THE FRANK G. FOWLER.
which the warrants of arrest were served on the vessel. That'learned judge appears to have based this decision, partly at least, oil the nature of a maritime lien as defined by him. Thus, he says: "The meaning and ellicacy of a maritime lien is that it the property liable to tIle claim without a previous judgment, or decree of the court, sequestrating or condemning it, or establishing the demand as at common law, and the action in rem carries it into effect. Ingraham v. Phillips,l Day, 117; Barber v. Minturn, ld. 136. 'rhus the appropriation of the res to that end becomes absolute and exclusive, on suit brought, unless superseded by some pledge or lien of paramount order; and it accordingly results, from the nature of the right and the proceedings to enforce it, that the first action which seizes the property is entitled to hold it, as against all other claims of no higher character. Clerke's Praxis, tit. 44; Hall's Adm. Pro 89; People V. Judges of New York, 1 Wend. 39. The lien, so termed, is in reality only a privilege to arrest the vessel for the debt, which of itself constitutes no encumbrance on the vessel, and becomes such only by virtue of an actual attachment. Hall's Adm. fr. tit. 44; Abbott on Shipping, part 2, C. 3,142; 3 Kent's Com. 169, 170; People V. Judges of New York, 1 Wend. 39. Applying these principles to the case before the court, the prosecuting creditors (except seamen suing for wages) are to be satisfied in the order in which the warrants of arrest were served on the property, whether the vessel in kind 01' her proceeds in court. Each action, with its appropriate costs, comes upon the fund according to the period of its commencement."
Although this decision, and the reasoning on which it is founded, especially the remarks quoted above, received the approval of Mr. Justice Nelson in The Globe, 2 Blatchf. 433, (1852,) this rule, as to the order of payment among material men, has been disapproved by other admiralty courts, and it has been held that the claims of material men intervening before a final decree are to be paid without reference to the dates of their attachments, in the inverse order of their creation, without distinction, however, or preference between those concurrently engaged in fitting the vessel for a particular voyage. The America, 6 Law Rep. (N. S.) 264; The Paragon, 1 Ware, 322; The Fanny, 2 Low 508; The Brig Omer, 2 Hughes 96; The E. A. Barnard, 2 FED. REP. 719. The reason given for this inverse order of payment is the same that controls in the case of successive bonds and claims for salvage, that the latest benefit to the ship is a benefit to all parties having a prior encumbrance thereon, including material men who have given her earlier credit. This rule is insisted upon in these cases as one founded in the necessity of commerce, which gives the ship to her entire value, in case of necessity, whoever may be interested in her, as secnrity to the material man
834
FEDERAL
giving credit to her under those circumstances which, by the maritima law, create a lien. It is a singular circumstance that, in the case of The Globe, Judge Nelson apparently makes this very consideration a reason for giving priority to the material man making the first attachment, although it would not seem to be a reason for adopting such a rule of procedure. Thus he says: " It has been argued that this maritime lien for supplies and material furnished at a foreign port is an abiding claim and adheres to the vessel, and may be enforced over all claims of a like nature subsequently accruing in the -course of her employment., I cannot assent to this position. - On the contrary, I am satisfied that the true rule upon the subject is that, in respect to maritime liens of this description, the party first instituting legal proceedings, for the pupose of enforcing his claim against the vtlssel, is entitled to satisfaction out of the proceeds of her sale. Upon any other view the vessel ,would afford no reasonable security to the merchant in making the advances or furnishing the necessary. supplies, as, for aught he could know, the existing claims against her might exceed her value. It is apparent that ,to give this maritime lien the etticacyclaimed would greatly embarrass and obstruct the commerce and navigation of the country. It would deprive the master -in distant ports of the means of meeting the exigencies of the service, because the vessel would furnish no adequate security for the necessary supplies or repairs." The learned judge then cites with approval Judge Betts' definition of a maritime lien, as an additional ground for giving the preference to the first attachment. I think; therefore, it must be conceded that .at least one of the grounds uponwbich Judge Nelson approved this rule of priority in the ca,se of material men has no application what.ever to cases of successive claims founded in tort; as, for instance, claims for damages by collision or negligence. In these cases the ,creditors acquiring a lien are such in invitum. There is no credit given to the vessel. There is no consideration of the necessities of commerce requiring thesecnrity of the whole valne of the vessel as a pledge Jor a benefit conferred 1!pon the jaith oj it, to influence the determination of the question of priority. As to the other ground on which this rule of priority is based,--the nature of a maritime lien,-'in fact the sole gronnd on which the case of The Triumph appears to proceed, it must also be conceded that later cases of the highest authority in this country and in England have held "the meaning and efficacy of a maritime lien" to be something, very different from a "privilege to arrest the vessel for the debt which, of itself, constitutes no, encmnbrance on the vessel, and becomes such only by virtue of an actual attachment" as it is defined in the case ()f The T'l'iulllph.
THE FRANK G.FO'VLER.
