THE
MIRANDA.
809'
Church Church, for complainant. " " George H. Knight and Hill, for defendant. Before McKENNAN and BUTLER, JJ. PER CURIAM. We do not find anything in the state of the art that would justify us in declaring the patent in suit invalid. It is therefore sustained. The infringement is clear. A decree will therefore be entered for the complainant, with costs.
THE MIRANDA.
JOGGINS
RAFT.
LEARY ".THE MIRANDA.
NJjlW YORK, N. F. & H. S. S. CO., Limited,,,, LEARY. (Circuit Court, E. D. New Y01;'k. June26,,181l0.) The owner of the steamer ,¥iranda contracttJd,by a written charter-party, to tow e: large tatt'of logs by s.eafrom Port Joggins; Nova Scotia, to New York. The tow leftPortJogginson l the6thOf December, 1887. On the 18tb, in tbe midst of a heavy gale, the towing bawsers pa;rted. The steamer lay by the raft for a time,and then , started fQrNew York, arriving thereon the 22d.:: The raft became a total loss. SUit , was 'bro'u'ght to recover for the loss of the raft, and a cross-action to recover the towage mones 'under the contract. , The raft-owner claimed various faults in the Mi'randa: (1). That the original contract had been mOdified by an agreement that the raft should be towed to Eastport for orders, and not directly to New York, ,which mqdification had been violated. , Hetd, that such agreement was not proved. (2) 'That the tow was taken to sea against the protest of a representative of the raftowner aboard the Miranda. Held, that the charter-party contained no provision which gave any orie power to direct the master of the Miranda where to go, and, ontheevide,nce, the master committed no breach of duty in going as he did', for,at the time be made s1).cb determination the weather was fine and the danger ota voy-, age to New York was not eO obvious as to tnake the attempt negligence. (3) That the contract was violatedwhen the master determined to go ontside Nantuqket . sbolj.ls, instead of througb Vineyard sound. Held tbat, under the then known facts of the, avai,lability of Vineyardl\ound fortbe passage of such a tow, it was nj) breach of tbe mMter's duty to omit to go through that sound. (4) That the master's failure 'to keep near ports of safety caused the ipss. Held that, under the conditionof weather which existed when the master determined to go outside, such failure of duty. (li) That the,Yiranda had insufficient hawsers and ,stores. aild, that such insufficiency was not proved. (6) That there was fault in , not sooner sending the Miranda out again to look for the raft after of the steamer at New York. ,'Held, that this was no fault, as by the time the steamer's necessary repairs were finiab.ed it had become evident tbat further searoh was use· iess. , The libel for tbeloss of the raft was therefore disJ;J;liSlled, and the cross-libel fol'the towag,e money sustaineq. Affirming 40 Fed. Rep. 533. ,
In Admiralty. On appeal from district court. See 40 Fe4: :Rep. " , Action by Leary, owner of a raft known as the "Joggins Raft," the,steamer Miranda for negligence in towage, resulting in the losll,of tberaft. Cross-action by the owner of the Miranda for towage
m6neyi' '.
,Ona-ppeal to the circuit Qourt iIi the case ofLearv v. of the circuit ju.stice were follows:
: "
, '
as
,.'
FEDERAL !IUllOORTER,'eVOl.
43.
