THE CHATlJ'IELD.
479
the stipulation admitted' the construction of the spihhing frames, but didnotadmit ihatthey mMhines with bands, and that such a machine can be banded in different ways, and that there is no evidence that the complainants had banded their machines in any way. Without discussing the effect of the defendant's silence after the testimony of the complainants, which was based upon the supposed extent of the stipulation, I think that the respondent' positively admitted the fact of makitigand llelling machines with the Atwood mode of banding. Mr. W. ,G. Mom!lOn, the defendant's vice president, in reply to cross question 96, "When did you first employ silch way of ba.nding [in the 1877 frame]in the frames which your company sent out froID' iti!! shop?" and to question 97, to give the date as nearly ashe CQuld, recollect, said, "Between 1881 and 1884." In reply to cross question 127, which inquired whether the end of 1884 or the ,beginning of 1885 was the time when he firSt produced spinning frames with the method of banding shown in the' exhibit, Mr. Morrison said: "Some time priortq this date, I made a,tria.l frame containing a continuous tin cylinder. Ihadnever ,made any frames, and sent out prior to ,tbis date." He certainly implied that after that date he had sent out frames with the method of banding 1Ihown in the model. This testimony leaves no room for reasonable uncertainty upon the question of infringement. Let there be an injunction against infringement of the 1st, 2d, and 3d claims, and for an accounting.
a
THE
CHATFIEJ.D.
SHELDRAKE fl. OCEAN
CHATFIELD. fl. SAME.
S. S. Co.
{lJf,sth'l.ctCourt, E. D. Virgfmfa. Maroh 14, 1892.} BALVAGB-TowAGB-STBA.MSllIl' WITJI BROKEN SIIAFT.
On tbe night of the 26th of October, 1891, the steamsbip Chatfield, of 1,904 tonll register, aIlQ loaded witb 7 400 bales of cotton, wben about 53 miles out from Cape Henry, broke her shaft and lost her propeller. A strong wind was blowing at the time, whioh increased during the next day,to a gale. There is also a strong current in that part of the ocean, setting south, and the Cbatfield was carried to a point some 70 miles from Cape Henry, and off soundings. On the following morning she set ai/{nals of distress, and about 11 o'clock was approaohed by the cargo steamship Brixham, of 400 t()ns net register, and loaded deep with iron, which with /P'eat di1llctilty got hawsers to ber, ,and in 9 hours towage against the wind, her hawser parting 8 times, brought her,witbin 43 miles of Cape Henry, aud into 16 or 17 fatl;1oms of water, where the Chatfield anchored. The Brixham remained with her all night, and in the morning, the gale increasing, tbe Chatfield signaled the Brix,bam, ',to, go to port for additional helP;., with WhiCh, request th,e Brixh,am complied, Thefeafter the passenger steamship vity of Augusta oame up, to whioh tbe Chatfield exhibited signals of distress; she at this time dragging her'anchor 'and driftingtowllll'ds the coast. The City of Augusta, with great dl1llculty, and danger of fouling ber pr0l'Elller and disabling herself,got hawsers to the fleld, and 'towed ber into Hampton Roads; the service lasting about 12 bours. The Chatfield, with her cargo and freight, was worth about $485,000, the Brixham
480
FEDERAL REPORTER I
vol. 52.
1&l'.OOO, aDd the mtyofAllg1:lsta $440,000;· Each of the salvlDg .vMseJ8 wa,s damaged t,q the of that the Brixh!,m a;no111d. reOQver t12,. 1l\X), aUd the City of Augullta'15,OOO; the lame to cover both salvage and 'damage ·elaima. ' .
In, Admiralty. EPITOME OF THE EVIDENCE.
First. In theCas8 of the Brixharn. The British steamer Chatfield, bound from Galveston· to Liverpool with·cotton, put -in at Newport News foreaal in October last. the night of the 26th of that month, she proceeded from the coaling port on her voyage, and had made about 53 miles out from Cape Henry, when, at 11 o'clock, she broke her shaft and lost her propeller. She was then at the place on the chart marked "A."She was undersilils during the rest of that night,and in the morning hoisted signals of distress. McFee, master, ·of the Chatham, fixes the position of thelilteamer that morning at the place on the chart QmrkeduB." She was iaken in tow by the steamer Brlxham, bound from: Philadelphia toN'elasco, Tex., which had her in tow for 9 hours, and brought her within'AS miles of Cape Henry.· She then cast anchor in 17 fathoms of water, and continued at anchor during ,the night of the, 27th; the remaining near her. On the. tnorning of the 28th, she gave signals. 'to the Briihami,to go into port for another tug, with which request the Brixham complied. McFee declares that the Chatfield was then at the place marked" C" on the chart. She again put out signals of distress, and between 10 and 11 o'clock on the morning of the 28th was taken in tow by the freight and passenger ocean line steamer City of 1\ugusta,boulld on schedule time from Savannah to New York, and towed into' Hampton Roads. Two libels against the Chatfielq, {o,r frOIn these occurrences,one of them brought in behalf of the Brixham, and the other in behalf of the City of Augusta. ;;The two cases have been heard together, as the libels are against the same ship for services, one of which was in immediate sequence of the'other, and as the ,evidence taken is in part common to both cases. 'FiTst, as to the libel of the The master and two mates were:examined in behalf of the Her engineer also testified, hut on points not controverted. In substance,the testimony was as follows: The Chatfield is a steel steamer, 1,904 tons in measUrement, 314, feet long, 40 feet in beam, schooner rigged, with two masts, no topmnsts, & foresail, a lllainsail,and fore and main staysails, and with triple expansion engines. She had on board upwards of 7,400 bales of cotton, weighing 2,OQOtons, and a supply of coal for her voyage; the ship and cargo probably. weighing about 4,000 tons. The value of the shipWll-s$130,OOO; of t4e cargo, $297,000; and she had earned one tbird of an aggregate freight of $20,863. It does not appear how numerous her crew was, OI,lly three of whom testified on. the disputed facts of the cuse.
