GARRYOWEN Bark, sprang a leak and sunk off Ashtabula, Lake Erie, a total loss.
Marine Disasters on the Western
Lakes during 1869, Capt. J.W. Hall
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Port Colborne - July 3.- The captain of the propeller PRAIRIE STATE reports passing a bark sunk with her top masts above water, between Fairport and Ashtabula, supposed to be the GARRY, owned at Toronto, loaded with coal from Cleveland. All hands are reported saved.
July 5, 1869
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The vessel reported sunk near Fairport, Lake Erie, turns out to be the schooner GARRY OWEN of Toronto. She was wrecked on Tuesday, the crew were mostly from Toronto and Hamilton and were saved. The vessel is loaded with coal and is a complete wreck. She was owned by William Myles of Toronto, Captain Hughes of Hamilton sailed her.
July 8, 1869
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On the night of June 30th, the bark GARRYOWEN, Capt. James Hughes, left this port for Toronto having on board about 400 tons of coal, shipped by Messrs. Card & Babcock. When off Geneva on the morning of the 1st. she sprung a leak and soon after sunk. The Captain and crew took to the small boat and safely reached the shore, which was about 12 miles distant. The vessel and cargo were owned by Mr. M. Myles of Toronto and both were insured in Toronto companies, but for how much we have been unable to learn, as the vessel is quite old. We anticipate no attempt will be made to raise her.
July 8, 1869
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The bark GARRY OWEN, reported sunk in Lake Erie and a total loss, was 13 years old, having gone into commission in 1856. She was built at Toronto, measured 331 tons, old style and worth $8,000
July 10, 1869
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Buffalo - 15th. - Two of the crew of the schooner GARRY OWEN, reported grounded near Cleveland on the first of July, are making affidavits before H.W. Hewana, British Consul, that the vessel was scuttled by the Captain, as the vessel and cargo were insured the underwriters were put on their guard, pending the result of the investigation before the Consul.
Cleveland Plain Dealer & Cleveland Herald
July 15, 1869 July 20, 1869
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The bark GARRYOWEN, recently reported sunk off Ashtabula, and reported by telegraph to have been scuttled, has been one of the most disastrous vessels that ever floated. In her different shapes, of steamboat, barge and bark, she has drowned five crews, comprising upwards of two dozen sailors.
July 21, 1869
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A few days ago the tug LEVI JOHNSON conveyed Captain Jackman who represented the Montreal Insurance Co. to the wreck of the bark GARRY OWEN, which it will remembered sunk some twenty miles below this port. Captain Jackman was accompanied by an experienced diver, the object of the visit being to ascertain if there was any truth in the report that the vessel had been scuttled and then run ashore. The diver found the starboard port, made for taking on board stave and lumber, entirely gone, and the larboard port started from its place, but whether this had anything to do with the sinking of the vessel was not determined. The party returned on Monday and Capt. Jackman left to report the result of his examination to the Insurance Co.
August 17, 1869
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THE GARYOWEN. -- The Buffalo Express says the mystery which has all along hung over the final exit of this ill-fated craft is not dispelled by the report of the divers from Detroit, who were employed to examine her for evidence of the cause of her sinking. It will be recollected that after having, under various names, met with a career of almost continued disaster, during which five entire crews were drowned, she sunk off Fairport, Ohio, in fine weather. The captain owned both vessel and cargo, which was heavily insured. The insurance company suspecting that she had been scuttled, sent a diver from Montreal, who failed to make a satisfactory examination. Then two divers from Detroit spent two days in making explorations in her hull as she lay in sixty feet of water. The report is that they found evidence that her "starboard had been knocked in." Now, as the starboard embraces an entire side of the vessel, from stem to stern, this is very indefinite.
August 26, 1969
The bark GARRYOWEN, as stated by telegraph a short time ago, while bound from Cleveland to Buffalo with a cargo of coal, was lost between Fairport and Ashtabula, by a leak, as alleged by the Captain and one or two sailors.
