Fireman's Fund Ins. Co. v. Globe Nav. Co.

• Decision Date: 02 October 1916
• Docket Number: 2631.
• Citation: 236 F. 618
• Parties: FIREMAN'S FUND INS. CO. v. GLOBE NAV. CO. et al. THE NOTTINGHAM.
• Court: U.S. Court of Appeals — Ninth Circuit

236 F. 618

FIREMAN'S FUND INS. CO. v. GLOBE NAV. CO. et al.

THE NOTTINGHAM.

No. 2631.

United States Court of Appeals, Ninth Circuit.

October 2, 1916

The schooner Wm. Nottingham, with Capt. A. W. Swenson as master sailed from Westport, Or., on September 26, 1911, laden with a cargo of lumber, bound on a voyage to the port of Callao Peru. The vessel had been insured by the appellant company on April 17, 1911, for the period of one year, in two policies of insurance, one for $6,000, and the other for $24,000-- total of $30,000. The vessel was valued at $45,000 in the policies. Her actual value was $30,000. On August 25, 1911 while the schooner was at Astoria, Or she was surveyed for the appellant by one Albert Crowe, a marine surveyor, who certified that he had examined the vessel and found her in good condition and suitable for the intended voyage and cargo. The vessel was loaded at Westport, Or. On the afternoon of September 26th, in attempting to pass out of Westport slough into the Columbia river at high tide, the vessel grounded, and remained aground until high tide next day, when she was pulled off by two tugs. She then proceeded on her voyage down the Columbia river to Astoria, where she was again surveyed by one Cherry, who appears to have been acting for surveyor Crowe, whose name was attached to the report. The surveyor reported that he had 'held a final survey on the vessel and found her well laden and the deck load thoroughly secured. Consider vessel in good trim for making the intended voyage. ' After this survey, the vessel proceeded to sea on October 2d.