THE CHATFIELD.
481
McFee, master, says: . "After the accident at 11 P. M. on the night of the 26th of October, there being no wind, we let the sails lay. and waited till morning. Sighted the Brixham at half past 10 to 11 A. M., and the Brixham came up about noon. We were then about 48 miles from Cape Henry. There was a fresh N. N. W.
v.52F.no.5-31
FEDERA,.L. REPORTllJR.
In the early part of the night the wind had sea smooth. ,.. when the Brlxham''t:l\meup, ,the depth of sea was 17 fathoms.. The mate says 21 the fullreguitemeots of Lloyds. On the Worning before the Brixharn neared us. the wind came and continuEld a littJestronger. throughout die tOWing; at nO sea. The place where our shaft broke was at lAo' exhibited in this case. Upon the Brixham coming up, it by signals that services were to 11e left to a'l'bitration." .
breeze and moderate sea.
McFee gives nodesoription of the preparations for towing, but his log says: "We got him, and he commenced towing; also got his wire hawser to set sails." AU three of the Ohatfield's witnesses say that the towing began at 1p. M. McFee says that at that bore W'1>Y N.half N,; that at 7:30 P. M. he let go time Oape all sails,.andsp.Ut agoOqmanyof t.heIIl. Resays the hawsers parted three times, -Hirst"aboutJt, l'. next about 4, and the last about 7: 30, After\b,istbe Ohatfield let downheranchor. At the parting of hawsers aboutl.,4 P.:M., the Brixharn came up 011 the leeof the Chatfield, when there was a'9ollision, inflicting trifling damage upon the Chatfield. McFee ascribes 'qie partings of the hawsers to the bad steering of the: tug, in veering to one side, arid then to the other, which put strain one and the otherhawser. On the night of tqe 27th, after the went to anchor, Brixham remained, steafling around her all n,ight.. Onthe.mor,ning McFee signaled her to to Norfolk for thinking the, Brixham unable to bring her iqto port. McFee "My object in soqditlg him was to have all melins possible to get the ship in in case he would a tug which wmdd come. If I got anything to tow me in, I thought certainly I..... . hJ ou Id meet him comin.g..out.· " McFee. consi.dered .. .·· safe when,th'e Brixham wassent.infor a tug. At-that tirile the Oity of Augusta sight. Capellenry then b9re N. W. by W., and was 48 milesdil!tank .... . Logan, the mate of the Cha.tfield, testified very much in accordance with the master. He was the onlv one on tpe Chatfield who took the weather says: "The whole tiIrie from the mQlning of the 27th to the morning of the 28th the direction of the wind wasN.N. W. It was afresh about the same the wlole time,with the wind and sea nothing at all. The night of the 27th clear, 8tarUr,tht night, with not the slightest appearance of a. squall. When the Brixham came up on morning of the 27th, the Wi!atherwas fair. with a fresh breeze. and clear/and with a moderate, sea." .
,.Burn, the first mate of the Chatfield,says: was ordinary breeze from W. The weather throughout the whole towipg was just an ordinary breeze.· the wind that way, the sea cannot rise, because the wfndis off the land. so there cannot possibly be anyl sea. In our ship was hardly a motion .of her. The passing of hawsers could have been d9Jle easily, by lowpring a boat.-very easily. The .B'tixhamwaS"wryimdly}iandled. for first she was down· broad
40
"
483
on the port bow;:and than up to statboard again. It was' impossible for Us to keep after .
It is stated 'iIi evidence 'that the Chatfield's free board was 17 feet; that is to say; that above the water that much surface to the wind. "The Brixham had only 19 inchesoffree' board. ' On the patt of the Brixham, the master, the two mates, the engineer, the fireman, two seamen at deck hands, and the cMk,-eight in number,-constituting, I suppose, the entire crew, were examined. This ship was.of 628 gross and 400 net ton8; in measurement was 193 feet long and 27 feet beam. She was worth $60,000, had ODS cargoofiron valued at $20,000, and was under charter for a freight from Philadelphia to Velasco, Tex., of $3,200. She left Philadelphia shortly after 10 ?'clock on the morning of the 26th October, passed out of the capes of Delaware after nightfall, and passed Fenwick Island light on her starboard beam at 9:45 P. M. Sheldrake, master, testifies that his coUrse from there was about due south, that his steamer's speed was 9 miles, and that he went along with a current and the wind in his favor, making 10 to an 'hour. The wind was 30 to 38 miles an hour from sundown on the 26th tolD at night, afterwards increased to 40 to 42 miles,becoming. on the morning of the 27th, a stiff gale, causing a high sea, which overflowed his decks. He sighted the Chatfield at 9:30 A. M., about 6 miles to eastward. and got to her a few minutes after 10. Chatfield asked by signals what he expected, and he answered "Arbitration." He then came close to the ship, and was told to take her hawser. He backed up under her lee side, heaving her a line from his steel hawser, and she heaving him a line from her Manilla hawser. Both were fortunately caught. One was run from her starboard bow to his starboard quarter, and the other, in like manner, from port bow to port quarter. He passed them through his stern chocks to big iron bits in the bow, but could not place them just as he would have liked, because of the sea breaking over his deck. He had taken soundings with a 3D-fathom line at 4 A. M., and again at 8 0\. M., and found no bottom. He started ahead for Norfolk, towing on the two hawsers, at probably about 20 minutes to 11. As he was moving, while towing about N. N. W., moving up towards N., which put him within about three points of the wind. he took in his sails, and the Chatfield took in hers also, following suit. The Chatfield sheered so much frOlD her bad steering that it caused his steamer to veer, and put too great a strain upon the hawsers,-first upon one, and then upon the other. His steel hawser parted about 1: 30 P. M., and he went ahead on the Manilla hawser, which also parted about 4p. M. When this happened, he went up on the lee side of the Chatfield, and was in collision with her, by her coming down against him, causing very considerable damage to his steamer. Having again succeeded in making fast the Manilla hawser. he again went ahead, and continued the towing until 7 :30 at night, when this hawser again parted, in consequence of the sheering of the Chatfield. The qhatfield then went to anchor in 16 or 17 fathoms water, and the Brixham steamed around her all night. In towing he moved from 3 to
484
FEDERA.L REPORTER,
31 hq;ur, and made a distance in all of about 28 miles, bring-jng the Chatfield to within 43 miles of Cape Henry.' The towing last!'ldnine ,hours, less one hour consumed in the trouble with the parted hawsers. This marks" Y" on the chart exhibited with this opinion asJhe pll,we where he left the Chatfield. He had and has no doubt that he..could have taken her into port on the 28th. lIenze, the cook, besides giving otper testimony corroborating that of the master,says: , . ' "Thl! Brixbam, the Chatfield .under tow by 11:20 A. M. on the 27th. Tbe sea ,was pretty rough that morni!1g. The main deck was full of water all the time. It was a very high'sea, and continued so until next day about 10. While the tOWing was going the sea was very bigh, and, by coming down with saaon, paned the hawsers. Tbe was high up above the water, and we low, and deep loaded. When the collision happened, she smashed right down upon our ,stern; smashed the cabin in. Her starboard stern smashedtbe ,side in, " etc.
