Rogers v. Moore

Fifth Circuit

Rogers v. Moore

60 F. 452, 9 C.C.A. 66, 1894 U.S. App. LEXIS 2102

CourtCourt of Appeals for the Fifth Circuit

DecidedFebruary 27, 1894

DocketNo. 184

StatusPublished

This text of 60 F. 452 (Rogers v. Moore) 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

Rogers v. Moore, 60 F. 452, 9 C.C.A. 66, 1894 U.S. App. LEXIS 2102 (5th Cir. 1894).

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Opinion

' MeCORMICK, Circuit Judge.

We hare carefully examined the evidence in this case, with the aid of the able brief and oral arguments submitted by the learned proctors, and the well-considered opinion of the judge who heard the case in the district court, and we; conclude that the decree appealed from should be affirmed. ■There is small room for question as to the law applicable to such a case as this. It is settled that a tug is not liable to its tow as an insurer or as a common carrier. The burden is on the libel-lant to show negligence or unskillfulness in the towage service. .In some cases the undisputed circumstances of the disaster may constitute a prima facie case of negligence, and put on the tug the [455]*455duty of explanation. The Burlington, 137 U. S. 386, 11 Sup. Ct. 138; The L. P. Dayton, 120 U. S. 337, 7 Sup. Ct. 568; The Webb, 14 Wall. 406.

In this case the tow was being carried from Mobile to Pensacola in the night. The weather was not ugly. The wind was from a-westerly direction. There was a strong ebb tide. The state of the tide and wind were such as produced, and were known to produce, a strong current towards the east. Due allowance had to be made for these conditions in running south, which is the chartered course in the channel to a certain point below Sand Island light. The channel abreast of Sand island, which bounds it on the west, is not more — perhaps is a little less — than a mile wide. It was incumbent on the master to watch well the action of the wind and current on the vessel, to hold her up against this action, to guard against drifting, to discover, and seasonably arrest and counteract, the tug’s drifting or malting too much leeway. The safe track lay close to Sand island; not too close, for there was a shoal on that side as well as on the opposite side. There had been range lights on Sand island, but they had been taken down, and only a single light left. The tug and her tow had passed Sand Island light. The range lights at Ft. Morgan were still visible. The wheelman was steering south, — the customary course. The master of the tug says: “We passed close up to the Sand Island beach, on the west side of the channel, — so much so that the mate, who was at the wheel, said, ‘Aren’t you too close to this beach?’” to which the master replied, “No, I don’t think so. We ought to be close. However, you can keep her off south by east until we get those ranges at Ft. Morgan nearly on.” They kept her off south by east a very few minutes, till the range lights were nearly closed on, then resumed the customary course, and in a very few minutes more the tug struck bottom on the east side of the channel. The master was not in the wheelhouse at the time the tug struck on the shoal. The man at the wheel had not seen the captain after he saw the ranges were nearly on, and the tug was put on her south course again.

When the vessel struck, the captain’s first impression was that they were on the west side. He went into the wheelhouse, and, he says, got his eye on the compass and light, and saw that he was on the east. In speaking of the occurrence afterwards with the appellee, the captain being asked to explain how it happened, “he sorter shrugged his shoulders, and said: ‘I must have lost my bearings is the only way I can account for it.’ ” The district judge asks, with unanswerable force: “If, when the tug struck bottom, the master could tell, by looking at the compass and light, where he was, and that he was on the east side, why is it he could not have made the same use of the compass and light before he struck bottom?”

We concur with the district judge that a timely use of the compass and lights would have been an act of ordinary care. The master’s answer and direction to the mate at the wheel show that he was then in doubt as to his position in the channel. The mate was not acquainted with the harbor, the channel, the shoals, or [456]*456the currents.. He was an experienced seaman, Rut had no particular knowledge of these waters. It does not appear that any use of the compass in connection with the lights was made until after the vessel struck bottom. Ho soundings were made. It is apparent to us, as it was to the district judge, that there must have been some mismanagement or want of adequate care and skill in the navigating of the tug. When the tug struck, the tow drifted oh the shoal, could not he got off, became a complete wreck, and a total loss to appellee.

