131 F. 632 | W.D.N.Y. | 1904
This is a proceeding in rem instituted by the libelant, owner of the steamer W. H. Gratwick, against the steam tugs Mason and Babcock, to recover damages for injuries sustained by the steamer on account of her stranding while in tow of the respondent tugs, and owing to their negligence. The stranding occurred in Buffalo Harbor, October 18, 1901, at 6:15 o’clock p. m., and at a point approximately 150 feet north of the northeast end of the inner breakwater on the northerly channel bank of the Erie Basin. The state breakwater extends north and south. The distance from the Philadelphia & Reading Wharf, the starting point of the tow, to the breakwater, directly across the harbor, is about 600 feet. The Gratwick is 345 feet in length over all, and 45 feet beam. She was laden with 3,874 tons of coal, and drew 16 feet 8 inches forward and 16 feet 9 inches aft. A vessel of the dimensions of the Gratwick, heavily laden, leaving the above-mentioned wharf for the lake, requires care and caution on the part of her
Stress is laid upon the point that the Gratwick must be condemned on account of her failure to use her steering power at a crucial time irrespective of any signaling. I am not satisfied by the evidence that the custom and practice of the port required the Gratwick to make headway without having been directed to do so by the pilot tug. As already appears, the master of the Gratwick was a stranger to the situation. To have used the steamer’s propeller of his own volition at that point might have proved destructive to her safety. The proposition is sound, I think, that the head tug dominated and controlled the movements and navigation of the tow. The undertaking to tow was not only to safely transport the steamer to the government breakwater, her destination, or to a point where she would be enabled to use her own steering power, but it was also to direct her course and movements during the operation. It was for the master of the pilot tug to say whether the steamer should hasten or slacken her speed by means of her own motive power, and at what intervals, and for what periods. In short, as indicated, he must manage and direct her course of navigation. Transportation Fine v. Hope, 95 U. S. 297, 24 L. Ed. 477. To absolve the pilot tug in the absence of a prior arrangement establishing her liability, she must have exercised ordinary care and nautical skill,
Under the facts of the case, the burden is upon the libelees to satisfactorily excuse their wrongful omission to exercise the degree of care demanded by the situation. A specific act of negligence need not be shown by libelant. The rule which requires affirmative proof of negligence against a tug by her tow is conspicuously distinct from the rule which is applied to a common carrier, who, when proceeded against on contract, is presumptively in fault. Not so, however, where the result indicates negligence upon the part of the tug having charge and control of her tow. It is perfectly true that the adjudications uniformly hold that an engagement to tow imposes neither the obligation to insure nor the liability of a common carrier, and accordingly negligence must be proven by the libelant. The Margaret, 94 U. S. 494, 24 L. Ed. 146; The Lady Wimett (D. C.) 92 Fed. 400; The A. R. Robinson (D. C.) 57 Fed. 667; In re Thomas Wilson (D. C.) 124 Fed. 653; The J. P. Donaldson, 167 U. S. 603, 17 Sup. Ct. 951, 42 L. Ed. 292. The burden is always upon him who alleges the breach of a towing contract to show either that there has been no attempt at performance, or that there has been negligence or unskillfulness, to his injury, in the performance. But the above cases do not strictly apply here. There are exceptions to this rule.
In The Steamer Webb, 14 Wall. 406, 20 L. Ed. 774, the exception is stated in the following language, quoted from the opinion:
“Unlike the wise of common carriers, damage sustained by the tow does not ordinarily raise a presumption that the tug has been in fault The contract requires no more than that he who undertakes to tow shall carry out liis undertaking with that degree of caution and skill which prudent navigators usually employ in similar services. But there may be cases in which the result is a safe criterion by which to judge of the character of the act which has caused it.”
In the Ellen McGovern (D. C.) 27 Fed. 868, the rule is succinctly stated in the headnote in these words:
“Where one of a large number of boats in a tow is injured by striking some obstruction on a trip over a common and safe route, the burden is upon*637 the tug to give some rational explanation of the injury, or a consistent account of the trip, that may satisfy the court that there was no lack of due care in navigation.”
In the cases from which these quotations are taken the facts are not identical with this case. Nevertheless, the principle as stated has undoubted application. See, also, The Henry Chapel (D. C.) 10 Fed. 777; Transportation Co. v. Downer, 11 Wall. 129, 20 L. Ed. 160. The tug Mason has not satisfactorily excused or explained the disaster. The first stranding was not purely accidental. It would not have occurred unless the tugs, or at least one of them, were negligent. The evidence as to the later grounding is thought to be immaterial, and therefore it is not considered on the principal question here involved. Irrespective of any rule as to burden of proof, the evidence satisfies the court that negligence is imputable to the pilot tug. This charge has not been refuted by any evidence submitted on the part of the respondents. The tugs were both owned by the claimant, the Great Lakes Towing Company. At the time of the grounding the stern tug was also under the direction and control of the Mason. The evidence shows that signals were exchanged between them relating to the management of the steamer. Fontaine, master of the Babcock, testified that when he observed that the Gratwick did not work her propeller, he blew signals to her, and later, after the grounding, in a conversation had with the master of the Gratwick, insisted that his signals should have been complied with. In these circumstances I have no hesitation in holding that the movements of the stern tug, together with those of the Mason, were directed towards the navigation of the steamer, and she was as much a part of the moving power as the pilot tug. Each tug is, therefore, reciprocally responsible for the negligence of the other. In fact, both tugs were engaged from a common owner to tow the steamer. It was immaterial which tug assumed the duties of pilot, and thereby became the controlling agent. This conclusion is based on principle, and high authority is found in support thereof. In The Bordentown (D. C.) 40 Fed. 683, Judge Brown held a tug liable which was under the control of another tug, where both belonged to the same owner, and where specific negligence was chargeable only to the tug in control. It was there held that:
“Where all the tugs employed belong to the same owner, and are under one common direction, and are engaged in the service at the time when the fault is committed, they are in the same situation * * * as a single vessel, as respects responsibility for the negligence of the common head. The words ‘such vessel’ in section 4283 embrace all such tugs. ”
—Citing The Arturo (D. C.) 6 Fed. 308. To the same effect, see Van Eyken v. Erie R. Co. (D. C.) 117 Fed. 717; The Columbia, 73 Fed. 226, 19 C. C. A. 436.
It was suggested on argument that the Babcock is also in fault on account of slewing around the steamer’s stern, and some criticism was made upon the manner in which she lapped the steamer’s port quarter. The cross-examination of the witness Fontaine would seem to indicate that it was the theory of counsel for libelant that when the steamer’s bow entered the current, and when the Babcock was going ahead on her port quarter, the tendency would be to throw her bow to starboard.
The respondents have asserted limitation of liability, and in furtherance of that defense have secured an appraisal of both tugs. It is not necessary to pass upon the effect of such defense and proceedings thereunder until the ascertainment of the damages and the entry of the final decree.
My conclusion is that the injury was due solely to the negligence of the steam tugs Mason and Babcock, which were engaged in a joint venture to safely tow the Gratwick. Having failed in that duty, there must he a decree in favor of the libelant against both tugs, with an order of reference to ascertain the amount of damages.