THE CARBONERO, 106 F. 329

PUTNAM, Circuit Judge. The general facts are sufficiently slated in the opinion of the learned judge who heard this case in the district court. This, however, is subject to the observation that, although that opinion states that the tug’s donkey engine broke when she tried to get up her anchor, we must hold ourselves not bound to this particular expression. It is sufficient on this point that we agree with the conclusion of the district court that the record fails to show that whatever did occur arose from the “unseaworthiness” of the tug, as that expression is applied to cases of this class.

We agree with that court that the libelant below has not maintained the preponderance of evidence necessary to show that the tug was at fault for going to sea from Vineyard Haven, or for not relum-ing to that port, or for anchoring where she did anchor, in view of the circnmslances under which she anchored. We also agree that there was no fault on the part of the tug so far as the St. Nicholas was concerned. The tug claims that ¡he Excelsior went adrift by reason of her chains parting, and that the parting of the chains was caused by the barge having insufficient length of chain or by the chains being too light.

These propositions are not sustained. On the other hand, the log of the tug shows that this barge dragged her anchors, and this is supported by proofs which show that the barge did not go off so rapidly to leeward as she would have gone if she had parted her chains. Whether or not she subsequently parted her chains is not of consequence on this branch of the case, because, in •the absence of assistance from the tug, the disaster which resulted in the loss of the Excelsior and her crew was unavoidable from the time she began to drag.

It is true that the Excelsior only had GO fathoms of chain; but the evidence is not definite enough to show that this was a fault, or, more especially, that, if a fault, it was a contributing one. The result is to leave only the question whether the tug is responsible for the loss of the Excelsipr by reason of not going to her assistance sooner. We think that the rule stated in The Criadiator (decided by this court May 23, 1897) 23 C. C. A. 32, 79 Fed. 445, applies here.

There we said that the Gladiator was a powerful coast tug, with all the appliances and crew which the expression implies, and that she was inexcusable in that she did not use them for the relief of the schooner, a part of her tow and in peril, so far as it was practicable for her to do so. In oilier words, we are of the opinion that it was a part of her contract: of towage that, under ihe circumstances of this case, the tug should go promptly to the relief of the Excelsior as soon as she found the barge was adrift. Carv. Carr. Sea (3d. Ed.; 1900) § 339; Kenn. Civ. Salv. 87 et seq.

Of course, there may be circumsinnc.es under which, by reason of stress of weather. the only relief which a tug can afford her tow becomes of an extraordinary character, and therefore salvage service, rather than an incident of the towage contract. This, however, was not the fact in the case at bar. We therefore agree with the learned judge of the district court that the tug was guilty of a breach of the contract of towage, in that she did not promptly slip her cable as soon as she found that her donkey engine would not work the windlass.

The difficulty in the ease is with regard to his conclusions to the effect that all efforts of the tug to relieve the Excelsior would have been futile, so that Ihe case is one in which damages cannot he awarded, because no damage in fact arose from ihe lack of diligence on her part. It is maintained that it is appareut that all efforts of the tug to rescue the Excelsior would have been futile, even .if promptly taken, because she was on hand to render assistance as soon as the other barge, the St. Nicholas, got adrift, and yet her captain testifies that it was impossible to- save her.

The line of reasoning appears to be-, that, because it was impossible to save the St. Nicholas, it would therefore have proven impossible to have saved the Excelsior. The details of the reasoning in this direction we need not repeat, as they will be found in the opinion below. The opinion also adds that, to have gone off with the Excelsior to a place of safety, leaving the other barges to their fate, would have been highly improper. It concludes that the fault of the tug in not sooner reaching the Excelsior did not contribute to the loss of the barge.

The mate of the Carbonero testifies that she might have run a hawser to the St. Nicholas, but that the crew of the barge was not sufficient to have hauled it aboard. The master of the ttig -testifies that he did not try to run a hawser to the St. Nicholas, and that her crew .could not have handled one. The master of the St. Nicholas testifies-' that she had a donkey engine, and carried three men besides himself. He also testifies that no attempt was made to carry out a hawser from the tug, ana that it was impossible to do it.

The log of the Carbonero shows that the barge Excelsior began to drag her anchor at 20 minutes past 2, and the fact was at once known aboard the tug. The St. Nicholas went adrift about 5 o’clock, some 2-1-hours later, almost at the same time that the tug slipped her cable, and the log of the Carbonero shows that she rescued the crew of the 'St. Nicholas at 7 o’clock. The log of the St. Nicholas states that at 1 o’clock the wind was blowing a gale, at 3 o’clock it was still increasing, and at 5 o’clock it had become a hurricane. Mr.

Smith, the observer at Boston, testifies that the velocity of the wind that afternoon did not represent a heavy gale; that it was not unusual; and that the danger signal was hoisted because a wind of that velocity is supposed to be dangerous to the lighter class of shipping. That the tug was entirely able to cope with it is evident from the fact that, after she rescued the crew of the St.

Nicholas, she lay to all night near the barge Indian Bidge without difficulty, although the Highland Light weather report shows that the velocity of the wind had not substantially abated at 10 o’clock in the evening, at which time the report in the case closes. There was no difficulty which would have prevented this powerful tug from promptly slipping her cable and going to the relief of the Excelsior as early as 3 o’clock in the afternoon.

