mE B. D. limBER.
841
Glamorganshire, the inference of some want of care is irresistible. The 7'imor, 46 Fed. Rep. 859. Decree for the libelants, with costa.
TuE KENEDY". (Ctrcuit Own Qf
R. D.
BmBER.
THE R. D. BIBBER. Fourth. Oircuit. Ka7 S5,189lL\ No.S.
SID1'I'JNG-D.uu.GB TO CARGO-STRA.NDJNG-NBGLIGBNOB.,;
A llchoone.r loaded with a cargo of rails, transported under a bill of Jailing wbloli excepted liability from "dangers of the seas," arrived off the bar at Galveston .harJ bOr;. Quicksands cause the depth of water on this bar to constantly vary, and. is not uncommon for vessels to ground in The master consulted with ilie local pilots and with his broker, and by their advlCe lightered 100 tons of hiaoal'gol Being then assured that the vessel would cross in safety, heprooeeded, in charge of a pilot, but the vess.el, from some nnknown cause, went fast That night a storm arose which lasted two days, and drove the vessel balf a mile from the channel, and on some shoals. From these she was afterwards taken off by salvors·. The cargo owner paid salvage on the cargo, and brought suit against the vessel to recover the same; alleging that the stranding was caused by the negligenlle of the master in not further ligbtering schooner before attempting bar, Hdd, that the grounding of the schooner was not due to the negligence .of b'er masJ ter; that, even were it due to his negligence, still that was but a remote cause of the salvage service, the proximate cause, which alone the law regards, the storm, and from damage caused by that her bill of lading protected the ship. ,
Appeal from the Circuit Court for the District of Maryland. In Admiralty. Libel by Miffiin Kenedy against the schooner R. D; Bibber. Decree dismissing the libel. Libelant appeals. Affirmed. Brown <fc Brune, TreadweU Cler!eland, Arthur George Brown, and W"z.. liam V. RoWe, for appellant. Robert H. Smith, for appellee. Before BOND and GOFF, Circuit Judges, and HUGHES, District HUGHES, District Judge. The schooner R. D. Ribber received in Philadelphia a cargo of 780 tons of steel rails, to be delivered in good dition at Galveston, Tex., subject to the usual exception of the "dangers of the seas." With this cargo she drew 13 feet 9 inches aft and 13 feet 6 inches forward. She reached the ou ter harbor of Galveston on the 17 th of January, 1887, and came to anchor. On a voyage a few months fore she had taken a cargo of 780 tons of rails to the same port, and; without lightering, bad passed over the bar of that port, safely, into the wharf. On this second trip her master went ashore to the office of the pilots in Galveston, to inquire about the depth of water on the bar. formed that this was 13 feet 6 inches on a tide, and having consulted his broker, he engaged a lighter, and went out with it to his vessel oIi the morning of the 18th, and took off 100 tons of rails; by doing which the draft of his vessel was reduced to 13 feet 3 inches aft and 13 feet 'foi'ward,as indicated by the marks on her stempost and stem. 'fhere--
upon he litgain weritashore, on/the evening. of the ,again: to' consult with the pilots whether still further to lighter his' fteighton the rails was $3, the cost of lighteriiig'$2,,' ,perton.:The pilots' and his broker concurred in advising the master that, if his vessel were put in trim, he could safely cross the bar aa.abe was then loaded. He returned next morning; and set his crew to putting the schooner in trim, completing the task at half past 1 19th. A pilot he had engaged then came with a tug to conduct bis'vessel across the barinto port. This pilot had, during the morning, taken two other vessels across, one of them drawing 13 feet 3'inehes and the other 13 feet 4 inches. The Galveston one of their boats engaged every day with the lead, and a flag bOllt indicates the depth of water on the bar. On the 19th of January the depth indicated by this signal was 13 feet 6 inches from lllorningdown toa,nd including thetimewhenthe Bibber was in tow 'that afternoon, making across the bar. When the pilot that had been engaged came to the Bibber, he asked about her draft, saying that it must· not exceed 13 feet 5 inches.· , . He was assured that it was not greate!.' than 13 feet 4, inches. The sohooner's haWllerwas the.n taken by the pilot's tug, and <they set out for pelrt. Just at this time another 8chooner, in chargeofanqther pilot, drawing 13 feet 6 inches, passed in, across the bar, without touching'.. "About the time the Bibber had got inside the bellcon, and near the redbuoy which marks the channel over tlie bar from harbor, she .struck bottom. This was about 3 o'clock on the allemoon of the 19th. , Vigorous, efforts were made to pull her off, imd were continued fot an hour or !