1. It is the duty of the carrier of grain in bulk in barges on
our Western rivers, in the way now usual, as distinguished from the
old way in sacks, to see that his barge is capable of resisting,
without subjecting the cargo to injury, all the external forces to
which it is subjected in the ordinary course of navigation,
including especially those incident to the narrow, crooked, and
shallow water and the often changing courses in the currents of the
rivers where they are, and to the force with which the large
steamers which have them in tow are often brought against their
sides in landing, as they do, for the purposes of their ordinary
business, every few miles on the river.
2. The barge must be so tight that the water will not reach the
cargo, so strong that these ordinary applications of external force
will not spring a leak or sink her, so sound that she will safely
carry the cargo in bulk through these ordinary shocks to which she
must every day be subjected. If she is capable of this, she is
seaworthy; if she is not, she is unfit for the navigation of the
river. No other test can be given, and this must be determined by
the facts in each particular case.
3. It is the duty of the carrier to have his barges often
examined and thoroughly inspected so as to be sure of their
condition. He should not use a barge after she has become from age
or decay or injury unfit for use, and should repair them often and
well so long as they can by repairing be safely used, and no
longer. For this he is to be held rigidly responsible.
The La Crosse & Minnesota Steam Packet Company, owners of
the steamboat
Northern Belle, and engaged in the carrying
trade on the Upper Mississippi, undertook to carry for a certain
Robson, in their barge
Pat Brady, five thousand bushels of
wheat from Hastings, in Minnesota, to La Crosse, in Wisconsin, and
safely deliver the same, the unavoidable dangers of the river and
fire only excepted. On the voyage, the barge was sunk and the wheat
damaged, and the Home Insurance Company, which had given a policy
on the wheat and paid it, filed a libel in admiralty against the
steamer and her barge to recover the loss.
The principal question in issue was the seaworthiness of the
barge. The injury occurred May 12. About the latter part of June
following, after another accident and loss
Page 76 U. S. 527
of a cargo on the same barge, she was placed upon the ways for
repairs. And the depositions of several witnesses who examined her
carefully at this time were now before the court. One of these
witnesses testified that he found over ninety timbers rotted and
gone, so much so that they were not strong enough to make a
fastening to. At one point, there were four side timbers rotted
out, so as to leave about five feet without support. Her floor
timber ends were much decayed. Another witness stated that on one
side he found about fifty rotted timbers, some of them entirely
rotted off; on the other side, about the same, fifteen or twenty of
them rotted entirely off. A third witness, a ship carpenter,
confirmed this, testifying that the effect of it would be that any
strong pressure against her sides or bottom from getting aground or
surging against a steamboat would cause her to leak -- an inference
which it hardly needed a ship carpenter to draw for the court.
The evidence in the immediate case showed that on the occasion
when the present catastrophe took place, the steamboat was
descending the river in the night when a slight shock was felt on
the barge, so slight that it was not communicated to the boat. It
did not stop or retard either the barge or the boat, but in a few
minutes the former was found to be sinking, and had to be grounded
on the nearest sandbar. No rock or snag was proved to be in the
river at the place where the stock first occurred.
The
Pat Brady was an old barge which had been formerly
called
Fort Snelling. But about a year before this
catastrophe, she had been repaired and sent forth with a new
name.
The district court decreed in favor of the libellant, and the
circuit court affirmed that decree. The case was now brought here
by the packet company.
MR. JUSTICE MILLER delivered the opinion of the Court.
As the decision of the cause turns upon the fitness of the
Page 76 U. S. 528
barge for the purpose of the voyage, or, in the language of the
admiralty, on its seaworthiness (a question which, as applicable to
the peculiar condition of this navigation, is before us for the
first time), we propose to examine into some of the principles on
which that question must be decided.
