109 F. 660 | 9th Cir. | 1901
This is a consolidated suit in admiralty to recover damages for injuries to the American ship Columbia and to the British, bark Ravenscourt, caused by a collision between the two vessels while they were both being towed to sea by the steam tug Tyee, which was owned and operated by the Puget Sound Tugboat Company. The suit of the Columbia was in rem against both the Ravenscourt and the Tyee. The suit of the Ravenscourt was in rem against the Columbia only. The testimony was all taken before a commissioner. It is in several respects conflicting, and the record contains much irrelevant and immaterial matter. The court, after a full hearing, came to the conclusion that the only negligence or fault which could have caused the accident was “bad steering on the part of the Columbia,” and rendered a decree against her for the full amount of damages sustained by the Ravenscourt, to wit, for $7,288.35, and dismissed the suit brought by the Columbia against the Ravenscourt and the Tyee, with costs. 103 Fed. 668.
The other questions raised by the assignment of errors principally consist of objections urged to the following findings of fact by the court:
“That sai<J ship Columbia was towed on the port aide of said tug, and said baric Kavenscourt on the starboard side of said tug. That said tug had sufficient power to tow both said vessels, and it was the common practice on Puget Sound for tugboats to tow two or more vessels together. That the hawser furnished by said tugboat for the towing of said ship Columbia, and used as aforesaid for that purpose, was comparatively new, and had been subjected to a roost thorough test, and found sufficient to sustain a strain many times greater than it would have to bear in towing said ship Columbia in the waters of Puget Sound, and said hawser was carefully and thoroughly inspected by the officers and crew of said steam tug Tyee at the time the same was passed out to the Columbia; and said hawser and all equipment*664 furnished by said tugboat for the towing of said vessels was adequate and sufficient and in every respect suitable for such purpose. That said vessels duly proceeded on their course until after 6 o’clock p. ro. of the day aforesaid (January 22, 1900), at which time they had proceeded nearly twenty-five miles, and were off Alki Point on Puget Sound. It was then dark, and raining, with a fresh southerly breeze and an ebb tide; the wind and tide being favorable to the progress of said vessels on their course. At said time and point a bright light was observed off the port bow of the tug, and immediately thereafter one or more other lights were seen, which the master of the tug at first supposed to be the lights of a tug having a tow; and, not being able to make her out exactly, said master blew several blasts of the tug’s whistle as a warning to the ships in his wake that he was about to change his course, and for them to follow. At the same time the tug changed her course, going to starboard, and after a few minutes the light ahead was discovered to be a sailboat going in the same general direction. Thereupon the tug made an irregular signal by blowing several blasts of her whistle, and changed back to her regular course. In a few minutes after the tug came back on her course, the Columbia’s- towline parted, and within a short time thereafter the Eavenscourt came in collision, with the Columbia, the stem of the Eavenscourt striking the Columbia’s port quarter near her mizzen rigging, causing serious damage to both vessels. That from the time of leaving said port of Tacoma up to the time of said collision the said tugboat Tyee was in all respects properly navigated, steered, and managed; and during the whole of said time the said bark Eavenscourt was at all times steered so as to follow the course of said tug, to remain well on the starboard side thereof, and to keep clear of the proper course of said ship Columbia. That at the time the said tug changed her course to starboard, as aforesaid, the course of said Eavenscourt was immediately changed to follow the course of said tug, and when the said tug resumed its regular course the course of -said bark Eavenscourt was again changed to follow the course of the tug; and the officers and crew of said bark Eavenscourt, at all times after leaving the said port of Tacoma, and up to the time of the collision aforesaid, properly navigated, managed, and steered said bark, and in all respects performed their duties in that behalf, constantly observing the tug ahead of them, and following her, and observing the signals given by said tug, and were not guilty of any negligence, fault, or improper navigation. That the master, officers, and crew of said ship Columbia were negligent in the discharge of their duty, and did not properly navigate or steer said vessel, and did not change the. course of 'said vessel to follow the course of the tug at the time the course was changed, as aforesaid, and did not follow the course of said tug, as it was their duty to do; so that shortly after the changing of said course on the part of said tug, the said Columbia sheered to starboard in such a manner as to cross the towline of the Eavenscourt, and again took a sheer to port, whereupon the towline of said Columbia parted, and the said Columbia fell astern, and came in collision with said bark Eavenscourt, as hereinbefore stated. That said maneuvers of said Columbia and said collision were occasioned wholly by the negligence, carelessness, improper management and navigation of said ship Columbia by her master, officers, and crew, and said Columbia was wholly at fault for said collision, and the said Tyee and Eavenscourt were not, nor was either of them, at fault, or in any way responsible for said collision.”