says, among other things: "We got Ii ,hawller out about between 10 and 11 o'clock of the 27th. We got her in tow 11. We tow-ildhar tillabout 25 minutes past 7 at night, when the rope"broke. The:wiad was' northerly and northwesterly on our starboard wind, and pretty heavy sea on. The wire hawser parted -fIrst, afterdinnerso,me time, and then the Manilla ha wser parted.. we first met the in the morning, she had fore and aft sails them dO}Vf,I, wb,en the captain spoke to her, and did not put them Ill> ligain Whilewehadllerln,tow., It was a heavy sea on, and, through tberilgbtof the 27th; snowy and squally. The $peed of the Brixham dUring tM towltigwas three and a half to,foul' knots; after my own way of judging." ..
Olsen,
say'a"among
, "Iwt)nt We were towing the Chatfield when I to , The. to ij,orth and tbere was hliavy sea ,decks were full of water, which was going ijlto cabins and'everywhere.The Brixham had much difficulty in towing tbe'OhatfieJd i on account of the we,atbeJ; and heavy sea on. The wire hawser parted after dinl1er,..and wewet'e called out on deck. Some time in the afterthe Manilllli ,hawser parted. We passed ropes again, and towed her unbetween 7 aw.I:8l:l'clock, wben the,:ha\Vser parted a«ain. The wind was blowing pretty a heavrsea' PI),: raining in the. afternoon. We laid around the Chatfield, all the night of tile 27th, and left about 8 in the morning '', . for port. ",
Tibland, fireman, says: "After we gotilur dinner that morning [27th] at half past eleven, I went on deck. We,then had the Chatfiel4, in tow. There was a heavy sea and a gale of wind." " .' .
Currie, engineer, says, among othel' things: "When westoppild tbe engines on nearing the Chatfield, it was half past 10 in the morningot27th. ,We'i}rC)Ceeded ahead at 11 o'clock. We stopped again about 4 in the evening, arid was in tow again at 4:aO. and towed till a quarter to 8 that night. We were running around the Chatfield all that night, working the engines. as ordefed from;deck. Next morning at about 8 went
485
ahead, with engines at full speed. From Philadelphia down to where we stopped, near the Chatfield, our speed had heen 81 to 9 knots. While towing the Chattieldwe were going through water at a speed of about 31 knots. The wind was pretty bad. The sea was washing right over us. The Chatfield had her sails up when she was flying signals in the morning. She took her sails down when she was in tow. The average speed of Brixham through the water in ordinary weather is 91 to 10 knots. " Allen, first mate, says, among other things: "We had Fenwick Island light abeam at 9:45 on night of 26th. Course south all night, till 8 o'clock in the morning, when it was· S. quarter W. She made an average of 9 knots during the night. Called captain's attention to Chatfield about 9:30 A. M., on the 27th. She was about 6 knots from UB, southward and westward, four or five miles west from our course. She bad up three balls, as signals of distrf'ss, calling for help. She had her sails up before we took her in tow. She hauled them down afterwards, and did not hoist them again during the towing. We had her in tow about half past 10 to quarter to 11. The weather was nasty. blowing a northwest gale of wind; sea running very heavy, filling us with water fore and aft, all through the towing. I took Boundings that morning close to 8. Didn't find any bottom with 30 fathoms of line. Soundings were again made about the time the Chatfield was taken in tow, and got no bottom. About noon. made soundings myself, and yet no bottom. I took an observation then, and found latitude 36° 23' N. During the towing the Brixham made two and a half to three miles au hour. I attribute the bad tOWing to the bad steering of the Chatfield. The hawsers were nearly parallel, and she ought to have steered straight aEterus; otherwise, the strain would be all on one hawser or the other, which made it more liable to part than if the was kept 01;1 both. The effect was, from the Chatfield being live times larger and heavier than the Brixham. that the ship towed took the tug in charge. If she had followed the tug, I have no doubt that the Brixham would have taken her right in out of the storm. The failure to do so was owing to the bad steering of the Chatfield, and the bad state of the weather. wind. and sea. The weather and sea were both very wind, and rain, snow, and sleet during the violent, with heavy squalls night of the 27th. The Chatneld did not have sails hoisted at any time during the towing. She let go her anchor at the end of towing, in soundings varying from 16 17 fatboms. During the towing our progress was 2t to 3 miles an hour. to the N. N. W. There was no dritting during the towing. During the whole of the 26th, we were running to the southward in a northwest gale of wind. There was also a northwest gale of wind on the 27th. Statements in our engineer's log to the contrary are not, true. Engineers' logs are n'ot a.\lthority in reg,ard to weather. The Brixham is considered a staunch, which is proved by fast boat for a small one; and very strong her breaking the hawsers on the occasion of the towing without tearing her bits out or straining herself. The wind moderated on the morning of the 28th. but, as it had blown a gale all during the night, with very heavy sea, , and continued ·to do so up to daylight, the sea had not gone down, and was still very rough.'.rhere is never any trouble in passing hawsers in a light breeze and moderate sea. It was the gale and the high sea on the 27th that made the difficulty with us. It was out of the question to think of lowering a boat. I have been in a boat a good deal myself, and in a good many kinds of 8eas,-I have been whaling for three years.-and I would not have taken one of those whale boats, which are better than almost any ahip carries out of New York,-I wouldn't have done that on that day for the Chatfield nor the Brixham combined, and their cargoes chucked in. When we parted the Manilla hawser, our only chance was to go to leeward of the Chatfield to get to her;