885
Thus, in the case of The Bold Buccleugh, 7 Mo. P.-C. 284,-a case twice argued,-the court says: ' , "A maritime lien does not include or require possession. The word is used in maritime law not in the strict legal 'seuse in whiCh we understand it in courts of common law, in which case there could be no lien where there was no possession, actual or constructive, but to. express as if by analogy the nature of claims, which neither presuppose nor originate in possession. This was well understood in the civil law, by which there might be a,pledge with. possession and a hypothecation without possession, and by which in either case the right travelled with the thing into whosesoeyer possession it came. Having its origin in this rule of the civil law, a maritime lien is well defined by Lord 'fenterden to mean a claim or privilege upon a thing to be carried into effect by legal process; and Mr. Justice Story (1 Bumn. 78) explains that process to be a proceeding in and adds that, wherever a lien or claim. is given upon a thing, then the admiralty enforces it by a proceeding in rem, and indeed is the only court competent to enforce it. A maritime lien, is the foundation of the proceeding in rem-a process to make perfect a right inchoate from the moment the lien attaches; and whilst it mutlt be admitted tnat where such a lien exists a. proceeding in rem may be bad, it will be found to' be equally true that in all cases where a proceeding in 1'em is the proper course, there a maritime lien exists, which .gives a privilege or cl,aim upon the thing to be carried into effect by legal process. This claim or privilege travels with the thing into whosesoever possession it may come. !tis inchoate fro ll1 the' moment the claim or privilege attaches, and when carried into effect by legal process, by a proceeding in rem, relates back to the period when it first attached." . " '
This definition of a maritime lien was commented on and approved in The Feronia, L. R. 2 Ad. &Ec., 72. It is also approved to it!! full extent by the supreme court in The Rock Island Bridge, 6 Wall. 215. 10 Ins. Go. v. Sherwood, 14 How. 363, Mr. Justice Curtis, speaking in a case of collision, says: "The loss was the existence of a lien on the vessel insured,securing a valid claim for damages, and sequent diminution of the value of that vessel." In the case of Triumph no efficacy is given to the lien beyond the right of attach· ment on mesne process for the security of a debt of the owner. The cases he cites are some of them cases of attachment on mesne process, and he makes the maritime lien analogous tothe'right of the ereditor to make such an attachment, which, indeed, takes effect only upon the levy of process on the property. A similar suggestion, made or supposed to have been made by Dr. Lushington, in The Johann Friederich, (1 Wm. Rob. 37,) is commented on by the court, and disapproved in The Bold Bllccleugh, ut supra, 282.' And the distinction between an attachment on mesne process which createsalieri only upt)l1 the
836
FEDERAL REPORTER.
seizure, and a proceeding in rem in admiralty to enforce and give effeet to an existing lien. is carefully pointed out by the supreme court in Leon v. Garcelon, 11 Wall. 189. In this state of the authorities I am unable to follow the case of The Triumph, as furnishing a rule for the order of payment in a case of successive claims for tort, which seems not to be governed by the same reasons as to order of payment which apply to a case of several claims by material men. Nor is it possible to sustain the claim of the Phcenix lIi:surance Conipanyto a preference under authority of the case of The Triumph, even if that case were applicable to a case of successive torts, because there is nothing to show that the attachment in its case was earlier than that in the case of Conway. Where several attachments are levied on the 'same property at the same time, the property attached is to be distributed among the several plaintiffs, if they recover judgments, as having an equal right thereto, and this rule seems to.apply though the processes were delivered to the offioer at different times. Gates v. Bushnell, 9 Conn. 530; Shove v. Dow, 13 Mass. 529; Rockwood v. Varnum, 17 Pick. 289. These returns of the marshal merely showing an attachment in each case on December 24th, there is no presumption from the difference in the dates of the processes that one was served before the other. If the right to a priority depends upon an earlier service, the time'may be shown by evidence extrinsic to the return, though the return shows service on the same. day. But a party claiming priority on this ground must make good his right by proof. Drake on Attr.ch. §§ 261, 264, 265, and cases cited. If, therefore, the case of The Triumph applies to this case, it would seem that both of these libellants would be entitled to share in the fund, by the application of the rules that govern similar cases of attachment on mesne process; but, for the reasons already stated, I think that decision does not furnish the principle which controls the present case. If, then, the test of the time of service of process be rejected. by what 'principle of the maritime law is the case governed? Thet"e are three possible theories of the case: (1) That the two parties be paid pro rata; (2) that the party suffering the first loss lras the prior claim; (3) that the party suffering the second loss has the prior claim. I think there is no authority which would justify a pro rata distribution of the fund. Judge Lowell, in the case of The Fanny, indeed says that the general rule in admiralty is that all lienholders oJ
837
-
like degree share pro rata in the proceeds of the res, without regard to