The vessel was insured for $2,000 in gold and the coal for $1,500 in America currency. Before the captain had time to collect the insurance, the cook of the vessel, named Donaldson, made affidavit to the effect that he had reason to believe the ship was scuttled by her officers. The case was investigated, divers being employed for that purpose, and the Captain was successful in recovering the insurance money.
Cleveland Plain Dealer
August 31, 1869
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MYLES V. MONTREAL INSURANCE Co.
Marine insurance -- Unseaworthiness -- Evidence -- New trial.
In a marine insurance polio issued by defendants to plaintiff, among other excepted
perils or losses, were those arising from rottenness, inherent defects, and other,
unseaworthiness At the trial it appeared from plaintiff's own evidence that the vessel
in question, after sailing all day on a summer sea, with a light breeze, in the evening
suddenly came up into the wind, or broached to, refused to answer her helm, and at
once began settling down, when the crew abandoned her, and after they had rowed
about thirty-five yards she sank. The master could give no reason for this, nor was
any evidence offered in explanation of it, while the evidence for the defence went
to shew that she was old and rotten in parts; that she in fact leaked before starting
across the lake, in the canal and at the port of lading, and that menwould not go in
her without being paid exra wages, and the plaintiff himself stated that she was old
and he had given instructions not to canal her by night or leave port in a gale. A diver,
who examined her, also found one stave wholly out and another partially so. The whole
case having been left to the jury on this evidence.
Held, that the learned judge should have ruled according to Coon v. Aetna Ins. Co.,
18 & 19 C. P. 305 and 235, and if plaintiff declined a nonsuit, should have explicityl told
the jury 6to find for the defendants; and a new trial was therefore ordered.
This was an action to recover the amount of a marine policy for $2000 on the schooner "Garryowen," the declalration averring total loss.
Pleas - 1. Non est factum. 2. Setting out the perils insured against in policy, which excepted perils, losses or misfortunes "arising from or caused by the following or other legally excluded causes for damage that may be done by the vessel, hereby insured, to any other vessel or property from the incompetency of the master or insufficency of the crew, or from the want of ordinary care and skill in loading and storing the cargo of said vessel; from rottenness inherent defects and other unseaworthiness; from theft, barratry or robbery: averment, that such schooner was not lost by reason of the perils insured against, as in the declaration alleged.
3rd plea, that policy was subject to the exceptions in the 2nd plea mentioned, and that said schconer was lost by perils so excepted in and by said policy.
James Hughes. master, deposed that the "Garryowen" left Toronto in June last with a load of lumber for Buffalo, then went to Cleveland and loaded with coals; left Cleveland on evening of 30th June, about 6 p.m., with a fresh breeze and considerable of a sea on; about 10 p.m. wind shifted and there was a bad cross sea; one pump choked, and they did not get it clear till next morning; they were able to keep the water down; pumped all next day till 8 p.m.; men were tired out; witness went below to rest; about 9 p.m. he came on deck, and was told that water was not gaining, and there was none to be seen in the fore-peak; the vessel came up in the wind; they tried to back her off; she lay without a move; he looked over the side, thinking it strange, and saw she was settling down; they got the boat out, got in, and when they were thirty-five yards from her she heeled over to port, lay on her beam-ends and went down; the crew pulled ashore.
On cross-examination he said she had been caulked in June; did not make more water than a ship of her class would; she made eighteen inches when they reached Port Dalhousie; could pump ber dry in one and-a-half hours; her load of coal was not too heavy; the night she left
Cleveland she laboured a good deal and her best pump became choaked; could not keep the water from gaining with the other pump; next morning about eighteen inches of water in fore-peak; reduced it about an inch every half-hour; the wind was light during the day of 1st July; three or jour mile breeze; thought she must have sprung a leak when she broached to, to sink so suddenly; the fore-peak leak not sufficient to account for it.
This was the plaintiff's case.
