BOUKER tl. SMITH.

841

the beach, the Kapella grounded by the stem, the scows drifted past the tug, and hauled her somewhat about. But the tide was already falling, and the tug could not be got off, though she backed strong. After several vain attempts to get the scows back up the same inlet, it was found that the best that could be done was to anchor them there, and wait for the next high tide. During the night the wind increased, especially upon the flood-tide after midnight, when the scows were blown ashore, and one of them, pounding in the rising sea, began to leak. Between 1 and 2 o'clock A. M. they were abandoned by the respondent's men and those belonging to the life-saving service, who up to that time had been on board. The gale proved to be a severe one, and during the following day, in the pounding of the surf, the scows and the building upon them were brokeR apart. One of the scows was carri'3d a long dis.tance up tM beach to the westward, and all proved a total loss. The'respondent was not an insurer, nor a guarantor of the safety M the scows. In letting them out for this service, the libelants took the risk ofall sea perils, and· of all other dangers naturally incident to that service, except in so far as they might be brought about by the negligence and want of proper care and skill of the respondent or his agent, having reference to the nature of the enterprise. For such negligence, or want of due care, the respondent would be answerable; and the question here is whether the loss is fairly attributable to such negligence, or to other caUSes for ·which the respondent is not answerable. The immediate cause of the loss was the storm. The next Rntetior cause Was the grounding of the tug, in coming out of Rockaway inlet, in consequence of which the scows, with their burden, could not be taken to a place of safety. Had the tug n()t grounded, there being, as I think from the weight of evidence, plenty of water in Debbs' inlet, the trip might have been safely made before the storm came on, and before dark, provided that the tug had sufficient power to tow the scowsup Debbs' inlet against the ebb-tide after reaching it. Although a doubt is suggested on this point by Capt. Jaycox, there is no very satisfactory evidence on the stlbject. If the tug had not sufficient power to pull the tow up against the ebb, she would be obliged to wait outside in the open sea till the next flood"tide. That would involve such an unjustifiable exposure of· the tow as to make the respondent answerable for the result; because all agree that, before starting to leave Rockaway inlet. there were signs of an approaching north-east storm, and the tow was only fit for a calm sea. Assuming,however, that the entrance to Debbs' inlet might have been safely effected before dark, but for the grounding of the tug before she got out of Rockaway inlet, the grounding of the tug becomes the causa cuusans of the loss; and the question is whether this is or is not attributable to the negligence of the employes. On this point there is considerable testimony, but it fails to show satisfactorily why the tug should have run aground if properly handled. In fair weather and a calm sea, and in a buoyed channel, stranding presumably occurs only through lack of care of some kind. The burden of proof is upon the defendant to excuse it by'showing that it did not arise through any lack of care, skill, or diligence in

842

FEDER#. REPORTER,

vol. 40.

including,. in a case lilre this, the preparations therefor. 'fhe cha,n.nel of Rockaway was narroW',sboal, and winding. had marjredJ it out by three puoys. The tug grounded Oil. the port side of the thefirsta,nd second .buoys, because, is stated, of her 8marU power, and consequent inabilHyto obey her.helm under her slow spee!l, with only a .few in.ches ofwater beneath the rudder, and with the great lateral strain of behind. Her helm, it is said, was hard arport she grounded, but she would not mind it· . ,.1 am not satisfied with this explanation, as evincing due care and skill in ,navigation,when the other are taken into account. The place;of;grounding. as marked upon diagram B, by two of the respondents,',witnesseiil,. is shown tQ be, not at the. sharpest tum nor at the" elbow," be inferred .from other parts of Hults1 testimony!,. but at a point considerably beyond that. .a,nd .beyond the first buoy below it,. and beensllJely: Passed,. and the tug had got headed to the weEitwRf4\If the cause assigned wel,'etlJ.e true one, its operation would have been perceived at the, previous turn', which the case. .The Pot the time in the hand+i of a pereon either forjhe;,PllrpQsflj it was manage,dby Hults, who wasww>Uy; uQltCquaintl)d with. the. haQlUing of ttlgS, and with the Kathat da,y·. Capt. Jaycox saya he ,gllY6, tq ,!;lIlHa.because, Ill;11ts "'Jas. sU'ppQsed to know the take,·the.helm for a few minutes, wll,Uehe,went and that Jaycp;x:. Wa,s. ppt ;in .th e pilQ:tr.b.QUse· thettlg .. ,Othera: say that 'W,aSj t4ere ,at· the, . fact thatl the helm was .in handlulgandmanagementof tug,; fl.t at,ime: andp1a.ce t4atspecially required ,8Jlsuch skill, Rnd Wl!.5 Jaycox's duty

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h:elw;

hitp fa&t·. Hults says .the a slow. walk; .bu t Capt. A tug, at, .withwhich (her . If that! wa!! .thespeed, it was a vety. incaui .fact, aJew moments: the tug. OQuid not be backed gw,y: of before grounding: tl:ie, tug was g,qiqg lI-S; iUpl.ts says,seen;la to ilhow notoP.1y thll.t, the tug: was glilthe:pO,rting ofthe before .groU,lldi,qg! as to giy,e it, n.1>.: tiroetQ operate., If the strain bf the hawser ,.was SUQP,,!!-stq i tug from duly her helm upon any benqjpg,it tpe,workof a lD:omentto ease that abey berhelm.,IfJaycox had been at . been, .I do not. think the. tug wowd' have
: gQirJilg

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and to proceed with aucbcaution that even touchf$hould .:-:"'"slower,

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.there 'Was: no fault·i.n as.

