'it,h,e 12"tO'nC,hing: further <l9W't; The hiswpr of this rule;and,of the t.e, supreme. court :out' of' which it arose, 'and also the l;1istqr,y qf:itsl1Pplication .with reference to the discretion which that court lJ,St\9 in regarQ. to the of further proofs in show tblitt.the whole Sttbject-matter is flexible, and pecnliar ,necessities of the appellate tribunal ap.d of; they cllange from time to time. The rule was no,t 2 Wbeat. vii. Prior thereto, witnesses were viva voce in the, supreme court. U. S. v. The Umoni 4: 216; The.l;lanlUe1,3 Wheat. 77. The generc1l p'l'incipler:equiring. sO,me satisfaetory ,to the court"fol' not taking, ;W. the proofs asked to be taken in the' supreme court, i stated'in The Mabey, 10 Wall. 419,420. It is by Judge Story'iD/,Cdffin v'.,Jenkins j ' 3 StOl'Y, theeftect that the appellate tribunal ought to be "very cautious in admitting, any new, matters." The ammUltot:\n}siness inthiIJ court does:pot require that in the rules to onthia topic we should do more: than protect the and guard li1dgants from delays in the trial of ,I. . ' : .' ]'oUowing,The 10' Wall. 419, amendments in matters of on ,appeals in instance causes cannot be granted in this court, andwitb'reference to that topio we must follow the pm,ctice IaiddQwn dn that: case. Page 420. In consideration that thepmctice touching the subject-matter of this opinion has not been settled heretofore, we have not particularly scrutinized .the circumstances of this application. The Mabey, 13 Wall. ,738,741. The t;J1Qi;ion to introduceadditionaJ proofs, filed December 7, 1893, is allowed.
t),'l,";,L'"CL"q,'¥"rt,'
X!ilr9 HUMBOLDT LUMBER MANUF'RS' ASS'N. WistrlctOourt, .N. D.· California. February 21" 1894.) No. 9,162. t ,
1.
Code..,CI'\l\Proc. ,Cal. § 377, provides that, where death of a person is caused by tlle wrongful act of anot:tJ,er, the hell's. or personal representatl"les ;ot, the deceased may maintain an action tor damages against the, $0 causing the death. The: con!Jtitutlon and Political Code of t4e western bOundaryot the state, andot its counties, on . the pacific' 9cean,' thi'ee miles west ot the shore. line. Helll, that the tel'. ritorif!.l' . .of the .· state extellds ,OVer this t:tJ,ree-mile belt. and sucbsectloii'.87i7: 'gives a right ot action 'tor'wrongfuI death occurring on . the hig:tJ, sl!lij'l two miles from the shorel . . J
DEATH :J.'l11'
ACT:--:JU;RISDICTION-HIGH SEAS.
The death of a person was caused by the capsIzing of a schooner two miles. from the shore Une of Humboldt ,county, Cal. The crew were drowned, and the personal representatives of some of them brought actions in the state court against the owners of the tug which had the schooner.in tow at the time of the accident that the admiralty court for the px:oper district, has juriSdiction to stay such actions, to de-
LtA1ULITY.... DEATH':sV WRON?,FUL, ACT.
IN RE HUMBOLl>T LUMBER MANUF'RS' ASS'N. ,
429
termlne the liability ot such ownerS under the limitation of Uabllity act. and to enforce the rights that accrued to such representatives under the laws of California by reason of the acts complained of. .. SAME-NEGLIGENCE-EvIDENCE.
,
The schooner Fidelity, in tow of the tug Printer, was <:apslzed while crossing Humboldt bar, and all hands drowned. This bar is so shifting, and the channel in consequence so uncertain and dangerons, that it cannot be navigated without a skillful pilot. At the time of the accident the tide was strong ebb, running four knots or more an hour, and there was an adverse wind, blowing about nine knots, which was strong enough to back the ebb tide. The bar was extremely rough, the sea breaking in six or seven fathoms. of water. The captain and mate of the tug testified that the schooner was capsized by an unexpectedly heavy swell, because she had no ballast, but they did not pretend to discovered this when they took her In tow; and she had made a voyage of 500 miles before reaching the bar, in. a stormy season. A number pilots and seafaring men testified that the condition of the bar: at the time made it unsafe to attempt to tow across It, and the lifeboat was unable to reach the capsized vessel. Held, that the accident was due to gross and inexcusable negligence on the part of the master of the
tug, .
"SAMB-LIMITING LIABILITY-PRIVITY OF OWNER.
On a libel for damages,the question whether there was not such I>rivIty between the owner and the master in the negligence of the latter as to tl/.ke the case out of the provisions of Ule llmited liability act will not be considered when the amount of damages proved 18 less than the stipulated value of the vesseL Under Code Civ. Proc. Cal. § 377, which provides that for the death of a person by the wrongful act of another "such damages may be given as under all the circumstances of the case may be just," $7,000 is just compensation for the death of a shipmaster, aged 35 years, whose wages were $100 per month, and who left a widow and two children; and $(),OOO for the death of a ship's cook, aged 39 years, who received $50 per month, and left a widow and three children.
SAME-MEASURE OF DAMAGES.
In Admiralty. Petition·of the Humboldt Lumber Manufacturers' Association, charterer of the steam tug Printer, for limitation of liability under sections 4282--4289, Rev. St. U. S. Claims interposed by Olivia Christopherson et aI. and by Mathilda O. Pederson et aI. for loss of life, and by George W. Rager et al., part owners of 9-32 of the schooner Fidelity, for the loss of said vessel, alleged ·to have been caused by the gross negligence and unskillfulness of the master of the steam tug Printer, in towing the Fidelity over Humboldt bar on November 16, 1889. S. M. Buck and Milton Andros, for petitioner. J. N. Gillett, L. M. Burnell, Henry L. Ford, H. W. Bradley, and J.F. Coonan, for respondent. MORROW, District Judge. On the 16th day of November, 1889, the schooner Fidelity, while being towed from the Pacific ocean into Humboldt bay by the steam tug Printer, was capsized on Humboldt bar. The captain and all hands on board the schooner were dro·wned, and the vessel itself drifted away, and became a total loss. On March 17, 1890, the Humboldt Lumber Manufacturers' Association, charterer of the steam tug Printer, filed a petition in this oourt, setting forth the loss of the schooner Fidelity, and' alleging
,"" y:.
430
,i'.'f ·..
'
vol. 60.
