1. Although an engagement by a steamer to tow a sailing vessel
does not impose more than an obligation to carry out the contract
with that degree of caution which prudent navigators usually employ
in similar services, yet there may be cases in which the result is
a safe criterion by which to judge of the act which has caused it.
And when a steamer undertaking to tow a ship and having a well
known and straight course to pursue suffered the ship, after towing
her for but an hour or an hour and a half, to run aground at the
end of a course of nine miles on a shoal between three and four
miles from the proper line of the voyage, the Court held the
steamer liable, especially as there was very considerable evidence
that her compasses were untrue. And this decision was not affected
by the fact that the voyage lay through waters where the currents
were variable in the direction of their flow (the direction and
force, however, being well known), and though for a part of the
nine miles there was a thick fog.
2. The Court refused to reverse a decree which on the merits
they approved because a deposition which ought not to have been
read was read before a commissioner to whom the case was referred
to compute damages, there being other evidence that the damages
were as great as this Court finally awarded.
3. Decree in admiralty in the district and circuit courts for a
greater amount than the sum for which sureties were bound, on
stipulations for a discharge of the vessel from the marshal's
custody, reformed by this Court so as not to exceed that sum.
In March, 1859, the steamer
Webb, a steamer of good
character belonging to the port of New York and engaged in towing
ships at sea, was in Boston, having just then, under charge of
coast pilot named Sherwood, towed a ship to that port. This pilot
Sherwood had had twelve years' experience as a coast pilot and was
recommended by insurance companies. The owners of the
Webb
had engaged him to take the steamer back to New York, and they had
agreed also with the owners of another ship, then lying at New
Bedford, to stop for her on the way and tow her to
Page 81 U. S. 407
New York, and that this towage should be under direction of the
same pilot.
In these circumstances, one Hazard, master of the ship
Shooting Star, lying at Portsmouth, New Hampshire, applied
to the owners of the
Webb to tow her to New York. The
owners agreed in writing accordingly "to tow the ship and
furnish coast pilot for $625." Having gone to Portsmouth
and taken her tow, the
Webb, under the pilotage of
Sherwood, set off with a good complement of men on her voyage for
New York. The course of the voyage lay south, past and round Cape
Cod, through the waters that lie between the island of Nantucket on
the south side and Barnstable County, Massachusetts, on the north,
into what is known as the Vineyard Sound, and so through Long
Island Sound to New York. The approaches to the Vineyard Sound
(which for the purpose of this case may be considered as beginning
with "Handkerchief Shoal" on the east of it, and as you leave the
main ocean to enter the passages made by islands and the mainland
of Massachusetts) abound with shoals and with currents, which last,
though close to each other, run in opposite directions. But the
currents follow each its own direction, and, like the shoals, are
marked with precision upon the charts.
About a hundred yards south of Handkerchief Light -- a light
upon the shoal -- the
Webb and her tow found themselves at
about 2 or 2 1/2 o'clock A.M. -- nearer the latter time, perhaps,
than the former -- on the morning of March 23d. This was the exact
position where they ought to have been in order to reach New York,
and their route to that port was by a single straight course west,
three-quarters south, to a light called Cross Rip Light, eleven
nautical miles (rather less than thirteen statute or land miles)
distant from the Handkerchief. This Cross Rip Light is on a boat
where there is a fog bell, audible in fogs, three miles off. The
rate of the vessels as they passed the Handkerchief was about
twelve knots an hour. The tide, at this time, had just turned ebb,
the effect of which was to make the current for about half-way from
Handkerchief to Cross Rip run north, and for the
Page 81 U. S. 408
rest of the distance to run southwest. There was a light wind
from the southeast; it was raining, but not so that they could not
see the coast lights which they had passed and even that on the
northeast point of Nantucket, more than five miles off. Soon after
passing the Handkerchief Light, the wind died out, the weather
became misty, and in half an hour and by the time that they got
half-way from the Handkerchief to Cross Rip, it was so thick that
they could not see even the lights of the ship astern, though up to
this point the fog had not been thus thick. Lookouts were properly
posted. When the fog rose, they were on the course mentioned,
going, as already stated, twelve knots. The pilot decided to keep
