47 F. 89 | E.D. Mich. | 1891
(orally, after stating the facts as above.) Notwithstanding the voluminous proofs in this case, the facts upon which the decision must turn are quite simple. The libelant’s vessel was lost in a storm described as the most furious which ever occurred on Lake Huron, that of November 27, 1889. It was in tow of the respondent’s steamer Wilhelm, and after the parting of the tow-line, while the storm raged, was driven ashore near Fish point, becoming a total wreck. On the face of it, it would seem that the perishing of a vessel in such a storm was one of those inevitable disasters chargeable to the perils of navigation; an act of God, for which none could be responsible; and a loss by a risk which •all take “who go down to the sea in ships,” or subject their property to the dangers of the deep and the anger of the winds. It requires the strongest proof to overcome the almost conclusive inference that the loss comes of the storm, and not of any negligence of those unfortunates whose business it is to battle with it, and .come out safely if they can. The fallacy of the libelants’ contention is that the captain of the Wilhelm knew, or should have known, that this storm would occur. That some stormy weather was indicated is possible, on this proof, but non constat that the indications were such as would portend the extraordinary fury of the
Here was a voyage projected in the very last days of the season of navigation, when insurance policies were expiring, and whatever was to be dono in the way of navigation in the lakes must bo done quickly. It was a season of danger for such enterprises, undoubtedly, but those dangers were as well known to the libelants, who committed their vessel to this voyage, as to the respondent, who undertook to do the towing for them; and it was just as well known to each that at that season any delay endangered such an enterprise by a close of navigation quite as much as would the perils that come of proceeding with it. It was no time for delay in the voyage, if it were possible to avoid it. Under such circumstances, a master would bo loss blamable to go on than to lie by, except for the most imperative necessity. In my judgment, it would have been cowardly navigation, under those circumstances, to have gone into Thunder bay at 4 o’clock a. m. in the morning of November 27, 1889, with this tow, because of the indications of bad weather at that time and place. Proverbially, indications of the weather are unreliable. JFrom the ancient ground hog to the modem superintendent of the weather bureau at Washington, the weather-wise are as often false as true prophets, and their miscalculations are the daily subject of good-humored derision by the public. Useful as are the monitory stonn-flags sometimes, not infrequently they are hauled down amidst the laughter of the people, from cloudless skies and radiant with the sunshine. But there was no cautionary storm-flag on the government station nearest to Thunder hay at Alpena on that morning, and the officials whose business it was to look out for it had not detected this storm at or prior to the time when Gapt. Bennett was passing Thunder Bay light-house anymore than ho had detected it. And a fact like this is worth more as evidence than the ex post facto opinions of witnesses, who now think they saw in the then indica.tions a portend of this notable storm. It is human nature to believe that one has foreseen such an event, and I doubi not the witnesses unconsciously speak more of their present than their then existing impressions of that which was indicated. The conflict of testimony and opinion of ju&t what was expected shows that the indications were not very certain of what would happen. But, as before remarked, it is not enough to prove that stormy weather was indicated, — and this is the most that can he said of the proof in favor of the libelants, — but the proof should go further, and show that there were reasonable indications of a great and furious storm, from which it was prudent to seek a harbor of refuge. I do not think this was indicated at 4 o’clock that morning.
