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coming up the river near Louisiana avenue at about one-third of the river out from the New Orleans shore, leaving two-thirds of the river between the tow and the Algiers side of the river, and that at that time they were headed straight up and down the river, going upstream parallel with the shore. I think that the evidence is absolutely conclusive as to the fact that the Echo and tow were on the New Orleans side of the river, their proper place in the river according to the customary course of its navigation. The burden is on the libelants to establish their case.
Donald v. Guy (D. C.) 127 Fed. 228, and authorities therein cited. It is incumbent on them to point out some negligence or infraction of duty on the part of the tug Echo that contributed to the collision. They have done so in their libel, but have failed to sustain its allegations by the evidence. The decided weight of the evidence shows the Echo to be free from fault. But I think fault has been shown on the part of the Alma. It was manifestly an error for the pilot of the Alma to have starboarded her wheel, rather than ported it, at the time he "pulled her hard to port and headed for the New Orleans shore." If he was on the right of the middle of the river, as testified by Brinker and other witnesses, or in the middle of the river, as testified by himself and Lilley, for him to have changed his course and headed for the New Orleans side when he did seems to me to have been an inexcusable error. No reasonable excuse is shown why this was done. Had he kept his course down the river, as, under the circumstances, it was his duty to have done, and as the pilot of the Echo was justified in assuming he would do, it is clear there would have been no collision. He had abundant room to avoid the Echo and tow, having about two-thirds of the river open to him, and easy command of the movements of his boat. “A steamer having easy and perfect command of her own movements is bound to keep out of the way of a cumbersome tow going slowly, where there is nothing in the way to prevent her doing so.” The Mayumba (D. C.) 21 Fed. 476.
There are indications, too, that the Alma was not keeping a proper lookout. She had no lookout other than the master. Although he was on the roof of his boat, sitting by the bell, he did not observe the lights on the Echo, or the whistles blown by her, or, indeed, know that she and her tow were approaching, until the searchlight was turned on them by the pilot of the Alma. “It is the duty of every steamer navigating the thoroughfares of commerce to have a trustworthy lookout, besides the helmsman.
When acting as an officer of the deck, and having charge of the navigation, the master of a steamer is not a proper lookout. Proper lookouts are persons other than officers of the deck or the helmsman.” The Pilot Boy, 115 Fed. 873, 53 C. C. A. 329; Wilder S. S. Co. v. Low, 112 Fed. 161, 50 C. C. A. 473; The Ottawa, 3 Wall. 269, 18 L. Ed. 165; The Ariadne, 13 Wall. 475, 20 L. Ed. 542.
Upon the whole case my conclusion is that the libelants are not entitled to recover. A decree will be entered accordingly.
THE W. G. MASON.
THE W. 1. BABCOCK.
(District Court, W. D. New York. May 28, 1904.)
1. TOWAGE-DUTY OF TUGS-STRANDING OF Tow.
Where a large steamer, whose master was unacquainted with the harbor at that point, having loaded at a dock in Buffalo, employed two tugs to take her out beyond the inner breakwater through a narrow and crooked channel, the duty rested on the master of the leading or pilot tug to direct the movements of the steamer required for her safe passage, and his failure to seasonably signal her to start her engines forward after swinging her bow around a bend in the channel, by reason of which the current carried her against the side of the channel, where she stranded, was a fault which renders the tug liable for the resulting damages, where the signals given were promptly obeyed by the steamer, which was not required, under the circumstances, to take the initiative, and would not
have been justified in so doing. 2. SAME-BURDEN OF PROOF.
Where two tugs undertook to take a steamer out from her dock through a well-known and commonly used channel, and she stranded against one side of the channel, although it was shown that she promptly obeyed all signals from the leading tug, the presumption is that such stranding was
due to a fault of one or both of the tugs. 3. SAME-JOINT SERVICE BY Two Tugs-LIABILITY OF ONE FOR FAULT OF
Two tugs belonging to the same owner engaged to tow a steamer, and which co-operated in the service and in directing the movements of the steamer, are both liable for her stranding through the negligence of either.
In Admiralty. Suit against tugs to recover damages for stranding of tow.
Goulder, Holding & Masten (G. B. Marty, of counsel), for libelant.
Hoyt, Dustin & Kelley (H. A. Kelley, G. W. Cottrell, and Harvey L. Brown, of counsel), for respondents.