up this speed for thirty minutes, expecting at the end of that time
to be within hearing of the bell from Cross Rip. Captain Hazard
objected
to going on through this fog and desired to
anchor, but on the pilot's statement that a vessel which once
anchored where they were had been obliged to cut some spars to
avoid running aground, and on an assurance that there was no danger
in running to Cross Rip, he yielded and consented to keep on. The
pilot gave the course west half south, but the steamer was headed
by her compass west-southwest, in order to allow for a variation
from local attraction caused by iron on board the vessel, which
Captain Hazard supposed to be one and a half points south of their
true course when running west, diminishing to zero when running
south. They ran on this course at full speed for thirty-two
minutes, and then, not hearing the bell, shut off steam, reducing
their rate to between two and three knots, and having the lead cast
by another pilot named Wilson, the captain of a Boston packet, who
as a friend of Sherwood's had been allowed a free passage to New
York. After running slow for forty-five minutes, they found
themselves in shallow water, which Sherwood took for a shoal called
Horseshoe Shoal, that lies about a mile north of Cross Rip. To
avoid this, he turned his steamer towards the south, and
immediately the ship was aground. She had run on Tuckernuck Shoal,
a point about four miles southeasterly from both the Horseshoe and
Cross Rip, about nine miles
Page 81 U. S. 409
southwest by west half west from the Handkerchief Light, and
fully
three and a third miles to the south of the course in
which the vessels ought to have been. This was at half-past
three, or a very little later, in the morning. After some vain
endeavors to drag her off, the steamer left the ship and cast
anchor in the neighborhood.
After daylight, the steamer tried to approach the ship, to give
her the end of the towing hawser, the ship having drifted off the
shoal and then riding at anchor. The crew began to heave on the
anchor. As was alleged by the people on the steamer, they on the
ship hove short, and the vessel picked up her anchor and drifted
away. But the ship had, in fact, lost her anchor. She soon went
ashore again, her stern resting on the sand. The wind getting very
strong and the sea violent under a gale which had suddenly sprung
up, the ship, in order to prevent her bow being thrown upon a
ridge, which, if she struck, her captain thought might dash her to
pieces, after losing the port anchor cast out the starboard one.
The ship swung directly upon the flukes of this anchor and knocked
holes in her bottom through which she filled with water. Before
this, she had not leaked. The gale was so high and the sea so rough
and boisterous that communications between the vessels could not be
made. The steamer then went to Edgartown, a town on the island of
Martha's Vineyard, for a steam pump and wreckers. In the meantime,
and before the
Webb got back, one Levi Hotchkiss -- a part
owner of the vessel, who happened to be aboard -- got on to a sloop
and, acting with energy, procured relief from Boston and Nantucket.
Thus aided, the ship got off, and her leaks having been temporarily
stopped, she was got into New York and sent into dock for
repairs.
After the accident, the
Webb's compass was carefully
examined and tested, and considerable testimony tended to prove
that the variation from local attraction (the iron on the vessel)
on the west course was one and a half points to the north, instead
of to the south, as had been supposed by the captain and pilot.
Hereupon the owners of the ship, by proceeding
in
rem,
Page 81 U. S. 410
libeled the
Webb for $17,500 damages, and the marshal
seized her. She was, however, discharged from his custody on her
owners entering into bonds for $18,000 as the value of the ship,
and $250, the sum estimated as possible amount of costs,
conditioned to pay what might be awarded by final decree.
To establish the case of the ship, the testimony of Hotchkiss,
already mentioned,
one of her part owners, had been taken,
June 20, 1859, "saving the exception as to the competency of the
witness," the statute of July 16, 1862, which allows parties and
interested witnesses to testify not having then passed. Damages
suffered by the ship, and much exceeding $18,000, were proved by
the bills of repairs produced and by other witnesses than
Hotchkiss. The deposition of Hotchkiss was not read in the district
court, without hearing which that court decreed against the
steamer, and referred the case to a commissioner to ascertain
damages. The commissioner, however, did hear the deposition, and
awarded $20,378 damages; this being followed by a final decree in
the district court for $24,590. On appeal to the circuit court,
that court not reading the deposition, affirmed the decree, and
gave a final decree there for $28,292. From that decree the case
was brought here by the owners of the steamer, the record which
came here including Hotchkiss's deposition.
