THE JOHN M. NICOL. LOVELAND TRANSP. CO. v. CRESCENT TRANSP. CO., 63 F. 275

BURTON, Circuit Judge (after stating the facts). 1. We think that the Mcol was not in fault for failing to tow the barge inside tin* breakwater when the vessels first arrived off the port. The Mcol was not bound for the port of Cleveland, and had no business in that port. Her contract was to tow the barge to Fairport. She had diverged from her course in compliance with the request of the barge, and on account of its unseaworfhy condition. The distance from the breakwater to the harbor piers was some 1,200 feet. The dee])-water channel was straight in from the entrance to the piers.

The water on each side of the channel was shallow, being between 14 and 15 feet on one side, and from 1 ■> to. 14 feet on the other side. The Mcol was heavily loaded, and drew between 14 and 15 feet. In view of her length and draught, it is clear that the propeller could not have maneuvered in the basin, and would have been obliged to keep the narrow, deep-water channel, if she had carried her low inside. There was nothing in the contract of towage which required the Nicol to take her tow to a dock.

In ordinary weather the evidence shows that fugs meet vessels going into the harbor from one to three .miles outside the breakwater. The master of the Wahnapitae exported to meet with and employ a tug outside, and prepared his harbor line soon after he was headed for Cleveland. He admits his disappointment at finding no tug to take Mm in. Neither was there any such apparent peril in waiting for a tug as to impose on the Mcol the hazard and the delay of attempting to take her tow inside without the aid of a harbor tug.

In rough weather the evidence shows that the custom is for a steamer having a tow to take the tow just inside the breakwater, where it is taken by tugs lying there ready to aid by picking the tow up as soon as the line is cast off. Upon approaching the opening it was .seen that there was no tug inside, ready to take the barge. Under the circumstances it was no fault to turn out in the lake to wait for a tug.

As we shall hereafter see, the Mcol and her tow were a second time placed in as good position to go in as they had when they first approached the opening, and it is difficult to see how the turning out to wait for a tug was the proximate cause of the subsequent misliap. .2, Upon a careful scrutiny of the evidence we are of opinion .that the weight of the evidence is that the Wahnapitae did get straightened out in the wake of the Mcol when the latter was a second time headed for the entrance, and that after thus getting substantially in line behind the steamer, and headed for the entrance, she took a sudden, heavy sheer, which threw her nearly into a right angle with the direction in which the Mcol was steering.

Upon this point there is a sharp conflict in the testimony. The master and five of the crew of the barge deny that the Wahnapitae had completed the turn, and testify that she never did get into line behind the Mcol after the latter went out into the lake. They deny that she took any sheer after the Mcol was headed the second time for the entrance, and say that the barge was slowly coming around under a port helm, and that if the circle in which the Mcol made the turn had been larger she would have straightened out, and followed the Mcol through the opening.

They agree in saying that when the Mcol cast off the towline she was swinging into line, and agree in the opinion that if the Mcol had continued to pull both vessels would have gone safely through the entrance. On the other hand the master and four of the crew of the Mcol unite in saying that the Wahnapitae did make the turn, and did get into line behind the Mcol, and followed, headed for the opening, for several minutes, and that when within about one-fourth of a mile from the opening she took a strong sheer to the port side of the Mcol, and headed directly for the east breakwater.

The master and crew of the Mcol are corroborated in this statement of fact by the master and engineer of the tug' Alva B, which was following the Wahnapitae a little on the starboard quarter. These witnesses were disinterested, and in good position to know the position of the barge. Further corroboration is found in the evidence of Capt. Dwyer, master of a harbor tug lying inside the harbor in a place where he could see the tow as it approached the harbor, and in the evidence of Russel T.

Rumsey, a customs officer, who was in the river custom office, observing the tow through a marine glass, and also in the evidence of Thomas. Hhay, one of the life-saving crew, on watch, in the tower at the lifesaving station. From the position of the side lights on the Mcol and on the Wahnapitae, these witnesses concur, substantially, in saying that the barge did get into the wake of the steamer, and did follow, headed for the opening, until she took a sheer which threw her out of line. The Wahnapitae was a barge 280 feet in length and 51 feet in beam.

She is described as having the bow of a schooner and the stern of a scow. She had but one mast, rigged with a jib sail, which was not in use that night. We are better prepared to credit the testimony as to the sheer by the reason of the well-established character of this barge as a bad steerer in shallow water, and her habit of taking such sheers in a most unaccountable way. Besides this, her steering power was affected by the fact that she was leaking badly, and, at the time of the alleged sheer, had not less than 16 inches of water in her hold.

Under this evidence it is immaterial to consider whether the circle made by the Mcol in coming around was large or small. If the Wahnapitae had made the swing and had straightened out behind the Mcol, the turn was completed, and the subsequent sheer cannot be attributed to the circle described. When the Wahnapitae took this sheer, the Mcol was headed for the entrance, and within about three boat lengths of the opening. The effect of the sheer was to throw the barge into such a position as to head her directly onto the east breakwater.

The obvious thing for the master of the Mcol to do was to break the sheer if he could. lie at once gave the signal to work his engine's strong, and ported his wheel so as to head upon the west breakwater. After pulling strong for about two minutes, and until (he propeller was within about a boat’s length of the breakwater, the master of the Mcol—seeing that the sheer was unbroken, and that to continue to pull would inevitably result in pulling the tow 011J0 the east breakwater—sounded one long whistle, as a signal to lei the towline go. This was done.

The master of Ihe barge put down his anchor, and the tug made several ineffectual efforts to get a, line to the barge. All was of no avail. The barge dragged her anchor, and Avent to pieces against the west breakwater, having drifted with the wind and sea across the entrance. After ihe towline was cast off, it Avas not possible for the; Mcol to do anything to avoid the; catastrophe. The tug was in every way better able to assist, and yet it was unable to do anything. This sheer, under the circumstances detailed, produced a most dangerous and alarming emergency. It was an emergency without the fault of the Me:ol.

Three courses were open to her when it occurred:

(1) To put on steam, and endeavor to break the sheer and go through the' opening.

(2) To turn out again into the lake-

(3) To hold on to the line, though the sheer was unbroken, and take the; consequences. To turn out again into the lake, after the sheer, seems, on the evidence, to have been almost impossible. The vessels were too close in for ihe turn, in view of the wind and choppy sea. To put on steam and break the sheer was apparently the most favorable; course. This failed. To pull the Wahnapitae longer, would, on the evidence, have been reckless. She was from two to six points off the port quarter of the Mcol, and headed for about the center of the east breakwater.

The Mcol Avas already within a boat’s length of the end of the west breakwater. To go on was apparent destruction for the tow, to cast off the line gave the barge its only chance. These chances were:

(1) That her anchor might hold.

(2) That she might drift in such a way as to escape contact with the breakwater.

(3) That the very powerful tug right behind her might get a line to her, and pull her out. It seems totes that under the circumstances the Mcol took a course for which she is not to be condemned. But, if it be admitted that some other course might have resulted better, yet the emergency was suck that we cannot condemn the order giren as a fault. The judgment of the master of the Mcol, after a strenuous effort, Avas that he could not break the sheer, and that to pull longer was to pull the barge onto the breakwater. His further judgment was that the emergency required that the line should be cast off.

If this Avas error,—which, on the weight of the evidence, Ave do not believe,—it was at least not a fault. In this judgment the master of the Wahnapitae seemed to concur at the time, for it is clearly slioAvn that on the day following the catastrophe he expressed the opinion that Oapt. Stewart was not in fault. The decree must accordingly be affirmed.