The Defender

• Decision Date: 21 October 1913
• Docket Number: 921.
• Parties: THE DEFENDER. THE FEARLESS.
• Court: U.S. District Court — Western District of Washington

208 F. 836

THE DEFENDER. THE FEARLESS.

No. 921.

United States District Court, W.D. Washington, Southern Division.

October 21, 1913

Huffer & Hayden, of Tacoma, Wash., for libelant.

Libelant relies upon the following authorities: S. S. Syracuse v Thos. Langley, 12 Wall. 167, 20 L.Ed. 382; Grand Trunk Ry. Co. of Canada v. Griffin (C.C.) 21 F. 733; Tug Margaret v. Chas. S. Bliss, 94 U.S. 493, 24 L.Ed. 146; The Atlas (D.C.) 12 F. 798; The W. G. Mason (D.C.) 131 F. 632-636; S.S.W.H. Webb, 14 Wall. 406, 20 L.Ed. 774; Sicula Americana Di Navigazione A Vapore v. Dalzell (D.C.) 204 F. 697.

Welsh &amp Welsh, of So. Bend, Wash., for respondents the Defender and Quinault Lumber Co.

M. M Richardson, of Vancouver, Wash., for respondent the Fearless.

In addition to certain authorities cited by libelant respondents rely upon the following: 38 Cyc. 578, 579, 563, 582, 585, and notes 62 and 63; The Columbia, 109 F. 660, 48 C.C.A. 596; The Anthracite, 168 F. 693, 94 C.C.A. 179; The Blue Bell (D.C.) 189 F.

824; The E. V. McCaulley (D.C.) 189 F. 827; W. E. Gladwish, 196 F. 490, 116 C.C.A. 185; The J. P. Donaldson, 167 U.S. 599, 17 Sup.Ct. 951, 42 L.Ed. 292; The Webb, 81 U.S. (14 Wall.) 406, 20 L.Ed. 774; The Burlington, 137 U.S. 386, 11 Sup.Ct. 138, 34 L.Ed. 731; McNally v. The L. P. Dayton, 120 U.S. 337, 7 Sup.Ct. 568, 30 L.Ed. 669; The Samuel E. Bouker (D.C.) 141 F. 480; Southern Towing Co. v. Egan, 184 F. 275, 106 C.C.A. 417; Heckman v. The Barge Richard III, 3 Alaska, 453; The Oak, 152 F. 973, 82 C.C.A. 327; The Syracuse (C.C.) 36 F. 830; The El Rio (D.C.) 162 F. 567; The Edmund L. Levy, 128 F. 683, 63 C.C.A. 235; The Narragansett (C.C.) 20 F. 394; The Nellie Flagg (D.C.) 23 F. 671; The James P. Donaldson (D.C.) 19 F. 264; The Morris & Cummings Dredge Co. v. Moran Towing & Trans. Co. (D.C.) 163 F. 610, affirmed 177 F. 1004, 100 C.C.A. 427; Woodberry v. Josephine, 58 F. 813, 7 C.C.A. 495; The Startle (C.C.) 115 F. 555; The Frederick E. Ives (D.C.) 25 F. 447; The Royal (D.C.) 138 F. 416; The Coney Island (D.C.) 115 F. 751; Stricker v. The Maurice (D.C.) 128 F. 652; The Jacob Brandow (D.C.) 39 F. 831; The Oceanica, 170 F. 893, at pages 894 and 895, 96 C.C.A. 69.

CUSHMAN District Judge.

This suit is for decision, after issue joined and evidence taken, upon a libel in rem against the tug Defender and launch Fearless, and in personam against the Quinault Lumber Company, brought to recover damages from the stranding of the barkentine Lahaina, alleged to have been caused by negligent towing.

In June, 1911, the barkentine was loading a cargo of lumber on Willapa Harbor, under a charter party between the owner of the vessel and J. J. Moore & Co., of San Francisco. The respondent Quinault Lumber Company was furnishing the lumber cargo contracted to be carried under the charter.

Libelant alleges that the Quinault Lumber Company employed the tug to tow the barkentine, then partly loaded, from Raymond, down the Willapa river to South Bend, about four miles, where she was to receive the remainder of her cargo. There is evidence of a contradictory nature as to the hiring of the tug. The charter party provided:

'Charterers also have the privilege of loading vessel at two mills, they paying the extra cost of towage.'

The stranding of the barkentine occurred while she was being towed from the second to the third mill. No question had been made on account of the loading being done at three instead of two mills. It is therefore concluded that nothing more was contemplated by the master and mill company than a compliance with the above provision, which only bound the charterer, for whom the mill company was acting, to pay the extra cost of towage, and did not bind them to furnish a towboat. The extra cost was to be paid the vessel's owner, as was the money for freight and delays.

