1. Where, on a reference by a district court sitting in
admiralty to assess the damages done by a collision, the master
after taking depositions reports a certain sum as due, but is not
requested by the respondents in the case to return the testimony or
his finding of facts into court, and though returning certain parts
of the testimony, does not return the whole, nor any finding of
facts, and the court confirms his report and enters a decree
accordingly -- a decree affirmed by the circuit court -- this Court
cannot, in the absence of the testimony and where the record does
not afford any satisfactory statement of facts to enable it to
determine that there is any error in the report of the
commissioner, review that matter.
2. A steamer condemned in damages for an accident occurring to
her tow, which she was taking round a dangerous point with a very
long hawser.
The Cayuga, a steamer engaged in towing canal boats
upon the Hudson River, took, on the 25th of May, 1867, the canal
boat
Floating Battery, loaded with sand, in tow at Albany,
to be brought to New York. The whole tow of the steamer consisted
of thirty canal boats and two barges, the latter being from 150 to
200 feet astern of the former. The canal boats were placed in six
tiers, each consisting of five boats, the
Floating Battery
being the starboard boat of the hindmost tier, bringing her the
nearest to the west shore.
The distance from her to the Cayuga was about 1,000 feet.
Upon the first night out, the
Floating Battery was
brought in contact with a lighthouse near Coxsackie with such force
that her lines parted and she was separated from the tow. She was
replaced, however, in her old position by the aid
Page 83 U. S. 178
of a passing steamer without much difficulty. After this, she
leaked a little, "about as much in twenty-four hours as a man could
pump out in an hour." The evidence was clear that prior to this
accident she was uncommonly dry and free from leaking. On the
morning of the 28th of May, at about 12 1/2 o'clock -- the canal
boat having been but a short time before pumped out -- as the
steamer with her tow was rounding West Point, the canal boat struck
something (a submerged rock the libellants alleged), upon her
starboard side with such force as to throw her captain, who was
lying down in the cabin, out of his berth, and -- the blow being a
"sagging blow" -- to cause the boat to strike her companion upon
its port side with great violence, sending the latter against its
neighbor. At this time, the canal boat was not more than ten feet
from the rocks upon the west shore, "so near that a man could have
jumped from her upon those rocks."
As soon as the captain could gain his feet, he rushed upon deck,
and being convinced that the boat was sinking, he and the bowman
went immediately into the cabin for the purpose of securing their
personal effects. When they reached it, they heard the water
rushing into the boat, and before they had procured their clothes,
the water was upon the cabin floor.
The helm was then lashed to port to send the boat to shore. By
this time, she had sunk so rapidly that the water was rushing in at
the cabin windows, within a few inches of the deck. This was only
two or three minutes after the blow. The lines connecting her with
the next boat were then cut, her men stepping upon the boat upon
her port side.
Two witnesses standing upon the next boat to the canal boat
which was struck, close to her, who were not interested in any way
in the cause, testified positively that they saw her sink stern
foremost. No horn was blown after the canal boat received her blow,
nor any lantern swung -- the usual signals from a vessel in tow to
her steamer when desiring aid. The steamer did not stop, and her
officers knew nothing of the accident to the canal boat until the
next morning.
Page 83 U. S. 179
A light that had been seen on the canal boat, it appeared, had
been seen for a considerable time, perhaps half an hour, after the
accident. The only light, however, on the canal boat was from a
sheet iron stove, which weighed about fifty pounds and was placed
upon a movable galley, not fastened to the deck. When the boat sank
the galley might have floated, the stove not being heavy enough to
sink it.
The owners of the canal boat having libeled the steamer in the
district court at New York, that court entered a decretal order in
favor of the libellants and referred the cause to a commissioner to
assess the damages. He took depositions and reported the value of
the boat and cargo at $2,329.92. The owners of the steamer excepted
to the amount allowed, but they did not state what would have been
a fair allowance for either boat or cargo, nor did they request the
commissioner to report the evidence or his finding of the
facts.
