'l'JlE ARGUS.
9r allowance for the effects of the injury. But, so far as expenses are incurred in the cure, whether they are of a medical or other nature, such as for diet, lodging, nursing, or other assistance, they are a charge on and to be borne by the ship. The injury may occasion a temporary or permanent disability, but that is not a ground for indemnity from the owner, unless there has been negligence on his part. When the cure is completed, at least so far as the ordinary medical means extend, the ship and owner are freed from all further liability. They are not liable for consequential damages. The ship is not to pay what may remunerate the sufferer for his losses, or what in compassion or humanity he might demand, but what the law has measured out as the limit of justice. Reed v. Canfield, 1 Sum. 195, 202; The Oity of Alexandria, 17 Fed.' Rep. 390; The W. L, White, 25 Fed. Rep. 503; Brown v. The D. S. Cage,l Woods, 401; 2 Pars. Ship. & Adm. 81, note 2. The case of The Atlantic, 1 Abb. Adm. 451, implies that the allowance to the seaman for the expenses of his care and cure terminates with the voyage, or with his term of service. But I do not think this rule consistent with the weight of authority or with justice. This libel was filed to recover darMges for the injury, but the libel also prays for such other relief as equity may require. The principle of the maritime law extending to cases circumstanced like this one, admiralty is perfectly competent to administer a suitable remedy. Its jurisdiction having attached to libelant's claim, and the extent of the compensation being but an incident to the possession of the claim, I think it competent for the court to ascertain the amount of expenses incurred by the libelant, and to decree an allowance of the same to him. The court can render a de'Jree for such expenses only as have been heretofore incurred, and as have been shown by the evidence. It cannot decree for prospective expenses. . The expenses proven amount to $310, for which let a decree be entered.
THE ARGUS. NATIONAL DREDGING CO. 'I).
THE ARGUS.
(Di8trict Oourt, D. Delaware. June 25, 1887.)
TOWAGE-Loss OF Tow-LIABILITY, The tug Arg-us left the Delaware breakwater with an ocean tow, on a morn· ing when no storm signals were up, and at a time when other tugs and vessels were going to sea. Later in the day a violent storm. with blinding snow. set in, during which the master of the Argus could not find a harbor. and deemed it unsafe to anchor, Being off a lee shore. he put out to sea, and the tow broke loose. and was lost through the stress of the weather. Held, that the tug was not liable in damages for the loss of the tow. there being- no negligence on the part of the tug, and there being no implied liability under the contract of towage for the use of more than reasonable care and skill in the management of the tow.
In Admiralty. v.31F.no.8-31
FEDERAL REPORTER.
ants.
Bradford &'Vandegrift, and J. Warren OoulBton, for libel-
Levi .O. Bird· and Henry R. Edmunds, for respondent.
WALES, J; This suit is for recovery of damages alleged to have been sustained by reason of unskillful and negligent towage. In the month of December, 1882, the libelant made,a contract with the owners of the tug Argus for the towing of the steam-dredge Ajax and two large dredging scows from Wilmington, Delaware, to Norfolk, Virginia, where the libelant was engaged in dredging for the United States government. The sum to be paid for this service was $700. The dredge was towed to Norfolk, and there delivered to the libelant in the latter part of December· of the same year. The two scows were a few days afterwards, towed, down to the Delaware breakwater by another tug belonging to the respondents, and there anchored on the evening of Janufeet depth ary 8, 1883. Each scow was 100 feet long, 28 feet wide, of hold, with a carrying capacity of 525 tons, and had cost, when new, in 1881, $4,200. They had recently been calked, and put in good condition, and were strong and seaworthy. It was a part of the original contract that the Argus would furnish the hawsers to be used in towing. No tiine was expressly limited in which the dredge and scows were tobe delivered at Norfolk, butthe contract was all in parol,and it was well understood that a prompt performance was required and expected. Capt. Hallinger, the master of the Argus, went on board the scows immediately after their arrival at the breakwater. examined the fastenings by which they were attached to each other, fixed all the chafing gear, put morepareelingc on the lines furnished by the libelant, parcAled his own hawsers, and intended to start out at once with the tow; .but the indications