The Mabey and Cooper

APPEAL from the Circuit Court for the Eastern District of New York; the case being thus:

The ship Helen Cooper, lying at her dock in the East River, at Brooklyn, near the gas-works there, on Saturday the 17th of February, 1866, with her stern towards the river but ready for sea, applied to the captain of the steamtug Mabey to tow her out. Immediately opposite, at pier 45, on the New York City side, was lying at the same time and well in her dock, another ship, the Isaac Chapman. The wind on that day was somewhat high, the East River on the Long Island side of it was filled more or less with ice, and the day generally was not favorable for a sailing vessel's getting out of that part of the East River for sea. The Isaac Chapman, at least, like the Helen Cooper, was on that day and at that hour ready for sea, but was afraid to go out, and remained waiting till the river by slack water should be made less dangerous from ice. Other sailing vessels, however, in other parts of the East River and at a different hour sailed, on the 17th, and many from the North River. The captain of the Mabey when desired to tow out the Helen Cooper, remarked upon the state of the tide and unpropitious character of the day generally, and advised her owners to wait till the tide changed and the river got more free of ice. The owners seeing no danger, and wanting the Mabey to get off, resolved to go, and ordered the tug to proceed. 'We will take,' said their agent, 'the risk of all accidents.' Accordingly the Mabey attached her hawser and pulled the Helen Cooper out, stern foremost, into the middle of the stream; cutting the hawser there and attaching it in a new way. From this point and before the operation of getting her under the intended way was completed, she shot straight into the Isaac Chapman, near the main rigging, cutting her down to the water's edge, carrying away her back-stays and mizzen-stay, mashing her boats, starting her deck, and disabling her generally.

The owners of the Chapman hereupon libelled both the tug and ship. The tug answered on the 7th of May, 1867, setting forth that her master informed the owners that it was not safe to proceed to sea in the then condition of the weather and tide. That the agent of the owners insisted that the vessel should go to sea; that he yielded to the orders of the agent of the ship, he agreeing that the owners would assume all risk; that the collision was occasioned by disobedience of the orders of the pilot and bad navigation of the ship; that the order of the pilot was not to cast off the hawser by which the ship was moored but only to slacken it until the head of the ship was swung round; that the order was disobeyed, and that the hawser was cast off before the ship came round, which sent the ship over to the New York shore; and that the ship, when she had reached the middle of the stream, and was headed down stream, put her helm hard aport, so that she took a sheer to starboard, which caused her to run into the Chapman.

As the master of the tug had acted in the whole matter against his own judgment, and had set out at all only upon the request of the owners of the ship Helen Cooper, and on their agreeing to take upon themselves all risks, they now largely took upon themselves the management of the defence. They had already, May 2d, 1867, put in an answer. By the answer they set up,

'That they had a Sandy Hook pilot on board; that by his direction the tug took the ship in tow by hawser; that at this time the ship was lying at the wharf with her bows up and her stern out; that the hawser was made fast to her bows on the port side of the ship, and passed along aft, and there made fast by stops, and that the ship was towed stern foremost into the stream; that, as she passed out into the stream, the stop at the stern was cut, so as to allow her bow to turn around and head down the river; that while in the act of turning, both the ship and tug were unexpectedly caught in an immense field of floating ice, which, in spite of the tug, set both the ship and tug towards the New York shore; that, finding that the field of ice was too powerful for the tug to control, both anchors of the ship were let go, with a large amount of chain, notwithstanding which, the ice carried the ship and tug across and down the river, so that the head of the ship having finally got pointed down the river, was carried by the ice so that her bows were carried inside pier 45, and into the side of the Chapman; thus causing any damage that was done. That the field of ice in which the ship became entangled was too powerful to be controlled; and that all which she could do, was to drop her anchors with a view to stop her headway; which, however, being done, failed to bring her up; that the collision was thus the result of inevitable accident; or if not of inevitable accident, then certainly that it arose from no fault of the ship, or her officers, or crew.'

An amended answer was as follows:

'That, at the time there was considerable floating ice on the Brooklyn side of the East River, but that the river was clear for a considerable distance out on the New York side; that, owing to the floating ice, the ship was turned with more difficulty than it would otherwise have been; that the tug had got the ship's head turned down the river, angling towards the New York shore, and with most of the ship in clear water, free from ice; that, while the tug was thus successfully towing the said ship, and angling well off her port bow so as to keep her head turning down the stream, until she should head directly down, a ferry-boat suddenly and improperly crossed the bows of the tug, and in order to prevent the striking the said ferry-boat the headway of the tug was suddenly slowed, but that with the impetus which the ship had, she shot ahead towards the piers on the New York side; that, the instant the pilot discovered that the tug had slowed he waved her on, but that she could not go on without running into the ferry-boat; that, instantly upon the slowing of the tug it was seen that the tug had lost, by slowing, the control of the ship; that both anchors were at once let go, they being all ready for that purpose, but that owing to the character of the ground the ship overran her anchors, and dragged them both, and came upon the Chapman; that the wheel of the ship was hard astarboard from the time she left the pier at Brooklyn to the time of coming into contact with the injured vessel Chapman.'

Though both the master of the Helen Cooper and the pilot swore positively to this ferry-boat's shooting out of her dock in the way described, and that this-by compelling the tug to slow, and so to slack her hawser, and let the ship drift without motive power on a wrong course-was the cause of the whole difficulty, yet some other testimony went to show that the collision was caused primarily by setting out in an unfavorable state of the tide, and when the ice rendered navigation difficult; in proceeding with too much rapidity, and in towing with too long a hawser; and from the causes set forth in the answers of the owners of the tug.

