
    William M. Tebo, Resp’t, v. Henry G. Jordan et al., App'lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1891.)
    
    1. Charter party—Duty of master of vessel a question of law.
    A tug was towing barges off Nantucket Shoals. The night was hazy and a light which determined the course was not visible. The channel was narrow; with shoals on either side. The master miscalculated the force of the tide, and this, with the wind acting in the same-direction, stranded the vessel. Held, that it was error fi r the court to submit to the jury the question whether in such a situation it was the duty of the master to anchor, verify his position, and take soundings; that the duty of the master was a question of law.
    3. Same—Liability of one who charters a vessel.
    One who charters a vessel is bound to pay for it as long as he uses it, even though the vessel is unseaworthy.
    (Ingraham, J., dissents.)
    Appeal from a judgment recovered on a verdict, and from an order denying a motion for a new trial.
    
      J. A. JShoudy, for app’lts; W. W. Goodrich, for resp’t.
   Daniels, J.

The defendants entered into a charter-party with the plaintiff, who was the owner of the steamer B. T. Haviland, to tow their coal barges from Mew York, Philadelphia or Mew-port Mews, to Boston, or some other port not east of Portland, in Maine. This charter was made on the 23d of October, 1888, and was to extend from the 26th of the month to the 1st of May, 1889. The compensation to be paid for this use of the steamer was the sum of $2,200 per month, and the privilege was reserved of cancelling the charter upon one month's notice. It was further stipulated that the defendants were at liberty to place a representative on the steamer at any time they saw fit, who was to be free of cost to the tug, excepting the food, which was to be supplied. And for" damages which might be caused by the dangers of the sea the steamer was not to lie held responsible. Under this charter the steamer was engaged in towing the vessels or barges of the defendants until on or about- the 8th of December, 1888, when a notice was served declaring that the defendants would not employ the steamer after that date, on account of the stranding of December 2, 1888, and other injuries received by the tows while under charge of the steamer. The plaintiff declined to acquiesce in this termination of the charter, and after the expiration of one month from the service of the notice brought this action to recover the price stipulated for in the charter, after deducting what the steamer had otherwise earned during that month. And by way of defense to the action, it was alleged that through the carelessness or mismanagement of the steamer two of the defendants’ vessels, which it at the time had in charge, were run aground and stranded, from which injury was received by the vessels and a large amount of money expended in repairing those injuries. And whether this grounding of the vessels was attributable to the unskillfulness or negligence of the persons in charge of the steamer at the time was the subject mainly contested upon the trial of the action.

Under such a charter as this was, the rule is quite well settled that the owner becomes obligated to use care and skill in avoiding injury to the vessels constituting the tow. This rule was clearly stated in Alexander v. Greene, 7 Hill, 533, and has been sustained in the decisions of Wells v. Steam Nav. Co., 4 Seld., 375; Taft v. Carter, 59 Barb., 67; The Margaret, 94 U. S., 494, 497, and Steamer Webb, 14 Wall, 406. It therefore became a matter of fact to be determined from the evidence which was taken, whether the vessels were grounded by reason of the inattention, carelessness or unskillfulness of the persons in charge of the steamer at the time, or from what is denominated in the charter the dangers of the sea. It appeared by the evidence that the vessels and the steamer ran aground near what is called Monomoy island. They were then on their way from Newport News to Boston, and the vessels were laden with coal, one drawing about nineteen feet and the other twenty-ohe feet of water. This occurrence took place on Sunday night of the first of December, and about six o’clock in the evening. About that hour the steamer with the vessels in tow reached what is called and known as the Handkerchief Light Vessel. From there her course lay in a direct line to what is called the Shovelfull Light Vessel, and proceeding from that point to Pollock Eip Light Vessel. The distance between Handkerchief Light to Shovelfull Light was from three to five or six miles. And when about a third of this distance had been passed the steamer and the vessels ran aground. This was caused by the failure on the part of the steamer to follow the course laid down between these two lights, and passing so far to the left of the course'as to go beyond the channel and run into shoal water. And it' was by the stranding which there took place that it is stated the injuries complained of were sustained by the vessels.

