OpenJurist

BENHAM V. THE NIAGARA. '

BENHAM

et al. v.

THE NIAGARA.

(D18i1rkt Court, N. D. Ohio, E.D. January 17:,1891.)
L

COLLISION-TuGS WITH 'l'OWS-BROKEN RAFT IN RIVER.

The steamer N. was proceeding down the St. Clair river, having in tow a raft of telegraph poles, some 800 feet long and 400 feet wide, properly constructed for navigation in such river, when two schooners collided with tae raft and so broke it up that it spread out to the width of nearly 600 feet, and in some'places occupied' the whole of the channel. The N., however, went her wav without attempting to repair the raft, and in the night-time she sighted the tug B. with a tow, just below South-East bend. The master of the N. looked back on his starboard side, and saw what he called "a hole" between the raft and the bank, and he thereupon gave two blasts of the whistle for the B. to pass to starboard, which she proceeded to do after answering. Before the B. could do anything to prevent collision, after discovering th!:loharacter of tbe raft, it struck one of the schooners of the B.'e tow, and. damaged her. HeW, that the N. was in fault because her master did not acquaint himself with the dangerous character of the raft and give the danger signal to the B., or hold the raft for repairs at some place where other vessels might pass safely,

9.

SAME-NOTIOE TO PASSING VESSEL.

The fact that vessels going down the river had warned the B. that there was such a dangerous raft in the river before she met it was not sufficient notice to her to disregard the N.'s invitation to pass, where such vessels.hlld not described the raft in question so as to enable the B. to distingUish it from any oUler she encounter.

In Admiralty. GO'Ulder « Lee, for libelants. Henry H. Swan and H. M. Gillett, for respondents. RICKS, J. The libel filed in this cause on the 20th day of November, 1889, charges that on the 26th day of August, 1888, the schooner H., c. Richards, properly equipped and skillfully handled, in tow of the steamer Britannic, was proceeding on a voyage from Lake Erie up through the St. Clair river. Said Britannic had in tow, in the orde!: named, and attached by tow lines of the ordinary length. the schooners Woolson and Richards, and at the time of the collision, hereafter described, had proceeded as far as a point in the St. Clair river near and below South-East bend; and while so proceeding, in the night seasoo, the Britannic exchanged with the tug Niagara, then approaching from above and descending the river, passing signals of two blasts, with the appropriate signal for passing to starboard, which signals were exchmaged at a proper and appropriate distance, and the said tow and said tug approached each other with no notice to those on the tow that any circumstance existed to make the passage dangerous. The libel further avers that the Britannic and said tow duly starboarded their helms, and made over to and kept the port-hand side of the. channel, and were in proper position to pass. It further alleges that when the Niagara was passing said tow it was discovered that she had in tow a raft of unusual shape and size, which was occupying substantially. the whole channel,and was comiUK down the channel, towed by the Niagara. with good head.. way. The helms of the tow were thereupon starboarded, and they kept in just as close as they could on the port bank, and the Britannic checke<l down. It further alleges that there was a dock which made out a little from the shore .ahead and on the port bow of the Britannic) and tho

776

FEDERAL REPORTER,

vol. 44.

Richards ran into the bank below said dock with her helm starboarded, notwithstanding which the raft caught the Woolson, (which was the first vessel in the tow,) and brought her stern down upon the Richards as the latter lay' against the bank, tearing out the rail, stringers, and stanchions, and carrying away some of her head-gear and her rigging Ql1 the starboard side, and otherwise damaging her. The libel avers that saidmft so towed by the Niagara had, a short time previous to meeting the Britannic and tow, been in collision with some other vessel, and been badly broken and disarranged, so that instead of being in the and ordinary shape, and of the usual size and condition proper for being towed through said river, the same was unwieldy, and to a considerable extent unmanageable and innavigable, so that it occupied nearly channel at the point of the collision, and was not in ready command of the Niagara and the tug Saugatuck, the other tug astern and attached to said raft, and was not in condition to be towed i,n The libel avers that the Richards was. wohlly without fault, and that the Niagara was guilty of fault in the following respects *ndpa;-ticulars: (1) That she was attempting to navigate said river, having in tow a raft not of proper size and condition to be towed through said river, and was not making a reasonable and ordinary use of said river. (2) That having said raft in tow, in 'its broken, unmanageable, and innavigable condition, she gave no notice of these facts to the approaching tow. (3) That, having such a tow, she exchanged the ordinary passing signals with the Britannic, and continued to approach without warning of the dangerous tow she had. (4) In not stop ping the raft by means of the tug at the stern of the raft, and holding said raft over againstdhe bank of the river, and warning, approaching craft of the dangerous charactet: and condition of the obstruction when said raft was above SO'uth-East bend, where it could havereadily been done and said raftput in condition to proceed. The testimony in this case very clearly establishes all that the libel charges in relationto the unwieldy, unmanageable, and innavigable condition of this' raft at the time of the collision. In fact the respondents rather insist, in their presentation of their' defense, that the raft was so UDma!lageableand uriwieldly by reason of a previous collision and age thereto that it could be neither stopped for repairs nor for a more favorable time for descending the river, nor controlled in such a bend as that where this accident took place. The defense seems to rely largely upon their utter helplessness to control the movements of this raft as sufficient reason for not being held liable for injuries caused thereby. This raft was in peculiar shape and form. It was what is known asa "sack raft," and before entering the mouth of the St. Clair river had been prepared for navigating that stream. This was done by forcing the booms of the raft as near together as possible,and then stretching fromsHie\ to· aide heavy ropes to hold the booms and raft in position. Withitftne booms were several thousand telegraph poles-of varying sizes, and of the· value of $30,000. By these guy-lines the raft was put into naJvigable"form, and is described as being 'about 800 feet long and 400 w1de1.iJF1futhissnaIYe,;;and under the cOl1trolof a sufficieat: number of

