THE MICHIGAN.
501
THE MICHIGAN. PRINGLE
et al. v.
(Circuit Court, E. D. Michigan. December 8,1891.)
1.
COLLISION-BuRDEN OF PROOF-VESSEL AT PIER-ST. MARY's CANAL.
It is not negligence or an obstruction to navigation for a vessel which has passed through the St. Mary's canal, and is necessarily detained at its western entrance awaiting to tie up to the north pier, where the canal is 300 feet wide, at a place designated by the cana.1 superintendent, in pursuance of the authority given him by rules 8 and 12 of the re/il'ulations prescribed by the secretary of war for the government of the canal; and If, while thus moored, she is struck by an incoming vessel, the presumption is that the latter is in fault, and the burden is on her to show that she is free therefrom, or that the collision was the result of inevitable accident.
I.
SAME.
It appearing that incoming vessels usually moor to the south pier, and that in order to do so safely, and avoid a prevailing tendency to sheer towards the north pier, they oustomarily come in slowly, and send out their lines for the south pier when abreast of the lighthouse at its western end, a vessel which moves in at the rate of 4 or 5 miles an hour, and does not send out its yalVl until it has passed 750 or 800 feet beyond the lighthonse, is negligent; and if she sheers·so as to prevent the line from reaching the pier, and ie thus carried against a vessel properly moored at the north pier, she must be held liable for the collision. ..
In Admiralty. Libel by Thomas Pringle and others, owners of· the schooner Delaware, against the schooner Michigan, for collision. The district court found that the collision was the result of inevitable ac.cident, and dismissed the libel. Libelants appeal. Reversed. H. a. Wisner, for libelants. R. T. Gray and Jt', H. Canfield, for respondents. JACKSON, Circuit Judge. In this case libelants and appellants seek to recover the damages sustained by the schooner Delaware from a collision with the schooner Michigan, w.hich occurred about 2:40 or 3 P, M. on April 30,1890, at the westerly entrance of the St. Mary's Falls canal. It is alleged in the libel, and established by the proof, that the schooner Delaware, havin!! no cargo aboard, was bound on a voyage from Buffalo, N. Y" to Ashland, in the state of Wisconsin; that on the 29th April, 1890, she was locked through the St. Mary's Falls ship ·canal at Sault Ste. Marie, Mich. That, upon getting through the canal, she was weather bound, and unable to proceed on her voyage without the aid of a tug or steamer to tow her; that the only assistance she could obtain was from the steamer Ohio, which also came through the canal about the same time, having in tow the schooner Sheldon, on which her cargo had to be lightered in order to get through; that being unable to proceed alone, and having to await the departure of the steamer Ohio, wbich was detained the greater part of Apfil30, 1890, transferring her cargo from the schooner Sheldon, the Delaware lay moored to the north pier of the west end of the canal, nearly abreast of the Dummy ,or Skeleton light, and just astern of the steamer Ohio, which had her tow (the Sheldon) outside and alongside of her; that the Delaware tied
502
FEDERAL ,'REPO-a'l'ER,
vol. 52.
