p. 157B. T. Haviland from Dec. 8th, 1888,1 will say I refuse to accept such discharge, as it is not in accordance with the terms of our contract, which provides for thirty days’ notice before such discharge can take effect; and 1 consider the boat is still under charter to Messrs. H. G. Jordan & Co. until said thirty days expires, which will be Jan. 8, 1889.
“Very respectfully yours, W. M. Tebo. H. ”
December 2, 1888, the tug, while towing defendant’s barges Charter Oak and George Moon, laden with coal, from Newport News, via New Tork, to Boston, was, with the barges, stranded at about 6 o’clock in the evening on Handerchief shoals, remaining aground about an hour. At about 6 P. M. on the next day the barges were stranded in Boston harbor, and remained aground for about an hour. By these strandings the barges were injured in the amount of §1,167.64, but the greater part of the injury was caused by the first stranding. Handerchief and Shovelful lights are about three and a half miles apart, the latter being northeasterly from the former. Monomoy light is about a mile, and a little west of north, from Shovelful light. The channel from Handerchief to Shovelful light is narrow, with dangerous shoals on each side.
The plaintiff claimed to recover the contract price for service from
October 26,1888, to January 8, 1889, amounting to $5,426 64......$5,426 64
Less cash paid by defendants.......................... $2,059 00
Earned by tug between December 8 and January 8,.... 725 00 2,784 00
Plaintiff claims ..............................................$2,642 64
The defendants assert that they were liable only for the service of the tug from October 26 to December 8, at the contract price, amounting to...................................................$3,226 64
Cash paid............................................. $2,059 00
Damages to barges..................................... 1,167 64
The defendants allege in their answer that the strandings were caused by the unseaworthiness of the tug, and the negligence of its officers and pilot, who were, it is averred, incompetent. At the close of the evidence a verdict was directed for the defendants.
Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ;’Goodrich, Deady & Goodrich, (William - W. Goodrich, of counsel,) for appellants.
Wing, Shoudy & Putnam, (Joseph A. Shoudy, of counsel,) for respondents.
Under this charter party the law implies a warranty by the owner (the plaintiff) that the tug was seaworthy. Putnam v. Wood, 3 Mass. 481 -483; Kopitoff v. Wilson, 1 Q. B. Div. 377-380; Cohn v. Davidson, 2 Q. B. Div. 458; Iron Co. v. Huntley, 2 C. P. Div. 464; 1 Pars. Har. Law, 258. A vessel which is not commanded by competent officers is unseaworthy. Walden v. Insurance Co., 12 Johns. 128 -134; Draper v. Insurance Co., 4 Duer, 234 ; 2 Pars. Har. Law, 135. The plaintiff was not a common carrier, and liable as an insurer of the safety of the barges, but he was liable for the damages occasioned by the failure of the master of the vessel to exercise reasonable care and skill in its management. The Margaret, 94 U. S. 494 — 496; The Webb, 14 Wall. 406 ; Wells v. Steam Nav. Co., 8 N. Y. 375 . On this trial the defendants did not attempt to show that the vessel was unseaworthy by reason of defects in its hull, machinery, or material equipment, but rested their defense solely on the ground that the captain and pilot were incompetent and negligent. In reviewing the evi
p. 158deuce given on the former trial it was held ( 62 Hun, 514 , 17 N. Y. Supp. 80 ) that the trial court should have decided, as a matter of law, that the captain was negligent (1) in not anchoring his fleet at Handkerchief light, instead of proceeding on his voyage in the night, with a thick haze; (2) in not taking soundings between Handkerchief and Shovelful lights, which are 3 to 3ü miles apart. On the present trial the evidence seems to have been greatly changed. After the plaintiff proved his contract, and introduced the letters of December 8th and 12th, and the necessary formal evidence, he rested. The defendants called the captains of the two barges, and their superintendent of the tow, who was on board of the tug at the time of the accident. Jones, the captain of the barge George Moon, testified: “The captain was justified, in my opinion, in going on, instead of anchoring. He was justified in going on, if he knew the course, and had a pilot aboard who was familiar with the course. I saw no necessity of anchoring, nor of their sheering over to port. I didn’t know what they sheered over for,—no idea at all.” Hendrickson, the captain of the Charter Oak, testified: “There was no fog.” That he saw the lights known as “Shovelful,” “Monomoy,” and “Pollock Rip.” “I saw nothing in the condition of the wind or weather to require him [captain of the tug] to anchor. I