The Columbia river bar was rough, but Capt. Swenson testified that in his opinion it was not rougher than was safe for crossing. The captain testified further: After crossing the bar the vessel stood offshore on a port tack. After everything had been straightened up on deck, the captain directed the mate to sound the pumps, which he did, and found 15 inches of water in the well. This was the normal amount of water to be in the vessel after she had been lying in port for a time without being pumped out. The captain did not feel uneasy. Four hours afterward he sent down to try the pumps again, and it took a little longer than usual to pump her out; but he testified that sometimes there is a lot of drain from different parts of the ship, which probably caused the water to drain through the wells, and the men might not have pumped as hard as others, so he did not feel uneasy. The vessel stood on the port tack to about 128 degrees west, or until October 4th. It then took the men about an hour in every four before they could free the ship from water; but this fact did not cause the captain to feel uneasy, for the reason that they had quite a breeze blowing, about 35 miles an hour or so. But the wind shifted to the southwest and increased, and the captain was compelled to put the vessel on the starboard tack. As he was well offshore, he could stay on this tack down the coast. When the vessel was put on the starboard tack, the sea was pretty rough, and she took an unusually heavy lurch to port, and the deck load shifted about four inches. The vessel then commenced to make water freely. Upon examination it was found that water was coming into the storeroom at the break of the poop-- what was called the half deck. The water was pouring in there on the port side. The captain went forward and found the galley was flooded, the water coming in somewhere through the shifting of the deck load. The sea at that time was rough-- very rough. The vessel lay over considerably. Most of the water was on the lee or port side. The vessel lying over on the port side caused this part of the vessel to get under water. This was sufficient to take in the water found in the vessel. It was at this time the captain sent the men down, and they worked for four hours without being able to get her free of water. Then the captain ordered the mate to start the steam pump, and something happened to be wrong with it; the captain did not know what it was. It happens sometimes that a piece of wood or something gets into the valve and clappers and prevents the pump from doing its work. The steam pump was last used at Astoria before leaving. The pump was then apparently in good condition, but it was not then used for the purpose of pumping out the vessel. At that time an additional section of hose was placed on the pump and was let over the side and the valve leading down into the hold was closed. Apparently the pump was in good condition, pumping the water over the side of the ship for washing down the vessel. When the captain found that the hand pump did not handle the water and the steam pump failed to work, he tried to get to port; he was trying to run for Cape Flattery, but the sea was rough and windy. On October 8th the steam pump was working. Had southeast wind from October 2d to October 8th. On the afternoon of October 8th, and some time after the steam pump had got to work, the vessel was struck by a heavy gale from the northwest. It came so suddenly that it carried away one of the boats hanging in the davits and lashed with double lashing. It tore the boat from the lashing and threw it out on the water, and, although the vessel was on the right tack for the wind to strike the sails, she almost went on her beam ends. The force of the wind at that time was 100 miles an hour. The captain tried to get the vessel before the wind, but she was slow in getting there. For some time she was throwing herself on her beam ends. After the first heavy wind she righted herself somewhat, but during that heavy lurch she shifted her deck load considerably, and then she did not answer her helm. She went over so much that the water came up in the donkey room and put out the fire, and they were unable to keep up steam. The captain then tried to get her on the other tack, so as to straighten her up and pump her out, but he was unable to do so; she did not answer her helm. The vessel continued to fill. Early on the morning of the 9th the situation was serious. The captain concluded to try and jettison the deck load and preparations were made for that purpose, but before the preparations were completed the vessel laid over so much that the deck lashings parted, the deck load took a slide to port and up against the rigging, carrying away three masts-- the main, mizzen and spanker--and the masts and deck load even with the rail went over the side. The wreckage was held by the forespring stay. To get rid of the wreckage it was necessary to cut this forespring stay. Volunteers were called for, and one man came forward and cut away the stay, and that released the vessel of the wreckage. When this was done they started to pump her out, but found that the water was coming in through the holes in the side caused by the chain plates tearing out. They then rigged a raft and went over the sides and plugged up the holes. They set the foresail and forestaysail, and hand-rigged some of it on a jury mast which had been set up in the meantime. Then a heavy gale set in from the southeast. When the deck load went overboard, something forward caused the connections between the donkey boiler and the fresh water tanks to break, and all the fresh water was lost. The donkey engine was then operated on salt water, and the vessel was nearly pumped out when a second gale from the southeast struck her and the vessel commenced to fill. This was on October 11th. The sea commenced to run over the vessel. The force of the wind was then about 50 miles an hour. The vessel was put before the wind, and they tried to steer for Cape Flattery. Sighted two vessels, but they failed to respond to the distress signals. On October 13th the schooner David Evans hove in sight, The crew insisted upon abandoning the vessel. They had been without fresh water for four days. The vessel was thereupon abandoned by the officers and crew, and they were carried to Astoria, Or., on the schooner David Evans, where they arrived on October 14th.

The tug Wallula picked up the vessel after her abandonment by her officers and crew and brought her into the port of Astoria on October 15th. On October 16th the manager of appellee, G. F Thorndyke, served a written notice of abandonment of said vessel, and made claim for a total loss under policies of insurance, upon Frank G. Taylor, appellant's agent at Seattle, Wash. The abandonment was declined by appellant. Subsequently the vessel was libeled by the salvors for $34,000 salvage. There were no facilities at Astoria for repairing the vessel, nor could she be discharged, surveyed, or examined at that place. After the abandonment by the appellee, it was agreed by the appellant and appellee that the appellee should arrange to have the vessel taken up the Columbia river to St. Johns, near Portland, where she could be discharged and surveyed. The salvors would not surrender possession, nor take the boat to St. Johns, nor assume the expense nor the risk of towage from Astoria to St. Johns. The appellee thereupon, at the instance of appellant, applied to the United States District Court at Portland and obtained an order from that court in salvage proceedings permitting the towing of the vessel from Astoria to St. Johns and the discharging of the cargo, upon condition that the expense thereof should be paid by the appellee as against the salvors, and that the appellee would execute an indemnity bond to protect the salvors against the risks of the voyage. The bond was given by appellee, and the vessel was thereupon towed to St. Johns, the cargo discharged, and the vessel put in dry dock and surveyed. Subsequently representatives of the appellee arranged a settlement with the salvors upon the payment of $3,000 and for a release of the vessel from the...