up to said north pier, at the place designated and directed by the canal regulations established for superintendent, who, under ',the the use and government of the canal, had the authority, not only to per· mit the Delaware to moor tothe<pier:, but to designate the place of moor· ing, the eighth rule for the government of the canal, established by the secretary of war'under the act ofoongress approved July 5, 1884, being as follows: boats lUay be moored to ,the piers only when specially p¢mitted by the supedn.tendent, [of the canal,] and then only such times8s he may direct." By the twelfth in "no ves$el or boat shall in any way obstruct the rule it is canal or delay'Ill passing through,unlesspermHted to do so by the proper authp.r,itt;The neglect of aoy lawful order shall be construed as obstruoting the free navigation oithe cllnal.» The proof establishes that it was usual and customary for boats and vessels coming through the canal from the east to be tied up or moored, by permission and under the canal su perintendent, along the north pier thereof, the at the westerly entrance, and extending down said pier to near the bridge crossing. Tbecanal, at the point where the Delaware lay moored 300 feet in by the permiasion and direction of the width, and the navigable space betweentbe port side of the Delaware and the south pier of the canal, along which vessels coming in from the west . usually passed, was about SOO feet, was entirely free and unobstructed, andafl'orded ample passage way or room for all boats using the
While ,the 'Delaware was thus lying at said north pier, on the afternoon of April 30, 1890, the propel,ler J. Emery Owen, towing the schooners Michigan and Nicholson, came down the rivet from the west, with a strong northwest wind, blowing at the rate of from 20 to 35 miles perhourjarid{qe schooner Micl1igan, failing to get a line to the south pier of thecallaLto check or hold her, from some cause sheered to the windward or northward; and struck the Delaware at her mooring, and greatly inJured 'her. The libel charges that the Michigan's failure to obtain the assistance of a tug, or' 'to get ,her line or lines to the south pier, where snubbing posts or piles were placed 'to enable descending vessels to check and control their movements, was careless and negligent navi· that the Michigan was neggation and management, and further ligent in not having her head sails ready and in position for use, so as to pay her off with the wind when the sheer towards the north pier commenced. The collision and damage'thereby resulting to the Delaware it is charged was occasioned solely by the negligence, unskillfulness, and carelessness of the persons navigating the schooner Michigan. The respondent admits the oollision, and' that it occurred at the time and.placestnted; and while the Delaware was/moored at the north pier, but seta .up; by way of defense-FJirst,tbat the officers of the Delaware, ioso mbomngtb,eir vessel, were obstruoting'the free and proper navigation of the canal, and were guilty of great carelessness and want of skill and prudent judKment, and that no permission or direction of the canal superintendent to moor at that pointt»uld operate to relieve said schooner
canal.'
. .
.
503
from the consequences of such want of skill and prudent care on thE. part of her officers, and that any damages the Delaware may have tained while so lying at said pier, from vessels entering said canal, were the direct and inimediate results of the carelessness and want of skill and proper navigation -of said vessel by her master; and, second, that the Michigan was in no fault, and guilty of no neglect, in failing to use ber head Elails or employ the assistance of a tug or in getting her line to the south pier in the usual way. It is alleged by the respondent that the strong northwest wind prevailing at the time"Caused an unusually strong current. and set back towards said north pier, which rendered the handling of said schooner Michigan extremely difficult; that said wind created a very heavy swell, breaking directly on the southerly pier of said canal, preventing the men sent in a yawl for that purpose from affecting a landing and getting out a line to snub said schooner Michigan, and bring her alongside of said southerly pier; that a line was sent from said schooner Michigan by its yaWl at the earliest moment possible, but the men so sent in said yawl, using all possible skill and care. were unable to get said line to the piles on said southerly pier, and were unable to bring their said yawl alongside of said south pier. so that the meneould land thereon; that Michigan was placed hard aport as early 88 prualthough the wheel of dently coul<l be. and was in that position when said schooner Michjgan was abreast of the lighthouse, on the extreme west end of said south pier: that, the although _ wheel remained in that position. yet said schooner Michigan, after