thought it was good navigation for him to go ahead.” Van Cleaf testified that it was a clear, dark night. “I say that originally starting for Shovelful light was good navigation.” “There was nothing in the weather that, in my opinion, required them to stop and anchor. They could have gone on perfectly easily. Any navigator could see, where they were.” He also testified that he, the captain of the tug, and its pilot all saw Handkerchief and Monomoy lights. George M. Hallett, a sea captain, called by defendants, testified that he was familiar with the course from Handkerchief light to Boston. He said: “I should say that on a dark night, with all the lights plainly visible,—distinctly visible,—a man who is familiar with the course should not have any difficulty in going over the course without running aground, if he is familiar with it. I don’t see why he should. I don’t know of any reason, if he knows all the lights.” Ruling, another navigator, called by the defendants, testified: “If there was a haze on the water, so I would not see the Shovelful light vessel at all, for any reason, and I could see the Monomoy light distinctly, I would have some difficulty in going through safely with the Monomoy light in view. I could not steer the proper course with the aid of that light to carry me on. In that case I would anchor, and wait until I could see the other lights. I would turn to the anchorage if the weather was so you could not see. I would not go blindfolded. * * * I never anchored a long .tow in that place. I have passed over there in a haze. I don’t know any one instance that I can call to mind now of passing over there when I could not see the Shovelful, and could see the Monomoy.” This is substantially all the evidence given in behalf of the defendants which bears upon the question as to whether the plaintiff’s captain was negligent in not anchoring at Handkerchief light. The plaintiff’s captain testified: “I did not anchor because I didn’t think it was prudent to anchor,” etc. “It would not
p. 159be good navigation to anchor her there.” “It wouldn’t have been safe to anchor there at all. It would be in the track of vessels, which is against the law.” Barnard, who was piloting the tug, testified that he had been a seafaring man since boyhood, had “sailed over this route not less than a hundred times, and in my judgment the course of navigation which we took was good navigation, I think.” “It would not have been a prudent thing to have anchored the vessel after passing Handkerchief light.” Curran, a sea captain, testified: “Question. You don't think it would have been good navigation to have anchored? Answer. Ho, sir. * * * It all depends upon the weather. If I saw Monomoy light clearly, there would be no difficulty in going forward, if I did not see Shovelful light, and it would be prudent to go ahead then.”
Under this state of the evidence, it is impossible to sustain the ruling that, as a matter of law, the plaintiff’s captain was negligent in not anchoring his tow at Handkerchief light. The question was one of fact, and should have been submitted to the jury. In admiralty cases the court may determine the law and the facts, and the decisions of those courts afford but little light upon the question whether, under the practice in this state, an issue should be decided by the court, as^ a matter of law, or left to the jury, as a question of fact; and, unless these cases are considered with reference to the difference in practice of the two courts, they are likely to mislead the investigator. Whether it was negligent not to sound between Handkerchief and Shovelful lights was a disputed question of fact, which should have been submitted to the jury. Again, the proximate cause of the standing on Handkerchief shoals seems to have been, under the evidence in this case, the shifting of the course of the vessel, after passing Handkerchief light, from H to 4 points to the westward, which brought the vessels on the shoals. The captain and the pilot of the tug testified that the course was changed li to 2 points to the westward, while the defendants’ witness testified that it was changed 4 points to the westward. The difference in this narrow channel is not unimportant. All of the witnesses agree that when the course was changed the wind was blowing and tide flowing from the westward. The plaintiff’s witnesses testified that the change was made to counteract the assumed force of the wind and tide, and for the purpose of avoiding Stonehouse shoal, a dangerous one, which lay on the east side of the channel. By how much the course was changed was a question of fact, and also whether the change actually made, whatever found to be, was negligent. The judgment should be reversed, and a new trial granted, with costs to appellants, to abide the event. All concur.