
    128 F. 362
    ALASKA COMMERCIAL CO. v. WILLIAMS.
    No. 963.
    Circuit Court of Appeals, Ninth Circuit.
    Feb. 2, 1904.
    
      Chickering & Gregory, A. K. Delaney, A. Heynemann, and Andros & Hengstler, for plaintiff in error.
    
      Lewis P. Schackleford, John R. Winn, Jno. A. Shackle-ford, and Piles, Donworth & Howe, for defendant in error.
    Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.
   GILBERT, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

It is contended by the plaintiff in error that the court erred in denying its application to so amend its answer as to set forth the terms of the towage contract. The original answer made no affirmative allegation as to the contract, but contained a general denial of all of the facts alleged in the complaint as to the terms of the contract and the breach thereof. The case went to trial more than six months after the issues were made up. On the trial the defendant in error took all of his evidence and rested. The plaintiff in error, after occupying two days in introducing evidence for the defense, submitted to the court the proposed amendment to its answer. The amendment was not verified, nor was it accompanied by an affidavit. It set up as an affirmative defense what the plaintiff in error asserted to be the terms of the towage contract. It stated, in substance, that the owner of the schooner agreed to properly man and equip her, and to put her in a seaworthy condition, and to ship thereon a crew of seamen, who could handle her in case of emergency, or in case it should be deemed dangerous or impracticable for the said Bertha to tow the schooner into Lituya Bay; that upon arriving at Lituya Bay the condition of the weather and the tide and sea were such as to make it hazardous for the steamer to enter, and that the manager of the mining company then agreed with the captain of the Bertha that he could proceed with the tow to Yakutat; that one of the conditions connected with the towing of the said schooner would be and that it was agreed and understood that in case of any emergency the said schooner should take care of itself by its crew and sailing apparel and tackle as aforesaid. The amendment proceeded to set up the defense of contributory negligence, alleging that the parting of the towline was due to the contributory negligence of the men on board the schooner in not properly parceling the hawser. The court denied the application on the ground that the proposed amendment radically changed the issues as already made, and substantially changed the cause of the defense. The introduction of the defense of contributory negligence, which had not been embraced in the original answer, radically changed the issues as made, and substantially changed the defense. It was in the discretion of the court to allow or deny this amendment, and in denying it we cannot say that there was abuse of its discretion. It is immaterial what reason the court gave for denying the application. There was no offer of an amendment setting forth only the terms of the contract as the plaintiff in error claimed it to be. If such an amendment had been proposed, there would have been no error in its rejection, for it would have been immaterial and unnecessary. The plaintiff in error had the right, under its general denial, to prove that the contract was otherwise than as alleged in the complaint, and in order to do so was free to introduce evidence to show what the contract really was. 1 American & English Encycl. of Pleading & Practice, 818; Marsh v. Dodge, 66 N.Y. 533; Burley v. German-American Bank, 111 U.S. 216, 4 S.Ct. 341, 28 L.Ed. 406.

