1. Although the general rule is that a party who does not appeal
cannot be heard in opposition to the decree, still where it
appeared -- the suit below being a libel for collision against a
tug and her tow -- that an appeal from the district court to the
circuit court had been taken from the entire decree, by the owners
of the tow who had ordered the tug, and who bad undertaken her
defense as well as their own, and thus represented the entire
interest of the losing party in the suit, an appeal by the tug from
the circuit court to this Court was entertained here, though the
Court observes that doubt might perhaps exist as to the regularity
of the proceeding.
Page 81 U. S. 205
2. Where a ship ordered a tug to tow her out of the East River
to sea in an unfavorable state of the wind and tide, and when the
navigation was made in that state dangerous by ice, and the master
of the tug remonstrated against setting off in the then condition
of the wind and tide, and finally went only on the ship's owners
insisting on her towing, and on their agreeing to take the risk of
all accident, both ship and tug were held liable for a collision,
there being in addition some evidence of faulty navigation.
3. An amended answer setting up an improbable defense, and one
quite departing from that set up in the answer, treated
unfavorably.
The ship
Helen Cooper, lying at her dock in the East
River at Brooklyn, near the gas works there, on Saturday the 17th
of February, 1866, with her stern towards the river but ready for
sea, applied to the captain of the steam tug
Mabey to tow
her out. Immediately opposite, at Pier 45, on the New York City
side, was lying at the same time and well in her dock another ship,
the
Isaac Chapman. The wind on that day was somewhat high,
the East River on the Long Island side of it was filled more or
less with ice, and the day generally was not favorable for a
sailing vessel's getting out of that part of the East River for
sea. The
Isaac Chapman, at least, like the
Helen
Cooper, was on that day and at that hour ready for sea, but
was afraid to go out, and remained waiting till the river by slack
water should be made less dangerous from ice. Other sailing
vessels, however,
in other parts of the East River and at a
different hour, sailed on the 17th, and many from the North
River. The captain of the
Mabey, when desired to tow out
the
Helen Cooper, remarked upon the state of the tide and
unpropitious character of the day generally, and advised her owners
to wait till the tide changed and the river got more free of ice.
The owners seeing no danger, and wanting the
Mabey to get
off, resolved to go, and ordered the tug to proceed. "We will
take," said their agent, "the risk of all accidents." Accordingly
the
Mabey attached her hawser and pulled the
Helen
Cooper out, stern foremost, into the middle of the stream,
cutting the hawser there and attaching it in a new way.
Page 81 U. S. 206
From this point and before the operation of getting her under
the intended way was completed, she shot straight into the Isaac
Chapman, near the main rigging, cutting her down to the water's
edge, carrying away her backstays and mizzenstay, mashing her
boats, starting her deck, and disabling her generally.
The owners of the Chapman hereupon libeled both the tug and
ship. The tug answered on the 7th of May, 1867, setting forth that
her master informed the owners that it was not safe to proceed to
sea in the then condition of the weather and tide. That the agent
of the owners insisted that the vessel should go to sea; that he
yielded to the orders of the agent of the ship, he agreeing that
the owners would assume all risk; that the collision was occasioned
by disobedience of the orders of the pilot and bad navigation of
the ship; that the order of the pilot was not to cast off the
hawser by which the ship was moored but only to slacken it until
the head of the ship was swung round; that the order was disobeyed,
and that the hawser was cast off before the ship came round, which
sent the ship over to the New York shore, and that the ship, when
she had reached the middle of the stream,
and was headed
downstream, put her helm hard a-port, so that she took a sheer
to starboard, which caused her to run into the Chapman.
As the master of the tug had acted in the whole matter against
his own judgment, and had set out at all only upon the request of
the owners of the ship Helen Cooper, and on their agreeing to take
upon themselves all risks, they now largely took upon themselves
the management of the defense. They had already, May 2, 1867, put
in an answer. By the answer they set up
"That they had a Sandy Hook pilot on board; that by his
direction the tug took the ship in tow by hawser; that at this time
the ship was lying at the wharf with her bows up and her stern out;
that the hawser was made fast to her bows on the port side of the
ship, and passed along aft, and there made fast by stops, and that
the ship was towed stern foremost into the stream; that, as she
passed out into the stream, the stop at the
Page 81 U. S. 207
stern was cut, so as to allow her bow to turn around and head
down the river; that while in the act of turning, both the ship and
tug were unexpectedly caught in an immense field of floating ice,
which, in spite of the tug, set both the ship and tug towards the
New York shore; that, finding that the field of ice was too
powerful for the tug to control, both anchors of the ship were let
go, with a large amount of chain, notwithstanding which, the ice
carried the ship and tug across and down the river, so that the
head of the ship having finally got pointed down the river, was
carried by the ice so that her bows were carried inside pier 45,
and into the side of the
Chapman, thus causing any damage
that was done. That the field of ice in which the ship became
entangled was too powerful to be controlled, and that all which she
could do was to drop her anchors with a view to stop her headway,
which, however, being done, failed to bring her up; that the
collision was thus the result of inevitable accident, or if not of
inevitable accident then certainly that it arose from no fault of
the ship or her officers or crew."
