The libellant in an Admiralty suit, owner of a barge lost
through alleged negligence in the propeller towing it, obtained a
decree against the offending vessel in the circuit court on appeal
valuing it at $5,300 and adjudging that he recover of the claimants
(owners) and also against the sureties on the appeal bond,
$2,422.28 for his own damages by loss of the barge and freight, and
$2877.72 as trustee for the owners of the lost cargo. Claimants
appealed to this Court. After this appeal was taken claimants
commenced a new suit in admiralty in the district court, in which a
decree was obtained valuing the vessel at $7,000 and distributing
this amount to the libellant in this suit and to other sufferers.
In this new distribution, libellant was awarded $4,658, instead of
$5,300.
Held:
"(1) That this Court had jurisdiction of the appeal in this
suit."
"(2) That this jurisdiction was not affected by the proceedings
in the subsequent and independent suit."
When a tow suffers injury through improper and unseamanlike
conduct on the part of the tug hauling it, the latter is liable.
Facts stated which show such improper and unseamanlike conduct in
this case.
Motion to dismiss or affirm. The case, as stated by the
court, was as follows:
Page 137 U. S. 387
Darius C. Ford filed his libel in the District Court of the
United States for the Eastern District of Michigan as owner of the
barge
William Vanetta and trustee for the owners of her
cargo against the propeller
Burlington to recover damages
for the loss of the barge and cargo in Lake Erie while being towed
by the propeller because, as averred, of her careless and negligent
management.
Bradley and Burlington, as owners of the propeller, answered
denying carelessness and negligence and pleading also the
Limitation of Liability Act in connection with an appraisal and
stipulation in the case.
The district court found the
Burlington guilty of the
carelessness and negligence alleged and entered a final decree
confirming the report of the commissioner fixing the damages for
the loss of the cargo at the sum of $3,361.93, and for the loss of
the barge and freight at the sum of $2,829.83, in all, $6,191.76,
and it further appearing to the court that the propeller had been
duly appraised at the sum of $5,300 and that a stipulation with
sureties had been filed in that amount to secure the judgment of
the court, it was ordered that the said sum of $5,300 be
apportioned and distributed as follows: $2,422.28 to libellant for
his damages by reason of the loss of the barge and freight and
$2,877.72 to libellant as trustee for the owners of the cargo, and
these sums were awarded to him for the damages therein, and it was
decreed that he recover the same of the claimant of the propeller
and the sureties in the stipulation with costs, and that libellant
have execution therefor.
The owners of the propeller appealed to the circuit court, and
the appeal having been heard, that court made the following
findings of fact and conclusion of law, to wit
"This Court finds from the evidence that there was an agreement
on the part of the
Burlington to tow the
Vanetta
from Detroit to Cleveland via the South passage, through Lake
Erie."
"That in violation of such agreement the master of the
Burlington, after entering Lake Erie and running for some
hours on the proper course for the South passage, changed
Page 137 U. S. 388
the course of the
Burlington and took the
Vanetta via north shore of Lake Erie."
"That the south passage was the usual, safest, and proper course
from the Detroit River through Lake Erie to Cleveland at that
season of the year, especially with the wind from the southward and
westward, as it prevailed when the
Burlington started on
the trip with the
Vanetta in tow."
"That with the wind as it was, the north shore was a lee shore
to the
Burlington and her tow, and in taking the North
passage, the master of the
Burlington not only violated
his agreement with the
Vanetta, but by this direction
actually exposed the latter to greater risk and danger."
"That the master of the
Burlington having sought and
gained shelter from the southwest wind on the east side of Pt.
Pelee Island, which offered him a safe and sufficient protection,
about 3 o'clock in the morning of April 1st, 1886, left that
shelter and pulled the
Vanetta and her other barge back to
the north'ard and westward into the open lake, where the
Burlington and her tow were subjected to the full force of
the wind on a lee shore and where the
Burlington was
unable to control and manage said barge, thereby bringing about a
collision between them which resulted in serious injury to the
Vanetta and led to her total loss."
