THE S. S. WILHELM.
169
to dollars and cents, be added to the decree; and, when the necessary subtvactions and additions are made, let judgment be entered for libelants for the result, with costs.
THE S. S. WILHELM. VANCE et al. v. THE S. S. WILHELM. (Circuit Court of Appeals, Sixth Circuit. November 6, 1893.) No. 52. 1. Where a decree of the district court in admiralty on conflicting evidence is sustainild by the circuit court on appeal, the circuit court of appeals will not reverse the findings below, though it might originally have reached a different conclusion. S. TOWAGE-Loss OF Tow. A tug with two vessels in tow, all lumber laden, bound down Lake Huron to Tawas, after passing Thunder bay, was struck by a violent northeast gale, with heavy snow. The master made allowance for leeway by sailing one point to windward of the usual course, but finding, from the shoaling of the water. that his distance from shore had decreased' from 5 miles to 3 in running less than 6 miles, he stood out for about a mile, and then resumed his former course, the water shoaling from 9 fathom,S down, for about 10 miles. When near Au Sable point, he again rounded to, In executing which maneuver the towline parted, and the tow went ashore. Held, that the loss was causEld by the negligence of the master in bringing his tow so near the shore, and the tug was liable therefor. 52 Fed. 602, reversed. ADMIRAI,TY-ApPEAL-WEIOHT OF EVIDENCE-FINDINGS BELOW.
Appeal from the Circuit Court of the United States for the Eastern District of Michigan. In Admiralty. Libel by Emery J. Vance and others against the propeller S. S. Wilhelm for loss of a tow. The district court dismissed the libel, (47 Fed. 89,) and, on appeal by libelants, its decree was affirmed by the circuit court. 52 Fed. 602. Libelants again appeal. Reversed. Harvey D. Goulder and Simonson, Gillett & Courtright, for appellants. F. H. Canfield, for appellees. Before BROWN, Circuit Justice, and TAFT and LURTON, Circuit Judges. TAFT, Oircuit Judge. The libelants and appellants, Emery J. Vance and others, owned the barge or schooner Mears, and filed their libel to recover damages for the total loss of the barge while being towed by the steam barge Wilhelm from Cheyboygan, Mich., to Tawas, Mich. The towline between the propeller and the Mears parted in a storm on Lake Huron, a little to the north of Au Sable or Fish point, on the wet3tern shore of the lake. The Mears went ashore and was broken up, and her cargo of lumber was completely destroyed. The libel charged that the loss occurred through the negligence of the Wilhelm, and pointed out five faults in which negligence was
170
FEDERAL. REPORTER,
vol. 59.
(1) That the'propeller wasn()t properly officered and manned. (2) Tha-t, the propeller 8.tttempted to tow the Mears and the Mid· night, another lumber·laden barge, across Lake Huron, during a violent and increasing storm, instead of taking them to the only accessible and safe shelter. in Thunder bay, as she could have done without difficulty, and as ordinary and prudent seamanship required her to do. ' (3) That after going about and holding her tow, head into the wind, about four miles .off shore, and attaining this position of comparative safety, she negligently resumed her course on a lee shore in a furious I":ale. (4:) In negligently pursuing a course down the west shore of Lake ,snowstorm,and with a ;heavy wind and Huron in a thick, sea from the, northeast·. without making sufficient allowance for the leeway caused by such storm and wind. (5) In negligently turning at full speed into the lake, so sharply as to part her towline, whel'eby the Mears was necessarily rendered sl1ch close pl'd,Jimity to the lee shore,.and her destruction was thereafter . All these· faults were denied, and after' a full hearing of the evidence the district judge held against the libelants, and dismissed the libel. . appea-l. the Circuit judge refused to disturb the findings of the district and affirmed the decree. . It is well settled that every presumption is in favor of the cor· rectness of a decree in adm.iralty,that comes into the court of last resort sustained by the district judge in the original hearing and the circuit ju(J,ge on am*al, and that the appellate court will not disturb such a decree unless a manifest mistake' is made clearly to appear. T;b.e .· 8.iPpellate. court will not reweigh confl.jcting evidence, upon such evidence, have reached a difthough it ferent conclusion from that announced ,in the courts below. The S. B. Wheeler·.20 Wall\385; 103 U; S. 540; The Quickstep,9 Wall. 669; Newell v. Norton, 3 Wall. 267. With this in faVOr of the appellees, we proceed to the considera· tion of the issues of the case. The obligation of the towboat to the tow is well defined. The highest possible skill is not required of the towing vessel. She' is bound to bring to the' performance of tlie duties she assumes reason· able skill and care, and to exercise them in eVCI'j'thing relating to the work until it is accomplished. The want of either in such a case is a gross fault. and the offender' is liable for the full dalDages resulting therefrom. The Margaret, 94 U. S. 4:94··497. .With reference to the first fault charged, namely, that the steamer Wilhelmwa,sJ:botproperly manned,there was no ,evidence whatever to sustain it, and the issue was properly found against the libelant. With reference to thesecorid charge; namely, that the master of the propeller was negligent in not taking refuge in Thunder bay, instead of proceeding on'his (:ourse to Tawas, a point 60 miles below Thunder bay the evidence wal:lvery conflicting as to what the condition of the wind and· weather: was at the time when it would have been possible to go into Thunder bay, and as to whether