486
FEDERAL 'REPORTER,
ahe ,Yfti4g a:larger ship than we, showing more side out of thewatel', and the very strong.) ;At that tfilieit<wasblcflrWin'g' her 'two miles to our .Ifow89ad'gone/oowindwardof 'her,.;we Wouldn'thaveg6t anywhere near,llet.,;,'Dhe:reeward',waa'the proper'sidefor our'$mail tug." ofth'Q,weather at Cape Henry on the 27th and 28th October last shows the wind to have been as follows: Oct. 27th, 12 M. to 6,A. M., average of 24 miles an hour. " 7 to 8A. M. " "19" " " 8' " "33" " " " .. .. ' 34 " " " " 9 to,IOA. M. " 10 to H·A. M. .. " 40 .. .. .. ," ,'II A. M. to 12M. " " 38 " .. " .. 12 M. to 1 P. M. .. .. 37 " " " .1 l' to ' 2 P. M. " "37" " .. " 2' to 'M. .. ' "38 " ... " " 8 to 41': M. " .. 41 .. .1 ' .. " 4 to 51'. M. Ii "46" " " '5 to 6 P. M. " "45"'" II " " 6 to 7:p. M. " " 4 6 " " II " 7 to 81'. M. ' II " 4 2 " " ,II .. 8 to 9'P.'M. " "47"" " " 9 to 10 1'; M. " "42" " " " 10 to 11 1';Jit. " "39" " II .. 11p.M.to"12:M. ""40""" Oct. 28th, !J:9 M. to 1 A. .. "36 " " " " 1 to 2 'A. M. " "35" " " .. 2 to 8 .!l'. M. " '! 35 " .. .. .. 8 to 4 A. M. " "34" " " "4 to 5 A. M. " " 31 " " " " 5 to 6 A. M. " "31 " " .. .. ,6 to '"I A. M. .. "31 " .. .. " 'i to 8 A. M. " "31" " .. " 8 to 9' A. M. .. "80" .. II " 9 to 10 A; M. " "27" " II .. 10 to IlA; M. " "27" " II .. 11 A.lII. to 12 M. " " 25 " .. .. " 12 M. to Ii'. M. " "22 II .. It The signal service classification of winds is as follows: Light wind, 1 to 2 miles an hour. Gentle wind, 3 to 5 " .. .. Fresh, 6 to 14 .. II .. Brisk. 15 to 24 It " It High or strong. 25 to 39 " It " 'Gale, 40 to 59 " It .. Storm. '. ' 60 to 79 " " " 'Hurricane, 80 to 150 .. .. .. Sheldrake's judgment was,' on hearing the signal service report of the velocity of the wind at Cape Henry read to him ,as above, that the wind wllS.stronger out to seatha:p at the cape. This report, reinforced by the testimony of Sheldrake;. that aU thrQugh ijle night of the 26th a high or strong wind prevailed; that it increased toa gale about 11 o'clock A. M. on the 27.th; that it blew a gale throughout the towing
487
of the Erixham, and through the night of the 27th, and abated only by slight degrees, and very gradually, between 1 A. Y. and noon on the 28th, at which last hour. it was still 25 miles an hour. The Brixham files bills for repairs, damages, and outlays resulting from her service, amounting to $5,000. Second. A8 to the City of Augusta. The Chatfield was taken in tow by the City of Augusta about 10:40 A. Y. on the 28th. The latter ship was of 2,870 tons measurement, was worth $300,000, had on a cargo worth $134,000, and had aboard 19 passengers. Her speed is 14 miles an hour. Her master, Catharine, says that in passing Hatteras, early on the morning of the 28th October, 1891, he encountered a. northerly gale of 40 to 45 iniles an hour, with a strong sea; so much so that it was necessary to put a governor on the engine. As he came north, the sea increased, and he could make only seven miles an hour. About breakfast time he discovered a vessel four points on his starboard bow, and on using his glasses found that she was giving out no smoke or steam, and was flying signals saying she wanted a tow, and showing three balls saying they had no command of the steamer. On nearing the Chatfield, he found she was lying at anchor, and sheering heavily from one side to the other. Though he used a great deal of caution, yet, in getting her heaving lines aboard, she took a heavy sheer, striking him abaft the main rigging. port side, doing him considerable damage, although the blow was lessened by his giving the jirigle bell, and going ahead at full speed. He had great difficulty, attended by much danger to his ship, in getting a hawser properly adjusted, Tried heaving lines twice without success, and succeeded finally by using a buoy, and having it caught from the Chatfield by grappling hooks; the wil'Jd and sea being such during the time as to put him in risk of fouling his propeller with the hawser, which would have been fatal to both ships in the condition in which they were. During the time of getting out the hawser, the wind was blowing 35 miles an hour, with quite a. high. sea,-so high that the Chatfield, riding at anchor, was pitching·her shaft hole entirely out of the water, so that we could see it. It took two hours to get the line on board. The wind was N. by E.; and, after getting the hawser, he had to tow a considerable distance around by a long circle to get on his course. After towing into within a mile of Cape Henry, and after the Chatfield had taken on a pilot, the hawser parted, subjecting him again to the risk of fouling his propeller. He again had a good deal of difficulty in getting his hawser to the Chatfield, owing 'to the strong tide, but succeeded,and brought her into Hampton Roads. When he picked up the Chatfield in the morning, she bore N. W., a little W. from Cape Henry, and was distant about 53 miles. She must have been drifting, from the way she was sheering about; it being evident the anchodvas not holding the ship. The anchor was of a kind he had never seen before,-a long shank, with a little claw on the end of it, not more than two feet long; and it was evident to his mind that in a sandy bottom it was impossible for that anchor to keep that ship from running ashore. She was drift-
488
FEDERAJ. REPORTER,
