The American Eagle

• Decision Date: 17 March 1893
• Docket Number: 1,998.
• Citation: 54 F. 1010
• Parties: THE AMERICAN EAGLE. v. THE AMERICAN EAGLE. JONES
• Court: U.S. District Court — Northern District of Ohio

54 F. 1010

THE AMERICAN EAGLE.

JONES v. THE AMERICAN EAGLE.

No. 1,998.

United States District Court, N.D. Ohio, Eastern Division.

March 17, 1893

Lee &amp Tilden, for libelant.

H. D Goulder, for respondent.

RICKS District Judge.

This is a libel filed by Wyndham C. Jones to recover for damages to scows, and for the loss of a lot of cedar ties loaded upon two scows, which it is alleged the respondent contracted to tow from the docks of Norris & Co., in the Cuyahoga river out to the west shore of the lake within the breakwater west of the piers, on or about the 20th of August, 1890. The facts are that the libelant was the owner of the ties referred to which he desired to have transported for some work being done on the west shore of the lake at the point named. He had purchased these ties from Norris & Co., and had sent there, to be loaded, two scows of his own build and construction. When loaded, Norris & Co. were to notify the Vessel Owners' Tug Line, and they were to send a tug, and have them transported to the point named. The scows were loaded, and on or about the date aforesaid Capt. Collier was notified by Norris & Co. that the scows were ready to be towed out. Thereupon the clerk of said association signaled the American Eagle, and she went to Norris & Co.'s docks, and undertook to tow the scows to their destination. The captain of the tug claims that when he reached Norris & Co.'s dock he saw the scows were overloaded, and that the ties were improperly piled, and that the tow was not in proper shape for safe transportation, and so notified the foreman at that dock.

Thereupon he claims the foreman told him to proceed, take the scows, and do the best he could with them. The captain of the tug refused to take them, except at the owner's risk, and thereupon he says the foreman of the dock told him me might so take them, and under those conditions he assumed to tow the scows out. He fastened them to his tug, and with some difficulty proceeded as far as the mouth of the river, when he found a dead swell on the lake,-- too much sea to enable him to safely tow the scows to the point designated,-- and thereupon he returned up the river, tied the scows up at a point on the dock near the mouth of the Old river, and, proceeding further up the river, notified the clerk at the Vessel Owners' Tug Association office what he had done, who in turn, it is claimed, notified the consignor. He does not claim that he gave any further notice, or paid any further attention to the scows. He admits he tied them up without lights, and without any one to watch them, but claims he put them at a safe point in the river, where they were not liable to be disturbed by passing vessels, or injured from that or other causes. The defense is-- First, that there was no contractual relation between the libelant and the tug, and therefore the tug cannot be held liable under the contract for towage; second, that the towage was undertaken at the owner's risk; third, that, having found that he could not safely tow the scows to their destination, he fastened them securely in the river at the point above stated; that the libelant was notified of the place at which they were tied, and acquiesced in this disposition of the scows by the tug, and agreed that they might remain there at the owner's risk. These are substantially the grounds of defense relied upon.

Let us first consider the first defense relied on. The answer avers that the Vessel Owners' Tug Association is a voluntary organization made up of the owners of the different tugs belonging thereto, and doing service in the Cuyahoga river and in the harbor adjacent, and that the contract in this case, whatever it may have been, was made with the Vessel Owners' Tug Association, and not with the tug American Eagle. In support of this averment in the answer, no written contract of the association or articles of incorporation were offered, and no evidence of the kind to show the exact character of this Vessel Owners' Tug Association was produced. On the contrary, it appears from the evidence of Capt. Dahlke of the tug American Eagle that, while the tugs comprising that association pooled their earnings, each tug was liable for its own negligence, and that he had made independent contracts of towage utterly regardless of the association. It seems from the evidence before me that this is a voluntary association, organized for the purpose of preventing ruinous competition among the different tugs in securing vessels to tow, and to prevent them from that strife and such useless struggles as are frequently indulged in by rival tugs, each seeking to secure all the towing possible. In this view of the testimony I have no hesitation in finding that the contract of towage in this case was between the libelant and the tug, and that, if the loss was the result of the negligence of the tug, she is responsible.

We next proceed to a consideration of the second defense relied upon, to wit, that this contract of towage was undertaken at the owner's risk. Conceding, for the purposes of the argument, that the foreman of the dock at Norris & Co.'s had authority to make such a contract for the libelant,-- a point which cannot be maintained,-- it nevertheless is a well-settled principle of...