'.-:;r
that commenced agaJn.stthe peti.CQ;Q,ii; of ttmnboldt county by persons claimtioner in' ing damages aggregatmgfT5,OOOl:tharged to have accrued to plaintiffs by reason of the loss of the lives·of the master and two of the efilployesof, the schooner Fidelity. ;Petitioneralsoalleged that it was, ,and, that other persons woll1d Claim damages tOi;the 10$,of life property in said disaster,and that it desired, to contest its liability, and the liability of, the steam tug Printer,.for the less of the schooner Fidelity, her cargo, master, and crew,' ap.(lalso 'to claim' the benefit of the limitation of petitioner's liapUitY'p.nder the provjsions of sections 4282--4289,inclusive, of the ReiViised Statutes of the United States. Thereupon an order waserite1'ed by the court eitingallpersons whohad suffered any by the Fidelity to show an of.the tug Prlllter should not be made"and, why the petitioner should not have such other and fur"thar relief" in the premises' as might be meet and;'proper, and, in the mean time, all persons who had brought suits against the petienjoined ,from the ,prosecution of the the.'coplJl1eJ;lcement and prosecution of all and any l!luitl!liagalnst the petitioner as owner or char,teter <lfthe steam ·,tug Printer;Jahd in rem "ltgain:st the steam tug Printer, fol' and on account of any loss or damage arisingifrom the loss of the schooner 1, Wplf/ /l:n of the ,eS,tateofone.who had the dlSa$ter, and who, ,plioJ,' to the'filing of the.petition in this case, hadeommenced a suit in the state court ford'amages fmcfuirig to the' 'estate by rea:.soh of such filed and to the petition of 'the Humboldt: Lumber¥'q.,:\lu!acturera' Association, deJlying, in effect, the jurisdiction of' this court, and claiming, further, that, if 'the'OO\1,rthsid juMsdictio'ii(the. 'Was' not. entitled to the benefit of the llmited .liabllity act; because the tug"Printer, as he i!1lleged,was:notengagedihinterstate commerce, and therefore was 'not subject to the national; but to the local or state; law. The questionsraised were argued before the late Judge Hoffman, and, on .the 7th of May, 1890, the ainswer' and exceptions 'were overruled. On July 29, 1890, the matter was referl'ed to Southard Hoffman t to: appraise the value of the tug Printer, and such proceedings were thereafter had that on August 22, 1890, the commissioner filed his report, appraising the value of the tug at $22,500, .which appraisePlent was confirmed by, court on September 5, 1890. On October 6, 1890, 'an admiralty stipulation in the sum of $22,500 was given and filed. On October 7, 1890, an order was made and filed that a monit,i9n fssue therein designated. '''i;W-d. against aU persons ·.clf4n¥Qg. pa.J;nages foraJly loss, destruction, damage, Or by it4em or any of them, or suffered by any dece,geI)t of them, ,by reason of the loss apd. destr,W:ltiqn ()f. said schooner Fidelity," citing them 9OQij; and make due proof of their resPective to appear claims on. oil' J)ef()re 3, 1891. The n;lOnitionWas issued. publishedt by. the court, and returne,d and
IN RE
LUMBER.JMJ.NUF'RS! ASS'N.
431
filed oI).,J,anuary3; 1891. February 2,1891, thefoUowing answers and claims were filed: Claim of Olivia Christopherson et aL, damages death of Capt. L. H. Christopherson, who was on for the. Fidelity when she capsized, and was then drowned, $25,000. Claim of Mathilda O. Pederson et al., damages for causing death of Hans. C. Pederson in like manner, $25,000. Also, .claims 9f part owners in the schooner.Fidelity, as follows: George W. Rager, 1-16, $1,200; William Wallace, 1-16, $1,200; William F. McDaniels, $1,200; Henry Axton, 1-16, $1,200; J. W. Freese, 1-32, $600. No claims were filed by the other part owners, and no -explanation is furnished why they have failed to do so. The. ca,$e having been tried upon the merits and submitted upon briefs, it is now before the court for· determination· on the questions of jurisdiction and the liability of the petitioner for whatever damages may have been sustained by respondents by reason of the disaster. In the case of The Harrisburg, 119 U. S. 199, 7 Sup. Ct. 140, it was held that, in' the absence of an act of congress or a state statute giving a right of action therefor, a suit in adrniralty could not be maintained to recover damages for the death of a human being caused by negligence. The right of action in this case is claimed' under the state law. The Code of Civil Procedure of this -state provides as follows (section 377): "When' the death of a person, not being a minor, Is caused by the wrongful actor neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, or If such person be employed by another person who Is responsible for his conduct, then alsl) against such other person. In action under this and the preceding section, such damages maybe given as under all the circumstances -of the case may be just."
The petitioner claims that in this case the alleged negligent act was 'on the high seas off the coast of California, and without the limits of any county of the state. The evidence shows that the place ,of disaster was on Humboldt bar, off the entrance to Humboldt bay. The master and mate of the tug Printer testify that they had nearly <cleared the bar, were on one of the last swells, when an unusually ,and unexpectedly large swell suddenly arose behind the Fidelity, and lifted her stern out of the water, and she capsized. The master fixes the place of the catastrophe as "just inside the bar, about two miles off the entrance to Humboldt bay, on the Pacific ocean." Flaherty, employed at the life-saving station on North spit, Humboldt bay, which is in full view' of the bar, fixes the distance from where the Fidelity capsized to the ocean shore at one mile and a quarter or a mile and a half. Robert Hennig, keeper of the life-saving station at Humboldt bay, says that the station is right in plain sight of the. bl1l" and fixes the distance in a direct line from the station to the bar at one mile and a half or two miles. From this testimony I find as a fact that the schooner Fidelity capsi7;e<i on Humboldt bar; that the vessel was inward bound, and at the. ,time was opposite to the entrance to Humboldt bay, and at -a point· n.ot greater than two miles from the shore. The disal!!ter 9p.t}le.hig\l Jileas, within the admiralty and' maritime juris-
FEDERAL REPORTER, vol.
60.
oUhe United States. Did it also occur within, the territorial lbn.H$of the state of California? 21 of the ;,oonstitutionof the state of:Oalif()l'nia, the 1:lQu.pd,ttry of the state along the Paci1ic ocean is described' as fol· lowiJ ,(section 1): ".',.... thence running west and along said borm4ary:line to the Pacific ocean, and extending: therein three Eng· lish,mUes; thence runn;mg in a northwesterly direction and followingthedirection of. the. Pacific coast ,to the forty-second degree of north latitude." Section 33 of the Political Code of the state fixes the territQrial jurisdiction of the state as follows: ·'\The sovereignty and jurisdiction of this state extendlJw all places. Within its boundaties bYiithe constitution, · · {fr." The shore boundarY of Humboldt;eounty, as ,provided in seetion'3914 of the is as foUoiW>s:"· * 11;. thence west, on 'said line, to the Pacific.ocean.; then,ce ,northerly, i along the, ocean shore, to the place of In ;section 3907 of the same Oode, it is pro"The ,words ocean shore mean a :poiptthree ,xniles from shore. The words 'along,' 'with,' 'by,' or'onr'Q1e ocean'sbore mean on a line parallel.with and three miles froIpi What.' is. the effect of such: constitutional and legislartf"V9: plIQvisions the: rights of parties,' under the laws of the state, where the shore lilnits of the state are'thus involved? In Law 177) tbern.aritime territoriaJ.' Nmsdiction of. an independent nation is ,defined as follows: territory (Yf every state eittends to the ,po,rtlil, harbors, bays, mouths 'of and adjacent parts of the sea inelo('\E\d' by headlands, belonging same state: The general'.l1sage of .to this extent of: territorial jurisdiction a distance of a mariJ;l/:i.leagu,e, or as far as a cannon shot will reach from the shore, along all the coasts of the state. Within thelle limIts, its . of property aIld territorial jurisdiction are absolute, and" exclude those tYf every otlier nation." . j.. ..