of the' weather being uncertain, and the sky cloudy, he concluded to wait until the next morning, when, if the wind should remain in the same quarter, north-west, and no storm signals were up, he would leave. At about 7 o'clock on the morning of the 9th the Argus did leave the breakwater with the scows singled out astern. The first scow was at the end of a nine-inch hawser, 75 fathoms long, which was made fast on both bits of the scow, at each corner, and came with the bridle to the center, and then to the tug. The second scow was made fast to the first one by two lines running from the after-corners of the first to the forward corners of the other, and, when thus attached, they were 25 feet apart. When the Argus had gone about 25 or 30 miles on her voyage, a heavy wiild sprang up from the N. N. E., rapidly increasing toa gale, with a thick driving snoW;,storm, which Rhut out the daylight, and rendered navigation along the coast both difficult and dangerous. It was during this storm that the scows broke loose from the tug, and were lost, the hindermost one going adrift first. One of them was afterwards recovered in a damaged condition. The storm was of unusual violence, and lasted 21 hours. . The libelant charges that it was gross and culpable negligence on the part of the captain of the Argus (1) to leave the breakwater when he did,
9.
with the wind, sky, and weather as they then were, with every indidi:tion of an approaching storm; (2) in not coming to an anchor when the wind began to increase and the storm to grow more Violent; and (3) because the lines and by which the scows were attached t<.' each other, and to the tug, were insufficient, and not securely fastened. Although the law defining the duties and the extent of responsibility of one who undertakes to perform a, towage service was not much debated by counsel, it may be useful to state it as it has been expressed by an authority which must be controlling with this court: "An engagement to tow does not impose either an obligation to insure, or the liability of common carriers. The burden is always upon him who alleges the breach of such a contract to show either that there has been no attempt at performance, or that there has been negligence or uDskillfulness, to his injury, in the performance. Unlike the case of common carriers, damages sustained by the tow does not ordinarily raise a presumptioD that the tug has been in fault. The contract requires no more than that he who undertakes to tow shall carry out his undertaking with that degree of caution and skill which prUdent navigators usually employ in similar circumstances." The Webb, 14 Wall. 414.
In The Margaret, 94 U. S. 496, cited by counsel OIl both sides, it was held that "the tug was not a common carrier, and that the law of that relation has no application here. She was not an insurer. The highest possible degree of skill and care was not required by her. She was bound to bring to the performance of the duty she assumed reasonable skill and care, and to exercise them in everything relating to the work, until it was accomplished. The want of either, in such cases, is a gross fault, and the offender is liable to the extent of the full measure of the consequences." Such being the admitted law, it is only necessary to inquire whether Capt. Ballinger was guilty of a wantaf reasonable care and skill in the management of his tow, in any respect,as charged by the libelant. And, first, were the state and indications of the weather on the morning of the 9th such as should have prevented a skillful and prudent navigator from setting out with a tow of this description? The libelants testify that the wind was fresh from the north-east, and that the indications of bad weather were so plain that it was unsafe for the Argus to go out. Capt. Hammond, of the tug North America, which was lying at the breakwater at the time, is positive in his recollection of the direction and force of the wind. Be says it was blowing from the N. N. E. at the rate of 29 miles an hour; but he qualifies his opinion of Capt. Hallinger's imprudence by saying: "Everybody is not alike in their judgment. For my part, I don't think I would have gone out; but with the boat Capt; Ballinger has, with more buoyancy than my own, he bad, of course, to use ·his own judgment." The value of Capt. Hammond's opinion is also impaired by his own action on the 9th. He had Teceived a dispatch from Washington on the afternoon of the 8th, notischooner was ashore, 13 miles south of fying him that a Ocean City. He went first to the signal station on the breakwater, to ascertain the state of the weather, and then to the pier (at Lewis) after
484
FEDERA.L REPORTER.
