Thompson v. Winslow

• Decision Date: 29 February 1904
• Docket Number: 100.
• Citation: 128 F. 73
• Parties: THOMPSON v. WINSLOW.
• Court: U.S. District Court — District of Maine

128 F. 73

THOMPSON v. WINSLOW.

No. 100.

United States District Court, D. Maine.

February 29, 1904

Benjamin Thompson, for libelant.

W. K. &amp A. E. Neal and Seth L. Larrabee, for respondent.

HALE District Judge.

The libelant brings this libel in personam, in behalf of himself and the other owners of the schooner Marjory Brown, against Edward B. Winslow, doing business as Winslow &amp Co., to recover for a balance of the freight on a cargo of coal which the schooner was carrying at the time of the injury, and also to recover for alleged damage to said schooner while in tow of the steam tugs of the Central Wharf Towboat Company, and being towed from Portland Lower Harbor through the bridge of the Grand Trunk Railway Company, and through Tukey's Bridge, into Back Bay, in order to reach the wharf of the respondent, at which the cargo was to be discharged.

The Marjory Brown is a four-masted schooner of the burden of 1,061 tons, about 220 feet long over all, and with coal carrying capacity of about 1,900 tons. She was drawing, at the time of the injury, 19 1/2 feet forward and 21 feet aft. The respondent is engaged in the business of the manufacture and sale of stoneware at the head of Back Bay, in Portland, and has annually many vessels consigned to him and delivering cargoes at his wharf. In order to reach this wharf, it is necessary for vessels to proceed through the draw of the Grant Trunk Railway Bridge and of Tukey's Bridge, and then up through Back Bay by a channel recently dredged by the United States. Tukey's Bridge is nearly parallel with, and about 1,500 feet westerly from the Grand Trunk Railway Bridge. The draws of the two bridges are located to conform to the general course of the channel, which swings a little to the northwest after leaving the Grand Trunk Railway Bridge, and before reaching Tukey's Bridge. The United States government chart shows that there are two channels extending a considerable distance from Tukey's Bridge toward the Grand Trunk Railway Bridge. The testimony shows that one of these channels, called the 'Southern Channel,' has a depth of about 14 1/2 or 15 feet at mean low water, and the other, the northern channel, has about 11 feet at mean low water. About August 13, 1903, the schooner Marjory Brown was chartered to load at Philadelphia a cargo of coal to be carried to Portland, Me. The evidence of the terms of the contract is contained in the bill of lading. Under that bill of lading the schooner received at Philadelphia a cargo of 1,874 tons of coal, and August 19, 1903, the master executed the bill of lading, with this provision: that the cargo was to be delivered 'at the aforesaid port of Portland, Maine, dangers of the sea only excepted, unto Winslow & Company, or to his or their assigns; consignees paying freight for the same at the rate of 90c. and discharged, and to tow vessel in and out of Back Bay free. ' A copy of the bill of lading was sent to Winslow & Co., and was received by them prior to the arrival of the schooner with her cargo at the port of Portland. Before that time the consignee had received instructions from the shipper as soon as the cargo had been loaded, and about the 20th of August he got the bill of lading. The schooner came into the harbor of Portland about noon, Saturday, the 29th of August, sailing in without the aid of a tug, and coming to anchor in the lower harbor. From this point it is necessary for all sailing vessels to take a tug in order to proceed into Back Bay to the discharging berth of the respondent. Shortly after arrival, about 1 o'clock in the afternoon, Capt. Thompson, the master of the vessel, the libelant in this suit, came on shore, went to the office of the Central Wharf Towboat Company, and made inquiries as to the location of the office of Winslow & Co., his consignee. He learned that it was some distance away, and thereupon requested Mr. York, agent of the towboat company, to notify Winslow & Co. of the schooner's arrival. Mr. York thereupon called Winslow & Co. on the telephone, and informed them of the arrival of the schooner Marjory Brown; and the bookkeeper in the employ of Winslow & Co. indorsed upon the copy of the bill of lading, held by them, the words, 'Reported Saturday, August 29, at 2 p.m.' Captain Thompson did not engage any tug to tow his vessel into Back Bay, nor make any efforts in that direction. Later in the same afternoon, August 29th, Mr. York, the agent of the towboat company, again telephoned to Winslow & Co., and talked with the respondent's superintendent, Mr. Hersey, who informed him that they would want the Brown at their dock to begin work on Monday morning. On Sunday afternoon Mr. York and Capt. McDuffie, the master of one of the company's tugs, went off to the schooner in the steam tug Fannie G., and told the