Some testimony was given in the record as having been taken
before the commissioner, but it was not certified that it was all
that was put before him. The district court confirmed the report of
the commissioner and entered a final decree in favor of the
libellants. The owners of the steamer thereupon appealed to the
circuit court, where the decree of the district court was affirmed.
They then appealed to this Court, and the case was here upon the
same testimony as that introduced in the courts below.
Page 83 U. S. 181
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Damages are claimed in this case by the owners of the canal boat
Floating Battery against the steamboat
Cayuga in
a cause of tort civil and maritime for the loss of the canal boat
and her cargo, consisting of two hundred and twenty-five tons of
moulding sand, which the libellants had engaged to transport from
the port of Albany and to deliver in the City of New York to
certain consignees.
Employed as the steamboat was in towing boats and barges between
those ports, the owners of the canal boat, on the twenty-fifth of
May, 1867, applied to the agent of the steamboat to take the canal
boat in tow, and he undertook and contracted to tow the canal boat,
as requested, to her port of destination, and it is alleged that
the steamboat, in the evening of that day, took the canal boat,
with other boats and barges, in tow and proceeded down the river in
execution of the contract. Besides the canal boat of the
libellants, the steamboat had twenty-nine other canal boats in tow
and two barges, the canal boats being arranged in six tiers of five
boats each, the canal boat of the libellants being the starboard
boat of the hindmost tier, and nearest to the west shore. By the
record, it appears that the whole six tiers of canal boats were
towed by hawsers from the stern of the steamboat extending aft from
eighty to one hundred fathoms, which were fastened to the foremost
tier of the canal boats, showing that the canal boat of the
libellants was more than a thousand feet astern of the steamboat
when the whole were in motion, as the canal boats are about a
hundred
Page 83 U. S. 182
feet in length. All the canal boats except the first tier were
propelled by lines from the stern of the canal boat immediately
ahead, and they were kept in their places by breastlines. Arranged
as described, the steamboat with her tow, including also two barges
of a larger class than the canal boats and propelled by long
hawsers extending aft from the stern of the steamboat a distance of
a hundred and fifty feet further than the last tier of the canal
boats, proceeded down the river; but it appears that the canal boat
of the libellants was brought in contact, during the first night of
the trip, with a lighthouse in the river with such force that her
lines parted and she was separated for a time from the other canal
boats of her tier. Prompt measures were adopted to pick her up, and
she was soon, by the aid of another steamer, replaced in her former
position as the starboard canal boat in the sixth tier of the tow.
Prior to that accident, the evidence is clear and undisputed that
the canal boat of the libellants was stanch, tight, and in every
respect in good condition, but she received some injuries by the
collision, causing her to leak a little, making it necessary to use
her pump, say for an hour once in twenty-four hours, showing that
she was still seaworthy and not disabled. On the morning of the
third day of the trip, about half-past twelve o'clock, as the
steamboat, with her thirty canal boats and two barges in tow, was
rounding West Point, the canal boat of the libellants struck some
object in the water, her starboard side coming in contract with it
with such force as to throw her master from his berth, in which he
was lying, and to cause the boat to careen and strike the boat on
her port side, sending the latter against the next boat in the same
tier with great violence. Injuries of a very serious character were
occasioned by the accident to the canal boat of the libellants. Her
planks below the waterline on the starboard side were broken to
such an extent that she filled with water with such rapidity as to
prevent the master and bowman from securing their clothing, which
was below, and to cause the canal boat with her cargo on board to
sink in two or three minutes. Process was issued and served and the
respondents
Page 83 U. S. 183
appeared and filed an answer. Testimony was taken, and the
district court entered a decretal order in favor of the libellants
and referred the cause to a commissioner to compute the amount of
the damages. Hearing was had before the commissioner, and he
reported that the damages amounted to $2,329.92.