The contention of appellants that the court erred in finding that the Tyee and its owner were without fault is wholly untenable. The great weight of the evidence clearly shows that the hawser furnished by the Tyee to the Columbia, which it is claimed was defective, was comparatively new; that it had been thoroughly tested and subjected to severe strains without disclosing any defects, and that it was examined by the mate and crew of the tug when put on board of the Columbia. It is true that the mate and one of the crew on the Columbia, who assisted in pulling the hawser
It is next claimed that the tug was negligent in not having a proper lookout. There is no averment in the libel of the Columbia to the effect that the tug was negligent in not having a proper lookout. This issue was not made in the court below. The libelant never asked to have the pleadings amended in this respect. Under these circumstances we are of opinion that this court ought not to be called upon to discuss the evidence upon this point, unless it is clearly shown that the tug did not have a proper lookout, and that the absence of a lookout was the cause of the collision. It is not so shown. It is, therefore, enough to say that, in our opinion, the testimony contained in the record fully supports the view contended for by the Tyee that the absence of a lookout could not in any manner have contributed to the collision.
It is argued by appellant that, inasmuch as the evidence shows that the master of the Tyee saw the Columbia sheer some six or seven minutes before the collision occurred, the tug was guilty of negligence in not warning the tow, or in not stopping the tug. Numerous authorities are cited in support of this contention. It is undoubtedly true, as was said by the court in The Syracuse, 9 Wall. 672, 675, 19 L. Ed. 783, that “a tug with vessels in itow is in a very different condition from one unincumbered. She is not mistress of her motions. She cannot advance, recede, or turn either way at discretion. She is bound to consult their safety as well as her own. She must see that what clears her of danger does not put them in peril. For many purposes they may be regarded as a part of herself. They have the benefit of her traction, and she the burden of their inertia.” The tug did not, however, perform any act inconsistent with its duty as announced in that decision. In The Atlas (D. C.) 12 Fed. 798, the court held that it was the duty of the captain of the tug, when he sees his tow steering directly into danger, to warn hey against it. As a matter of fact, the evidence shows, as the court found, that a warning was given by several irregular, short, sharp blasts of the whistle when the tug changed its course. The Columbia was not steering into an unknown danger, as was the case in some of the authorities cited by appellant. Every case must, of course, depend upon its own peculiar facts,, The Tyee did not have it within its power to steer either the Colum
It is contended that the tug was at fault in not giving more explicit instructions to the respective vessels as to the meaning of its signals. The card of signals furnished to the vessels did not relate to the general navigation of them. It simply furnished certain means of communication with them by the tug. Two whistles were the signal to set the square sails, and four whistles to take in and furl sails. There were also other signals, to be used in foggy weather. As a matter of fact, no sails were set on either of the vessels under tow, and the weather was not foggy. It was raining, but there was no fog. It cannot, therefore, be consistently claimed that any of the officers or of the crew on board of the Columbia were confused or misled by the blasts of the whistles. The whistles of the tug were irregular, and were evidently to attract the attention of the tows to the change of the course made by the tug, and it is not to be presumed that the officers of the Columbia were unacquainted with the whistles given by tugs in approaching other vessels. The evidence, in its entirety, clearly shows that the whistles were correctly understood by the officers of the Kavenscourt, and ought to have been understood by the Columbia. Our conclusion is, •after reviewing the evidence, that the Tyee was not in any manner at fault, and cannot be held responsible for the collision.