Page 81 U. S. 413
MR. JUSTICE STRONG delivered the opinion of the Court.
The libel filed in this case against the steamer is to recover
the damages sustained by the ship in consequence of
Page 81 U. S. 414
the alleged careless and unskillful towage, and the first
question is whether the towage was either unskillful or
negligent.
It must be conceded 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 unskillfulness 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. 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. Had the ship in this case been towed
upon a shoal ten miles north or ten miles east of Handkerchief
Shoal, after leaving that shoal for Cross Rip, it cannot be doubted
that the fact of the stranding at such a place, would, in the
absence of explanation, be almost conclusive evidence of
unskillfulness or carelessness in the navigation of the tug. The
place where the injury occurred would be considered in connection
with the injury itself, and together they would very satisfactorily
show a breach of the contract if no excuse were given. At least
they would be sufficient to cast upon the claimants of the tug the
burden of establishing some excuse for the deviation from the usual
and proper course.
In the present case, the departure from the true course was not
so great, but it was enough to devolve upon the tug the duty of
explanation. The ship was, as we have noticed, towed upon a shoal
more than three miles south of the proper course to Cross Rip
Light. Had the course been a long one, the deviation would not have
been so remarkable. But as the entire distance from Handkerchief
Shoal to Cross Rip is less than thirteen statute miles, and as the
ship was stranded when only about three-quarters of this distance
was
Page 81 U. S. 415
passed, it is apparent there must have been either bad
management of the tug, or some unusual cause must have operated to
produce the disaster, a cause against which ordinary prudence was
not bound to guard. Certainly this is enough to impose upon the tug
the necessity of explaining how she came to be so far off her
course in running so short a distance. We do not say that in order
to excuse her it must be shown the accident was inevitable, but it
ought to appear that so remarkable a deviation from her correct
course, made so soon after leaving Handkerchief Light, was
consistent with cautious and skillful management.
The weight of the evidence is that the ship was run upon the
shoal in a little more than an hour, manifestly not more than an
hour and a half, after she passed Handkerchief Light. All the
witnesses agree that it was between three and four o'clock when she
took ground. It follows that the entire departure from the true
course was made within this period of an hour, or at most, an hour
and a half.
The excuses set up in behalf of the steamer are that the night
was foggy and dark, and that the currents were variable,
conflicting, and imperceptible. There is no evidence that there was
any wind which could have caused embarrassment until sometime after
the ship had stranded. It blew lightly from the south and east, and
its tendency, therefore, was to keep the steamer up to the
northward of her true course. It was raining, but there was no fog
until after Handkerchief Light had been passed. Soon afterwards,
the weather began to grow misty and thick, but the clear
preponderance of the testimony is that it was not until they had
passed over about half the distance to Cross Rip that the fog
became so dense that the lights could not be seen. If this is so,
there was no difficulty in determining the position of the steamer.
It is not perceived, however, that this is very material. The fog,
whether dense or thin, was itself no embarrassment to the steamer's
taking and keeping the right course, a course marked on the chart
and well known by the pilot and by the captain.
Though the currents were variable in the direction of
Page 81 U. S. 416
their flow, yet both their direction and their force were well
known. All that was needed was to give them careful attention, and
to make allowances for their operation. So much prudent navigation
required. There is no evidence that they were of unusual strength
on the night of the disaster or that they ran in an unusual
direction, and there was nothing in the state of the weather to
cause a difference from what was common. Ordinary skill was quite
sufficient to enable the pilot of the tug to counteract their force
and to keep both the tug and the tow on the proper course. It was
during the first third of the tide that the passage was made over
the first third of the course from Handkerchief Light to Cross Rip,
as stated by the pilot. During this time, the current or tide was
setting northwest, bearing the steamer northward, and on the last
half of the course, on which she entered before the steam was shut
off, the ebb tide was setting southwest. Such is the evidence, as
also that, after the steam was shut off, the motion of the steamer
through the water was at the rate of two or three knots an hour,
and that she was thus moving about forty-five minutes before the
ship struck. If this is so, she was constantly making westing
during that three-quarters of an hour, if headed right, and, if she
was in the right position when the steam was shut off, the
calculation is easy that shows a southwest current could not have
carried her on to Tuckernuck Shoal. It is plain, therefore, the
stranding of the ship was not the fault of the currents. They do
not account for it even if nothing was done to counteract their
known tendency.