the date of their libels or suits, if all are pending together. By II lienholders of like degree," however, I understand him to mean lienholders who by the rules of the maritime law are not, either from the nature of their claims or from the difference in time when they attached, entitled to any preference over each other. I think the subsequent part of his opinion shows that he does not regard similar claims arising at different times as liens of the same degree, since he distinctly approves the rule that material men are to be paid in the inverse order of the creation of their liens; and he approves the opinion of Judge Hall in The America, where it was held that a lien for damage by collision was of as high a character as the lien of a terial man, and as between such claims they were to be paid in the order of their creation. The argument for the,parties first suffering damage is that. they acquired a lien on the tug for their damages; that this was a subsisting right or interest on the twenty-fifth of November, when the dammage of the other party occurred; that it had not been forfeited or lost by laches; that whatever right or lien the party suffering the second damage acquired in the tug was acquired subject to this existing right and lien; that as their lien was good and available even against a bonafide purchaser without notice, so it must be good against a party acquiring any less interest than a purchaser; that the right of the party suffering the second damage cannot be greater than the right of a purchaser would be; that the reasons growing out of the necessities of commerce, which have led to the preferring of the last material man over the earlier ones, do not apply to successive torts, where the creditor is made snch in invitum, and no credit is given to the vessel; that nothing has happened to displace the earlier lien, and being earlier in time it has the stronger equity. It is true that the delay in libelling the vessel from November 5th to November 25th cannot, on the authorities, be regarded as laches which will operate to extinguish the lien as against the vessel in favor of a purchaser. And the reason why the purchaser takes subject to the lien is that the purchaser takes by contract with the owner, and can take only the title which the owner has to convey, therefore he takes that title 8ubject to all existing encumbrances, including the lien created by the former marine tort, which, as shown by the above cases, is in the nature of a tacit hypothecation of the vessel, an encumbrance upon v.8,no.5-22
or diminution of the interest of the owner. But the right or interest created in the injured party by the second marine tort does not depend upon contract, but upon the principles of the maritime law relating to marine torts and their effect upon, or the claim that they create upon, the vessel. Now I think it is the established rule of the maritime law that for the torts of the master and mariners the vessel becomes bound to the injured party to the extent of the damage. A lien or tacit hypothecation is at once created and vested in the damaged party, subject to be defeated only by unreasonable laches in bringing the proceeding in rem, by which alone it can be enforced. A party who has already suffered such a damage has· such a lien or hypothecation of the vessel. He is to that extent in the position of an owner,-he has a quasi proprietary interest in the vessel. It is true he cannot, as an owner, control her employment or prevent her depart. ure on another voyage, except by the exercise of his right or power to arrest her for the injury to himself, and in some cases the second injury may be done before he has an opportunity to arrest her j yet if her continued employment is not his own voluntary act, nor with his own consent, it is his misfortune that the vessel in which he has an interest is used in a manner to subject herself to all the perils of navigation. This use, unless he intervenes to libel and arrest her, is perfectly lawful as against him. If she is lost by shipwreck, of course his lien becomes valueless, and I think his interest is not exempted from this other peril to which the vessel is liable, namely : that she may become bound toatly party injured through the torts of the master and mariners. The·· principle as to marine torts is that the ship is regarded as the offending party. She is liable in Bolido for the wrong done. The interest of all parties in her are equally bound by this lien or hypothecation, whether the master and mariners are their agents or not. In the case of The Aline, 1 Wm. Rob. 118, Dr. Lushington says: "I am also of opinion that neither the mortgagee nor bottomry bondholder {lould be a competitor with the succesf!ful suitor in a cause of damage, and for this reason that the mortgage or bottomry bond might and often does extend to the whole v'alue of the ship. If, therefore, the ship was not first liable for the damage she had cccasioned, the person receiving the injury might be wholly without a remedy, more especially where, as in this case, the damage is done by a foreigner, and the only redress is by a proceeding against the ship,"
Commenting on this decision in'the case of The Bold Buccleugh, ut supra, the court says;
889
"In that case there was a bottomry bond before and after the collision, and the court held that the claim for damage in a proceeding 'in rem must be preferred to the first bondholder, but was not entitled against'the second bondholder, to the increased value of the vessel by reason of repairs effected at his cost. The interest of the first bondholder taking effect from the pel'iod when his lien attached, he was, so to speak, a part owner in interest at the date of the collision, and the ship in which he or others were interested was liable to its yalue at that date for the injury done, without reference to his claim."
I think the same principle is applicable to a prior lienholder, who, by the tort of the master and mariners, has become, so to speak, a part owner in the vessel. His property, the vessel, though not by his own voluntary act, has been used in commerce. That use was not tortious as to him. It is subject in that use to all ordinary marine perils. One of those marine perils is that it may become liable to respond to another party injured by the negligence of the master and mariners. No exception to the liability of the vessel, exempting the interests of parties interested in the ship, has been established by authority. To create such exceptions would greatly impair anclweakeri the security against negligent navigation, which the rule of liability of the vessel is at least partly designed to promote. Since the act of congress, passed in 1851, limiting the liability of ship-owners, their personal liability is in most cases of marine tort unavailable. That act itself implies that by the rule of the maritime law the party injured by a collision or other tort of master and mariners has an unquestioned lien on the vessel in sol'ida. In ,!,he America, 1£t supra, Judge Hall says: " In short, all parties except seamen, holding ordinary maritime liens upon a vessel, are to some extent treated as though they had a proprietary interest in the ship; and their interests, whatever they may be, are subject to all liens which the necessities of the ship, or a collision caused by the carelessness or misconduct of those in charge, may suhs,:quently impose."