passing the propeller Ohio, took a sheer, caused by the action of the current,- Wind, and swell, and struck said schooner Delaware." The district court made no finding or ruling as to whether the Delaware was lying or moored in an improper or exposed situation, so as to charge her with fault or negligence, but having reached the conclusion that the schooner Michigan was not guilty of any want of care 01' proper navigation and management, and that the collision arose from inevitable or unavoidable accident, dismissed the libel. From that judgment or decree the libelants have appealed. The first· question to be considered and determined is whether the Delaware was chargeable with fault in being tied up or moored at an improper and exposed place. This courl is clearly of the opinion that, under the facts and circumstances of the case, as shown by the undisputed proof, no fault or negligence can properly be imputed to the Delaware in mooring where she did. She tied up by tbe permission of the canal superintendent, and at the place designated by him. She tied up there when only a fresh wind was prevailing. She was unable to proceed alone. She became weather bound, and was compelled to await the movements of the steamer Ohio, who was lawfully detained while It was usual and customary transferring her cargo from tbe for vessels and boats, under permission and direction of the superintendent of the canal,to tie up where the Delaware was moored. She in no wise obstructed the free and proper navigation of the canal while thus lying at her mooring; there being, at least, 300 feet of open, navigable water between her port side and the south pier of the canal oposite her position. Wben witnellses for respondent say that her position wa,sa
504
FEDERAL REPORTER,
and unsafe one,they must be understood to mean, not that her position W8S in the line of or obstructed the proper and free navigation of the cimal on the part of other vessels, but simply that, if vessels coming in or down from the west failed for any reason to make a line to the south 'pier, there was more or less danger of their sheering across the canal towards ,the north pier" and striking boats moored there. This is clearly explained by persons (recalled on behalf of respondent) who state that the only danger to boats mooring at the north pier was from vessels that failed to get their lines to the south pier, so as to hold and control when coming in. It is shown by the evidence that intheir coming vessels rarely, if ever, failed to get their lines to the south pier, when exercising. proper care and reasonably prudent management. It is also sllOwnthat the snubbing line thus usually carried to the south pier controIle.tIthe movements of the vessel, and kept her in proper poSuch lines sometimes broke when too weak or defectiv43" or vessel hadioo much headway. ordinarily vessels coming, in from the, west made their Jines. to. the south pier, and th us controlled their movements. and a weather-bound schooner like the Delaware, proceed'; ort her voyagefllone, and compelled to await of the only b,?at shecou'ld obtain to tOw, her, is hardly to the be condeIl1l;le4),nd found guUty otpegligence in obeying the directions of superintendent in mooring where she and in assuming that vessels coming in would make their lines to the south pier in the usual way. In The Mary Powell, 31 Fed. Rep. 624, Judge BROWN says: ' r '''By'dahgeriius exposure,' 1 understand; not the mere possibility of injury through sdmeIilischance not reasonably likely to occur, but an exposure tbat is cleady, liable to receive or inflict injury, in the ordinary ,of navigation, such as are to be reasonablyappre-hended 88 liable. to ,arise."
Tested by this rule, the Delawar,e'splace of mooring,cven if it bad heen voluntarily selected by her officers instead of being qesignated by the .canal superintendent under authority of law,cannot properly be said tobave been cUlpably or negligently improper. By the twelfth rule for the government of the canal, if the Delaware, while weather bound and unable to proceed alone and awaiting her only obtainable motive power, had'moored anywhere else than the place designated by the superintendent, she would bave been .cbargeable with obstructing the free navigation of the canal. In obeying the lawful order of the properauthority,she C'annot have it 'imputed to her as a fault that she either obstruoted the free nR\'igation of the canal or that she did not anticipate the contingency of some "essel coming in, failing to make its lines to thesQuthpier as usual, whereby she would be exposed to the ungoverned and Uncontrolled movements of such vessel. This court finds I therefore, as matter of fact and conclusion of law, that the, Delaware, 'llt the time of the collision, was not obstructing the canal; that she was properly moored and in a proper place; and that no faultis agaIllsther in connection with said 'Collision.