. .:' ,'" , , " , \ of 1887,,1\ raft ,was constructed at Joggins, Nova SCQtia, ,01;1 ,thesho,ra. Qf of Fundy, for the libelant, James D. Leary, Ilndet'the silperfntimdence of one Robertson, W . ..,.,a in. . ..ofi .Of., .. tb. e an}. ..t.s .. . T.;ll. e. r. a. c.o.nsisted of 21;t)uOtUund timbers, ranglllg from 10 to 30 Inches In dlametex: and from 35 t'o'?Ofe(lt 'in length, aDd,'contained ilia,1l '31000,pOOfeet oft/mller. " It weighed (j,J5QOitoos"It ,W8IP525 feet long, aboUt 33 'feet high /lind 50 feet beam,tapering to a diameter of 15 feet at each end. The raft was: built In a cradle on the shore under a patent owned by Robertson, and was designed to be towed to New York and there to be broken up, as an economical method of transporting the timber of which Itwail'cons'tructed. Through the center length of the raft was a chain, from whicp at stated intervals smaller chains ,radiated to the circumference, andattbl!rcix:qumfel'ence each set of radiating chains was bound together by another chain encircling the raft. These sets of radiating chains were abo!1t15 feet apart,. .' Tile design was that the raft should be towed by the center cbain. Anystrain put upon the center chain, either at the forward tmd or, the after end, ,wastl'ansmitted through the radiating chaiIls to the outside chains, so sElrved to ilind together. The chain,the more closely bound WaS the raft. . ' . ,. " ". '. '''. . "Second. The Miranda is an iron steiuli'er of a registered tonnage of 734 tons, her length Is 220 feet, her beam 32 .feet, her depth 2.4 feet. She was as . 8 fre.ight b.U.iit'. In.". E.n .... ,d." .in ·.1.8.,8. '.Il.n.i1 .tbereaft..er . passt'ngex: 13') ,1'lew Her Iiw,¥Qrk . ... ,.' "Tllird.The:raft Was lauD'cMdon the15tbof November,1887. 'On the 9th of ti:lI,'pugh a broker, to 'Bowring & Archfo,rto",jng,',the raft from.Two Rivers or St. Johnll, New Br:unswick,to iNewYork. and after that date ,tilere' was Borne negotiaticm 'between the libelatttand Messl's. Bowrinlt looking to the euw1oym:ent ot Miranda, then at. HalIflJ,l; f()rtlteservice, in Proposed la.unch being a success. 'lI'hese negotiations failt'd, the the 16t:h of November, 1887,8 ib to-wit:. . , n'laqethe lQtlHlay ,Nov., 1887. between Bowrmg & cOMhe Hr.str. Miranda, of 7BHons D.Leary, of N. Yi". OWl1el"lot agent ofttIelog'raft 're<leutly in Nova. Scotia, &, Ar<;hibilld hereby to charter the ·lografit from St. Johns, N ·. ,B·· or other safe port. inN.,lk;orNova Scotiawberethestt.:cl;ln ,alWays lie to the port T."at the said J.D. :pay said Bowring & Al1Qhibald for the use of thestr. Mirallda:tbe'8um tbree thousand dollars ($3;000) U. S.currency for towage of said in N:.8; otN. to the New York, payable In New York on dellvl!l'y of saId log 'raft. Should thl! 10j;t raft get seltrc/h, for raft hj:lr,a,np p,tll,kaS her in adrif,t, tow;' or until 'ghe is Ordered dpslst 'Oy 'chaiterers' i'ephisen tat;] veson board said str·· or, In the event of no Ruch representati ve being on board, until the captlliin In'case the steamer,finds llhe raft, the str. is b,e pl:lill tIle rate of; three ,hundred dollars ($3UO)'perday additional or ' prOp.ol't.i,oY:,1 f;of ,aqy, pa,rp ,w ng. .SIIQuid be lost, st.r· . shall not receIve amount lIamed for towage, but shall be paId at the of three dolh,rs($30nl?er day every Jlartof' a day*,frOtu tlie tllne she 'leaves. said port In N. B. or N. S. alJ' , above, until she anives at'N'ewYork;·· 'It is'ag'ree<1 thiltcMrtererrilllY have" "First. During l
"In this case I find the following fact!!:: '
*"
"to
',rBE'
said st'r., whose passage wtIl be'free, and tbe om:cersand crew shall render all the assistance and facilities that may bereq\lired -,for the safety of thesaidJog-l'afti. aUberown port charges, -and to provide towing'lines, only. ,Demurrage, twohutldred and fifty dollars ,($250) per.:day, should steam'el1 be detaine4at said port in N. B. or N.S. · waiting for raft.· ,It is understood and hereby agreed·jthatthiscontract is ,eompletedon the part of Bowring & Archibald when; said log raft has'been deliveredin any part of the port of New York. to have a lien on ,said l0lt raUfor towages and other services as abovej'anll for demurrage if . incurred., Penalty lor. non-performance of this contract, estimated amount ,of. damages/ ;, , '. " "Mr. Leary was at,the·,timeabsent from ,New York,' but 'after his return, and 'before) the steamer sailed: from New York, the clause, ';It lsagreed that charterer may have arepresentaUve on bOa.rd sald str., whose passage,.m ,be free,' was: altered to read, 'It is agreed cMrterar may haverepresen tatives'oil :board said ,steamer. :butnotexceeding, three.wh08e passage ,will be free.' " ' ' II Fourth.,' At the timetheiOll3rter was made' the ,Miranda was on a voyage Shearrived in New YOllt on!tbe 21st,ofNovembel', and at once commenced taking on board specialeqUipment for the tOWing :of:tbe,taftl! i1:Thi9 equipmenttwMftirnish-ed by Bowring' &, Arohibald ' u'pon :,ooDSuitatiotlwitb Leary,ano: en&' Littlefield, who'ws&introduced to Bowri.ng & ArChibald :byLeary as his representative woo ·Later. uiK>n, Leary!s"8uggestiotl thath'emight desire'to. have one or twotnen '. accompanycLittlefield. the charter wail ;tnodifiedas' ablWe noted. Bowring i&; .Archibald oomplied in all particulars witb the suggestions. made by Learyal'\d Littlefield., The equipment for tow-ing: con:sisted 'Of 3U"hich manilla hawser. -200fath0Dl8long; not elitirely new: alO-in;chmanilla: hawser, 1.000 feet lorlg, Dew; a '5-inch wil'8hawser. 