':f
In v. 139 U. S. 264, 11 Sup. Ct. 559, it was held,under a state..statute similar to that ofOalifornia, that: of the terrltorial jurisdiction of MassaChusetts over the sea coast Is that of an independent nationjand, except so fal' as anyi'lght of control over this territorY has been granted to the United states; this . control remains with the state." ,
The ,court .say further: , "Within. what are generally 'reCognIMd' as the territorial lImits' of states by the law of nations, a state can its boundaries Qn the sea and the boundaxlesof Its counties."
This authority clearly establishes the validity of the constitutional and legislative provisions of the state of Oalifornia fi:dng her boundary, and that of Humboldt county, along the Pacific ocean at a distance of three English miles from the shore. To this boundary extends the jurisdiction of the state. U. S.· v. Bevans,S Wheat. 336. But does it follow that the laws of the state can create a liability in a marine case arising on the high seas within such boundary? In the case of Butler Y.: Steamship Co., 130 U. S. 527, 9 Sup. Ct. 612, Mr. Justice Bradley. suggested a doubt upon this question, but expressed no opinion. IntJie case of The Corsair, 145 U. S: 335, 12 '
IN RE HUItll30LDT LUMl3ER MANUrRS' ASS'N.
433
Sup. Ct. 949, this doubt was in a measure removed. But in the recent ClUre of The City of Norwalk, 55 Fed. 99, Judge Brown, of the southern district of New York, reviews this question in an elaborate opinion, in which he points out that in Steamboat Co. v. Chase, 16 Wall. 522, and in Sherlock v. Alling, 93 U. S. 99, the supreme court had substantially decided the question in favor of the authority of the. state to create a liability of this character. He further detel'Iij.ines that this liability may be enforced in admiralty by a libel in personam. The opinion contains a full discussion of the question in all its bearings, and the conclusion reached is supported by abundant authority. The case at bar is in the nature of proceedings in personam. The petition,er was being prosecuted in the state court for the loss of life and property. It has brought all these cases here, and asks this court to determine its liability by virtue of the limited liability act and the rules of the supreme court thereunder. The fact that it also seeks to limit its .liability to the value of the tug employed in the service out of which the liability is charged to have arisen does not change the form or character of the action; It has been further urged, as a ground for applying to this case the law of this state, that the petitioner was a corporation organized and eXisting under the laws of the state; that the persons who lost their lives in the disaster, and for whose death claims have been presented, were residents of California; that the tug Printer was registered at the customhouse at San Francisco, and that the Fidelity was enrolled and licensed at the customhouse at Eureka, Cal. None of these facts except the last appear to have any jurisdictional significance. In Shearman & Redfield on Negligence (paragraphs 124-1(0) the law relating to the remedy for injuries causing death is discussed. In paragraph 131 it is said that: "It makes no difference In thIs respect that both partIes to the injury were citizens of the state by which the statute was enacted, or that the wrongdoer was a corporation chartered by that state, or that the negligence causIng the injury was a breach of a contract entered into in that state, or that the decedent was brought into the state while living, except in Michigan. But, If the accident happened upon a vessel at sea, the statutory action will lie If the vessel was at the time within the maritime jurisdiction of the state enacting the statute, or if the vessel was owned and duly registered there."
I am of the opinion that this court has jurisdiction to determine petitioner's liability in this case, and to enforce whatever rights may have accrued to the respondents under the provisions of the statute of the state;. and I base this opinion chiefly on the fact that the vessel upon whic:b. the accident happened was, at the time, within the territorial jurisdiction of the state of California. The Fidelity was a flat-bottomed schooner of light draught, built for the coasting trade. She was designed particularly for the lumber business, and her carrying capacity was in the neighborhood of 275,000 feet. She was constructed at Eureka, Cal., in 1881, at a cost of about $19,000, and was enrolled at the customhouse in Eureka. At the time of her loss she was in good repair and sailingtrim, and her value at that time was about $12,000. For some , v.60F.no.3-28
43lf
'i!
"n
tllilepri6r:to the. she befween 'ii:'bdi ' &mta' Barbara; goint"down lad[en,wltll' ' of lumber; returning in ballast:' "'She usually: caltried about 20 tons'ofibllllast.Her' masterwaiJo:lre'L."H, Christopherson, who, at '1Ji¥te:Of the his second trip into Hum· The a, of about' no tons gross net). At the time of the loss of the schooner,Fidelity, she 'wa,sa new bdat,or nearly BO,:being not quite a yearioldJ' 'She WRS well appal:'eled, staunch and st1'ong,: lmel' in thorouglfworking order for the pUl'poses of towing vessehfito 'and from Rwnboldtbay.; 'She was then uildercharter by the Htllriboldt Lumliet":Manufactnrers' Assobiation, and was commanded' by Capt. R. j>Lawson. ,Humboldt bar, the place of the disaster,' is off the entl"8ilice to Humboldt bay. It cannot be accu· ratelydesoribed,because it was in, '1889 undergoingalInost constant ,,: 'Dhe entrancl3'channel hadibeen known. to ,shift its course r wliUe its le:ngth might bel at one time onehalf a itt1iile:, at :anothel':period it'Itlight bea mile and a half, or more;,'whileone day the passage would be tortuons, at another it wonld"be',Q]most straight. This was due to thea:Jmost incessant the preV'alexiey ofshoaJs. For' these rea· shifting sons, the I ElD!trance was·,Mnsidered dangerous, and; fnavigati()n over' the' bar ahdthrough channeldi:f:licult and,at times; more or less, hazudous; The' dangers"attendi:ag the 'passage. ovel' the bar dependedj:ofcourse, in ,wgreatmeasure upon thesMte of the wind and ,tiM and the incomirlg. swells. 'But the evidence establishes the fact thatcan attempt to ,cross it and get into Humboldt bay was, to one unae:quainted with its nature and peculiarities, and unassisted by a pilot, a reckless and daring and reference is made testimony a like w had in'lpsa of' both ,life and The orditia17 dictates of prudeneeJ8Indof good seamanship would compel the invariable em· an experiet1,ced and sltillfuPpilot, one thoroughly con· versant peculUirities of this bar, and everqn the' alert to acquaint Jl1l:;J1self with itlil deflections, changes, and peculiar dan· gel's. The witnesses all: agree as to its dangerous character. Flaherty, of the life-saving station, says: "It is a very dangerous bar. * * *, sand and shallow water." Bo:p.e, a bar pilot, says: rough bar, liable tochange inside of twenty-four * It is a,dapgerolls bar, providing a man don't know hours. ,* his work,," , ,.t,Buhne, a bar 'pilot. of lo:p.g ,experience, testifies that it is a ,s bar, O,W,in,g,"to Shiftin,.",g".,s"ands an,d, sh,0,'also Hansen, , another ''bal"J)ilot of long ,/!lays: ''We, sailors call it a treacherolW,bar/', ' Smith,. assistant ,United States engineer, says: "That (1,8139) it very The Pacific Coast Pilot, an prepared and by the United States coast aJid,gliOdetic survey for theqseof' mariners, has this to say '" · ( concerning Hnmboldt bar: "Like the, entrances toaD rtvers,8Jt1.d, bays, this ,coast, this has a bar, whtcb undergoes changes, muc,hupon, the prevalence, direction, and' strengtD' 6t thewtnd' 'anti' swell, upon, direction of '. ",.