505
The Delaware being free from blame, and lying at anchor or properly moored, the burden of proof is upon the respondent to show either that the schooner Michigan was without fault, or that the collision was the result of inevitable accident, under the well-settled rule that where a moving vessel collides with another at anchor, or properly moored, the former is presumed to be at fault, and liable for the damage, and the burden of proof rests upon her to exonerate and clear herself. The Clarita and The Clara, 23 Wall. 13; Steamship Co. v. Calderwood, 19 How. 246; The Rockaway, 19 Fed. Rep. 449; Th6 Echo, Id. 453; The Brady, 24 Fed. Rep. 300. It is not material to consider the special faults or acts of negligence alleged against the Michigan in the libel. It is clearly shown that, by the employment of a tug then on hand at the west entrance oithe canal, she could have controlled her movements. It is also made highly probable that, if her head sails had been ready for use, they could have been employed to counteract her sheer, by paying her off with the wind to such an extent as to have caused her to miss striking the Delaware. It is shown by the proof that the northwest wind, which was blowing strong as she came in, produced no sea to interfere with her own movements or proper control. The effect of that wind was simply to produce a small, choppy sea, which was not sufficient to prevent or materially interferwith a yawl from carrying a line to the south pier. It is disclosed by the proof that the first movement or tendency of the vessel coming in was to sheer towards the south pier; that, after getting well into the mouth of the canal, there was next a tendency, more or less strong, under different circumstances and conditions, to sheer towards the north pier. The position of the Delaware was seen by the officers of the Michigan. They were also well aware of the fact that, with a strong northwest wind prevailing, the Michigan was more than ordinarilyliable.to take the second sheer towards the north pier on account of her big cabin aft and large pilot house, which her master states caused her to sheer that day so suddenly. They also knew that, if they failed to get a line to the south pier So as to use their snubbing line in holding and controlling the Michigan, she would, in sheering, collide with the Delaware or some other vessel moored at the north pier. The distance between the lighthouse at the west end of the south pier, and the Skeleton or Dummy light on the north pier, where the Delaware was tied up, is shown to be 1,500 or 1,600 feet. When the Michigan passed the lighthouse at the i'lnd of the south pier, her yawl, with three men, was ready and in position to be sent with the heaving line to said pier. It was, however, not started for the pier until the vessel had passed about half the distance between the two lights, say 750 or 800 feet from the lighthouse at the end of south pier. This is the testimony of Calista D. Bornier, an i'lmploye of the canal, who was on the south pier abreast of the Michigan, and who had met the schooner at the west end of said pier, and followed her down. Cadotte, the master of the Michigan, expresses the opinion that his schooner had passed the lighthouse at west end of .south pier"about 500 feet, when the yawl was started for said pier. The
506
FEDERAL' REPORTER,
vol.
,I'j2.
moving atitflierateoffollr or five an hqur after. passgooo. steerage ing theUighthouse. Threepmiles an wliy., Dds; Shown by the testimony6f respond.ent's, witness Bornier that itris:ndt easy for ayaw!totnnke'alanding when the vessel is going four. or five hour. He further states the speed at which the Michigan was moving was a little too fast for her yawl to make the southp'iersa,fely., It is also shown that, just about the time the yawl, liriEl"reached or approached near to the south pier, the took the.sheet that carried her over to thenQrth pier, and against the Delaware. The proof is conflicting as to the length of line whiclifthe yawl carried, but the respondent's witness Joseph Gammond, who<wt1is:in'thebest positiOn to know the fact,states that the line betha.t be ,was sticking it out from the boat going into the docki , ghdi' he'ful'therstates, in answer to the question, "When the yawl boa:tcameuptowards the pier, when you had, as you say,a fathom and't'"halflto:two fathonisof line in the yawl, did you have enough to toss'it:tQJthgtnan, [on the pier?] . No; there wasn't enough to reach the dook.!!: line,by means of which the snubbing line is drawnupoQ:the dock, could, readily, as the proof shows,have been frolP' :25 to 30 feet, if. of,snffioient length. 'l'he witness Gamyawl boat with the heaving line. There were'uien:on the pier. ready to catch or;J1eceive it if the line had been throWll ortossedito the,moidtwas noUhrowll,and for the teason stated by said GaIrimond, viz."there,was not enough of that line to reach the pier. It is perfeet1yclear, therefqre, that the yawl was started from the schooner with a, line insufficient in.length to reach the pier, or that it was started so late'thatithesheerofthe Michigan took place before the yawl could reach the pieumd that'drew the line away. In either case, there, was fault ·and bll.d!riIlDagement on the part oBhe Michigan. It is stated by the witness Jollri' Ivers that vessels going in from the west generally go pretty sloWithat,hisvessel went at tlie rateofahnost two miles an hour. Other witn'esseasaytheslower the better. Ivers further states that the yawl boatcanying the neaving'line·,to,the south pier is usually started .abreast of the lighthouse at. the west end of the south pier; The Mich'igall passed the pOint from, 500 to 750 feet before she started her yawl. She bad in ,faet, I)llar1)1' reached the 'position at which she would sheer ·towards thenorih pier,when the yawl; with the heavjng line, was started,snd the expected sheer took place before or just as the yawl \x)all reached,the,pier,'wid:h no supply of heaving line t()cast upon the dock. O'Donnell," the ma.te of the Michigan, states that schooners com· ·ing in, as the' ;Michigan was, are generally handled with both forward andaft·'lineS; fDheMichigan, however, sent out hut the one forward .line. That :!inElwas, too.short, waS sent out too. late, :land it failed to ,reach the dock,,: . .Her: o"flice1'8 knew that a failure to get her line to the Jsoutb pieri would involve the safety of! other vessels on the north pier. Theyknew,from;.thediTootion and strength of the wind, that care and diligenoe were,required in the management of the vessel, and, they 'content tQentselveswith sending out a single line of insufficientlength,
"THE'MICHIGAN.
