THE KALKASKA, 107 F. 959

JENKINS, Circuit Judge, after the foregoing statement of the case delivered the opinion of the court. An engagement to tow imposes neither an obligation to insure nor the liability of a common carrier, but it does demand that the engagement shall be met “with that degree of caution and skill which prudent navigators usually employ in similar service.” The Webb, 14 Wall. 406, 20 L. Ed. 774; The J. P. Donaldson, 167 U. S. 599, 17 Sup. Ct. 951, 42 L. Ed. 292.

The tows were under the supreme control of the Kalkaska so far as to enable her to fulfill her contract of towage, and they had the right to demand in the towage the full degree of caution and skill employed' by prudent navigators. Although, it may be said, the burden is upon the one alleging breach of contract of towage to show negligence or unskillfulness to his injury in the performance, still in some cases “the result is a safe criterion by which to judge of the character of the act which has caused it.” The Webb, supra. Here is a remarkable occurrence.

In no storm, with a wind at no time exceeding 20 miles an hour, along a well-known coast, and in going a distance of not over 100 miles, the Kalkaska and her tows are at least 17 miles out of their course, and eventually each of the vessels strike the bottom, the Kalkaska and her tow, the Aloha, getting free, the latter in a leaky condition, and the other two tows are wrecked. The atmosphere, it is true, was filled with smoke from the burning woods of Michigan, but that fact neither accounts for nor excuses the disaster. To wliat cause can the stranding of these tows be attributed?

It is urged on behalf of the Kalkaska that she was navigated with all prudence and skill, and that the disaster was caused by inevitable accident, and, as suggested by counsel, by some unknown current which imperceptibly carried these vessels upon the rocks. The circumstances .of the case cast upon the Kalkaska “the burden of establishing some excuse for the deviation from the usual and proper course.” The Webb, supra.

It was, therefore, incumbent upon the steamer to show that she was supplied with fit and accurate compass, that her navigation was in all respects careful and prudent, and that the disaster could not have been avoided in the exercise of due care. A brief review of the manner of the navigation of the Kalkaska upon that day may furnish, possibly, a solution of the cause of the stranding. In the first place, we have no evidence of the condition of the ship’s compass.

It was incumbent, wre think, upon the Kalkaska to show that she was furnished with such a compass as is ordinarily used, and that it was in due and proper condition. Her captain states that when off Devil’s Island at 4:30 o’clock in the morning of the 18th, the wind freshening, and the weather being very hazy, the course of the vessel was changed to the east-northeast, the chart course being east by north half north. This course, he states, would take the vessel about 4 miles north of Eagle Harbor, a distance of 1234-miles.

He states that he thus shaped his course one-half a point to the northward of the chart course because the variation of his compass drew (lie vessel to the eastward half a point. He did not allow for deviation, or for the natural drift of the tow to the leeward. With the steamer loaded with lumber piled 14 feet above the rail, and the tows similarly laden, proceeding' on a course east-northeast, and with a wind varying from west to northwest, of 20 miles ah hour, there would naturally he a drifting of the vessel and her tows to-the leeward.

In prudent navigation that should be allowed for, but does not appear t;o have been done. The steamer, with her tows, proceeded until 4- o’clock in the afternoon, at the speed of 8 miles an hour for the space of eleven hours and a half. According to the captain, the sea was making all the time, and the wind constantly freshened from the northward and westward. The captain states that he then could see that the vessel was drifting, “and we were drifting all the time towards the land,” and lie then first changed the course to northeast hv east.

The steamer and her tows had at that time proceeded about 90 miles, and must have been about 30 miles southwesterly of the rocky reef upon which they ultimately stranded. It is wholly unexplained why the captain at that hour could see that the tow was drifting, and could not have noticed the fact before that hour. It was his duty to have been watchful and vigilant in that regard. Prudent navigation demanded such care, and we are wholly unadvised by the record of any reason preventing earlier discovery of the fact.

But, even at this late hour, when he perceived that his vessel and tows “were drifting down all the time towards the land.” it was not prudent navigation merely to change his course to northeast by east without taking measures to ascertain where he was, and whether he was in the presence of danger. The* atmosphere was obscured by smoke, so that he was unable to see a distance of half a mile. That fact imposed upon him the duty of oilier precaution. He had no right to take it for granted that such change of course would he sufficient. Lie should have cast his lead.

It was his duly to proceed under check, sound, and ascertain his position. The chart declares that; in the vicinity where the vessel must then have been there was not. over (50 feet of water. Had he done so, he would have ascertained the proximity of danger, and could have avoided the disaster.

At a quarter after 6 he changed his course to northeast half east, and about 7 o’clock changed to northeast, as he stales with the purpose “to make up for what we would drift.” He thus proceeded without making any soundings, and without checking speed, but with knowledge that they were drifting towards the land, until 8:30 o’clock, when they struck bottom, when, as the answer gravely asserts, “fearing that she was too close to the land,” the helm was put hard a-starboard, and two blasts of her whistle sounded as a signal to her tows to starboard, and this followed by an alarm of danger.

We need not pursue the inquiry. There was here manifest unseamanship and failure to exercise due care and prudence in navigation. It does not need that we should grope in the realm of imagination to find some' occult and unknown current to account for a disaster which is plainly attributable to faulty navigation. ' It was urged on behalf of the Kalkaska that the disaster was caused by the neglect of the Mead to respond to the signal to starboard’her helm. We cannot sustain this contention. Almost immediately upon giving the signal/ the Aloha grounded, and was pulled off by the steamer.

The Mead followed, with the towline between her and the Aloha parted, presumably by the strain of the vessels ahead, covering the distance of 600 feet in less than a minute, grounding upon the rocks. The Mediator, while responding to the signal, changed her course upon demand of the Mead to avoid an imminent collision. These vessels were in immediate danger through the wrongful act of the Kalkaska, and we cannot say that in the confusion of a sudden emergency, caused by the fault of the Kalkaska, they should be held in fault for failure to adopt the most prudent measures for safety.

It is by no means clear that the prompt-est obedience to the signal would have enabled either the Mead or the Mediator to escape. The towline of the former was parted, and she was almost upon the reef. She had not, as had the Aloha, the assistance of the steamer to enable her to change her course speedily, or to pull her off the rocks. We cannot think the maneuver of these two vessels in extremis, and in the presence of impending peril, can be allowed to excuse the fault of the Kalkaska, even if different action might possibly have avoided or lessened the extent of the disaster; The decrees are affirmed.