"That it was an improper and unseamanlike move on the part of
the propeller
Burlington to leave the shelter of the east
side of Pt. Pelee Island and go back into Pigeon Bay on a lee
shore, where the
Vanetta was exposed to greater danger,
which resulted in her loss."
"That the propeller was in fault for not attempting to tow the
Vanetta to a place of greater safety after the latter was
injured in Pigeon Bay and had signaled the former for help."
"It follows therefore as a matter of law that said propeller
Burlington is liable to the libellant and appellee for the
value of said barge
William Vanetta, and her cargo, as
adjudged by the district court, whose judgment and decree in this
case is in all things affirmed, with costs and interest on the
amount awarded libellant in the court below. Judgment will
accordingly be rendered herein against the appellant, and the
stipulators
Page 137 U. S. 389
on the appeal bond for the amount of the decree below with
interest and costs, for which execution is awarded."
And decree was thereupon entered as follows
"This cause having been fully argued by counsel on either side,
and the record of the court below being seen and fully considered,
it is now by this court considered, adjudged, and decreed that the
judgment and decree of the district court aforesaid be, and the
same is now, in all things affirmed."
"And it is further considered, adjudged, and decreed by this
court that the said libellant do recover of and from the said
Russell M. Bradley and Riley M. Burrington, claimants and
appellants, and also against Perry R. Hall, Russell M. Bradley,
Charles H. Bradley and Jay Conderman, as sureties on appeal for
said appellants, the sum of five thousand, five hundred and
sixty-seven dollars and sixty-five cents damages, being the sum for
which judgment or decree in the court below was allowed ($5,300),
with interest to this day ($267.65), together with said libellant's
cost of suit both in the district court and in this court, to be
taxed by the clerk of this court. It is further ordered,
considered, adjudged and decreed that the above sum of five
thousand, five hundred and sixty-seven dollars and sixty-five
cents, be apportioned and distributed between libellant as owner of
scow
William Vanetta and freight, and as trustee for the
owners of the cargo of said scow in manner following: the sum of
two thousand five hundred and forty-four dollars and sixty-one
cents ($2,544.61) to libellant for his damages by reason of the
loss of said scow
William Vanetta and freight, and the sum
of three thousand and twenty-three dollars and four cents
($3,023.04) to libellant as trustee for the owners of the cargo of
said scow, and that he have execution against the said claimants
and appellants and said sureties on appeal therefor."
From this decree an appeal was taken to this Court. It was shown
by affidavit that after this appeal was taken, the owners of the
propeller filed their petition in the district court alleging,
among other things, the assertion of claims against them as owners
of the propeller by reason of the loss of the barges
Vanetta and
Star of Hope while in tow of the
propeller;
Page 137 U. S. 390
the seizure of the propeller at the suit of the appellee, her
appraisal at the sum of $5,300, and the filing of the stipulation
in that sum, and praying that they might contest their liability
and the liability of the propeller for the loss of the barges; that
such proceedings were had thereunder as resulted in finding the
value of the propeller on the day of the loss at $7,000; that there
was due appellee by reason of the loss of the
Vanetta the
sum of $5,330.74 and interest, and to the owners of the
Star of
Hope by reason of her loss the sum of $4,000 and interest, and
a final decree was entered limiting the liability of appellants to
the sum of $7,000 with interest, which decree was on appeal to the
circuit court in all things affirmed; that at the date of the entry
of the decree from which the appeal in this case was taken, there
was due appellee the sum of $6,542.06, and to the owners of the
Star of Hope the sum of $4,488, principal and interest;
that at that date, the declared value of the propeller, with
interest from the day of the loss, was $7,854, and that the
proportion due to appellee was the sum of $4,658. This appears in
substance, with a slight difference in the amounts by reason of the
calculation of interest, from the report of the commissioner in the
limited liability proceedings, a copy of which was attached to the
affidavit.
MR. CHIEF JUSTICE FULLER, after stating the facts as above,
delivered the opinion of the Court.
