The San Francisco call., 1897-05-29
Opinion of United States
District Judge Nor
row.
Masters Are Presumed to Know
Where Danger Lies
Ahead.
Removal of a Buoy Unknown to a
Pilot Affords No Excuse for
an Accident.

United States District Judge Morrow
Yesterday rendered an opinion in the mat
ter of the petition of the Shipowners' and
Merchants Tugboat Company, owner OF
the steam tugs Hercules and Sea Queen,
for limitation of liability.
The petition was filed in the matter of
two libel claims against the company-one
by Arthur Sewall and others for damages
in 500 600 for towing the ship Ben jamin f.
Packard on a sunken rock in San Fran
cisco Bay, and the other BY Balfour, Guth.
rie g. Co. for $484 81, damages to a portion
of the cargo of wheat. The petitioners
asked that the liability of the owners of
the tug should be limited to the value of
the tug ii it should be determined that
there was any liability.
The petitioner contended that the acci-
dent was excusable and inevitable, owing
to the fact that the buoy had been re-
moved and was misplaced, there by decelv-
ing the master of the tug as to the course
which he should take in towing past the
rock. On the other hand 1t was contended
by the claimants that although the buoy
had been removed some 200 leet from its
habitual and correct position, yet that the
master of the tug should have noticed this
displacement OF the buoy, and that he was
bound to know at least approximately the
locality OF the submerged rock. Judge
Morrow's decision goes on 10 say:
In the Efie ]. Simonds case (6 Fed. 639) it
was held that a tug is bound 10 know the
nature OF the bottom as we'll as the depth OF
the water in which it is being employed. In
the Vigilant 90 Fed. r. 1861 tug was held
liable for the loss of her tow IN consequence
OF tranding her upon depression or hole in
the surface OF the bar over which she was be-
ing towed In the Robert H. Burnett go Fed.
K. 2l4) 1.-The court said: THE captain of the
tug tes ,ifies that he had been running on the
river tor year or more but that he had no
knowledge OF the position of this rock and had
never heard of the reef. This admission of
ignorance of notorious facts, about which
there can be n question, leaves him without
any excuse for going so near the western shore
he did,"
Applying the law as established by these
cases. il follows that the N aster of the Hercules
should have had such familiarity with the
location OF the Mission Bay Rock, even
though the buoy indicating where 1t was had
been displaced some 200 feet, that that dis
tance at the short range from Long Wharf,
where the towage began, would be sufficient 10
have been observed by careful pilot. The dill
ference in position between the buoy from the
place whereIit should have been to where it WAS
from Long Wharf was about one point and a
half This displacement was certainly
sufficient to appr Sc the master of the Her
cules that something was wrong with the po-
sition OF the buoy. II he had given ii any
inquiry He did not take any bearings to as
certain whether the buoy was i'll the correct
position. -
While it is true that there is q presumption
that the buoys correctly indicate the places,
still it does not justify navigators in
following bllndly these signals of danger. On
the contrary the very efficiency of the tug
boat service requires tnat ms .ers should be
on the watch tor any change in sign ais OF
danger, so that the places OF danger them
selves may be avoided 1t is a we'll
known fact thas buoys are apt to be moveu,
and this fact should put masters on the alert
10 ascertain whenever displacement has oc-
Cured. In the case at bar IL wou d seem from
the tes stimony of the master of the Hercules
that he did not even lock to see whether the
buoy was in place or not.
Upon all the facts of the case, ! think that
the stranding of the ship enjamin +. Pack
ard was due to negligent towing on the part of
those in charge of the tugboat hercules in the
particular above indicated. But as there is no
proof of any privity or knowledge of this neg
ligence on the part of any of the members of
the company, the owner OF the tug, the liabil-
ity will be limited to ! he appraised value of
the tug, the sum OF $4,000.
Messrs. Page, McCulchen and Eels D.
peared as proctors for the petitioner, and
Messrs. Andros and Frank for the claim