#### THE MATANZAS.

(District Court, W. D. Wisconsin.

July 31, 1909.)

No. 37.

Salvage (§ 13*) — Nature of Service — Salvage or Towage Service.

A schooner, which had been cast adrift by her towing steamer in a gale on Take Superior, after anchoring during the night, made sail and was proceeding down the lake toward the Portage with a fair wind, but slowly, when she engaged a small fishing tug which came,' alongside to assist, and by means of the tug and sails she reached the Portage, where, after once stranding, she was safely anchored. Although there was some wind, the weather was fair, and neither lug nor tow was in any serious danger. *Held,*that the service of the tug was not a salvage, but only a towage, service, and entitled to compensation as such.

fKd. Note. — For other cases, see Salvage, Cent. Dig. § 25; Dec. Dig. i 13.*]

In Admiralty.

Davis & Hollister, for libelants.

Gotilder, Holding & Masten, for respondent.

*

For other cases see same topic & § number in Dec. *&*Am. Digs. 1907 to date, & Rep’r Inflexes

SANBORN, District Judge.

On the 21st day of November, 1906, as the steamer Panama, with the barge Matanzas in tow, was proceeding across Lake Superior, slie encountered a heavy gale of wind from the northeast, accompanied by snow, and, because of laboring badly in the heavy sea which prevailed, the Panama was so badly strained that she sprang a leak, and, as the storm and sea continued, she was continually making more water. About 9 o’clock p.'m. she was making water so rapidly that it was found necessary to let go the tow line and try and get' the Panama into she d water to keep from sinking and becoming a total loss. The barge Matanzas had her sails up, ‘and after the tow line was let go she continued to sail, but could not get her tow litie in because of the heavy sea, so just let it drag. After sailing from 9 o’clock until along in the morning it was deemed advisable not to sail any longer in the direction in which they were going as it was still snowing, and they could not see where they were, so they took in their sails and prepared to let go their anchors. When she lost the steadying power of her sails and lost steerageway, the heavy seas pounded heavily against her rudder, and the. jerking and kicking of this caused the chains to fall off the quadrant. It then became necessary to put the relieving tackles on the tiller to hold the rudder in place until the chains were put back on the quadrant, and *1012the heavy seas continued to pound the rudder so- hard that the strain caused the tiller to bend. The lashings of the tiller, however, held the .rudder sufficiently steady,that the chains were again,attached to the quadrant, when the ship was fetched up into the wind and her anchors let go. She then rode to her anchors until the storm abated and the sea ran down. The weather cleared, and after daylight on the morning of the *22d*they saw that they were 8 or 10 miles off the beach, and as the wind continued to abate, and the sea got down to what is termed “a dead swell,” they hoisted a flag to' attract the attention of anything passing so that they could effect communication with their owners, and proceeded to get their tow line in. Along about 9 or 10 o’clock, the- steamer Rogers, coming from Ashland, stopped alongside, and the captain of the Matanzas asked the Rogers what they would charge to tow him to Portage. There was some talk back and forth' in regard to towage, but as the Rogers would only tow them down off the Portage, and. let them go again, the offer was refused. Shortly after the Rogers left them, they hove up their anchors, and, the wind -having shifted to the westward, they made sail and proceeded down the lake with a fair wind, heading for the Portage. Along about 1 or *2*o’clock p. m., when sailing along about *12*miles from Ontonagan, and *So*miles from the Portage, the little fishing tug Tramp, from Ontonagan, came alongside, and a conversation was had about tugs at the Portage, and the Tramp said there were none. Then the ability of the Tramp to handle the Matanzas at the Portage, and whether she could be of any service, was discussed, and finally it was decided that, as the wind was fair, she might help the sails some and could probably be of some service after arriving at the Poi'tage. A line was passed to her,, and after towing a short time she let go and went back to Ontonagan for fuel and came out again, overtaking the Matanzas about 10 o’clock p. m., whereupon the line was again passed, the sails were taken in, and they arrived off the Portage without further incident.

There are four piers at the Portage, two outside and two inside piers ; the outside pier being about 1,000 feet from the inside pier. The wind was from the northwest, blowing about 10 miles an hour; but some time before the Matanzas was finally pulled up the wind reached the velocity of 20 miles an hour. In entering the Portage the Matanzas was close to the west outside pier to avoid being Carried by the winds toward the east pier, and for- some reason the captain of the Matanzas let go his starboard anchor, and the boat swung around stern foremost. It, was then going 41⁄2 or 5 miles an hour, which was steerage headway. This stopped the towage, and the Tramp was carried nearly to the east pier. The tug then worked over to the west side, and the Matanzas, having taken up her anchor, floated down toward the east pier, and finally got onto a sandy bottom between the two easterly piers. The Tramp came up close and found the Matanzas in a safe position. The tug pulled awhile on the Matanzas to get her in from the bottom, but could not do so. The Matanzas stayed in that position until about 9:30 the next morning. After attempting to pull her in, the tug blew four whistles for assistance, but got no answer, and went and laid alongside of the Matanzas. A tug was telephoned *1013for to Houghton, and the Cora Sheldon arrived about 9:30, and the two tugs got the Matanzas in and tied her up in a canal, about 10:30, in what is called the “Lily Pond.” About this time it was blowing quite a strong wind from the northwest, and quite cold; all boats remaining in shelter until the next day.

The libelants claim that the service rendered was a case of salvage, while the respondent insists that it was merely towage service.

The evidence seems to show that the Matanzas was never at any time in any serious danger, and that the Tramp was probably in no great danger. The captain of the Tramp says that, if the weather got too severe, and he could not take care of the Matanzas and his own boat also, he would let her go and take care of himself, and that he knew he could make the canal because he would be running before the wind with the sea. He said he could have taken care of the Matanzas and his own boat also, and that he would have done so had, he found it necessary. The fireman of the tug testifies that there was nothing out of the usual about the way they had to handle the Matanzas, except that there was some difficulty in getting the lines aboard, but that the course was a safe one, and that the tug took no water inside, although the sea ran across her deck. The owner of the Tramp testifies that, from the time he took the vessel’s line up to the time he left it, nothing of a dangerous character occurred, and the boats both made good weather. Another fireman on the Tramp says that the sea did not break over the deck, but merely splashed over it so as to keep its surface wet, that there was a little freezing, but the deck was wet all the time without ice. There was a good strong wind, he says, but nothing to make it dangerous for a tug like the Tramp. In the morning when he went out, he did not feel alarmed at the time. The Tramp is a good, substantial, wholesome, strong tug, capable of standing a heavy gale, and that there was no risk in going out to the Matanzas.

It appears clearly that the Matanzas had met with no disaster which in any way imperiled her seaworthiness. The accident to the steering gear was of little consequence. When the Tramp arrived, the Matanzas was making headway through the water, sailing ahead, and drifting toward the shore. There was good holding ground for the anchors, and the barge could easily have weathered the storm. The mate of the Matanzas said that they were able to hold steerageway on the Matanzas, and that they were not gradually nearing shore. One of the seamen on the Matanzas says she was making about two miles an hour at the time the Tramp reached her.

The libelants should be allowed fair compensation for a towage service, which is fixed at $100, together with their costs in said action to be taxed.