Where a regulation was made in one of the harbors of the
Mississippi River, assigning their positions to different species
of boats, if the regulation was generally known, it was the duty of
all persons to conform to it.
Where a flatboat was moored at the place designated for
flatboats, and a steamboat, in attempting to land, came into
collision with and sunk the flatboat, the steamboat must be liable
for the damage done.
When a steamer is about to enter a harbor, great caution is
required. Ordinary care under such circumstances will not excuse a
steamer for a wrong done.
Page 59 U. S. 585
The facts of the case are stated in the opinion of the
Court.
MR. JUSTICE McLEAN delivered the opinion of the Court.
The libel states that the libellant was the owner of a flatboat
called
The Rainbow, with a cargo of the value of three
thousand dollars and upwards; that the said boat, with its cargo,
being a stanch vessel of its kind, with an efficient crew, on a
voyage down the Mississippi River, was moored at night at Grand
Gulf, in the proper and usual place for flatboats and securely tied
to the bank of the river; that while so fastened close to the
shore, the steamer
Southern Belle, a regular packet on
said river, in attempting to land at the Town of Grand Gulf, ran
into and sank the flatboat, which caused the total loss of the boat
and cargo; that the steamer was out of its place and carelessly
managed, by reason of which the collision occurred. The libellant
claims damages &c.
The owners of the steamboat, in their answer, allege that she
plied as a regular packet between New Orleans and Milliken's Bend
in Louisiana; that in ascending the river on the 3d of January,
1853, shortly before daybreak, she approached the Town of Grand
Gulf; that, in drawing near the wharf boat, used as a landing, it
was discovered that another steamer was fastened to the wharf; that
as the wind was high toward the shore it was deemed unsafe to make
fast to the steamer;
The Southern Belle therefore dropped
down with the intention of coming in astern of the steamer, and
below the wharf boat; that in making this change, the flatboat was
first seen lying close under the high bank of the river, about
thirty yards below the wharf boat; that an attempt was immediately
made to back out and avoid the collision, which could not be done,
as the wind blew strongly; that the place occupied by the flatboat
was known to be the cotton landing, where
The Southern
Belle regularly landed every trip to take cotton on board;
that the place appropriated for flatboats was about three hundred
yards above the wharf boat; that the master of the flatboat was
notified before the collision; that his boat was not moored in its
proper place, and that he neglected to keep a light &c.; that
the collision was caused, not by any negligence or want of skill on
the part of the crew and officers
Page 59 U. S. 586
of
The Southern Belle, but in consequence of the
negligence of the master and crew of the flatboat &c.
The district court decreed in favor of the libellant for the
amount of the damage sustained, which decree was reversed on an
appeal to the circuit court. The latter decree is now before us on
an appeal.
An ordinance of the Town of Grand Gulf, passed in 1838, was
given in evidence, relating to the division of the landings for
different kinds of boats. In this ordinance, the landings for
steamboats, keel boats, and flatboats, were designated and the
duties of the harbor master were defined. An objection by the
respondent being made that no sufficient proof had been offered as
to the power of the town to pass the ordinance, the objection was
obviated by the fact in the record which showed that the respondent
had introduced the ordinance as evidence. It was then insisted that
the ordinance had fallen into disuse by common consent, and could
not be considered as evidence of a usage or law. But from the
evidence it would seem that the duties of the harbor master were
performed, and that the places of landing for the different boats
were generally understood.
Whether a rule on this subject be established by an ordinance or
general usage is immaterial if the regulation has been so made as
to be generally known, and this seems to have been the case at
Grand Gulf in regard to the ordinance in question.
The
Rainbow arrived and was moored within the ground
designated for flatboats, and was fastened to the bank the evening
which preceded the morning of the collision.