We can see now that, if the Wilhelm and her tow had put into Thunder bay because of the threatening clouds,, the stiff wind, the heavy seas, the broken leg, and the distress signal, this wreck would not have occurred,' perhaps, if he had had good luck in getting in, or had met with no misfortune in coming out again, and pursuing his voyage amid other storms and other accidents; but this is no proper test of prudence in the conduct of affairs anywhere. It might as well be said that, if he had never left the port of departure, there would have been no loss. When three or four hours later than that at which he passed Thunder bay the storm began, and the situation became serious, indeed, it might have been well enough to put back into Thunder bay, and, again, if good fortune had attended the maneuver, and its dangers had been successfully encountered, there would have been no loss. But this is an assumption of good fortune which might have miscarried. He had started for Táwas, a safe port, which he might reach in a few hours’run. It was his business and his interest to make progress in that direction. Advance is always to be preferred to retreat, in such cases of doubt, or at least human judgment tends in that direction, with
The same argument applies exactly to the choice of route which the Wilhelm took on this occasion. If she had gone more out into the open lake, and further from the lee shore upon which the libelants’vessel was driven after parting from the Wilhelm, possibly she would have ridden out the storm, and no disaster would have taken place. She took the usual course, used her lead freely and intelligently, kept out into sufficient water, as far as possible in such a storm, and the nearness of her course to the shore was not the cause of the wreck. The tow-line parted, and it was this that caused the vessel to be wrecked. If the wrecked schooner had been further out in the lake, she would have had a greater distance to be driven to reach the shore; she might have found means to extricate herself, or have escaped altogether, and then she might not. Hone can tell. But, after all, the nearness of the shore was only an incident of this loss, in the sense that the vessel was not driven ashore because the course was too close for safety of navigation, but because the tow-line parted; not from any cause with which this nearness to the
Coming, now, to the more specific faults imputed to the Wilhelm, that of not laying her head to the wind until the storm abated, at the time she first hauled away? that of taking a shoal-water course the second time after the previous warning of the necessity of keeping out; that of not clearing Fish point before hauling out the second time; and that of hauling out too abruptly at the time of this second maneuver, whereby the tow-line was parted, — it may be said that what has already been argued in this opinion in favor of the conclusiveness of the master’s decisions, in all emergencies where there is any doubt about the propriety of his maneuver, or, rather, when it does not clearly appear that common and usual prudence has been violated by it, applies with equal force to these minor, allegations of fault as to the more general imputation of negligence already considered. But it is proper to say, further, that, in the judgment of the court, the criticisms are unfounded. It must never be forgotten in this case that this tow was bound to Tawas as the immediate port of -destination, to pick up another vessel there, and that after
The second hauling out and heaving to was for an entirely different purpose than the first, but the same general purport of this decision applies to it as to the other conduct criüciséd by the imputations of fault, and there are other considerations connected with it which' apply especially to it. He hauled out to get away from his drifting with the storm towards the lee shore, under the warning of his lead, and hove to to take his bearings when the snow-storm broke, to avoid the danger of passing the point of safety for him, in view of the fact that he was going to Tawas, and was compelled to go there. Going too far, he would get beyond Tawas, so to speak; that is, got to a point where he was in more danger, and could not so readily turn into Tawas. He wanted to see the land, and know that he was not doing that thing which he feared. Again, it was a temporary purpose for which he hove to, and it carmo*
Lastly, we come to the parting of the tow-line. It is said this was caused by too abruptly turning about in making the maneuver of hauling to, head to the wind, off Fish point. It seems to the court quite idle to seek for any other cause for the parting of this tow-line than the resistless force of the storm itself, described in the proof to have been the most violent and destructive that ever swept Lake Huron. Why should we go, as has been done in the trial and argument of this case, below the decks of this propeller, laboring in a mighty storm, from which her cargo was being swept by the angry waters, and examine her flooded engine-room, her diminished steam, and somewhat shackled engine, listen for the sound of her signal above the howling of the furious winds, watch the haste and the trembling movements of her death-threatened officers and crew, to inquire whether this turning to the wind, almost in extremis, for safety from the driving storm, was more or less abrupt in its relation to a tow-line chafing in its chock, although sufficiently parceled, they say, or whether everything here was done precisely as it ought to have been done in the face of such an extraordinary storm, when we find in its violence a tremendous and unusual force, abundantly capable of causing this disaster? The court finds the parting of the line to have been caused by the fury of the storm, and that it was an act of God, against which the owners of the Wilhelm did not insure the vessel of the libelants. Dismiss the libel, with the costs.