La Fernier v. Soo River Lighter & Wrecking Co.

• Decision Date: 04 March 1902
• Citation: 89 N.W. 353,129 Mich. 596
• Parties: LA FERNIER v. SOO RIVER LIGHTER & WRECKING CO.
• Court: Michigan Supreme Court

89 N.W. 353

129 Mich. 596

LA FERNIER v. SOO RIVER LIGHTER & WRECKING CO.

Supreme Court of Michigan

March 4, 1902

Error to circuit court, Chippewa county; Joseph H. Steere, Judge.

Action for death by Amabel La Fernier, special administrator against the Soo River Lighter & Wrecking Company. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

Warner & Sullivan (Goulder, Holding & Masten, of counsel), for appellant.

Alexander R. MacDonell, for appellee.

MOORE, J.

This case was tried before the circuit judge without a jury, who rendered a judgment in favor of plaintiff for $1,900. The case is brought here by writ of error. The circuit judge was requested to make special findings of fact and of conclusions of law. As they state the questions involved, we quote them:

'Plaintiff sues in the capacity of special administrator of the estate of John Roberts, his son-in-law, who was drowned September 25, 1898, while in defendant's employ, by the sinking of one of defendant's boats in the upper St. Mary's river. Defendant is, and was during the year 1898, a corporation organized under the laws of the state of Minnesota, but doing most of its business in Michigan, on the St. Mary's river, engaged in lightering and wrecking, with headquarters at Sault Ste. Marie, where its lighters and other wrecking outfit were stationed, and have been stationed for several seasons. The boat called the Monitor, through the sinking of which deceased met his death, was owned by defendant and used as one of its wrecking lighters. She was 36 years old, formerly a sailing schooner on the lakes, had passed from that to a tow barge in the lumber trade, and at the time of her sinking had been stripped of her sails and sailing rigging, dismantled as a sailing vessel, equipped with pumps, hoisting machinery, and other suitable wrecking outfit, and converted into a wrecking lighter, in which capacity she was used from time to time for several seasons as opportunity offered. This work of converting her into a wrecking lighter was done in 1894, at which time she was overhauled, given new decks and deck beams, some new stanchions and parts of new frames put into her, and some new short pieces of planking put upon the outside. She was somewhat hogged, was a boat of 26-foot beam, 136 feet long and had four hatches, a tonnage of 298 net tons and 314 gross tons, and an estimated carrying capacity of 536 tons. She was an enrolled vessel, and her owners continued to take out the same license for her under the United States laws as she formerly had when a sailing schooner; but she had no propelling appliance of her own, and she was towed from place to place when in use. She is described in her last license as the 'schooner Monitor,' with Alex. McDougal as master. In the summer of 1897, some calking was done upon her above the water line, and her decks were tarred. She was also painted in 1896 and 1897. In the fall of 1897, having been towed through the ice for some distance, by which her calking was somewhat loosened, she was found to be leaking badly, and was allowed to sink at her mooring in shoal water, and rest upon the bottom until spring, when she was pumped out and calked again where the ice had pulled the oakum out of her seams. In June, 1898, it being found that she still leaked she was placed in the dry dock at Bay City and calked over her bottom and three seams above the light water line, 13 calkers working on her for one day. Her planking was of white oak, and below the water line was sound. The cost of dry docking and calking her was $138. She was then returned light to her station at Sault Ste. Marie, and did not leak on the trip back. After her return, some calking and painting was done on her above the light water line. Some of her planking had been patched with short pieces, and in places were dozy around the spikes. Some of her upper seams were more or less open, and the calking defective. She was used only at intervals, mostly in the fall, and had not before the work she entered upon at the time she sunk, been engaged in any work during that season. When not employed, which was most of the time during the summer, she lay in ordinary, unladen, high out of the water, and exposed to sun and wind. No crew was kept upon her, except a watchman or shipkeeper, who pumped her out and wet her down at times. She was equipped with sounding wells, had two siphons with two-inch discharge and an inch steam pipe, two hand pumps, a canal pump, two hoists and engines, and other wrecking paraphernalia. When in use she had no anchors, no boats, no crew list or shipping articles, and no life-saving appliances, except three or four life preservers in one of the rooms.