The Southern
Belle, in ascending the river, arrived at Grand Gulf about
daylight -- some of the witnesses say a little before, others a
little after. It appears that the moon was shining and that, in
passing the flatboat, it was light enough to read from it the name
of
The Southern Belle on her wheel house, some hundred
yards from the shore. The pilot of the steamer intended to land at
the steamboat wharf, three hundred and thirty feet above the place
where the flatboat was fastened. But in approaching the wharf, he
discovered
The Atlantic steamer, with cattle on board,
occupied it, and the wind being high, he was afraid that an attempt
to land, so as to fasten to
The Atlantic, might do damage,
at least to the cattle on board of that boat. To avoid this, orders
were given to back the boat and land below the wharf. In doing
this, the control of the boat was lost and, the wind to the shore
being high,
The Southern Belle was thrown against the
flatboat, which immediately sank her. As the steamer was falling
back, it is alleged the flatboat, for the first time, was
discovered, but it was too late, under an adverse wind, to avoid
the collision. George W. Smith says
The Southern
Page 59 U. S. 587
Belle, by keeping on her steam, might have landed above
the wharf boat. That landing, for three hundred yards, is as good
as the landing below.
At the time the steamer passed within one hundred yards of the
flatboat, it could be seen two hundred yards or more. A witness
states at the time he could distinctly see across the river. It
appears from some of the witnesses that there was space enough to
land the steamer below the wharf boat and above the flatboat.
Sometime during Monday night, a floating log struck the bow of
The Rainbow so as to break a hole through it, but the
damage in a short time was repaired. The bow was turned down the
stream to avoid the force of the current.
It is objected that the flatboat had no lights. She had a light
on deck, as proved by her captain and another witness, fifteen
minutes before the collision and at the time it occurred, but as
she was fastened to the shore, and from the weight of evidence was
in her right place, a light was not necessary. Where a boat is
anchored in the path of vessels a light is indispensable, but it is
not required where the boat is fastened to the shore, especially at
a place set apart for such boats.
When a steamer is about to enter a harbor, great caution is
required. There being no usage as to an open way, the vigilance is
thrown upon the entering vessel. Ordinary care under such
circumstances will not excuse a steamer for a wrong done. A vessel
tied to the shore is helpless. No movement can be made by it to
avoid an entering boat; therefore, the whole responsibility rests
on such boat.
It is admitted that where a collision occurs as the result of
uncontrollable circumstances, no responsibility attaches to either
party, but this cannot be said of the respondent. The evidence
shows no fault in the flatboat, but there was fault in the steamer.
The wind was high when she approached the landing -- this should
have produced in her officers the utmost vigilance. That they were
sensible of this was shown by their not attempting to fasten to
The Atlantic. But they were highly culpable in not keeping
up the steam so as to have the control of their boat. The river was
open, so that, had the steam power been kept up, the boat might
have been turned against the wind, and made a safe landing. But her
headway had been lost by backing, so that she became as a log
driven by the winds and waves, and in this manner was thrown upon
the flatboat.
The evidence authorizes the inference that the flatboat was seen
from on board the steamer as she passed it in running up to the
wharf. It is inconceivable that others should be able to see the
opposite shore of the river, and for a hundred and fifty
Page 59 U. S. 588
yards plainly discern the flatboat from the steamboat wharf,
while the officers of the steamer, in passing so near the shore,
should not have observed it. The responsible officers of a steamer,
when about to land, are not presumed to close their eyes; on the
contrary, all experience requires an exercise of uncommon
vigilance. Landing a boat, especially when the wind is high, is
always attended with more or less danger. After making due
allowance for the lights of the steamer, which enabled persons from
the flatboat or wharf to see the steamer and read her name while
passing, the vision of those on board the steamer could not have
been so defective, or blinded by her lights, as not to perceive the
flatboat. The captain of the steamer was not sworn, and from this a
strong presumption arises that his evidence would have been against
his owners. He must have been on the alert in landing, as his duty
required and indeed as the evidence shows he was.
There is no ground of suspicion that the officers of
The
Southern Belle designed to injure
The Rainbow -- on
the contrary, when it was too late, they endeavored to avoid the
collision. Their fault consisted in not landing above the wharf
boat or in not keeping up the steam so as to give them the control
of the boat. The flatboat was plainly discernible from the wharf
boat, and if the officers of the steamer did not see it, it was
because they were wanting in vigilance. But whether they saw it or
not, the respondents are liable for the damage done.
The decree of the circuit court is reversed.