Appeal from the District Court of the United States for the Northern Division of the Northern District of Washington.

This is an action brought by the Lewis Klondike Expedition Company against the steamship Noyo, her tackle, apparel, and furniture, to recover damages for breach of contract in failing to tow the steamer W. IT. Evans, a. light-draught Yukon river boat, from Seattle, Wash., to St. Michaels, Alaska. The lower court rendered a decree in‘ favor of the appellee for $4,250 and costs, and the appellant now seeks a reversal of this decree.

The contract involved in this action provided for the towing by the steamer Noyo of the river steamboat W. H. Evans from Seattle to St. Michaels, for the sum of $4,500, of which $2,000 was to be paid in cash upon the signing of the contract, and the remaining $2,500 in transportation of freight and passengers at certain specified rates from St. Michaels to Dawson City, or any other point on the Yukon river. It was also agreed that the steamer W. H. Evans should carry to St. Michaels 50 tons of coal or freight, at the option of the appellant, free of charge for freight and carriage. It was further provided that the steamer W. H. E^ans should furnish her own towline or hawser, and all other thipgs necessary and proper in the towage of said steamer, of sufficient strength and durability, at the absolute risk of the owners of the steamer Evans, and that the steamer Noyo should not be liable for any damage or loss to the steamer Evans by virtue of the parting of the towlines or hawsers used for towing the steamer from Seattle to St. Alichaels, or any other unavoidable cause, “provided, always, that said steamer Noyo shall use reasonable care, skill, and diligence in towing said steamer W. H. Evans between the port of Seattle and the port of St. Alichaels, as aforesaid.” In this connection it was further provided that the steamer Noyo should not be liable for any damage or loss resulting to the steamer Evans from any delay occasioned by stress of w’eather, accident, perils of the sea, or misadventure, during said voyage. It was also agreed that the steamer Noyo. should have the right to take in tow another river steamer for the same' voyage. As security and indemnity to the owners of the Noyo for the unpaid balance of towage charge, it was agreed that the steamer Evans should be insured in the sum of $2,500 in favor of the appellant Jacobsen, agent of said steamer Noyo. It appears that the payment of $2,000 in cash was made, and the steamer Evans duly prepared for the voyage; having on board the 50 tons of coal mentioned in the contract, other freight, and a number of passengers. On June 21, 1S98, the steamer Noyo left Seattle, having in tow the Evans and another river steamboat,—the Alfred J. Beach. On the following day an attempt was made to tow the vessels out by Cape Flattery to the open sea, but, owdng to difficulty with the towing apparatus, a return to Port Angeles wras made, in order that the necessary repairs might be made. A change of masters of the steamer Noyo was here made, and on June 25, 1898, the new master proceeded to tow the vessels by the so-called “inside route” until they reached Dixon’s Entrance on July 1, 1898, when another attempt was made to go out into the open sea; that being the more direct route to St. Alichaels. Very shortly thereafter, and on the same day, the steamer Evans, having parted one of her hog chains, signaled her desire to, be towed into harbor. It is alleged that after communication between the vessels the Noyo continued to tow the river boats out to sea for nearly four hours, disregarding the request of the master of the Evans until the national signals of distress were displayed by the Evans, when the Noyo returned to anchorage with the river boats in American Bay, at Howcan Island; that, after the Noyo had turned back with her tow in response to the signals from the Evans, 29 passengers on board the Noyo signed a formal written document prepared by one of their number and addressed to the master, in which they protested against the delay in the voyage caused by the towing of tlie two river boats Evans and Beacli, representing that the passengers had valuable supplies aboard, destined to camps in the interior of Alaska, which were to supply men with food during the winter, and represented further that in a short time it would be too late to get the supplies up the Yukon to destination, and that delay of the Noyo would mean almost criminal negligence to the passengers. They accordingly protested against any further delay by the Evans, or that the vessel be taken further than Ilowcan, but that the Noyo proceed at once without delay by the direct route to St. Michaels. The Noyo thereupon left the Evans at American Bay, and a few hours laler proceeded out to sea with the steamer Beach in tow. It appears that within three days the steamer Beach sank, and the Noyo proceeded alone to St. Michaels, arriying there on July 16th; that after some necessary preparation the Evans proceeded from American Bay under her own steam to St. Michaels, following the inside route through Clarence, Stikene, and Sumner Straits, Wrangell Narrows, Frederick Sound, Chatham Straits, and Cross Sound, to the open sea; thence by the coast line to Isanotski Strait, between the Alaska Peninsula and Unimak Island; and thence by the north and west shore of Alaska to St. Michaels, arriving there on August 30th. The towage of the Evans from Seattle to American Bay covered a distance of about 700 miles. The voyage of the Evans under her own steam from American Bay to St. Michaels covered a distance of about 2,100 miles. The libel charges collusion of the officers of the steamer Noyo with the officers and owners of the' steamboat Beach to wreck the steamer Evans, in order to lighten the load of the Noyo and hasten her arrival at St. Michaels, and that in pursuance of this conspiracy the attempts to take the open ocean route were made; \that such action was in violation of the contract of tow-age to use reasonable care, skill, and diligence in towing said steamer Evans, as prudent seamanship required the following of the inside route, where safe anchorage could easily be obtained in stormy weather. By reason of this alleged breach of contract, and consequent delay in the arrival of the steamer Evans at St. Michaels, the libelant claims to have suffered damages as follows: Cash payment on towing- contract, $2,000; injury to vessel, $2,500; extra expense in navigation, $3,500; and loss of business and profits on Yukon river, $16,000; total, $24,000. The respondent, in its answer, denies the conspiracy, imprudent seamanship, and willful disregard of life and property and contractual obligation charged, and alleges that all the damage suffered by the steamer Evans was because of her unseaworthiness, improper stowage of cargo, and the conduct of her master in refusing tO' proceed under tow of the Noyo. Por a cross libel the respondent alleges damages as follows, suffered by it by reason of the nonfulfillment of contract on the part of the libelant: 50 tons of coal, at §12, laden on the Evans, and belonging to the Noyo, $600; balance of towage contract, $2,500; expenses occasioned by putting; back to port of Port Angeles to repair towing lines of steamer Evans, $1,500; expenses in returning passengers and freight from St. Michaels to Seattle, contracted to he carried by the Evans up the Yukon river, $1,200; loss of profits on 150 tons of freight contracted to be carried by the Evans up the Yukon for the Noyo, $4,500; total, §10,300.

