23 F. Cas. 541 | E.D. Mich. | 1874
1. As to the first charge of fault, in not dividing the tow, I am aware of no positive rule upon this subject, and no general duty in this regard, growing out of usage or otherwise, was shown, nor is it believed to exist. Whether it was a duty or not, therefore, depended, as it must depend in all cases, upon the special circumstances of the case in hand. A request on the part of the vessels comprising the tow would not of itself create a duty. The tug master was .as much entitled to his opinion, as to the necessity, as were the vessel masters to theirs — in fact more so, because it was his right to say how t.he tow should be made up and taken through. Whether his decision was right or wrong, and if wrong, a culpable fault, depended upon the appearances when it was made, and not by what happened afterwards, unless what so happened might and ought to have been anticipated, and was in fact the result of taking the three vessels through together. But it nowhere appears that the grounding of the Couch was caused by there being three vessels in the tow instead of only two. Non constat, the same thing might have occurred if the Dobbin and Atmosphere has been taken through without the Couch, as requested. The first allegation of fault is therefore not sustained.
2. As to the arrangement of the vessels in tow with reference to their difference in draft. The case of The Zouave [Case No. 18.221], decided in this court by my learned predecessor, the late Judge Wilkins, was, in its facts and incidents, almost identical
3. In not waiting for the downward tow to pass through before entering the channel. The rule of the supervising inspectors, requiring that when two vessels are about to enter a narrow channel at the same time, the ascending vessel shall be stopped below such channel until the descending vessel shall have passed through it, etc., has no application ex proprio vigore to the lakes and their connecting waters, and therefore not to the present case, as was contended. It applies only to the rivers flowing into the Gulf of Mexico and their tributaries (see Buies of June 12, 1871, “Por Western Rivers”; also, caption to “Pilot Buies for LaE.es and Seaboard,” of June 10, 1871). No such rule, I believe, exists by virtue of any positive law or regulation, or by the decisions of courts, in regard to the lakes and their connecting waters; no good reason is apparent, however, why, on principle, it should not apply as well to narrow channels, of which there are many connecting the lakes, and through which the path of a vast navigation lies, as to Western rivers. However, in the absence of positive law and of any common usage to support it, I do not conceive that the court can lay down any general rule upon the subject. Bach case must be governed by its own peculiar circumstances. Certainly no court would hold a tug blameless that should recklessly, whether ascending or descending, lead a tow into a narrow channel, like that on the St. Clair fiats, when crowded with vessels moving in an opposite direction. But I think the court would hardly be justified in applying such a rule to even an ascending tug, when, as in this case, another tug was about entering or even had entered the channel from the opposite direction with *a single vessel in tow. It would be contrary to common usage to require a tug to wait under such circumstances; neither is it hazardous to any considerable extent for tugs with even more than one vessel in tow, if properly arranged and properly managed by all concerned, to attempt to pass each other in that channel, nor is it so deemed by competent navigators. The third charge of fault is, therefore, not sustained.
4. In not properly fastening the tow line. If the charges of fault were to be determined solely by the expert testimony as to the mode of fastening adopted, it would have to be decided that the line was properly fastened, as far as the mode of fastening is concerned. But the question raised goes be
5. As to the tug’s claim for towage services. The contract was to tow to Lake Huron. She towed the Dobbin to Port Huron, near the entrance to the lake. Here the Dobbin was obliged to stop and lay up for repairs. Ordinarily a contract to tow to Lake Huron would require that the tow should be taken into the waters of the lake; but, under the circumstances of this case it must he held that the contract was substantially performed. The wind being favorable, the Atmosphere sailed up from the flats or a little above, but the tug was ready and willing to tow her up, if the Atmosphere had seen fit to avail herself of the tug’s services. The Atmosphere can therefore claim no exemption from paying the full amount of the contract price. The tug must, therefore, be allowed the contract price for towing in each case, viz. $109 against the Dobbin, and $81 against the Atmosphere, to be offset against the damages sustained by each. Decrees accordingly.