The barges were fitted for towing on the Atlantic coast; so that a presumption exists that the Excelsior was properly equipped for taking aboard a hawser of sufficient size for towage purposes, and that she had the proper steam appliances therefor, although the libelant failed to prove the facts in this regard. The state of the wind at the time the tug reached the St. Nicholas was, as we have seen, more severe than when the tug might have reached the Excelsior.

Moreover, the evidence shows that, after the barges went adrift, their windlasses and winches became iced up, and, of course, their crews were every hour becoming more and more chilled and enfeebled. On the whole, nobody testifies that it would have been impossible to have rescued the Excelsior at 3 o’clock in the afternoon, and the condition of things was so different at that time from what it was when the tng reached the Ht. Nicholas that we cannot properly reason from one to the other.

All this leads to an -expectation that, if the tug had slipped her cable promptly, she would have accomplished something in behalf of the barge Excelsior, and that if we could regard ourselves as marine experts accustomed to emergencies of this nature, and familiar with the particular portion of the New England coast where this wreck occurred, and with the power and capabilities of tags and barges of the character in issue here, we would, on (his record, he satisfied to a reasonable probability that, if the tug had done her duty, tin; barge and crew would have been saved.

Rut although the whole crew' of the Excelsior was lost, so that the libelant could not give ns Use benefit of their evidence, and is therefore excusable to that extent, yet it has failed to prove how the barge was equipped for an emergency of this character, and even what was the number of her crewu Moreover, the parties have failed to bring before us the lestimony of experts in regard to the probable capability of a lug like the Carbonero in the state of weather described, and whether, probably, she would have been able to run a hawser aboard the Excelsior, and in regard to the disposition which could have been made of ¡hat barge if the tug had succeeded in getting her in tow.

The court is also entirely without evidence whether, after anchoring the barges, it was the duty of the tug to search for a better lee, and whether she could have found it if site had searched for it, or whether, under the circumstances and consistently with her duty i.o the other barges, she could, in any way, have towed the Excelsior to a safer anchorage if she had been recovered, or whether, hi the event this could not have been done, the tug could, with or without the use of the Excelsior's anchors, have kept steam on and held up the barge during the night.

If the rule applied to the tug by the court below, cited from The Pennsylvania,, 19 Wall. 125, 136, 22 L. Ed. 148, had been the appropriate rule, there is no doubt that we would be compelled to reverse the decree of that court, and hold that the loss of the Excelsior was the result of the misconduct of the tug; but it is only in cases of a statutory fault that it .rests on the offending vessel to show that the loss could giot have been caused by her offense.

The cast; at bar, with reference to the question whether, the tug being in fault and the barge having been lost, the tug must therefore be charged with the loss, depends on whether or not the fault of the tug did in fact cause the loss. This, again, depends on the other question whether, if the tug had not been in fault, she could have rescued the Excelsior, and could have either put her or held her in a place of safety. No statutory rule is involved, and the conclusion is to be reached in the ordinary course in admiralty.

This is the distinction which has been made by various courts, and especially bv this court in our opinion passed down in The H. F. Dimock, 23 C C. A. 123, 77 Fed. 226, 230, and in The Columbian, 41 C. C. A, 150, 100 Fed. 991, 993. Under the circumstances, the fault of the tug was gross,'and the' natural presumption against her is very great.

In view of the expedients which masters of steamers and sailing vessels find unexpectedly at hand, or within their ingenuity, when acting boldly and promptly in a marine stress, we are naturally inclined to the belief that, if the tug had done her duty, she would have found some way of rescuing the Excelsior, and that, therefore, the loss is chargeable to her. Nevertheless, on the state of the proofs, it is impossible to reach a conclusion on this proposition which will justly satisfy the mind of the court. Indeed, our conclusions might be only guesses. Rude v. Wescott, 130 U. S. 152, 167, 9 Sup. Ct. 463, 32 L.

Ed. 888. While, therefore, we disapprove the particular line of reasoning of the learned judge of the district court which leads to a conclusion, in behalf of the tug, that efforts on her part would have been futile, we think it is within the power of the parties to produce, on the one hand and the other, more satisfactory evidence than the record now contains as to the means which were available for the relief of the Excelsior in the conditions which existed, and with regard to the probable result if those means had been employed.

If the lack of evidence had been merely the omission on the part of the Excelsior to prove v hat resources she had, either for passing out a hawser or for taking one aboard, or for obtaining a better holding in case she had been towed back into a place of comparative safety, we might have reached the conclusion that she had not given the case the benefit of all the facts to which it was entitled, and that, therefore, she had left the court to conjecture when she might have aided it in ascertaining the reasonable probabilities; but with regard to the topics io which we have referred, and as to which we are unable to reach a justly satisfactory conclusion, we think that neither party has given us all the aid which, by reasonable diligence, it might' have given us.

Therefore we are of the opinion that further investigation should be made by the court below, without either party taking anything by this appeal. If no further proofs are adduced, that court should reaffirm its decree. The decree of the district court is reversed, and the case is remanded to that court, with directions to proceed in accordance with our opinion filed this day, and neither party will recover costs of appeal.