An
amended answer was as follows:
"That at the time there was considerable floating ice on the
Brooklyn side of the East River, but that the river was clear for a
considerable distance out on the New York side; that owing to the
floating ice, the ship was turned with more difficulty than it
would otherwise have been; that the tug had got the ship's head
turned down the river, angling towards the New York shore, and with
most of the ship in clear water, free from ice; that, while the tug
was thus successfully towing the said ship, and angling well off
her port bow so as to keep her head turning down the stream until
she should head directly down,
a ferry boat suddenly and
improperly crossed the bows of the tug, and in order to
prevent the striking the said ferry boat, the headway of the tug
was suddenly slowed, but that with the impetus which the ship had,
she shot ahead towards the piers on the New York side; that the
instant the pilot discovered that the tug had slowed, he waved her
on, but that she could not go on without running into the ferry
boat; that instantly upon the slowing of the tug, it was seen that
the tug had lost, by slowing, the control of the ship; that both
anchors were at once let go, they being all ready for that purpose,
but that
Page 81 U. S. 208
owing to the character of the ground, the ship overran her
anchors and dragged them both, and came upon the
Chapman;
that the wheel of the ship was hard a-starboard from the time she
left the pier at Brooklyn to the time of coming into contact with
the injured vessel
Chapman."
Though both the master of the
Helen Cooper and the
pilot swore positively to this ferry boat's shooting out of her
dock in the way described, and that this -- by compelling the tug
to slow and so to slack her hawser, and let the ship drift without
motive power on a wrong course -- was the cause of the whole
difficulty, yet some other testimony went to show that the
collision was caused primarily by setting out in an unfavorable
state of the tide, and when the ice rendered navigation difficult,
in proceeding with too much rapidity, and in towing with too long a
hawser, and from the causes set forth in the answers of the owners
of the tug.
The district court condemned both tug and ship, and the owners
of the ship, who had undertaken and managed the whole defense,
appealed to the circuit court, where the decree was affirmed. From
the decree of affirmance the owners of both the tug and of the ship
appealed to this Court.
Page 81 U. S. 211
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Controversies growing out of collisions between ships arise
where the colliding vessel was in charge of a tug in which both the
tug and the tow are liable for the consequences, as when the
officers and crews of both vessels jointly participated in their
control and management and where those in charge of both vessels
are deficient in skill,
Page 81 U. S. 212
omit to take due care or are guilty of negligence in their
navigation. Cases also arise where the tow alone is responsible, as
where the tug is employed as the mere motive power to propel the
tow from one point to another, and both vessels are under the
exclusive control and management of the officers and crew of the
tow. Other cases also arise where the tug is solely responsible, as
where the tug, under the charge of her own master and crew,
undertakes to transport another vessel from one point to another,
which, for the time being, has neither her master nor crew on
board, as in that case her officers and crew direct and control the
navigation of both vessels. [
Footnote 1]
Compensation is claimed in this case by the owners of the ship
Isaac Chapman for injuries which the ship received in a
collision between the ship of the libellants and the ship
Helen
Cooper and the steam tug
R. L. Mabey, which had the
latter ship in tow. As alleged in the libel, the collision occurred
on the seventeenth of February, 1866, in the harbor of New York,
while the ship of the libellants was moored on the upper side of
pier forty-five in East River, and the proofs show that she lay
with her head towards the shore, her stern being twenty feet inside
of the outer end of the pier. She had a cargo of merchandise on
board and was ready for sea, but those in charge of her did not
deem it prudent to leave the wharf at that time as the tide was ebb
with a strong current and there were large masses of floating ice
in the stream.
Different views, however, were entertained by those in charge of
the ship
Helen Cooper, which was also loaded and ready to
sail for a Southern port. By the answer as originally filed, it
appears that she was lying at the wharf of the gas works, on the
Brooklyn side of the river, with her head towards the shore and her
stern towards the stream; that while in that situation, those in
charge of the steam tug
R. L. Mabey made fast to her bows
on the port side by a hawser
Page 81 U. S. 213
which was passed aft and there fastened by stops, and by that
means she was towed into the stream stern foremost, the tide having
just commenced to ebb, and the statement of the answer is that as
the ship passed out into the stream the stop at the stern was cut
so as to allow the ship to turn and head down the river, and that
both the ship and the steam tug, while the ship was in the act of
turning, were unexpectedly caught in an immense field of floating
ice, which, in spite of the power of the steam tug, set both
vessels towards the opposite shore and carried them down and across
the river so that the bows of the ship passed inside of pier
forty-five and struck the side of the ship of the libellants and
caused whatever damage the libellants' ship received by the
collision. Proof of the collision therefore is unnecessary, as the
allegation is admitted, but the respondents allege that the ship is
not liable, as the collision was the result of inevitable
accident.
Prompt appearance was also entered by the claimant of the steam
tug, and he filed a separate answer in which he alleges that the
master of the steam tug when applied to on that day to tow the ship
of the respondents to sea informed the owners that it was not safe
to proceed to sea in the then condition of the weather and tide.
