THE CHARLES ALLEN.
(Di8trict Uourt, 8. D. New York.
TOWAGE-EvIDENCE-ToWAGE RECEIPT-CASTING OFF IN GAI,E.
The steam-tug C. A. took in tow the bark E., bound to sea from the lee of Staten island, to tow her down the bay of New York. The wind was high at the time, and the pilot of the tug, before starting, told the pilot of the bark that if the wind increased the tug would be obliged to cast oft before reaching buoy No.8, at the upper end of the 8wash channel, and that the bark's p1l0t should be on the lookout for that contingency, to which the latter assenlCJ. The wind did increase until the tug was in imminent danger of swamping; whereupon she gave several short whistles, to indicate that she was ahout to leave the bark, and then cast. off the hawser. The bark attempted to make sail and get to sea, but g-rounded on the Romer shoal. This suit was brought the tug for not having taken the bark" to sea," as it was alleged she agreed to do, and for negligence in abandoning her in an improper and dangerous place. A towage receipt, reciting that the bark was to be taken" to sea for $20," signed by one G., who procured the towage for the bark, and delivered to the master of the bark, was put in evidence, 'l'he $20 was not paid, Held, that no authority was shown on the part of G. to bind the bark, and, moreover, that the receipt was superseded by the subsequent conversation between the pilots.
SAME-NEGLIGENCE-PElUL OF THE SEA-Elmon OF JUDGMENT,
Two courses were open to the bark in the place where she was cast off: to anchor, or to attempt to get to sea. She chose the latter, and events proved that it was an error of judgment on the part of her pilot. lield, that the tug was liable only on proof of negligence; that is, the want of such reasonable care and skill as the circumstances demanded. No negligence could be attributed to her for starting at the time she did. She continued to tow the bark up to the very last moment that her own safety would permit, and she cast off under an undoubted compulsion from perils of the seas, and in a position where thlJ bark had a fair option to continue under sa.il or to anchor; ami the libel was therefore dismissed.
Butler, Stillman d: Hubbard and fV.1'v!ynderse, for libelant.
Benedict, Taft d; Benedict, for claimants. J. At about 9 o'clock or a little after, on January 17, 1885, the Swedish bark Elida, lying off Staten island ready for sea, was taken in tow by the steam-tug Charles Allen, to be towed down the bay. The bark had on board a Sandy Hook pilot, between whom and the pilot of the Charles Allen there was a brief conversation in regard to the distance that the tug was expected to go. The pilot of the tug testified that he said to him that if the wind should increase much he would be obliged to cast off before reaching buoy No.8, which is on the east side of the Swash channel, and that he was to be upon the lookout; and that the pilot of the bark assented. Two or three of the tug's hands confirm this acconnt. The pilot of the bark testified that the pilot of the tug said that he would leave him at buoy No.8. The're was a gale blowing at the time from the south"west, but its severity was not felt in the lee of Staten island, where the then lying. At a quarter past 10, on reaching buoy No. vessel 13, known as the Elbow buoy, below Staten island, the full force of the wllich was then from the westward, began to be felt. The
tow kept on about half an hour longer, when she was compelled by the fury of the wind and the sea to cast off her hawser and return. She gave two or three signal whistles during about five minutes before casting off, which were heard by the captain of the bark, but were not heard by the pilot, according to his own testimony; and the cast-off hawser waS not taken aboard. At that time only the foretop-mast staysail and maintop-mast staysail and jib had set, the crew having been delayed in making sail in consequence of the anchor's fouling with the chain when raised. The bark afterwards passed clear of buoy No. leaving it a length or two only on her port side; but not having sufficient sail set to be wholly manageable, through the force of the westerly gale and the ebb-tide, which sets to the eastward, she grounded upon the Romer shoals, between buoy No.8 and the stone peacan, somewhat nearer the latter. 'rhis libel was filed against the tug for not having taken the bark as far as buoy No.8, which it is alleged she agreed to do; and also for negligence in abandoning her at an improper and dangerous place. 1. The receipt put in evidence reciting that the bark was to be taken "to sea," is not proved in a manner sufficient to bind the bark. No authority is shown in Gundersen, who signed it, to represent the bark or her owners. As a memorandum made by a person assuming to procure towage for the bark, it was, moreover, superseded by the can· versation subsequent thereto bl3tween the pilot of the tug and the pilot of the bark. On this point the weight of evidence is clearly to the effect that the tug would cast off whenever compelled to do so by in· creasing wind; and that the pilot of the hark was to be on the lookout for this contingency. 2. The main controversy in the case has been as respects the place where the bark was in fact cast off; the witnesses from the latter contending that it was about midway between the middle and upper buoys of the Romer shoals (Nos. 8 and 14) and near to the easterly line of the channel. The respondents insist that she was cast off when a little bel0w the tail of the west bank and near the westerly shore of the channel; that is, when near buoy No. 13. I am satisfied that the place where the bark was cast off has been put by the libelant's witnesses much too near buoy No.8 and the easterly side, and that it was not to the southward of the upper mid· dIe buoy, (No. 14,) north-east of the center of the channel. It was probably about half a mile to the northward of buoy No. 14" The testimony of several disinterested witnesses confirms this; and the bark's reaching buoy No.8 and passing to the westward of it, under the little sail she made use of, shows that she undoubtedly reached it by coming from the north-west, or north north-west. Had she come down the easterly side of the channel so as to round the Elbow to the westward of buoy No.8, there is no reason why she should not have gone down the Swash channel in the same manner, instead of grounding as she did. Having been cast off, as I find,
THE CHAP-LES ALLEN.
