112 F. 541 | N.D. Cal. | 1901
This action was brought against the steamer Czarina to recover damages for alleged breach of a contract for the towage of a raft of piles and spars from Puget Sound to the port of San Francisco. The contract, so far as relates to the question involved in this case, is contained in the following offer made by the owners of the Czarina and accepted by the libelant on July 12, 1899:
“ ⅜ ⅜ * We herewith offer to tow the raft now at Puget Sound to San Francisco * ⅜ * for the sum of twenty-seven hundred and fifty dollars' ($2,750); and we to deliver raft at Arctic Oil Works Wharf, or as close thereto as it is possible to get it. Your company to furnish the hawser. This price is on the basis of ‘no cure, no pay.’ Steamship Czarina to be employed for this purpose. We will also furnish free passage for three men by said steamer, and the towing hawser is to be coiled on top of raft upon arrival at destination. ⅜ ¾ *”
The Czarina left Seattle for San Francisco August 26, 1899, with the raft in tow, and so proceeded on her voyage until 6 o’clock on the morning of September 7th following, when at a point a little north of Point Arena, and about 20 miles off the coast, the hawser by which it was towed parted, and the raft went adrift upon the ocean. The raft was recovered by the steamer" San Pedro about three weeks later, 450 miles south of where it went adrift. When recovered it was in a damaged condition, many of its timbers having been lost. The raft was of the value of $80,000, when it left Seattle, and it is alleged in the libel that the timber lost from it while it was adrift was of the value of $8,400. The libelant seeks in this action to recover as damages the value of the timber lost, and also the expense incurred by it in having other tugs search for the raft, and the amount paid for towing it to San Francisco from the place where it was found.
t. It will be observed that under the contract set out in the foregoing letter the right of the Czarina to receive the stipulated sum named therein for towage was contingent upon the successful towing of the raft from Puget Sound to San Francisco. This fact, however, did not affect her obligation to exercise reasonable skill and care in the performance of the contract of towage. As before stated, the hawser by which the Czarina was towing the
2. This conclusion reached, it remains to consider the allegation that the Czarina negligently abandoned the raft when the hawser parted, and did not use reasonable efforts to recover it. The Czarina did not stay by the raft, but immediately after the accident steamed for the coast, and arrived at Point Arena at 11 o’clock in the forenoon of the same day. She did not leave there to search for the raft until the next morning, when she proceeded 40 or 50 miles to sea, returning to Point Arena late in the afternoon, and then steamed up and down the coast for two hours near shore. The next day she again went to look for the raft, and also on the following day. The weather during all of this time was foggy, and the sea was not smooth, except near shore. The evidence leaves no doubt in my mind that it would have been dangerous to attempt, and perhaps impossible, to pick up the raft at the time it went adrift. I am also satisfied that after the Czarina reached Point Arena, on the day of the accident, her master used reasonable efforts to find and recover the raft. The decision of the case must therefore necessarily turn upon the ques-
“The tug undertook to bring to tbis work such prudence and such nautical skill as was ordinarily required in such navigation. More was not contracted for, and more was not expected. When the ice was reached it became necessary to decide whether to lie by or to go on. This involved the exercise of judgment as to what ought to be done under the circumstances. A mere mistake is not enough to charge the tugs with any loss which followed. To make them liable, the error must be one which a careful and prudent navigator, surrounded by like circumstances, would not have made.”
The following cases are also to the effect that a mere error of judgment upon the part of the master of a tug will not render it liable for the loss of the tow, unless the error was 'so gross that it would not have been made by a master of ordinary prudence and judgment. The Battler, 19 C. C. A. 6, 72 Fed. 537; Sonsmith v. The J. P. Donaldson (C. C.) 21 Fed. 671; The James P. Donaldson (D. C.) 19 Fed.
It follows that the libelant is not entitled to recover. The libel will be dismissed* with costs.
112 F.—35