For the reasons above stated, I think this is the true rule of the maritime law; and, applying it to the present case, the interest or lien of libellants Conway and others in the vessel was not exempt from becoming liable, like all other interests in the tug, to the lien of the party subsequently suffering damage by the tort of the master. The case has thus been considered without reference to the circumstaJ.1ce that the libellants Conway and others had an opportunity to libel the tug before she left this port upon the towing voyage, ont of which the second cause of damage arose. While this failure to arrest the vessel was not laches operating to forfeit their lien, it yet gives the snbse-
340
quent lienholder a stronger equity, since the first lienholder, in suffering her to go without arrest, clearly took the chances of her incurring new liabilities, according to the principles of maritime law, and in a sense may be' said to have consented to her being employed in another towage service. out of which they must be held to have understood that such a claim for damage might grow. On these grounds a decree will be entered for the payment of the fund in court to the libellant the Phrenix Insurance Company, in part satisfaction of its damages, unless an appeal be taken within the·time prescribed by the rules of the 'Court.
THE FRANK
G.
FOWLER.
(District ClJUrt, S. D. New York. April 30, 1881.) 1. CANAL-BoAT IN Tow OF TUG ON LONG ISLAND SOUND-SEEKING SHELTER IN STORM WANT OF ANCHOR-NEGLIGENCE-DIRECT DAMAGE-CUTTING BOA'! ADRIFT SCARCITY OF FuEL-ADMISSION IN PLEADING.
Where a tug, having in tow a canal-boat loaded with coal, started from New London for New York in November, the weather being fair and the sea smooth, and when off the westerly end of South Sand shoal was compelled to seek shelter on account of an increasing easterly storm, the boat becoming unmanageable and having broken her tiller, and put in under the lee of Duck island about 2 o'clock P. M., where she circled round and round to avoid drifting ashore, the boat having no anchor, and that of the tug being too small to hold both vessels, and although she was in a safe place, and the storm had not abated, resumed her course about midnight for New Haven, but was soon compelled to cut the boat adrift, after taking her master and his baggage aboard, and the boat was found by her master the next day in Guilford creek, uninjured, in charge of salvors, who had found her in Guilford harbor, and brought her in and supplied her with an anchor, but she subsequently dragged her anchor in a southerly storm, and was badly strained by getting across the channel,Held, on the evidence, that the master of the boat used reasonable diligence and good judgment in trying to secure and protect his boat from injury after she was discovered in the possession of the salvors, and that the subsequent damage was not camed by his negligence, and that such subsequent damage was the natural and probable result of her being cast adrift by the tug; that the want of an anchor, even if a defect in the equipment of a canal-boat on Long Island sound, was fully supplied by the one furnished by the salvors. Also held, on the evidence and pleadings, that the cause of the tug leaving the lee of the island was not due to the change or threatened change of wind to the s?uthward, but to her scarcity of fuel, which was not sufficient to allow her to reach New Haven if she remained there longer, and that the want of an anchor on the boat did not contribute to diminish the supply of fuel, as the situation was such that the tug could not have safely allowed her fires to run down; that it was clearly negligence in the tug to attempt to tow a loaded canal-boat from New London to New York, at that season of the year, with so
THE FRANKG. FOWLER.
341
short a supply of coal that in case of accident or stress of weather she could not he over under steam, in a place of shelter, in the course of her voyage, for the space of something more than 10 or 12 hours; and that to this negligence was due the abandonment of the boat, and the damage which followed; and the tug, being wholly in fault, is liable therefor. Where the testimony showed that before the tug changed her course fo.· Duck island, and at a point where she could have made Saybrook harbor, the sea became so rough that she could not safely continue her voyage,Held, that the subsequent disaster and damage were attributable to the tug's failure to take shelter in Saybrook harbor, which she ougilt, under the circum· stances to have done; and that on this ground also the libellants are entitled to a decree.
In Admiralty. Caryenter d; Mosher, for libellants. Beebe, Wilcox d; Hobbs, for claimants.