BENHAM 'D. THE NIAGARA.

tugs, the raft might have been safely towed down through the river; but it appears from a libel filed by the Mackinaw Lumber Company against the Kitty M. Forbes and the schooner Mabel Wilson, in the district court of the United States, at Detroit, that on the 25th day of August, 1888, the said. Kitty M. Forbes and schooner Mabel Wilson collided with said raft, first near Faun island and later near Harson's island, in the St·. Clair river, and puned said schooner through said raft, "breaking and widening out the same, and thereby breaking said booms, caused the loss of 4,000 of said poles, and rendered said raft helplEss, innavigable, and unmanageable, in which condition it passed down the St. Clair river." This description of the raft, made by the owners themselves, is not exaggerated. This testimony shows that after the collisions referred to the guy-ropes were all broken, one of the booms 011 the port side of the raft was broken arid the other driven under the poles so that they projected over the port quarter of said raft in a tangled and dangerous manne)'. The raft, at its ",idest point, is fixed by some of the witnesses at from four to six hundred feet. In thiseondition the raft proceeded upon its journey, and at some points in the river substantially occupied the whole channel; and in this coridition it approached the South-East bend with the knowledgethat vessels were liable to meet it at almost every point of the river. The mate, wh'o was in charge of the tug Niagara at the time of the collision, admits that he had not examined the raft to ascertain its condition after thecollisioD with the Kitty M. Forbes, neither had he been advised by the rear tug, or the man in charge of the raft, of the damages arising from sard collision. Seeing the Britannic and her tow approaching, he says he werit first to the port side of his tug, and looking back saw the port side of the raft dragging along the rushes on the Canada bank, and then, going to the starboard side of the tug, he says he remarked to the watchman: "That fellow [referring to the Britannic and tow] can get through there. There is a hole right through there." The master's characterizing the passage-way as a "hole" is significant in itself. I mmediately he sounded two blasts of the whistle as an invitation to the Britannic and tow to approach. It was clearly the duty of the commanding officer of that tug, before the signal was to know that there was a sufficient space upon the starboard side of that raft to permit that tow to passin safety. His signal was an invitation to the steamer to approach, and a notice t(). her that in the judgment of the master of said tug there was sufficient channel for the tow to pass in safety. Without undertaking to determine here the legal relations of the tug Niagara and the tug Saugatuck, assisting in navigating that raft atits rear end, or the agent in charge of that raft, I am clearly of the opinion that, primarily, it was the duty of the Niagara to know that a sufficient space in the channel was unobstructed and open to the tow to pass before the two-blast whistle was given. I am just as well satisfied from the evidence in this case that there was not a sufficient space to have justified the master of the tug in inviting the Britannic to pass. It was clearly his duty, under the circumstances, to have given' a danger signal the moment the head-lights of the Britannie came in view. That would have been the safe and seaman-like course to pursue. With such a danger signal the Britannic and her -tow'could

REPORTER,
,!

vol·.

