107 F. 959 | 7th Cir. | 1901
after the foregoing statement of the case delivered the opinion of the court.
An engagement to tow imposes neither an obligation to insure nor the liability of a common carrier, but it does demand that the engagement shall be met “with that degree of caution and skill which prudent navigators usually employ in similar service.” The Webb, 14 Wall. 406, 20 L. Ed. 774; The J. P. Donaldson, 167 U. S. 599, 17 Sup. Ct. 951, 42 L. Ed. 292. The tows were under the supreme control of the Kalkaska so far as to enable her to fulfill her contract of towage, and they had the right to demand in the towage the full degree of caution and skill employed' by prudent navigators. Although, it may be said, the burden is upon the one alleging breach of contract of towage to show negligence or unskillfulness to his injury in the performance, still in some cases “the result is a safe criterion by which to judge of the character of the act which has caused it.” The Webb, supra. Here is a remarkable occurrence. In no storm, with a wind at no time exceeding 20 miles an hour, along a well-known coast, and in going a distance of not over 100 miles, the Kalkaska and her tows are at least 17 miles out of their course, and eventually each of the vessels strike the bottom, the Kalkaska and her tow, the Aloha, getting free, the latter in a leaky condition, and the other two tows are wrecked. The atmosphere, it is true, was filled with smoke from the burning woods of Michigan, but that fact neither accounts for nor excuses the disaster. To wliat cause can the stranding of these tows be attributed? It is urged on behalf of the Kalkaska that she was navigated with all prudence and skill, and that the disaster was caused by inevitable accident, and, as suggested by counsel, by some unknown current which imperceptibly carried these vessels upon the rocks. The circumstances .of the case cast upon the Kalkaska “the burden of establishing some excuse for the deviation from the usual and proper course.” The Webb, supra. It was, therefore, incumbent upon the steamer to show that she was supplied with fit and accurate compass, that her navigation was in all respects careful and prudent, and that the disaster could not have been avoided in the exercise of due care. A brief review of the manner of the navigation of the Kalkaska upon that day may furnish, possibly, a solution of the cause of the stranding. In the first place, we have no evidence of the condition of the ship’s compass. It was incumbent, wre think, upon the Kalkaska to show that she was furnished with such a compass as is ordinarily used, and that it was in due and proper condition. Her captain states that when off Devil’s Island at 4:30 o’clock in the morning of the 18th, the wind freshening, and the weather being very hazy, the course of the vessel was changed to the east-northeast, the chart course
' It was urged on behalf of the Kalkaska that the disaster was caused by the neglect of the Mead to respond to the signal to starboard’her helm. We cannot sustain this contention. Almost immediately upon giving the signal/ the Aloha grounded, and was pulled off by the steamer. The Mead followed, with the towline between her and the Aloha parted, presumably by the strain of the vessels ahead, covering the distance of 600 feet in less than a minute, grounding upon the rocks. The Mediator, while responding to the signal, changed her course upon demand of the Mead to avoid an imminent collision. These vessels were in immediate danger through the wrongful act of the Kalkaska, and we cannot say that in the confusion of a sudden emergency, caused by the fault of the Kalkaska, they should be held in fault for failure to adopt the most prudent measures for safety. It is by no means clear that the prompt-est obedience to the signal would have enabled either the Mead or the Mediator to escape. The towline of the former was parted, and she was almost upon the reef. She had not, as had the Aloha, the assistance of the steamer to enable her to change her course speedily, or to pull her off the rocks. We cannot think the maneuver of these two vessels in extremis, and in the presence of impending peril, can be allowed to excuse the fault of the Kalkaska, even if different action might possibly have avoided or lessened the extent of the disaster; The decrees are affirmed.