On this trip a representative of the defendants was on board the steamer, and he, together with the persons in charge of the vessels, testified that the night was clear and dark, -and when the steamer with her tow left Handkerchief Light Shovelfull Light was in sight And if they were correct in their testimony, then it is entirely clear that there was no obstacle in the way to prevent the steamer from passing directly up the channel to Shovelfull Light. But that the night was clear was denied by the persons in charge of the management of the steamer. They testified that the night was hazy and foggy, and that Shovelfull Light was not visible prior to the time when the stranding took place, but that the light most prominently in view was the Monomoy Point Light, situated upon Monomoy Island. And that at this time the wind was blowing from a westerly direction, and the tide which was rising flowed in the same manner; and that there was reason to apprehend from the narrowness of the channel that the steamer and vessels might be run aground on the easterly side of the channel, and for that reason the course bearing to the west was taken. But it is conceded in the evidence of the master of the steamer that the force of the tide was misapprehended or miscalculated, and by that circumstance the steamer went farther to the westward than it was intended she should go. The intention is stated by him to have been to follow the course between Handkerchief Light-and Shovelfull Light, and that the steamer was put to port, as far as that was done, to follow what was supposed to be the line between these lights. And as there was a conflict between the evidence of the witnesses who were sworn for the defendants and this testimony given on behalf of the plaintiff, and the jury rendered a verdict in his favor, the effect of the evidence given on behalf of the plaintiff must be followed as the controlling proof taken upon the trial. This evidence was mainly obtained from the witness John Gully, who was the master of the steamer. He testified, as near as he could remember, he had made about thirty trips over the voyage upon which he was towing at the time when this accident occurred ; that he had charts of the route on board at the time, and was pretty familiar with them, and that he knew Shovelfull Light was a red light, which was a fact agreed to by the witnesses whose attention was directed to the appearance of that light

He further testified that as he approached Shovelfull on this voyage the wind was blowing on the port hand of the vessel, setting it over towards the Stone House shoals, and the tide was running in the same direction as the wind. His statement was that he could not see the Shovelfull light; that there was a haze low on the water. He could see all the other lights, which were higher and white lights, but Shovelfull was the lowest around in that vicinity, which, however, according to the other evidence, was very nearly of the same height as the light on the Monomoy Point. His testimony further was that he could not see Shovel-, full light, which had been put there for a guide, and if he could have seen Shovelfull at the time he. left Handkerchief he should have left it on the starboard side and kept it on the starboard bow until he got near to it, and then left it on the port side to pass up to the Pollock Rip lightship. His cross-examination was still more explicit as to the situation. He there stated that they shaped the course for the Shovelfull lightship, which was about three miles distant, and that the Shovelfull and Monomoy lights were a mile or three-quarters of a mile apart He also added, “ The Shovelfull lightship is one single red light. I did not see it when we came around the Handkerchief lightship first I saw it after we got off the shoal. Provided there was a perfectly clear horizon it should be plainly visible from Handkerchief lightship. It was a dark night, clear night, but I said before, and I say now, there was a haze on the water, low down on the water. It was kind of a very thick, misty looking haze. ” He also stated that it was very narrow there, and there are shoals each side of us going through there. It is a dangerous place, and that it was good navigation to go ahead when you cannot see and do not know where you are going in that case.

“After we got to Handkerchief lightship to go and anchor her I would stand about as good a chance of going ashore as I would going on; it was full of shoals all around; it is narrow, and it is policy to keep on; it was in a dense fog. He stated that it was an accident to have run on this shoal, and then said: “ It is liable to occur to any mariner, to the smartest navigator, because I couldn't see the light; it was hazy, and in running the course the vessel had got to windward of her course; I considered it very good judgment to keep to the weather side; it was a narrow channel.”-