:N RE .HUMBOLDT LU1lJBER .1dANUF'RS' ABS'N.
the ebb current. through the entrance, and, doubtless, upon the volume of fresh water brought down by the streams entering the bay. The depth or water on the bar ranges from twelve to twenty-four feet at low water.· The width, direction, and position of the bar vary irregularly. The north and south spits also cut away and re-form. From experiments made in 1854, we found the ebb current in the channel to run three miles per hour, with a maximum velocity of four and· five miles between the north and south points of the entrance. Under the above varying conditions of the bar and channel, no sailing directions can be given, because changes may occur immediately after an examination. As the bar has always had the services of superior pilotage and towage, the best advice we can offer in regard to entering the bay is to wait for the pilot tu,g. When vessels are seen approaching the bar, a flag is hoisted on the fiagstaff on Red bluff, and the tug goes out to tow them in; if the bar is heavy, and the tug cannot cross it, yet considers it safe for the vessel to cross, she lies close inside the bar, and sets a signal at the masthead for the vessel to run for. A stranger should not under any circumstances attempt to Cl;OSS the bar without a pilot. There are several powerful tugs, with· skillful pilots."
It is to be observed, however, that while the bar and channel are subject to these marked changes, and the entrance to the bay therefore shifting and dangerous under certain conditions, nevertheless a careful and skillful pilot,familiar with the locality and provided with a good tug, could, by selecting a proper state of wind and tide, tow a vessel either in or out of the bay without risk of disaster. The witness Bone, who had been on the bar 16 years, and for the last 5 years as a pilot, testifies that he never lost a vessel with a hawser on board, "This was the first time," he sars, "that a vessel was lost with the hawser on board." On t4e morning of the 16th day of November, 1889, at about 6 o'clock, the tugs Printer and Ranger, employed by the Humboldt Lumber Manufacturers' Association, and the tug H. H. Buhne, controlled by H. H. Buhne, who WlUl running in opposition to the Humboldt Lumber Manufacturers'Association, proceeded from down to the entrance of Humboldt bay. The Printer was in command of R. J. Lawson; the Ranger, of one McKinnon; and the H. H. Buhne, of J. Hansen. The Printer and Ranger went down, intending to tow out two lumber-laden steam vessels, but they failed to make the attempt because, lUl the witness Tibbitts says, the bar was too rough. The tugs then gave their attention to crossing the bar, to tow in such vessels as might wish to come in. There is some testimony tending to show that the Ranger, in attempting to cross the bar that morning, at or near the entrance of the bay, was considerably damaged by shipping heavy seas, and was compelled to put back for Eureka. One man was lost from this tug on that occasion. This testimony was drawn from one of the petitioner's wit· nesses with some difficulty on cross-examination, in the face of objections. The H. H. Buhne, followed by the Printer, kept "n, and crossed the bar between 7 and a quarter to 7. Both proceeded to look for vessels to tow in. A vessel was descried, which proved to be the Fidelity. The H. H. Buhne immediately made for her, but the services of this tug were declined, as, it seems, the schooner was required to take the Printer in preference to tugs of the opposition. Acting upon a suggestion from the captain of the schooner, the IDa:o;ter of the Buhne northward in quest of. a vessel, in the
436 expec'l1iUoh that required, andMdidhot.return .tQ,jlumboldt, bar u:il,tif'ootween,2. and.S. in·:the'llfternQon. Meanwhile:the Printer:came. up, fot she 'followed' very closely upon the wake of the spoke thrschooner, passed over: the hawser, and to tQ'w the Fidelity OYer. the' bar into the bay. ,A1rtl,lis point the facts attending the catastrophe become obscuredby:contradictions, and the credibility of the witnesses becomes important; and in this connection it maybe well to observe of the witnesses tor petitioner .are not disinterested, wllile t4oseonbehalf of the respondents appear to be without interest in the result.&. J. Lawson, the master of the ,tug on this His reputation as a comoccasion/certainly petent ..y.ayigator is directly .1Dvolved,Wld to. his gross. carelessness, if not criminal .negligence, the catastrophe has been attributed by the the pecuniary }nterests of his. employer are dii'ecUjr concerned., The only living eye-witnesses to: 'the catastrophe 1 whoappeared'9,nd testified and. Johnson, respectirelt master and mate of and W. P. SIllith, the assistliqF:United StateseiIgineei, who was on the insiMof, very JJ1e bay..one Pe1;tl'son, a the tug near, Prinier',at1the time of the capsizing, teStifIes to the con4itfon of the bar at'the'tiine the tug)!!tal,i:ed' to tow schooner over,. but he was not asked'whether he 'saw the schooner capsize, and he does not testify 'thit he did. Haring determined that the capsized on Humboldt bar, the next: question to be examined, and.'that upon whjch the whole case is as to the condition of the-bar at that time. And this, in turD,. involves necessarily a consideration of the wind, tide, and swell. .The respondents 'claim that the loss of the schooner and of these on board was caused and brought about solely by the gross carelessness and negligence of Capt. Lawson, as the servant of the Humboldt Lumber Manufacturers' in. towing in the schooner. while the bar was in the condition in which it was on the 16th day of November, 1889, when the attempt was made. The the Humboldt Lumber Manufacturers' AssoCiation, denies thattlle bar was in the state of roughness claimed by the respondeIits,but attributes the capsizing to a peril of the sea, in that, .it alleges," an unusual and unexpected heavy swell lifted. the stern of the schooner out of the water, and that she thereupon careened over. It further claims that the schooner was either not ballasted at ihsufficiently so, for, had she been properly ballasted, in its judgnientlihe would have safely ridden the unexpected and heavy swell, which 'it terms a "pepl of the sea." And,finally, it claims that, if 9apt.;Lawson Was delinquent, if.was not or negligence on his part, but simply an error' of judgrilent, allowable under and, being in extremis, the law does not attach to such delinquency any pecuniary retribution. In t4is connection it may be observed that Capt. I.Jawson did not have a license from the pilotconimfssioners of Humboldt bay, as required by the laws of this state. He claims, 'however, to have had a license under the laws of the United States as master and pilot of tugboats
IN BE HUMBOLDT LUMBER MANUF'RS' ASS'N.