libelant that the consignees wanted the schooner at their berth to begin discharging on the following morning. They also told him that the towboat company did not want to assume any risk in towing the vessel through the Back Bay; that they thought the schooner would go over the shoal all right, but that if she stopped she would not be injured, as the bottom was level. They mentioned, further, that the schooner Alicia B. Crosby had stopped on the shoal, and had gotten off without damage. They also said that if the schooner did not go up that afternoon it would be some days before she could be towed up, as the tides were falling off. Capt. Thompson then asked Mr. York and Capt. McDuffie why they didn't tow the vessel up the day before-- Saturday. He testifies that he told them further that he did not want to assume any responsibility about the towing of his vessel. The testimony does not show that the libelant agreed to relieve the towboat company from any responsibility in the management of the vessel, or that he agreed to assume the risk. His testimony further shows that he was a stranger in the port, and had no knowledge of the shoals over which the schooner was to be towed, nor of the depth of the water. Between 4 and 5 o'clock the same afternoon-- Sunday-- within an hour and a half of high water, the steam tugs Belknap and Fannie G., of the Central Wharf Towboat Company, proceeded to the libelant's vessel, and, as soon as her anchor was weighed, started to tow her toward the Grand Trunk Railway Bridge. After passing the draw of that bridge, the schooner swung somewhat to the southward; the Belknap then made fast on the port quarter of the schooner, and the Fannie G. was put in position under her bow; together these tugs pushed the vessel in a northwesterly direction, so as to get her on a course to enter the draw of Tukey's Bridge. The schooner then proceeded at the rate of some 2 or 3 knots an hour, headed in a line parallel with the draw pier of Tukey's Bridge, and about 300 feet from the bridge she took bottom. Capt. Thompson then suggested that she be towed astern, but Capt. McDuffie, who had charge of the towage, said that the only thing to do was to tow her ahead, and that she would soon be over the shoal spot. Accordingly, the tugs attempted to tow the schooner ahead, but, although they had the aid of the schooner's steam power, they were unable to move her. On the ebb of the tide that night, the schooner listed to port and remained in that situation until the high water of Monday. On Monday afternoon, a little before high water, the steam tugs Belknap and Portland, of the Central Wharf Towboat Company, reached the schooner, and, not finding her afloat, they proceeded ahead on the hawser, in the effort to jump her over the place where she had grounded. In their efforts they broke a new eight-inch hawser several times, cut into the bits, and were compelled to put the hawser around the foremast, to the great peril of his foremast, as the captain thought. But they succeeded in moving the schooner only about 50 to 75 feet. At low water that night, and on the following day, the schooner's bow was in 20 feet of water, and her stern, drawing only 13 1/2 feet of water, was sticking up in the air; she listed to port nearly 40 degrees, and began to show signs of strain, and to leak. Another unsuccessful attempt was made to haul the schooner off, Tuesday night. On Wednesday, September 2d, a lighter was engaged by the superintendent of the respondent, and about 100 tons of cargo were discharged in the after hatch. At high water that afternoon, the tow boats, after great effort, hauled the schooner off. In doing this they were aided by the schooner's steam capstan, and by a hawser running to the pier of the bridge. The schooner was then towed toward the consignee's dock, but stuck in the mud about 200 feet from it, the tugs leaving her and coming back the next day. After some more cargo had been lightered, the schooner was hauled into her discharging berth. The cargo was discharged by the consignee. After this the libelant demanded payment of his freight, the consignee declining to pay unless the master would allow the expenses of lightering. This Capt. Thompson refused to do. The schooner was afterwards towed out of Back Bay by one of the Central Wharf Towboat Company's tugs, on Wednesday, September 9th. She then proceeded to Bath, and was hauled out on the Marine Railway. On examination of the schooner's bottom it was found that her butts were all opened aft, and that the keel was 'all mashed up' to a distance of about 125 feet; at a point about 10 feet aft of the fore rigging, and aft of the spanker rigging, the keel was crushed toward the bilge 12 or 14 inches, and for a space fore and aft of about 10 or 12 feet; between these two points, for a distance of between 60 and 70 feet fore and aft, the keel was completely turned up, half on one side and half on the other.

The first inquiry for the court to make is,...