wreckers and 0. 'and, having procured them, he decided not to go out that night, because. the weather looked rather bad. But he did go out the next morning, about half an hour after the Argus started; thus following the example and confirming the judgment of Capt. Hallinger. He steamed away 43 miles south, and at about noon came to anchor off the beached schooner, and sent his boat ashore; but, before he could run a line to the wreck, the storm, which had begun about 11: 30 A. M., increased so rapidly, and to such 8 degree, that he had to abandon the effort to save the vessel, which went to pieces that night. The storm was not so bad up to about half past 2 or 3 in the afternoon, and hefore that time you could see some little His anchor dragged, and he had to steam out into deeper water. It was a bad, ugly night. A good many vessels went ashore, and several lives were lost. The concurrent testimony of the witnesses on both sides is that the storm was extraordinary in violence and duration. Their united memory could not parallel another like it. Capt. Hammond admits that it would have been "foolishness" to attempt to go back to the breakwater in the night, in the teeth of the storm and over shoals, nor is he willing to say that it would have been prudent for the captain of the Argus to anchor along the beach with the scows, in tow. "Question. It was a very nice question which was the best for him that night? Answer. Yes; I guess everybody wanted to know a little that night what to do. Out of forty-three aboard of my boat I had five that weren't seasick. L. t. 18." The Argus and the North America were not the only vessels that left the breakwater on that morning, The revenue cutter Hamilton and the steamer Hector also went to sea -at about the same time, and two SChoohers came out from the bay, or the breakwater, and sailed down the coast. The Hector returned early in the afternoon, but the Hamilton kept on, and made Lyn Haven roads, inside of Cape Henry, at 9:30 P. M. The pilot of the Hamilton, an experienced navigator, and familiar with the coast, confirms the statement of Capt. Hallinger that there was nothing threatening in the weather when they left. The Hamilton had no special call to go out, and her officers did not see any signa of the coming storm that raged with such fury later in the day. The pilot thinks the wind was from the north, and moderate, at 7 A. M. The record of the signal offices and light-house stations, on either side of the bay, show some variance as to the direction of the wind. At Cape :May point, 15 miles from the breakwater, the wind, at sunrise on the 9th, was light N., with cloudy weather and low surf. At Cape Henlopen beacon light, the entry is, "Cloudy, N. W., [wind,] moderate." At Cape Henlopen light-house, at 6 A. M., the wind was N., moderate, cloudy weather. At Cape Henlopen station, at sunrise, the entry is, "Fresh breeze, north-east, heavy surf, cloudy." It would be useless labl)r to review the testimony in detail. The depositions are unnecessarily numerous. The crews of the North America and of the Argus corroborate their respective captains, between whom there appears to have been some feeling of rivalry, if not of enmity. Capt. Hallinger's statement is consistent with collateral facts, and is fairly
485
entitled to credit. He says that when he left the breakwater the wind was a little west of north, and moderate. No storm signals were up, and he thought it safe to proceed. He would not have started if the wind had been from the east, and blowing on shore at the rate of even five miles an hour. Everything went on well until he made Fenwick's island, about noon, up to which point his course had been south. After rounding the island; the wind was more off shore, and he changed his course to S. S. W. When he got below the island, a storm of wind and snow began, which increased with such rapidity and violence that it was impossible for him to return. His only place of shelter, short of Norfolk, was Chincoteague bar, if he could reach it before night; but at 4 o'clock it began to grow dark, and it was then that the stern scow broke loose, and went adrift, the lines having chafed off. Soon after this he passed the North America, which was at anchor, and hailed for help to pick up the lost scow; but the storm was too violent to admit of aid from that quarter. In a short time the snow became so thick that nothing could be seen from the tug, and, as he could- not tell whether he was above or below Chincoteague inlet, which can only be approached from the southward, and its vicinity abounds in shoals, and