Did the court err in holding that the Kavenscourt was free from any fault or negligence? Did the court err in holding that the Columbia was wholly at fault? What caused the collision? These 'questions may be grouped together. It is earnestly argued by appellants that the Kavenscourt was negligent in this: that her helm was put hard a-starboard, instead of hard a-port, just prior to the time of the collision. To determine this question, we must look at the facts as they are presented in the record, and ascertain the conditions by which the bark was surrounded. What were the
“The rules of návigation are ordained, and required to he observed, to save life and property employed ■ in marine pursuits, and not to promote collisions, or to justify the wrongdoer when such a disaster has occurred. The Sunnyside, 91 U. S. 210, 23 L. Ed. 302. Ships and vessels engaged in commerce ought to observe the rules of navigation in all cases where they apply; and it is safe to affirm that they always apply when there is impending risk of collision, exc'ept in special cases, where their observance would tend to promote what they were ordained to prevent, or vTtere special circumstances render a departure from them indispensably necessary to avoid immediate danger.”
It was in the dusk of the evening when the collision occurred. The time between the first signal of the tug and the collision was very short. There was but little time for consideration. The master of the Ravenscourt saw the Columbia coming towards him broadside on, with the hawser fouled in the stern of the Columbia. Unless something was immediately done, the two vessels would be pulled together by the hawser. If he had ported his helm, and attempted to go astern the Columbia, the vessels were bound to collide. It was under these circumstances of great peril that the master of the Ravenscourt attempted to put his bark on a parallel course with that of the Columbia. The evidence tends very strongly to show that the collision could not have been avoided at the time the helm of the Ravenscourt was put hard a-starboard by any course of management on the part of the bark. The Ravenscourt, previous to the peril in which she was placed by the maneuvers of the Columbia, was not guilty of any fault whatever. "She was pursuing the course of the tug, as it was her duty to do. Prom a position of apparent safety, she was, on account of the extraordinary maneuvering on the part of the Columbia, put in great peril. A collision then seemed inevitable. The question of negligence, therefore, does not depend upon whether the Ravenscourt, in this sudden emergency, pursued the best possible course to avoid the danger. It is certain that her conduct at that time neither caused nor aggravated the collision, and that, in the light of all the facts, she should not be held guilty of any negligence. Of course, it was the duty of the Ravenscourt, when she was placed in great peril by the movements of the Columbia without any fault on her own part, to avoid' the collision if she could; but, when a vessel is placed in a perilous position through the fault of another vessel, she is not to be held to strict rules of navigation. In such cases a mistake made in the agony of almost certain collision is regarded as an error for which the vessel that caused the peril should alone be held responsible. In The Nichols, 7 Wall. 656, 666, 19 L. Ed. 157, Mr. Justice Clifford, in delivering the opinion of the court, said:
“Remaining proposition of the appellant is that the hark is also in fault, because her helm, just before the collision occurred, was put to starboard. But it is clear that the error, if it was one in that emergency, was produced by the impending peril, wffiich is justly chargeable to those having the control and management of the other vessel. Mistakes committed in such mo*669 ments of peril and excitement, when produced by the mismanagement of those in charge of the other vessel, are not of a character to relieve the vessel causing the collision from the payment of full damages to the injured vessel.”
In The Carroll, 8 Wall. 302, 306, 19 L. Ed. 392, the court said:
“The safeguards against danger, in order to he effectual, must he seasonably employed, and in this case they were not used until the. danger was threatening. If there was fault on the part of tiio schooner, the steamer committed a far greater fault in suffering the vessels to get in such dangerous proximity at the moment preceding the collision; and, as she has furnished no excuse for this misconduct, is chargeable with all the damages resulting from this collision.”
