Alaska Commercial Co. v. Williams

• Decision Date: 02 February 1904
• Docket Number: 963.
• Citation: 128 F. 362
• Parties: ALASKA COMMERCIAL CO. v. WILLIAMS.
• Court: U.S. Court of Appeals — Ninth Circuit

128 F. 362

ALASKA COMMERCIAL CO. v. WILLIAMS.

No. 963.

United States Court of Appeals, Ninth Circuit.

February 2, 1904

On April 12, 1900, the Alaska Commercial Company, the plaintiff in error, was the owner of the steamer Bertha, a vessel of about 1,000 tons burden, then plying between Seattle, Juneau Sitka, and other Alaskan ports. The Lituya Bay Gold Mining Company was a corporation engaged in placer mining at or near Lituya Bay, a bay having no port, and rarely visited situated on the Alaskan coast about 130 miles northwest from Sitka, and 40 miles from Cross Sound. The mining company had its men, freight, and supplies at Juneau, and had there a schooner called the Dora B., of about 15 tons burden. The steamer Bertha being then at Juneau, on her regular trip to the westward, Charles Plaut, the manager of the mining company, entered into a contract with Captain Johansen, the master of the Bertha, to take his men and freight and to tow his schooner to Lituya Bay. The schooner was equipped with sails and rigging, but the sails were stowed in the hold, and had never been reefed. The schooner was intended to be used for lighterage purposes in Lituya Bay. Five of the men of the mining company were placed on the schooner by the manager. The remainder, together with the freight, were carried on the Bertha. The steamer, with the schooner in tow, proceeded from Juneau, on her regular course westward, through the inland waters, towards Sitka. On the evening of April 14th she arrived at Sitka. From Sitka she proceeded on her way to Lituya Bay through the open waters of the Pacific Ocean, in a northwesterly direction, along the coast. She arrived with her tow off the entrance to Lituya Bay at about 6 o'clock on the morning of April 15th. The entrance to the bay lies through a narrow channel, about 300 feet wide, inclosed by rocks on either side. The evidence is that it is a dangerous entrance except at slack tide, as at other times the breakers extend across the entrance, and the tide runs with a strong current. Upon arriving at the entrance to the bay the captain of the Bertha made a careful examination thereof, and concluded that it would not be safe at that time to attempt the entrance. He sent for Mr. Plaut, told him of the difficulty, and advised him to have the schooner hauled up alongside the ship, and to have the remaining members of his party and the freight which were on the Bertha placed on the schooner, and to sail the schooner into the bay under her own sails. Mr. Plaut was unwilling to do this. There is evidence that the captain then suggest that he might land his men and freight with small boats from a small cove outside the bay and that this offer was also declined. The Bertha remained more than an hour at the entrance of the bay, and at the end of that time her master decided to go on to Yakutat, which is the next harbor up the coast, and about 80 miles distant to the westward. Yakutat was one of the regular ports at which the Bertha stopped on her westward and on her return voyage. It was stated by the captain of the Bertha and by another witness that Plaut consented to the continuance of the voyage, and stated that as soon as the weather moderated he would sail back to Lituya Bay. The Bertha, with the schooner in tow, proceeded on her course nearly directly west and off shore, and about 10 minutes after 12 o'clock, when opposite an indentation called Dry Bay, the towline parted and left the schooner adrift. There is conflict of the testimony as to the distance from the vessels to the shore at that time. Some of the witnesses estimated the distance to have been as great as 10 miles, others estimated it at less than 3 miles. The steamer made no effort to pick up the tow, but proceeded on her way under full steam, with sails set, and without stopping or slowing down. The men on the schooner ran up a bowsprit or small jib sail. There was a strong wind, blowing from the southeast. The schooner, sailing with her jib sail, followed the steamer, and remained in sight about two hours. The Bertha continued on her way to Yakutat, where she arrived about half past 3 or a little later that afternoon. The schooner was never seen afterwards, except that it was shown that the hull of a wrecked schooner about the size of the Dora B. was seen on the shore of Alaska near Dry Bay, nor was there any evidence of the fate of the men on board, except that the body of one of them was found a week afterwards on the beach between Dry Bay and Yakutat. The defendant in error, who was one of the men of the mining party carried on the Bertha, was by the probate court of Juneau, Alaska, subsequently appointed administrator of the estates of the men who were lost on the schooner. He was appointed administrator of the estate of the decedent W. D. Baldwin upon the request of the decedent's father, who was next of kin. On March 22, 1902, he commenced the present action in the United States Court, Division No. 1, for the district of Alaska, claiming damages in the sum of $5,000 for the death of Baldwin, under the provisions of section 353 of the procedure act of Alaska (Act June 6, 1900, c. 786, 31 Stat. 392). The complaint alleged that prior to the departure of the steamer Bertha from Juneau the mining company, for a valuable consideration, entered into a contract and agreement with the plaintiff in error, whereby the latter agreed to transport a considerable amount of freight on board its steamer Bertha, likewise a number of passengers, and to land the same in Lituya Bay, near and in front of the houses and headquarters of the mining company upon said point, and further agreed to tow and transport the schooner Dora B. upon the same trip, and bring her into Lituya Bay, and drop her near and in front of the buildings and headquarters of said mining company, and further agreed to transport upon the said schooner the decedent and four other employes of the mining company. The case was tried before a jury, who returned a verdict for the defendant in error for the sum of $5,000, and thereupon judgment was rendered. To review that judgment this writ of error was sued out.

Chickering & Gregory, A. K. Delaney, A. Heynemann, and Andros & Hengstler, for plaintiff in error.

Lewis P. Shackleford, John R. Winn, Jno. A. Shackleford, and Piles, Donworth & Howe, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

GILBERT Circuit Judge, after stating the case as above, .

It is contended by the plaintiff in error that the court erred in denying its application to so amend its answer as to set forth the terms of the towage contract. The original answer made no affirmative allegation as to the contract, but contained a general denial of all of the facts alleged in the complaint as to the terms of the contract and the breach thereof. The case went to trial more than six months after the issues were made up. On the trial the defendant in error took all of his evidence and rested. The plaintiff in error after occupying two days in introducing evidence for the defense, submitted to the court the proposed amendment to its answer. The amendment was not verified, nor was it accompanied by an affidavit. It set up as an affirmative defense what the plaintiff in error asserted to be the terms of the towage contract. It stated, in substance, that the owner of the schooner agreed to properly man and equip her, and to put her in a seaworthy condition, and to ship thereon a crew of seamen, who could handle her in case of emergency, or in case it should be deemed dangerous or impracticable for the said Bertha to tow the schooner into Lituya Bay; that upon arriving at Lituya Bay the condition of the weather and the tide and sea were such as to make it hazardous for the steamer to enter, and that the manager of the mining company then agreed with the captain of the Bertha that he could proceed with the tow to Yakutat; that one of the conditions connected with the towing of the said schooner would be and that it was agreed and understood that in case of any emergency the said schooner should take care of itself by its crew and sailing apparel and tackle as aforesaid. The amendment proceeded to set up the defense of contributory negligence, alleging that the parting of the towline was due to the contributory negligence of the men on board the schooner in not properly parceling the hawser. The court denied the application on the ground that the proposed amendment radically changed the issues as already made, and substantially changed the cause of the defense. The introduction of the defense of contributory...