The S.S. Wilhelm

• Decision Date: 06 November 1893
• Docket Number: 52.
• Citation: 59 F. 169
• Parties: THE S. S. WILHELM. v. THE S. S. WILHELM. VANCE et al.
• Court: U.S. Court of Appeals — Sixth Circuit

59 F. 169

THE S. S. WILHELM.

VANCE et al. v. THE S. S. WILHELM.

No. 52.

United States Court of Appeals, Sixth Circuit.

November 6, 1893

Harvey D. Goulder and Simonson, Gillett & Courtright, for appellants.

F. H Canfield, for appellees.

Before BROWN, Circuit Justice, and TAFT and LURTON, Circuit Judges.

TAFT Circuit Judge.

The libelants and appellants, Emery J. Vance and others, owned the barge or schooner Mears, and filed their libel to recover damages for the total loss of the barge while being towed by the steam barge Wilhelm from Cheyboygan, Mich., to Tawas Mich. The towline between the propeller and the Mears parted in a storm on Lake Huron, a little to the north of Au Sable or Fish point, on the western shore of the lake. The Mears went ashore and was broken up, and her cargo of lumber was completely destroyed. The libel charged that the loss occurred through the negligence of the Wilhelm, and pointed out five faults in which negligence was shown (1) That the propeller was not properly officered and manned.

(2) That the propeller attempted to tow the Mears and the Midnight, another lumber-laden barge, across Lake Huron during a violent and increasing storm, instead of taking them to the only accessible and safe shelter, in Thunder bay, as she could have done without difficulty, and as ordinary and prudent seamanship required her to do.

(3) That after going about and holding her tow, head into the wind, about four miles off shore, and attaining this position of comparative safety, she negligently resumed her course on a lee shore in a furious gale.

(4) In negligently pursuing a course down the west shore of Lake Huron in a thick, driving snowstorm, and with a heavy wind and sea from the northeast, without making sufficient allowance for the leeway caused by such storm and wind.

(5) In negligently turning at full speed into the lake, so sharply as to part her towline, whereby the Mears was necessarily rendered helpless in such close proximity to the lee shore, and her destruction was thereafter inevitable.

All these faults were denied, and after a full hearing of the evidence the district judge held against the libelants, and dismissed the libel. On appeal the circuit judge refused to disturb the findings of the district judge, and affirmed the decree.

It is well settled that every presumption is in favor of the correctness of a decree in admiralty that comes into the court of last resort sustained by the district judge in the original hearing and the circuit judge on appeal, and that the appellate court will not disturb such a decree unless a manifest mistake is made clearly to appear. The appellate court will not reweigh conflicting evidence, though it might originally, upon such evidence, have reached a different conclusion from that announced in the courts below. The S. B. Wheeler, 20 Wall. 385; The Richmond, 103 U.S. 540; The Quickstep, 9 Wall. 669; Newell v. Norton, 3 Wall. 267. With this presumption in favor of the appellees, we proceed to the consideration of the issues of the case.

The obligation of the towboat to the tow is well defined. The highest possible skill is not required of the towing vessel. She is bound to bring to the performance of the duties she assumes reasonable skill and care, and to exercise them in everything relating to the work until it is accomplished. The want of either in such a case is a gross fault, and the offender is liable for the full damages resulting therefrom. The Margaret, 94 U.S. 494-497.

With reference to the first fault charged, namely, that the steamer Wilhelm was not properly manned, there was no evidence whatever to sustain it, and the issue was properly found against the libelant.

With reference to the second charge, namely, that the master of the propeller was negligent in not taking refuge in Thunder bay, instead of proceeding on his course to Tawas, a point 60 miles below Thunder bay light, the evidence was very conflicting as to what the condition of the wind and weather was at the time when it would have been possible to go into Thunder bay, and as to whether there were any indications, upon which a prudent master should have acted, of the approach of the furious storm and gale which subsequently prevailed. Whatever might be our original view of this evidence, we think that there was no such preponderating weight in favor of the libelants' contention that we ought now to reverse the finding of the district and circuit judges upon this point.

We come now to the third fault charged, namely, that the master of the Wilhelm, after rounding to and heading into the wind, did not remain in that position, but resumed his course down the lake. It is conceded by all the witnesses in the case, and found by the district judge, that about 7 o'clock, or shortly thereafter, the tow was struck by heavy squalls from the northeast or east-northeast, accompanied by snow, and that from that time until the loss of the barges, about 2 o'clock in the afternoon, the wind blew a gale from the northeast, accompanied by heavy snow; that about 9 o'clock, when off Sturgeon point, a distance of about 25 miles from Thunder bay light, the Wilhelm, which was heavily loaded with lumber on deck and in her hold, lost her starboard deck load, and that this gave her a heavy list to port, and made her steer badly; that at this time the lead showed her in 7 fathoms of water or about 3 miles from shore that thereupon she rounded to and headed into the wind while her cargo was being trimmed; that she remained in this position for 1 1/2 hours, working slowly to the windward to a point where the lead showed 9 fathoms, when she turned and resumed her course, S. 1/2 E., down the shore of the lake; that as she went on this course for 1 1/2 hours or 2 hours the lead showed that she was shoaling; that she rounded to again, and during this maneuver, or shortly thereafter parted the towline; that within 15 or 20 minutes the tows, which had failed to secure themselves by anchor or by sail, were aground, and were beaten to pieces. An examination of the evidence inclines us to think that it would have been much better judgment on the part of the master of the Wilhelm to have remained head up to the wind when he first rounded to, until the fury of the storm had abated, than to go down the lee shore in search of the harbor of Tawas, which, confessedly, could not have been found in a snowstorm, with the wind blowing from 40 to 60 miles an hour. We think that the chances of saving his tow were very much better to maintain the position where he then was, in which he was able to make headway against the wind, than...