The Mabey and Cooper,
81 U.S. 204 (1871)

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U.S. Supreme Court

The Mabey and Cooper, 81 U.S. 14 Wall. 204 204 (1871)

The Mabey and Cooper

81 U.S. (14 Wall.) 204


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

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