437
for the Pacific ocean and coastwise, issued by the United ·States inspectors. But it is urged by the respondents that this license was not sufficient; that, under sections 4285 and 4444 of' the Revised Statutes of the United States, the regulation of pilot service at Humboldt bay was subject to the state law onl.y; and it is contended that, as the tug Printer was in command of a person contrary to that law, there are no presumptions in favor of the tug or its master, but, on the contrary, it devolves upon the petitioner, under the circumstances, to prove that the misfortune was without negligence on the part of the pilot, and was unavoidable. Phillips v. The Sarah, 38 Fed. 252. It may not be necessary to resort to this rule in determining where the responsibility lies in this instance; nevertheless, the fact that the master of the tug was without the license required by the local Jaw is a circumstance not, perhaps,. without some significance in the case. We will now proceed to consider the condition of the schooner Fidelity at the time the tug took her in tow. There is some testi. mony tending to show that the schooner usually carried about· 20 tons of ballast, from which it may be inferred that she was li!l)Provided on this occasion. All hands on board having been lost, weare deprived of their testimony on this point; but, if she wel-e not in sufficient ballast, is it likely that they would have undertaken the voyage of 500 miles from Santa Barbara to Humboldt bay at a season -of the year when storms are not infrequent? It is true that both Capt. Lawson and Mate Johnson of the tug attribute the capsizing of the schooner to her tptal want, or insufficiency, of ballast. But their testimony is unsatisfactory in several particulars. Capt. IJawson swears that, in his opinion, the schooner could not have been properly ballasted. He bases this conclusion upon the fact that she did not settle back when her stern was lifted out of the water by the heavy swell. It was then, and only then, that he first noticed that she was either not ballasted at all, or insufficiently so. It is apeculiar fact that, as an experienced and skillful pilot, he should not have observed this condition of affairs when he took the vessel in tow. He testifies that they had very nearly crossed the bar, and yet, until the very time when she actually did capsize, he failed to observe either an insufficiency, or even a total absence, of ballast in the vessel. Is it not reasonable to suppose that, if the vessel were as he represents her to be, her movements would have betrayed her condition, and this before they had very nearly crossed the bar? Johnson, the mate of the tug, gives it as his opinion that the schooner was not properly ballasted, and he bases this judgment for the most part upon the assertion that, had she been properly ballasted, she would have survived the unusual and unexpected heavy swell to which reference has been made. But, if his testimony is carefully scrutinized, it will be found that he does not swear that he noticed, either before or at the time the schooner capsized, that she was insufficiently ballasted, or not at all. The captain testifies: "As I was watching her, and saw her stern lifted out of the water by a big swell or wave, I expected her stern to settle back again as the wave came on, but r soon saw that she was acting like an empty vessel, without
4.88 tc) ,»e. asllgIJl;,.s, cork. There seemed to ,be nothing seem,edw be at the mercy o( lL. InheJ,',W hold she,OtlgJlt :WeIy"to' : ha'Verldden." .,.', . " '" ,:, .' " : ,;", ," . ';' , t . ': .
,If this condition otthings wa,s'so apparent to the captain, would not. tlte mate' have also observed this? The captain "seeks to strel)gtlitenhis theory by stating;, "Indl!ed; Until aftertb«r loss of thet/ltdellty. and discovering 'that she had no :ballast;:ornot sufIlcient, I dldpc:>t learn that shipmasters running to aCCUlltomed to tlij:'ow their ballast overboard while lying In tM:omPlJ. awaiting the arrival of,a tug to tow them into Humboldt bay," , ' '" .,.\ " .... : , ·
But tihis testimony on the captain's part is confessedly mere hearsaY",and:itis strange that, if such were the custom of shipmasters, not onewttness was caned to sUbstantiate that isolated statement. Such;lproof would have' had the'effect, if nothing more, of corroborating the captain in an important particular. Johnson, who testi1ied:tohaving been a mate of tugboats for six years, of which one,yeal"wlIS spent on Humboldt bal';does not state that any such cllstomJprevailed. It is curious that the captain himself, whO had navigatedithe bar from;tJuly preceding, was not aware of this practestimony,while it may I not be absolutely false, is calculatedto! create distmst in the credibility of a witness, especially wh:eD·he,'i&contradicteil'in other ,important and material particulars. Itiisobvious that the court cannot, upon such meager and unsatisfactory testimony;' find that the capsizing ot the' schooner was either an entire absence, or to an insufficiency, of ballast. We oome now to the question as co the condiMon of the bar. The at [which the Fidelity capsized is variously fixed by the wit· range aU the way from about 8 o'clock to 9:30 of the mornlngof,'November, 16; 1889. Lawson and Johnson do rrotfix accurate1r,the time whenr the Fidelity capsized; the latter states that So'clock when they first crossed in, while the fQrmeriwouldseem to imply from the context of his statements thatit:wruabout8 o'cl6Clt when he first gave the Fidelity his hawser.' All ilia other witneSses fix the time at from 9 to 9 :30 o'clock. Flaherty. puts it at 9:30, .or thereabouts. Hennig says about 9:30. Nelson states it was some time fr0ID 9 to 9:30. Perhaps the most satisfactory witness is W. P. Smith, the assistant United States engineer, whoaaw the Fidelity capsize. He fixes the time at a little after 9,ora quarter past 9.' Haafterwards timed the life-saving employes in getting out their lifeboat, and thus had occasion tonotepaJrticularly the time. Tibbitts was advised of the capsizing some:tinleatter' 9 ,o'clock. 'Fhe preponderance of testimony shows that_he :capsized after 9, and not, as Lawson and Johnson would seem:to:imply,:before 9 or some time after 8 o'clock. It was probably a:bo:u-'t a .quartet past 9. As to the condition of the tide, all the,witneasesagree'that it was an ebb tide. But as to when the Hd'e turned that morning, or how long it had been ebbing at the time ofrthe catastrophe, cannot be determined with accuracy. Capt. LawsoJi says: "The tide had turned about an hour before the Fidelity 'cap#ir;eq., but there no perceptible ebb of the tide at that time.,ltwas what! .would call high water slack." Johnson
IN RE HUMBOLDT LUMBER MANUF'RS' ASS'N.
