JACOBSEN et al. v. LEWIS KLONDIKE EXPEDITION CO., 112 F. 73

MORROW, Circuit Judge (after stating the facts as above).

The assignments of error relate to the finding of the court that the appellant did not exercise due care and skill in the towing of the •steamer Evans, and was therefore guilty of a breach of the contract of towage; to the measure of damages awarded; to the non-apportionment of damages between the parties, because of the alleged contributory negligence of the appellee; to the admission of the deposition of the master of the Evans, it not being properly authenticated or verified, and incompetent because of the death of the master of the steamer Noyo; and to the taxing as an item of costs the sum of $71, “premium paid for bond on alleged claim ,'in cross libel.” In determining whether the lower court should :ibe sustained in its findings of fact, it is necessary to ascertain which party was guilty of a breach of the contract of towage.

By the terms of the contract the steamer Noyo was required to tow the steamer W. H. Evans from the port of Seattle, Wash., to St. Michaels, Alaska. This part of the contract was never performed. It was further provided that the steamer Noyo was not to be liable for any damage or loss to the steamer Evans by virtue of the parting of the towlines, or any other unavoidable cause, provided that said appellant vessel should use reasonable care, skill, and diligence in towing said steamer Evans.

It is well-settled law that the towing vessel is bound to exercise reasonable care and skill in the performance of the duty assumed, and that failure therein will create liability for any injury resulting. The Webb, 14 Wall. 406, 414, 20 L. Ed. 774; The Margaret, 94 U. S. 494, 24 L. Ed. 146; The Burlington, 137 U. S. 386, 392, 11 Sup. Ct. 138, 34 L. Ed. 731. Did the Noyo in this case fail to perform such duty? A somewhat different state of facts is presented than in the usual controversy for breach of a towage contract.

Ordinarily the sole purpose of the towing vessel is to take her tow safely and expeditiously to the point of destination. But in this case there was an added purpose. In fact, it is perhaps questionable whether the towing of the vessels was not deemed of secondary importance to the main business of transporting passengers and freight as quickly as possible to the port of discharge. The steamer Noyo was not a tug, whose sole business was that of towing. It was a steam schooner, about 100 feet in length, engaged in the transportation of freight and passengers between Seattle, Wash., and St. Michaels, Alaska.

At that time the great rush to the Klondike was under way, and vessels of every description were pressed into service for all Alaskan points, the supply being wholly inadequate. River boats were in great demand on the Yukon, and all possible means taken to get such boats to the entrance to the river at St. Michaels. The Noyo, under this stress of circumstances, undertook to tow for more than 2,800 miles two boats aggregating three times her own length, loaded with coal and Alaskan supplies, in addition to carrying the load- in her own hold. Part of this voyage was necessarily by way of the open sea.

Such an undertaking called not only for great power on the part of the towing vessel, but enlarged the measure of her duty to cover the increased risk of disaster, and to meet the conflicting interests‘of her various contractual engage-. ments, namely, the two contracts of towage, and the agreements with respect to her own -passengers and cargo* The “reasonable care and skill” required by law in the performance of the towage contract was not diminished or waived by the added undertakings.

It was incumbent upon the Noyo to perform all the conditions of her contract with the Evans with 'the same degree of care and skill as would have been required of her had the towage contract been the only purpose and object of the voyage. The court below finds that the first attempt of the steamer Noyo to tow the vessels by way of Cape Elattery out into the open Pacific Ocean was clearly and beyond question extremely imprudent, and that the second attempt by way of Dixon’s Entrance, with the Evans in a disabled condition, was reckless navigation.

The court finds further that the master of the Noyo did not exercise that degree of care, skill, and patience necessary under the circumstances, which required him to regulate the speed of his ship so as not to strain the vessels in tow, and to wait when necessary for repairs, as well as to avoid dangerous storms; that although the master was environed by hard circumstances, such circumstances did not constitute an avoidance of legal liability for failure to perform the contract entered into; that although the master of the Evans consented to start on the voyage with his steamer pulling the second tow, he did not consent to the wrecking of his steamer thereby, and when he found that she would not stand the strain he did right in calling a halt; that the fact that the Evans got through to St.

Michaels by the use of her own power after being left by the appellant vessel proved that she was a strong, well-built vessel; that other steamers of the same class were taken from Seattle to St. Michaels during the same season in tow of seagoing vessels, and there does not appear to be any reason why the Evans should not have been towed safely, if taken by the safest route, and if the necessary care and patience had been exercised on the part of the master of the towing vessel.

The rule has been well established in cases in admiralty in this court, and, as we believe, in the supreme court of the United States, that where the objection to a decision is that it is based upon a fact found by the lower court upon conflicting testimony, or upon the testimony of witnesses whose credibility is questioned, the decision of the lower court will not be reversed unless it clearly appears that the decision is against the evidence. The Alijandro, 6 C. C. A. 54, 56 Fed. 621, 624; The E. Luckenbach, 35 C. C. A. 628, 93 Fed. 841, 842; The Anaces, 45 C. C. A. 596, 106 Fed. 742, 743; Elphicke v.

White Line Towing Co., 46 C. C. A. 56, 106 Fed. 945, 946; Whitney v. Olsen, 47 C. C. A. 331, 108 Fed. 292, 296; Davis v. Schwartz, 155 U. S. 631, 15 Sup. Ct. 237, 39 L. Ed. 289; Compania de Navigacion la Flecna v. Brauer, 168 U. S. 104, 123, 18 Sup. Ct. 12, 42 L. Ed. 398; Stuart v. Hayden, 169 U. S. 1, 18 Sup. Ct. 1, 42 L. Ed. 639; The Carib Prince, 170 U. S. 655, 18 Sup. Ct. 753, 42 L. Ed. 1181. It does not appear necessary, however, to resort to this rule to support the findings of the district court in this case.