ing, and, if she had received no help, would have gone upon the beach anywhere between Nags' head Rnd Hatteras. She was then 40 miles from Nags' head Rnd 47, from Wimble shoals. ' With the wind blowingasstrongas it did that the current there being two miles an hour, she would have drifted with that anchor down at least a mile or two an hour, and five miles if the,anchor had not held. She would have gone upon the beach in eight hours. The depth of water where he took the Ohatfield iiltow was scant 18 fathoms. The manner in which she sheered, first 'on one side, and then on the other. when he first neared her, proved that she was dragging her anchor. When he first came up to the Ohatfield the wind was blowing 30 to 35 miles an hQur; so hard that he could not keep his ship in position ahead of her. No attempt was made to pass hawsers by lowering a boat; it would have been too dangerous to be attempted, and was not thought of. To the same effect was the testimony of other members of the crew of the Augusta who were examined. The bills of lading and insurance p0licies of the Augusta at the time of this service gave her the right to assist ships in distress. The three officers of the Ohatfield, heretofore mentioned, testify in substance ,as follows: McFee, master, says, as of the time on the morning of the 28th when the Oity of Augusta neared the Ohatfield, that there was not Q heavy northerly gale, nor anything approaching it, but only a strong to fresh wind and a moderate sea. The Augusta came up to him abOllt 9 A. M., on his weather side. They missed getting the line the first time, and also the second time, but the third time she came up under the bow, and he got his hawser aboard of her, and,as soon as the hawser was fast, he tripped his anchor,' and she, slewed around and towed away. He could have passed his hawser by a small boat,but there was no' necessity for it. The ,Augusta was handled in a most seamanlike manner, and there was\notrouble in getting tbe hawser on board. The towing commenced at 11:30. and tbey made about 8 knots an bour, and came intotbe capes, arriving at balf past 5, tbe towing baving lasted about 6 hours. The hawser appliances wbich be gave to the Augusta was a wire hawser, attached to his chain cable, which veered out about 45 fathoms of cable with the wire. The Augusta started ahead, after he got the pilot on board. off Cape Henry, with a little too much speed, and carried away his wire hawser at the point where it was fast to her stern. He thereupon let go his anchor, and gave out 15 fathoms of cable, to hold the ship in position. He then hauled in his hawser, put another bend on it, to make fast with, whereupon the Augusta came around again, and steamed up and passed her line, and took his hawser again, and, after some trouble with his chain cable and anchor, proceeded on and went into Hampton Roads. Half au hour after first taking bim in tow, the Augusta signaled him to put up his sails, and, the wind being N. N; W., allowing the saBsto draw well, be did 8Q. The service of the Augusta lasted between 9 A. M. and 8:30 P. M. of the 28th. The towing,commenced at 11:30. There was no peril or danger to her in the service over the ordinary peril of taking a ship in tow at
489
sea. There was no extra risk. The danger was very small. If there had been extra danger, the Augusta would have lowered a boat to run the lines. The mates of the Chatfield testify substantially in accordance with the testimony of McFee, the master. The City of Augusta files claims for costs, losses, and damages resulting from her service, amount· ing to about $5,000. WhitehurBt &; Hughes, (William W. Goodrich, of counsel,) for the Brixham. Sharp &; Hughes, for the City of Augusta. Richard Walker, for the Chatfield. HUGHES, District Judge. FirBt. As to the Brixham. It Beems plain that the evidence of witnesses of the Chatfield taken in this case is disproved on all contested points. The direction of the wind when she was approached and tllken in tow by the Brixham was N. N. W., and remained so, or nearly so, all the day and night of the 27th. That is conceded. But the wind was not a mere fresh breeze of 6 to 14 miles an hour, as. stated., .and iterated by master and mates. All the other witnesses say otherwise, and the signal service record .of the wind at Cape Henry contradicts their testimony, and corroborates, .with singular completeness, the testimony of Sheldrake, master of the Brixham. In fact, from 11 o'clock, the time the towing began, .till midnight of the 27thj the wind was blowing a gale. .All the witnesses of the Brixham concur substantially in saying so, and all the circumstances of the occasion corroborate their statements. If the sea and wind were" nothing at all," as one oithe Chatfield's witnesses testifies, when the two ships came first into proximity, why did not the Chatfield lower a boat, and enter quietly into a settlement of the terms of the towing? Why did the two vessell' stand off at cautious distances, and communicate solely by means of dumb signals? The weight of evidence proves that, after being taken in tow by the Brixham, the Chatfield took in her sails; but if. as McFee states, they were spread, how could a mereJresh breeze split the new sails ofa new ship in pieces? And ofwhat avail could sails have been at all to a ship ing within three points of the wind? The Chatfield, showing a surface 17 feet above water, was indeed a great mark for the wind, but would have been easily steadied by her own rudder and by the two hawsers of the Brixham, moving 3 miles an hour over the water, if the wind had been only a 6 to 14 mile breeze. The fact that she sheered beyond control of so stout a tug as the Brixham is conclusive of the fact that she was breasting a gale; otherwise, why did the strong hawsers by which she was drawn part, and continue to part, while she was under tow? And, as to soundings before the Chatfield was taken in tow, no one took or reported them but Logan, the second mate,-the man who testified that the night of the 27th was a bright, starlight night, and that there was no sea, and only a fresh breeze, during a period when the official report shows that the wind was blowing a gale. It is hard to believe that a witness who is discredited on every other point on which he testifies spoke truly as to the soundings. Burn, the other Chatfield mate, says, arguendo, that there could have been no sea, because the wind was off
FEDERAL.