A nonsuit was moved, on the ground that seaworthiness not shewn, nor a loss by perils insured against; no storm or other cause for her sinking as she did, and the presumption was she was not seaworthy.
For the plaintiff it was urged that she broached to in a ?? ??????? should be shewn by defendants.
The learned judge ruled that it was for plaintiff to prove loss by perils insured against, or, in other words, seaworthiness, and the case as to that was very weak, but he was not prepared to say there was no evidence, and the case must go to the jury.
For defence one Dollinson swore to a direct charge against Hughes, the master, of his knocking out stave-port of the vessel just, before she sank that evening, and his wife, who was cook on board, gave corroboration to his story.
Curry, the mate, swore she had to be pumped much from Toronto to Port Da1housie, and through the canal; that the after-pump was never fit for use; that she was old, and men would not go in her without higher wages; did not leak much from Buffalo to Cleveland; weather was squally on the way to Cleveland; ribs of vessel all decayed, bolts and spikes sticking through, no wood round them; all the day of 1st July weather calm; at 8 p.m. pumps sucked; soon after she came up in the wind; witness heard water rushing in like a great fall; they got into the boat; she went down nine or ten miles from shore; nothing in the weather to account for her sinking; no good vessel would leak in such weather.
Other evidence was given much to the like effect; she leaked in Toronto, and across the lake, and in the canal; again in Cleveland, when loaded; nothing of bad weather; all 1st July very fine, and so at time she sank.
The plaintiff was called, and he said she was an old vessel, and he had given directions not to canal by night, or leave port in a gale. He had insured her in previous years at 7 or 8 per cent, in 1869 at 10 per cent, and defendants' agent, in 1869, told him the inspector had reduced her class.
A diver proved having examined her after the sinking and found the starboard stave-port wholly out, and that to larboard started five-eighths of an inch.
The whole case was left to the jury.
The learned judge noted that "she was lost in fine weather, when no other cause can be assigned for her going down than such leads to the conclusion that it was from her defects and unseaworthiness.
The question of barratry was also left to the jury.
The jury found for the plaintiff, $2,000
M. C. Cameron, Q.C., obtained a rule for a new trial, for misdirection in leaving it to jury to say whether the loss was occasioned by the perils insured against, instead of telling them there was no evidence of loss by perils insured against; and on the law, evidence, and weight of evidence; and for telling the jury to find for plaintiff on the second plea, instead of leaving it to them as a questisn of fact, whether the vessel was lost by perils insured againsL
C. S. Patterson shewed cause, citing Coons V. Aetna Insurance Co., 18 C. P. 305; Bishop v. Pentland, 7 B. & C. 219; Dixon v. Sadler, 5 M & W. 406; Redman V. Wilson, 14 M. & W. 476; Gordon V. Rimington, 1 Camp. 123; Hayman V. Parish, 2 Camp. 149; Clifford V. Hunter, 3 C. & P 16
Cameron, contra, cited Powell V. Hyde, 5 E. & B. 607; Parke V. Potts, 13 Dow, 23.
Hagarty, C, J., delivered the judgment of the Court.
We think the verdict rendered for the plaintiff cannot be supported. Until a higher Court shall have pronounced the case of Coons v. The Aetna insurance Company, twice decided in this Court, to be erroneous, we are bound to follow its plain enunciation of the law.
In that case, a vessel left Toronto on a fine day; she had been leaking the night before, but not much, if at all, when starting; on her way to Port Dalhousie, soon after starting, she leaked, and when about five hours out she sank. She was a steamer, a tug; it was said that the leak was in the stuffing-box; it was suggested that the working of the engine caused the leak.
In the judgment of the. Court is cited the language of Cockburn, C.J., in Paterson V.Harris; "The wear and tear of the ship, the decay of her sheathing, the action of worms on her bottom, have been properly held not to be included in the insurance against perils of the sea, as being the unavoidable consequences of the service to which the vessel is exposed; the insurer cannot be understood as undertaking to indemnity against losses which, in the nature of things, must necessarily happen."