450 feet of which pro-which] 'l euredr bY'b'lre. from' the Merllitt 'WreckIng Campany: a' new 10-inch manilla ;·ha-w8flr;.600feetJong, purcMsed by BowI1ing & Arcbibald'in New York; the 'amp/s9.inch manilla,:hawsel, :540 feet'long, which had 'neverbefotebeen HJseo;"Urtd·tbe ship's' haw&tl'.,whicb bad' never beft.lt'e:been ,'used. : Besides these/there waS a supply 00fisbaekles lind chainS, seleetedby ,LittJeJield:, at the expense of, the ship. Tl}esize and'i1umber of hawsers was ·far in, excess of that originally proposed by .Leary/ and: every: requil'emt>nt or suggestion made by him in respect to increasing the eqUipment was accepted Ib)'Bowlling & Archibald. 'The steamer.'s 'equipment 'was completeands'uffi, " ' 1 :' cient. j" Fiftk. Littlefield had been a sbip.master; 'arid had superintended·otber towing,opellaLions.for Leary., ,Littlefield proposedtha'tthe towing should be done by three hawsers"one'runliing from a ,bridle over the stern.()f:the Miranda to the forward end of the rltft, andoneruuning from each quarter of the Miranda ,to the sides ofthe·raft. With tl)is' systE'm of towing in'view, certain timlilers were takehonboard at New York!to strengthen the' after-'Chocks of , the steamer.' It was arrlli1lged· that the' steamer should proceed from New ;York to the 'Bay of Fundy in ballast, but. upon Leary's suggestion that sbe · would ,not tow well unless sbe was fUlly three.quarters loaded, it was arranged ·that sbe should thel'e take (largo or ballast, to .glve her thereqnisite stability · fortowing;befote proceeding to the raft. Totbateud a charteI' was made with King: & CO. -fot a cargo of plaster to betaken on board at Windsor, providedthe.master of the Miranda should ·find Windsor a proper place for his vessel to enter..:To provide against thecontingency·that the plastel1charter fail; Leary gave to ];Jow-ring & Archibald letters ot introduction toJBob· as&lst the master in, .ertson arulione'Barnhill, requesting them .. i1!such .:, Ii !:.I,'
,a.teptesentativ'8 on board
FEDERA:L REPORTER,
vol. 43.
The steamtlr left New York in tbemorning of November 23d, Lit. being on board. and. after a voyage made long by bad weather and , hl!"'YY Cogs, reachedHantsport in the Bay of Fundy on November 28th. Tbere the"master foundthat he could not procure a cargo of, plaster within a reasonable time, and, afterlpakillg inquiries by telegraph for other cargo, proceeded to West :Bay, Pal'rsboro; to take coal. He arrived at West Bay, Wednesdl\y"November 30th, and there took on ,board 450 tonsoflloal, which were lightElr6<HQ him by the.schooner Dav.ida, there not being sufficient depth of watertQ permit the ,steamer to go up the river to the -coal wharf. The coalingWlloscompleted at midnight of Monday, December 5th. While the steamer was lying in West Bay the master procured other timbers from shore and servicefrom shore,' t,o still further strengthen the stern choaks. , ' "Seventh.? On Sunday, December4tll, Hobertsoncame on board the steamer, ljond, the plans that had ,been made for towing the raft, announCed.Jhat, owing ,to the peculiar construction of the raft, ,the proposed -injurious effect, and would assist in 'tearing the raft to pieces, and that the towage must be entirely by the center chain. some ,conference With Littletield, this-system of towing was adopted; the Peculiar constructIon of, the raft, it was t,he propersystem.· ; "r. ,'tE:(gkr$h.The.Mirandaleft West Ba.yat 1. A. M.of December 5th,and IlMehed Port Jtlggins at.7'IA.M. The raft was then lying at anchor, drawing njlletaitJ),eCeet·. Ti,e work of getting up th'3 raft's ancborand fastening the of the 6th and the 7th. and was' nptcompleted until .',rb;ur,9da.ymQrning, December 8th. Tbemaking fast of theraftto the steamer Was U.obedson's orders and directions, the work being, performed by the cl'ewof the steamer .and by men employed from the sl!ol'eby Rober.tson. 'As maqe up for towing, the 14-inch I:u,wser was shackled to the: forward end ,of the .raft's center chain and carried to the port quarter of the Miranda·. and thence made fast around her mainmast.,' ThiS ha wser carried the"W:eigbtl of the ,'raft. .The after-end of theran'seenter chain was led over; the top.,QUhe raft, and was sbackledby means of intermediate steel hawsers' and.. chains to the 1O.inah manilla. hawser which led to the Miranda's ·starboard,quarter. , Tllis baW8el' was carried and was intended to take a strain 00IY111;tl1e event of the principal hawser's breaking. The raft bad no rudder orllteeringapparatus, and carried no crew. At night it carried no lights. I. '. - , . '·'lVintlJ,;()ntbe 8th of December the steamer set sail from Port Joggins with the l'aft in tow, and on Friday morning, December 9th, was oir St. John. Atthat point the hawsers fouled. and Robertson then suggested that the raft belialfen into Eastport and the voyage to New York be abandoned fIJr a