There is nothing else in the case that tends to show that the
disaster was not due to the negligence of the tug. On the contrary,
there is very considerable evidence that her compasses were untrue
and so deranged as on a westerly course to head her too much to the
south. This of itself would account for the deviation, and this of
course would be the steamer's fault.
It has been strenuously argued that the great injury to the ship
was caused by her own mismanagement after she
Page 81 U. S. 417
had struck the shoal and cast her port anchor. After daylight,
when the steamer was about to back down in order to attach herself
again to the ship, which had then got off the shoal and was riding
at anchor, the ship's crew commenced heaving on the anchor, and it
is alleged they hove short, so that the anchor was picked up, and,
a gale coming on to blow suddenly, she went again upon the shoal.
The anchor, however, instead of being picked up, was lost, and it
was proper to heave upon it in order to bring the ship nearer the
stern of the steamer and thus aid in the effort to renew attachment
to the steamer. We do not discover in this any negligence on the
part of the ship. What was done was rendered prudent, if not
necessary, by the prior misconduct of the tug. Nor was casting the
starboard anchor, after the ship broke adrift, negligence under the
circumstances, though it proved unfortunate and though the ship
afterwards swung upon it and bilged. The port anchor had been lost,
and the wind was then blowing a gale. Probably the bilging was what
saved the ship from total destruction, and, if casting the
starboard anchor was an act of mistaken judgment, it cannot excuse
the tug, which negligently brought the ship into the peril from
which she sought thus to escape.
The attempt to escape responsibility under the allegation that
the wrong, if any, was that of the pilot, and that the pilot was
the employee of the ship and not of the steamer, wholly fails.
Neither the written contract for towage nor the antecedent
negotiation establishes any such thing. Under the engagements of
the steamer, assumed before the contract of towage was made, it was
impossible to have any other pilot than Sherwood, who was the pilot
of the steamer, and there is nothing to show that the ship
undertook to run the risk of pilotage.
It is finally objected that the deposition of Levi Hotchkiss was
allowed to be read, though he was incompetent when it was taken. It
does not appear to have been used in either the district or the
circuit court, though it was read before the commissioner appointed
to ascertain the damages. Objection
Page 81 U. S. 418
was made to it there, and it must be conceded the deposition
should not have been received, but its reception can hardly justify
us in sending the case back for a new trial. When the commissioner
received it, if it was intended to insist upon the objection,
application should have been made to the court for an order to
exclude it. This was not done. Conceding, however, that the error
was not thus cured, still the evidence before the commissioner
related only to the amount of damages, and without the testimony of
Hotchkiss, the damages were plainly more than the libellants are
entitled to recover in this proceeding. The libel was
in
rem against the steamer, and the decree cannot be for more
than is within the jurisdiction of the court. The steamer was
discharged from arrest on stipulation in the sum of eighteen
thousand dollars for value and two hundred and fifty dollars for
costs. The stipulators, to the extent of their stipulation, have
been substituted for the steamer, and thus nothing but the eighteen
thousand dollars value and two hundred and fifty dollars for costs
is within the control of the court. To that extent and no greater,
the stipulators have subjected themselves to the judgment of the
court, and they cannot be made liable as stipulators beyond it.
This was determined in the case of
The Ann Caroline,
* and we need not
repeat what was then said. The decree in this case was largely in
excess of the stipulation, and while it is affirmed upon its
merits, it must be modified in regard to the amount of damages
recoverable from the stipulators.
The decree of the circuit court is affirmed with the
modification that it be reduced to the sum of eighteen thousand
dollars damages and two hundred and fifty dollars costs, and it is
further ordered that each party pay his own costs in this
Court.
*
69 U. S. 2 Wall.
538.
