NEW YORK, N. F. & H. S. S. CO., Limited, v. LEARY.
(Distrf.ct Court, E. D. New York. November. 18, 1889.)
TOWAGE-RAPT-CONTRAOT-STQRM-NEGLIGENCE, 'J.'he owner of the steamer Miranda contracted to tow a large raft of logs by l6a from Port Joggins, Nova Scotia, to New York. The tow left Port Joggins on the 6th of December, 1887. 'On the 18th, in the midst of a heavy gale, the toWing haw-' sers parted. The steamer lay by the raft for a time, and then started for New York, arriving there on the.22d. The raft !;Iacame a total loss. Suit was brought to recover for the loss of the raft, and a cross-action to recover the towage money under the contract. The raft-owner claimed various faults in the Miranda: (1), That the original contract had !;Ieen by an agreement that the raft should be towed to Eastport for orders, and not directly to New York, which modification liad. been' violated. Held, that such agreement;wB$ not proved. (2) That the towwas taken to sea Qf a of aboard .the Mirand;a. Held, that the charter-party contamed no provlslon WhlCh gave anyone POWEll' to direct tlie master' of the Miranda where to go, and. on the evidence,the D:ll'Iilter. committed no breacb of duty in going as he did, for at the time he. tnade· such termination the weather was fine, and the' danger of a voyage to New York was not so obvious as to make the attempt negligence. (3) T,hat the contract. wa.s vio-, lated wben the master determined to go outside Nantucket shoals, instead .of through Vineyard sound. Held that,under the then known facts.of the availabil" ity of Vineyard sound for tbe passage of such a tow, it was no breach of the mas. ter's duty.to omit to go that sound. (4) That the master's failure to keep near ports of safety caused the loss. Held that, under the condition ofweath'el' which existed wben the master determined to outside, such failure was no breach Of duty. (5) That the Miranda had insuftlclent hawsers and stores. Hela. that such insuftlClent provisioiling was not proved. (6) That there was fault in: not sooner sending the Miranda out again to look for the raft after arrival. of the steamer at New York. Beld, tbat tbis was no faUlt, as by the time the ste&mer's. necessarv repairs were finished it had become evident that further search was less. The tibel for the loss of the raft was therefore dismissed, and the cross-libel for the towage money
In Admiralty. Action by Leary, owner of a raft known as the "Joggins Raft." against the steamer Miranda, for negligence in towage, resu:lting in the loss of the raft. Cross-action by the owner of the Miranda for towage money. John Berry, (F. A. Wilcox, advocate,) for Leary. Butler, Stillman HUbbard, fqr'the Miranda.
BENEDICT, J. These are cross-actions. The firllt is brought to re;cover damages for an alleged breach of a contract made between the libelant Leary and the owners of the steamer Miranda for the towage of a log raft from New Brunswick to New York, the raft having been lost on the vOy/lge,and, as the libelant Leary asserts, by the ·fault of the steamer. The. second action is brought by the owners of the Miranda against James'D. Leary to recover compensation for towing the raft, demurrage"expenses, etc., according to the stipulations of the contract. The evidence tha1:iin Summer, and autumn of 188'7 a log raft IRepol'ted by Edward G. Benedict, Esq., of the New. York bar.