CHOATE,D. J. This is a suit brought by the owners of the canal-boat Lockport to recover damages alleged to have been sustained by the canal-boat and her cargo through the negligence of those having charge of the steam-tug. The steam-tug was engaged to tow the canal-boat or from New London to New York. They left New London about 8 A. M. on the fourth day of Nevember, 1880. The canal-boat had on board 210 tons of pea coal and coal-dust. Her canying capacity was about 325 tons. She was loaded by the stern, drawing about five feet forwar<F and seven and a half feet aft. When they left New London the canal-boat was along-side. When they got out of the river she was dropped astern upon a hawser. When they left the weather was fair, with the wind from east to north-east, blowing moderately. They went to the south of Bartlett's reef, and thence by the channel to the south of Long Sand shoal.· Before they reached the west end of Long Sand shoal, the wind and sea had risen so that the canal-boat became unmanageable, yawing so much that she pulled tile tug around into the trough of the sea. The wind was then about east, and the tide was setting also to the westward. One of the questions in the case is at what part of the passage the wind and sea thus rose; but there is no controversy that this was the state of the case when they reached the west end of Long Sand shoal. From that point the pilot of the tug thought it necessary to seek a place of shelter, and he changed h1s course to go under the west side of Duck island, which affords a lee, with an east wind, and which was the nearest place of shelter from the vicinity of the west end of Long Sand shoal. They reached the west side of Duck island about 2 o'clock in the afternoon. Before reaching Duck island, but whether befure or after they changed
7t
342
their course for that place it is almost impossible on the evidence to determine, the tiller of the canal.boat broke close to the rudder head, thus increasing greatly her unmanagebleness. The libellant testifies that ,this was after they turned to go 'in llnder DlilCk island; that the tiller was lashed at the time, and he was forward attending to putting on the hatches, which had become necessary, because in going in Duck island the boat was exposed to a cross sea, and more liable to ship water on her deck. Great doubt is, in my judgment, thrown on his testimony as to the time when the tiller by the other testimony in the case; but, in the view which I have reached as to the subsequent incidents of the voyage, this point is not material. The storm had become very violent by the time they got under the lee of Duck island, but this afforded them a safa place of shelter as the wind then was. On reaching this place they anchored. It was then found that the canal-boat had no anchor. With the tide then running there was a current setting towards the shore, which was about two miles distant, and the anchor of the tug was found to hold, both tug and canal-boat, and they dragged slowly towards the shore, so that it was necessary to work out and anchor ag,ain, which was dono. As they still dragged, they abandoned the plan of lying at anchor, and circled round and round, keeping under the lee of the island. They kept this up till some time in the night, not later than 2 o'clock A. M. of November 5th, when they started out for New Haven, the tug towing the c.anal-boat astern by two or three hawsers.. 'rhe testimony of some of the witnesses is that they left the shelter of Duck island to go to New Haven about 2 It is also testified that they arrived at New Haven at 4 o'clock in the morning. There is a mistake in one or the other of these times, because it seems not possible that they could have made the passage, about 17 miles, in two hours, especially as the tug was encumbered by the canal-boat during the first part of the passage, estimated variously by the witnesses from one mile to three or four miles, The pilot of the tug testifies that during the first part of .the voyage from New London, when they had no great difficulty in towing the canalboat, they made about three miles an hour. Their progress must have been much slower while towing her from Duck island, with a very rough sea, a!ld no tiller to aid in steering the canal-boat. It is not, however, material whether they left Duck island as late as2 in the morning or as early as midnight. I think on this point the statement in tbe answer that they left about 10 minutes after 12,
THE- FRANK G. FOWLER.
348
midnight, IS probably corrfmt. After getting out into the sound, oomewhere between a mile and three or four miles from their placE! of shelter, they cast the canal-boat adrift, taking her master on board the tug, with his personal effects, and the tug proceeded to New Haven. I think the testimonyJully sustains the claim of the owners Qf the tug that when they cast the canal-boat adrift she so unmanageable from the combined effect of the severity of stonn and her want of steering gear that it was impossible to tow her longer with safety to the tug. I think, also, the evidence shows that when they started with her for New Haven from under Duck island, the pilot and the master of the tug expected to be obliged to cast her adrift in the sound, and not to be able to tow her into New Haven. Whether they intended, when they started, to cut her adrift or not, it was a result obviously likely to happen in her condition, and with the wind and sea as they then were. One of the principal questions in the case is; what was the reason that compelled or induced those in charge of the tug to go out from under the shelter of Duck island in the violent storm thenragil1g in the night-time, instead oof waiting where they were till the storm should subside, or until daylight should come, when many opportuniof relief were likely to be offered to them? It is the claim of; the libellant that the sole cause of'their thus going out and exposingOthe tow to this danger was that fuel was 80 they could not remain longer without running the risk of getting out of coal before they could reach New Haven. And it is alleged as one act of negligence on the part of the tug, leading to the disaster, that the tug had not a sufficient supply of coal on leaving New London. This point will be hereinafter considered. The next morning the master of the canal-boat went in search of his boat. Following the shore westward he found that she had drifted into the mouth of Guilford harbor, and had been rescued by parties discovering her there and brought into Guilford creek,where he found her in charge of the salvors who had brought her in. She was apparently uninjured, and lay there in a narrow channel, anchored with an anchor which the salvors supplied her with. Up to this time her owners had sustained no actual damage by her being cast adrift on the sound, except the amount due the salvors, which was the very reasonable sum of $100, which sum they demanded, and which the owners of the canalboat have paid. It is the claim on the part of the tug that the damage afterwards sustained, which was caused by her getting across the
