THE STEAMER WEBB

Mr. Justice STRONG delivered the opinion of the court.

The libel filed in this case against the steamer is to recover the damages sustained by the ship in consequence of the alleged careless and unskilful towage, and the first question is whether the towage was either unskilful or negligent.

It must be conceded 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 unskilful ness 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 sitnilar. services. But there may be cases in which the resqlt is a safe criterion by which to judge of the character of the act which has caused it. Had the ship -in this ease been' towed upon' a shoal ten miles north or ten miles east of Handkerchief Shoal, after leaying that shoal for Cross Rip, it cannot be doubted that the fact of the' stranding at such a place, would; in the absence of explanation, be almost conclusive evidence of unskilfulness,. or carelessness in'the navigation of the tug. The place where the injury occurred would be considered in connection with the injury itself, and together, they would very satisfactorily show a breach of the contract, if.no excuse were given. At least they would be sufficient to cast upon the claimants of the tqg the burden of establishing some excuse for the deviation from the usual and proper course^

In the present case the departure from the true course was not so great, but it was enough to devolve upon the-tug the duty of explanation. The ship was, as we have noticed, towed lipón a shoal more than three miles south of the proper course to Cross Rip Light. Had the course been a long one the-deviation would not have been so remarkable. But as the entire distance from Handkerchief Shoal to Cross Rih is less than thirteen statute miles, and as the ship was stranded when only about thiee-quárters of this distance was passed, it is apparent there must have been either bad management of the tug, or some unusual cause must have operated to produce the disaster, a cause against which ordinary prudence was not bound to guárd. Certainly this is enough to impose upon the tug the necessity of explaining how she came to be so far off her cou'rse in running so short a distance. We do not 'say that in orde'r to excuse her it must be shown the accident was inevitable, but it ought to appear that so remarkable a deviation from her correct course, made so soon after leaving Handkerchief Light, was consistent with cautious and skilful management.

The weight of the. evidence is that the ship was run upon the shoal in a little more than, an hour, manifestly not more than an hour and a half, after she passed Handkerchief Light. All the witnesses agree that it was between .three and four o’clock when she took ground. It follows that the entire departure from the true course was made within this period of an hour, or at most, an hour and a half.

The excuses set up in behalf of the steamer are that the night was foggy and dark, and that the currents were .variable, conflicting, and imperceptible. Therp is no evidence that there was any wind which could have caused embarrassment until some time after the ship had stranded. It blew lightly from the south and east, and its tendency, therefore, was to keep the steamer up to the northward of her true course. It was raining, but there was no fog until after Handkerchief Light had been passed. Soon after-wards the weather began to grow misty and thick, but the clear preponderance of the testimony is that it was not until they had passed over about half the distance to Cross Hip that-the fog became so dense that the lights could not be seen. If this is ..so there was no difficulty in determining the position of the steamer. It is not perceived, however, that this is very material. The fog, whether dense or thin, was itself no embarrassment to the steamer’s taking and keeping the right course, a course -marked on the chart, and well known by the pilot and by the captain.

Though the currents were variable in the direction of their, flow, yet both their direction and their force were well known. All that was needed was to give them careful attention, and to make allowances. for their operation. So much prudent navigation required. There is no evidence that they were of unusual strength on the night of the disaster, or that they ran in an unusual direction, and there was nothing in the state of the weather to cause a difference from what was common. Ordinary skill was quite sufficient to enable the pilot' of the tug to counteract their force, and to keep both the tug and the tow on the proper course. It was during the first third of the tide that the passage was made over the first third of the course from Handkerchief Light to Cross Kip, as stated by the pilot. During this time the current or tide was setting northwest, bearing the steamer northward, and on the last half of the course, on which she entered before the steam was shut oft', the ebb-tide was setting southwest. Such is the evidence, as also that, after the steam was shut oft', the motion of the steamer through the water was at the rate of two or three knots an hour, and that she was thus moving-about forty-five'minutes before the ship struck. - If this is so, she was constantly making westing during that three-quarters of an hour, if headed right; and, if she was in the right position when the steam was shut, off, the calculation is easy that shows a southwest current couid not have carried her on to Tuekernuck Shoal. It is plain, therefore, the stranding of the-ship was not the fault of the currents. They do not account for it, even if nothing was done to counteract their known tendency.