vol. 40. was constructed at Port Joggins, Nova Scotia, in the Bay of Fundy, for the libelant Leary, under the of Hugh R. Robertson, who had an interest in the profits. The raft consisted of round timbers, 10 to 30 inches in diameter,'and 35 to' 70 feet long. and contained in all some 3,000,000 of feet of timber. ,It was 525 feet long, 32 to 33 feet high, 50 feet beam, and'15 feet in' diameteti at each end. being cigar,feet in the cent,er"and weighed over 6,000 tons. It'had. no ruddeiorsteering' apparatus; and was intended to be towed by mE'ans'of:achain leading ,through 'he center of it, to which were fastened other chains, surroundingthe intervals, and so arrangedtbatiGthe,strain'upon, the. core-chain would tighten the chains around the timbers, and so ,'hold the rafl, together;, ' , On the 16th day of November, 1887, in anticipation of the launching of themft at Port 'the contract sued on waslnade in New York between Leary and Bowring & Archibald, agents, of the owner of the Miranda. The charter-party provided that the steamer shbuld towiheraftfrom St. Johns, or other safe port in New Brunswick or Nova Spotia,to New York for the sum of 83,000, to l>e paid on delivery of the raft in, New York. "Thecontractalsoprovided that the charterer .was to have onbdard, riot exceeding three, and that the officers and crew were to render all assistance and facilities that might be ,required. forthe safety of, tlleraft; and it further provided that should the raft get adrift the steamer should search for the raft until she found it, or until.sheshould b\"ordeted to desist by ,t4e representatives on board the steamer.:Confliderable delay occurred in dispatching the for the l'aft; Jt was the 6t1;l o( December when the steamer arrived at Port Joggins, where the raft lay. On the 8th·ofDecamber the steamer raft ,On Friday morning, December9tb t sho was off St. Johns, and at the Close of the day was five or six miles from Lepreau:t, on'acourse between Grand Manan and the main-land, the weather being fair. At 7:30 of dllythe steamer's from W. to S. by W.I W., apd the atell.mer put 0ll. .cou.rse for NewYor)I. by the, open Sea' OnSunday,the 11th, the weather, qttmeon blowillg from south. ward, with a nasty Sea, the. the steamer .rollillg.. On Monday, the 12th, the 01,1, Tuesdll.Y, the 13th t there was a strong north-west windt and high cross-sea. On Wednesdayt the 14th, weather was fine,., JOn Thursday" the 15th, .:w,ipd!l,. llnd heavy weathe.r. .At it was blowing a gale, which on Friday, the steamer roping, rails. un4er, the. sea, breaking over'the A partof steamerlaYt under, the drifting. On SundaYt tho. 18#1" a gale blew frorr the a "severe gale" by. nnd a by others. Vp to this tiJ;ne the vQrageha<l, disaster., .rhe towing lines had proved sufficient, the had '\\Vind,l;lnd the sea, an<;l the .!!teamer bad been mall!lge it. JX}Qrnillg,whE;n the gale was at its height, the raft lying in the trough of the SE'a, every wave breaking U, the port hawEler by Which the raJt was being towed
parted. Immediately afterwards the starboard hawser carried away the steamer's fore-bitts and after-bitts, and ran out, and so all connection between the raft and the steamer was severed. The steamer lay by until5F. M. j then she started for New York, and arrived at Whitestone Dec81Dber 19th, and at New York December 22d.On December 21st and December 25th the United States steamer Enterprise went in search of the. raft, with hawsers for towing, and fonnd onlylogs adrift, and felt assured from what was seen that the ra(t must have been entirely broken up. On the 25th of December the master of thestea:mer Missouri passed ,through a field of.logs, stretching to the horizon, five miles wide and seven miles long. 'The Morse was also sent out by Leary to search for the raft, but found but some drifting logs. Thereupon, on the 21st of January, Leary filed his libel in rem against the Miranda, claiming'damages for breach olthe towing agreement. On the part of the libelant Leary it is insisted, first, that after the arrivalof: the vessel at Port Joggins the towinJ:t contract was modified, by agreement between the. master .and Robertson,. according to which the raft was to,be towed from.Port Joggins to Eastport, the nearest American port, some 100 miles from Port Joggins, and there await orders from the owner, instead of being towed. from Port Joggins to New York, as the charter contemplated. The claimants deny that any such modiflcation oftbei charter was made. Upon this issue of fact there is conflicting testimony, but,taking it altogether, in connection with the action of thepil.rties in New York, lam unable to find tbat an agreement to modify the charter-party, as claimed by the libelant Leary, was Mn- . cluded:with the master of the steamer. It is next contended on the part: of the libelant Leary that tht" contract was violated when the course of the vessel was changed to go outside the Grand- Manan and to sea, against the protest of ,Robertson; The evidence shows that at this time Robertson, who wason board the steamer he as a representative