507
starting it later than usual, and with their vessel faster than was prudent under the circumstances. . To call an injury resulHng from such conduct and management an"inevitable is a misnomer. A collision is said to occur by inevitable accident when both parties have endeavored by every means in their power, with due care and caution, and a proper display of nautical skill, to prevent the occurrence of the accident. This rule, announced in The Lochlibo, 3 W.Rob. 318, was adopted by the supreme court in Union Steamship Co. v. New York &; V. Steamship Co., 24 How. 307313. So in case of The Morning Light, 2 Wall. 550, it is said that accident" may be regarded as an occurrence which the parties charged with the collision could not possibly prevent by the exer-· cise of ordinary care, caution,and maritime skill." The definition of inevitable accident given by the court in The Grace Girdler, 7 Wall. 203, does not conflict with that of the earlier cases, when it is said: . "Inevitable accident is where a vessel is pursuing a lawful avocation in a lawful manner. using the proper precautions against danger, and· an accident occurs. The highest degree of caution that can be nsed is not required. It is enough that it is reasonable under the circumstances; such as is' usual in, similar cases, and has been found by long experience to be sufficient to answer the end in view, the safety of life and property. Where there is a reasonable doubt as to which party is to blame, the loss must be sustained by the party on whom it has fallen." In The Olarita and The Clara, 23 Wall. 13, it is said that"Unless it appears that both parties have endeavored by all means in their power, with due care and a proper display of nautical skill, to prevent the collision, the defense of inevitable accident is inapplicable to the case." Whether the proper degree of care and caution has been exercised or neglected must be determined in all cases by references to the situation of the parties and all the attendant circumstances. Diligence and negligence are relative terms. The duty to exercise the one or to avoid the other is dictated and measured by the exigencies of the occasion. In proportion to the urgency of the situation or greatness of the necessity, the greater must be the oare and vigilance employed. This is well expressed by the court in the case of The William Lindsay, L. R. 5 P. C. 338; also reported in 8 Moak, English R. notes 261, where it is said, in reference to inevitable accident: "Now, the master is bound to take all reasonable precaution to prevent his ship doing damage to others. It would be going too far to hold his owners to be responsible because he may have omitted some possible precaution which the event suggests he might have resorted to. The rule is that he must take all such precaution as a man of ordinary prudence and skill, exercising reasonable foresight, would use to avert danger in the circumstances in which he may happen to be placed." It does not appear that the Michigan took any precautions to meet the contingency of her failing to get a line to the south pier. Could she cast upon other vessels the entire risk of such a contingency? Can it be said that without reference to her speed, without reference to the time Of
508
place when or at which her line should be started for the dock, and without regard to the length of such line, a moving vessel can throw upon other vessels, properly moored or at anchor, the contingency or chance of her uncontrolled movements in the event her line fails to reach the pier, and that the stationary vessel must bear the consequences of such failure, as being the result of an inevitable accident? No case cited by counsel for respondent has gone to this extent, and so to hold would be to press the rule of inevitable accident beyond all sound principle. It is urged on behalf of respondent that, under the rule laid down in The Grace Girdler, 7 Wall. 203, "the court must find beyond a doubt that ordinary prudence and skill required her [the Michigan] to have used other means of getting the heaving line to the piers; that if the heaving line ,had reached the pier, the snubbing line could have been handled in time to prevent the accident," before