NEEL
v.
BLYTHE.
457
of said corporation, by reason of its said infringement, or which should, before the close of the accounting, accrue to them by reason of an infringement of the same patent by these individuals under the cover of some other name, or under the guise of a new corpo:'-';'ion; but it was not intended to direct an accounting of profits arising from infringements by other previously existing corporations, like the Peoria Company, in which the Hamlins were stockholders, or in corporations which had previously been formed in good faith. and not for the purpose of eva<ling the obligations or terms of the decree, although in such corporations the Hamlins were controlling stockholders. In the opinion of the court, the questions which have been certified by the master are inadmissible.
et al.
'11. BLYTHE
:i
(Dlstrlet Court, W. D. Pimnsylvania. May 211, 1890.) L CoLLI8ION--VE8SEL8 TORN FROM MOORINGS-FLOOIi8-INEVITABLB ACOIDBNT.
During a sudden and. extraordinary flood in the Monongahela river, tbe defenda.ntB' fleet of water-craft was torn from its moorings at nigbt,and carried down . stream, and, it was charged, collided with and damaged the libelants' coal-boatS. Upon the facts disclosed by the proofs, hel,d, .that the case was one of inevital:!le accident. SAME-DILIGENOE.
S.
Tbere being no such particular relation between the libelants and the defendants as imposed upon the latter any special obligation, they were not bound to exercise more than ordinary prudence, skill, and diligence to hold their :fleet. . ' , , ',ij
,
8.
SAME.
The highest degree of caution that could be used was not reqUired of the de, fendants.
In Admiralty. Libel in personam. D. T. Watson and Knox &; Reed, for libelants. D. F. Patterson and T. H. Baird, for respondents. ACHF:sON, J. I shall not discuss the question of juri8diction, but, fo)lowing the later decisions, will regard the case as one cognizable in a cOtut of admiralty, and proceed at once to a consideration of the merits of the ,controversy. The libel charges, in substance, that the defendants' of water-craft and rafts of timber,-composed of three barges, five .coalboats, a flat-boat, and several rafts,-which was lying in the Monongahela river at Monongahela City, was improperly, negligently, and insufficiently moored and tied up, and that by reason of negligence in that regard said fleet broke away from its moorings about 11 o'clock on the night of 10, 1888, and, drifting down the river, came into collisi4¥) with, and thereby sunk and damaged, thirteen coal-boats belonging to the libelants, which were lying in the river 200 feet below, well and. securely movred to the shore: Upon a careful examination of the vQluprQpfs, lfind the material facts to be as follows: The deferidantIJ'
458
FEDERAL REPORTER,
vol. 42.
,fteet"1m& Iilooredat theil' own' priiVate landing, which was in all respects and safe plooe'fol' Iilooring water-craft. At the head of the landingwerefour abutnrents,thetops aithe tying posts of which were as high 813 the highest point on the river bank at that place. The fleet lay illlmediately below these abutments, and was secured thereto by a chain ,and five ,lines, which ran from the posts on the tops of the three outer abutments 1'0 different points on the head of the fleet. There were also two lines attached to the lower, part of the fleet, and extending to a post on the;shore upstream, and a 'further line tied to the inside barge, and l'unning'to an in front ,of the defendants' planing-mill. This of affairs on the morning of July 9, .1888, when the river began to swell. Then, on, the afternoon of that day, still another line was run from the inside post of abutment No.2 to one of the rafts, and thence to the outside barge. All these lines were reasonably good and suitable, such as are ordinarily employed for the like purpose and under like circumstal;:lCes. had been nounusual local rain-fall, and no con"siderable 'rise waS looked for by the defendants or others at Monongahela, Oity. rise, from the head-waters of the river; and, even after it began at Monongahela City, the height to which, tpe water eventllally, altogethe,r;, unforeseen. Mr. Fordjaman ofetperience, who assisted in putting additional lines on ,t.4e testifies ()n Tuesday, J \}ly 10th, he had no idea that ,the :water would come to within 10 feet of the point it ultimately attained; and H. L. Abrams, who has had personal knowledge of the , many, years, testifies: '"it w'as'thegreatestrise we ever ,had. and the most deeeptive rise.-kept on rising when everybody thought it had quit; and it kept on." ." I ·. ·
·
.
