Lewis v. Atchison

75 F. 602, 21 C.C.A. 451, 1896 U.S. App. LEXIS 2056
CourtCourt of Appeals for the Fifth Circuit
DecidedJune 9, 1896
DocketNo. 492
StatusPublished
Cited by11 cases

This text of 75 F. 602 (Lewis v. Atchison) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lewis v. Atchison, 75 F. 602, 21 C.C.A. 451, 1896 U.S. App. LEXIS 2056 (5th Cir. 1896).

Opinion

SPEER, District Judge.

The facts in this case are quite fairly and sufficiently set out in the opinion of Judge Locke, of the Southern district of Florida, which is as follows:

[603]*603“This steamship, hound from New York to Galveston, via Key West, with a large and valuable cargo, went ashore on Maryland shoals, a i>art of the Florida reef, about 15 miles from the port of Key West, at about 2 o’clock p. in., the 22d of January, 1890. She was going about twelve knots an hour, and, although the tide had bean falling about two hours, she was driven hard ashore, as the subsequent history of the case shows. She wont nearly upon the highest crest or ridge of an outside reef, but In such a maimer that she could only back oil' into water inside of the reef, and not into the open and clear navigation. The libelants, all licensed wreckers of this district, with one steam lug and several sailing vessels, went to her assistance, reaching there early in the evening, and their services wore accepted upon the understanding-that the compensation was to be determined by the underwriters when they got the vessel off. Finding a shoal with but little depth of water, oil the starboard side afi, to prevent the ship swinging against it the libelants carried out three anchors, — one of 900 pounds, and one of 500 backed by one of 400 from the port quarter, — which they made fast. They continued rugging with the tug for two or three hours every high water, and lightened the steamship by taking out seven loads of cargo, about three hundred tons measurement, until the third high tide, Friday morning, the 24ill, she was gotten off into deep water, where she was anchored. She then being inside the reef and shoals, her head was lowed around into the proper direction, and she piloted by following the tug out into open water. She was entirely uninjured, and able to carry on her cargo with no loss, nor any more damage than was caused by the dropping of one case into the water from the slings while discharging. The only questions of fact upon which there is any material difference of testimony are concerning the depth of water, the character of the bottom, and the force of the wind and sea at the time. Upon these questions the testimony of the libelants differs somewhat, from the testimony of the master of the steamship, the only witness for the claimants. The testimony of the libelants shows that, although the weather was fairly pleasant at the time the service commenced, yet the wind increased materially until ’Thursday, when there was a high wind and high sea. ■ The master says the weather was line, but that there was a fresh breeze, .15 or 10 miles an hour; there was more or less swell at the time. Oapt. Hand, of the revenue cutter, went there to tender his assistance, but found that it was not the right time of the tide when he arrived; and he did not see fit to remain until the next high tide, although it could have been hut a short time, a.s he was there at 11:50, find it was high tide at not far from 1. He says his log showed a relative force of wind of (> upon a scab; running from 0 to 10, from a calm to a hurricane; that there was quite a heavy sea setting in from the S. S. E., through the channel, and across the shoal, and around the steamer. The schooner alongside ihe steamship was pitching and laboring consideraidy. lie. thought It dangerous for vessels to go alongside the .Alamo; that the-sea was breaking fore and aft of her, and the vessel alongside could get no lee. The revenue cutter had taken Air. ¡áothwick, the agent of the line resident at Key West, to the steamer; but it was too rough for him to go aboard, and he returned without doing so. The observer of the weal her bureau says the highest, velocity of the wind at Key West at any time the vessel was ashore was 18 miles an hour. To one unaccustomed to measure or estimate the force; of the wind and sea from the velocity as shown by the instruments in use by the weather bureau, tin' number of miles given represents a vague and undetermined force. Since the hearing of this case, 1 have had an opportunity to observe, and have taken particular notice of, tile force oí the wind, and the amount, of sea. caused, even in the harbor of Key West, with a south wind at 18 miles an hour, as shown by the weather bureau; and I am satisfied that upon a crest of an outside reef, where the bottom comes up suddenly from 14^ fathoms into 10, 12, and 15 feet, exposed to the full sweep of the sea, there must have been sufficient wind and sea, with the wind but 18 miles an hour, to justify the use of every term used by the salvors or Oapt. Hand in describing it. To one on board the steamship lying hard and fast upon tin; bottom, unquestionably, it seemed and appeared as line weather, and nothing but a stiff breeze; but. I consider that it was sufficient to explain the amount of damage done [604]*604the salvors’ vessels, and show that to them it was, to a certain extent, perilous and dangerous to go alongside the ship and take cargo. For the two days following the freeing of the vessel from the bottom, the wind increased. The next day it was 23 miles, and the next 43 miles, an hour. The bottom upon which the vessel was lying has been testified to by the libelants, who, as wreckers, are familiar with every portion of the reef, as rough, rocky bottom. The master of the steamer found sand on his lead, and says that the propeller dug a hole in the sancl, and threw it up alongside the vessel, and the chart makes the bottom inside of the crest of the reef sand. The formation of all reefs and shoals along the Florida reef is undoubtedly coral rock, rough and broken for the most part, but with the hollows and the spaces back of the outlying reefs filled and covered with sand to a greater or less degree. There was probably sand upon the reef in this place, but it cannot be accepted that this was a sand bar upon which a vessel could lie with safety. The testimony regarding a shoal off the starboard quarter is given bjr a witness of whom I have personal knowledge, and in whom I have the most implicit confidence, and there is no doubt in iuj*- mind but that there was one there.
“The testimony in behalf of the libelants shows that they found but 12 and 13 feet of water forward under the ship about 11 o’clock, the night of going ashore, about two hours before high water, while the testimony of the master shows from 14 forward to 16 aft, with about half tide, — as much as she -was drawing before going ashore, according to his statements. Subsequent events show that after she had been lightened of 110 tons of water ballast, i,n addition to the cargo taken out, it was impossible to get her afloat until the third high tide. This satisfies me that she must have been driven up into considerable less Water in going ashore than she was drawing when afloat. In regard to the weight of the cargo taken out by the salvors, the master says that it was estimated by experts in Galveston at 60 tons. There is nothing that gives validity to such estimate, or removes from it the character of hearsay evidence, or makes it admissible, and it certainly leaves the question open for consideration. The testimony shows that 2,548 packages were returned from the salving vessels on board the ship. The character of the cargo is testified to as being ‘sugar, potatoes, oil, iron, whisky, liquors, coffee, rice, and just the heaviest stuff we could find.’ In the light of this testimony, I cannot accept the conclusion that the packages weighed less than an average of 50 pounds apiece, and that there was but 60 tons taken out, although some experts may have so estimated. But it is not necessary to review more fully the minutiae of the services rendered.

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Cite This Page — Counsel Stack

Bluebook (online)
75 F. 602, 21 C.C.A. 451, 1896 U.S. App. LEXIS 2056, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-atchison-ca5-1896.