It is contended, however, and this is the subject of one of the assignments of error, that the court in ruling upon the evidence which was offered by the plaintiff in error had excluded its proffered testimony to show that the terms of the contract were other than as alleged in the complaint. This contention is not sustained by the record. Mr. Plaut, the manager of the mining company, had testified that the contract was one by which the plaintiff in error was to tow the Dora B. to Lituya Bay for a stated compensation. The captain of the Bertha, while testifying on behalf of the plaintiff in error as to his action in departing from Lituya Bay without entering it, was asked the question: “What conclusion did you reach under those conditions in regard to going in?” He answered that he had made up his mind that it was not safe to go in, to take the Bertha in, and added: “I didn’t wish to endanger my contract with the company, as it was always the understanding — ” Here he was interrupted by counsel for defendant in error, who moved to strike out the latter part of the answer as “voluntary and not responsive.” The motion was sustained by the court. Subsequently the same witness was asked to state his reasons for not slacking up and coming back to the schooner after the towline parted. This was objected to as incompetent, irrelevant, and immaterial. The objection was sustained. The witness was then asked the following question: “Q. In your judgment, taking everything into consideration, as matters were at that time, and you speaking now as a seaman, what did you consider best for you to do, both for yourself and the Dora B., after the latter went'adrift? A. Well, there was no other way that I could see than to go on the way I did, because, so far as the schooner was concerned, she was perfectly safe, and if •I had thought in any way that she wasn’t I would have acted different.” It is urged that the court in ruling upon the objections to these. questions excluded evidence which the witness was about to give of the terms of the contract, and it is said that in the terms of that contract, as he would have stated them, were to be found the reasons why he did not enter Lituya Bay, and why he did not go back or slack up when the towline parted. To this it is sufficient to say that it was not suggested to the trial court that any such evidence was sought to be elicited from the witness, nor was there anything in the questions as they were propounded to advise the court that such was the case. On the contrary, when the witness did, in response to the last question above quoted, state his reasons for his conduct, there was no intimation in his answer that he relied on ~the terms of the towage contract as excusing him for not returning to pick up the tow. It would seem, moreover, that the “contract with the company” referred to in response to the first question was not the contract he made with Plaut, but the contract that existed between the witness and his employer, the plaintiff in error, which he feared would be endangered by his entering Lituya Bay under the conditions then existing. How was it possible to ■ endanger the alleged contract which was. set up in the proposed amendment by taking the schooner into Lituya Bay at the request of her owner?

But we are of the opinion that if the plaintiff in error had proved the contract to be as in the proposed amendment it was alleged to be, it would not have afforded it exemption from liability in the present case. In the Steamer Syracuse, 12 Wall. 167, 171, 20 L.Ed. 382, Mr. Justice Davis said: “It is unnecessary to consider the evidence relating to the alleged contract of towage, because if it be true, as the appellant says, that, by special agreement, the steamer is liable, if through the negligence of those in charge of her, the canal boat has suffered loss. Although the policy of the law has not imposed on the towing boat the obligation resting on a common carrier, it does require on the part of the persons engaged in her management the exercise of reasonable care, caution, and maritime skill, and if these are neglected, and disaster occurs, the towing boat must be visited with the consequences.”

Of similar import are In re Moran (D.C.) 120 F. 556; The Somers N. Smith (D.C.) 120 F. 569; The M. J. Cummings (D.C.) 18 F. 178; The Jonty Jenks (D.C.) 54 F. 1021.

The contract as set forth in the proposed amendment to the answer related only to the towage from Juneau to Lituya Bay. If it was made as alleged, it afforded no excuse for the conduct of the master of the Bertha in leaving the schooner adrift as he did. His conduct in so doing was not the exercise of reasonable care and maritime skill in conducting the towage service. He admitted that he had no knowledge whether the schooner had on board compass, chart, or other things necessary for navigation. It is not denied that at the time when the towline parted Plaut protested against his leaving the schooner, and told him that the men on board of her were not prepared to navigate her without the aid of any one who knew the coast.

It is contended that the court erred Jn charging the jury that the contract, which was a contract to tow the schooner Dora B. from Juneau to Lituya Bay, required the steamer to take the tow into the bay, and leave her there, and it is argued that, considering the nature of the bay and the hazardous entrance thereto, such a construction of the contract was erroneous, and that the Bertha had fulfilled her obligation when she reached the mouth of the bay. We think the court properly ruled otherwise, and that the construction placed upon the contract was the construction adopted by the parties thereto. The Bertha had on board nine of the members of the mining company’s party and its freight. The captain of the Bertha evidently understood that he was to enter the bay. He testified: “I always made a practice to figure on that tide, because the only way we could enter the bay was slack water, either low or high, and I did so this time.” He testified also that it was his custom to arrange the time of his arrival there in order to meet slack water if possible. He testified further: “I had two things, that was either to go in or to go on my course to the westward.” It was shown that on the return voyage of the same trip the Bertha entered Lituya Bay, and landed there the mining company’s men and freight, and that in June of the same year she again entered it, and that the captain of the Bertha, while in command of another steamer, had entered it in the year 1898 and again in 1899. But whatever may have been the true construction of the contract, the question becomes immaterial in view of the subsequent conduct of the Bertha in departing from the entrance to Lituya Bay with her tow on her way to Yakutat. Her obligation to exercise due care and to take the schooner to her destination remained the same as it was before.