844
narrow channel, and being thereby strained and hogged, is to be attributed to the fact that she was not equipped with an anchor, and to the negligence of her owners in not sooner getting her out of the dangerous place in which she was lying, or in not finding for her in Guilford creek a safer place to lie in; and that this subsequent dam· age is not properly attributable to the casting of her adrift on the sound, even if the tug is responsible for the damages directly arising from so leaving her adrift. No doubt it was incumbent on the master. of the canal-boat, wlw was also one of the owners, to take all reasonable measures for the prompt rescue of his boat from the perilous position iu which she had been put. But, without going at length into the evidence, it is dispose of this point to say that upon the proofs he acted with diligence and rvasonably good judgment in his endeavors to rescue her, but before he could Bucceed in doing so a severe southerly storm came on, which drove the sea into Guilford creek, caused her to dra.g her anchor, and was the means of her getting across the channel, so that when the tide fell she was badly injured, her center sinking down some three feet as she lay across the channel, with her bow on one bank and her stern on the other. Upon his discovering her in Guilford creek, her master returned to New Haven and endeavored to get the aid of a small tug which should be able to enter Guilford creek and tow her out. It is evident that the Fowler could not do this. She drew too much water to enter the creek. And it is evident,also, from the testimony of the master of the canal-boat himself, that he knew this, and did not expect or ask the captain of the tug to render this service, and that all the further aid he looked for, if any, from the Fowler was to tow her to New York after he had succeeded in getting her out of Guilford creek and had brought her to New Haven, which he gave the captain of the tug to understand that he was going to do. Nor does the evidence sustain the contention of the claimants that there was any safer place for the canal-boat to lie in, in or near Guilford creek, than that in which the salvors put her and where her master found her. As to the want of an anchor, assuming that a canal-boat upon a voyage from New London to New York is unseaworthy if she has no anchor, which is the contention of the claimants,-although there is a very considerable weight of evidence in the case that It custom or usage has grown up for the tug to carry ground-tackle enough to hold herself and the tow in case it becomes necessary to anchor, and for this class of coal-boats navigating the sound to go without an.
cnorsto-yet It appears to me that this defect in the equipment of the canal·boat, if it was one, was fully supplied by her being furnis,hed with an anchor by the salvors. That anchor was at least as heavy as anchors usually carried by oanal-boats having anchors, and there is no rule of law nor any usage .shown requiring a canal-boat to have more than one anchor. At the time she got across the ohannel she was properly equipped with an anohor. The fact that before that she had none is therefore immaterial. Her drifting into Guilford harbor, being rescued by salvors, and being temporarily anchored there, in a dangerous place, were all natural and probable consequences of her being oast adrift on the sound. If, therefore, the tug is found responsible for so oasting her adrift, she is liable to these subsequent damages. It is charged, also, by the claimant that the oanal-boat's want of an anchor, while they were under the lee of Duck island, in some way was the cause of the dama,ge whioh she suffered, or oontributed to it. It is argued that the tug had an ,!,nohor which would hold herself, and that this was all she was bound to have; that if the canal-boat had had an anchor sufficient to hold her, there would have been a saving of fuel, and both vessels could have lain there safely at anchor till the storm abated. Even if the canal-boat had had such an anchor, there would have been no saving of fuel, unless the tug, while lying there at anchor, had let her steam run down or her fires go out. But the situation was such that it would neither have been safe nor prudent for the tug to do this. For the time being the position was safe, but with a change of wind to the southerly, which certainly was possible at any time, the island would cease to afford a lee j nor would it be prudent, with a strong oUl'rf;lnt setting on shore and a storm raging outside, to have trusted tug or canal-boat to even apparently good anchorage without the means of aid by steam in case the ground taokle should prove insufficient. For these reasons I think that the want of an anchor on the canal-boat, at that time and place, neither oaused nor contributed to the running down of the tug's fuel, nor to the subsequent disaster, if that disaster was caused by the tug being oompelled to leave her shelter by want of fuel. On the other hand it is claimed, on the part of the libellant, that the want of a proper anchor and ground-tackle on the tug, to hold both tug and canal·boat, was a fault on the part of the tug which caused or contributed to the subsequent disaster. I think there is as little basis for this claim as for the claim that it was the want of an anchor on the canal-boat
':,.
