Judges： Langeobd
Filed Date： 7/14/1888
Status： Precedential
Modified Date： 11/16/2024
delivered the opinion of the court.
In this case the appeal is from both the findings of fact and the conclusions of law thereon. There is no contention but that the conclusions of law of the District Court were correct, if the findings of fact were correct, but the sole contention is that the District Court erred as to its findings of fact, and hence that conclusions of law predicated on such erroneous findings of fact were wrong, but only because the findings of fact were wrong. As this court refinds the facts as. the District Court found them (with the additional findings requested by the proctor for the appellants hereunto attached and adopted by this court), all contention ceases, except as to the error of fact. The only opinion, therefore, that could be written in this case that would be germane to the question raised would be an opinion which would give reasons as to why the findings of fact are correct deductions from the evidence. Such could not be useful or necessary, and hence no attempt will be made to give reasons for the findings of fact. But these findings of fact and conclusions of law thereon are all the decision which the case requires, and they are as follows:
Findings of the Supreme Court:
“This cause having been heard upon the pleadings and proofs herein upon appeal from the District Court of the third judicial district of Washington Territory, holding terms, at Seattle, to the Supreme Court of said Territory, and due deliberation being had, the Supreme Court aforesaid, being duly advised in the premises, finds:
“1. That the libellant, the Tacoma Mill Company, is, and at all times mentioned in the pleadings in this cause was, a. corporation organized and existing under the laws of the State of California, and duly authorized to do business in the Territory of Washington.
“ 2. That said libellant before, and at the time of the collision mentioned in these findings was, and still is the owner and proprietor of the steam-tug Tacoma, with her steam-engines, boilers, machinery, tackle, apparel, and furniture;.
“3. That on the eleventh day of June, 1885, at the hour of two o’clock in the morning of said day, said steam-tug Tacoma, with her steam-engines, boilers, apparel, tackle, and furniture on board, was towing the bark Colusa, of the port of Boston, of about twelve hundred tons burden, then and there lumber-laden, and bound upon a voyage to San Francisco, California, from the port of Port Townsend, in said Territory of Washington, to Cape Flattery; and the said steam-tug, with said tow, was then about four miles to the north of Ediz Hook light, in the Straits of Fuca, steering west-southwest one-half west, and moving along a path west one-half south at the rate of about two miles per hour by the land.
“ 4. That at that time, and up to the time when said ship put her helm hard a-starboard, as hereinafter mentioned, said bark was being towed by said tug by means of a hawser about one hundred and fifty fathoms in length, and from the stem of the said tug to the* stem of said bark the distance was about seven hundred and fifty feet, and during all of the times mentioned herein said bark was steering the same course as said tug.
“ 5. That at that time, and during all times up to the collision hereinafter mentioned, the weather was cloudy, the air was clear, and a fresh breeze was blowing from the west-southwest, and the tide was flooding, running up the Straits of Fuca at the rate of three miles per hour from west-southwest, or west-southwest one-half west.
“6. That said steam-tug, at that time, and up to the time of the collision hereinafter mentioned, was tight, stanch, strong, and in every respect well tackled, appareled, and appointed, and had the usual complement of officers and men, and was also, except as hereinafter found, well manned.
“8. That said bark Colusa, at all times, carried all the lights prescribed by law, and the same were at all times properly set and brightly burning.
“9. That at about ten minutes before two o’clock in the morning of said day, while said steam-tug was towing said bark Colusa, at the place and in the manner hereinbefore stated, and steering on the said course, the ship Blue Jacket, of San Francisco, whereof F. F. Percival was then and there master, and being then on her way from said San Francisco to the port of Seattle, in the Territory of Washington, was first sighted by the lookout of said tug, said ship then being about two miles distant from said steam-tug and showing her red light about three-tenths of a point on the port bow of said steam-tug.
10. That the mean course of said ship, at all the times mentioned in these findings up to the time her helm was put hard-a-starboard, was east-northeast, but her course was really along a swinging path, deviating alternately to starboard and port, about one-half a point each way from said mean course, and crossing the same about every half mile, at intervals of about every four minutes, up to the time her helm was put hard-a-starboard as hereinafter stated, which was done when said ship was on the port side of said mean course.