THE S. S. WII.HELM.
171
there were any indications, upon which a prudent master should have acted, of the approach of the furious storm and gale which subsequently prevailed. Whatever might be our original view of this evidence, we think that there was no such preponderating weight in favor of the libelants' contention that we ought now to reverse the finding of the district and circuit judges upon this point. We come now to the third fault charged, namely, that the master of the Wilhelm, after rounding to and heading into the wind, did not remain in that position, but resumed his cO)lrse down the lake. It is conceded by all the witnesses in the case, and found by the district judge, that about 7 o'clock, or shortly thereafter, the tow was struck by heavy squalls from the northeast or east-northeast, accompanied by snow, and that from that time until the loss of the barges, about 2 o'clock in the afternoon, the wind blew a gale from the northeast, accompanied by heavy snow; that about 9 o'clock, when off Sturgeon point, a distance of about 25 miles from Thunder bay light, the Wilhelm, which was heavily loaded with lumber on deck and in her hold, lost her starboard deck load, and that this gave her a heavy list to port, and made her steer badly; that at this time the lead showed her in 7 fathoms of water or about 3 miles from shore; thllit thereupon she rounded to and headed into the wind while her cargo was being trimmed; that she remained in this position for 1i hours, working slowly to the windward to a point where the lead showed 9 fathoms, when she turned and resumed her course, S. i E., down the shore of the lake; that as she went on this course for 1i hours or 2 hours the lead showed that she was shoaling; that she rounded to again, and during this maneuver, or shortly thereafter parted the towline; that within 15 or 20 minutes the tows, which had failed to secure themselves by anchor or by sail, were aground, and were beaten to pieces. An examination of the evidence inclines us to think that it would have been much better judgment on' the part of the master of the Wilhelm to have remained head up to the wind when he first rounded to, until the fUIj of the storm had abated, than to go down the lee shore in search of the harbor of Tawas, which, confessedly, could not have been found in a snowstorm, with the wind blowing from 40 to 60 miles an hour. We think that the chances of saving his tow were very much better to maintain the position where he then was, in which he was able to make headway against the wind, than to move in the direction of a port which he certainly could not make until the storm had abated; but in view of the conclusion reached by the district and circuit judges with the witnesses before them, expert and otherwise, we should not feel disposed to reverse this case on such a ground, and are willing to concede that it was an error in judgment, not amounting to negligence or fault, for the master to resume his course. We therefore do not sustain the appeal from the finding with respect to the third issue. 'Coming'now to the fourth fault charged, that of negligently taking a wrong course too near the lee shore, we think the appeal must be sustained, and the decree reversed. The usual course of vessels from Thunder bay to Tawas, in
172
REPQRTER,
fair. weather, is S.· l W. .Thecourse sailed by the Wilhelm was S. i E.; that is, mastermadeap.owance for leeway by sailing one pointto the windward of the usual course. The master of the Wilhelm states that he passed Thunder bay light from 7 to 10 miles out, and that after running 35 or 40 miles, measuring by his log,he found himself 3 miles from shore, in 7 fathoms of water; that, in the 5i miles just preceding, his rounding to, the lead had shown a shoaling qf from 13 fathoms to 7 fathoms, which, the master himself admits, PrQved that his distance from shore had decreased from 5 miles to 3 miles in going less than 6 miles. It is in evidence, and admitted qn all sides, that along this shore the bottoll1 of the lake gradually shelves ,so that the lead enables the ,mariner to judge quite accurately his d,istance from the shore, and that 7 fathoms is about 3 miles upr.e, and.13 fathoms about 5 miles. The storm, which had begUnllt7:30, continued until 2 o'clock. This is admitted. It was and was admitted by, the master. to have been known ito tme, that under the influence of this northeast wind [and, leeWaY had been 2 miles inaprogresE! of less than 6 on S. i E. He pulled out. into the lake, he thinks, about 1 mile.,:Thisesti,mate was