The District Court condemned both tug and ship; and the owners of the ship, who had undertaken and managed the whole defence, appealed to the Circuit Court, where the decree was affirmed. From the decree of affirmance the owners of both the tug and of the ship appealed to this court.

Messrs. Beebe, Donohue, and Cooke, for the appellants:

There is no sufficient positive testimony that the day was an unsafe one. It was a Saturday, when, of course, five ocean steamers set off. Some sailing vessels also set off. On the other hand, there is sufficient and most positive testimony that the tug was embarrassed by a ferry-boat suddenly shooting out of dock, passing ahead of her, and that by the tug stopping, the ship, which had considerable way on, and had not got headed around, was left without motive power to keep her in the right course; and so that she could not avoid the collision, although she made all the efforts in her power, by dropping her anchor, and otherwise.

The East River opposite New York is not so wide as that you can turn a large ship in the middle of the river, and if you could not run near the opposite shore you could never turn.

The cause of the collision was an inevitable accident, and such a one as neither tug nor ship could guard against. It was no fault of either that the ferry-boat embarrassed the tug, and had there not been a cake of ice in the river, or had the hawser been the shortest, that embarrassment would have been equally as great. Indeed, if the hawser had been shorter the ship would have been into the tug and both into the ferry-boat; and perhaps all into the Chapman.

The ship was under the control and management of the tug, and she is not responsible for the acts or faults of the tug. It is no cause to hold her responsible that the owners of the ship assumed the defence of the tug, because if the collision happened by the ship's fault, the tug should be discharged. Yet she is held. It is not good sense to hold both the ship and the tug responsible. If the fault is on the one or the other the court must say so.

If both the tug and ship are in fault, the loss should be equally divided between them.

Messrs. Benedict and Benedict, contra:

As to the appeal taken by the tug. No appeal was taken in her behalf from the decree of the District Court. The ship having assumed her defence, she had no further care of the controversy and took no appeal. She is, therefore, in no situation to take an appeal from the decree of the Circuit Court, and her appeal ought to be dismissed.

As to the ship's appeal. The sole defence set up in the ship's answer was that the ship was 'unexpectedly caught in an immense field of floating ice.' The amended answer entirely abandons this defence, even contradicting it in material points, and sets up as a defence that 'a ferry-boat suddenly and improperly crossed the bows of the tug,' caused her to stop and thus caused the collision. This new defence was clearly an afterthought. The ship's codefendant, the tug, sets up no such defence. Yet the defence is one which must be applicable to both the tug and the ship, if it had any existence at all. It is one whose existence must have been better known to the tug than to the ship, and the fact that the tug does not set it up but charges the collision to be the result of negligence on the part of the ship, throws the strongest suspicion upon it. This suspicion is still further strengthened by the subsequent conduct of the cause. The tug having made this charge upon the ship, the latter, by agreement, takes upon herself all the responsibility of the litigation, and then fails to put before the court any evidence from the tug as to the occurrence in question. The inference is irresistible that her owners knew that those witnesses would not sustain their theory of the defence, but would show negligence on the part of the ship, and that they took this course to keep this evidence from the knowledge of the court. This they have succeeded in doing, but they cannot avoid the conclusions to which such a course of conduct on their part necessarily exposes them.

It is vain to say that the matter of the ferry-boat was after discovered. It is not credible that the owner of the ship had never inquired the cause of the collision; nor is it credible that, having inquired, he should have heard nothing of this ferry-boat, or should have forgotten all about her, if she was the cause of it. And how is the fact to be accounted for, that, while the witnesses from the tug must have been, from their position, the best witnesses to prove the existence and movements of this ferry-boat, and that while the ship, by assuming the responsibility of the defence, had done all in her power to make those witnesses disinterested, she failed to call one of them to support her allegations? It is plain that this alleged ferry-boat, of whom no one can tell the name, whence she came, or whither she went, had no real relation to the disaster. Independently of all which the court is asked to hold that an ordinary movement of a Brooklyn ferry-boat is an inevitable accident, and that this ship is not liable for the consequences, resulting to an innocent third party from her failure to provide for and guard against such ordinary movement.

It is plain from the general aspect of the case that the ship desired as soon as possible to get out of the ice into the clear water, which led them to go over to the New York side, and then the tug had not sufficient power in that narrow space to keep the ship off from the docks.

It was recklessness on the part of the ship to go to sea at all when she did. It does not in the least alleviate this to show that steamers sailed, as ocean steamships do, from the North River on the same day, or that other vessels left other-the lower-parts of the East River at slackwater, no doubt, before the ice began to run.

If the ship had to go to sea at the hour when she did, it was negligence not to have had a second tug. If the condition of things was such in the river that the ship was compelled to go in such dangerous proximity to the piers, and that the crossing of a ferry-boat, which is always to be expected in that part of the river, made the difference between safety and the injury which she actually wrought, that should have been foreseen and guarded against by having a tug alongside. A tug alongside would have averted the collision.

Both vessels must take the consequences of the negligence. The ship was the dux facli. It was her doing; but the tug, undertaking the service at the risk of the ship, is none the less to blame. She had no right, no matter what guarantces she had, to undertake this dangerous service, single-handed, in a port whose piers were lined with valuable ships and cargoes, fastened fore and aft, and helpless alike to resist or to escape.

The case falls within what is said in The Bridgeport.

Mr. Justice CLIFFORD delivered the opinion of the court.