To the same effect, see: The City of Paris, 9 Wall. 634, 638, 19 L. Ed. 751; The Falcon, 19 Wall. 75, 78, 22 L. Ed. 98; The Sea Gull, 23 Wall. 165, 181, 23 L. Ed. 90; The Blue Jacket, 144 U. S. 371, 391, 12 Sup. Ct. 711, 36 L. Ed. 469; The E. A. Packer (C. C.) 49 Fed. 92, 99; The Mexico (D. C.) 78 Fed. 653, 656.
The collision was directly attributable to the fact, clearly proven, that the Columbia was improperly and negligently steered. All of the witnesses on board the Ravenscourt and the tug who were in a position to witness the steering of the respective vessels testified that just prior to the collision the Ravenscourt was at her proper place, following the course of the tug, and that the Columbia steered first to starboard, and then to port. The testimony of these witnesses was fully corroborated by several of the officers and crew of the Columbia.-
Fred Williams, who was a seaman on board the Columbia, testified that it was his lookout, and that he was on the forecastle head when the collision occurred; that he heard the whistles “four toots quick”; that shortly thereafter he heard two whistles again.
John Jamieson, who was a sailor on the Columbia, and called as a witness on her behalf, upon cross-examination testified as follows:
“Q. Now, just a little bit before the eollision, you heard the tug whistle four short, sharp blasts? A. Yes, sir. Q. And just before that, did you notice the ship sheer off to starboard? A. Yes. I noticed she took a sheer to starboard. Q. She took a big sheer to starboard? A. Yes, sir; she took a sheer to starboard. Q. Then, right after that, yo-u heard the tug blow these sharp whistles? A. Yes, sir. Q. Then did you see her take a big sheer buck to port? A. Yes, sir; she swung back to port. Q. Then, as she swung hack to port, you saw the sparks of lire coming out of the wire? A. Yes, sir; the hawser carried away then.” And on his re-examination he testified: “Q. Where was the Ravenscourt when the Columbia took the sheer to starboard, —in what placo was she? A. She was about astern. Well, when we took a sheer to starboard, we were apt to get across his hawser, you know,- — to got on top of his hawser. Q. Was she off to the port quarter or right in yo»r wake, as far as you know? A. 1 seen, when we took the sheer back, she was going on the port quarter, sir. We took a sheer hack to port, and, of course, we were diagonally right across his hawser. Q. Was his hawser then around your stern? A. No, it was underneath her bottom. We were on top of it. Q. What caused the sheer to starboard? Was it the fact that she had her hawser around you? A. I could not tell you that. Bad steering on account of us, I believe. Q. That she had steered into you? A. No, had steering of ns. When we took a sheer-to starboard, the English ship is not steering us, sir. We got to steer ourselves. * * * Q. When you saw her steered to starboard, you kind of put it up that the Columbia was steering*670 badly? A. That is what I did, sir. Q. But you did not know what caused it? A. The fact is, I knew it, sir, because I seen it. Q. You saw what? A. I seen the steering bad.”
Patrick Byan, who was steering the Columbia, when called upon as a witness on her behalf, testified upon cross-examination as follows:
“Q. Your directions were to follow the tug? A. Yes, sir. Q. Keep her on your starboard bow? A. Yes, sir. Q. Did you see the tug change her course just before the collision? A. 1 did; yes, sir. Q. How many times did she change it? A. Well, that was the only time, during my spell at the wheel, that she changed it; just that time. Q. In what way did she change her course, — in what direction? A. She changed it to starboard. Q. Did she afterwards come back to her original course? A. No sir; not after the collision. Q. Then, she was still on this changed course to starboard at the time of the collision, was she? A. Understand what I mean by starboard, sir. She crossed over from our starboard bow over to the port bow, you see. Q. Her change was to port? A, Her change was to port, and I had to starboard the helm to try to meet her. Q. That is the only change you saw,— that one change? A. That was the only change, and that happened just a little while after she blowed her whistle. Q. Let me see if I do understand you. You say you saw the tug change to go to port. Is that right? A. Goming to my port, and I would have to starboard to meet her. When the tugboat shifted her course, I had her almost on a straight hawser. I had the tugboat here (showing), and now he changed his course, and came right over here (showing), and here we are. He comes over here, and I starboard my helm, and then before that he blows four whistles. Q. Now, was the change of course to starboard or to port? A. To port. Q. That is what I want to get at. A. I would have to starboard the helm tp meet that. Q. And that was the only change you observed? A. Yes, sir. Q. No other change was reported by the lookout or the officer of the deck to you? A. No.”