Had he himself been governed by that opinion, the case of the steam
tug would be quite different, but the proofs show that he yielded
to the importunity of the owners or agent of the ship and took her
in tow, the owners of the ship agreeing to assume the risk of all
accidents and dangers. Apart from that, he also charges that the
collision was occasioned by disobedience of the orders of the pilot
and faulty navigation of the ship; that the order of the pilot was
not to cast off the hawser by which the ship was moored, but only
to slacken it until the head of the ship was swung round; that the
order was disobeyed, and that the hawser was cast off before the
ship came round, which had the effect to set the ship over to the
opposite shore towards the ship of the libellants; and he also
charges that those in command of the respondents' ship, when she
had reached the middle of the stream "and
Page 81 U. S. 214
was headed down stream," put her helm hard a-port so that the
ship took a sudden sheer to starboard, which caused her to run into
the ship of the libellants.
Leave was granted to the owners of the respondent ship to file
an amended answer in which they still insist that the collision was
the result of inevitable accident, but of a widely different
character from that described in the original answer filed more
than five months earlier. They now allege that the river was clear
of ice for a considerable distance on the opposite side of the
river; that owing to the ice on the side where the ship lay, it was
more difficult than it otherwise would have been to turn the ship
so that she would head down the river, and that while the steam tug
was endeavoring to accomplish that object, a ferry boat suddenly
and improperly crossed the bows of the steam tug, and in order to
prevent striking the ferry boat, it became necessary that the steam
tug should be suddenly slowed, which had the effect to turn the
ship towards the opposite shore and caused the collision in the
manner more fully described in the amended answer.
Both parties took testimony and were fully heard in the district
court, and the district court, being of the opinion that both the
tug and the tow were in fault, entered a decree for the libellants
against both the respondent vessels, and the owners of the ship
appealed from the whole decree to the circuit court, where the
parties were again heard upon the same pleadings and proofs, and
the circuit court affirmed the decree of the district court,
holding that both the respondent vessels were in fault. Whereupon
the owners of the respective vessels took separate appeals to this
Court.
Objection is made that the owners of the steam tug could not
properly appeal to this Court, as they did not formally appeal from
the district court to the circuit court, but it is not necessary to
decide that question, as it is quite clear that the decree must be
affirmed against the tug as well as the tow. Nor is the Court
prepared to admit the validity of the objection, as the record
shows that the owners of the tow
Page 81 U. S. 215
signed a written stipulation before the decretal order was
entered in the district court that they, as the owners of the ship,
would assume the entire conduct of the defense and that they would
answer and pay whatever sum the libellants should recover in the
case against both vessels. Undoubtedly the general rule is that a
party who does not appeal cannot be heard in opposition to the
decree. Still it appears in this case that an appeal from the
district court to the circuit court was taken from the entire
decree, and by a party who represented the entire interest of the
losing party in the suit. Well founded doubt may, perhaps, arise as
to the regularity of the proceeding, but it is not necessary to
solve that doubt in the present case.
Suppose the appeal is correctly here, we are all of the opinion
that the decree of the court below was correct.
Where the collision occurs exclusively from natural causes, and
without any negligence or fault on the part of either party, the
rule is that the loss must rest where it fell, as no one is
responsible for an accident which was produced by causes over which
human agency could exercise no control. Such a doctrine, however,
can have no application to a case where negligence or fault is
shown to have been committed on either side. Inevitable accident,
as applied to a case of this description, must be understood to
mean a collision which occurs when both parties have endeavored, by
every means in their power, with due care and caution, and a proper
display of nautical skill, to prevent the occurrence of the
accident, and where the proofs show that it occurred in spite of
everything that nautical skill, care, and precaution could do to
keep the vessels from coming together. [
Footnote 2]
Want of due care is shown in the fact that the ship went to sea
at a moment when the master of the tug which had her in tow knew
that it was not safe in view of the condition of the weather and
tide; nor can the tug be held blameless any more than the ship,
because as the master ultimately
Page 81 U. S. 216
yielded to the importunities of the owners of the ship and
assumed the risk, subject to his claim on the owner of the ship for
indemnity. Faulty navigation is also shown, which of itself is a
sufficient answer to the defense of inevitable accident.
Palpable error is shown to have been set up in the original
answer filed by the owners of the ship, and the Court is not
satisfied that the defense set up in the amended answer is entitled
to any more credit. Such a defense as that set up, that a ferry
boat suddenly and improperly crossed the bows of the steam tug, if
founded in fact, could easily be proved by those who were on board
the ferry boat and know what occurred. Instead of that, not even
the name of the ferry boat is given, either in the answer or in the
proofs, and not a witness is called except the pilot and the master
of the ship, and their statements in that behalf are not
satisfactory. No such defense is set up in behalf of the steam tug,
and nothing of the kind was alleged in the original answer filed by
the owners of the ship shortly after the suit was commenced.
Neither of the courts below appear to have given that defense much
credence, and this Court concurs with the subordinate courts that
the defense is not established.
Decrees affirmed.
[
Footnote 1]
Sturgis v.
Boyer, 24 How. 122.
[
Footnote 2]
The
Pennsylvania, 24 How. 313;
The
Morning Light, 2 Wall. 556.