HAZEL, District Judge. This is a proceeding in rem instituted by the libelant, owner of the steamer W. H. Gratwick, against the steam tugs Mason and Babcock, to recover damages for injuries sustained by the steamer on account of her stranding while in tow of the respondent tugs, and owing to their negligence. The stranding occurred in Buffalo Harbor, October 18, 1901, at 6:15 o'clock p. m., and at a point approximately 150 feet north of the northeast end of the inner breakwater on the northerly channel bank of the Erie Basin. The state breakwater extends north and south. The distance from the Philadelphia & Reading Wharf, the starting point of the tow, to the breakwater, directly across the harbor, is about 600 feet. The Gratwick is 345 feet in length over all, and 45 feet beam. She was laden with 3,874 tons of coal, and drew 16 feet 8 inches forward and 16 feet 9 inches aft. A vessel of the dimensions of the Gratwick, heavily laden, leaving the above-mentioned wharf for the lake, requires care and caution on the part of her towing tugs. Two steam tugs ordinarily perform the towing service. The course is through a narrow and tortuous, though much frequented, channel about 150 feet wide, which extends a short distance north from a point in the harbor near the wharf. There is shallow water on each side of the channel and near the end of the breakwater. The vessel's approach to the channel where the casualty occurred was sharply to starboard, and then, after being straightened, her course was almost at right angles to port. It was dark, though objects were discernible. Lights were plainly seen on the breakwater, and a range light on the shore. A moderate southwest wind was blowing, and weather clear. The steam tugs and the tow were each in charge of their own officers and crew. It is not questioned that each was properly manned and equipped. At the north end of the state breakwater, or near the place where the Gratwick stranded, a strong current flows in a northerly direction toward Niagara river. The current varies according to the state of the weather. The Gratwick was soon floated, but, after proceeding about 40 feet, she again grounded, and was not taken off until about 9 o'clock that evening. This, briefly, describes the situation where the injuries to the Gratwick, as charged in the libel, were received. The libel charges generally negligence and want of skill, together with ignorance of the channel and currents on the part of those in charge of the libeled tugs. The answer of the respondents describes the ordinary course which vessels take on leaving this wharf, and admits the strength and character of the current at the point where the accident occurred. It is alleged that when the tow of the Gratwick reached the current it became necessary that she should move ahead under a starboard helm; that the pilot tug should pull to port while the stern tug should guide or push the steamer's stern to starboard. It is then specifically charged as a fault that when the bow of the Gratwick, on the night in question, reached the current, which for a short distance was necessarily in her course, and the pilot tug signaled the steamer to come ahead with her own propeller, she failed to obey the directions given with promptitude, and therefore her stranding was inevitable. Neither the wind and weather nor the darkness rendered the towage service especially hazardous. The libelant contends that the principal fault attributable to the tugs was that the towing was carelessly and unskillfully performed, and, further, that the directions from the pilot tug to the propeller were inopportunely and unseasonably given. The established facts are these: The steamer, which was moored to the wharf, intended to proceed to the government breakwater for fuel, preparatory to leaving the port of Buffalo for the port of Milwaukee. Her master engaged the steam tugs Mason and Babcock to tow her. The first-named tug, more powerful than the latter, was the pilot tug. The Mason guided the steamer astern. When the steamer reached a point approximately 200 feet from the point of starting, it became necessary for her to make a turn into the channel toward the lake. Thereupon the Mason signaled the steamer to back so as to stop her headway. This direction was promptly executed, and in obedience to a second signal the Gratwick was quickly brought to a complete stop. Her bow was slowly pulled around to starboard, and she was straightened in the channel in a northwesterly direction, approximately 60 feet distant from the state breakwater on her port side. The vessel was then towed a short distance in the channel in the ordinary way toward the lake northeast of the state breakwater, when she received a signal to reverse her engine. The signal was obeyed. Instantly the Gratwick l'eceived another signal of one blast, and promptly stopped backing. In order to efficiently make the turn into the lake, the pilot tug pulled off sharply to port, the tug Babcock meanwhile lapping her port quarter, and pushing her stern to starboard. While the turn was being made, the Gratwick was directed by the pilot to come ahead strong. The master of the steamer, who stood upon the pilot house, near the bell pull connected with the engine room, promptly repeated the signals. The engineer, who was at his post, heard and obeyed them. Barker, engineer of the Gratwick, testified that the engine was in good working condition, and that he obeyed all signals with promptitude. It did not, he says, take to exceed 10 seconds to execute each direction; that when the steamer first brought up on the bank her propeller had been working ahead full speed for about a minute. She continued to work under a go-ahead signal for about five minutes before he received a direction