1. Where the district and the circuit court concur in their view
of facts in a collision case in admiralty, the case will come
before this Court with every presumption in favor of the
correctness of the decision appealed from.
2. The fact that in a libel for collision a contract of towage
is recited in the libel does not necessarily convert the libel into
a proceeding on the contract. Where the real grievance alleged is a
wrong suffered by the libellant in the destruction of his boat by
the carelessness and mismanagement of the boat libeled, the
reference to the contract is to be regarded as made by way of
inducement to the real grievance.
3. An objection of a too general allegation of injury should be
made in the court below. It cannot be made here for the first time
and after the case has been heard below.
4. In admiralty, an omission to state some facts which prove to
be material but which cannot have occasioned any surprise to the
opposite party will not be allowed to work injury to the libellant
on appeal if the court can see that there was no design on his part
in omitting to state them.
5. It is the duty of a vessel which undertakes to tow other
boats to see that the tow is properly made up and that the lines
are strong and securely fastened.
6. A party who does not appeal can be heard only in support of
the decree.
One Byrne, the captain and owner on the canal boat
Citizen, laden with wheat, contracted with the captain of
the
Page 76 U. S. 666
tug
Quickstep to tow the canal boat from New York to
New Brunswick. Byrne did not know how many boats the captain
image:a
of the tug would take. The tow, however, when completed,
consisted of six boats -- two abreast, on each side of the tug and
one directly in the rear of each of the two boats, as shown in the
upper part of the drawing. The
Citizen was on the port
side and nearest the tug, and the
Wide World was in the
same position on the starboard side. The stern of the boats,
abreast of the tug, were about even with the stern of the tug, but
their bows extended further than the bow of the tug, and the bows
of the
Citizen and
Wide World were coupled by
what is called a "bridle line," the line having been furnished by
the towing tug.
This fleet proceeded on their voyage with safety until they
approached a point in the harbor of New York known as Robbins; Reef
lighthouse, when the boat in the rear of the boats on the port
Page 76 U. S. 667
side of the tug became detached. The weather, which was fair
when the boat set off from New York, was now somewhat rough, with a
certain amount of wind. The tug stopped as soon as the boat broke
loose, and then proceeded to back. In backing, the bridle line
parted and the tug got into the trough of the sea and collided with
the
Citizen, knocking two holes in her starboard side near
the stern and producing so considerable an injury that she
ultimately sank, her crew, however, not perhaps having exerted
themselves as perseveringly as they might have done to save her.
The matter is exhibited in the lower part of the diagram.
In the course of the difficulty, two other of the boats got
loose. One of them cast anchor and was saved at the spot. The
other, loaded with iron, drifted about all night and was picked up
uninjured on the next morning.
The owner of the
Citizen libeled the
Quickstep
in the District Court of New York.
The libel alleged "a contract" with the steam tug to tow the
canal boat to New Brunswick for a stipulated price, deviation to
another dock before setting off, unreasonable delay in the
performance of the contract. It alleged further that the canal boat
was staunch &c., and under the complete control of the steam
tug; that when near the lighthouse on Robbins' Reef, the boat which
had been hitched to
"the boat of the libellant by some means became detached, that
thereupon the steam tug attempted to pick her up, and to that end
commenced to back in so negligent and careless a manner as to
endanger the safety of the boat of your libellant; that the
libellant protested and warned the master or those in charge of
said steam tug that by so doing they would sink his boat, but the
said parties paid no heed to his protest or warning, but continued
to back said steam tug, and handled and managed the same in such a
careless and unseamanlike manner that the same said steam tug
struck against the canal boat with great force and violence,
breaking in her starboard side and causing her to fill with water
and sink; that the libellant did all in his power to prevent the
said loss; that the same was without fault on his part, and
occurred entirely
Page 76 U. S. 668
through the carelessness and mismanagement of the master and
mariners on board of the steam tug."
In conclusion, the libel prayed damages.
The answer substantially denied these allegations and set up the
plea of inevitable accident. The evidence upon the trial was quite
conflicting, but the case, as above given, was the case which this
Court considered as established by it.
The district court, giving no opinion and finding no facts
whatever, held that the libellant and claimant were both in fault,
and divided the damages. On appeal, the circuit court gave an
opinion of a few words, in which, however, no facts were found --
and affirmed the decree. The owners of the steam tug appealed.
Page 76 U. S. 669
MR. JUSTICE DAVIS delivered the opinion of the Court.
