The W. E. Gladwish, The F. B. Thurber and The Francis King. libel. This Court found the following facts: "The Eastern Transportation Line, having its office in the city of New York, was engaged in the business of towing boats and vessels for hire, between New York and ports on Long Island Sound, and elsewhere. It was the owner of various tug boats, employed in its business, and, among others, the W. E. Gladwish, the F. B. Thurber and the Francis King. The A. W. Humphreys was a barge, or canal boat, owned by her master, James McKeag, and engaged in the business of transporting goods by water, for hire. She had no motive power of her own, but was towed from place to place by tugs employed for that purpose, as occasion required, by her owner, who was an experienced boatman. He had often been towed by this line. At some time before March 8th, 1875, the barge had been towed by one of the tugs of the line from New York to New Haven, under a contract to take her to New Haven loaded, and back light, for fifty dollars. She had the privilege of bringing back a load, if she chose, and, in that case, was to pay fifteen cents additional per ton for her load. No particular time was specified for her return, but she could come back at any time she was ready and the Line had a tug at New Haven that could take her. She staid at New Haven about four weeks, and, while there, took on board 360 pairs of car wheels, weighing 160 tons, belonging to the libellant, which she agreed to carry to Elizabethport, New Jersey, and there deliver to the Central Railroad Company of New Jersey, "dangers of the seas excepted," the consignors paying freight. A bill of lading in the usual form, bearing date February 27th, 1875, was signed by the master and owner. The tug Francis King arrived in New Haven, from New York, with a tow, on the morning of the 8th of March, 1875. She had been detained a long time on her voyage by the ice, which was found very thick west of Norwalk. The King started from New Haven, on her return voyage to New York, in the afternoon of the day she arrived, with a tow consisting of the Humphreys and ten canal boats. The Humphreys only had a load. All the other boats were light. The W. E. Gladwish, The F. B. Thurber and The Francis King. The capacity of the Humphreys was about three hundred tons, but she had on board only the car wheels. She was taken in the tow at the express request of her captain and owner, he selecting that time to go back, under his original contract. When he made his request, he well understood that there was ice in the Sound, and that the King had with much difficulty made her way through it from New York. He took the line from the tug, when the tow was made up, with a full knowledge that he might, and probably would, encounter difficulties from the same cause, on his way to New York. The libellant took no part in the contract for towage. It was known, however, that the barge must be towed when she did go. The time of starting was left entirely to the barge, though the agent of the libellant was desirous that she should deliver her cargo at its destination as soon as possible, and so informed her captain. The tow was made up, on the start, in two lines, side by side, and towed with hawsers astern. As the Humphreys was loaded, she was placed in the front tier and on the port side. It would have been unsafe, under the circumstances, to have towed her astern of the light boats. No objection was made by the captain of the Humphreys, or any one else, either to the length of the hawsers put out from the King, or to the arrangement of the tow. No ice was encountered, after leaving New Haven, that caused any detention, until some time during the night. The tow was then in the Sound, about opposite After a time, the tow was arranged in single file, the Humphreys still being the forward boat. The King kept on the best way she could, at no time attempting to return or make a harbor. During the 9th of March she sometimes loosened herself from her tow, went ahead and broke a channel, and then came back and took the boats forward in detachments of three or four at a time. Norwalk. At one time the ice On the was found so heavy and compact that she was compelled to lie by and wait for a change of tide to loosen it. change of tide she started again, and worked her way slowly along until about four o'clock in the afternoon, when she was The W. E. Gladwish, The F. B. Thurber and The Francis King. a few miles to the eastward of Execution Light. During all this time the weather was fine, without wind, and of a character to soften the ice. On the morning of the 9th of March, the president and superintendent of the Line started out from New York, with the tugs Gladwish and Thurber, for the relief and assistance of the tows in the ice. Some of these tows were on their way east from New York, and the King was known to have started from New Haven. These tugs met the King, to the eastward of Execution Light, about four o'clock, P. M. They there arranged themselves so that all three should take hold of the tow together. The Gladwish took the lead, the Thurber followed, and then the King. Another hawser was then put out from the King to the Humphreys, and from that time the tugs made the tow with a double hawser. The length of the hawser was not unusual. It was seen and not objected to by the captain of the