to stop. This evidence of the engineer, expressly corroborated by others of the crew, satisfies me that in every instance, as heretofore observed, the signals of the pilot tug were obeyed with promptitude and alacrity. The Gratwick, however, directly after the signals last referred to, went aground on the starboard bank. The evidence as to whether such signals were answered promptly is in hopeless conflict. The witnesses for the respondents are positive in their declarations that the propeller did not respond until it was too late to avoid the disaster. Upon this controverted point the master of the Mason testifies that as soon as the steamer's bow was straightened in the channel, he signaled her to come ahead, and then, to accelerate her speed, he quickly sounded a "hurry-up” whistle of four rapid blasts. He asserts that as the pilot tug went to port he observed that the steamer did not increase her speed. In view of the darkness and the distance between the tug and the stern of the steamer, this observation can have little evidential weight. It is contended by the libelees that it was absolutely necessary that the steamer should have headway under her own power at this point to prevent drifting onto the starboard bank. Fontaine, master of the Babcock, testified that no answer was made by the steamer to the first signal to come ahead, nor to the hurry-up signal, which instantly followed. He is positive that her propeller wheel did not revolve; that he looked to see; that he intently fixed his eyes on the steamer's crew to see whether the signals were promptly heeded, and that he called the attention of his fireman to the steamer's delay and failure to obey them. I am not convinced of the correctness of this showing. To give it credence would be to assume that the witness anticipated the subsequent mishap. Accidents of this nature, fortunately, have not yet become so frequent in this port that masters and crews of tugs when they start with a tow have forebodings of their occurrence. Other testimony is found in the record tending to show that, if the steamer had used her propeller after she was straightened in the channel, or as her bow entered the current, her safety would not have been imperiled. After carefully considering the evidence, however, I have reached the conclusion that the evidence of the respondents in explanation of the stranding of the Gratwick is not entitled to probative weight, in view of the more reliable testimony of the master and crew of the Gratwick and the witness Boyer, a passenger. The Alexander Folsom, 52 Fed. 411, 3 C. C. A. 165; The Fannie, 11 Wall. 243, 20 L. Ed. 114. In my judgment, a preponderance of the evidence establishes fault imputable to the ahead tug on account of her failure to seasonably direct the movements of the steamer. Miscalculation as to the exact time for signaling, resulting in failure to safely make the turn into the lake, is a fault. The Brazos, Fed. Cas. No. 1,821. Had the signals been blown earlier, I am convinced that the grounding would not have happened. The master of the Gratwick, as heretofore stated, was observant, watchful, and attentive to his duties. He was not familiar with the channel and the force of the current near the turn into the lake. Therefore he was justified, I think, in relying upon the nautical skill and perspicacity of the pilot tug. Her master, prior to this, had frequently and successfully managed and directed the navigation of tows of similar tonnage and draft from the wharf and channel in question into the lake. He was not confronted by unusual conditions or obstructions. The force of the current and difficulties to be met were well known to him. Moreover, in blowing signals he was obliged to take into consideration the length and character of his tow, whether heavily laden, the effect of the current upon her, and also the interval of time which passes before her motive power would become effective. In explanation of the stranding Fontaine further testifies that the force of the current carried the steamer over on the starboard bank, and that the tugs were unable to guide her. This was probable. I incline, however, to the belief, in view of the manner in which the steamer was lapped by the tug astern on her port side, that she went aground, as heretofore stated, on account of the belated or tardy signals of the pilot tug.
13. See Towage, vol. 45, Cent. Dig. $ 12.
Stress is laid upon the point that the Gratwick must be condemned on account of her failure to use her steering power at a crucial time irrespective of any signaling. I am not satisfied by the evidence that the custom and practice of the port required the Gratwick to make headway without having been directed to do so by the pilot tug. As already appears, the master of the Gratwick was a stranger to the situation. To have used the steamer's propeller of his own volition at that point might have proved destructive to her safety. The proposition is sound, I think, that the head tug dominated and controlled the movements and navigation of the tow. The undertaking to tow was not only to safely transport the steamer to the government breakwater, her destination, or to a point where she would be enabled to use her own steering power, but it was also to direct her course and movements during the operation. It was for the master of the pilot tug to say whether the steamer should hasten or siаcken her speed by means of her own motive power, and at what intervals, and for what periods. In short, as indicated, he must manage and direct her course of navigation. Transportation Line v. Hope, 95 U. S. 297, 21 L. Ed. 477. To absolve the pilot tug in the absence of a prior arrangement establishing her liability, she must have exercised ordinary care and nautical skill,