“11. That said ship was running with a fair wind and tide, and at all times up to the time of the collision was going ahead at the rate of about eight miles per hour by the land.
“12. That said steam-tug was first sighted by the lookout of said ship about half an hour before said collision, and was then about one-half a point off the starboard bow of said ship and five miles away from her, showing two white masthead lights to said ship at that time and at all times up to the time of said collision, the said tug steering at that
“ 13. That, owing to the improper manner in which said ship was steered, and to the irregular course which she pursued in consequence of such improper management, said tug bore from said ship from time to time about as follows: At twenty-three and three-quarters minutes before said collision (being three and five-sixths miles away), dead ahead; at twenty-two and one-half minutes before said collision (being three and five-eighths miles away), dead ahead; at twenty-one and one-quarter minutes before said collision (being three and three-sevenths miles away), one-half a point off the starboard bow; at twenty minutes before said collision (being three and two-ninths miles away), one-half a point off the starboard bow; at eighteen and three-quarters minutes before said collision (being three miles away), one-half a point off the starboard bow; at seventeen and one-half minutes before said collision (being two and three-quarters miles away), one-third of a point off the starboard bow; at sixteen and one-quarter minutes before said collision (being two and five-eighths miles away), one-eighth of a point off the starboard bow; at fifteen minutes before said collision (being two and two-fifths miles away), one-twelfth of a point off the starboard bow; at thirteen and three-quarters minutes before said collision (being two and one-seventh miles away), dead ahead; at twelve and one-half minutes before said collision (being two miles away), one-third of a point off the port bow, the ship bearing three-tenths of a point off the port bow of the tug, and showing her red light to both the tug and bark, the bark bearing three-tenths of a point off the port bow of the ship; at eleven and one-quarter minutes before said collision (being one and three-fourths miles away), one-half a point off the port bow, the ship bearing oné-third of a point off the port bow of the tug, and showing her red
“ 14. That two and one-half minutes before the said collision, said tug being about one-third of a mile distant from said ship and one-half a point off her port bow, the ship bearing about one and three-eighths points off the port bow
“15. That the red lights of both said tug and said bark were visible to and were seen by those on board of said ship from ten to twelve minutes before said collision.
“ 16. That although said lights of both said tug and said bark were properly set and brightly burning, such were the relative positions of said ship, said tug, and said bark, that neither said tug nor said bark, at any time up to the time of the collision, showed the ship any side or colored lights, except said red lights.
“ 17. That owing to the putting of said helm of said ship to starboard, as aforesaid, said ship slewed rapidly around to port until her course was changed to about north-northeast, and she then, at about two o’clock in the morning of said 11th day of June, while the tug was still swinging to starboard, under a ported helm, collided with said tug, striking her * bow on ’ on the port side, just abaft of midships, thereby causing great damage to the hull of said tug, her machinery, tackle, apparel, and furniture.
“ 18. That had said ship kept her course, or had her helm been put to port at the time it was put to starboard, said collision would have been avoided, and no injury would have been occasioned to either said ship, said tug, or said bark.
“19. That no special circumstance at any time mentioned herein existed which rendered a change of course on the part of said ship necessary or excusable.
“20. That as soon as it was possible for those on board of
“21. That up to the time that said ship’s helm was put to starboard as aforesaid, no one on board of said tug had any reason to expect or anticipate any change of course on the part of said ship; and, after the helm of said ship was so put to starboard, nothing that said tug could have done would have averted said collision.
“ 22. That the mate of said tug was a competent person for that position, and faithfully performed his duties at all times mentioned in these findings, but he had no license.
“23. That said collision was caused and all the damage resulting therefrom was occasioned solely by the negligence,' want of skill, and improper conduct of the officers and persons navigating said ship Blue Jacket, and not from any fault, negligence, or improper conduct on the part of any person on board the said steam-tug Tacoma.