'On September 23, 1898, the steam barge Orr and consort, Carrington, were aground, iron ore laden, on a shoal in the upper St. Mary's river above Round Island, and defendant's wrecking outfit was engaged to go to their relief. Two lighters, the said Monitor and the Monterey, with about 30 laborers on board, were taken to the distressed vessels in tow of the tug Ruth. John Roberts, the deceased, was one of these laborers, and was hired for and acted as fireman during the trip. Capt. William W. Smith, who was the general manager of the Soo River Lighter & Wrecking Company and one of its stockholders, was in charge of the expedition, and acted as captain and master on the Monitor. After arriving at the wreck, the Monitor lay alongside the Carrington, employed in lightering her cargo. The laborers who had been brought along were put into the hold of the Carrington, shoveling ore into buckets, which transferred it into the hold of the Monitor by the use of her derricks. This work was continued without interruption until about 12 o'clock midnight of the following Saturday, when the stranded vessel floated. In the meantime, the Monitor had lightered and emptied into her own hatches ore estimated by Capt. Smith at 350 tons; there being no exact data of the amount, the tally which was kept having been lost in the wreck. The forward hatch was loaded last, and at the conclusion of the loading she was somewhat down by the head. The water was smooth during the lightering, there being no wind or sea which delayed them, and the men worked steadily night and day for nearly 36 hours, only stopping for meals; but at the time the stranded vessel floated the wind had commenced blowing some from the northwest, and it was deemed best to take the Monitor to a less exposed position for reloading the cargo of ore into the Carrington. About 3 o'clock Sunday morning of September 25, 1898, the Monitor, in tow of the tug Ruth, left the Carrington for down the river with the loaded ore on board. Capt. Smith was on deck, in charge, and at the wheel. When they started, he ordered all the hands but one to go below and go to bed, and get some rest during the trip down, as they were exhausted and in need of sleep, and would be required, on the arrival down in the morning, to return the lightered ore to the Carrington. One man, Hugh Amos by name, one of the laborers, who went as engineer to run a hoisting engine, and who was not a sailor, was kept on duty to stand watch. He was told by Capt. Smith to keep steam up in the smaller boiler used for hoisting, to look after the siphon and see if there was any water in the boat, and to get a messenger ready to take the tow line from the tug. After leaving the Carrington and starting down the river, Capt. Smith and Amos were the only persons on deck. All the others were asleep in the cabin. After she had been towing behind the tug for several miles, and while it was yet dark, but just breaking day in the morning, the Monitor settled by the head and sank in a few minutes in about 26 feet of water. She did not appear to strike the bottom or any obstruction before she sank. She was at that time in a sheltered place, and it was comparatively calm; only a fresh breeze blowing from the northwest, and no sea running sufficient to cause any inconvenience. The disaster was so sudden that there was little time to do anything. Capt. Smith kicked in the cabin windows and shouted to the sleeping men, but could do no more before the water rose and drove him up the shrouds. Five men, including John Roberts, the deceased, were caught by the water in the cabin and drowned before they could escape. The others were picked up by the tug. At the time she sank, Capt. Smith was steering aft on the poop deck behind the cabin. Where he stood the deck was raised 3 1/2 feet above the main deck, and was 3 1/2 feet below the top of the cabin, over which he could see the deck forward and the tug which was towing them. He didn't notice that she was sinking until Amos shouted the fact to him. Amos at that time stood on the further forward deck behind the engine room, which was constructed upon the deck, and had been sent there by the captain to fix a messenger with which to haul in the tow line from the tug. He was so occupied in untangling a knot in the line that he did not even pay particular attention to the first rush of water through the bulwarks and over the deck, although he noticed it, and he only desisted from his work when the second wave swept over the vessel and drove him upon the rail. He then, as he was climbing up, shouted to the captain that the boat was sinking, whereupon the captain sought to alarm the men in the cabin. Some time after she had sunk, divers were sent up to examine the Monitor. She showed no signs of having been in collision with an obstruction, was found with her stem and stern resting on a bar, with room to pass under her amidships, her hull being unbroken and in as good condition as before she sank, except that there was from 4 to 6 feet of oakum out of her seams on

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