These statements of the witness described the locality and the condition of the atmosphere, as well as the weather, as the jury probably accepted them in rendering their verdict. And the witness gave one further addition to them by testifying that it was hard to know what the actual strength of the tide was, and that he made a miscalculation; that it sometimes run stronger than at other times. His evidence was also, corroborated by the pilot of the steamer. And as this evidence must be accepted as that which is to be controlling over the disposition of this appeal, it presents the question whether the master of the steamer observed reasonable or ordinary care in endeavoring to navigate her as he did after leaving the Handkerchief lightship. The point to be reached Nvasjthe Shovelfull light, which,according to this evidence, was invisible. The night was dark, hazy and foggy, and the tide, as well as the wind, set against the port side of the steamer. And all that she then had to run upon was the course laid down by the chart from Handkerchief to Shovelfull and the light on the Monomoy Point. And in this condition, with a narrow channel, full of shoals all around, as the witnesses described it, the question arises whether ordinary care was observed in endeavoring to navigate the steamer with these tows through this narrow channel in this condition at that time.

A somewhat" similar state of affairs was considered in the case of The Deer, by Judge Blatchford, 4 Benedict, 852, and in the case of The Gratitude, 25 Fed..Rep., 160, and The Farnsworth, 6 id., 807, the tenor of which decisions would require that the master should come to an anchor and await a change in the condition of the weather, before undertaking to navigate the steamer and the tows through this narrow channel in the fog and haze stated by these witnesses to prevail at the time, and which prevented them from observing the Shovelfall light. All the other lights were visible, including the more distant Chatham light. This was the only one which is stated to have been concealed from their observation. And it was under this state of the evidence that the defendant’s counsel requested the court to charge the jury:

“ That if the weatlier was such that the master and pilot were unable to see the lights, and determine their position, it was .the duty of those in charge of the tug to anchor until they could -verify their position and proceed with safety.”

But the court declined to charge as requested, and on the contrary, charged as follows:

“I also leave it to the jury to say if the weather was such that the master and pilot were unable to see the lights and determine their position, whether upon all the evidence in the case it was the duty of those in charge of the tug to anchor until they could verify their position and proceed in safety, and I decline to charge as requested.”

The defendant’s counsel duly excepted to the refusal of the court to charge as requested, and to the charge as given in that behalf, as above stated.

Under the rule prescribed by the authorities the proposition which the court was requested to submit to the j ury appears to have been justifiable in view of the facts as they were related by the plaintiff's witnesses. For whether the steamer should have anchored, which was not proved to be an insecure precaution, was ■a proposition to be decided by the court. And as the channel was narrow and beset with known shoals and dangers, and the only light that could surely indicate the safe course to be followed was concealed by the fog, reasonable care appears to have required that to be done to ensure the safety of the vessels in charge of the steamer. ' And even if that should not be held to be the law of the case, it was clearly erroneous for the court to submit the question to the jury for them to determine whether it was the duty of the persons in charge of the tug to anchor until they could verify their position and proceed in safety. For that was submitting to the j ury not the determination of any matter of fact, but what should be the legal rule applicable to and governing the conduct of persons at the time in charge of this steamer. And to the submission of this question to the jury in this form the counsel for the defendants excepted.

•And that exception seems to have been well presented. For it was no part of the province of the jury, in case the position and weather were as they have been stated to be, to determine the duty of those in charge of the tug as to coming to an anchor until they could verify their position and proceed in safety. The more practical rule appears to be that where the channel was of the description in which it has been described by the plaintiff’s witnesses, and the night prevented them from discovering the point or light to which they were to proceed, that they should not attempt to prosecute such dangerous navigation until they were able to discover the light which was their guide, and proceed in safety. The same disposition was made of another proposition presented to the court, where the request was made for the direction to the jury that if the master or pilot were in doubt as to their position and the proper direction to pursue, that it was their duty to take soundings for the purpose of ascertaining that position. But this in like manner was declined by the court. And it was left to the jury to say whether, if that doubt did exist and the persons in charge were unable to see the Shovelfull light, it was the duty of the master or pilot to take soundings for the purpose of ascertaining their position. An exception was taken to the refusal to charge, and also to the charge which was given to the jury. ■ And the direction as it was given placed the jury in the position to determine what was the duty of the master or pilot in the situation which had been described. And as that was a legal principle to be settled by the court, it certainly was improper to submit it to the determination of the jury. An exception was also taken to' the direction given by the justice presiding at the trial that the defendants were bound to pay for the vessel as long as they used it, even though she was unseaworthy. But this proposition has the support of Work v. Leathers, 97 U. S., 379. And even without that authority it was clearly the law of the case, for subject to their claim for damages the defendants did not and could not legally deny their liability to pay the charter hire of the steamer up to the time when the notice was given terminating their employment of her. But as the jury should not have been permitted to decide upon the duty of the master or pilot, either in respect to taking soundings or coming to an anchor, which should have been decided by the court, and that authority confided to them may very well have been entirely decisive of the •case, the judgment and-the order should be reversed and a new trial directed, with costs to the defendants to abide the result.