439
says: "We lefLthe dock at Enreka, Humboldt bay, at 6 o'clock a. m., and proceeded to The bar at that time was in fair condi· tion, about an hour a half before high water." That would make high water at about 7:30. Flaherty testifies: "She capsized, I suppose, about half past 9. At that time the tide, I should say, had been ebbing about an hour and a half." That would make high water about 8 o'cloclL Hennig also fixes high water at about 8 o'clock. Nelson says: "It was high tide about 8 o'clock in the morning, and it was about half past 9 o'clock when it happened. It was. about an hour and a half; something like that." Hallf:jen, in answer to the question, ''Do you know at about what hour the tide began to ebb that morning?" said: "I think about 8 o'clock; some· where about that; in the neighborhood of 8; maybe a little before,-between half past 7 and 8." These witnesses, and others to whom.it is unnecessary to refer, fix high water at any time between half past 7 and 8 o'clock, or thereabouts.. As against this testi. mony, that of W. P. Smith, the assistant United States engineer, who has local charge of improvements' which the government has been maldng in the entrance to Humboldt bay, stands alone. He fixes higher water at exactly 7 :05 a. m. This he does by means of a government tide gauge at the entrance of Humboldt bay. !tis a self-registering tide gauge, run by clockwork. Smith testified to its being in perfect working order at that time. He says: "At 9 o'clock, the time the vessel went .over, the tide had been running out two hours, and in that time it had fallen eight-tenths of a foot." He gives in his testimony what purports to be an accurate record, as shown by the United States official tide gauge, of the various phases of the tide on November 15th, 16th, and 17th. There is, therefore, all the way from a half an hour to an hour's difference between Smith's estimate and those of the other witnesses. Smith speaks from the record; the others testify from their opinions. Smith fixes it exactly and positively. The number of witnesses as against the record is immaterial; that fact alone does not impeach the accuracy of this United States official tide gauge. In view of the fact that no such glaring discrepancy which would arouse misgivings as to the accuracy of its registrations has been divulged, and no attempt made to show that on this occasion, or, in fact, on any occasion, it has erroneously registered when in perfect working order, and since Smith testifies that on the day in question it was in perfect working order, the court, in the absence of evidence to the contrary, feels compelled to recognize such record as more satisfactory and preferable to the more or less conjectural approximations of the witnesses. By the Pacific coast tide tables, published by the United States coast and geodetic survey, high water at Humboldt bay on the morning of November 16, 1889, occurred at 5:54 a. m. What elements may have interfered to set the tide back more than an hour, as indicated by the record of the official tide gauge, does not appear. The tide tables have not been referred to by either side, and will, therefore, not be considered now except in so far as they tend to show that higb water on that morning did not occur later than the time shown by the tide gauge. Taking that record as true, it was high
440 tlJe
FEDERAL REPORTER ,
wMeJl'Qn,No'tember 16,1889, at .7:05 o'clock a. m., and,8.ssuming that capsized about 9 or a quarter past, the tide would have been J'iUUping ebb about two bours, and, under the law of tidal currenta,,!t.'Wasapproaching its maximum velocity for that tide. . conflict as to the actual speed at which the tide w3lS:f!Uunrog ont. Some of the witnesses! term it an ordinary tide; othetl\ $I:&wift tide. The fo-mnerfix the speed at about two knots; thelattel', at from follr to seven knots aiD hour. Lawson says that the, tide was high water slack. Butthis statement is plainly untrue, and ,re,quires no furthercoinment. Johnson speaks of the tide as being favorable to tow in. Flaherty speaks of its being a strong ebb tide.T: 'f.[lwas a season; .and a big freshet out of the water courseiii1,t (Which would ':Strengthen the tide as it ran out." He concludes,1hat"the tide was ebbing abtnlt:seven miles an hour; down thel'eil:t;t:tbeentrance it must:have ebbedR'oout that." Hennig says, in ,ansWlet to the question,. "AMut ,how fast was the current running there:?rA.Wellj;I should judge about four knots an hour.;! Isotm,ething like that;· probably more, '01' perhaps a little less. It 'was.a:pretty swiftcu1Tent 'We: ihad·to contend with in returning." This witness had been'otit in the lifeboateJrom the life-saving station in anJl1nsuccessfUl effort: toreaohlthe wreck. As to his knowledge of the cut»tnt, he was asked: i"Q. ,You'found that orttupon tryingto go, back?· .A. It was· a long time,even after we got into smooth water: 8:nd we had but· the current to'icdntend with,before we got around.·: ,There was quite· afreshbree"6e,and that was; something against 118, too. We hadt() pull considerable to make Hansen saysithat,.if there was a two-foot fall from high to lowtide,it would mead 'a current of aboUit two knots. Smith, who was not on the bar,buV in. a smaUboati,coming towards the entrance along the inside ofi North spit, and about 100 yards from the shore, says: "It was ebb; what we call a small ebb." , He says he could not tell the rate at .which thecnrrent was running out at the time of the capsizing, hut he states that it was very light. He does not know the rMe·/Of speed of the current on the bar, but appl'o'Ximates it at the en't:rance of the bay'3s about two an hour in the strongest current!., i( :Hestates that on the bar the current would not run as fast, but/admits that he has never measnredthe strength of the current on:the .bar. On cross-examination, he admits that he was drifting in a small boat with the tide for the greater part of the distance..Admits that currents oD'thebaI'iare very swift at times, but has ,never tested their strength. Also states that a southeast wind was blowing, and that that always: backs the ebb tide. There is no direct evidence of the speed of the tide. on the bil:11 at the time of the capsizing. As to the rate.on the inside, and at .the entrance, of Humboldt bay, there is a con:tlict 'between Smith and the other witnesses.· r.Flaherty, in: saying that it ran seven miles an hour "down there at the entrance," simply Illade an assumption as to the probable force of the all the bar, ,separated from it by a distance of about a mile and·a half, and therefore his estimate should be taken with that qualification. Hennig fixes it as about foul' knots. This he bases upon the strength of tAe current encountered
IN RE HUMBOLDT LUMBER 'MANUF'BS' ABS'N.