52.
liIQqre,7'"f-a which would ptobably have been cOllclusiveifhis ship had been,,a'slPalldistltnce off shore,but is of no validity as toa ship 00· to 75r;niles out to $ea. of.\the three,witnesses afthe. Chatfield pretends that she let go between losing her propeller, at 11 on the night of the 26th, and sighting the Brixham, in the forenoon of the 27th. McFee, her.master, says,there being no wind, he let his sails lie, and waited till next morning. Certainly, without sails and without wind, it would have been necessary· for the ship to let go her anchors if the bottom could be reached. That they were not letdown is proof that the ship was out at sea, beyond reach of the line of 30 McFee's statement, hOwever, that there was no Wind, and that he let his sails li.e, is not credible. The weight of testimony is conclusive that there was a high wind all the night of the 26th, and the signal service record of the' "elocity at Cape Henry confil'tt'l.s the preponderant testimony. It is impossible to believe but that there was' a strong windon the night ofthe26th, and that the Chatfield'ssailg were all· set. McFee subjects rational'belief to too great a strain When he affirms that during all the nigbt.!ofthe 26th, after 11 o'clock, he made no uSe of his sails;, and yet tbatwhen he was in t!>wof the Brixh!l.m next day, moving within three points of the wind, hellad them set 'beforea wind that split them. It isji.l'sta:s:incredible that,wben sighted oil the 27th by the Brixbam, tbe Cbatfieldwas at the point "B" wbicn he marks on the chart. The mathematics of the case renders this statement very wide of the fact. The Brixhamset out./from Philadelphia at 10:30 A.:AI. on the 26th, moving at her usual speed of about 9 miles an hour. The distance to the or'81 nautical miles, and the distance on to Fenwick Island light 25natltical miles further,-or about 106 miles from Philadelphia. If we'allow that the favorable wind on her stern helped her enghies Q quarter to half a mile an hour, she was abreast of Fenwick Philadelphia, or at Island lightin lIt houts from the time of 9:45 P. :AI., as stated by her log. From this light she took and oontinued on a course due 'south till about 9: 45 next day, a period of about 12 hours; the longitude of her cburse being about 74° 42'. The speed of her engines was 9 knots an hour; some of her crew stating it to be 8! to 9, and some 9 to 10. The cutrent of the ocean was more than ,Ii n:1ile in hel' favor,and there was a strong wind behind her, helping her It is therefore just to infer that she made 10 miles an ,hour, which, by 9: 45 o'clock on the morning of the 27th, wouldhavEj brought her 8i distance of 120 miles, or2degtees of latitude, froIll Fenwick Islalid light, which is in latitude 38° 27', and placed her at that hour in latitude 36° 27', lohgitude 74° 42'; that is to say, would have placed her at the letter "X": 01'1 the chart, marked by Sheldrake. If the Chatfield: was then at McFee's point" B, "marked by him on the chart, she wouldThlive been 30 roHes away from the Brix.ham, and out of sight. say that they first sighted the Brixham at about 1l0'Clock';br after,' and WfJfe not under tow till 1 o'clock. The first of these cannot be true, and the second must fall with
49i
it. If the Brixbam had gone on ,her course for an hour and a quarter
longer than her own crew testifies, and as the Chatfield's officers insist, before she sighted the Chatfield, then she hll.d got 132 miles south from Fenwick Island light, or to latitude 36°15',and would have been 42 miles from point" B," where McFee claims that the Chatfield was. 'fa insist that the Brixham was not sighted till 11 o'clock on the 27th is to present a case mathematically impossible. ,The point "B" cannot be accepted as the position of the Chatfield at either 9:45 or 11 o'clock on the 27th. At the earlier hour, she was within a few miles of the point marked "X,"-say five miles west; and it was from that point that she was towed by the Brixham. The wind was within about three points of being dead ahead during the towing, and the sails of the Chatfield, even if hoisted, could have been of no avail. The great weight of the Chatfield, and the large surface which she presented to the wind during the towing, caused the sheering of which both crews complain-eacb of the other-so much in the testimony. The steering was not at fault. The sheering was the result of the vis major of the gale. Against a gale of wind on her starboard quarter, the Chatfield's own rudder and the taut hawsers of the Brixham were unable to steady the great ship. She sheered continually, and put so great a strain upon the hawsers that, uuder the vigorous towing ofthe Brixham, they parted, one after the other. In face of the gale, the larger ship seriously interfered with the steady course of the tug, veering it from side to side, and presenting the spectacle, described by the' Brixham's first mate, of the towed vessel taking charge of the tug; or, in other words, realizing the idea expressed by the popular paradox of the tail wagging the dog. Despite of this embarrassing state of things, the Brixham persisted stoutly in her work, moving 3 miles an hour, making a distance of 28 miles, on a course about W. N. W., between 10:45 in the morning and 7 :45 in the evening; towing the Chatfield from a point a few miles west of point "X" to one marked "Y" by Sheldrake on the chart. At that time the wind had nearly reached its highest velocity, and, the hawsers having broken three times, it was a proper determination of the Chatfield, acquiesced in by the Brixham, to come to anchor. When the Chatfield let go her anchors, the wind was blowing; a gale of 47 miles an hour, which was too strong to admit the towing of a large ship 17 feet out of water, weighing 4,000 tons, by a tug low in the water, and of only a fifth her size and avoirdupois, especially by night. The chart shows the movements of the two ships before and during the towing. The Chatfield had moved-whether by drifting or under sail was not definitely shown-from a point, "A," 53 miles E. half N. from Cape Henry, between 11 o'clock on the night of the 26th to 10 o'clock on the morning of the 27th. to a point a few miles from the place marked "X," which is 72 milesE. S. E. from Cape Henry, where there were no soundings. There she was taken in tow by the Brixham. She was thence towed, in the face of a gale of wind, and against a current of the ocean setting south, with great labor and difficulty, but with considerable courage and resolution, by the Brixham, on a course W. N. W.·
FEDERA.L .REPORTER,