tix:o.e,Jmt, after consultation with Littlefield, an.d on the hawsers being cleared,lIoppr,Qved. $lle prosecution of the. voyage to New' York. The steamer continlleddQwn ,the Bay of Fundy, and at the closelof the day; the weather being selected thecour86 to sea outside of Grand Manan, instead of pl{ssing .petween Grand Manan .and the main-land. Two days later bad, W.eatherca1ll8.on, with strong.w-inds frolllthe southward, making a sea heaVily, and the raft dragged the steamer, during in wni<:h this storm, ten miles 'bacj{ on her course.. On Monday, the but on Tuegday, the 13th, there was a strong the 12th, north·west'Windand a high C1'oss-sea. On Thursday, tile 15th, the weather grew heavY,.8<!ld·at midnight it was blowing a gale, which continued on }'ddIlY, theJ.6t.h,' tolle steamer rollingrails .under and the Bea breaking over the raft.- 00 Friday, momi ng, aud before the height of the. gale, the steamer .!ln4:,taft bAd, re.llOlieda point within wiles of Block: ,island, but then were driven more than eighty miles further out to Stia, 'the steamer. being
318
powerless to control the raft. On Saturday, the 17th, the wind moderated somewhat,and at noon the steamer resumed her course to York; but later in the day she was struck by another gale, which, by,the morning of Sunday, the 18th, had grown toa hurricane. the wind blowing at times at the rate of over seventy miles an hour. On this morning'Captain Leseman, her master. was on the bridge, and the storm was at its height; the wind was from south-south-west; and the sea was running completely over the steamer and raft most-of the time. About half-past seven the steamer's engines were slowed, and a few minutes Jater the port hawser broke. The strain then ft'll on the starboard hawser. and that strain tore out the bitts of the vessel, to which it was fastened, and tore away certain portions of the deck of the vessel, and the raft was· free. A small portion of the starboard ba wser was saved by cutting it as it was running out after the bitts were torn out.. All through ·that day the storm continued with such severity that the steamer could not resume a course, but lay hove to. Her crew was exhausted; her hawsers were gone; her bitts and decks weretol'll; her mainmast was strained. It was determined by all on board the Miranda, inclnding Robertson ··and Littlefield, that the steamer should go to New York. She arrived at Whitestone, Long Island sound, on December 20th, and came upto New York two days later, and then underwent repai.rs, which occupied a week or ten days. She was not itJcolldition to go to sea or to search for tha raft until these repairs were completed. but on the 21st of December the United States govern· ment sent out their ship :Euterprise, under command of Captain McCalla, to search for the raft, and to bring it into port, or t·o lie by the raft and warl1 vessels of it as an oostruction to navigation. The Enterprise sailed from Brooklyn at 6 P. M. 01' December 21st, went out through Long Island sound, and on the 24th of December found sutlicient floating logs to assure her that the raft was broken up.· On the 25th of December the steamer Missouri, bound on avoj'age from Baltimore to London. fell in with a field of logs from the raft, extending as far as the eye could reach, and her course lay through this field for live miles. The libelant also sent out the steamer Morse, butllhe found nothing but drifting logs. "Tenth. The Miranda was tight. staunch, and strong, was fully manned and equipped fortbe service which she undertook, and was fully prOVisioned. She prepar idfor and prosecuted the voyage with due dispatch. The service was a novel one. The enterprise on the part of the libelant was experimental and specu/ative,and without precedent. In performing the service the master of the Miranda exercised his best judgment. and he, with his otlicers and crew, were at all times diligent and attentive to the reqUirements of the situation. "Eleventh. In taking a course to sea, on leaVing the Bay of Fundy, instead of following the coast. the master of tbe Miranda acted upon his own bast jUdgment. after consultation witb Littlefield, who agreed with him that SUCh was the better course; and, considering the size and weight of the raft, and its influence upon the steamer in case of storm, it was prudent and proper to proceed to sea instead of hugging the shore. "Twelfth. In not going through Vineyard sound witb the raft the master acted npon his own best judgment, formed after consultation with Leary and Littlefield and Bowring, in New York, before leaving for Nova Scotia, all of whom agreed with him. And, considering the draught of the raft, its weight, and the fact that it carried no lights, and the prevalence of fog in Vineyard sound, it would not have been prudent or proper to attempt to take the raft through those narrow waters. "Thirteenth.· The raft was lost through the perils of the sea and the inherent difficulties of the enterprise. and withont any fault or negligence or .omission on the part of the claimant in the performance of its duties. "On thefoJ,"egoing facts:! find the following conclusions of law:
FEDERAL'UOOR'J3l:R ,vol.
