Nos. 920, 921 | 4th Cir. | Nov 10, 1910
(after stating the facts as above). The law applicable to these cases, regarding the tug’s liability to its tow ordinarily, seems not to be seriously controverted; that is, that the towing boat is not an insurer of the safety of the tow, nor has she imposed upon her the obligations resting upon a common carrier, but there is required of those charged with her management the exercise of reasonable or ordinary care, caution, and maritime skill in and about the duties imposed upon and performed by them, and if these are omitted, and 'disaster occurs, the towing boat becomes responsible. The Syracuse, 12 Wall. 167" court="SCOTUS" date_filed="1871-11-18" href="https://app.midpage.ai/document/the-steamer-syracuse-88376?utm_source=webapp" opinion_id="88376">12 Wall. 167, 20 L. Ed. 382; The Cayuga, 16 Wall. 177" court="SCOTUS" date_filed="1873-03-31" href="https://app.midpage.ai/document/the-cayuga-88669?utm_source=webapp" opinion_id="88669">16 Wall. 177, 21 L. Ed. 354; Eastern Transp. Line v. Hope, 95 U.S. 297" court="SCOTUS" date_filed="1877-12-18" href="https://app.midpage.ai/document/transportation-line-v-hope-89600?utm_source=webapp" opinion_id="89600">95 U. S. 297, 24 L. Ed. 477; The Adelia, 154 U.S. 593" court="SCOTUS" date_filed="1873-11-17" href="https://app.midpage.ai/document/the-adelia-93982?utm_source=webapp" opinion_id="93982">154 U. S. 593, 14 Sup. Ct 1191, 21 L. Ed. 672" court="SCOTUS" date_filed="1873-11-17" href="https://app.midpage.ai/document/the-adelia-93982?utm_source=webapp" opinion_id="93982">21 L. Ed. 672.
In the trial, which lasted four days before the lower court, a large number of witnesses were examined, and there was considerable conflict in the testimony-as to some of the important features of the occurrence.” At the conclusion of the evidence, and after arguments of counsel, the court in an oral opinion announced its conclusions and findings of fact in substance as follows:
First. That it is the custom of tugs of the same class as the Dixie to tow five and often as many as eight loaded) barges from Baltimore to Norfolk.
Second. That except in favorable weather, without much adverse wind or sea, they are not able to manage such a tow.
Third. That against a strong wind, a heavy tide, or rough sea they are not able to move such a tow with any speed, and in anything like a storm, or anything approaching a gale, such a tug has as much as Jt can do to save itself.
Fourth. That, in order to conduct such towage with safety, the navigators of tugs should be very observant of the weather, and not run any risks that they could! avoid, and should make for one of the numerous harbors in the bay, which, particularly along the western side thereof, are generally not more than from ten to fifteen miles apart, as soon as it becomes evident that stormy weather is to be expected.
Fifth. That the master of the tug, in the exercise of the degree of prudence and skill required of him, which under the circumstances here was necessary, and without which his tow could not have been safely carried, could have, if observant of the weather conditions, gone into harbor safely, before it was too late.
Sixth. That the weather indications were threatening, and the barometer falling, when the Dixie was passing the harbor of Piankitank.
Seventh. That at the time of passing Wolftrap, about 1:20 a. m., the conditions certainly were alarming. The barometer at midinight had begun to go down rapidly, the wind was flawy, there were indications of severe storm, and on the whole testimony it was reckless not to have gone into Wolftrap, if not into Piankitank harbor, and that a prudent man would have gone into the latter.
Eighth. That Wolftrap is a place where a tug can take her tow to safe anchorage.
And thereupon rendered judgment in favor of' the libelant, from which these appeals were taken.
We readily appreciate the importance of these cases as affecting the large towing business done on Chesapeake Bay, which forms a considerable part of its commerce, and the difficulty presented in having to pass upon the correctness of the judgment of the tug’s navigator, in the’ light of after, as distinguished from the existing, conditions and lights under which he acted. Undoubtedly much latitude must be allowed to a ship’s master in the control of his vessel, and it maj^ be said that his determination as to the proper- manoeuvre to make, or the best and safest course to pursue, should be accepted, unless it seems manifest from a full consideration of all the facts and circumstances that he failed to exercise that degree of prudence, care, and caution that one having ordinary maritime skill and experience should and would have shown in the condition in which he was then placed. The service, to be effective, must be timely, as, here, in many cases, the time within which a given course may be determined on, or adopted!, is all important. With a tow that could not be managed in bad weather it was quite, and indeed more, necessary for the tug to guard against and look out for probable storms, and which it would seem, with the admonition of the barometer and other signs of warning familiar to those navigating the sea, ought reasonably to have been foreseen, anticipated, and provided against than it was to pursue any particular course after the same had arisen, and which, by the tardiness of her navigators, placed her in a position in which she was powerless to protect the tow committed to her care. The Syracuse, 12 Wall. 167" court="SCOTUS" date_filed="1871-11-18" href="https://app.midpage.ai/document/the-steamer-syracuse-88376?utm_source=webapp" opinion_id="88376">12 Wall. 167, 172, 20 L. Ed. 382, supra; The Frank G. Fowler (D. C.) 8 F. 340" court="S.D.N.Y." date_filed="1881-04-30" href="https://app.midpage.ai/document/the-frank-g-fowler-8122194?utm_source=webapp" opinion_id="8122194">8 Fed. 340; The Temple Emery (D. C.) 122 F. 180" court="E.D. Wis." date_filed="1903-04-20" href="https://app.midpage.ai/document/emery-8750713?utm_source=webapp" opinion_id="8750713">122 Fed. 180; Tucker v. Gallagher (D. C.) 122 Fed. 848.
After full consideration and investigation of the record in these cases, we are forced to the same conclusion as that reached by the learned judge of the lower court, that there was no excuse for the failure of the Dixie, in the circumstances in which she was placed, with her information as to the existing condition of the weather, and her warning or opportunities of warning of the impending storm, to dela3>' getting to a place of safety easily within reach, until it was too late for her to protect her tow, and that her omission of duty and negligence in this respect is so manifest and flagrant as to constitute a fault sufficient within itself to account for, and which did bring about, the disaster which resulted in the drowning of the libelant’s intestates.
The witnesses in these cases having been seen and heard by the judge of the lower court, his findings of fact are to be received with the strong-presumption of correctness which usually in admiralty courts is given them (Jacobsen v. Lewis Klondike Exposition Co., 112 F. 73" court="9th Cir." date_filed="1901-10-07" href="https://app.midpage.ai/document/jacobsen-v-lewis-klondike-expedition-co-8745869?utm_source=webapp" opinion_id="8745869">112 Fed. 73, 78, 50 C. C. A. 121; Memphis & Newport Packet Co. v. Hill, 122 F. 246" court="8th Cir." date_filed="1903-04-13" href="https://app.midpage.ai/document/memphis--newport-packet-co-v-hill-8750728?utm_source=webapp" opinion_id="8750728">122 Fed. 246, 58 C. C. A. 610; The Oak, 152 Fed. 973, 82 C. C. A. 327), and independently, our conclusions are in accordance with such findings as
The amounts allowed libelant of $500 for the loss of the life of her intestate John J. Egan and of $3,500 for loss of the life of her intestate John Egan are challenged as excessive. These sums seem to us entirely reasonable under the facts of these cases.
The decisions of the lower court in both cases will be affirmed at the cost of the appellants.
Affirmed.