COMERFORD II. THE MELVINA.
(.Dlsttr£ct Oaurt, N. D. nUnotB. March 81, 1890.)
COLLISION-VESSEL AT ANCHOR.
A schooner at hoisted her sails in order to assist in loosentnp; the anchor. When the anchor broke from the bottom. the schooner started with the master alone on deck, the entire crew being engaged at the windlass, and collided with another vessel lying at anchor a third of a mile to leeward. The evidence showed that the master of the schooner could have avoided the collision by putting his wheel hard to port. Held, that the schooner was responsible for the collision. Where a schooner's jib-boom is broken ofr by a collision. the vessel responsible therefor is also liable for demurrage caused by going into a port of repair, where there is any increase of risk in continuing the voyage without a jib-boom; though it is possible that the schooner might have made the voyage, successfully, but it is not liable for additional delay caused by want of skill in making the repairs.
SUrE-MEASURE OF DAMAGES.
In Admiralty. Thomaa Hood, for libelant. Schuyler &: Kremer, for respondent. BLODGETT, J. This is a libel by the owner of the schooner Blazing Star for damages sustained by his schooner from a collision with the schooner Melvina in the waters of Lake Huron on the morning of October 17, 1888. The proof shows that, on the morning in question, the schooners Melvina and Blazing' Star lay at anchor in the shelter of the east side of Cove island, in the entrance to the Georgian bay, where they had taken refuge from a gale about 36 hours before. The weather had become pleasant, with a moderate wind from the S. W. or S. S. W., and about 8 o'clock in the morning the crews of both schooners began preparations to get away, both being bound for Cheboygan, Mich., for cargoes of lumber to transport to the port of Chicago. The Melvina lay nearer the shore than the Blazing Star, and each was in from 16 to 17 fathoms of water. They were, as nearly as lean make it from the proof, about one-third of a mile apart, and each had out its heaviest anchor, with about 50 fathoms of chain. The crew of the Melvina were unable to break her anchor clear from its hold on the bottom by the windlass alone, and the sails were set to aid them in doinl!: so, the result of which waS that, when the anchor broke from the bottom, the schooner wa.s standing on the port tack with her main boom a few feet over thesta!board quarter, in a direction which took her close across the bows of the ing Star. The crew of the Blazing Star were at that time engaged in heaving at her anchor, but had not got it off the bottom, so that she Was swinging on her chain with her bow in the wind. All handa, but the master of the Melvina, continued heaving at her anchor after it left the bottom for the purpose of getting it on board, and the master had the wheel, he alone attending to the navigation of his vessel. Possibly she made a little leeway without the master's being aware of it, but, whether that be 80 or not, she passed so close to the Blazing Star that her main lift caught the end of the jib-boom of the Blazing Stat', and broke. it off at the junction with the bowsprit, which is the direct damage co1!l. plainedof.
The master of the Blazing Star, instead of continuing his voyage after the collision, made s!lJlforOwen's's!>,und,which was in a contrary direction from Cheboygan, his port of destination, but, as the proof shows, was the nearesllp'ortofrepair, 'where,hearrived that'evening. He ordered a new jib-boom, and the workmen set about making one, which it would seem; by good dispatch, ,should have been finished and in place' by the evening of the next day, but, after working upon it nearly all the next day. it was found that the stick was defective, and a new stick had to in pIaee,-thus necessitating a delay of two days for repairs at Owen's sound; and it is for the cost of the new jib-boom"and .the 'time lost in going to and from Owen's sound, and the thElia, that damages are libelant. "The defenses urf.1:edare: . (1) That the collision was an unavoidable a.ccidentteawedo by the directidn ()f- the Wind and"the positi6ns of the two vessels in relation to each other at the time the Melvina's anchor broke from the bottom; (2) that there was no maritime necessity for the Blazing Star to seek a port of repair merely tO,have herjib-boom reto Oheboygan, placed, but that she could have sarely pursued put in while. talclng inber of lumber and. had . .... ' i ' In support of .the first, proposition, it i,s by respondent that, when the aid o( the sails of a vessel is resorted to for the purpose of from its hold on the,bottom,she will necessarily go the time .theanchor breaks; off on, whiltever: tack sbe may be !!ond that;with tbis heavy anchor, 17 fathoms of chain hanging ,steerageofthe Melvina was so much interfered with that it have . been unsafe to to carry her astern of the BlazingStar, as, ,with the short distance she had to run, the Melvina would almost have struck the hull f)f the instead of going astern of her. " It is also contendedtpat the crew of the. Blazing Star should have seen was <'.ollision with their and should hav(;'i slacked would have le,t the Star fall astern, and off on their enabled the }lelvina, to have ,I do not think either of. these positi()nsis. "elpak,en.The master of the Melvina knew, or sb()uld h8:vekno,yn, as a ,sldllrul and that, when he . weighing anchor, his vessel would resorted to, his sails WQa;tever tack she stood when the anchor broke, and with this peril of ,collision other vessel t9 ,the leeward ·of him, and,consequently it: was his duty have taken such as would have t,be ,cpllision. , must have seEm the mOment .his anchor broke, began to make,headway:" that his wou\d take him ,lind of the Star's jib-boom; and that passing so 'herinvolv,ed, not puly l.hepElril of carrying away the Star's :btlt anphormigh,t foul with the Star's cJlai/l %n the water across the chain a"ay:from the Star. He could the bottom, so retarded the speed or his vessel that she would have swung enough upon her chain to
COMERFORD ·11. !rHll: MELVINA.
