I'EDERAL REPOBTER I

vol. 60.

THE. E. E. SIMPSC?N.

ROGERS v. MOORE. (Olrcu1t Court of Appeals,: Fifth Circuit.' February 27, 18M.) No. 184.
TOWAGE;-GnoUliDINGOF TuG-NEGLIGENCE.

A tug a tow was out of ltIobile bay at night, where the channel)s about a mile wide. The mate, Who had no knowledge of the channel,suggested that they were too near Sand island on the west, and the master authorized him to hold off until the lights at Ft. Morgan were nearly op, . This was done, but shortly after resuming her course the tug grotiDded. The master at first thought that they had struck on the west side,i .but on going to the wheelhouse he discovered, by the compass and the.. Ughts, that they were, on the east side, whither the wind and tide botl1 t'ltrongly tended to carry them. !Held, that the ability to thus discover. hi$ position was. proof of negligence in not using the compass and lights before, and the tug was liable for the consequent loss of the tow.· .

,

Appeal from the District Court of the United States for the Southern District of Alabama. This libel Wtul filed byaittenhouse Moore against the steam tug E. E; Simpson (lsaacH. Rogers, claimant) to recover for the loss of the dredge boat Lutin, which resulted from the alleged negligent grounding of the tug in Mobile bay. There was a decree for the libellant in. the court below, and the claimant appeals. The following opinion was delivered below by TOULMIN, District Judge:
There is no con:fl.ict in the eVidence as to the material facts of this case; and the adniitted.law being that;the tug was bound to bring to the performance of the duty she assumed reasonable skill and care, an.d to exercise them in everythingrebiting to the work until it was accomplished, the question is whether the master of the tug was guilty of a want of reasonable care and skill in tbe. management of his tow in any respect, as charged by the llbelant. The ",ant of reasonaple care and skill is the want of ordinary care. and skill,-suCb as would be exercised by a person of ordinary prudence under like circumstances. The want of either is a gross fault, and the tug would be liable to the extent of the full measure of the consequence. The Margaret, 94 U. S. 496. If the. proof establishes that in what was done there was a lack of the usual care and skill, and that what was omitted to . be done was within the power of the tug to do, and should have been done by any master of competent skill and experience, and that different conduct would probably have prevented the disaster, then the tug would be liable. "An engagement to tow does not impose either an obligation to insure or the liability of commoJ;l carriers. The burden is always upon him who alleges the breach of sucj:l a contract to show, either that there has been no attempt at performance, or that there has been negligence or unskillfulness, to his injury, in the performance. Unlike the case of common carriers, damage sustained by the tow does not ordinarily raise a presumption that the tug has been in fault. The contract requires no than that he who undertakes to tow shall carry out his undertaldng with that degree' of caution and skill which prudent navigators usually employ in similar services. But there may be cases in which the result is a safe criterion by wbich to judge of the character of the act which has caused it." The Burlington, 137 U. S. 386, 11 Sup. Ct. 138; The Isaac H. Tillyer, 41 Fed. 477. The burden of proof is upon the libelant to establish" a case of negligence against the tug; but in some cases the facts may constitute a prima facie case of negligence which will impose on the tug the duty of explanation and exoneration. The L. P. Dayton, 120 U. S. 337-851, 7 Sup. Ct.

THEE. E. SIMPSON.

