Burr v. Knickerbocker Steam Towage Co.

• Decision Date: 23 July 1904
• Docket Number: 524.
• Citation: 132 F. 248
• Parties: BURR v. KNICKERBOCKER STEAM TOWAGE CO.
• Court: U.S. Court of Appeals — First Circuit

132 F. 248

BURR v. KNICKERBOCKER STEAM TOWAGE CO.

No. 524.

United States Court of Appeals, First Circuit.

July 23, 1904

Benjamin Thompson, for appellant.

A Nathan Williams, for appellee.

Before COLT and PUTNAM, Circuit Judges, and BROWN, District Judge.

BROWN District Judge.

We are of the opinion that the grounding of the four-masted schooner Mary Manning on the westerly shore of the Penobscot river about two miles below Bangor, August 20, 1900, was through the fault of the steam tug Seguin.

The Seguin undertook to move the schooner from the American Ice Company's wharf on the westerly shore of the river, and to tow her up the river some 1,400 to 1,500 feet, to a place where the channel was wider, and there to turn her preparatory to her departure on her voyage. The schooner had an outside berth at the wharf; the schooner Charles A Campbell having the inside berth. The Manning was headed up the river, and was loaded with ice. Her draft was 19 feet 4 inches forward, and 19 feet 3 inches aft. The channel opposite the wharf was about 270 feet wide.

Whether she could have been turned at the wharf is an immaterial question, since there is no doubt that it was proper to take her up the river to a wider place, where it was customary to turn large vessels. There was an abundance of water to carry her clear, and there was no danger of grounding if the Manning had moved directly up the river or out into the stream. Unless the schooner moved in farther towards the westerly shore, there was no danger of touching bottom.

The Sequin had entire charge of moving the schooner, and there was no reason, so far as we can see, why, with the exercise of ordinary skill, the schooner could not have been kept off the shore. The tide was running up the river from half a mile to a mile an hour with a set towards the easterly shore, and there was practically no wind to affect the vessel.

The answer alleges that:

'The tug made fast to libelant's vessel by a hawser over her starboard bow, and started ahead, and proceeded out into the channel, then headed up the river so as to bring a strain on the vessel's bow off shore; that the tug had only proceeded a short distance when the vessel took an unexpected sheer inshore and grounded after she had proceeded about three or four times her length; that the grounding was in no way due to the fault of the tug, but was wholly due to the fault of the vessel in not following in the direction of the tug.'

There is no direct evidence of any fault of the schooner, but, on the contrary, there is direct and uncontradicted evidence that the schooner's wheel was hard aport throughout.

Under such circumstances, the fact that the schooner went aground casts upon the tug the burden of establishing some excuse for the deviation from the usual and proper course.

The Steamer Webb, 14 Wall. 406, 20 L.Ed. 774, is cited to the proposition that no presumption of negligence arises from the mere fact of damage to a tow. In that case, however, the court said (page 414, 14 Wall., 20 L.Ed. 774):

'But there may be cases in which the result is a safe criterion by which to judge of the character of the act which has caused it. Had the ship in this case been towed upon the shoal ten miles north or ten miles east of Handkerchief Shoal, after leaving that shoal for Cross Rip, it cannot be doubted that the fact of the stranding at such a place would, in the absence of explanation, be almost conclusive evidence of unskillfulness or carelessness in the navigation of the tug.

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