The usually obligatory rule of navigation which requires a
special lookout does not apply to a case where the collision or
loss could not have been guarded against by a lookout, and where it
is clear that the absence of a lookout had nothing to do in causing
it.
Clark libeled the steamer
Farragut for causing the
destruction of the canal boat
Ajax and her cargo on the
8th of March, 1866. The Buckeye Mutual Insurance Company having
paid Clark $1,500 insurance on the canal boat, came in by petition,
and were made parties libellant, and subrogated to Clark's rights
in the cause to the amount thus paid. The principal charges of the
libel were that the steamer
Farragut, being engaged in
running between Beardstown, Illinois, and St. Louis, Missouri, on
the Illinois and Mississippi Rivers, on the 7th of March, 1866,
took the canal boat
Ajax, loaded with wheat, corn, and
oats, in tow at Beardstown; that the owner or master of the
Farragut contracted to tow the
Ajax safely to St.
Louis and return for $130, and caused it to be lashed to the side
of the steamer, and proceeded safely down the Illinois River until
about four o'clock in the morning of the 8th of March, when, in
attempting to pass through the railroad bridge at Meredosia, the
steamer was so carelessly and negligently managed that she caused
the
Ajax to come in contact with the pier of the bridge,
whereby boat and cargo sank and became a total loss.
The answer alleged that the canal boat was unsound and rotten;
that the only contract between the parties was a verbal contract to
tow the
Ajax to St. Louis for $65, made
Page 77 U. S. 335
with reference to the general usage on the Illinois and
Mississippi Rivers, by which contracts for towing, in the absence
of special agreements, are contracts to tow safely, except the
usual dangers and hazards of river navigation, and do not involve
the liabilities of a common carrier. The answer denied that the
steamer was carelessly and negligently managed, or that the loss of
the
Ajax was attributable to the unskillfulness,
negligence, or fault of any person having charge of her, and
alleged that it was due to the usual dangers of river navigation;
that the bridge in which the loss occurred is located at a bend in
the river, which there changes its course from southeast to
southwest; that this bend rendered it difficult to pass the draw of
the bridge at any time without striking the eastern pier; that this
difficulty was greatly enhanced at high water by a cross-current
which strikes it diagonally across the draw, and that at the time
of the loss complained of this current was at its worst; that the
captain of the steamer himself, one Ebaugh, who was a skillful
pilot of the river, took the helm on this occasion, and was
steering the vessel when the accident occurred; but that, by the
strength of the diagonal current, she was forced towards the piles
protecting the east pier, with which the canal boat came into
contact and was stove and sunk, without any want of care or skill
on the part of the owner or those in charge of the steamer. It was
further alleged that the said piles formerly yielded to pressure,
so that a sound boat rubbing against them received no serious
damage therefrom; but that, during the preceding winter, the piles
had been stiffened up with braces, so that when the unsound and
rotten timbers of the
Ajax came in contact with them they
were crushed.
Both courts below were of opinion that the defense was sustained
by the evidence, and decreed against the libellant. That party now
brought the case here.
Page 77 U. S. 337
MR. JUSTICE BRADLEY delivered the opinion of the Court.
The district and circuit courts were both satisfied that the
evidence in the case fully supported the defense, and this Court
concurs in that conclusion, unless the position strenuously
insisted on here by the appellants' counsel can be maintained,
to-wit, that the absence of a special lookout is evidence of
negligence, which renders the owners of the steamer
prima
facie liable.
It is undoubtedly true that the absence of a special lookout,
would, in many cases, perhaps in most cases, be regarded as
evidence of great negligence. The last rule prescribed
Page 77 U. S. 338
by Congress by the Act of April 29, 1864,
* declares that
"nothing in these rules shall exonerate any ship, or the owner,
or master, or crew thereof, from the consequences of any neglect to
carry lights or signals, or of any neglect to keep a
proper
lookout,"
&c.; thus intimating that "a proper lookout" is one of the
ordinary precautions which a careful navigation involves. But it
would be against all reason to contend that the master or owners of
a vessel should be made liable for the consequences of an accident
by reason of not having a special lookout where the collision or
loss could not have been guarded against by a lookout, or where it
is clear that the absence of a lookout had nothing to do in causing
it. Suppose that a sunken rock, dropped from a cargo of quarried
stone, and unknown to the navigators of the channel, were the cause
of the accident, could the presence of a lookout have the least
tendency to guard against it? A hundred such instances might be
suggested where the presence or absence of a lookout would have no
influence whatever on the happening of the catastrophe. We are not
to shut our eyes and to accept blindly an artificial rule which is
to determine, in all cases, whether the navigator is liable to the
charge of negligence in causing any loss or damage that may happen.
A lookout is only one of the many precautions which a prudent
navigator ought to provide; but it is not indispensable where, from
the circumstances of the case, a lookout could not possibly be of
any service. The object of a lookout is to discover dangers that
are unknown, the advance of an approaching vessel, the appearance
of a light on the coast, the discovery of a dangerous object, and
many other things, the existence and presence of which could not be
so easily and quickly known to the pilot as to a person whose sole
business it was to make and communicate such discoveries. The cases
referred to, taken in connection with the particular circumstances
of each, cannot receive a different interpretation.
In the case before us no lookout could have been of any
Page 77 U. S. 339
possible advantage. No lookout would have ventured, or presumed,
to interfere with the captain, who had the helm at the time. It
would probably have been rather an interference and a hindrance to
the safe management of the boat for any third person in such an
exigency to have diverted his attention. The obstacle was there in
plain sight. Its position was better known to the captain than to
any other person. No lookout could have aided him in the emergency.
But, if a lookout were needed, we have the evidence of the mate
that he was on the hurricane deck watching the course of the
steamer at the time; and, had it been possible for any lookout to
have been of any service, he would have rendered it. Clark, the
captain of the canal boat, was also on the watch as well as Nolte,
the ship's carpenter, and one of the owners of the steamer. It is
perfectly evident that the absence of a special lookout had nothing
at all to do with the happening of the accident, and therefore it
can have nothing to do with fixing the liability of the
parties.
It is also evident that the loss was occasioned by the violence
of the cross-current, which was due to the great height of water
prevailing at the time, and was therefore the result of one of the
ordinary dangers of river navigation.
Decree of the circuit court affirmed with costs.
* 13 Stat. at Large 61.