453

568; The Webb, 14 Wall. 414. It a tow is grounded, while in charge of a tug, without any fault of her own, and it was at a place which was known to be dangerous, the burden of proof is on the defense to show that it occurred without negligence or want of skill on the part of the respondent. The James H. Brewster, 34 Fed. 77; Bonker v. Smith, 40 Fed. 839. "The presumption of negligence originates from the nature of the act, not froID the nature of the relations between the parties. It is indulged as a legitimate inference whenever the occurrence is such as, in the ordinary course of things, does not take place when proper care is exercised, and is one for which the defendant is responsible." Transportation Co. v. Downer;ll Wall. 129. In this case the tow was grounded while in charge of the tug, and with· out any fault of the tow. It was at a plaee which was known to be dangerous to all navigators of Mobile bay who were familiar with the channel, and the east side of the channel was known to the master of the tug to be dangerous, although he may not have known of the danger of the particular place where the tow grounded. The government chart issued in the year 1877, and which was familiar to the master of the tug, showed from 3lA. to 4%, fathoms of water at this point; but the evidence in the. case was that in the last 15 or 18 months the particular shoal had formed there, and that there was now only from four to six feet of water, but that this' Was' well known to the pilots and other regular navigators of Mobile bay. The occurrence was such as, in the ordinary course of things, does not take place when proper care is exercised. There was a departm'e from the true course when the tug was held off south by east from Sand island, when the mate suggested that they were too close to that bE'ach. The master did not think so, but nevertheless made thE' departure. It will be borne in mind that the mate knew nothing of the channel, shoalS, courses, or currents. It is true'. the departure was not great, but I think it was enough to devolve upon the tug the duty of explanation. They say they kept this course but two or three minutes, running from 200 to 400 yards, and then held south again,' and in a very short time grounded on the east shoal. At the rate of speed they were going, it could not have been more than thirteen to fifteen minutes from the time they took the departure from Sand Island beach, on the west of the channel, to the time of the grounding on the east shoal, and the channel is shown to be three-quarters of a mile wide. Certainly, there is enough to impose upon the tug the necessity of explaining how she came to be so far oir her course in running so short a distance. In order to excuse her, I do not think it must be shown that the accident was inevitable. but it ought to appear that such a deviation from her correct course, and her grounding so soon thereafter, were consistent with cautious and skillful management. The explanation given is that the tide and the current carried the tug and tow to the shoal, and that the master miscalculated in' the allowance made for their effect. If the tug held south by east from Sand Island beach for only two or three minutes, running a distance of from two hundred to four hundred yards,-say four hundred yards,-and then turned back south, she was at that time about eight hundred yards from the east side of the channel. Is it likely that in going sonth a distance of about a mile she could have made such leeway as to have carried her eight hundred yards (half mile) to the east side of the channel? But the evidence tends to prove that the vessel could tell by her compass whether she had sheered or not, and could tell by the Ft. Morgan lights whether the current was carrying her towards the eastward. The master of the tug says as soon as he struck bottom he "got his eye on the- compass and light," and saw he was on the east side; that when the tug first took bottom he supposed he had held her up too much, but, when he "put his eye on the compass and light," then he saw how it was, and that he was not where he intended to be, although the chart might have misled the master of the tug, if he had been guided by it at that time. The fact that he did not intend to go where he found himself aground shows that he was not misled by the chart in this instance, and tends to show that he knew what was generally known by other navigators of Mobile bay. From his undertaking of this towage service, it is to be presumed that he

FEDERAL ,REPORTER,

vol. 60.