48.
rrhe' libelant,baving failed to prove that the 10$S0f the raft ,was tbe:dltlltlt and'natural result" of any want of reasonable care, and skill on the is not entitled to l-ecover damnges, in this action. "seoOnd.; Theclaimllnt'isentitled to a decree of Otis ,court dismissing the libelj&luJ.lfol' its costs in the district court taxed at &814.72, and fOr its costs in' this,cmut, to be taxed.,!"
the ip)hecase of lV'ewYdrk!N. F. & H. S. S. cCb(:, limited, v· Leary the tindingil of the circuit justi:ce were as follows: 1 find the following facts: , :"Fit'.tt. Dudng the spring" summer" and. autumn of 1887, a log raft was con,stl'dctedat:Port Joggins, :N;o:va Scotia, .on. the. shore, of the Bay of Fundy, forithe:appellant, James D.Leary, under the superiJ:1tendence of one Robertson, :w11O' bad an interest in tbeprol:lts oithe enterprise; The raft consisted of round timbers ranging from 10 to 30 inches in diameter and from, S5 'tcI'70: faet in length,andcoDtained. in all .3,000,000 feet of timber·. It weigh8t}i(j,liOO tons. It,:was525 teet long, about 38 feet high, and 50 teet besJnitaperingto a diameter of15 feet at each and. The saftwas, built in ,8 on/the 'shore ,under a :paten'triwned by Robertson, and was .designed to. beWwed,to ,New York aDd there to be, broken up, as an economical method ofttanspdrtlngthe timber i of which :it was constructed. Through the center lewgth'OHhe taft was a chain, from Which at stated interv,als smaller chains radiatecf'tO'the circumferenoe. and 'at,the circumference each set of radiating another'chain encircling the raft. These sets of radiatlilg chains were ahout 15 teet apart. The design was that the raft by the center chain. Any strain put upon the center chain. I!ithel'st the forward end or the nfter end. was transmitted the radiatlngchliinsto the outside chains,and so served ttl bind the raft together. Tbe beavier:the strain upon the center chain, the more closely bound was the ' is an iron steamer of a registered tonnage of 734 tons; her length is 220 feet, het beam 82 feet, her depth 24 feet. She was bumP.. in 1884. and, thereafter was owned and maintained as a freigh41:a.nd'passenger steamer between New York, Newfoundland. and Nova Sllotillby'the libplant, a British .corporation dUly authOrized to carryon such btlsinesa. Her agents in New York were Bowring & .Archibald. "ThiTi:tTha raft Was lanncbedon the 15th of November, 1887. Ontha 9th of'November the appellant applied through a broker to Bowring &; Archibald, to looDsidera proposivion for towing the ,raft: from Two Rivers.or St. JOhns,. New'Brunswick, tQ New York, and aftet that date there was some negotiation Bowring & Archibald looking to the employment of the steamer Miranda, ,then at Halifax, for the service, in the event of the proposed launch being a success. These negotiations failed, and after the launching of the raft, and on the 16th of November, 1&!7, a charter-party was madeln the terms following, to-wit: ' " the 16th day of Nov., 1887, between Bowring &; Archibald, agts. oithe Br.str. Miranda, of 734 tOilS reg., and J. D. Leary; (jf ,N. Y. ;ow ner or agent of the log raft recently. launched in Nova Scotia, witnesseth, that ,the sa.id Bowring & Archibald hereby agreeto oharter. the said str. Mlranda'totow'said log raft from St. Johns. N. B., or other safe port JhN. B. or Nova:Scotia'whel;e the str. can alwayslieatloat,totbe port o,f New York, on the following terms and conditions: ,That tbesaid J.D. Leary sball pay to the said iDowl'ing & Archibald for theuserof the str. Miranda the sum of three thousand dollars ($S,OOD) U. S. ounency: for ,towage of said log raft from said safe port in 'N. B. or N.S. to the port of New York, payable in New York on delivery of said log raft. Should the log.raft get adrift, str.