There is nothing else in the case that.tends to show that the disaster was not due to the negligence of the tug. On the contrary, there is very considerable evidence that her compasses were untrue, and so deranged as on a westerly course to head her too much to the south. This, of itself, would account for the-deviation, and this of course would be the steamer’s fault.

It has been strenuously argued .that the great injury to tHe ship was caused by her own mismanagement after sbe had struck the shoal and cast her port anchor. After daylight, when the steamer was about to back down in order to attach hers.elf again to the ship, -which had then got off the shoal and was riding at anchor, the ship’s crew commenced heaving on the anchor; and it is alleged they hove short, so that the anchor was picked up, and, a gale coming on to blow suddenly, she went again upon the shoal. The anchor, however, instead of being picked up, was lost, and it was proper to heave upon it in order to bring the ship nearer the stern of the steamer, and thus aid in the effort to renew attachment to the steamer. We do not discover in this any negligence on the part of the ship. What was done was rendered prudent, if not necessary, by the prior misconduct of the tug. Nor was-casting the starboard anchor, after the ship broke adrift, negligence under the circumstances, though it proved unfortunate, and though the ship after-wards swung upon it and bilged. The port anchor had been lost, and the wind was then blowing a gale. Probably the bilging was what saved the ship from, total destruction; and, if casting the starboard anchor was an act of mistaken judgment, it cannot excuse the tug, which negligently brought the ship into the peril from which she sought thus to escape.

The attempt to escape responsibility under the allegation that the wrong, if any, was that of the pilot, and that' the pilot was the employee of the ship and not of the steamer, wholly fails. Neither the written contract for towage nor the antecedent negotiation establishes any such thing. Under the engagements of the steamer, assumed before the contract of towage was made, it was impossible to have any other pilot than Sherwood, who was the pilot of the steamer, and there is nothing to show that the ship undertook to run the risk of pilotage.

It is finally objected that the deposition of Levi Hotchkiss was allowed to be read, though he was incompetent when it was takeu. It does not appear to have been used in either the District or the Circuit Court, though it was read before the commissioner appointed to ascertain the damages. Objection was made to it there, and it must be conceded the deposition should not have been received, but its reception can hardly justify us in sending the case back for a new triál. When the commissioner received it, if it was intended to insist upon the objection, application should have been made to the court for an order to exclude it. This was not done. Conceding, however, that the error ivas not thus cured, still the evidence before the commissioner related only to the amount of damages, and without the testimony of Hotchkiss, the damages were plainly more than the libellants are entitled to recover in this proceeding. The libel was 'inrem, against the steamer, and the decree cannot be for more than is within the jurisdiction of the court. The steamer was discharged from arrest, on stipulation in the sum of eighteen thousand dollars for value, and two hundred and fifty dollars for costs. The stipulators, to the extent of their stipulation, have been,substituted for the steamer, and thus nothing but the eighteen thousand dollars value and two hundred and fifty dollars for costs is within the control of the court. To that extent and no greater the stipulators have subjected themselves to the judgment of the court, and they cannot-be made liable as stipulators beyond it. This was determined in the ease of The Ann Caroline,

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and we need not repeat what was then said. The decree in this case was largely in excess of the stipulation, and while it is affirmed upon its merits, it must be modified in regard to the amount of damages recoverable -from the stipulators.

The decree of the Circuit Court is affirmed, with the modification that it be reduced to the sum of eighteen thousand dollars damages and two hundred and fifty dollars costs; and it is further ordered that each party pay his own costs in this court.

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2 Wallace, 538.