'
On July 10th, (Tuesday,) especially during the afternoon, some of the defendants,with a large force of employeil, were engaged constantly in putting out additional lines to shore, tighteriingup·the lines so as to in the fleet, and doing whatkeep an equal strain on 'them, ever else seemed to them to be riecessary for its security. Probably, altogether, there were as many as 15 men so employed, and those who hadoversigbt of the work were at least of average experience and skill in such Iillltters. On the morning of that day another inch and a half line was putout from the abutmeiltnear the logway of the planingmill to the lower part of the fleet; and a stern line was run thence to a post on shore ; and later in the day three other suitable lines were run from the lower part of the fleet, and fastened t.o shore. Then, some time 'after 2 o'clock in the afternoon, the defendants borrowed a new or ,'nearly neW two-inch line from LeWis Staib, and it ",as: tied to a walnut 'tree whichistoodon the: riverbank a short distance 'above the head of 'the fieet',hlldwas run aIid'fastenedto two of the rafts, in the upper part , of.ethefleet. 'Furthermore, severaHines-four' of them each an inch , and a htlif thick-wei-eruIl,' s6me i froni. a pear ,tree, and some from a eherrytree,bnthe river bank; and'niade fast to the upper pa.rt ofthe lleett il ,lphe'walnut, pear, and cherry so 'used were live,sound trees; the
liEEL fl. BLYTHE.
f(mner being of the diameter of about 15 inches, and the pear,'and t:herry each of the diameter of from 10 to 12 inches. These trees> and particularly the walnut, had been. used for tying fleets for a number· of years by the defendants and their predecessors in business. Aocording to the clear weight of the evidence, all the lines so put out on Tues- . day, except the one stern line, ran, with respect to the river,at an angle of about 45 deg., and thus operated as head-lines to hold the fleet up against the current, while tending at the same time, also,to breast the fleet into shore. Late in the afternoon (in consequence, it would seem, of a suggestion made by James Neel, one of the libelants} the defendants borrowed from the railroad company two two-iu{:h lines, . which they tied together; so as to give sufficient length, and the line was made fast to a cherry tree near the railroad, and the other end fastened to the upper part of the fleet as a breast-line, and a twister was put in the line, and used to draw the fleet in towards the shore. Besides the suddenness of the rise, the flood was extraordinary in other respects. The water reached a height above that of any former flood of which there is any record or knowledge. The force of the current, too, was unusual ; attaining on Tuesday, the witnesses declare, a velocity of from eight to ten miles an hour. The drift, also, was remarkable, both in quantity and composition. Besides the more usual things, the witnesses mention flats, coal-boats, barges, rafts, coal-tipples, bridges, out-buildings, and "large trees taken out by the roots" asbeiIig swept down stream. During Tuesday a great quantity of drift-wood> such as stumps, logs, etc., accumulated above the defendants' four abutments, and by the afternoon it had become a solid mass, piled up against the abutments. At 6. o'clock on Tuesday evening the water was over the tops of these abutments, and it had risen probably as much as four or five feet more by 10 .or 11 o'clock that night, when the catastrophe under investigation occurred. It was then very dark, and those nearest could not see what took place. Only one of the witnesses claims to have been able to distinguish objects, and he states that he saw one of the defendants' barges strike the libelants' fleet. Several witnesses,: , who were favorably situated for hearing, testify that they first heard, apparently at the head of the defendants' fleet, a great ' two heavy bodies cQming together," one describes it,-which was immediately followed by the snapping of lines j . the difference between the · sound of the crash and that of the breaking of the lines which ensued· being 'quite distinguishable. Capt. Wilson Layman, a witness for the libelant, who was on board the steamer Stella, which was tied to, the outside of the libelants' fleet, the head of which fleet was 200 feet below. the foot of defendants'fleet, states that he heard "the crash above," and someone hallooing, "Here she goesl" and that ahout thesametimehe heard "lines suapping and cracking up about the mill j" and that very shortly afterwards,·not more than a minute or two; he heard a crash· into !the 6ee,t. He says. he, thought it was the defendants' fleet that struck the libelants' fleet; :buthe adds: "I coUld not say,itwas ,so dark." Whatever may have been the immediate cause of the disaster",
42.