The decree appealed from is affirmed.

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' MeCORMICK, Circuit Judge.

We hare carefully examined the evidence in this case, with the aid of the able brief and oral arguments submitted by the learned proctors, and the well-considered opinion of the judge who heard the case in the district court, and we; conclude that the decree appealed from should be affirmed. ■There is small room for question as to the law applicable to such a case as this. It is settled that a tug is not liable to its tow as an insurer or as a common carrier. The burden is on the libel-lant to show negligence or unskillfulness in the towage service. .In some cases the undisputed circumstances of the disaster may constitute a prima facie case of negligence, and put on the tug the [455]*455duty of explanation. The Burlington, 137 U. S. 386, 11 Sup. Ct. 138; The L. P. Dayton, 120 U. S. 337, 7 Sup. Ct. 568; The Webb, 14 Wall. 406.

In this case the tow was being carried from Mobile to Pensacola in the night. The weather was not ugly. The wind was from a-westerly direction. There was a strong ebb tide. The state of the tide and wind were such as produced, and were known to produce, a strong current towards the east. Due allowance had to be made for these conditions in running south, which is the chartered course in the channel to a certain point below Sand Island light. The channel abreast of Sand island, which bounds it on the west, is not more — perhaps is a little less — than a mile wide. It was incumbent on the master to watch well the action of the wind and current on the vessel, to hold her up against this action, to guard against drifting, to discover, and seasonably arrest and counteract, the tug’s drifting or malting too much leeway. The safe track lay close to Sand island; not too close, for there was a shoal on that side as well as on the opposite side. There had been range lights on Sand island, but they had been taken down, and only a single light left. The tug and her tow had passed Sand Island light. The range lights at Ft. Morgan were still visible. The wheelman was steering south, — the customary course. The master of the tug says: “We passed close up to the Sand Island beach, on the west side of the channel, — so much so that the mate, who was at the wheel, said, ‘Aren’t you too close to this beach?’” to which the master replied, “No, I don’t think so. We ought to be close. However, you can keep her off south by east until we get those ranges at Ft. Morgan nearly on.” They kept her off south by east a very few minutes, till the range lights were nearly closed on, then resumed the customary course, and in a very few minutes more the tug struck bottom on the east side of the channel. The master was not in the wheelhouse at the time the tug struck on the shoal. The man at the wheel had not seen the captain after he saw the ranges were nearly on, and the tug was put on her south course again.

When the vessel struck, the captain’s first impression was that they were on the west side. He went into the wheelhouse, and, he says, got his eye on the compass and light, and saw that he was on the east. In speaking of the occurrence afterwards with the appellee, the captain being asked to explain how it happened, “he sorter shrugged his shoulders, and said: ‘I must have lost my bearings is the only way I can account for it.’ ” The district judge asks, with unanswerable force: “If, when the tug struck bottom, the master could tell, by looking at the compass and light, where he was, and that he was on the east side, why is it he could not have made the same use of the compass and light before he struck bottom?”

We concur with the district judge that a timely use of the compass and lights would have been an act of ordinary care. The master’s answer and direction to the mate at the wheel show that he was then in doubt as to his position in the channel. The mate was not acquainted with the harbor, the channel, the shoals, or [456]*456the currents.. He was an experienced seaman, Rut had no particular knowledge of these waters. It does not appear that any use of the compass in connection with the lights was made until after the vessel struck bottom. Ho soundings were made. It is apparent to us, as it was to the district judge, that there must have been some mismanagement or want of adequate care and skill in the navigating of the tug. When the tug struck, the tow drifted oh the shoal, could not he got off, became a complete wreck, and a total loss to appellee.

The decree appealed from is affirmed.

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Bluebook (online)

60 F. 452, 9 C.C.A. 66, 1894 U.S. App. LEXIS 2102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rogers-v-moore-ca5-1894.

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