where there were soundings of 17 fathoms, and where, of the gale, she anchored for the night. She was attended there aU the boisterous night of the 27th by the smaller vessel, and was stAL,safe in tJ:le morning, but had probably dragged her anchor for six ol'Seven miles southeasterly, to a point marked" C " on the chart. At 8 o'clock,the City of Augusta having been sighted in the offing, the Chatfield directed the Brixham to proceed into port, to obtain the assistance of. another tug; her master's object being, in sending her on this misto get the Brixham out of the way, in order that the approaching, not be deterred from answering his signals of distress, hoisted, by the presence of the first salving vessel. This soon of her master would seem to show that he felt himself so mqc\1 in danger as to' desire t.o provide two chances of rescue, at the of resorting to a subterfuge in dealing with a salvor who had SI\Vil!l<l,llim from the dangersofthe gale of the preceding day and night, had moved or drifted some 40 miles from the place he had lost his propeller. The danger of the Chatfield, from rescuedby,tbe 'Brixham,conRisted in her being far out at'sea,beyond 30 fatlloms soundings, without power of locomotion exCl'lpt sails, wholly inadequate for so large a vessel, so heavily loaded, and drifting upon .a very strong current, setting southward, and a wind blowing, for the 10 hours anterior to her being sighted by t/:l e Brixbam, at the rate of 20 to 40 miles an hour, on a coast prodapgerous iO'the pendency of heavy winds. . That a strong current does set to the southon this coast is abundantly known to all mariners, and is in the judicial cognizance of the court. While this case is . under consideration, the three-masted schooner Freddie Heniken brokft from her anchors off Lynnhaven bay, was borne by the current out tJ1l'ongh theeapes of Virginia, in the face of a northeastern storm"otwind, and carried south by the current, until she went ashore at OulLShoAl light station, 18 miles short of Hatteras. It was on this cUH6ntand on this coast. that the Chatfield drifted on the night of the of October, from point "A," marked on the chart, for about 40 miles, to a place a few miles westward of point." X," marked on the chart. If the three officers of the Chatfield were sincere in their testimony, then .their vessel WaS in the additional danger of being in control of.mariners who were in unconscious ignorance of the situation of their vessel, believing .her safe when she was in circumstances of extreme danger. The service rendered by the Brixham consisted in suspending her voyage w'hen moving before a favorable wind antI current, and coming to the assiatance of the v,¢ssel in distress in a wind and sea which rendered the attempt very 'difficult and dangerous; in taking hold of that thus drifting, ina gale ona heavy sea, and not only holding her during the worst of the gale for 9 hours, but in towing her some 28 mHes,towal'dspprt, from a position 70 miles out at sea,where there were nQi /ilQYQdings, to within 43 miles of Cape Henry, to a place where there fathoms of wat..:r, and wbere she was able to anchor safely, watching her there during the night. The probabilities are great that
la
493
on the next morning the Brixham could have taken the disabled ship into harbor under a wind diminishing all day gradually from 35 miles an hour in the morning; and it is certain she was desirous to undertake the enterprise, and would have done so, but for being sent by the Chatfield's master for another tug. Ooedience to this instruction does not impair the Brixham's right to salvage in this case, as there was no intention on her part to abandon the enterprise,-a fact which was shown by her prompt return, in compauy with another tug, to resume the towing of the Chatfield at the place where she was left in the morning. Second. As to the City oj Augusta. Coming now to the claims of the City of Augusta, it is to be remembered that her service was none the less meritorious from the fact that the Chatfield had still a chance of being taken safely into port by the vessel which had first had her in tow. The flying of signals of distress on sighting the Augusta estops the Chatfield from such a pretension. What, then, was the danger of the Chatfield at 9 o'clock on the morning of the 28th, when the Augusta, responding to urgent signals, came to her relief? She was drifting, with dragging anchor, from the point marked "Y" on the chart, where she had been at 8 o'clock on the night before, and had made seven or eight miles southeasterly, to point "C," when she was taken in tow by the Augusta. The state of the wind and sea made the attempt of the Augusta to get lines from her very hazardous. The Ul'lmanageable condition of the Chatfield, pitching and sheering heavily upon a dragging anchor, made it dangerous for the other vessel to approach near enough to pass lines foi .the hawsers. In this attempt there was an actual collision. But the great risk to the Augusta after getting hold of It hawser was in fouling propeller with it,-a danger which would in all likelihood have been disastrous to both ships. It is useless here to go into the details of the evidence on these points. The signal service report of the velocity of the wind at Cape Henry on the morning of the 28th is in singular coincidence with the testimony of Catharine, master of the Augusta, and discredits that of the three Chatfield officers. Contrary to the statement of these latter, the wind and sea were so bad that it was impracticable to pass lines between the two ships by casting them with the hand; several attempts to do so having failed. A line was not successfully passed until a buoy was used to float it from the Augusta, when it was taken up by the Chatfield with grappling hooks. An ordinary ship's boat could not have been used for the purpose, and could not have lived in such a wind and sea. The Chatfield officers' asseverations to the contrary are not credible. The Chatfil(ld was dragging her anchor slowly and surely, by force of a current which would have landed her in time on that graveyard of so many ships,-the coast stretching from out where she was to Hatteras. It was not shown that any other steamer passed in the usual track of steamers off that coast on that day, and the only chance of the Chatfield for rescue from her peril, except from the Augusta, was in the return of the Brixham, upon which she had practiced a ruse. The service of the Augusta consisted in her having rescued the Chatfield from a sim-
494 i)j:lt, though,uot i .Bo,great,
, .vol.