or he could hav.e called help enough from the wind,lass tOliid him in the navigation of his vessel until she was past danger of a collision. The proof shows that, if a single man had been on deck, -Wbave hauled in the main boom from over the starboard quarter of his vessel, she would have gone clear of the Star's jib-boom, for, as it was, ·the main lift barely caught the tip end of the Star's jib-boom, but enough -to break it. But with what, it seems to me, was an act of recklessness', the master of the Melvina undertook to navigate his vessel without any help on -deck to enable him to properly manage her.,.when he must have · seen that he was endangering both vessels. by attempting so close a passage across the Star's bow. . As to the aUegednegligence of the crew of the Star in not slacking off ·their .cbainso as to allow their vessel to faU astem,and thereby escape the collision, Ido .not -think the point is supported by the proof. The 'orewsof both vessels seem to have thought the Melvina would -paRS safeljr, 'altbough .so close, until she was nearly one-half her lengtb past tbeStar's and Ido Star would have ·settleddlack soon enough to bave aver.ted the collision if her chain bad .been slacked. As I understand the situation from the proof, tI;1eStar ,was not using her sails to help break her anchor, so that the only'fCjroe ·to; carryhet::astem was the.wind acting upon her hull and rigging as'she lay in:tbe,eye of the wind; and it is .not probable .tbat this forcewottld have acted with sufficient rapidity toearry her out ofdanger,----at least, ,it is doubtful if such would have been the effect of slacking off;upon the Star's cbain; and,with the palpable want of due: care shown by the ·master of the Melvina, I do not think, he,.or those .responsible:for his ,acts, are in -a position to .closely criticise tbe conduct of the crew' of the Star. . . . . The proof also satisfies me that, after the danger of collision. became imminebt, the master of the Melvina could have averted it, and passed ·clea.r of the.Sta.r, by 'putting his wheel hard to port, which wduld! bave ,swung his stem to port,and thereby cleared the Star's .. He was cettainlybound to think and to act as quicklY,urider the circumstances, ·-as the cr.ew, of the Star, and he has no. right to complain if they did not adopt measures when in extremis while hewas himself guilty of neglecting measures at tbesame moment which probably would have been effective. As to the contention that tbe master of the Star should have .his \!Qyageto Cheboygan without his, jib-boom,' and made his repairs ·there, I think that, under the circumstances, the master of the injured wasthejudgeas to whether he would take tbe risk of making the ;l1ln:to Cheboygan without the aid .of the sails dependent upon the jib.bbom, 'or :seek a port ofrepair. It is possible that be would ha.ve made ,the run ,successfully, but, if to the mind of a prudent seaman,there was any increase of risk in attempting it, tben he had the right to: decide whether he would take that riskor not, and it does notliein the,mouth .of .the, p8;rtY by whose. negligence he has been .disabled to critiaisehis exercise of discretion. It is true that the proof sho,¥s
have made trips the whole length of Lakes Michigan and Huron with the jib-booms of their vessels gone, but this only proves that they were fortunate in not encountering such winds as would have made the sails dependent on the jib-booms necessary for safety. Undoubtedly many of the members of a full-rigged schooner may be temporarily dispensed with, but this does not prove that it is prudent seamanship to attempt the continuance of a· voyage after so essential a part of a schooner as the jib-boom has been carried away. At the most, it only proves that the man who has taken such a risk may be deemed lucky if he gets through in safety. We must bear in mind that this collision occurred after the middle of October, when severe storms are to be anticipated, especially on Lake Huron; and I think the master of the Star only acted with proper prudence in running to the nearest port of repair, which, in this case, he was able to do with a fair wind, and mostly in a protected course. As to the damages to be awarded, the libelant is entitled to be paid all expenses for repairs made necessary by the collision. These are the cost of replacing the jib.boomand the portions of rigging which were broken. He is also entitled to be made good, as far as possible, for the time neeessarily IosHn going to the port of repair, waiting there for repairs, and returning to the point where the collision occurred, or as far on the voyage as the point where the collision occurred. The proof shows that the Star reached Owen's sound the evening after the accident, but too late to get men at work on the new jib-boom that night. The next day the new jib-boom would have been made and put in place in time for him to have left the morning of the third day, but the 'party who undertook the repairs chose a bad stick of timber, the defect of which was not discovered until they had worked nearly all day upon it, when the stick was rejected, and a new stick obtained, which took them a day longer. This lOBS of a day, by the want of skill of those who undertook the making of the llew jib-boom, ought not to be charged to the respondent. I therefore find that the detention of the Star in going to Owen's sound, and returning to a point on her voyage equivalent to the place of accident, was three days, and that her time and expenses were equal to $50 per day. making the amount of her recovery the cost of the repairs, and the three.days demurrage, at $50 per day. It is also contended that, as the Star reached Cheboygan, got in her left there for Chicago as soon as the Melvina and the Fellowpraft,another schooner which lay at Cove island with the Star and Melvina, and left there with the Melvina, therefore no demurrage should be allowed her, because she might not have got there, taken on her cargo, had not occurred; and got away any sooner if the injury by the but,as the proof shows that the Star did not load at the same dock as the other two, vessels, I do not, think the court can presume she would have been detained in Cheboygan as the other vessels were. A decree may therefore be prepared, finding the Melvina in fault, and awarding damages to be made of the actual cost of repairs, and the three-days demurrage, at $50, per .day.