confirme!lby the cast of the lead, which showed'9 fathoms when he resumed his course. He filtill main· S. i E. He was then miles from shore. He ran shoaling from 9 fat1J.omsdown, for 2 hours, or about 110 If his leeway continued to be. the same, his distance from the shore, must have been reduced to less than a mile, and he would have brought up in the breaker.s near Au Sable point. There is nothing to show why the leeway did not continue t1J.e same in the undiminished violence of the gale. These facts, which do not seem to have; been considered by the learned judges below, are taken from the of the master himself, and make it mathematically demoil,stl'able that when he rounded to a second time, after running 10 he was in or near the breakers, and that his evidence, and that ot his mate, that they were then in 7 fathoms of water, and never less, and were never less than 3 miles from the shore, are un· true: Weftnd that the m3Jster, in the log which he prepared a week after,the 10\\'ls with a view to the litigation, says that the lead showed 6 or 7 fathoms. Hill, the master of the Midnight, the other which went ashore, now in the employ of the claimants, says that the captain told him that he got 5 fathOPl/if or less. 'l'wo testified in the circuit court after, tne :appeal. One of Robert Hovenden,waSi the notary w1J.o· took the master's protest and deliver,ed it to the master as soon as it was executed. SingularJY enough, the captain did,.not produce it, or explain its ab" )Iovenden testified tllat W. the protest the captain sUtted thathe was surprised at the storm,. which prevented him from see· ing the shore,' and wIlen he did see the shore he was so close to it inevitably, 4ewould have ,gpne on it, if he had not turned in doing.so the rope broke; that he did the best he could to save the tow, but he was not able to save it, because all of them would, go if he had ,not turned out.
173
Another witness, Bristol, a marine reporter, a.nd a correspondent of the Ohicago,Detroit, Oleveland, and other papers, who visited the scene of the wreck the day after, with the master of the Wil· helm, to find the barges, testified that the master said that he had expected to weather the storm and reach Tawas safely; that at times it would lighten up somewhat, and during one of these times he saw that he was quite close to the land, and that in putting his helm over hard, to sheer out and keep away from the land, in that way he parted his towline. These were wholly disinterested witnesses, so far as the record shows, and their evidence, which was clearly admissible, (see The Potomac, 8 Wall. 590; Packet Co. v. Clough, 20 Wall. 540,) fully confirms the necessary conclusion from the facts admitted by the master. This conclusion also finds strong confirmation in the short time which it took for the barges to ground after the parting of the towline. We think, therefore, that the presumption arising in appellee's favor from the decrees below is overcome, and we must find that it was the negligence of the master which brought the vessels into a position of great peril, a short distance off of Au Sable point. The master ought to have known that his course, if continued, would bring him into a position of such imminent peril that escape was only possible by suddenly executing the maneuver of rounding to with his tow in this furious gale. That was the natural result of his negligent navigation. Such a maneuver, executed in extremis, could not but strain the towline. and would probably cause it to part, either in the maneuve:c or soon after. The parting of the towline near or in the breakers made the loss of the barges, cast adrift with no time to anchor or set sails, a matter of minutes. We are therefore of the opinion that as the negligence of the master, in bringing his tow so near to the shore, might have been expected to result in the loss, (The Elfinmere, 39 Fed. 909,) it was the proximate cause of the loss. It is no answer to say that, had he kept out in the offing, the fury of the storm might there have parted the towline, and cast adrift the tows to destruction. Whether the towline would there have parted, or whether the tows, if cast adrift in the offing, might not have anchored or set sail, and have ridden the storm safely, we cannot tell ibut that the loss, as it {lid occur, was due to the negligent navigation of the master of the Wilhelm, is certain. To relieve the Wilhelm of responsibility for negligence, the burden is on her to show that the loss would have followed, even if the master had not been negligent, and that burden she cannot sustain. It is said that whether the rounding to was sudden or not was an issue of fact before the district and circuit judges, and that they fOund that it was careful and deliberate. We do not so understand their finding. They found that the rounding to was not {lone in a negligent manner, under the circumstances, and we do not disagree with them. The language of the district judge is as follows: "Lastly we come to the parting of the towline. It is said this was caused by too abruptly turning about in making the maneuver of hauling head to the
174
FED:JllRAL
59.