tpat from Which'she had been resl:Brixham thl'l day i .', ., , ,r :b64warded... fn.;i(jetermining. the amount of salvage which ouglil,.Mo ,1!le awarded the Augusta in these cases, I ca.nnot:l 'e.,tripted by the awards of the admiralty <lourtsof hfewYorkcity in salvage cases.. The,qry-Iand court rule of qv,antum ,meruit, se long controlling in those under the powerand wealthy insurance companies located in that ful city, who aretbe real litigants i.llsalYllge Ci!.ses, baR .proved to be inade·quate to the requirements Qftbe.salyage service. ,The New York decithan eMoUrage, salvage daring and enterprise. ,sions To give, beaidllswhatis earned; an,8W/ird for successful risk and daring, is ofthees$f;'Jncel.ef salvage ,sf!rvice.. The great ocean steamers, which are effiQient salvo1'l'lof' vessel/'lin distress, are unwilling to deviate from their ached uled . .and toenco'U.Jilter the risks of difficulLand hazardOtlS for the lean compensation so generally awaJrd,et:i by the New YQrk courts; often after dilatory litigation, furthllJ'! protraoted by t-hedelay or appeals. .on the coast between .Cape Henry and,Obarlestonthedifficulty and· danger of salvage services great, requiring more liberal ll-wards for those which are .prove sucoessfulthan services rendered. in other&nd safer waters, on coasts. I feeld()1,1bly warranted,jherefore, !in pursuing .other a hlQI'eliberalpolicyin awards for l3alvage York prece,(1c:mtsareheldJojustifl"" Still itmust be the cases now under considerllt;ioncannot be cll!:ssedas of the bighest grade of merit. It the evidence that the actual cost to each of the vessels filing !lue. ohiefly to collisions whit;h they had with the saved ship in the, act of rescuing. her, has been in the ne;ghborhoodof$5,OOO. ·It il3with i a general reference to this fact that I will estimate the amounts I1wardoo> in these cases. The whole value IlRved.was about. 8435,000. The whole put at hazard in the case Qfthe Brixham was about $80,QOO,andJntbat of the City of Augusta about :$,44,0,000. I will sign a decree in of the :8rixham for $12,500, :l1fid in favor of the City of Augllsta for the sum 'Qf$15,OOO. These areinteuded to coVer I1nd include all claims of the respective vessels for. the l!-!UO,1;lllts reported by the commissiolle,r as actual dawages and expenses. cued ihy i ,'. I " , · ;,. " ·
.NOT;E.'l'J;tere no appeal from the foregoing deoision, $tid the amounts awarded paid as deoreell by the court. . " . Against part of the award in favor of the Brixham, a petition 'was1iled by the'MerrittWreoklng COlQpaqy, and elaborate evidence taken in to the claim set 11p' by The decision of the district court on the by the petItion . ,follows.' ', ,
;;(
SHELDRAKE
V.
THE CHATFIEI.D.
495
SHELDRAKE v. THE CHATFIELD.'
In re Petition of T:ttE MERRITTS. (DtBtrlct Oourt, E. D. Virginia.
JUly 18, 1892.)
1.
SALVAGE-PROCEDURE-CONTRIBUTION. BETWEEN SALVORs-JURISDICTION.
Under the admiralty rules, a suit must be brought al/;ainst the thing saved, or the person at whose request and for whose benefit the service was performed. Hence a proceeding by a salvor against a fund in court already decreed to another salvor, to secure cOntribution thereof under an alleged contract, cannot be maintained in admiralty.
2.SAlIlE-SUXTS. BETWEEN SALV'ORs-QoNTRAOT.
The ship B. had rendered salvage services to the ship C., and employed petitioner's vessel to assist her in completing the work. The master of the B., in enga. ging petitioner's velilsel, acted as agent for the C., and the terms of the contract of employment were disputed.. Petitioner's veBBel rendered no assistance, the service.haVing been. by a third vessel. This court having granted salvage to the B.,for the work performed by her, petitioner commenced this proceeding, claiming a share of the SU);jl awarded the B. on the alleged contract. Held, both on th&'evideirce as to the alleged contract, and also on the fact that a proceeding must. be brought against the vessel saved or the person requesting the that the petition 8houl(j. be dismissed.
In Admiralty. Salvage. Ex parte the Merritt Wrecking Organization, ona petition claimhig half of a: salvage bounty, which had been sued for as a chose in action by the libelant. T. S. for petitioner. 'Whitehurat &; Hughes, for the Brixham., HUGHES, District Judge. The case in chief was decided by tMs court oil the 14th of March last. 1 This petition had been filed on the 25th of February preceding. Upon the facts shown by the record, this court awarded the sum of$12,500 to the Brixham for salvage services rendered to the steamship Chatfield, of which $5,500 was 'intended in remuneration for expenses and damages incurred by the Brixham, and $7,000 as meritorious salvage service. This sum of $7,000 is now in the registry of the court. The service was rendered bythe Brixham to the Chatfield on the 27th of October, 1891, in taking hold of her when well out to sea, with a broken propeller, in a heavy gale, towing her the part of the day to an anchorage 40 miles southeastwardly from Cape Henry, and lying by her all nightof the 27th, until the next mortling, when the wind had abated, but the sea was still running high. The service of the Brixham to the Chatfield .was completed on the morning of the 28th, and was ne\'er resumed. For this service the award of salvage which has been described was made by this court. On the morning of the 28th, Capt. McFee, master of the Chatfield, deputed Sheldrake'll1aster of the Brixhdm, to come into Norfolk for the purpose of enga.ging a strong tug to go out for the Chatfield, and to give aid in towing her into port. Capt. Sheldrake came to Norfolk with the Brixham, in pursuance of these instructions of Capt. McFee, and engaged the Rescue, & strong ... J4911'ed. Rep. 479.