346 V
that caused the damage. There is great doubt on the testimony as size and weight of the tug's anchor. The libellant testifies that he'himself handled it alone and threw it overboard, and he estimates its:weight at 75' pounds. On the point of his handling it alone he is seriously,contradicted, and I am un:;tble to find this fact proved on hiE! uncorroborated testimony. Ontha other hand, the testimony of those on the tug is that it weighed from three, to four hundred pounds. l1heproof \S, however, that though the holding gronnd there is good, it was insufficient to hold the tug and this partly-loaded canal-boat. I should have little difficulty in finding this an insufficient equipment for a tug towing canal-boats in the sound, if this want of a anchor had anything to do with the subsequent disaster. but I think it had not. 'For the reasons given above, even if the anchor had held, the tug could not safely have let her steam run down in situation, nqr have safely remained there after her fuel was so far exhausted that she could not proceed under steam to New Haven, the nearest port of safety. She certainly did not go out from under Duck island because she could not anchor there. She had no difficulty in. steaming round and keeping unde],· the lee of the island, and might have continued to do S?, if she had had fuel enough, till the next day. While.she did s08he and her tow were safe. Coming,then, to the question why the tug left the 8helter of Duck island at the time and under the circumstances in which she did, the effect of the evidence in the case clearly is that she left then because her supply of coal was so nearly exhausted that she could not remain there longer without incurring the danger of her coal giving out before she could reach New Haven, which was the nearest place at which coal could be obtained. The only other theory advanced.on this point is that urged by the counsel for- the claimants, that she went out because there were indications t'1atthe wind was hauling more to the southward, and if it had done so the west side of Duck island would have ceased to furnish a lee, and that it was therefore unsafe to remain longer. There is no evidence whatever to sustain this theory, except the testimony of Captain Meyers, the master of, the tug. The testimony of this witness is to be re,ceived with great caution. Not only is he interested to justify his conduct, but it appears that ever since the disaster, in November, 1880, till the time of the trial, in February, 1881, he had been employed by ule owner of the tug in preparing the defence, in the case, and he manifested upon the trial, a great deal of earnestness in behalf of the defence. So vital a point
347
as this in justification of the tug would, it seems, if true, have been set up in the answer, which was filed December 30, 1880. Yet not only is it not set up in the answer, but, on the contrary, the answer virtually admits that they left Duck island when they did because their coal was getting exhausted. Thus the answer states" That it was then found that the supply of coal necessary to run the engines of the tug was being rapidly consumed, and that the nearest point to replenish the said coal was at New Haven; that in this emerge:ncy it was deemed'to be the most prudent course to tow the said barge out into the sound; where there would be a better chance of her being picked by some other vesssel or steamer, and at 12 o'clock and 10 minutes, midnight, of November sixth, [fifth,] the said tug and tow left the lee of the said island anti proceeded for New Haven, in hopes that with a fair wind and tide she would be enabled to tow the said barge into New Haven, or some other place of safety," etc. It seems to me quite inconsistent with this answer now to claim that there was any other reason for leaving the lee of the island, at a time and under circumstances almost certainly involving the risk of the loss of the tow,than the want of coal. Moreover, the pilot, Clifford, who was examined before the trial, and whose exam-. ination Captain Meyers attended, gives no testimony whatever tending to show that an apprehended change of wind had anything to du with their leaving the lee of the island. On the contrary, his testimony strongly confirms the libellant's charge that they left for want of coal. If anybody would known of the fact that they left because of a change, or threatened change, in the wind, if that were 80, it was Clifford, the pilot, who was the person actually having charge of the navigation of the tug. It is inconceivable that if Captain Meyers, at the time of Clifford's examination, had, this point in his mind, and believed that the change, odhreatened change, of wind was the reason for the movement, that he should not have attempted to prove the fact by the testimony of the pilot. Clifford is a disinterested witness, having no known bias in the case, unless to justify himself in his conduct of the voyage, and his testimony, where it makes for the libellant, is entitled to great weight. The testimony of the other persons on the tug, so far as it goes, aids the libellant on this point. They heard the matter of the want of coa} talked about. One of them, a deck hand, called as a witness for the libellant, does indeed testify to having overheard the pilot say that there were indications of the wind hauling more to the south· erly. There is no confirmation of this by any other witness. Even if it were said, I am satisfied, from the testimony of the pilot, that
