Gilchrist Transp. Co. v. Sicken
Gilchrist Transp. Co. v. Sicken
Opinion of the Court
About 6 o’clock in a dark, stormy evening in November, 1903, the steamer, John Harper, a vessel 290 feet in length by 40 feet beam, laden with coal, towed the barge, Gawn, light, a sailing vessel 171 feet. in length by 32 feet beam, which the Harper was taking from Lake Michigan to the port of Duluth, against the outer end of the south pier of the Duluth ship
The Duluth ship canal extends in a general easterly and westerly direction and is 1,200 feet long and 300 feet wide at its eastern end. It cuts near its base Minnesota Point, a narrow tongue of land which stretches several miles in a southeasterly direction and separates Lake Superior from the harbor of Duluth. Heavy cement piers hound the sides of the canal. On the outer end of the south pic.r there is a lighthouse and a fog signal and half way from the eastern to the western end of this pier is a range light. On the north pier are electric lights. The Harper came up Lake Superior from the vicinity of Devil’s Island on the usual course, towing the Gawn on a line 900 feet long. The usual course brings vessels a mile and a half or two miles south of the entrance of the canal, as they approach Minnesota Point. At some distance from the shore the crew of the Harper discovered the lights of the harbor and of the piers. The wind was blowing from the northwest at the rate of between 35 and 40 miles an hour, so that it was running at nearly right angles with the course of the canal. After the lights were discovered the Harper shifted its course toward the north and ran into the wind. It signaled the Gawn to shorten its tow line. It signaled for a tug. It subsequently gave a signal to the Gawn to make fast its line. It turned to port and ran into the canal. The Gawn failed to shorten its line because it was too taut. It drifted to leeward as the Harper entered the canal and struck the south pier. The facts which have been thus far recited are not in dispute and they are not decisive of the questions in the case. The testimony of the witnesses for the respective parties in regard to the facts which condition the determination of the issues in this case is in hopeless conflict. The witnesses agree that at some place within seven miles of Duluth the Harper was south of the projected line of the canal, that she shifted her course toward the north, ran into the wind until she reached or passed that line, and that she subsequently turned to port and entered the canal. It goes without saying that when the Harper headed toward the northwest into the wind the Gawn must have tailed oil to leeward on a line approximately at right angles to the line of the canal and that as they approached the harbor an obvious clanger arose which no navigator of skill or prudence could have failed to perceive and to endeavor to avoid, the danger that a turn of the Harper to port at a point too near the canal would draw the barge upon the south pier. The evidence for the respective parties is addressed to the acts of the masters and crews of the two vessels, in respect to this acknowledged danger. The witnesses for the libelants are the master and the members of the crew of the Gawn, the wheelsman of the Harper, the master of a tug which answered the signal and picked up the Gawn after the accident and the keeper of the light house. Their evidence is that
On the other hand, the master and the members of the crew of the Harper testify that they shifted her course toward the north at a point about six miles out in the lake and ran into the wind until they crossed the projected line of the canal and opened the range lights to the northward at a place about three miles out, that they then gave the signal to shorten the tow line and for the tug, checked and held the steamer in its place for half an hour, then signaled to the barge to make the line fast, headed the steamer and kept her on a course north of the line of the north pier until she came within 100 or 200 feet of the canal when they starboarded her wheel so that she would clear the north pier and then ported it and sent her at full speed through the canal about 75 feet south of the north pier. They testify that the Gawn followed nicely, that she came up north of the extended line of the north pier and did not drift off to leeward until she was from 75 to G00 feet of the piers when she suddenly sheered to the southward and struck the south pier.
The court below was unable to credit the story of the master and crew of the Harper, and concluded that they ran into the canal when the barge was drifting to leeward so far under the heavy northwesterly wind that a navigator of ordinary prudence and skill would have held the vessels out in the lake until a tug arrived, or would have taken some other course to avoid the plain danger of the collision and that this negligence of the master of the Harper was the cause of the accident. A careful examination of the testimony in the light of the briefs and arguments of counsel and the established rules of law applicable to a case of this nature has failed to lead our minds to a different conclusion. At some place within seven miles of Duluth the Harper was from one to two miles south of the projected line of the canal. At some time after she arrived at this place she ran in a northwesterly direction to, or across that line. When she arrived at the line the barge must have been far to her leeward on the 900 feet of line. The witnesses for the Harper say that after this the Harper ran for more than two miles on a course north of the extended line of the north pier before she squared away
The court below was of the opinion that the master of the Gawn was guilty of negligence which contributed to the injury, because he failed to throw off or to cut the line when he discovered that his vessel would strike the pier. His vessel was without power, and the primary duty and responsibility for her safe transportation fell upon the master
The proctor for the owners of the Harper makes other claims of negligence on -the part of the master of the Gawn. He insists that the _ Gawn was negligent because she failed to shorten her tow line, and failed to signal that she had not done so, but the testimony convinces that the wind kept the line so taut that she could not safely shorten it, and that the lights of the Gawn and her distance were perceptible to the master and crew of the Harper as the latter approached and entered the canal; because she failed to use her centerboard, but the weight of the testimony is that she used it; and because she eased up on her wheel as she approached the piers and thereby permitted herself to sheer to leeward and to fall into collision, but the record convinces that her wheel was hard aport all the time * after the Harper squared away for the canal. These various charges of contributory negligence were not sustained by the court below, and our conclusion is that the evidence fails to support them.
The decree below must accordingly be reversed, and the case must
Reference
- Full Case Name
- GILCHRIST TRANSP. CO. v. SICKEN SICKEN v. GILCHRIST TRANSP. CO.
- Status
- Published
- Syllabus
- 1. Towage — Negligence of Tug — Liability. A steamer which engages to tow a vessel to a port undertakes to exercise reasonable skill and care in everything relating to the work, including the entrance to the port, and the lack of either charges her with liability for the damage caused thereby. [Ed. Note. — For cases in point, see vol. 45, Cent. Dig. Towage, §§ 11-23.] 2. Same. The entrance to the harbor at Duluth is through a canal 1,200 feet long and 300 feet wide, which extends in a general easterly and westerly direction and is bounded by heavy cement piers on each side. It was negligence for a laden steamer which was towing a sailing vessel light up Lake Superior to Duluth upon a line 900 feet long when the steamer approached the canal from a southerly direction into a northwesterly wind of 35 to 40 miles an hour which blew nearly athwart the line of the canal, to fail to wait for a tug or to take some other reasonably safe course, and to attempt to draw the barge, whose lights were visible, and which was drifting far to the leeward, into the canal, whereby the barge was brought into collision with the outer end of the south pier and damaged. 8. Same — Contributory Negligence of Tow. The master of a barge in tow of a steamer which has drawn it up from a southerly direction in a heavy northwest wind and then squared away to enter the Duluth ship canal, who first learns when he is moving at the rate of 10 miles an hour and is within 200 feet of the south pier, that his vessel will be drawn against it, is not guilty of contributory negligence because he fails to throw off or cut his tow line before his barge strikes the pier. 4. Same — Acts of Master In Extremis. The acts and failures to act of a master of a vessel after it has been put in extremis by the negligence of another, do not ordinarily constitute contributory negligence even when erroneous. [Ed. Note. — For cases in point, see vol. 45, Cent. Dig. Towage, §§ 24-26.] (Syllabus by the Court.)