Exceptions were taken by the respondents to the amount allowed
by the commissioner as the value of the canal boat, and also to the
charge for the value of the cargo, but they do not state what would
have been a proper allowance for either charge, nor did the
respondents request the commissioner to report the evidence or his
finding of the facts. Certain testimony is given in the record as
having been taken before the commissioner, but it is not certified
that it is all the testimony introduced before him, nor does the
transcript afford any satisfactory statement of facts to enable the
court to determine that there is any error in the report of the
commissioner. Pursuant to that view, doubtless, the district court
confirmed the report of the commissioner and entered a final decree
in favor of the libellants, and the respondents appealed to the
circuit court, where the decree of the district court was affirmed.
Whereupon the respondents appealed to this Court, and now submit
the case upon the same testimony as that introduced in the
subordinate courts, and ask to have the decree of the circuit court
reversed.
Most of the material facts touching the merits are either
admitted by the respondents or so fully proved as to supersede all
necessity for much discussion of any such topic. They admit that
their agent undertook and agreed to tow the canal boat of the
libellants from the port of departure to her port of destination,
and that, having undertaken to perform the stipulated service, they
were under obligation to see that it was performed with ordinary
and reasonable care and skill and that they would be liable if they
or those in charge of the steamboat were guilty of any such
negligence in the performance of that duty as caused the loss of
the
Page 83 U. S. 184
canal boat and her cargo. Conceding all that, still they deny
that they or those in charge of the steamboat are responsible for
the disaster, but contend that same was caused either by the
unseaworthiness of the canal boat or the neglect and fault of her
crew or those in charge of her in not using her pumps, or in
failing to stop some leak, or other neglect or fault of those
parties for which the respondents are not responsible.
Mismanagement and fault are imputed to those in charge of the canal
boat as follows: that they cut the canal boat loose from the other
boats in the tier as the steamboat with her tow rounded West Point,
and while she was proceeding down the river in her proper course,
and the charge is that they did the act from an apprehension that
the canal boat was in a sinking condition, and without any notice
or alarm to the steamboat or to those entrusted with her
navigation; and they deny that the steamboat was so navigated as to
cause the canal boat of the libellants to strike against the rocks
at that place, or that her bottom or side was broken by any such
casualty as that alleged in the libel, or that those in charge of
the steamboat were guilty of any fault, negligence, or
carelessness. Such denials cannot avail the respondents, as the
evidence to prove the allegations of the libel is full and
satisfactory and abundantly sufficient to show that the decision of
the subordinate courts is correct.
Attempt is made in argument to convince the court that
considerable time elapsed after the canal boat of the libellants
was cut loose from the other canal boats in the same tier before
she sank, as tending to show that the final disaster was
attributable to the mismanagement of those in charge of the canal
boat in cutting the lines which held her in the tow. Having lashed
her helm to port, they cut the lines which held her in her position
that she might go ashore, which it seems would in all probability
have occurred if the canal boat had continued to float, but the
evidence satisfies the Court that she filled with water and sank
before there was time for any such hope to be realized. Inferences
of an opposite character are drawn by one or two
Page 83 U. S. 185
witnesses of the respondents, but they have no actual knowledge
upon the subject, as is clear from their own statement. They infer
that the canal boat continued to float down the river for some time
after she received the injuries because they saw, as they suppose,
a light floating upon the water, which it is quite as probable was
a light on the shore or the light in the galley of the canal boat,
as that, not having been fastened to the deck, might not have been
submerged in the disaster to the canal boat and her cargo.
Suffice it to say that the evidence that the canal boat sunk in
two or three minutes from the time she received the injuries
described is such as to convince the Court that it is true and that
the statements of the other witnesses, not being founded upon
actual knowledge, are not sufficient to support the allegations of
the answer.
Nothing further need be remarked in respect to the charge that
the master of the canal boat was guilty of mismanagement, as it is
clear that the charge is without any support, and it is quite clear
that the exceptions are not of a character to enable the court to
review the findings of the master.
Decree affirmed.