The testimony varies somewhat as to the circumstances of the parting company of the Noyo and the Evans; the witnesses for the appellant stating that the master of the Evans refused to go further under the tow of the Noyo, while fhe master of the Evans, in his deposition, says that the master of the Noyo notified him that he would not tow the Evans any farther, when at Ilowcan Island, and demanded the 50 tons of coal that were on board the Evans, but that, as no fuel could be obtained there, he kept it for use on tire Evans. Exhibits were introduced of written communications which passed between the two masters when going out to sea through Mixon’s Entrance, as follows:

“At Sea, July 1, 1898.

“To Oapt. of Str. Noyo: I want you to take the Str. W. H. Evans into harbor, as you are wrecking her all to pieces, holding her head to the sea. I will hold you responsible both as a steamboat man and criminally, as it looks as though you are trying to destroy the boat, when you send me word cthat if I don’t sign a release you will tow tier until slie sinks. You take all .responsibility upon your own shoulders.

“C. H. Lewis, Master of Str. W. H. Evans.”

In response the following was received:

.‘"’“Oapt Lewis, Str. W. H. Evans—Dear Sir: At your request I will take your steamer to a port of anchorage. Kindly sign inclosed request, and 'oblige,

“yourg truly, W. H. Edgett, Master of Str. Noyo.”

The :inelosure read as follows:

“At Sea, July 1, ISOS.

\ ; “I, as master of steamer W. H. Evans, in tow by Str. Noyo, Seattle to St. ‘Miehaels, do hereby agree to release the steamer Noyo, her owners or char- ' terers, from any further-agreement according to contract dated at Seattle, 1 Wash., June 9, 1898. I hereby request to be taken to port of anchorage.”

.■; .Oapt. Lewis .did not sign this release, and the Noyo continued to tow the ,,Eyans out to sea until the extreme distress signal was displayed, when a . return to anchorage was made, and the separation occurred.

: .Upon the proofs returned, the lower court fixed the liability for breach .■of ■ contract upon the appellant; that the attempt to proceed out to sea -with the two vessels in tow, under the existing circumstances, was such a • fault .on the part of the Noyo as to amount to failure to perform the contract ! ip.- good faith, and render the vessel and its owners responsible in damages, ..^he. court found the evidence insufficient to afford a basis for an accurate estimate of the amount of damages which the libelant was entitled to re-cover, but allowed the amount of the advance payment on the towing contract . $2,000

Additional expense to the Evans incurred in getting to St. Mi- . chaels, $100 a day for SO days. 3,000

.Loss of business on stipulated transportation up the Yukon river for the Noyo. 2,500

$7,500

And to the respondent, as a set-off, was allowed: The coal kept and used by the Evans, 50 tens, at $15. $ 750 Balance of towage money if contract had been performed.. 2,500 3,250

Leaving a balance for the libelant of. $4,250