it was hazardous to anchorin shore, he was compelled to haul off into deeper water, where he laid to, keeping up steam, and holding onto the remaining scow. It was not long before this scow also chafed off its hawser, and was lost, the tug springing ahead when released from the drag. A careful examination of the evidence has led the court to the conclusion that the charges of a want of reasonable skill and care on the part of the Argus have not been sustained. The Argus was a strong and powerful tug, built and adapted expressly for ocean towing, well equipped, and commanded by a master who had had many years' experience in the business. He was unfortunate in encountering an unprecedented storm, but he was unable, as were other masters who went to sea at the same time, to foresee its coming. He dirll10t insure the tow against anything but his own negligence and recklessness. .He used his best judgment in forecasting the weather, and cannot be held accountable for the want of infallibility. He considered the risk too great to anchor in shore, and, in the blinding snow-stornl, he was unable to find a harbor. He had the right to consult the safety of his own vessel in preference to delivering the scows· safely at Norfolk, and was justified in putting out to sea when off a lee shore. "The owner of a vessel does not engage for the infallibility of the master, nor that he shall do in an emergency precisely what, after the event, others may think would have been the best." Lawrence v. Minturn, 17 How. 100; The James P. Donaldson, 19 Fed. Rep. 266. There is no proof that the hawsers and lines were insufficient or insecurely fastened. The presumptions are all the other way. The libel must therefore be dismissed.
"486
FEDJtRAL REPORTEB.
THE THOMAs MELVILLE. WINDMULLER and another v. THE THOMAS MELVILLE. LEVY and another v. SAME. (DiBtrict Gourt, 8. D. New York. June 8, 1887.) 1. SmpPING-DAMAGE TO CARGO-PRESUMPTIONs-BuRDEN OF PROOF-UNSEAWORTHINEss-DECKS LEAKING-BAD WEATHER.
Upon proof of injury to cargo by sea-water leaking through the deck, the burden of proof is upon the ship to show a sea peril adequate to cause such leaks toa seaworthy ship. ThiS is done prima facie by general proof of seaworthiness, and that there was no leak until just before arrival, after a week of very severe weather.. The burden of proof then returns on the libelant to rebut this presumption, or show some fault in the ship that made the , sea peril efficient. 2. SAME-EXPERTS.
On contrary testimony by experts as to whether a deck properly caulked would leak through straining of the ship in severe weather, without visible injury to the butts at the side of the ship, and also as respects the mode of caulking, held, that negligence in caulking and unseaworthiness in that respect, when the ship sailed, were not proved.
8.
ADMIRALTY-PLEADING-AMENDMENT AT TRIAL-NEW CAUSE OF ACTIONNEGLIGENCE. '
Upon a libel for damage through negligence specifying unseaworthiness, leaky decks, want of proper care and improper stowage, the speci{j,Q,"ions of negligence are in the nature of a bill of particulars. Evidence of a wholly independent kind of or new kind of damage, as from coal-dust, will not be admitted at the trial, nor an amendment of the libel, when the circumstances make it inequitable.-such as the dispersion of the goods, lapse of time, and loss of defendant's witnesses. no satisfactory explanation appearing' why the new claim was not made a part of the original libel
In Admiralty. John Br:rry, for libelant Windmuller. Evarts, Ohoate &: Beaman and T. Oleveland, for libelant Levy. E. B. Convers, for the Melville. BROWN, J. In October, 1883, the libelants in the above causes shipped on board the Thomas Melville, at Trieste. a quantity of prunes in casks, boxes, barrels, and kegs, to be delivered at New York. On arrival, many of the packages were found more or less dainaged, mainly from sea-water. A portion of them had coal-dust on the outside, which also penetrated some of the cases. These suits were brought to recover the damages. The libels charged an unsafe and unseaworthy condition of the vessel, so that her decks leaked; and also want of proper care, insufficient dunnage, and improper stowage, to the damage in each case of $2,500. Aside from the alleged damage from coal-dust to which I shall refer presently, the evidence leaves no doubt that there was damage from seawater to such an extent as to throw upon the ship the burden of proof that it arose from a peril of the seas, and not by her own fault. The immediate cause of the damage through sea-water is shown to be leaks