"'.l'BE MIRANDA.
MiraJ¥ia to1lieareh, for raft until she finds her and again tJ.kes bel' in tow, OJ:' until she is"ordered to desist by 'charterers' representatives on board said s,tr" or in the event of no Buek'representative bl'ing ,on board, until the captain thinks it advisable to desist. In calle the steamer tinds the raft thestr. is to be paid at the rate of three hundred dollars ($300) 'per day additionalorpropol'tionaHor any part of a day' while searching. Should raft be lost. str. shall not receive amount named for towage, but shall be paid at the rate of three hundred dollars ($300) per day for each day, and proportionally for every part of a day; from the time she leaves said port in N. B. or N. S. as above,.ontil she alTives at,New York. It is agreed that charterer may have a represent.. ativeon board said str.· whose passage will be free, and the officers and,crew shall render all the assistanceand·facilities that maybe required for the safety of tile said log raft. Steamer to pay all her own port charges, and to provide t<lwing lines only. Demurrage, two hundred and fifty dollars ($250) per day, B'houldsteamer be detained at said port in N. B. or N. S. waiting for raft. It is understooil 'and hereby agreed that this contract is completed on the part of Bowring & Archibald, when said log raft has been delivered in any part of the port of New York. Steamer to have a lien on said log raft for towages and other servioesas above. and for demurrage if incurred. Penalty for non-performance of this contract, estimated amount of damages. ' "Leary was at'the time absent from New York, but after his retnrn, and before the steamer sailed from New York, the clause, · It is agreed that charterer may have arepresl'ntativeon board said str., whose passage will be free,' was altered to read, · It is agreed that charterer may have representatives on board said steamer, but not exceeding three, whose passage will be free.' II Fourth. At the time the charter was made the Miranda was on a voyage from Halifax to New York. She arrived in New York on the 21st of November, and at once commenced takinK on board special equipment for the towing of the raft. This equipment was furnished by Bowring & Archibald upon consultation with Leary and one Littlefield, who was introduced to Bowring & Archibald by Leary as hiB representative who would accompany the raft. Later, npOn Leary's suggestion that he desire to have one or two men accompany LittlefieJd, the charter was modified as above noted. Bowring & Archibald complied in all particulars with the suggestions made by Leary and Littlefield. The eqUipment for towing consisted of a 14·inch manilla hawser, 200 fathoms long, not entirely new; a lO-inch manilla hawser, 1,000 feet long, which was new; a 5-inch wire hawser. 450 feet lang.-all of which were procured by hire from the Merritt Wrecking Company; a new 10-inch manilla hawser, 600 feet long, purchased by Bowring & Archibald in New York; the ship's 9-incb manilla hawser, 540 feet long. which had never before been used; and the ship's 3!-inch wh'e hawser, which had never before been used. Besides these there was a supply of shackles and chains, selected by Littlefield at the expense of the ship. The size and n umber of hawsers was far in excess of that originally proposed by Leary, and every reqUirement or suggestion made by him iurespect to increasing the eqUipment was accepted by Bowring & Archibald. The steamer's equipment was complete and sumcient. "Fifth. Littlefield had been a ship-master. and had superintended other tOWing operations for Leary. Littlefield proposed that the towing should be done by three hawsers. one running from a bridleover the stern'of the Miranda to the forward end of the raft, and .one running from each quarter of the Mil'anda to the sides of the raft. With this system of tOWing in view, certain timbers were taken on board at New York to strengthen the afterchocks of the steamer. It was arranged that the steamer sbould proceed from New York to theBay of Fundyin ballast. but, upon Leary's suggestion that she wonld not' tow,well nnless she was fully three-quarters loaded, it was
FlllDERALREPORTER.,
