31 F. 481 | D. Del. | 1887
' This suit is for the recovery of damages alleged to have been sustained by reason of unskillful and negligent towage. In the month of December, 1882, the libelant made a contract with the owners of the tug- Argus for the towing of the steam-dredge Ajax and two large dredging scows from Wilmington, Delaware, to Norfolk, Virginia, where the libelant was engaged in dredging for the United States government. The sum to be paid for this service was $700. The dredge was safely towed to Norfolk, and there delivered to the libelant in the latter part of December of the same year. The two scows were a few days afterwards towed down to the Delaware breakwater by another tug belonging to the respondents, and there anchored on the evening of January 8, 1883. Each scow was 100 feet long, 28 feet tvide, 91- feet depth of hold, with a carrying capacity of 525 tons, and had cost, vdien now, in 1881, $4,200. They had recently been calked, and put in good condition, and were strong and seaworthy. It was a part of the original contract that the Argus would furnish the hawsers to be used in towing. No time was expressly limited in which the dredge and scows were to be delivered at Norfolk, but the contract was all in parol, and it was well understood that a prompt performance was required and expected. Capt. Hallinger, the master of the Argus, went on board the scows immediately after their arrival at the breakwater, examined the fastenings by which they were attached to each other, fixed all the chafing gear, put more parceling on the lines furnished by the libelant, parceled his own hawsers, and intended to slart out at once with the tow; hut the indications of the weather being uncertain, and the sky cloudy, he concluded to wait until the next morning, when, if the wind should remain in the same quarter, north-west, and no storm signals were up, he would leave. At about 7 o’clock on the' morning of the 9th the Argus did leave the breakwater with the scows singled out astern. The first scow was at the end of a nine-inch hawser, 75 fathoms long, which was made fast on both bits of the scow, at each corner, and came with the bridle to the center, and then to the 1ug. .The second scow was made fast to the first one by two lines running from the after-corners of the first to the forward corners of the other, and, when thus attached, they were 25 feet apart. When the Argus had gone about 25 or 30 miles on her voyage, a heav}r wind sprang up from the N. N. E., rapidly increasing to a gale, with a thick driving snow storm, which shut out the daylight, and rendered navigation along the coast both difficult and dangerous. It was during this storm that the scows broke loose from the tug, and were lost, the hindermost one going adrift first. One of them -was afterwards recovered in a damaged condition. The storm was of unusual violence, and lasted 21 hours.
The libelant charges that it was gross and culpable negligence on the part of the captain of the Argus (1) to leave the breakwater when he did,
Although the law defining the duties and the extent of responsibility of one who undertakes to perform a towage service was not much debated by counsel, it may be useful to state it as it has been expressed by an authority which must he controlling with this court:
“An engagement to tow does not impose either an obligation to insure, or the liability of common carriers. The burden is always upon him who alleges the breach of such a contract to show either that there has been no attempt at performance, or that there has been negligence or unskillfulness, to bis injury, in the performance. Unlike the case of common carriers, damages sustained by the tow does not ordinarily raise a presumption that the tug has been in fault. The contiact 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 circumstances.” The Webb, 14. Wall. 414.
In The Margaret, 94 U. S. 496, cited counsel on both sides, it was hold that “the tug was not a common carrier, and that the law of that relation has no application here. She was not an insurer. The highest possible degree of skill and care was not required by her. She was bound to bring to the performance of the duty she assumed reasonable skill and care, and to exercise them in everything relating to the work, until it was accomplished. The want of either, in such cases, is a gross fault, and the offender is liable to the extent of the full measure of the consequences.” Such being the admitted law, it is only necessary to inquire whether Capt. Hallingor was guilty of a want of reasonable care and skill in the management of his tow, in any respect, as charged by the libelant.
And, first, wore the state and indications of the weather on the morning of the 9th such as should have prevented a skillful and prudent navigator from setting out with a tow of this description? The libelants testify that (he wind was fresh from tire north-east, and that the indications of liad Weather were so plain that it was unsafe for the Argus to go out. Capt. Hammond, of the tug North America, which was lying at the breakwater at the time, is positive in his recollection of the direction and force of the wind. He says it was blowing from the N. N. E. at the rale of 29 miles an hour; but he qualifies his opinion of Capt. Hal-linger’s imprudence by saying: “Everybody is not alike in their judgment. For my part, I don’t think I would have gone out; but with the boat Capt. Hallingor has, with more buoyancy than my own, he had, of course, to use his own judgment.” The value of Capt. Hammond’s opinion is also impaired by his own action on the 9th. He had received a dispatch from Washington on the afternoon of the 8th, notifying him that a three-masted schooner was ashore, 13 miles south of Ocean City. He went first to the signal station on the breakwater, to ascertain the state of the weather, and then to the pier (at Lewis) after
The Argus and the North America were not the only vessels that left the breakwater on that morning. The revenue cutter Hamilton and the steamer Hector also went to sea, at about the same time, and two schooners came out from the bay, or the breakwater, and sailed down the coast. The Hector returned early in the afternoon, but the Hamilton kept on, and made Lyn Haven roads, inside of Cape Henry, at 9:30 p. m. The pilot of the Hamilton, an experienced navigator, and familiar with the coast, confirms the statement of Capt. Hallingcr that there was nothing threatening in the weather when they left. The Hamilton had no special call to go out, and her officers did not see any signs of the coming storm that raged with such fury later in the day. The pilot thinks the wind was from the north, and moderate, at 7 a. m. The record of the signal offices and light-house stations, on either side of the bay, show some variance as to the direction of the wind. At Cape May point, 15 miles north-east from the breakwater, the wind, at sunrise on the 9th, was light N., with cloudy weather and low surf. At Cape Henlopen beacon light, the entry is, “Cloudy, N. W., [wind,] moderate.” At Cape Henlopen light-house, at 6 a. m., the wind was N., moderate, cloudy weather. At Cape Henlopen station, at sunrise, the entry is, “Fresh breeze, north-east, heavy surf, cloudy.”
It would be useless labor to review the testimony in detail. The depositions are unnecessarily numerous. The crews of the North America and of the Argus corroborate their respective captains, between whom there appears to have been some feeling of rivalry, if not of enmity. Capt. Hallinger’s statement is consistent with collateral facts, and is fairly
A careful examination of the evidence has led the court to the conclusion that the charges of a -want of reasonable skill and qare on the part of the Argus have not been sustained. The Argus was a strong and powerful tug, built and adapted expressly for ocean towing, well equipped, and commanded by a master who had had many years’ experience in the business. He was unfortunate in encountering an unprecedented storm, but he was unable, as wore other masters who went to sea at the same time, to foresee its coming. He did not insure the tow against anything but his own negligence and recklessness. He used his best judgment in forecasting the weather, and cannot be held accountable for the want of infallibility. He considered the risk too great to anchor in shore, and, in the blinding snow-storm, he was unable to find a harbor. He had the right to consult the safety of his own vessel in preference to delivering the scows safely at Norfolk, and was justified in putting out to sea when off a lee shore. “The owner of a vessel does not engage for the infallibility of the master, nor that he shall do in an emergency precisely what, after the event, others may think would have been the best.” Lawrence v. Minturn, 17 How. 100; The James P. Donaldson, 19 Fed. Rep. 266. There is no proof that the hawsers and lines wero insufficient or insecurely fastened. The presumptions are all the other way. The libel must therefore be dismissed.