Then, in the case in judgment, the Court said; "The issue was, whether the loss happened from unseaworthiness. The evidence shewed a case which, prima facie, shewed unseaworthiness, and it was not explained or rebutted. The defendants were not obliged to prove it affirmatively, in the absence of all evidence to make out a prima facie case, and for this reason the defendants were entitled to a nonsuit."
The case again appears in 19 C. P. 235, and the authorities are reviewed. The language of Lord Eldon in Watson v. Clark (1 Dow. H. L. 344) is cited: "When the inability of a ship to perform her voyage became evident in a short time from the commencement of the risk, the presumption WaS that it was from causes existing before her setting sail on her intended voyage, and that the ship was not then seaworthy, and the onus probandi in such a case rested with the assured ;" and again, Hildyards, Edition of Park on Insurance, Vol. I. 469: "If a ship sail upon a voyage, and in a day or two becomes leaky and founders, or is obliged to return to ports without any storm or visible or adequate cause to produce such an effect, the presumption is that she was not seawordiy when she sailed, and the jury, upon the plaintiff's own case, may draw such a conslusion."
In the voyage policies seaworthiness is an implied warranty: here it is expressly provided for.
There iis nothing in the present case shewing any special contract with the underwriters in any way varying or limiting the express language of the policy, as in the cases cited in Coons V. Aetne Insurance Company.
It is impossible to read the evidence in this case, even if we heard nothing but the master's testimony, and hold otherwise than that the manner of the loss made it incumbent on plaintiff to giye some reason for such an extraordinary event. A vessel, sailing all day on a summer sea, with a light breeze, in the evening suddenly comes up into the wind, or broaches to, she will not answer her helm, and rapidly settles down, the crew get into the boat, and when they have rowed thirty-five yards from her, she sinks. The master can give no reason for all this: the coming to in a smooth sea can be no reason for planks starting, &c. Then, the witnesses called for the defence are wholly uncontradicted as to their account of the voyage and its strange termination. The vessel was said to be old, and rotten in parts. The whole evidence went to prove unseaworthiness.
It is difficult to form any other opinion (apart from the charge of barratry) than that the vessel sank from inherent defects; that, in Sir A. Cockburn's words, it was a loss which, in the nature of things, must have happened some time or other; just as a vessel, when her strength is at last worn out, her course of usefulness over, dies, as it were, from old age and exhaustion. Such a loss is certainly not covered by the policy.
It seems impossible to distinguish this case from that of Coons V. Aetna Insurance Company. We think the learned Judge should have ruled according to that case, and if the
plaintiff declined a nonsuit, should have explicitly told the jury to find for defendants.
We have not discussed the evidence as to the alleged wilful sinking of the ship by the master. If this really took place, it would be difficult to absolve the plaintiff from being privy thereto. No motive whatever is suggested on the master's part to commit so vile an act mearly on his own suggestion.
It the case turned mearly on this point, we perhaps would pause before putting the plaintiff through the ordeal of another trial, after being acquitted of a charge so serious. We should have to consider how far the case of Gould V. British Assuarance Company (27 U. C. 473) and the cases there cited, should govern our decision.
Although the rule here was taken out to enter a nonsuit on leave reserved, we can find no such reservation in the notes.
The plaintiff may most probably desire the opinion of the Court of Appeal on the law, as here laid down, before going again before a jury, where this decision will necessarily govern. If so, it can be considered that the leave was so reserved, and then the case can be appealed.
New Trial, without costs.
Upper Canada Common Pleas Report
Vol. 20 pp. 283 to 289
NOTE : -- The GARRYOWEN, was built as the St. Lawrence Barge MARY, wrecked and rebuilt into the propeller INKERMAN, exploded in Toronto harbor, rebuilt as bark TORRENT, wrecked and rebuilt as STORK, again wrecked and rebuilt as GARRYOWEN.
Barge name MARY - INKERMAN - TORRENT - STORK - GARRYOWEN