of Leary, demanded of the master that _ ,ta.ke the raft to Eastport or Machias,and protested against proceeding to sea with her. The weather was then fair, and the sea smooth, but, ,the season , was, late. Robertson's protest not rest upon any preSl:lnt danger to the raft, but upon the dangers he anticipated in case a voyage to New York by the steamer, with such a raft in tow, .was attempted at that season of the year. Here the contention of the libelant Leary is that the charter bound the master to take the instructions of RobeJ:tson as to the steamer's movements with the raft; and when, against the instructions! of Robertson, he proceeded to New York, he thereby assumed a liability for the loss of the raft. The difficulty with this contention is that the charter-party.contains no provision which gave Robertson or '.i Littlefield or even Leary himself, power to direct the master.to take the rafHo Eastport or Machias. The charter-party contains no language in'dicating an intentioh to allow Leary l by his tepresentatives on board, to of:the steamer with the raft, or to control the destination of the :Robertson indeed had· a letter from Leary, . which lie showed to th8'master, in. which ,Leary says to Robertson:
"You are the Bole judge of all the steamer's movements with the raft. They are to navigate her.! will see the captain to-morrow, and give him to fully understand that." But this letter,which was written several days after the execution of the charter, does not refer to any provision of-the charter containing such power,and states that such power is to depend upon a subsequent understanding to be had with the master; which understanding, so far as it appears by the evidence, was never had. When, therefore, the-request was made by Robertson that the vessel put into Eastport instead of going to sea, it had no legal effect upon the master's duty, and the case upon this point resolves itself into this: whether it was a breach of the master's 'duty to take the vessel to into Eastport or Machias, at that season of. the sea, instead 'of going _ year. Upon the evidence I cannot hold that the master committed a breach of duty when. he determined not to go to Eastport, but to go to sea. .At the time he made that determination the weather was fair, and the sea smooth. He had then 80me experience with the raft, and was justified in believing that it was a reasonable undertaking to attempt to take it to New York. This is shown by the result,' for the raft was safely towed fox: some 10 days of stornly weather. Undoubtedly the 'lateness of the season -increased the hazards of such Ii. voyage, but I am unable to hold that the danger of a voyage to New York at that of the year was ,so obvious as to make it a breach of duty on the part of the master to make an attempt to take the raft to New York instead of taking it to ,Eastport. Again, it is contended that the contract was violated when the master determined to go outside of Nantucket shoals instead of over the shoals, , and through the Vineyard sound. Upon this point the evidence for the owner of the raft is that the master of the vessel was requested by both 'Robertson and Littlefield to take the vessel through Vineyard sound, to which request the master replied by showing instructions from his 'owner forbidding him to go through Vineyard sound. But assuming, as has already been pointed out, that the charter gave neither to Robertson nor Uttlefield nor Leary the power to direct the master as to the course to'/b& pursued by the vessel in the performance of the charter, I am unable to find that it was a breach of the master's duty to omit _ take _ to the passage of Vineyard sound. The raft was a large structure, without steering power of her own, and of a weight suillcient"under some ,circumstances, to overcome the power of the steamer. Vineyard sound is narrow and difficult. The only raft which up to that time had been taken through it was of a different construction, containing 5,900 sticks of timber, while Leary's contained 21,000, and -the passage wnsmade in the summer time. The fact that a raft larger than Leary's,anclsimilar in character, has been taken through the Vineyard sound in safety since the 1088 of the raft in question, may lead some to believe that Leary's raft could have been taken safely through 011 this occasion.·But no such fact was present when the master of the Miranda was called on to elect betwe¢ntheVineyard sound and the outer
