White v. Steam-Tug Mary Ann

Remedial statutes must be construed liberally, and where the meaning is doubtful, it must be so construed as to extend the remedy. It seems that the towing a vessel out to sea by a steamer is the transportation of property so as to bring the case within the law of common carriers. The fact that a vessel, lost while being towed out to sea, is insured, does not divest the owner of the right of action for damages for her loss, especially in the case of a mere partial insurance, for in such a case the abandonment by the owner only transfers his interest so far as that interest is covered by the policy. A recovery by the owner in such an action will bar another action for the same cause, and therefore the defendant cannot raise the objection that the action is not brought by the real party in interest. Whether a steam-tug is a common carrier or not, she holds herself out to the world for engagement in a business for hire, requiring prudence, skill, and the use of adequate means to perform the contracts which she undertakes, and this constitutes a stipulation of their existence; which, by clear construction, enters into the contract and forms a part of it. The fact that the owner of the ship lost while being towed to sea, was the agent for the owners of the steam-tug, does not relieve the latter from any of the obligations under which they contract with others.

Appear from the District Court of the Twelth Judicial District. Plaintiff brought his action against the steam-tug under the 317th section of the Practice Act, claiming damages under the following state of facts, as proved on trial. The Humboldt Lumber Manufacturing Co. appeared and defended as owners of defendant: Defendant is a steam-tug owned by the Humboldt Lumber Manufaeturing Company. Plaintiff’s witnesses testified that defendant was used for the business of towing vessels for hire across the bar at Humboldt Bay, and that she was advertised to tow all vessels. The witnesses for defendant testified that the defendant was used by her owners in and about their business of sending lumber to market; that she never was advertised to tow all vessels; that she sometimes refused to tow vessels, and always charged §3 per 1000 feet for the lumber of other persons than her owners, while the lumber of her owners was towed at $2 per 1000; that all vessels not towing lumber of the Humboldt Lumber Manufacturing Company were obliged to make their respective contracts; that the towage paid was always per 1000 feet of lumber, and not by tonnage of vessel. Plaintiff was the owner of the schooner “ Sierra Nevada”—contracted with the Humboldt Lumber Manufacturing Company to carry from Humboldt Bay to San Francisco 130,000 feet of lumber belonging to the company, for which the company was to pay him §8 per 1000 feet, and to furnish the towage by their steam-tug, this defendant. While the defendant was towing the plaintiff’s schooner across the bar, the hawser by which the schooner was attached to the tug parted, and the plaintiff’s schooner was lost. Plaintiff proved that it was the defendant’s custom to furnish a hawser for towing ; that the defendant’s captain was the sole judge of the fitness of the weather and other circumstances on the occasions of towing; and that the plaintiff’s schooner, as was customary, was subject entirely to the orders and control of the captain of defendant. Plaintiff was a stockholder in the Humboldt Lumber Manufacturing Company; was one of the trustees of the company, and Treasurer. One of defendant’s witnesses proved that the president of the company had complained to the plaintiff of the condition of the hawser, and directed the plaintiff as treasurer of the company, to send up a new hawser. Witness did not distinctly remember when this was; thinks it was before the time of the loss. As to the condition of the hawser, it was proven that it was old and much worn, but that it was the best hawser in the possession of the company; that it had parted twice before this occasion, but had been in constant use since the first parting; that the company had never had a hawser which had not parted; that after parting, a hawser was spliced and used again; that a hawser had never parted where it was spliced—is as strong at the spliced part as any other. This hawser was well known by the officers of the defendant to be old and in bad condition, and the engineer had once remonstrated against using it. A witness for defendant testified that the plaintiff was frequently at Humboldt Bay and familiar with the condition and affairs of the company. And the captain of the defendant testified: “ Capt. Smith (of plaintiff’s schooner) was most certainly aware of the fact of the hawser parting with the Columbia. The circumstance of this parting was a topic of common conversation among the captains then in port. Capt. Smith did not make any objections to being towed out with this hawser.” Witness was asked, “ Was he not willing and rather anxious to go and he towed out with this hawser ?” Plaintiff objects, and witness answers “ Yes. It is my common practice to inform captains of vessels if I have any fears of the sufficiency or safety of hawsers.” Benjamin Lyttle, on behalf of defendant, testified that he heard Capt. Smith say he was going out the next day “ if Capt. Buhne (of the tug) would tow him out. He said Capt. Buhne was afraid the hawser would part; and if it did, he could put his helm about and come in again; that he had been here long enough, or something like that.” Capt. Smith, on re-examination, denied this conversation. Defendant proved that plaintiff's schooner was insured for $5,000, her estimated value being $10,000—and payment in full by insurers to plaintiff.. On the trial, the Court, after refusing instructions asked for by defendant, directly the converse of the charge as given, charged the jury “ that in rendering their verdict, they were not to consider the question of the plaintiff being a member and officer of the Humboldt Lumber Manufacturing Company, and knowing the condition of the hawser; nor were they to consider the question of abandonment by the plaintiff to the Insurance Company. These were questions which did not affect the liability of the defendant. The only point for them to consider, was as to the performance by the defendant" of its contract of towage. If they found that the hawser was insufficient, the defendant was liable." To these instructions defendant duly excepted. The jury found a verdict for the plaintiff. The defendant moved for a new trial, which was overruled, and defendant appealed.