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of the: tag, and if,the under ,the complicated circuiri.all.these 'com-

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tJ: SMITH.

plications and li3bilities were well, kno'Vn and p.nderstoQQ, beforehand. It was the duty to precautions against them, so far as practicable; and, second, a reasonable means of escape if the grounding should occur. These dangers were no part of the libelants' risks. If the liability to ground in that inlet from such causes was, real" it wllsnegligeru::e to out at a time when any such grounding was certain or likely to prove fatal, through the approaching storm. The respondent have waited for weather that would give toel'triuate the tow from such probable mishaps. The tug was in the ernployofthe respondent, hired by the day. There was no independent cOntract between the tug and the defendant, such as to free the latter from the. legal responsibility of a principal for the acts of the tug as respects the scows which he had hired. The respondent is therefore answerable to libelants for the loss of the scows, .either for starting at an improper time, in view of the difficulties, liabilities, and mishaps naturallyattending such enterprise, or for want of proper care and skill in the gation of the tug to avoid grounding. . The alleged agreement by the libelants to irtsure is not sufficiently proved. Even ifestablished , it.would not meet the case; since such insurance could cover only perils of the seas, not the lack of proper care on the part of the respondent's atives and employes. The defense that one of the scows was ",eak, and unable to withstand the stranding, so as to rise with the rising tide, and be thereby carried up on.the. beach without much injury,. be sustained. Astouter bdatJriight, perhaps, in' that waf But these scows were. both dpeIitoel'amination before thej were hired, and were seen by the respondent's agent·. 'rhey were ,not let for the purpose oigoing safely through a process of strahding on the beach in a north-east storm, with a house upon them, nor was there any implied warranty of their suffi.-, ciency forsrich. a triaL . There is nothing to indicate that they were not sorind enough and strong enough to transport the station-house through any water arid sell. that the respondent expected them to encounter, or to which ·l1e had any right to. el'pose them.. They were seaworthy for such purposes,; and this is the extent oltha libelants' implied warranty. Th'e conditiob ,of the scows. is, of course, a material one on the question of damages.' The libelants· are entitled to decrees in both cases, with

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'

844

FEDERAL REPORTER,

vol. 40.

SARAH

WESTERN ASSUR.

Co. ".THE

J.

WEED. 1889.)

(District Court, S. D. New

L

TOWAGE-NEGLIGENCE OJ!' TUG-PRESUMPTION.

L

Though a tug is not an insurer of her tow, if the tow is run against a wharf 11 clear weather, negligence in the tug is leglLlly presumed.

COLLISION-WITH PIER-EvIDENCE-CREDIBILITY.

The libelant's coal-box was' one of a tow of seven boats in charge of the tug B. J. W., bound around the Battery and up the East river. The tow was unwieldy, and moved throtlgh the at the rate of only about one mile an hour, and was car· ried with the tide against the end of pier 45; about a half a mile above the Brooklyn 'bridge. ,The excuse of the tug was that a schooner sailing past them, on the right, prevented the tug fromgping as nearthe Brooklyn shore, a little below the as was necessary in order to avoid the effects the cross-tide towards the New York shore. The pilot testifled, that .the schooner, ,with a ferry-boat coming in the opposite, direction a little later, threw him from four to six hundred feet to the westward of the usual course, and that the collision was thereby unavoidable. Held, that the circumstances showed that the pilot's estimate was,a gross exa$ger.' ationhand that there would have be!m no diffiCUlty in keeping the tow from pler45, had t e tng ported sufficiently in time. " The estimates of witnesses, and statements as to the effects of tide, though uncontradicted, go for,nothing, when contI'ary to laws of nature and to weU-known facts of navigation otherwise,appearing in the testimony. ' " '
· .'1

In Admiralty.

Carpenter &- Mosher, for libelant. Wilcox, ,Ada'/1l.8 <fe'Macklin, for claimant.

Qame in contact with the corner oipier 45, East aJ?d was so injured thereby as to sink shortly anQ, with the cargo, become a total The libelant, as insurer of the cargo, having paid the loss, brought thatthecollision was 'by negligence this suit for ofthe tug. The box was' oQe of seven taken in tow by the Weed at J(:lrsey City,bound through the East river to ports on Long' Island As the weather was fair, the presumption is that the tug was negligent in the tow to Qome in contadt with the The defense is thatthe master of the tug was and his proper course, whenjust below ,which came 'up with the flood-tide, sailing wing and wing, and ran' betweep. the tow and the Brooklyn shore, so as to prevent his getting as near to · the Brook.lyn shore as was necessary; 8econd, by a ferry-boat, which, immediately after the schooner had passed the tug, came down the river from under the bridge, and, instead of going on the New York side of the tug, crossed the tug's bow, towards the Brooklyn side, and so continued to force the tug towards the New York shore. The tide from Buttermilk channel sets from the Brooklyn shore towards the New York shore all the way up to and above pier 45; and it is said that by the above-named obstruction the tug was so prevented from getting near Jewell's wharf, and so carried by the set of the tide towards the New York shore, that, despite anything the tug eould do from that time, the

, BROWN, J. box k,nown as"N. E. T.No. 54," loaded, with coal, wW1e in to'Y, of the steam-tug ,Sarah J. W'eed,