passage. At that time the known facts respecting the availability of the Vineyard sound for the passage of such a raft did not, in my opinion, make it the duty of the master to. take Vineyard sound. In this connection it is to be noticed, and the fact is significant, that neither in the original libel nOr in thevarious amendments since made is the omission to take a course through Vineyard sound put forth as a ground of recovery. Again, it is insisteu.on .behalf of the libelant Leary that the master of the steamer was guilty of a breach of duty in takioj:1; a course for New York by the open sea, instead of going near the land, where ports of safety would have been available in case of storm. But no such occasion for resort to ports of safety arose up to the time when the master determined to go outside of the shoals instead of over the shoals and through the Vineyard sound, and, if the course by the Vineyard sound had been then resorted to, the vessel would have passed Chatham in fair weather, and without occasion to resort to any port of safety. The omission to keep near portsot" safety, therefore, had nothing to do with the loss of the raft. Still further, it is urged on behalf of the libelant Leary that the loss of the raft was owing to the use of hawsers insufficient in quality, size, and length. But the fact proved, that the steamer with the hawsers employed was able to manage the raft, and tow it in safety through several storms prior to. the gale of the 18th, makes it plain that it cannot be held that insufficient hawsers were employed to make fast to theraft. Yet again, it is contended that the parting of the port hawser in the storm of Sunday ,the 18th, arose from ihe fact that the hawser had been permitted to chafe in the chock to such an extent as to make it unsafe to put it further 9ut, as was done on the 14th, without splicing. But the hawser held from the 14th to the 18th, and when it parted severe storm was atits height. The chafing is denied by the master. I am not by the evidence that the loss of the raft can be justly attributed to an unsafe condition of the hawser, when it was Rut further out on the 14th; by reason of chafing. As to the claim on behalf ofthe libelant Leary that the steamer was insufficiently supplied with provisions and supplies, and thereby pre.vented from staying to search for the raft as the contract provided, there are two anSwers made: First, that the weight of the evidence is against the assertion ,that the steamer was short of provisions; second, that the loss of hawsers, the condition of the vessel, with deck broken up and bitts torn away, and mast strained, made it impossible for the steamer to do anything more for the raft. All on board seem to have concurred . in the opinion that no more could be done. Lastly, as to the claim that a breach of contract was committed in not sending the stearrier out again in search of the raft, it is sufficient to say that by the time the necessary repairs were done to the steamer it had become evident that further search was useless. .. There remains but to say that I have made a careful examination of .. the voluminous testimony in the case,. which is by no means free from
extraordinary contradictions,. and tha:t I am uo:ab1e to arrive at the conclusiontbat;the loss of the raft was caused by any neglect or want or skill on! the part of the steamer. It follows that the libel of Leary a:gainst the steamer must be dismissed, with costs, and that. in the action of the New York, Newfoundland & Halifax Stel1m-Ship Company, owne1'8ofthe steamer, against Leary" the libelants must have a decree for the sum of $3,600, being for 12 days' service, at 8300 a day, as the contract provided. . .. . . In regard to the claim for demurrage"it is disallowed , and,as at present advised, the claim for chains, etc., is also rejected; but as to this latter claim I will hear counsel further on the settlement of the decree, if they deaire then to be heard.
S. D. February 28, 1889.)
gent towagll, gence. ..
Sllli\men's wages Il'Ilsuperior,toa lien for damages from negll. appear that the seamen contributed to such negli· .
I. SA:MlIi-DuUGlIiS. . '." '. . '. A lieJ!. fOf da1J1li\lif6s f1'()m. negligent towage,has priority over a lien for lupplies . and repairs. . ' . . . . .' , 8. SAME-SuPPLIES. ., ' ' . . . . , The lien fOr supplies tlIrnished to a vessel in a home port, glven by How. St. Micb.§ 8236,ltands on the same footing as maritime liens for supplies and repairs furnished in'foreign ports. .' : ' .
". SAME-1NSu1u.NdB PRBM;roM&.
A lien for: unpaid premiums on insurance'on a vessel, whether maritime or tory, is toUens forsUpplil$ and repairs. , . ,
In Admiralty. On application.(or distribution of M. C. A.:A. Krauae, for Gunderson. .· .' Peter Doran, for intervening libelants for supplies and repairs. 'Fletcher &: Wanty, for Insurapce Co.
SEVERENS, I ·. On the!17th day 1888, <JP.arles G. AI'}eyandothers, composing· the firm of C. & Co., filed their f·Ubelin this court against thepl'opellex: Daisy DaY, for the purpose of :enforcing an alleged lien fQrsupplies furnishe4 the vessel d\lring the sea"son·of navigation for that year. The owners having made default,.a on the 21st day decree was entered pursuant. tq.the claim of the of November following, and. the \'essel qrdered sold. MeanUme a. num· :·ber;of additional libels ha<l been filed, some fqr; sailors' waies, some for ;,&upplies, some formateriaJ, and . one (that Lor· G. F.·Gunderson) fordall:ilages ansmg 1:>Y the propeller of theschQone.l\(j. Barber, belongmg, to. that li1:>elant.. 'l'he . vessel wassoldilluder the: upon the originlll. libel, and the probrought. into thi\ regi,lItry of the