead, and insist that she was hacking as strongly as she could continuously from the Time she should have commenced to flank. But clearly they are mistaken, for Capí» Morris, noticing that the engine was not backing when the tow was in a critical position ran down from the pilot house to Ihe engine room (to quote his own words) “to see what was the matter. I wanted to know why he was not hacking. There we was, in a very critical position.” So it was evident that for some space of time, when the situation was very critical, the engine was not hacking, notwithstanding the confident assertions of the pilot and engineer to the contrary. It is very significant that the revised ex-pía nations of the accident are given fully two years after it occurred. The damaging admissions were made on the very day it happened, when all Ihe incidents were fresh, and the causes which operated to produce it would hare been perfectly well known and understood. It is impossible to resist the conclusion that this accident must be laid to the mistake or negligence of the Sidras. The attempt to show a vis major has failed to convince, while the preponderance of testimony is that the Chiras ivas not hacking as she should have been at the critical point of her flanking maneuver, but that her engines were going ahead.
In reviewing the testimony in this cause, the fact has not been overlooked that shortly before the Shiras arrived at Deadman’s island the steamboat Hornet, which preceded her about an hour, in flanking this part of the river, had the misfortune to lose a part of her tow by having it cast upon the shore by the force of the storm