It is earnestly insisted that the court erred in giving to the jury the following instruction: “The obligation of a towing vessel to a tow is a continuing obligation, and if the jury find from the weight of the evidence that, after said towline parted, the schooner Dora B., with the decedent aboard, even if said towline parted outside of the district of Alaska, or beyond the marine limit of three miles, drifted within said three-mile limit, and that the decedent met the cause of his death within three miles of the shore of the district of Alaska, and that said death could have been avoided by the steamer Bertha and its master, had said master used that degree of skill and caution which prudent navigators usually employ in standing by, aiding, and succoring said schooner and the decedent while within said three-mile limit from shore, and that said decedent met his death by reason of such failure on the part of the master of the steamer Bertha, then you should find for the plaintiff in this case.”

It is argued that by this instruction the jury were told that from the time when the towline parted until the death of the decedent there was at each instant of time, and at each point in- space, á new wrong committed and a new right created; that is, that the tort was continued, and that the corresponding right continued, and that if the schooner had drifted for instance across the Pacific Ocean, and had subsequently at any time returned within the three-mile limit from the Alaskan shore, and the decedent had there died, there would have been a cause of action. This argument ignores the salient facts in the case. The jury, in answer to interrogatories propounded by the plaintiff in error, returned several special verdicts, one of which was that the Dora B. was lost on her trip from Lituya Bay to Yakutat, on April 15, 1900. By another special verdict, the jury found that within the two hours during which the schooner was visible from the steamer after the towline had parted both the steamer and the schooner were less than three miles from the land. The evidence was that at the time when the schooner went adrift a strong wind was blowing, and the weather was squally, with mist and snow. There was no evidence that the schooner was equipped with compass or chart, or that more than one of the men on board of her was a sailor, or knew anything about handling a sailing vessel. The schooner had up only her small jib sail, and the evidence was that her other sails were stowed in the hold, and were not rigged for present use. The wind was quartering on her port stern, and the sea was running in obliquely toward the land. The result was a tendency to drift the schooner to the shore. About 3 :45 in the afternoon the wind changed to the southwest, so as to send her directly toward the beach. It is the undisputed evidence that between Lituya Bay and Yakutat it is a dangerous sea. Captain Hansen, a witness for the plaintiff in error, testified that he would consider it dangerous to leave any vessel along that coast with a tow, and that good seamanship would require such a vessel in charge of a tow to make the nearest port, which would be Yakutat, with as great haste as possible. The coast survey chart in evidence shows that a continuous range of high mountains, some as high as 16,000 feet, extends along the coast from Lituya Bay to a point back of Yakutat, and it is in evidence that these mountains, covered with snows and glaciers, create uncertain weather and dangerous conditions to navigation along the coast. In view of all these circumstances, it cannot be said that the duty of the steamer in the premises ended with the parting of the towline. Having failed to tow the schooner into the bay, and having started out to take her to Yakutat, it was her duty to complete the voyage to the latter place, unless prevented by circumstances beyond her control. When the towline parted it was her plain duty to return to the rescue of the schooner and take her again in tow. Such undoubtedly continued to be her duty during the two hours in which the schooner was in sight, and while, as the jury found, she was within the three-mile limit from the shore, and such was still her duty thereafter. For how long a time that duty continued it is unnecessary to determine. It certainly existed during that day and so long thereafter as the schooner continued to drift toward the shore, or to proceed on her course toward Yakutat, and so long as the Bertha could have returned and rescued her. Before the morning of the next day she had doubtless been wrecked, and the jury so found. Early on that morning, when the steamer came out from Yakutat Bay and passed Ocean Cape, the point where, according to the testimony of Captain Lennan, pilot of the Bertha, the schooner should have arrived if she had outlived the night, she was nowhere in sight. There was no error, therefore, in the instruction given to the jury, for there was a breach of the steamer’s duty committed within the territory of Alaska. It was not the parting of the towline that caused the decedent’s death. It was the continuing failure of the Bertha to come to the relief of the schooner before she was wrecked on the Alaskan shore.

We find no error for which the judgment should be reversed. The judgment is affirmed.  