indications of a change of wind were not so decided, or so threatening, as to have operated on his mind as a gronnd for leaving the lee of the island when they did. I think, however, from the whole that course of the trial, the state of the pleadings, and this piece of evidence first suggested to Captain Meyers, and his very astute counsel, the idea of setting up the justification of a change, or. threatened change, of wind. Captain Meyers testified only to a change to E. by S., which still left the west side of the island a safe lee, and to indications of a further change. It is very easy for an interested witness to bring himself to believe that he noticed indications of a change of wind, but it is not satisfactorily shown that the tug and tow could not safely have waited, notwithstanding such indications, till the threatened change came in fact. When the island ceased to afford a lee, they would be no worse off than they were the moment they came out from its shelter. One circumstance of great weight against the tug is that, while they were under the lee of the isla'ld, they took coal from the canal-boat for the use of the tug" It was carried across in pails, only a small quantity, but all that the canal-boat had suitable for the use of the tug. This was a most absurd thing to do, unless the tug was getting very short of coal. Captain Meyers' testimony as to the amount of coal all board is also very conflicting. He first testified that they probably had seven tons when they left New London. The tug used about four tons in 24 hours. This would have left at least four tons, or 24 hours' supply, when they left Duck island. In another part of his testimony he says they then had enough for 12 hours, which would be but two tons. An ingenious attempt is made, by the testimony of witIlesses as to amount of coal taken on board before leaving New London and at New Haven, and the number of hours the tug ran without coaling afterwards, to show that she must have had a good supply of coal on board when she left the island. Such evidence is always liable to involve some error in a mistaken estimate of amount, or the misrecollection as to details, of some one of several witnesses, wheu examined a considerable time after the event. It is not sufficient to overcome the admissions of the answer, and the overwhelming weight of testimony, that it was this urgent necessity, and nothing else, which compelled the tug to take the desperate hazard of towing this disabled boat out into the sound on that stormy night. Assuming this fact, then, as proved, the question is whether it is
34:9
negligence in a tug taking a loaded canal-boat in tow from New London for New York, at an inclement season of the year, to have so short a supply of coal that in case of accident or stress of weather she could not lie over under steam in a place of shelter, in the course of the voyage, for the space of something more than 10 to 12 hours. r have no hesitation in holding that this is negligence. Such accidents are ordinary incidents of such voyages, and should be provided against. This want of coal wa.s the immediate cause of the abandonment of the canal-boat and of the damage ensuing therefrom to her owners, and on this the tug must be held liable. It is suggested by claimant's counsel that the tug was not responsible for the breaking of the tiller of the canal-boat, and that this was the cause of the disaster. It does not appear that the tiller was not a good and proper tiller, a.nd the violence of the sea fully accounts for its breaking. This was not the fault of the tug unless she was at fault in exposing the canal-boat to such a sea....a point to be presently considered. But if the tug was not at fault in this respect, yet, undoubtedly, after the canal-boat was disabled, she was bound to use reasonable care in protecting her from the effects of the injury she had· 8ustained, and was not justified in being provided with so small a supply of fuel that she could not meet so common an emergency as a detention of 12 hours by reason of an accident to the to>". It appears that the captain of the tug intended when he left New London to go into New Haven for coal. This seems to have been a violation of his agreement to tow the canal-boat to New York. which, in the absence of an understanding that he was going into an intermediate port, bound him to go directly to New York. The pretence of a custom of tugs with tows bound from New London to New York stopping at New Haven has no foundation in the evidence. But whether the supply of coal was inMnded for New Haven or for New York, it was clearly insufficient. Another point made against the tug,. that when they reached the east end of Long Sand shoal it was so rough that they were bound to go into Saybrook for shelter, is also, r think, made out by the evidence. The testimony of the libellant on this point is strongly supported by that of Clifford, the pilot. Neither the pilot nor the captain had any experience in towing loaded canal-boats on the sound, and the reason that Clifford gives for not going into Saybrook is that he was bOlmd for New Haven. It was evident that he had little, if any, knowledge of Saybrook harbor and the entrance to it. Their
850
testimony as to the prudence or imprudence of keeping on their course along the South. channel to the south of Long Sand shoal, instead of going into Saybrook, is entitled to little weight on account of their want of experience. But on the question whether, when they were at the point at which they should change their course to go in there, the wind and sea had risen so as to make it very dangerous to proceed on their course, the preponderance of the evidence is against them. This point being established, all the subsequent disaster and damage may be attributed to this failure to take shelter in Connecticut river, as their cause, and on this ground also the tug is liable. Other points made on the trial may be very briefly noticed. The weight of evidence does not sustain the claim of the libellant that the wind and sea had risen so much when they came out of the river that the canal-boat was dropped astern because it could not be safely towed along-side. On the llontrary, I think the evidence is that it war. then fair weather and that the sea was smooth, and so continued for a considerable time. Therefore, the point made that they were bound to turn back at the mouth of the river is not sustained. I think, also, it is not made out to have been imprudent, as the weather then was, for the tug to proceed to the southward of Bartlett's reef instead of t'aking the Two Tree island channel, which some of the witnesses, experi. enced piklts, seem to prefer; nor, if the weather had continued fine when they reached the east end of Long Sand shoal, that it would have been fatally imprudent to have taken the channel to the south instead of the north of that shoal. Nor is it made out that the canalboat could have been safely beached in the vicinity of Duck island, or that an attempt to do so would, under the circumstances, have been an act of prudence. But, on the two grounds above stated, there must be a decree for the libellant, with costs, and a reference to com· pute their damages.
GLOVEB V. OIES.
GLOVEB
v.
AMES.
Court, D. MainlJ. 1881.) L BALE OF CoNDEMNED VESSEL,--PURCHASlll BY MA!lTER-RATl1l'lCATIOK BY OWNERS.