441
in returning from the bar; which was some time after the vessel capsized. Smith, it should be remembered, did not get out of the entrance onto the bar, as Hennig did, but rode with the current for the most part, on the inside of the bay. The inconsistency between these last witnesses, discarding Lawson's uncorroborated statement as to its being high water 'slack, is probably reconcilable in view of the fact that all are approximations under somewhat different conditions. The tidal current was probably running out through the channel at the rate of about four· knots an hour. On the bar the force of the current was perhaps somewhat less, but its exact velocity cannot be determined from the testimony. M. Connell, an observer in the United States weather service, stationed at Eureka, gives the officiaJ. record of the direction and velocity of the wind on November 16th, 1889, at Eureka, as six miles per hour from 8 to 9 o'clock a. m. and at eight miles from 9 t&.10 o'clock. The direction of the wind varied from south to southeast. It was stipulated that from the city of Eureka to the bar, in a direct line, was about five miles. The witness admitted that on the ocean-on the wind might be a mile or two faster, .which would make the velocity of the wind on the ocean about nine 'miles an hour. Lawson says: "A scarcely perceptible breeze was \blowing from the south,-nearly a calm." This statement is so palpably false, in view of the testimony of the other witnesses, that it can be passed without further comment. Aside from Connell's official registrations, Hennig, speaking of the wind they had to contend with in returning from the bar, after futile attempts to go out to the drifting schooner, says: "There was quite a fresh breeze, and that was something against us." Smith states: "It was blowing a little from the southeast; not very heavy." Bone testifies that there was "quite a little wind." He judged so from his observations some four miles away from the bar. Flaherty, in response to the question, "What l{ind of a day was that?" said: "The wind was from the southeast; coming in about fifteen miles an hour, I suppose; kind of rainY,-not exactly rain, but drizzling." Fifteen miles an hour for about the time when the Fidelity capsized is undoubtedly a mistake. The wind did reach that velocity in the afternoon, and, as the question of the interrogator was rather general. the answer may be explained in that way. Taking Mr. Connell's official estimate, and allowing for an increase on the bar, a fair conclusion as to the velocity of the wind on the bar at 9:15 would be between eight and nine miles an hour. It was strong enough to back the ebb tide. That the bar, with all these turbulent elements combined, was very rough, and dangerous for vessels to cross, on the morning in question, is established by the witnesses Flaherty, Hennig, and Nelson, of the life-saving station, who had occasion to know its character, and particularly to observe its condition rut the time of the disaster, and for an hour or more after, while they were attempting to force their way with the lifeboat to the place on the bar where the schooner was then drifting. Flaherty testifies that there was a high sea mnning; about as high as he had seen it since he had been in the
,;; ..ilmJamcALREPORXER., vol. ' 60.
'servi'CeyLthat'the, bar terriblY' t'O»gp;.; In. speaking· of their atthe wreek'm the,,]ifeboat.he say$ that they could not:mamage theJifeboat theJ.'e;' thetmried. to get out, but were driven baola"'[B;ennig testifi.esithat·the· barr. on ,the day the.]fidelity capsizedjtWas u1bad as he,eNetsaw.'.any:b,al1anywhel'e. He,judged that the :sea.I!W8S!:bteaking U1dnineor., 1fa.thoms Henever saw ltheblili rougher. Henarrates,.tbelefforts made ,to' Teach the scene.,of::the:disaster, and' the result because of the roughIiessJOfthe ,bar,and he tells ·ofttPellefusal of:Capt.· Lawsonto tow-the lifeboat out to...:wbere·. tbe,;;Fldelity because, the bar wa.s too rough had been a sailor, fisherman,andstl1'fman aIlhillklife. Nelson testifies that it was a rough bar:aJlithat morning; the lile&was,breaking further out than he .hiid, e;ver:seen. it before.' 'Oi'.' after, ,. Pehrson, the steward on the tug ;PrintE!rrtestifies that the bar w.aJS by spells, and, when the Printer,lltarted' to tow the Fidelity, he asked Capt. Lawson if he was going'initellihg him that the barwllsrough. The captain told the witness i wmind' his owJ!i.' business. ';Peter Bone, whoobserved the conditiooofthebarfrdma lookout at the Occidental mill, a distance of about ,four miles from the ocean, shore; testifies that the sea was breaking in seven that it was too rongh to tow a vessel in across the bar after the tide had been running ebb for an hour or,an hour arid a half. The ,witness BUlhne explains the danger of these conditions to a light or ballasted vessel as follows : "When y011 take 8.J light vessel in on. a. beavybreaker, it Is very dangerous,
on account aftha two' forces.'\'Vorkingllgainst each other. The heavy sea or breaker that rolls In forces your vesselJn; and the ebb tide runs out, and dril-'Ys the vessel out. Now. when your vessel runs in on the ebb tide, the preaker brings it in a cet:tain distance, and then it falls 011', and tumbles ebb tide, and the heavy breaker down. by the nose. That 'nose' strikes forces yout ve8selll.head, ana;- consequently, it is just like a leverage. The straingoell one. way, and i1>l:\l:l: tide another way; and, if the sea is heavier than tbetide......Jias poweJ;',upon the ,vessel,-it wlll t:urn it over, capsize it, or 'pitchpole' the vessel,as.we sailors ,call it."
The witnesses Flaherty, rBone,Hennig, Nelson, and Hansen express the'samegeneralview l'U!l to the danger of attempting to cross Humboldt bar:with heavy>seas rolling:in against an ebb tide, and the lack of ooreandskill on;the part of a pilot who makes such an effort. It will noti,benecessaryrfu review this testimony in detail. It is sufficient to say that, taking it all tOgether, and .giving to the wit;, nessessl1ch consideraWm ias their intelligence, situation, 'I add opportnnitiesfor obsevvation seem. to justify, tbeconclusion is reached that at the time, and before and after the disaster, the bar' was' in" itir, exceedingly, dangerous ooJ!lditidn, and that a careful and . skillfulpilot rWoold·not,have attempted to tow the' Fidelity over the bar th.tt time. . The master of thettigwas bound to lmow'th-estateqoLthe' sea, wind, and tide, and whether. under the ciroumstances,:it,iWas; safe'and.proper t() make theatteDiptto.'tow the', schooner across the bar·.. His sufficient lmowledge;:ofthe.· bar and :its shiftingf dangers, and, his skill a navigator ,in:, avoiding <lr:overcoming.tho.$6·· perils, were precisely the ·:charaeteriOf<'senrices he assumed to <lifer when he prQ]>osed to take l
IN RE HUMI'IOLD'J> LUM:BER MANUF'RS' ASS'N.
443
the schooner in tow. Concerning'the qualificati()D.sofpilots whose employment is to gnide vessels in and out of ports, the supreme court, in Steamship Co. v. Joliffe, 2 Walt 462, says: ''For the proper performance of their duties,' a thorough knowledge, of the port in which they are employed is essential, with its channel, currents, and tides, and its bars, shoals, and rocks, andthevariClus fluctuations and changes to which it is subject." Such being the law, how can Capt. Lawson excuse himself now by saying that he encountered a peril of the sea, or that the catastrophe was the result of an error of judgment while acting in extremis? He did indeed encounter a peril of the sea; but of what character? He says: "An unusual and unexpectedly large swell, suddenly arose behind the Fidelity, and lifted her stern out of the water. * * * The swell' that lifted her was one of those unexpected heavy seas the origin of which is some disturbance at a distant point of the ocean." Capt. may be correct in saying that this heavy swell had its origin at a distant point of the ocean, but that it was unexpMted does not appear. It was not unexpected, and should not have been, to those who were familiar with the bar. Such is the testimony of a number of witnesses. To them, heavy seas rolling in against an ebb tide, and breaking in six or seven fathoms, was a sufficient warning of danger,and they did not consider it safe to tow in under such con· ditions. Capt. Lawson ignored the warning that was before hi!! eyes, and deliberately plunged into a peril when it should have been avoided. The undertaking being recldess in its inception, nothing was left for the judgment to act upon in its prosecution. What in· duced him to take such a risk it is perhaps difficult to determine. It may have been the influence of the spirit of competition and rivalry in which the pilotage business was then involved at that' port. In any event, his conduct was more than 'an error; it was a fault. The law of responsibility of a tug, in a somewhat similar situation, was declared by the supreme court, in the case of The Margaret, 94 U. So 496, as follows: "The tug was not a common carrier, and the law of that relation has no application here. She was not an insurer. The highest possible degree of skill and care were not required of her. She was bound to bring to the performance of the duty she assumed reasonable skill and care, and to exercise them in everything relating to the work until it was accomplished. The want of 'either in such cases is a, gross fault, and the offender is .liable to the extent of the full measure of the consequences. Brown v. Clegg, 63 Pa. St. 51; 'l'he Quickstep, 9 Wall. 665; Wooden v. Austin, 51 Barb. 9; Wells v. Navigation Co., 8 N. Y.375; The New Philadelphia, 1 Black, 62; The Cayuga., 16 Wall. 177; Cushing v. Owners of John Fraser, 21 How. 184,. The port of Racine was the home port of the tug. She was bound to know the channel, how to reach it, and whether, in the state of the wind llnd water, it was safe and proper to make the attempt to come in with her tow. If it were not, she should have advised waiting for a more favorable condition of things. She gave no note of walDing. If what occurred was inevitable, she should have forecasted it, and refused tl) proceed."