stabilityfot,towing, before proceeding to the raft. To that end a charter W88 made,witti iKing&Co. for a cargo of, plaster to be taken on board at Windsor. »rovided' tbemastel' of the Miranda should find Windsor a proper place for his vessel to enter.' To provide against the contingency that the plaster charter might fail,Learygave to Bowring & Archibald letteraof introduction to Robertson and one ,Barnhill, requesting them to assist the master in procuring a cargo of coalorlumber, if suchsho.uldbe needed. "8iwth. The steamer left New Yerkin the morning of November 2811. Littlefield being· ou board, and. after a, voyage made long by bad weather and heavy'fogs. reached lIantsport in the Bay of Fundyoll November 28th. There the master found that he could, not procure' a cargo of plaster within a reasonable time, and; after making inquiries by ,telegtaphfor other cargo. proceeded to West Bay, to lake coal: , He arrived at West Bay, Wednesday, Novembet 30th,and there took on board 450 tons of coal, which were ered to him ,by tbe schooner Davida, there not being sufficient depth of water to permit the stearner to go up the river to the coal wharf. The coaling was eompletedat midnight of Monday" December 5th. Wbile the steamer was lying in West Bay,the master. pr.ocUJ:ed other timbers from shore and service from shore, to slill further strengthen the stern chocks. "Seventh". On Sunday, Deceil1 ber4th. Rober.tson came'onboard the steamer, and. upon examining the plans that had been made for towing the raft, announced that'.:owing to the peculiar construction of the raft, the proposed side hawsers would,rhave an injurious effect, and would assist in tearing the raft to pieces, and tll'at thl' towage must be entirely by the center chain. After Borne conference with Littlefield, this system of towing was adopted; and, considering the peCUliar construction of the raft, it was the proper system. "Eighth. The Miranda left West Bay at 1- A. M. of December 5th, and reached, Port Joggins at 7 A. !I. The raft was then lying at anchor, drawing nineteen feet.·'.Dhe work of getting! up the raft's anchor and fastening the tow lines occupied all of the 6th and 7th, and was not completed until Thursday morning, 'Deeember tith. The making fast of the raft to the steamer, was done under Littlefield's and Robertson's orders and directions, the work being performed by'tht\crew of the steamer1and by men employed from the shore by Robeltson.. As made up for towing, the 14-inch hawser was shackled to the forward end of. the raft's center chain and carried to the port quarter of the Miranda and thence made fast round her mainmast. This hawser carried the weight of the raft. The after·end of the raft's center chain was led,over the top of the raft, and was shackled ,by means of intermediate steel hawsers and chains to the 10-inch manilla hawser Which led to the Miranda's starboard -quarter.. Thisbawser was carried!Black. and was intended to take. a strain only in the event of the, principal hawser'S breaking. The raft had no rndder or steering apparatus, and carried no crew. At night it carried no lights. "Ninth. On the 8th of December the steamer set sail from Port Joggins with the raft in tow, and on Friday morning. December 9th. was off St. John. ,At that point the hawsers fouled. and Robel'tson then suggestecl that the raft be taken into Eastport and the voyage to New York be abandoned for a time. but, after consultation witb Littlefield, and on the hawsers being cleared, approved the prolilecution of the vayage to New York. The steamer contin. ued down the Bay of Fundy,snu at the close of the day. the weather being fair, her master .selected the course to sea outside of Grand Manan. instead .of passing, between Grand Manan and .the main-land., Two days later bad ,weather.calIleon. with strong windlil from the soutbward, making a sea in whieh the faft labored heavily, and .tbe raft dragged the steamer. during the continuance of this storm, ten miles back OIl her course. On Monday, the OD, Tuesday, the 13th,there was a strong 12th, thewtatller
Im'shjJed' tbAt sbe should there take cargo or ballast, to give.' her the requisite
:817
north-west wind and a high cross-sea. On Thursday, the 15th. the weather grew heavy, and at midnight it Vias blowing a gale, which continued on Friday,the 16th, the steamer rolling rails under and the sea breaking over the .-aft. pn Friday morning, and before the height of the gale, the steamer and raft had reached a point within sixty miles of Block island, but then were driven more than eighty 14jJes further out to sea, the steamer being powerless to control the raft. On Saturday, the 17th, the wind moderated somewhat, and at noon the steamer resumed her conrse to New York; bllt later in the day she was struck by another gale, which. by the morning of Sunday, the 18th,;had grown to a hurricane, the wind blowing at times at the rate of over seventy lniles an hour. Outhis mo\,ning Captain Leseman, her was on the bridge, and the storm was at its height; the wind was from sOlUh· south-west; and the sea was running completely over the steamer and raft m01lt'of, the time. About half-past seven the steamer's engines were slowed, and a few minutes later the port hawser broke. The strain then fell on the starb9an] hawser, and thatstfllin tore out the bitts of the vessel, to ,which it was fastened, and tore away certain portions of the