wind off. 'p?.tnt..It seems to q¢,te idle to seek for other \cause. for of towline than resistless force of tb.e storm itself, (}es.cMbeil· in the proOf,' 'whlch swept yute. Huron. .Why should we go below the decks of thlspropeUer, lll.boringlili a mighty storm, from which her cargo waif being swept by the angry waters, to examine in her :flooded engine room,her diminished. steam and somewhat shackled· engine, listen for the sound or .signal above. the howling of the furious winds, watch the hasty and trempllng movementa of her death-threatened officers and crew, to Inquire· wbether this turning to the Wind, almost in extremis, for safety from the driving storm, was more or less abrupt In Its relation to a towline chafing in the. chook, although sufflcientlyparceled, they say, or whether everything was done precisely as it ought to have been done In the face of such an extraordinary storm, When we find in Its violence a tre"mendous and unusual force, abundantly capable of causing this disaster? The court finds the parting Of, the Une to have been caused by the fury of the storm, and that it was an act of God,againstwhlchthe owners of the WiIhelmdid not insure the vessel of the libelants." . !
is obvious Jrom t}le foregoing that the question whether the :maneuver was:a .sudden one or not, .and whether the towline parted during its execution or not, was immaterial, in .the view ·of the district judge. He thought, and so do we, that the maneuver was under circumstances where careful and deliberate action was imand that it was. in extremis" and that, therefore,. negligl1nce was not chargeable. We fully agree with this, but it seems to thatthe extremity in which the master found himself \yasone to which, by proper navigation,\he would not have been exposed. We do not know that itls mater.ial whether the towline parted in the maneuver, or shortly because it was something was ()bligedto contemRlate as possible or probable, which the apd to provide, against loss. from, by keeping far enough off the shore to enabJe'the tows to shift for th'emsel-ves, if cast adrift. However thisma;rbe, our conchision as to the circumstanGes of imminent peril under Whioh the tow was rounded to, taken in connection with the other evidence, makes it clear to us that the line parted the was and that it was caused by the CQnllequent ,extra strain. In .this conclusion we do not overrule a fin4ipg of the court which. originally heard the case, because, as already shown, the issue was not regarded as material, and the evide:p.ce was not weig-hedwith a view toa definite conclusion thereon. The decree of the court below is reversed, with instructions to assess the damag-es of the libelants, and enter a decree in their behalf' for the amount assessed. j
THE PORT aDELAIDE.1 PERRY v. THE PORT aDELaIDE. (DIstrict Court, E.D. New York. December 12, 1893.) CaA;R1:E;R PA;R1,'Y WHOJ,E __ EXTltA FREIGHT PROPERTy OF CHARTERER-LIEN. DEVIATION-
Libelant chartered thewho'le ofa ship, and loaded her for a voyage from New York to aden, amoy, Shanghai, and Yokohama. 'l'he shiI)-
1Reported by E.. G. Benedict, Esq., of the New York bar.