The preponderance of testimony and the inferences to be drawn from established facts clearly support the findings. There was manifest lack of care and skill on the part of the master of the Noyo in his effort to tow the Evans to sea through Dixon’s Entrance, in the then disabled condition 'of the latter vessel; and the demand of the master of the Evans to be towed into a safe harbor for repairs was, under the circumstances, reasonable and proper.

The fact that the master of the Noyo then abandoned the Evans in American Bay is supported by the testimony of witnesses and the inferences to be drawn from surrounding circumstances,—among others, the protest of the passengers to the master of the Noyo against the delay caused by the towage of the Evans, and their demand that the Noyo should proceed without delay, and by the direct route, to St. Michaels.

This protest and demand undoubtedly had its effect upon the master of the Noyo, and accounts for his conduct in proceeding to sea without the Evans, instead of taking the inside passage, by way of Cross Sound and the coast line, with the Evans in tow. The appellant contends, however, that the master of the Evans unqualifiedly refused to allow the Evans to be towed further under the contract, after arriving at anchor in American Bay, and by so doing broke the contract, and released the towing vessel therefrom.

The testimony shows that the master of the Evans expressed a willingness to proceed under tow if taken by the inside route, but that, rather than be towed further in the reckless manner pursued up to that time, he would go on alone under his own steam. The circumstances do not warrant the conclusion that this statement was made for the purpose of breaking the contract, merely. It was of the greatest importance that the Evans should arrive at St. Michaels promptly, for the fulfillment of its engagements there, and that it might make a trip up the Yukon that season.

Much delay meant the loss of all business for it that season. It must be considered, then, that the master of the Evans was sincere in his belief that to go on over the route insisted upon by the master of the Noyo meant the destruction of his vessel, and perhaps loss of life, and that his refusal to go on under tow was merely a refusal to go over that route.

The appellant also contends that, in the absence of special agreement, the choice of route was a matter resting in the sound judgment of the master of the towing vessel, and that the Noyo was only required to convey the tow to destination by the most direct customary route. Conceding this, and granting the correctness of the decisions cited in support thereof, it does not appear in this case that the master of the steamer Noyo exercised sound judgment in the choice of route.

It is not borne out by the evidence with regard to the attempts that were made to go out into the open sea with the two tows, nor the result of the final venture with but the one vessel in tow; it appearing that the remaining vessel, the Alfred J. Beach, towed by the Noyo, was lost on the second day after proceeding to sea without the Evans, not being able to withstand the strain of the towing against a head sea.

The majority of vessels with tows proceeded by the inside route, where shelter was easily afforded during the greater part of the voyage, while wreckage and disaster seem to have followed those that attempted' the open sea route. “Reasonable care and skill” depends for its

interpretation upon the peculiar circumstances of the case in question. In the towing of a boat built only for the shallow water of an inland stream, greater care must necessarily be used when venturing upon an ocean voyage than with a vessel fitted for the deep water, not only in the choice of route, to select the one affording the smoothest water and convenient shelter in stormy weather, but in the handling of the tow.

This quality of care and skill does not appear to have been given by the steamer Noyo, and its absence constitutes a breach -of the contract in question, fixing liability therefor, upon'the owners of such vessel. Exception is taken to the apportionment of damages by the lower court, and the contention is urged that, even if the Noyo shall be found guilty of negligence, the Evans must be found to have been at fault as well, in which event, in accordance with admiralty practice, the damages should be equally apportioned. The Evans has not,been found to have been at fault, and this rule is therefore not applicable.

The court below allowed to the libelant— The advance payment made on account of the towing contract, which, service was unperformed. $2,000 Additional expenses to the Evans caused hy the breach of contract and . delay, $100 a day for 30 days. 3,000 Loss of business on stipulated transportation up the Yukon river for the Noyo .,. 2,500 $7,500 With offsets to the respondent below as follows: Coal kept and used by the Evans, 50 tons, at $15.$ 750 Balance of towage money if contract had been performed_ 2,500 3,250 Balance in favor of the libelant.' $4,250 An entirely accurate estimate of damages seems impossible to be mdde from the evidence introduced, but the foregoing is undoubtedly just, and should be upheld.

As tó the exception with regard to the admission of the deposition of Capt. Charles H. Lewis, the master of the Evans, the objection that- the deposition was not properly authenticated or verified appears to be covered by the stipulation of the parties, providing that the'document purporting to be the deposition of Charles H. Lewis should be treated as if the same had been signed and sworn to by the said deponent, and had been attested and returned by a competent officer under the stipulation for taking said deposition. The other objections to this deposition are equally untenable.

We are also of the opinion that the exception to the item of $71 for costs incurred in the premium paid for bond should not be sustained. , The claimant of the libeled vessel secured an order from the district cpurt requiring the libelant to give security to the claimant in the sum of $5,000 to respond in damages as claimed in respondent’s cross libel. The order was made in accordance with admiralty rule 53, and the libelant furnished the American Bonding & Trust Company of Baltimore City as surety on the indemnity bond.

The cost for this security was $71, as charged in the cost bill and allowed by the district judge. Expenses incurred under a lawful order of the court may be taxed as part of the judgment against the losing party. Neff v. Pennoyer, 3 Sawy. 336; Fed. Cas. No. 10,083; Simpson v. One Hundred and Ten Sticks of Hewn Timber (D. C.) 7 Fed. 243, 246; Dennis v. Eddy, 12 Blatchf. 195, Fed. Cas. No. 3,793. The decreé of the district- court is affirmed.