\l'o, without avail, and were finally abandoned about 5 The master then went ashore to another tug and a lighter for the neJl:tmorning, and remained overnight on shore, leaving the sch()oller aground on the bar. At the time the schooner had grounded the. tide was "just on top high waterj" that is to say, at dead high tide, at the stationary stage at which avesBel gets no lift from a current in either direction. During the night of the19th, an came on,wpich "blew very heavy." It continued from the night'of the 19th to the morning of the 22d. It prevented a tug /lnd a lighter from COming out to the schooner on the morning of the 20th. by wJ;iich time.the,storm had carried this vessel half a mile from where aheJ.lad grounliEld in the channel, to the knoll and shoals on Bolivar intO",water of only about 6 feet depth. By the afternoon,of thesallle day .the had become very rough,nnd the creW of the schooner were brougl:1t Otroll a pilot boat sent out by salvors, except'the secpqdolate, whq remained on board. On .the 20th, after the schoQner ha9Plilen drivenbyjlle storm upon Bolivar shoals, as for the services of salvorsfof /llld ,cargo, w1}ich were no;tl 90no1uded, until the 22d, Neverthe ss,!vage had' '!;Jeen conuuenced' on. the afternoon of tpe20th, and, we,e brou8p.t lo, end . on the 22d. .All t,he Qa,l'go was, and also ,tpe SChOOD(;lr itself; the latter in a conditiop. ID()re or )llSS <1amaged. The saJ.,:age was for. 50 per cent. of the vjl1ues;sayeq.. Thesalvai'e \ljlon vessel was paid without suit,
on
THE R. D. Btl3BEIt.
843
upon an agreed valuation. That upon the cargo was made the subject of a libel in admiralty in the United States di!'ltrict court for the eastern district of Texas, which decreed for the libelants. This decree was affirmed on appeal by the circuit court of the same district. The salvage thus determined, amounting, with costs, to about 813,000, was paid by the owner of the cargo, who a.fterwards libeled the schooner in the district of Maryland, to obtain a reimbursement of the money paid on the salvage contract under the decrees mentioned. In this last suit the district court of Maryland decreed against the owner of the cargo, dismissing his libel, and he has brought the case here on app('al. . At Galveston it is a common occurrence for vessels crossing the bar to touch on the· bottom, and sometimes to hang there for a greater or less time. The .evidence shows as to touching that as many as 9 out of 10 the vessels crossing the bar touch and drag, but, as the bottom is a fine quicksand, no damap:e results. In that harbor the variation of tide is only about a foot, and there is generally but one tide in 24 hours. The mere grounding of a vessel on the bar is not in itself a very serious occurrence. The evidence embo(lieu in the record of this case is quite voluminous, and somewhat conflicting, but the leading facts are set out in the foregoing summary. The briefs filed by counsel on either side are devoted to the discussion of this evidence, exclusively with relerence to the question whether the grounding of the schooner was owing to the negligence of the master or his pilot. The cause of the grounding is not proved by either party to the suit. Iris wholly unknown, and remains now as it stood before nny evidence was tahn, a subject of mere conjecture; each of several ,witnesses having a surmise of his own, each different from the rest. The complaint of libelant is that the salvage was caused by the master's negligence in not taking oft' more of the cargo in toe outer harbor than he did. The rails were shipped to be delivered at Galveston. Crossing the bar below that port was necessarily in the minds of the shipper and carrier at the tillle of the shipment. As It matter between men of businE-sstit could not have been understood that more of the cargo should belightered than was necessary to reduce the draft to the depth of water on the bar, inasmuch afl the cost of lightering was two thirds as mueh as the carner was to receive per tall for the entire yoyage. How much should be taken ont was a question of reasonable care and prudence. Respondent maintains that this degree of care and pru· dence was exercise,l; proves the draft of his ship and that of the channel on the bar; and proves also that three other schooners, one of the same, and two of greater. draft than that of his vessel, crossed the bar about the tillle when the Bibber attelllfJted it; without touching, thereby warranting the implication that the grounding was not because of excessive draft in this schuoner. No prt>of of the cause of the ground. ing is made, the real cause being still unknown. In bringing his vessel iuLo· &$trange port over a bar formed of treacherous quick-
IH4;
REPORTER,
vol. 50.