deck of the vessrl, and the raft was free.. A small portion of the starboard hawser was saved by cy.tting it as it was running out after the bitts were torn onto All through that day the storm continued with such severity that the steamE'r could not resume a course, but lay hove to. Her crew was exhausted; her hawsers were gone; her bitts and decks wpre torn; her mai nmast was strained. It was determined by all on board the Miranda, inclUding Hollertson and Littlefield, that the steamer should go to New York. She arrived at Whitestone, Long Island sound, on December 20th, and came up to New York two days later, and then underwent repairs, which occupied a week or ten days. She was not in condition to go to sea or to search for the raft until these repairs were December the United States government sent completed, bqt on the 21st out their ship Enterprise, under command of Captain McCalla, to search for the raft, and to bring it into port, or to lie by the raft and warn vessels of it as all "ob&truction to navigation. The Enterprise sailed from Brooklyn at 6 P.M. 'of December 21st, went ont through Long Island sound, and on the 24th of De'cember found sufficient floating logs to assure her that the raft was broken up. " On the 25th of December the steamer Missouri, bound on a voyage from Baltimore to London, fell in with a field of logs from the raft extending as far as the eye couldreach,and her course lay through this field for five mil,es., also sent out the steamer Morse, but she found nothing but drif.tinglogs. "Tenth. The Miranda was tight, staunch, and was fully manned and equipped for the service which she undertook, and was fully provisioned. She prepared for and prosecuted the voyage with due dispatch.. The .service was a novel one. 'fhe enterprise On the part of Leary was experimental and speculative, and without precedent. In performing the service the master of the Miranda exercised his best judgment, and he, with his officers and crew, attentive to the reqUirements of the situation· were at all times diligent .. Eleventh. In taking a course to sea on leaVing the Bay of Fundy instead of following the coast, the master of the Miranda acted upon his own best judgment, after consultation with I;ittletield, who agreed with him that such was the better course; abd, considering the size and weight of the raft, and itsinfiuence upon the steamer in case of storm, it was prudent and proper to proceed to sea, instead of hugging the shore. "Twelfth. In not going through Vineyard sound with the raft the master acted upon his own best jUdgment, formed after consultation with Leary and Littlefield and Bowring, in :New York, before leaving for Nuva Scotia, all of "lYbom "And, considering tbe draught of the raft, its weight, Jmd the no lights, and the prevale-!lce of fog in Vin(',yard
FEDERAb 1 Ri!:IiORTER ,'vol.
"fjound, ,it'Woutd; rlOt3
ttr,Ment or proper' to take the raft . ".,Ii. ' ·· or " PhirteenWt.Tberatf,'wa(l6Slttlitougb the perils 'and the inherI ent without any fault' or' !negligenee or omis''8iO'n 'OWithe'pilrt'Of the libelant f1')' tpeperformance of its duties. "On' the I find'tM follOWing conclusion. df law: ..' I' First'. Tlie libelapt. baving performed its contract, is entitled to payment, 'under the terms: of the charter, for twelve days. at $300 per day· .. Second. The libelant is imtltltldto a decree of 'for $3.600, with !lnterest thi!'reon 'from the 27th of' December, 1887, and for its costs in the dis· taxed 8t$98.10, andfbr its costs in this court, 'to be taxed." John Berry, fOJ; James D. Butler, Stillman Hubba'lrd, for New York, N. F. & H.S. S. Co. J
BLATCHFORD,
I concur entirely with the views exjlidge, in b.is opinion in .these reporte¢l In 40 Fed. Rep. and decrees ",lUbe entered m ao,with the thave signed,
Clrcnit
, CAYPBEIlL
v.
THE' FRANK GILYORD.
(.v£8t'Iict OQUrt, W. D. Pennsylvania. July 19, 1890.) SHIPPING-LIABILITY 071
OWNER-INJURY TO EMPLOYB. The libelailt, a deck-hand, 'while at work on a steam-boat, accidentally fell· and injured hill. ).eg.. ,The examined the limb, and thought the hurt was not ., Berioue, and applied simple remec:1iefl. All tbe officere of the boat Bup,poeed it was a eprain. Two days afterw'ards the boat reached Cincinnati. 'Xhe libelant did not aBk to be Bent to tbe marine hospital there, nor for On tbe up-trip, by orders, 'he did Bome light work" but wIthout compulsion. Eleven days after the accident he entered the mariDll at Pittsburgh, and it turned out thatlle had s.uetained partial lateral dislocation of the knee-joint, and he is likely to be permanently disabled. There wall eVi.dence that he did not receive proper attention at the hospital. Held, that he had no cauee of action agaiuat the OWlierI of the boat. ".
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