Yah Brunt, P. J., concurs.

Ingraham, J.

(dissenting).—The sole question presented' for determination in this action was whether .the steam tug Haviland was seaworthy and was in charge of competent officers and with a qualified pilot. The court below submitted that question to the jury, stating in the charge: “ This question of seaworthiness is one that must-be determined by the jury upon all the evidence in the case. If the jury should find’ that the vessel was seaworthy and provided with a skillful master and pilot, then as matter of law I charge you that the defendant had no right to terminate the charter party and the plaintiff would be entitled to recover. If, on the other hand the jury should find as matter of fact that the vessel herself was not seaworthy or that the grounding off ISTantucket shoals and the other mishaps which it is claimed delayed the vessel in her voyage was due to the want of skill of the master or pilot, then the defendant had a right to cancel the charter party.”

The court then called the attention of the jury to the testimony and again stated to the jury the question that 'they were to determine as follows:

“ If they should be of the opinion that these mishaps occurred by reason of want of skill of the master or pilot, then the defendant had the right to cancel this charter. If, on the other hand, the vessel was in a proper condition and the master and the pilot had the proper skill to navigate the vessel over this course, and the going ashore and going out of the channel were due to the ordinary dangers of the sea, then the defendant had no right to cancel the charter party.”

The jury found a verdict for tlie plaintiff, thus finding that the tug was seaworthy, in charge of competent officers, and that the stranding of the barges was not caused by the want of skill on the part of the master or pilot, or one of them, and we think that this finding is sustained by the evidence.

The captain of the tug was forty-seven years old, and had been master of tug boats for twenty-five years and was well acquainted with Boston Harbor. The pilot Barnard was on board, and was nt the wheel piloting the vessel at the time the vessel ran on the .shoal, and there is no evidence to show that either the captain or the pilot were not competent men, skilled in their profession, ■except from the fact of the accident in question, and whether or not, under the circumstances, it was their duty to have.anchored instead of proceeding was a question that called for the exercise of their judgment as master and pilot of the vessel, and their determination to proceed cannot be said to be, on the facts that appeared on the trial, such evidence of incompetency or unskillful ness as to require the court to take the question from the jury, and so the course of the vessel in entering Boston Harbor, and the allowance to be made for the wind and tide, were questions that called for the exercise of their judgment, and it cannot be said that because they made a mistake in allowing for the strength of the tide so as to go out of the course it was such an error of judgment as to show, as a matter of law, that they were not competent and skillful navigators.

It was for the jury to say from all the evidence in the case whether or not the implied warranty of seaworthiness of the tug, and that the owners would furnish competent and skillful navigators, had been complied with, and the jury by their verdict have found that it had been, and that the accident that happened was not due to the want of skill on the part of the master or pilot, but was due to the ordinary dangers of the sea.

Upon that finding under the terms of the charter party plaintiff was entitled to their verdict.

The cases cited by defendant from the admiralty court do not apply, for the the court is' to determine the facts as well as the law, while in this case the facts were for the jury.

We have examined the requests to charge submitted by defendants and which were refused by the court, and we do not think that the defendants were entitled to have any of such requests charged. The form in which this question was submitted to the jury was certainly as favorable to the defendant as the facts warranted, and we think no error was committed that calls for a reversal of the judgment.

Judgment should therefore be affirmed, with costs.

Judgment and order reversed and new trial directed, with costs to defendants to abide the result.  