ljafyl¥: Eitopped. .bend at several where the raft could without danger. But it is claimed by the proctors for the .: U.1at the Britannic had notice in factor the un,uJanageabie and this, r,aft, and that it was down the p:i the whole . This notice it is not the agent oftheraft, but that it l'Yasn¢ice..[given voluntarily by masters of vessels who passed the l the river,: and it does. appear from the testimony in this Whitney, !passing down, had notified the master of the that was coming qown the river; but it was of such a and positive char· and other vessels such a de. ,acter t\lil.' togive the oftpe raft as to identify it from other on the river. It notice of such as to justify. thl;l respondents in claimthat Britannic opgpt to hav,e observed that notice, and disrePfdeqtlle sigpal given by the Niagara, as the vessels aphad aright to suppose was an iIlvitation fp'fPacheq,w.l:1ich the notice coulq ,puss,with safety. When .the Niagara pursued t:lter qown ,with, :therllft in. the condition described, she (took that follow.from suqh a dangerous nQth\J;lg in the Il,lW to prevent qer making the atat ,qllrown risk and a!1d every injury and fl()s!J<;lccasionedby the. of the raft ,me :ought in jllstice tq ,llilY. I think, under, all the circumstances de. l;>y .testi;ID9QY this, C4se, that. the master of the Niagara . with qis. jonr.ney. ,He is especially for in sounding the danger.signal, or in not giving senf!illg tugjp., advance. of him, and at. asufIicient distance .to Ilotify vessels of raft Qe had in tow so as to enplaces as thf'lrlver bap.k afforded, or ,aqleJhem to lll:le],r such the width of the river would it. safe for;allconcerned ... lfthere had been a reasonable channel side .of tlW,raft,thrpugh which the Britannic and her t9wcquld have passed wi,\! safety if they had skillfully managed their iti xnight theu be Proper to the claim now that this ,was. caused by, ,the, want of c\lJ:e au the of the Richards. the master of the deliberately invited the Britannic ·toAryher luck ill getting,through he called>a "hole," he cannot .lj\qwq!!1ixn a sJight sheer rfchallge in the course of any of the tow. which .he :sMuld have known was ,probable, ]f not inevitable, because of the channel througq which he induced. ,the tow to pass, as havthe cqllision"cqmvlainedof. As I have before stated, ,the of this9011ision the innavigable ,and .character ,W, that .rl:!-ft, . out and substantially .OC,the, WhQle char:mel/i)f the river, lJ-lld in the Niagara,lmder such Britannicalldhertow ,to pass under.the misof two QI/ls41, which in fact a notice in judgJU.ellt, of the master i ,of the Niaga,ra the conditions for passing were ill, .. ,the libelant to, recqYlT in
j.

LARSEN V. THE MYRTLE.

this case, and I do not consider it necessary or proper to -consider ihe' other defenses relied upon. 'It may not be improper for the court here to remark that in view of the great value of the tonnage daily passing through these rivers and canals connecting our lakes, and in the absence of propet'legislation, tugs and parties in charge of rafts must be held to a high degree of care,-in the first place as to the proper construction of the rafts, so as to make them manageable and navigable, and in the second place as to propet care and diligence ill transporting them through the lakes and rivers,' with reference not only to time and character of the weather when they shall undertake to pass through, but also with to their proper handling when actually making the transit. I have submitted to Capts. Kellyand Nelson, the nautical assessors, who kindly S1it'with me in this case, my conclusions from the testimony as to the space in the channel between the starboard side of the raft and the American shore through which the Britannic and her tow were invited to pass, and also the dimensions and unmanageable character of the raft. and upon these facts, as established, have asked their opinion as to whether the channel open to the Britannic arid her tow was'reasonable and sufficient, and whether, under all the circumstances of the' case, the master of the Niagara managed his tug in a seaman-like man-' nero They have answered both questions in the negative, which adviee" fully meets with my concurrence. A decree may be prepared for the libelants in accordance with this opinion. and a reference to H. F. Carleton, as commissioner of the circuit court, to take testimony arid sess the damages. .

LARSEN et· al.. t7.

THE

MYRTLE.

(Df.8trict Oourt,N. D. llUn0i8.

October 20, 1890.)

L

VESSELS ApPROA.CHD1G ON. !; About 1 o'clOOk ot a clear'morning, on Lake Miclfigao, the schooner'L.,ctOS6-· hauled on the starboard tack and headed S. W., sighted and was seen .by the schooner M., headed N. by W., with the wind free. The M. put her beI.iIJ port, and let go ber main 'sheet. and swung six or seven points to starboara. When the vesp.els were five orsil[ leol':ths apart, the L. starboarded and swung to port, , until she was across the bows of the M., which struck her forward of the, fore rilS'c ging. Beld that, whether the vessels were end on or on oonverging lines, the L. should not have starboarded, and the collision is chargeable; to her fault. SAME-INSUFPTCIENT LOOKOUT.

9.

It was negligence to allow the wheelsman of the L. to go below after the II; was sighted, and to send her lookout to the wheel, leaving the captain, the,only C)ther man 00 deck, to perform the double duty of oftlcer of the deck and lookout. . ' ' .
"1

In Admiralty. 8ckuyleJr k Kremer, fOf libelants. W. 'J1.Condon, for respondent.
· 'I

BLODG:F:TT, J. Libelants, as owners of the Bchoonet Lookout;' bHng', this suit to recover ,damages sustained by' their schooner from a collision i