Applying this law to the situation of the tug Printer as disclosed by the testimony on the occasion in controversy, the conclusion is inevitable that, in venturing to cross the bar with the Fidelity in tow under the prevailing conditions, the tug was guilty of gross and
FllIDlllBAL
But the respondents go that there was such privity and knowlthe owner and :lllaster of tb,e tug.in the negligence and ·of the 1att13r a!l to take the case out of the provisions liabili,ty aQt.. In. the view I take of the amount of daw,ageil:proven to ,hare '1:leen sustained by the respondents, this not beqome j.n;l.portant. The value of the Fidelity was claimsot part owners to the amount of only. 9-32 T.\1e CQurt is therefore only concerned with which, llpon the valuation found, have sustained damagestQtheamount of their interest, to L. H. ChristopheJr$On was the master. of the schooner Fidelity, alld was drowned at the [ttm.e she was lost.: l;Iewas 35 years of age, and was in receiptQf:Wllgesto theamollnt,pf$100 per month. He left a widow andtw<tc4f1dren. Hana ,O.Pecierso;o was the cook on board the schoQnw.',i and was drowned. · )Ie was 39 years of age, and was in receipt,ptwages to the.amol111t of,$50per month. He left a widow and three. <;hildren. Tl;J.e amount of pecuniary damages sustained byafawilyin the loss of'Olle who has.provided for its support is a for The verdi4:)tsof juries in such case8itf\ke.a wide range. llUleSS restrained by a limitation in the law or:by.,$e,interposition of: the court. In some of the states the be reeovev,edin such a case is limited to $5,000. In two .1!Iw,tml tl1e limit is,$10,OQO. '. In California, tb,eonly legislative the is. that contained in section 377 of the Cl}der Jof,Oivil, provides t4at "such damages may of case may be just." be given as under all., i\S by l)e Haven in Morgan v. Southern Pac. Co., 95 Qal·. 30 Pac. 603; .t4!s means "thatsu.ch. ,damages are to be measure4 by what shallfl:1irly seem the pecuniary injury or loss to theplainj;ii." ConsideJ'3<tion IShould therefore be had of the uncertainty of,CQntinuous orJ,'egular employment, and. the probable physical capacity to continue to earn wages for any certain number of years. . earnings of the head of a family do notalways.iIiqiCate his in providing for the su'pport of others. Ilis calling may require personal expenditures, or his habits or mode of life may be extravagant. These and other elements that might be mentioned ttUike the productive value of a man's life extremely ullcertain, and beyond any estimate contained in the annuity tables. Kelley v. RaUroj,td, 48 Fed. 693; Cheatham v. Red River Line, 56 Fed. In view of all the facts in. the present case, I will fix the damages cause(l by the death of L. He Christopherson at $7,000, and the damages caused by the death of :aans C.Pederson at $5,000. The damages awarded to the owners who have presented their claims will be propOrtionate to their respective interests. A decree will be entered in favor of the respondents for the amounts named. 248.
camessne.
, LAWLESSV. MEYNIER.
445
LAWLESS etal.
T.
MEYNIEa,
(Circuit Court Of Appeals, Fifth Circuit. December 5, 1893.) No. 140. BEAMEN-WAGES-CONTRACT OF HnuNG-PILOT-TERM.
Where the contract under which libelant entered the service of the respondents as a steamboat pilot specified nothing as to the term for which he was employed, it is a hiring for an indefinite period, so long as it shall be satisfactory to both parties, notwithstanding that respondents stated that the work of the steamboat was expected to be continuous, varying in kind with the season; and libelant, on being discharged, is only entitled to wages for the timetbat he served.
Appeal from the District Court of the United States for the Eastern District of Louisiana. In Admiralty. This was a libel by Oharles Meynier against T; O. Lawless and William Kyle for wages. There was a decree for libelant, and respondents appeal. J. D. Grace, for appellants. Richard De Gray, for appellee. Before PARDEE and McOORMIOK, Circuit Judges, and LOCKE, District JUdge. McOORMIOK, Circuit Judge, The libelant had quit the steamer Barmore, and wrote the appellaIlts, who were then building a small steamer to work "on and about the Teche,"; with a view to making arrangements with them as pilot on their boat. Some time after this they wrote him:
"Franklin, La., September 26, 1891. "Mr. Chas. Meynier, Patterson, La.-8ir: We wlll need the services of a steamboat pilot about Oct. 15th. Our boat will be employed in towing syrup barges, &c., but the job will be permanent, as 'we intend to use the boat jobbing in the bayou. As you once offered us your services, we now write to learn what salary you Will come for. An early answer will oblige, ' "Yours, truly, Lawless & KYle," "Patterson, September 27th, 1891. "Messrs. Lawless & Kyle, Franklin, Louisiana-Dear Sir: Your welcome epistle is at hand, in which you informed me that you will be in need of a pilot for your boat In about October 15th, and you wished to know my terms. In answer, I will inform you that I am idle at present, and am open for employment. I have a few places in view, but not very positive so far. Should you wish my services as pilot on your boat, I would be glad to accept your offer at the rate of sixty dollars per month. I am a competent master and pilot, and therefore will offer you first-class work in every respect. I am a sober man, and steady habits, and hope to give you satisfaction, should you give me a fair trial. Hoping to hear from you soon, I am, "Yours, obediently, Chas. Meynier."
To which he replied:
The parties were not personally known to each other. About three weeks after the date of these letters, they met at Franklin and were introduced. The libelant, in his testimony, says: "I commenced at once speaking to him about my letter I wrote to him, and in refereJlCe to.his letter, which I told him I had accepted, and asked him if it would be all right,. and he told me, 'Yef:j,' that it would be all right; and he