James B. Wilson, the first mate of tbe Columbia, was called as a witness on her behalf, and upon cross-examination testified as follows:
“Q. Now, the two vessels, the Colúmbia and the Ravenscourt, if they had been properly steered, and kept proper lookouts, they would have no difficulty in following the tug, would they? A. There would not have been any need for a collision if they had been kept in the proper position as they ought to. Q. The duty devolved entirely on the vessels in tow to do their own steering; —to take care of their course. * * *? A. Each one is supposed to steer right after his light, to keep him at a certain point on our bow. Each vessel is supposed to be kept there, and not to run across one another. Q. They are required to follow the tug? A. Yes, sir. '* * * Q; Every time the tug had occasion to change its course, it would be the duty of each of these vessels— A. To follow it. Q. To follow the tug? A. Yes. * * * Q. Now, in that case, if the tug went to port, and the Ravenscourt, which was aft of you, and following the tug, and you did not, but continued on your course, you would cross the hawser of the Ravenscourt, would you not? A. I would in that ease, sure. Q. That is what I mean. If the tug should right her course again, and you did not promptly right your course, in that event you would be thrown on the starboard side of the Ravenscourt, would you not? A. Yes, we would.”
The court’s finding upon the point that the collision was caused solely by the bad steering on the part of the Columbia is fully sustained by the evidence.
It is claimed that the damages allowed are excessive. ■ The amount of damages which the Bavenscourt suffered for repairs was stipu
“The stipulations of a charter as to the rate of demurrage is not. I think, competent legal evidence in favor of the owner, in an action brought by him against third persons for damages by collision.”
In Orhanovich v. The America (C. C.) 4 Fed. 337, 342, the opposite rule is expressed. The commissioner to whom the matter was re
“But why may not a rate of demurrage, fixed by the vessel’s charter, and established by the rules of the maritime exchange, and which, therefore, would have been conceded to her if delayed by her charterer, be taken as a measure of fair compensation for a similar loss caused by the act of a wrongdoer?”- .-.-.'...-a..,.. ,
In The Silica v. The Lord Warden (C. C.) 30 Fed. 845, the commissioner appointed to ascertain the damage suffered by the delay allowed demurrage ,at the rate of $92 a day, the amount stipulated in the Silica’s charter party, for time lost while undergoing repairs. To this counsel for the Protector excepted on the ground that the Silica was not entitled to more than the actual damage suffered. The court said:
“The exceptions must be dismissed. The rule adapted by the commissioner for ascertaining dámages from delay is, under the circumstances, the proper one.”
Taking the facts of this case into consideration, we are of opinion that the evidence as to the provisions of the charter party was competent to be admitted. Conceding that it may not be conclusive in all cases, it nevertheless makes out a prima facie case, which, in the absence of any proof to the-contrary, justifies the rendition of a decree in accordance therewith. The court did not err in allowing the damages.
Objection is made to the entry of a decree against the surety Boole at the same time that it was entered against the claimant. This objection cannot be sustained. The bond was given under the provisions of section 941, Kev. St., which provides as follows:
“-Such bond or stipulation shall be returned to the court, and judgment thereon, against both the principal and sureties, may be recovered at the time of rendering the decree in the original cause.”
In The Belgenland, 108 U. S. 153, 2 Sup. Ct. 864, 27 L. Ed. 685, it was held that the final decree in such cases may be entered against both principal and sureties at the time of its rendition. The decree of the district court is affirmed, with costs.