knew ,tM cbaijna a,nd elta l4Ifficulties Henry Chapel, '10 Fed. '11"ljr.,;pej:tiev. T()wbooLOo.,lC.O. A. 314, 49 Fe<k466. If, when the tug the master tell by looking at the compass and light wher,e,lIAhW8.ij; and thaLIl'tt was on tbe:li1llst side, why ,is.it he could not hllve made'. Ill1JIleuse,ott)le compass;and light before he struck bottom, andthulI,Rs¢ertalDed and whether the current was carrying hilDtowar4s: theeast?,:Time1Y Ul:!e.Qf ,tbe compass and lights would, in all proba.bWty,.,have pl'evented"the disnster,' and, it seems t4> me, would have bee.n an4ct, of .Qrdinary pl;Udence.The mate testifies that after they got the the master ordered himro hold south, he did not see him again or receive any instructions from bim until the tug struck, and that he (the Ft. Morgan l1ghts after he saw he was on the.ranges, S()Uth; that be did not notice to' see whether those Jl,ot. As Iloonas the tug; struck, the master put his eye on lights opened lIglJt, and atonool!law that he was out of his correct his course. I agl"ee,·with the mll.ster when he says tMt the only way to account for the dis8I1\ter·J.s. that be ,must have lost his bearings. He certainly had IQSt· his· bearings ,if, at the time he went ashore, he supposed he was on the w98t.. 1#4e .:of when. a look at his compass and the lights was On tlleea$t side. But when and how did he lose his showed 1JIIiID' bearings 7: )Vas;1t before the mate suggested to him that they were too close to Sand JE!l:and beacb? The master did not agree with the mate, but ;,ret direct¢tpaLQe keep off south by east until theFt. Morgan lights closed on. of opinion, did no doubt arise as to the true locality, and if so, ,VI':!!re there no llleans at hand to determine the matter? Would SQundings have done it? Would sounding not have been an act of ordinar;v.prudeJll:!!?,:Rseemsto IPethat it would have been. The result has shown that the 'Wllster was nearer right. than the mate,. and the circumstances tendto,show that When the tug held south by east, on the suggestion already too far .,east, or that 'she held to that course of the mate, a much longer: time than tile master and mate SUpp()sedshe did. How else could she have grounded II() soon after bearing south again? Or did the master lose, IlLs bearings after .steering south by failing to oqserve his compass and the' lights, by w4ich, it seems, he could have told whether he was heading S()\lth, was much' leeway, and whether he WllS on the east or weli!t sUle of the chll-llnel? He knew that it was important to keep well to the w:estwardon account ()f tho,wind and current that was prevailing. I thinJ,r .it Ii!. apparent that there' must have been some mismanagement, or want. ()f adequate Care and skill in the management, of the tug. It some unusAAlcause operated to produce the disaster, a cause against which ordinary prudence was. not bound to guard or could not prevent, the evidence, in lIlY' opinion, fails to show it. My conclusion- I" that the libelant 18 entitled to The will be sent to a commissioner t;() assess the damages.

'H.PillaJls, for appellant. GregoryL. SJXlith and H. L. Smith, for appellee. Before I '1<1,;.:' and McOORMICK, Circuit Judges. .' '" ;-", '; ,-.

MeCOl.l.MIC:rr; :Cll'ClJit 'Judge. We have carefully examined the eYUience iJ,l. case, with, the aid of the able brief and oral argu· JXlents submitted by the learned proctors, and the well-considered opinion of the case in the district court, and we conclude that the decree appealed from should be affirmed. There is sm'aJl room for. question as to the law applicable ,to such a, case as this. It is settled that a tug is not liable to its tow as an insurer or "8Sa comm.on carrier. The burden is on the libellant to sho,," .negligence or in the towage service. In some caSes the undisputed circumstances of the disaster may constitute a prima facie case of negligence, and put on ihe tug the

THE E. E. SIMPSON.

455

duty of explanation. The Burlington, 137 U. S. 386, 11 Sup. Ct. 138; The L. P. Dayton, 120 U. S. 337, 7 Sup. Ct. 568; (;rhe Webb, 14 Wall. 406. In this case the tow was being carried from Mobile to Pensacola in the night. The weather was not ugly. The wind was from a westerly direction. There was a strong ebb tide. The state ()f the tide and wind were such as produced, and were known to produce, a strong current towards the east. Due allowance had to be made for these conditions in running south, which is the chartered course in the channel to a certain point below Sand light. The channel abreast of Sand island, which bounds it on the west, is not more-perhaps is a little less-than a mile wide. It was incumbent on the master to watch well the action of the wind and current on the vessel, to hold her up against this action, to guard against drifting, to discover, and seasonably arrest and counteract, the tug's drifting or making too much leeway. The safe track lay close to Sand island; not too close, for there was a shoal on that side as well as on the opposite side. There had been range lights on Sand island, but they had been taken down, and only a single light left. The tug and her tow had passed Sand Island light. The range lights at Ft. Morgan were still visible. The wheelman was steering south,-the customary course. The master of the tug says : ''We passed close up to the Sand Island beach, on the west side of the channel,-so much so that the mate, who was at the wheel, said, 'Aren't you too close to this beach?'" to which the master replied, "No, I don't think so. We ought to be close. However, you can keep her off south by east until we get those ranges at Ft. Morgan nearly on." They kept her off south by east a very few minutes, till the range lights were nearly closed on, then reo sumed the customary course, and in a very few minutes more the tug struck bottom on the east side of the channel. The master was not in the wheelhouse at the time the tug struck on the shoal. The man at the wheel had not seen the captain after he saw the ranges were nearly on, and the tug was put on her south course again. When the vessel struck, the captain's first impression was that they were on the west side. He went into the wheelhouse, and, he says, got his eye on the compass and light, and saw that he was on the east. In speaking of the occurrence afterwards with the appellee, the captain being asked to explain how it happened, "he sorter shrugged his shoulders, and said: 'I must have lost my bearings is the only way I can account for it.''' The district judge asks, with unanswerable force: "If, when the tug struck bottom, the master could tell, by looking at the compass and light, where he was, and that he was on the east side, why is it he could not have made the same use of the compass and light before he struck bottom?" We concur with the district judge that a timely use of the compass and lights would have been an aet of ordinary care. The master's answer and direction to the mate at the wheel show that he was then in doubt as to his position in the channel. The mate was not acquainted with the harbor, the channel, the sb,oals, or