For many years, the grain which was transported by steamboats on
the Western rivers was first put in sacks, and then placed in the
hold of the vessel, or if that was filled, was laid around on the
decks. But as this commerce in the cereals increased in importance,
including as it does not wheat, corn, rye, oats, barley &c., of
that immense agricultural region, it became a necessity to have the
freight as cheap as possible. The cost of the sacks in which the
grain was carried, and the labor of filling and securing them and
loading and unloading was a heavy item in transportation. The
railroads, which had become active competitors for this carrying
trade, did not use sacks, but placed the grain in bulk in cars
adapted to the purpose. To facilitate the loading and unloading of
grain, these railroad companies introduced on their lines, and at
the termini of their roads on the rivers, immense buildings called
grain elevators. In these buildings, the grain was carried by
machinery up into bins, and then by its own gravity let down
through conductors into the cars, which were thus loaded in a few
minutes. The introduction of this mode of loading and carrying
grain by the railroads, and the competition which they presented to
river transportation, introduced in the latter the use of barges,
in which grain was carried in bulk, without sacks, and loaded from
elevators, as was done by the railroads. This mode of river
transportation, which is often auxiliary to the railroads, has
superseded almost entirely the old mode of carrying by sacks in the
hold of the vessel, and its present importance and future growth
can hardly be overestimated. It is therefore of great consequence
to determine, upon sound principles, the rights and liabilities of
the carrier and the owner of the cargo in these cases, in regard to
these barges, so far as they are open for consideration.
The barges are owned by the same persons who own the
Page 76 U. S. 529
steamboats by which they are propelled, and are generally
considered as attached to and making part of the particular boat in
connection with which they are used, though quite often an
individual or corporation owning several boats, running in a
particular trade, have a large number of barges, which are taken in
two by whatever boat of the same line may be found most convenient.
In every case, however, the barge is considered as belonging to the
boat to which she is attached for the purposes of that voyage.
The question that arises in the case before us has reference to
the extent of the duty or obligation which the law imposes upon the
owners of such a steamboat in regard to the condition of the barge
in which grain is so carried in bulk, as to seaworthiness or
fitness to perform the voyage which her owners had undertaken that
she should perform safely, with the exception of the unavoidable
dangers of the river and of fire.
This duty is one which must obviously belong exclusively to the
carrier. He can and must know, at his own peril, the condition of
the barge in which he proposes to carry the goods of other people,
while the owner of the cargo is under no obligation to look after
this matter, and has no means of obtaining any sure information if
he should attempt it.
When we come to consider what shall constitute fitness or
unfitness for the voyage, we must take into account the nature of
the service which she is to perform, and the dangers attending the
navigation in which she is engaged. This is very different in the
narrow current and shallow water of the river from what it is in
open seas or lakes or their bays and inlets. The necessities of
river navigation require steamboats and barges to pass through
narrow and crooked channels, and to venture on very shallow water,
a water which is constantly varying in its depth, and a channel
which often changes its course in a few days very materially. The
consequence of this is that both steamboats and barges often get
aground temporarily and are soon got off and resume their voyage.
Often they rub the bottom of
Page 76 U. S. 530
the river for many feet on crossing a sandbar at low water, and
pass on without injury or interruption. These large steamboats,
having a barge or barges in tow, lashed to them loosely, as they
must be, are often brought against their sides with much force.
They land for the purposes of their ordinary business at every ten
or twelve miles of their voyage at the towns and landings on the
river, and in doing so must necessarily impinge with more or less
force against the barge which is between the boat and the shore.
These are the daily and hourly external forces to which the barge
is subjected in the ordinary course of navigation.
It is the duty of the carrier to see that his barge is capable
of resisting these forces without subjecting the cargo to injury.
She must be so tight that the water will not reach the cargo, so
strong that these ordinary applications of external force will not
spring a leak or sink her, so sound that she will safely carry the
cargo in bulk through these ordinary shocks to which she must every
day be subjected. If she is capable of this, she is seaworthy; if
she is not, she is unfit for the navigation of the river. No other
test can be given, and this must be determined by the facts in each
particular case.
In the one now under consideration, if regard be had to the
evidence as to the condition of the Pat Brady, there is not much
difficulty. [The learned Justice here recapitulated the testimony
as already given as to the condition of the boat.] It is argued by
the claimants that the barge struck a sunken rock or snag with such
force as to tear open her planks, and that the sinking was one of
the unavoidable dangers of the river. But without attempting any
nice criticism of that phrase, we are entirely satisfied that there
was no shock or force which a strong, well built barge would not
have sustained without injury. The slight character of the shock,
the rotten condition of the barge, the additional fact that she was
an old barge which had been repaired and had her name changed a
year or so before the accident, all prove this. No snag or rock was
proved to exist there. It was in all probability an ordinary rub
over a sandbar, which the
Page 76 U. S. 531
barge, in her decayed condition, could not stand without
leaking.
Decree affirmed.