This case comes before us on a motion to dismiss, united with a
motion to affirm. Appellee contends that as he recovered for
himself, as owner, only the sum of $2,544.61, and for the owners of
the cargo only the sum of $3,023.04, the matter stands as though
two separate suits had been brought, and that the amount in
controversy in either does not reach the jurisdictional sum, and
Ex Parte Baltimore & Ohio Railroad Co., 106 U. S.
5, and
The Nevada, 106 U.
S. 154, are cited.
Page 137 U. S. 391
But in both of those cases, the owners of the vessel and the
owners of the cargo were parties to the proceedings, and recovered
the amounts due them respectively. Here, Ford is to be treated in
all respects as the sole libellant, and the decree is for the
recovery of the total sum of $5,567.65, and although this amount
was subsequently apportioned so as to show the allowance for the
loss of the barge, and that for the loss of the cargo, separately,
the decree of recovery of the aggregate remained the same, and the
execution ordered against the claimants and their sureties on
appeal would issue for the single amount.
Nor does the fact that, upon the subsequent proceedings for
limitation of liability it appeared that Ford could not collect
more than $4,658, his
pro rata share of the limit decreed,
affect the question. That limitation was arrived at in the other
suit, and cannot be laid hold of as controlling this. We think,
however, under the circumstances, that there was color for the
motion to dismiss, though we overrule it, and that we may therefore
consider the motion to affirm.
Under the Act of February 16, 1875, 18 Stat. 315, c. 77, our
review of the decree of the circuit courts upon their findings of
fact and conclusions of law in admiralty cases is
"limited to a determination of the questions of law arising upon
the record, and to such rulings of the circuit court, excepted to
at the time, as may be presented by a bill of exceptions, prepared
as in actions at law."
There is no bill of exceptions here, and the inquiry is reduced
simply to whether the findings of the circuit court justify the
decree appealed from. The general rule is laid down by Mr. Justice
Strong, delivering the opinion of the Court in
The
Webb, 14 Wall. 406,
81 U. S.
414,
"that an engagement to tow does not impose either an obligation
to insure or the liability of common carriers. The burden is always
upon him who alleges the breach of such a contract to show either
that there has been no attempt at performance or that there has
been negligence or unskillful ness 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.
Page 137 U. S. 392
The contract requires no more than that he who undertakes to tow
shall carry out his undertaking 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
which to judge of the character of the act which has caused
it."
The circuit court found that the loss of the
Vanetta
was the result of improper and unseamanlike conduct on the part of
the propeller
Burlington. And the findings state various
facts showing that the propeller was in fault, and that but for
such fault, the loss would not have happened. Findings that the
master of the
Burlington took the
Vanetta via the
north shore of Lake Erie when the south passage was the usual,
safest, and proper course at that season of the year, especially
with the wind as it then prevailed, and that in doing so he
violated his agreement with the
Vanetta, and exposed the
latter to greater risk and danger; that the master, having gained
shelter which offered a safe and sufficient protection, left it and
pulled the
Vanetta and the other barge into the open lake,
where the propeller and her tow were subjected to the full force of
the wind on the lee side, and the propeller was unable to control
and manage the barges, which resulted in serious injury to the
Vanetta, and led to her total loss; that this was an
improper and unseamanlike move, and resulted in the
Vanetta's loss, and that the propeller was in fault for
not attempting to tow the
Vanetta to a place of greater
safety after the latter was injured in Pigeon Bay and had signaled
the former for help, are findings from which the conclusion of law
followed, for these findings established that in what was done
there was an actionable lack of the usual caution and skill, and
that what was omitted to be done was within the power of the
propeller to do and should have been done by any master of
competent skill and experience, and that different conduct would in
all probability have prevented the catastrophe. As we cannot go
behind the findings and they are sufficient to sustain the decree,
further argument is not required.
The Maggie J. Smith,
123 U. S. 349;
The Gazelle, 128 U. S. 474.
Decree affirmed.