which befell' the libelants', it is certain that the two fleets were swept away at nearly the same time the defendants' fleet moving first, and libelants' fleet moving very soon afterwards. The rise continued during the night; the flood not reaching its extreme height until the next morning. As indicating how "the waters prevailetl" then, mention may here be made of the fact, stated by lVIr. Neel, that, the flood fltood ten feet up on the trunks of the two Yohe pear trees, of which we shall soon have occasion to speak. After daylight it was that the lhass of drift which had been above the abutments was gone, and it also appeared that the walnut tree and pear tree and. the ch.erry on the river bank to which lines were tied had been pulled by ,the roots, and carried off bodily. The cherry up at the railroad was stRIidihg; the line attached to it having parted . . Now, the defendants maintaill that the crash first heard by the witnesses was occasioned by the great mass of drift coming over the tops of the and striking the head oftheir fleet; and that this mass, sweeping onward, was the immediate cause of a common disaster to the two fleets. Certainly, there are circumstances among those heretofore nl1rtatedwhich well comport with the theory that the defendants' fleet was thus hrokeri up and turned loose; and if, indeed, that body of drift\\iood',' rising with the water, came over the abutments, and was driven against'the'head of the defendants' fleet,it is very difficult to conceive how the loss here in question could have been averted by any precautionary measures open to the defendants. But the libelants, denying the stJundness ofthe above hypothesis, insist that the loss they suffered was due totheeu1pability of the defendants in at least two particulars. It is shown that two large pear trees stood in the lot of "Yohe Brothers," a:shortdistance above the walnut, and a little further in from the river than it stood, which trees for a long time had bAen used in high floods 101' tying fleets which lay at the defendants' landing; and it is asserted that the fa.ilure to use those pear trees on this occasion was a serious and inexcusable fault. Again, it is alleged that the defendants' fleet was not properly breasted into the shore, but was unnecessarily and negligently left exposed to the force of the current. To substantiate these charges, the libelants examined a number of witnesses. Such of them as are experts express the opinion that the defendants should have fastened headlines to the Yohe pear trees; and they further say that the lines to the 'abutments should have been loosened, in order that the fleet might have swung or been drawn into the shore as the river rose; while at least one of these witnesses states that it would have been still better had the lines to the abutments been thrown ofi' altogether. On the other hand, the defendants have shown that the Yohe pear trees had become rotten inside, and that their tap-roots had rotted away ,-facts tending to the. conclusion thiJ,t those tre-es were no longer entirely safe for tying purposes;, and then the witnesses on the part of the defense testify that in fact the defendants' fleet was properly breasted into the shore, and, indued, ae fal in as,the piles of timber and the oakum house on the river bank would allow.
,-i-11E
SAGUA
V. THE GRAcE.
461·
After tlie most patient study of the evidence, lam not convinced that the defendants were guilty of culpable negligence in any particular whatever. If it be conceded that the direct cause of the libelants' loss was the collision charged, still, under the proofs, it was, in my judgment, a case of inevitable accident, within the rule in admiralty. The Austria, 14 Fed. Rep. 298. The rule is thus declared by the supreme court, even in respect to a vessel moving under the control and guidance of a master, officers, and crew: "Inevitable accident is where a vessel is pursllillg a lawful avocation in a lawful manner, using the proper precautions against danger, and an accident occurs. The highest degree of caution that can be used is not required. It is enough that it is reaslmable Jluder the circumstances. sllch as is usual in similar' cases, and has been found by long experience to be sufficient to answer the end in view.-the safety of life and property." The Grace Girdler, 7 Wall. 196. 203.
The witnesses who condemn .the speak with, the wisdom that comes after the event. But the defendants are to be judged with to the extraordinary circumstances in which they found themselves. . They were called upon to act in an emergency, and hadtQ 1ace perils unexpected, and increasing to the end. The situation, was 'one' of surprises. Certainly, the choice of' ti'lJes to tie to was a matter' for' the exercise of mere good judgment, and a mistake here would not justly subject the defendan1;.s to a charge of carelessness. Bh>iJm v. French, 104 Pa. St. 604. Their own property was at stake, and they were moved by the'powerful stimulus of self-interest to do whatever was possible to save their fleet. It is not to be doubted, that to that',·eild they gave their very best endeavors. The defendants stood in no such particular relation to the libelants as imposed upon them any special obligation; and assuredly they were not bound to exercise more than' ordinary prudence, skill, and diligence. Shear & R. Neg. § 22. That they conformed, at least, to that standard of duty, I have no hesitation' in holding. Let a decree be drawn dismissing the libel, with costs. .
THE SAGUA 'V. THE GRACE AND
THE
RESCUE. 1
THE GRACE 'Ii. THE SAGUA AND THE BATTLER.
(District Oourt, E. D. Pennsylvania. :May 18, 1890.)
1. 2.
COLLISION-TUGS WITH Tows-LIABILITY OF TuGS.
Where tugs having tows in charge pass, and allow suftlcient room, if their tows follow them, to pass safely, they cannot be charged with fault if the tows, through bad steering, collide, although they could have allowed m,ore room. When a tow fails to follow her tug, and as a result a collision takes must respond in damages. " :i : Tows. .' ' '
she
:
I
ReI./0rted by O. Berkeley Taylor, Esq., of theJ>hil,adelpbie..bU.