The difficulty of discovering the truth in collision cases,
which are mainly trials of fact, grows out of the character of the
evidence, which is always more or less conflicting. The court that
can see the witnesses, hear their statements, observe their
demeanor, and compare their degree of intelligence is better able
than an appellate tribunal to reconcile differences in testimony
or, if that be not possible, to ascertain the real nature of the
transaction. The district court that tries the case in the first
instance enjoys this advantage, and the finding of facts by it, if
followed by the concurrent judgment of the circuit court, is
entitled to so much weight in this Court that it will be presumed a
correct conclusion was reached, and before the decision will be
disturbed it must manifestly appear that it was wrong. The
testimony in this case was heard by the district judge, who decided
that the damages should be divided, and the circuit court, on
appeal, affirmed his judgment, and the case therefore comes before
us with every presumption strongly in favor of the correctness of
the decision of the lower courts.
It is unnecessary to travel through the evidence, to a great
Page 76 U. S. 670
extent contradictory, in order to vindicate our views concerning
it. It would serve no useful purpose to do so, and we shall content
ourselves with applying the law to a state of facts which we
consider the evidence establishes, without any attempt to discuss
it. The libel was not filed to recover damages for the breach of a
contract, as is contended, but to obtain compensation for the
commission of a tort. It is true it asserts a contract of towage,
but this is done by way of inducement to the real grievance
complained of, which is the wrong suffered by the libellant in the
destruction of his boat by the carelessness and mismanagement of
the captain of the
Quickstep. It is objected that the
libel is too general in its terms, and is defective because it does
not state the particular acts of negligence and misconduct on the
part of the tug which produced the injury; but if this were
necessary, the objection should have been interposed at an earlier
stage of the proceedings, and cannot be taken for the first time
after the cause has reached this Court. It is always better to
describe the particular circumstances attending the transaction,
but in admiralty an omission to state some facts which prove to be
material, but which cannot have occasioned any surprise to the
opposite party, will not be allowed to work any injury to the
libellant if the court can see there was no design on his part in
omitting to state them. [
Footnote
1]
We now pass to the facts of the case.
The inquiry is who is to blame for what has happened? Clearly
not the
Citizen, for it does not appear that her conduct
in any way contributed to the accident. If the tug, in constructing
the tow, used the lines furnished by the different boats, yet as
each boat was independent of the other, no responsibility can
attach to either for the breaking of the line, which she did not
provide and had nothing to do with making fast. In this case,
neither the bridle line nor the line that first parted were
supplied by the
Citizen, and she ought not to suffer for
their insufficiency. It is well settled that canal boats and barges
in tow are considered as being
Page 76 U. S. 671
under the control of the tug, and the latter is liable for this
collision, unless she can show it was not occasioned by her fault.
[
Footnote 2]
It was the duty of the tug, as the captains of the canal boats
had no voice in making up the tow, to see that it was properly
constructed and that the lines were sufficient and securely
fastened. This was an equal duty whether she furnished the lines to
the boats or the boats to her. In the nature of the employment, her
officers could tell better than the men on the boats what sort of a
line was required to secure the boats together and to keep them in
their positions. It she failed in this duty, she was guilty of a
maritime fault. The parting of the line connecting the boat in the
rear on the port side with the fleet was the commencement of the
difficulty that led to this accident. In the effort to recover this
boat, the consequences followed which produced the collision. If it
was good seamanship on the part of the captain of the tug to back
in such an emergency, he was required, before undertaking it, at
least to know that his bridle line would hold. And if the sea was
in the condition the captain of the tug says it was, it was bad
management to back at all. Whether this be so or not, he was bound,
in executing a maneuver to recover the detached boat, to look to it
that no other boat in the fleet suffered in consequence of it.
But the claimants of the tug deny that their vessel was in
fault, and insist that the disaster occurred by the violence of the
storm and gale of wind which prevailed at the time. If this be so,
how did it happen that two of the canal boats that got loose from
the fleet survived the perils of that night? One of these boats
anchored and was saved without difficulty; the other, loaded with
iron, drifted about and was picked up the next morning without
having sustained any damage. The fact that these boats did not
experience any bad effects from the severity of this storm explodes
the theory advanced by the claimants on the subject.
Page 76 U. S. 672
In our opinion, the tug was clearly in fault, and the courts
below, in dividing the damages, doubtless came to the conclusion
that the men on board the
Citizen were also to blame for
deserting their boat sooner than good seamanship under the
circumstances required. As the libellant did not appeal, and can
therefore only be heard in support of the decree, we are not
required to consider whether the evidence convicts the canal boat
of fault. [
Footnote 3] The
appellants have no right to complain, for in any aspect of the case
they cannot escape without paying at least half the loss.
Judgment affirmed.
[
Footnote 1]
The Clement, 2 Curtis 363.
[
Footnote 2]
The Express, 1 Blatchford 365;
Steamboat
New York v. Rea, 18 How. 223.
[
Footnote 3]
The William
Bagaley, 5 Wall. 412.