The mere fact that the mill company had made payments direct to the tug owner is not considered significant; as long as there was no question concerning amounts, this course would be natural, as avoiding delay. There is not sufficient evidence that, by the conversation between the master and the representative of the mill company, concerning the securing of the tug, a different arrangement was made by which the mill company was to furnish the tug. Therefore the libel must be dismissed as to the mill company.

The Lahaina, a wooden vessel, was built in 1901, being 200 feet long, 40 feet beam, and of 994 tons. After loading 1,100,000 feet of lumber at Raymond, she was taken in tow by the tug, a 200 horse power boat, and the launch, 38 horse power, near midnight on July 12th. It was necessary to leave at this time of night in order to take advantage of an eight or nine foot tide, to reach a bad turn in the river at flood tide and slack water. The barkentine touched twice on the starboard bank going down, without damage and with only slight delay. On the second grounding the tug, being unable to pull the Lahaina off by the head, went astern, and, with the launch, pulled her off the right bank; but she went stern first upon the left bank, from which she could not be removed. She remained there about 12 hours. It is for the damage she is alleged to have suffered during this time that recovery is sought.

From the point of the second grounding, up the river, there is a comparatively straight course. While above this point the channel of the river is narrow, probably averaging less than 100 feet, at this point, the channel, at the then stage of water, was 200 feet wide, sufficient to float a vessel loaded, as was the barkentine, to 20 feet.

Capt. Bell, of the tug Defender, in his testimony (pages 70 and 71) after stating that Capt. Carlson, of the Lahaina, ordered him to give another pull, and he had told Capt. Carlson that the vessel was moving, testified as follows:

'Q. Why didn't you, if you knew it was going into the other bank-- you knew that was not the proper place for her? A. Yes.

'Q. Why didn't you stop her headway? A. Capt. Carlson ordered me to pull her back.

'Q. So that, regardless of the consequences, you continued? A. I did not know; I was acting under instructions from Capt. Carlson.

'Q. So that you say that you could not have pulled the stern of the Lahaina around up the center of the channel and kept her off the other bank; do you mean to say that? A. I might have; but we wanted to go downstream.

'Q. You could have pulled her upstream and prevented her going into the other bank? A. Yes.

'Q. Then you let her drift across the channel while you sent the Fearless ahead to stop headway? A. No, we both got to her head as quick as possible.

'Q. You both let her go? A. Yes. * * *

'Q. But you did not think she would go on the opposite side when you let go? A. I was afraid she would; that is why I told Captain she had sternway.

'Q. But answer the question; when you let go, you did not expect she would go on the other bank? A. I was afraid she might.

'Q. Yet you let go; couldn't you at that time pull her stern up the river? A. No, sir.

'Q. You could not have attempted to? A. Yes, I could have attempted to.

'Q. You did not attempt to? A. No.' From this it is concluded that the Lahaina was stranded by the negligence of the master of the tug in pulling her off of the right bank in the manner in which he did.

It is urged upon the part of the respondent that the causal fault, if any, was the fact that, after the master of the tug, upon a statement of the amount of the barkentine's load, agreed to do the towing, unknown to him, 35,000 feet more of lumber were loaded on her, chiefly forward, and that this put the barkentine 'down by the head,' and that there was a further fault in that there was but one man at the wheel upon the Lahaina while going down the river, and he inexperienced, all of which caused her to steer so badly as to be run upon the bank.

If the stranding could be directly traced to either of these conditions, it would be necessary to make further inquiry as to how far they affected it. The court finds no preponderance of evidence that the Lahaina was steered badly; but, if such was the cause of the second grounding, it would only be one of the remote causes of the final stranding, for at that time she was being towed astern, being controlled solely by the tug, with no claim made that the wheel could have been handled so as to prevent this stranding. Grand Trunk Ry. Co. v. Griffin (C.C.) 21 F. 733.

The extra lumber did not increase her draft six inches, probably not over four. If such a slight increase in draft was sufficient to cause her grounding, the master of the tug should not have undertaken the tow.

There is evidence on the part of respondents that the captain of the Lahaina, when he engaged the tug, assured the master of the latter that his vessel would assume all of the risk in being towed down the river in the nighttime. Owing to the nature of the service and the situation of the parties-- the master of the tug being fully aware of the conditions, the tow captain not-- in any event, the court would require such an agreement to be clearly established before giving effect to it. Concerning this matter, the court finds nothing more than loose talk having been indulged in on the part of the men concerned and, while the darkness might have been one of the causes of the striking on the starboard bank,...