S8,uas, 30 uncertain. in its condition that a pilot boat is stationed daily upon in unceasing soundings with a lead,the master of this schooner acted upon the advice of local pilots, and others competent to give, it; he himself concurring in their: opinion, and exercising, not only reasonable, but extraordinary , care; being-, as part owner of the ship, pecuniarily interested in' what he was doing. The carrier of goods is bound to exercisethecllre which a prudent man .exercises in his own affairs; that care and diligence which the case in which he is acting reas,onably demands; and where, as in the case under consideration, it is It qlJ,e<ioJ:;l the injury occurred by the negligence of the carrier or by the danger of the seas, then the principle laid down by Lord DENl\{AN in Muddle v. Stride, 9 Carr. & P. 380, cited by thE! supreme court in Clark v. Barnwell, 12. How. 280, applies; the principle, namely, that 'fif, ,qn the whole, it is left in doubt what the caUse of injury was, or if it. can. wellJlt;l attributabl to the perils of the sea as to negligence, l c/!-n.not recover." :In the, present case the court below, upon lot; wre(l,ll re.yiew of theevidencEl, that the grounding of the schooner WilB :I}()t frqll)llegligel1ce; and wlilthink that, under all"the circumstances which attended that occurrence on the occasion under consideration, the accident was not. due to negligence on the part of her master, but,on the,contrl;\ry, waS the res11lt of.dangersof navigation incident to that belonging in. class to those of the seas" from which the given in the pase by the sMp expressly exempted her. b,ill.of B,ut, even if tpis conclusion were wrong, still it. is a mistake to treat the grounding of the schooner.as the cause which rendered necessary the of salvors to. her That was the remote, but not the apcause of the salvage service. .It is neither .an unusual nor a thing for a ship temporarily to in the channel on that bar. A little delay, an additional tug, and sometimes a the oilly consequences of such an occurrence. Had 09 stor[Q supervened, the schooner and her cargo would have been safely iq port morning after the grounding. But, while lying aground in the ,channel, the storm came upon her, lifted her from her safe positjon, bore her off over shallows for half a mile, and cast her upon the s,lloll1sof !Bolivarpoint. It was this work of the storm which brought th,e schooner and cargo to the neq,essityof availing of the services of salAnd so if there had been the most palpable negligence on the parto{ the master of the schooner in grounding her on the bar in the fault would not have entitled the libelants to recover damages bill of lading exempting her from liability for "dangers of the grounding was the re.mote, the storm and its work the proxdamages that were sustained, and the law looks at irn.m,ediate, an<J not remote,causes in dealing with such cases,-causa Pr:rp;ima,! non remota spectatv,r, .':4 on this subject is that of Railroad Co. v.Reeves, lOWall. 176, in .the suit was for damages for the nondelivery and loss of tobacco, which been shipped by railroad from Salisbury for Memthrough" Chattanooga. tberewas a delay <>ftwo days j
THE
EMMA
KATE
ROSs.
845
or more, when the cars on which the was were caught in a great freshet in the Tennessee river, and swept away, and the tobacco lost. The supreme court held that, "where there is a loss of which the proximate cause was the act of God or the public enemy, the common carrier is excused, though his own negligence or laches may have contributed as a remote cause." It held that the loss was from the freshet, and that, whather the delay at Chattanooga was negligent or not, the carrier was not liable. The court in its opinion cited Denny v. Railroad Co., 13 Gray, 481, to same effect. In the case of Scheffer v. Railroad Co., 105 U. S. 249, the supreme court held that the proximate cause of the injury sued for must be looked to, and not the antecedent one. The case went from the eastern district of Virginia, and was a suit by the personal representative of an intestate, who had been injured in the head in a railroad collision. caused by the gross negligence of a conductor. Eight months afterwards the injuries received brought on insanity, in a fit of which the lunatic killed himself. Here was a case in which the remote cause of the death was gross negligence on the part of the defendant railroad company, but the proximate cause an act of suicide. ' The -court sustained the demurrer of defendant to the declaration, re-citing the facts, and the supreme court on appeal affirmed the judgment below. In the case at bar the storm was the proximate cause of the subjection of the schooner and cargo to salvage services, and the grounding, whether through negligence or not, the remote cause, and the vessel -is not liable. The decree below is affirmed.
Ross. &: NAV. Co.
THE EMMA KATE Ross et al. (Circuit Court of
t1. MYl1:RS
Thira Ci,rcu1.t. June 21, 1892.)
1.
COLLISION-DAMAGES FOR DETENTION.
An excursion steamer, with a tug through the latter's fault, was so injured to be delayed for repairs 21 days, during all but 1 of which she was under charter. Her owners hired another boat to fill her engagements. during 8 of these days, at $110 per day, and during the rest of the time substituted other vessels of their own. Held, that the proper measure of damages for the detention during the latter period was not the value of the charters, but the cost of the substitution, and, in the absence of evidence, the cost would be presumed to be the same as in the case of the vessel hired, namely, $110 per day. 46 Fed. Rep. 872, modified.
:9. 8Al.m. In the absence of any suggestion that the hired vessel was not competent for the purpose, 1t was immaterial that the other substituted vessels were larger than it; nor could the recovery be alrected by the fact that the substituted veBSels woula otherwise' have been idle. '
Appeal from the Circuit Court of the United States for the District of :New Jersey·.