456

FEDEJtA..L REPORTER; \'01.

60.

thecufuoenta. He wQs experienced seaman, but had no particuhirkiiowledge of .these waterlil. It does not appear that any use of the compass in connection with the lights was made until afterth'tf vessel struck bottom. No soundings were made. It is apparent to tIs,as it was,tQ the district judge, that there must have beeR some. mismanagement 'or want of adequate care and skill in the lJavigating of the tug. When the tug struck, the tow drifted on the:shoal, could· not .begot off, became a complete wreck, and a total loss to appellee. The'decree appealed from is affirmed

FIREMEN'S OIURITABLEl ASS'N v. ROSS et al. (Oircult Oourt of Appeals, Fifth Circuit. December 12, 1893.) No. 146.
BALV4GIll"'-CITY FIRlll DE:fAnTMENT.

. company which furnished the men and equipment that constitute the; ,:llte depal'tment of New Orleans is required by ordinance and by contract to take all proper measures to extinguish fires and to preserve order, while a further ordinance provides that "in no event shall the fire department be permitted to charge for services rendered in extinguishing . fires,. on shipboard" or to claim salvage." After a ship had loaded at ;New Orleans, and had begun her voyage to Em'ope, fire was discovered in her cargo, and she put back to the city, where, at the request of her agents; the fire' department, by the use of its engines, the fil'e, ,HeM" that the &re department couId make no claim for salvage.

,ApPEiitI from the District Court of the United States for the Eastern .District of LouisiaIia. . a libel by Firemen's Charitable Association against Wm. . steamship European, for salvage. The Ross 81; Co., owners of lower court dismissed the libel, and libelant appeals.
,I,,",. " , '" :

The. steamship Eurowan/having tllken on board a cargo of cotton and grainlltthe docks of New Orleans, left that city on the 27th of May, 1891, 'for'a voyage to ports: of Europe. Within a few hours after leaving the dock;' and when about 90 miles down the river, afire was discovered in the cottQD, between decks, upon the discovery of which the master turned his the river tOWllrds the city, and at the first opportunity sent a boat,ashore to the telegraph office .and notified his agent that the ship wasonfi:.-e, and. would re1'l1rn to the city, requesting him to make such arrangements as he considered necessary. In accordance with this request the agent'of the vessel saw a representative of the underwriters, and these twogentlerrten telephoned the chief of the fire department, and requested that he have one or two engines at the wharf when the ship should arrive, in order to render assistance if needed. The chief of the fire departnientreplled that he· would have them there promptly. The ship arrived at the wharf at about half past 3 o'clock a. m., where the chief of the fire department had in readiness two steam' fire engines, and the companies, ready to go to 'work. The m.aster of the vessel, hoping to be able to extinguish the fire by the use of his own steam, continued using that som.e six hours after the arrival of the vessel at. the wharf in endeavoring to subdue the fire, but finally, finding it impossible, and being .informed that, the fire i!epartment would make no charge for salvage for .eervices rendered the 'vessel in extingujshing the fire, permitted them 'to'''go to work. Two more steam engines were subsequently employed, 'o:nd'they worked alternately two at II time for about ;twenty!J.ours. when the