APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MICHIGAN.
MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.
This case comes before us on a motion to dismiss, united with a motion to affirm. Appellee contends that as he recovered for himself, as owner, only the sum of $2544.61, and for the owners of the cargo only the sum of $3023.04, the matter stands as though two separate suits had been brought, and that the amount in controversy in either does not reach the jurisdictional sum; and Ex parte Baltimore & Ohio Railroad Co., 106 U.S. 5, and The Nevada, 106 U.S. 154, are cited.
But in both of those cases the owners of the vessel and the owners of the cargo were parties to the proceedings and recovered the amounts due them respectively. Here Ford is to be treated in all respects as the sole libellant, and the decree is for the recovery of the total sum of $5567.65, and, although this amount was subsequently apportioned so as to show the allowance for the loss of the barge and that for the loss of the cargo separately, the decree for recovery of the aggregate remained the same, and the execution ordered against the claimants and their sureties on appeal would issue for the single amount.
Nor does the fact, that, upon the subsequent proceedings for limitation of liability, it appeared that Ford could not collect more than $4658, his pro rata share of the limit decreed, affect the question. That limitation was arrived at in the other suit, and cannot be laid hold of as controlling this. We think, however, under the circumstances, that there was color for the motion to dismiss, though we overrule it, and that we may therefore consider the motion to affirm.
Under the act of February 16, 1875, 18 Stat. 315, c. 77, our review of the decrees of the Circuit Courts upon their findings of fact and conclusions of law in admiralty cases is "limited to a determination of the questions of law arising upon the record, and to such rulings of the Circuit Court, excepted to at the time, as may be presented by a bill of exceptions, prepared as in actions at law." There is no bill of exceptions here, and the inquiry is reduced simply to whether the findings of the Circuit Court justify the decree appealed from.
The general rule is laid down by Mr. Justice Strong, delivering the opinion of the court in The Steamer Webb, 14 Wall. 406,414, "that an engagement to tow does not impose either an obligation to insure, or the liability of common carriers. The burden is always upon him who alleges the breach of such a contract to show either that there has been no attempt at performance, or that there has been negligence, or unskillfulness to his injury in the performance. Unlike the case of common carriers, damage sustained by the tow does not ordinarily raise a presumption that the tug has been in fault.
The contract requires no more than that he who undertakes to tow shall carry out his undertaking with that degree of caution and skill which prudent navigators usually employ in similar services. But there may be cases in which the result is a safe criterion by which to judge of the character of the act which has caused it."
The Circuit Court found that the loss of the Vanetta was the result of improper and unseamanlike conduct on the part of the propeller Burlington. And the findings state various facts showing that the propeller was in fault, and that but for such fault the loss would not have happened. Findings that the master of the Burlington took the Vanetta via the north shore of Lake Erie when the South passage was the usual, safest and proper course at that season of the year, especially with the wind as it then prevailed, and that in doing so he violated his agreement with the Vanetta and exposed the latter to greater risk and danger; that the master having gained shelter which offered a safe and sufficient protection, left it and pulled the Vanetta and the other barge into the open lake, where the propeller and her tow were subjected to the full force of the wind on the lee side, and the propeller was unable to control and manage the barges, which resulted in serious injury to the Vanetta and led to her total loss; that this was an improper and unseamanlike move, and resulted in the Vanetta's loss; and that the propeller was in fault for not attempting to tow the Vanetta to a place of greater safety after the latter was injured in Pigeon Bay and had signaled the former for help; are findings from which the conclusion of law followed; for these findings established that in what was done, there was an actionable lack of the usual caution and skill, and that what was omitted to be done was within the power of the propeller to do, and should have been done by any master of competent skill and experience; and that different conduct would, in all probability, have prevented the catastrophe. As we cannot go behind the findings, and they are sufficient to sustain the decree, further argument is not required. The Maggie J. Smith, 123 U.S. 349; The Gazelle and Cargo, 128 U.S. 474.