the Michigan can be found guilty of a fault or be condemned. This position is not sound. The Delawl\repeing at anchor and free from blame, the burden of proof rests upantheMichigan to clear herself from fault. It was not incumbent upon: the-libelants to show affirmatively that she was guilty of negligence, or failed 'to exercise proper care and skill under the circumstances. The btirdenis upon her to exonerate herself from blame. We may not and should not speculate, after the eV\lnt, asto what acts,or precaution might have prevented the accident; but it is clear, from, all .the facts and circumstances of the case, that the Michigan has failed to show that the collision was the result of inevitable accident. The court is also of the opinion that she has failed to rebut the presumption of fault which ather from having collided with the Delaware while the latter was properly nioored, and, furthermore, that the evidence establishes that she wai;1 guilty of negligence and mis,management in tllEl already mentioned,especially in reference to the line she to send to the sputh ,pier. " the court upon tbeabove case is that the decree of the distdQt court dismi.ssing the libel should be reversed, and that there a decree for the libelants,with the costs of this and the 10WEI!court to be tllxed,al)d it is accordingly so ordered and adjudged, witllthe .direction for such reference as may be necessary or desired to asoertain the amollnt libelants are entitled to recover for the damages done to or sustained by the Delaware.
509
et al, v.
(Circuit Court, E. D. Michigan. June 14, 1892.) WITNESSES-PER DIEM FEES.
Witnesses attending federal courts are not entitled to the per diem fee of $1.110, in addition to their mileage, for time spent in coming to and retnrning from the place of trial, or for time occupied previous to the day of trial in conference with counselor proctor.
In Admiralty. On motion to correct taxation of costs. on the merits, see 52 Fed. Rep. 501. H. C. Wisner, for libelants. R. T. Gray and F. H. Canfield, for respondents.
For opinion
JACKSON, Circuit Judge. This cause is now before the court on motion or appeal to correct the taxation of costs made herein against respondent. The question presented relates to the proper taxation of witness fees in favor of libelants, and arises upon the following stipulated facts, viz.: "(1 case occupieq two days in its trial. (2) That all of the time taxed by thelibelants for tbeir witness fees, over and above the two days occupied in,tbe trial of the case, was the time used by such witD'.lsses in traveling to and from the trial of the cause, excepting that some of the witnesses, at the request of libelants' proctor. arrived one day before the trial of the cause, for purpose Of" conf,errin"g with libelants'.'vroctor ,in regal'dto the case. (a) That all of said witnesses, excepting Thomas L. Pringle, were actually paid the amounts stated in the bill of costs. (4) That the affidavit attached to the bill of costs, in which it is stated that the witnesses attended thenumbetofdays therein stated, refers to the time used by the said witnesses. as above stated, and not that they Were in the court for that number of days."
It i.$ conceded that the taxation of costs is correct, if libelants' witare entitled to fees while coming to and returning from the trial, but that, if their fees are to be determined by the time they were in attendance upon the court or trial, then the taxation in libelants' favor is too much, by the sum of $25. The statute provides that the witnesses shall receive for each day's attendance in court, pursuant to law, $1.50, and 5 cents a mile for corning from his place of residence to the place of trial or hearing, and five cents a mile [or returning. We think it clear, from the language of the statute and from the provisions for mileage, that witness fees cannot be properly taxed for the time or number of days occupied in coming to the place of trial and in returning. The mileage allowed is intended to cover that time. n is. ,equally that the time occupied by a witness in conference with counselor proctor before the day fixed .for trial or his attend. ance cannot be taxed as a "day's attendance in court." Witnesses, un·