19 F. 264 | E.D. Mich. | 1883
I will proceed to consider the several allegations of negligence charged against the master of the propeller.
1. In regard to tho general course of the tow in leaving Buffalo. Tho usual and ordinary course up the lake from Buffalo to the mouth
There is a great conflict of testimony as to the propriety of the course taken by the tow in leaving Buffalo. Some vessels which left on the same day took the northerly route and gained shelter behind Long Point. Others took the southerly route and made the harbor at Erie before the gale struck them. I think it is clearly one of those cases where the master might, in the exercise of sound judgment and reasonable discretion, have taken either course without being chargeable with negligence. His choice, of course, was largely dependent upon the season of the year, the state of the weather, the velocity of the wind, the probability of a storm, and the proximity of harbors of refuge, and we are not inclined to review his judgment in that particular. The disaster which betel him undoubtedly tends to show that he made the wrong selection, but the propriety of his action must not be determined by the result. He can only be chargeable with negligence when he takes a course which good seamanship would deeA unauthorized and reckless. “The owner of a vessel does not engage for the infallibility of the master, nor that lie shall do in an emergency precisely what, after the event, others may think would have been the best.” The Hornet, (Lawrence v. Minturn,) 17 How. 100; The Star of Hope, 9 Wall. 230; The W. E. Gladwish, 17 Blatchf. 77, 82, 83; The Mohawk, 7 Ben. 139. The Clematis, 1 Brown, Adm. 499.
Libelants also claim in this connection that the propeller could either have crossed the lake and taken refuge under Long Point, or could have come about and returned to Buffalo as the master saw the storm approaching. I do not think he was bound to do this. So long as he could make his way against the wind he was as likely to make the harbor of Erie in safety as he was to make Long Point; indeed, it would seem, with the wind blowing a gale from the S. W., there would
2. In not keeping further from the shore as the propeller approached Erie. It is charged in this connection that Capt. Towle was under the influence of liquor that afternoon, and left the deck at the time he was most needed, to a mate who had no knowledge of the shore at that point. There was no question made of Capt. Towle’s general competency, and I can see nothing to criticise in his management of the steamer after ho took command. The charge of intoxication rests upon his admission that he drank in a saloon on the day he left Buffalo; that he had sent on board a jug of whisky as a part of the sea-stores which lie kept in his room, and that there was an empty whisky bottle found on the floor the morning after the accident. Webster, the steward, who found the empty bottle, testified that the captain’s appearance that night indicated to him that lie had been drinking; that his eyes were red, and he looked stupid. But he says lie saw nothing otherwise to indicate that ho had been drinking, and that this appearance might have been owing to his facing the storm. This is also corroborated by the testimony of one or two others of the crew, who confessed to having quarreled with Capt. Towle. It is denied, not only by Capt. Towle himself, who swears that he drank nothing that day, and that there had been no whisky in the bottle for three months, but by all the rest of the crew, who swear that they never saw or beard of his drinking too much while upon the propeller. It is pertinent m this connection to notice that the pleadings give no intimation that such an accusation was contemplated, nor was it suggested by the libelant in his testimony before the steam-boat inspectors at Port Huron, who inquired into the cause of the loss. Upon the whole, it does not seem to me that the offense has been proven. So grave a charge as this ought to be substantiated by something more than trifling incidents which are quite consistent with another theory, and the testimony of two or three disaffected men, contradicted, as it is, by nearly the entire crew.
The most serious question in the case is whether the propeller kept her tow as far away from the shore as she should have done under the circumstances. As I have already observed, I do not think the master was hound to contemplate the contingency of turning about and going to Buffalo, or of crossing the lake under a beam wind and seeking shelter at Long Point, when he was already so near to Erie, but he was bound to keep far enough from shore to escape the danger of running upon the reef at that point as the wind and sea then were. Capt. Towle’s watch ended at noon, but as the weather was heavy he remained on deck until 5 o’clock, when he left
This includes all the charges of negligence which were urged upon the argument. In my opinion, the loss was occasioned by a peril of the sea. 'The disaster occurred during the prevalence of the worst storm of the season of 1880. All the ship-mastérs who were exposed to it united in pronouncing it a “living gale of wind, ” and one of the most.sudden and violent within their memories. The report of the signal service filed characterized it as “a furious westerly gale; a thick, blinding snow storm.” Such was its violence, at the very time the Donaldson was struggling off the shore, that the steamers which had taken refuge under Long Point were obliged to keep their engines working at full speed, and even then could not hold themselves up to their anchors, while at least one barge was lost there. In Erie liarboPunother powerful steam-barge, during the same squall, had-to let go her barges, because she could not hold them. With such weather as this in sheltered roadsteads, it is easy to conceive the peril to which the Donaldson with her tow was exposed in making their way along the open lake, with furious squalls driving them directly upon a lee shore. While the conduct of the tow may not have been above ,a searching criticism, we think it quite apparent that it would have been useless to contend against the furious squalls from the N. W. ; and that the propeller cannot be justly held in fault for abandoning her tow and seeking safety where she could find it. Indeed, it was not claimed but that the abandonment, when actually made, was not necessary to save the propeller.
, -3. But it is urged by libelants that even if the propeller be exoner
“The rights of private property, sacred as the law regards them, are yet subordinate to the higher demands of tlxe public welfare. Solus popidi suprema esl lex. Upon this principle, in cases of imminent and urgent public necessity, any individual or municipal officer may raze or demolish houses and other combustible structures in a city or compact town, to prevent the spreading of a destructive conflagration. This he may do independently of statute, and without responsibility to the owner for the damages he thereby sustains.”