Humphreys, who was all the time on his boat, steering and watching the navigation. His boat was still ahead, and the tow was still arranged in single file. After the tow was thus made up, the tugs proceeded through channels in the ice, which had been made or formed by steamers on their trips in and out of New York. These channels were generally crooked and of varying widths, from forty feet upwards, filled with broken ice. Sometimes, large cakes of floating ice were found, but, in this particular, it did not differ materially from what had been encountered before. Shortly after passing Execution Light, a small space of open water was found. The ice channel formed by the steamers led into this open space from the eastward, and again out of it toward the west. On reaching this open space, the engine of the King was stopped, and that of the Thurber slowed, the Gladwish only keeping up her full speed. She was the most powerful boat of the three, and still ahead. Not long after the tugs passed out of this open space, and while, perhaps, some of the boats of the tow were still in it, the propeller A. C. Barstow came up from New York, on her way to Providence. Noticing the tugs approaching with their tow, she took the south The W. E. Gladwish, The F. B. Thurber and The Francis King. side of the ice channel. The tugs at the same time went to the north. The propeller, finding a place in the solid ice which had been broken, further to the southward than the general line of the channel, forced herself into that. Between her and the tugs with their tow were large quantities of broken ice, packed together. After she got into this widened space, she put herself against the solid ice on the south and waited for the tow to pass, as it was not safe to attempt to go by in the narrower parts of the channel. While she lay there, the propeller City of New Bedford came along, bound from New York to New Bedford. She passed north of the Barstow and south of the tow, at a speed of six or seven miles an hour, cutting through the packed ice to reach the narrow channel astern of the tow and ahead of the Barstow. While the tow was passing these propellers, the Humphreys was struck in the port bow, a little distance from the stem, by a large cake of floating ice that had in some way been set in motion. A large hole was made in her side by the collision, and she soon filled and sank with her cargo. The tugs were then making their way, with the tow, through the channel, filled as it was with broken ice, at the rate of two or three miles an hour. The engine of the King was not moving and the Thurber was at half speed only. The piece of ice which struck the Humphreys was seen in motion from the King, but the tugs were not stopped, and nothing could then have been done to stop, or change the course of, the ice, so as to avoid the collision. The captain of the Humphreys had been at the wheel, doing what he could to steer her, as she followed the tugs, until just at that time, when he left the wheel-house to go to his supper. As soon as the collision occurred and its effect was known, the tugs were stopped on a signal from the King, and the King, letting go the hawser ahead, backed down to the Humphreys, to render what assistance she could. She had barely time to take off the captain and his family before the Humphreys went down. The other boats in the tow were taken in safety to New York. The VOL. XVII.—6 The W. E. Gladwish, The F. B. Thurber and The Francis King. tugs were all properly equipped, and navigated by competent and faithful officers and men." Welcome R. Beebe and John McDonald, for the libellant. Robert D. Benedict, for the claimant. WAITE, Ch. J. The contract for the transportation of the car wheels was between the libellant and the barge only. The tugs are in no way responsible to the libellant for the performance of that contract. Their liability is under their contract of towage only, as to which the libellant is bound by the terms agreed on by the barge. As it was known, when the cargo was shipped, that the barge would be towed to her place of destination, the shipper, in the absence of anything to the contrary, is presumed to have left the time and the manner of the towage to the discretion of those in charge of her navigation. There can be no recovery in this action except for negligent or unskilful towing. The tugs did not, by their contract, insure the safe delivery of the cargo at the end of their route. Their agreement was to tow the barge, and, in so doing, to use such care and skill as a prudent man would exercise, under like circumstances, in the management of his own business. The law implies that their care and attention were to be in proportion to the dangers encountered and the consequences of neglect. This is but common prudence. The greater the risk, the greater should be the effort to avoid it. The burden of showing negligence is on the libellant. The mere fact of sinking the cargo is not enough. Actual fault, contributing to the loss, must be proven. The specific allegations against the tugs are, in effect, (1.) that they kept on, after reaching the ice, without lyingby, or making a harbor; (2.) that the hawsers between the King and the Humphreys were too long for safety; (3.) that the speed was too great when the collision occurred; (4.) that, when the obstruction which actually caused the loss was |