The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1896-09-17
ACQUISITION OF TOwAGE.
Case Of the Boston Tow Boat Co. vs..
Schooner Jacob S. WinsIow.

United States Circuit Court of Appeals
Hands Down q Final Decision after
Three Years of Litigation.
The circuit Court of Appeals in Bos-
ton has just handed down an opinion,
written by Judge Webb, in a case where
Portland parties are interested, decis-
ion of much interest and Importance to
vessel owners. The opinion is as follows :
Webb, j. At about s. 45 .. m. of o.
toher 16, 1893, there was collision be-
tween the schooner Jacob S. Winslow.
and two barges lowed by the steam tug
Vesta. One of the bsrges, the Elan.
gowan. loaded with coal, was SO badly
injured that 1T was necessary TO beach
her; the other barge, The Sc, had her
masts carried away and suffered other
slight damage, and the JACOB S. Wins
low lost her stem and was otherwise
damaged forward, in all to the amount
of 81, OFT. 40. The place of collision was
to the southwark and westward of Tar
paulin Cove, between two and four miles
The sky was cloudy and the night dark,
but there was no fog or mist to obscure
lights.
The owners of the Ellangowan filed in
New York a libel against both the
schooner and the tugboat. The owners
of the Winslow libeled the tugboat in the
District of Massachusetts,. Later the
owners OF the Vesta filed in the District
Court in the District of Massachusetts,,
q petition of imitation of liability, con-
testing, at the same time, all liability to
either the schooner OF the barge, and al
leging that the collision was caused
wholly by the fault Of the schooner
Jacob S. Winslow.
The owners of the barge and those of
the schooner answered this petition. both
maintaining the liability of the tug,
though the owners of the barge did not
abandon their contention that the schoon-
er was also at fault and liable to them.
The District Court in Massach usetts
after full hearing, entered it's final de-
Gree limiting the liability of the petit
tioners to the amount or value Of the
interest in the steam tug, upon her ar
rival in Boston, and in her freight
money or towage then pending; and 1t
held the tug solely responsible for the
collision. The damages decreed to the
barge Ellangowan, and to the schooner
Jacob s. Winslow, did net, together,
equal the value Of the tug and her pend
in freight.
From this decree the petitioners have
appealed, assigning errors only in the
uuQluRS Ol Guo CUOtu d4 w tu6 xSSpOuSl-
bility for the collision. The owners of
the Ellangowan, as we'll as those of the
JACOB S. Winslow, contest the appeal be.
fore this court.
The evidence is uncontroverted, that
after the collision, the schooner proceed
q on her course without stopping to zee
If any assistance was required by the
barge, and without giving her name,
h.ailing port or port of destination, and
To onntond r,o
emissions she should be held to have
been in fault, according to statute of
Sept. T. $780, Scot l.26 Stat. 1875.
Kit will be best to- consider this question
first. The statute referred to is tar from
peremptory in requiring that when a
vessel is chargeable with omission or
ia lure in the respects enumerated in
the act, the collision shall always be
deemed to have been caused by the
wrongful act. neglect or fault of those in
charge of her.
It provides "That in every case of
collision between two vessels 10 shall be
t 10 duty of the master or person in
charge of each vessel, and SO far as he
can do SO without serious danger to his
own vessel, crew and passengers (if amy
to stay by the other, vessel until he has
ascertalned that she has no need of fur
ther assistance and to render to the
other vessel, ner master, Grew and pas
sangers (if any). such assistance as may
5s practicable and as may be necessary
In order to save til EN- from any danger
caused by the collision. and also to give
to tine master or person In charge of the
other vessel the name of his own vessel
and her port of registry, or the port or
place to which she belongs, also the
name of the ports and places from which
aud to which she is bound. If he fails
Sd to do. and no reasonable cause for
suoh failure is .hown. the collision shall
10 the absence of poof to the contrary, be
deemed to have been causel by his
wrongful act, neglect, or default"
The purpose Of this act was manifestly
to supply the strongest motives Of inter
est to overcome the temptation for mas
tiers of oolliding vessels to heartlessly
ana. inhumanly abandon and leave to
their fate distressed vessels and their
crews, in order to conceal and escape
courts should so administer the law as to
effectuate the benign object of the stat
ute, they should not unduly extend it's
application, nor disregard the conditions
it imposes.
The duty of the master to stand by and
to do the other things named In the stat
ute is qualified obligation. "If and SO
far as he can do so without serious dam
ger to his own vessel, crew and passen-
gers is the first and chief condition
Who shall decide those questions, in the
first Instance, in the moment of emer-
gency? We have no doubt, it is the per-
SON charged with watching over and
securing the safety of his own vessel and
the lives of all on board her : that is, the
master. He must. as we'll as he can in
the emergency, regard and weigh all
existing conditions, and ought not to be
held culpable for an error of Judgment.
The courts duty is to ascertain and con-
slider the state of affairs under which he
acted. 1t will not accept the excuse
that IN his judgment, at the time, the
safety of his vessel and crew and passen-
gers forbade his standing by, if the evil
dsnoe shows that he hastily and reckless
ly, or without any apparent necessity,
sailed away, OF wilfully concealed facts
he WINS bound to disclose. He must act
with the GOODNESS. and the courage de-
manded by his position and rank, and
m ust he inspired with an active sympa-
thy for those who are in peril and dis
tress. If he has shown proper care and
spirit in forming his Judgment, he ought
not to be condemned because another
would have acted differently, nor be-
cause later developments show that he
was too cautious.