It was said, so long ago as the reign of Edward IV., that “by common law every man may come upon my land lor the ‘ defense of the realm.’ ”
In the Saltpetre Case, 12 Coke, 13, it is said that “for the commonwealth a man shall suffer damage; as, for saving of a city or town, a house shall be plucked down if tlae next be on fire; and the suburbs of a city in time of war, for the common safety, shall be plucked down,— and a thing for the commonwealth every man may do without beiixg liable to an action.”
In Mouse’s Case, Id. 63, certain passengers upon a ferry-boat from Gravesend to London cast overboard a hogshead of wine and other
In the case of The John Perkins, 21 Law Rep. 87, Mr. Justice Curtis decided a case which involved somewhat the same principle as the one under consideration. In this ease one of the crew of a fishing schooner cut her cable in order to prevent a collision with another vessel and the destruction of both, and claimed a general average contribution for the loss of his cable and anchor. Judge Curtis dismissed the libel, saying that, in his opinion, the only subjects bound to make contribution are those which are united together in a common adventure and placed under the charge of the master of the vessel, with authority to act in emergencies as the agent of all concerned, and which were relieved from a common peril by a voluntary sacrifice made of one of those subjects. The only opinion I have found to the contrary is that of Casaregis, an eminent civil law writer, who puts the case of the destruction of a vessel in port, lying near to another vessel which is on fire, to prevent the flames from spreading and being communicated to other vessels. He considers the compensation to the owner of the vessel thus destroyed as a proper subject of maritime contribution by the owners of the other vessels and cargoes which were saved from the impending peril. Disc. 46, No. 4563. I have found this opinion wholly irreconcilable with the opinion of.Mr. Justice Curtis above quoted.
Prom this review of authorities it is quite apparent that the doctrine of general average contribution arises from the peculiar relations existing between the ship and her cargo. Mr. Lowndes finds the underlying principle in the agency of the master to act for the owner of the cargo in cases of unforeseen danger. Lowndes, Av. 14-16. This would clearly have no application to the case of a vessel whose master remains in command of his own ship, and usually has no opportunity of conferring with the master of the tug in emergencies of this description. The master of the tug is in no sense the agent of the tow for any such purpose.
The difference between the relations of a ship to her cargo and those of a tug to its tow will not escape the observation of the most casual observer. Ordinarily, the master of the ship has but a single duty to perform, namely, the delivery of his cargo to the consignee; and for the time being, and for that purpose, the owner of the cargo
On the other hand, if the cargo be once laden on board, the master has the right to carry it to its destination and detain it for payment of freight. Even if the voyage be temporarily interrupted or broken up, he has the right to tranship the cargo and forward it by another vessel. From the intimacy of their relations, from the common danger incident to their common adventure, and to prevent the master from sacrificing the cargo at the expense of the ship, there is attached the further anomalous feature that all sacrifices rendered necessary by the elements shall be borne mutually by the ship and cargo; whether the loss be occasioned by cutting away a mast or throwing overboard a bale of goods, it shall be borne by the owners of the ship and cargo in exact proportion to the value of their respective interests.
On the contrary, the obligations of the tug to her tow are discharged by the employment of reasonable care and skill. The master of the tug guaranties that she is seaworthy and properly equipped; that he will furnish the motive power and will use his best endeavors to take his tow to the place of destination in safety. He does not, however, take charge of the ship except so far as may be necessary to direct her course. In all other respects the master and crew of the tow have entire control of her movements, and may adopt such independent measures for her preservation and safety as their own judgment may dictate. He does not insure the ship against anything but the consequences of his own negligence, nor her cargo from the depredations of thieves or the barratry of the crew. If the performance of his contract be interrupted by any unforeseen or extraordinary peril not wdtliin the contemplation of the parties, such as the slipping or breaking of a line in a heavy sea, he is at liberty to treat the original contract at an end; and while he has no right to abandon 1ns tow except to save his own vessel, he may recover salvage as if he were a stranger, if he has put his own vessel in peril to rescue her. The Saratoga, Lush. 318; The Robert Dixon, 4 Prob.
As observed by Lord Kingsdown, in delivering the opinion of the privy council in the case of The Minnehaha, Lush. 335, 347:
“She may be prevented from fulfilling her contract by a vis major, by accidents which were not contemplated, and which may render the fulfillment of her contract impossible, and in such case, by the general rule of law, she is relieved from her obligations. But she does not become relieved from her obligations because unforeseen difficulties occur in the completion of her task; because the performance of the task is interrupted, or cannot be completed in the mode in which it was originally intended, as by the breaking of the ship’s hawser. But if, in the discharge of this task, by sudden violence of the wind or waves, or other accidents, the ship in tow is placed in danger, and the towing vessel incurs risks and performs duties which are not within the scope of her original engagement, she is entitled to additional remuneration for the additional services if she be saved, and may claim as a salvor, instead of being restricted to the sum stipulated to be paid for mere towage. ” ■
. The rule is the same with respect to pilots. The Eolus, 1 Asp. Mar. Law Cas. 516, and note; The Hope, (Hobart v. Drogan,) 10 Pet. 108; Akerblom v. Price, 4 Asp. Mar. Law Cas. 441; The Wave, Blatchf. & H. 235.
It is not claimed that the distinctions here taken are decisive against the allowance of a general average contribution in cases like these. They do, however, show that the whole law upon this subject has arisen out of the anomalous relations between the ship and cargo— relations such as do not exist between a tug and tow. In my opinion, the law of general average is confined to those cases wherein a voluntary sacrifice is made of some portion of the ship or cargo for the benefit of the residue, and that it has no application to a contract of towage.
A decree will be entered dismissing the libels, with costs.