“24. That the side-lights of the said ship Blue Jacket were at all times herein mentioned brightly burning, but were not placed or constructed so as to show a uniform and unbroken light over an arc of the horizon of ten points of the compass, or so fixed as to throw a light from right ahead to two points abaft the beam on the side of the ship on which said lights were respectively placed; but these facts in no wise contributed to said collision.
“25. That said steam-tug Tacoma had no such lookout as is required by law; but this fact in no wise contributed to said collision.
‘ ‘ 26. That said ship was well officered and manned, and had the usual number of officers and seamen on board.
“ 27. That said steam-tug was damaged by said collision in the sum of $7,500, and the said libellant has, in consequence of said damage, been obliged to expend, and has expended, in repairing the same, the sum of $7,500, the last of which said sum was so paid on or prior to the 15th day of August,
“28. That said libellant, the Tacoma Mill Company, by reason of said collision, has sustained damages by being deprived of the services and use of said tug for the period of fifty days immediately following said collision; and that said services and use were during said period of fifty days reasonably worth the sum of $47.50 per day over and above all expenses of running and operating the said tug.
“29. That on the 4th day of September, 1885, J. Furth and Bailey Gatzert entered into a stipulation, in accordance with the rules and practice of the said District Court, in the sum of $24,000, for the release of said ship Blue Jacket from arrest in this cause, which said stipulation was conditioned that said claimant should abide and pay the money awarded in the final decree rendered in this cause by this court in case of appeal to the appellate court.
“ 30. That on the 22d day of March, 1887, J. Furth and Bailey Gatzert entered into a stipulation in accordance with the rules and practice of the said District Court, in the sum of $20,000, upon an appeal from the said District Court to this court, which said stipulation was conditioned that the said stipulators should pay all damages and costs that should be adjudged against the said ship on said appeal, and also that said ship should satisfy and perform the decree appealed from in ease it should be affirmed, and any judgment or order which this court might render or order to be rendered by the District Court, not exceeding in amount or value the said sum of $20,000. ”
Additional findings requested by the proctor for the appelants, and adopted by the Supreme Court:
“1. The master of the tug went to bed a little after midnight preceding the collision, and the acting mate was alone in the pilot-house of the tug, and was the only officer in charge of the navigation of the tug, and the only person in charge of the tug’s wheel from midnight until one minute or less before the collision, when the captain arrived on
“ 2. The captain was awakened and arrived on deck about one-half a minute before the vessels came together; and, after inquiring what the trouble was, and being told that a ship was coming into them, ordered the mate to stop and reverse, which order was only partly obeyed by the mate, who rang the bells in obedience to the order sufficient to stop the engines, but not to reverse them, and then let go of the bell-pull and of the wheel, and ran out of the pilot-house to avoid danger to himself, which he supposed to be imminent, as the ship was then coming in contact with the tug.
“ 3. For some time prior to and until the captain ordered the mate of the tug to stop and reverse, the engines of the tug were going ahead at full speed, and the tug was making the speed hereinbefore found of two miles an hour by the shore.”
And from these findings of fact the court makes the following conclusions of law:
“1. That said tug was not in fault or in any wise blamable for any damage resulting either to herself or said ship.
“ 2. The said ship was in fault in this: First, she did not keep a sufficiently steady helm, but allowed herself to swing alternately to port and starboard before she put her helm hard-a-starboard; second, she put her helm hard-a-starboard when she should have put it hard-a-port, or kept her course.
“3. That said libellant, the Tacoma Mill Company, is entitled to recover of and from F. F. Percival, the claimant in this cause, and from J. Furth and Bailey Gatzert, his stipulators, the sum of twelve thousand one hundred and twenty-one dollars and two cents ($12,121.02), and its costs and disbursements to be taxed, and is entitled to an order that execution issue upon said judgment against the goods, chattels, and lands of said claimant and stipulators.
“4. That said libellant is entitled to a decree dismissing the cross-libel, at the costs of the cross-libellant.”
Jones, C. J., and Allyn, J., concurred.