somewhat to the northward of buoy No. 14, the bark had two conrses open to her: either to anchor, or to make sail in the attempt to proceed to sea. In that position I find nothing in the evidence to indicate that she could not have anchored with safety. The pilot chose the other course, of attempting to proceed to sea. The topmast staysails, the jib, the spanker, and fore and main top-sails were all set, or most of them, it would seem, before buoy No.8, thongh there is a little difference in the testimony of the brig's witnesses on this point. The spanker, however, was taken in, and the main topsail was blown away before reaching No.8. The evidence shows that the gale at this time was very violent, marking at the Equitable building 40 miles an hour; between 11 and 12, 41 miles; between 12 and 1, 44 miles. I cannot satisfactorily make out from the pilot's testimony why, after setting the spanker, the foresail was not set, so as to obtain sufficient canvas to make the bark manageable, unless it was by reason of the violence of the gale, which he found greater than he had recognized when the tug cast off. According to his own testimony, buoy No.8 was not reached for some 20 minutes after the tug had left; and that time, he says, was sufficient to set sail enough to make the bark manageable and follow down the Swash channel. If this view correct, the proximate cause of the bark's grounding was an error of judgment; I do not say a blamable error, but an error of judgment, nevertheless, in undertaking to make sail and proceed to sea in a gale of unusual violence, and finding only too late that he was unable to do so in time to avoid the Romer shoals, instead of anchoring at once, as he might safely have done when cast off. The tng can be held liable only upon proof of negligence; that is, a want of such reasonable skill and care as the circumstances demanded. In the case of The Margaret, 94 U. S. 494, 497, the court say: "She was not an insurer. The highest possible degree of skill and care were not required of her. She was bound to bring to the performance of the duty she assumed reasonable skill and care, and to exercise them in everything relating to the work, until it was accomplished." The Niagara, 20 FED. REP.
152; The M. J. Cummings, 18
On behalf of the libelants it is urged that when the tug arrived off lower quarantine, at the Elbow buoy, (No. 13,) at a quarter past 10, she was in a position to feel the full force of the gale; and that the anemometer shows that it was then blowing nearly as hard as it did afterwards; and that her pilot ought to have anticipated the greater roughness of the sea further down, and that hig boat would be unable to live in it, and was therefore chargeable with want of dne care and skill in continuing on beyond buoy No. 13. But since I have no doubt that the bark was in fact cast off above buoy No. 14, she would have gained little or nothing from being cast off at some other point further to the northward, between buoys No. 14 and No. 13. She would have had no wider space to leeward and no better anchorage ground; and
with the intention which her pilot had of taking ber out to sea, it was to her evident advantage that the tug should take her as far as possible; and it was the duty of the pilot of the tug to do so, so long as he did not thereby deprive the bark of the alternative of anchoring in safety, if that should be judged necessary. The evidence satisfies me entirely that the tug did continue towing up to the very last moment that safety to herself and to the lives of those on board of her would permit. No negligence can be attributed to the tug in starting at the time she did. The weather bureau shows that from 7 to 9 the wind abated from 37 miles to 30; between 9 to 10, from 30 to 29; while after they had started, between 10 to 11, it increased again from 29 to 40 miles. In the lee of Staten island, at the time of starting, the wind appeared to be even much less than it actually was. The pilot of the tug not being chargeable with negligence in starting out, and as he cast off under the undou bted compulsion of imminent danger from perils of the seas, and at a place that afforded the bark a fair opportunity and a fair option either to anchor or to continue on under sail, as her pilot might deem expedient, I cannot find any negligence established against the tug, and the libel must therefore be dismissed.
PREMUDA V. GOEPEL.
(District (Jourt, S. lJ. New York. .March 14, 1885.)
CHARTER-UNSEAWORTHINESS OF VESSEL-INSURANCE COMPANIES-JUDGMENT OIl' ExPERTS.
The libelants chartered their ship, the P. B., to the respondents to carry oil to Trieste, and in the charter-party the ship was warranted to be seaworthy. The respondents applied to several insurance companies here and in Europefor insnrance on the cargo, but after an inspection by the surveyor of one of the principal marine insurance companies, who reported the vessel unseaworthy, the companies generally refused, and the respondents were unable to obtain insurance, whereupon they threw up the charter. and the owner brought suit against the charterers for the breach of cont,ract. The vessel took another charter and performed the voyage in safety. Held, that the warranty of seaworthiness is a warranty that the vessel is in such a fit condition for all the ordinary hazards of the contemplated voyage as to be approved seaworthy in the judgment of impartial and experienced men versed in the business; that the test is not whether the vessel may possibly make one or several voyages without foundering, but whether she is so staunch in her character as to approve herself fit for navigation in the eyes of competent men; that in this case, in 'view of the almost unanimous refusal to insure on the part of the insurance companies, who are so experienced and competent, and of the direct evidence of serious defects in her hull, the respondents were justified in abandoning the charter; and the libel should be dismissed.
In Admiralty. This libel in personam was filed to recover damages for the respondlReported by R. D. & Edward Benedict, Esqs., of the York bar.