1. Where, in a high or uncertain state of the wind, a vessel is
approaching a part of the river in which there are obstructions to
the navigation as,
ex. gr., the piers of a bridge crossing
it, between which piers she cannot, if the wind is high or squally,
pass without danger of being driven on one of them, it is her duty
to lie by till the wind has gone down, and she can pass in
safety.
2. The officers of steamers plying the Western waters must be
held to the full measure of responsibility in navigating streams
where bridges are built across them.
The Home Insurance Company of New York was the insurer of a
cargo of wheat shipped on a barge appurtenant to the steamer
Mohler on the 12th of May, 1866, at Mankato, on the
Minnesota River, in the State of Minnesota -- the river then being
high -- and destined to St. Paul, on the Mississippi. The bill of
lading contained the usual exception of "the dangers of
navigation." The barge was wrecked by collision with one of the
piers of a bridge just above the City of St. Paul, at about eight
o'clock, on the evening of the day on which the voyage began, and
was totally lost.
*
Page 88 U. S. 231
The insurance company paid the loss, and filed its libel in the
district court to recover the amount under its right of
subrogation.
The answer set up that the accident occurred through a sudden
and unexpected gust of wind which overtook the boat as she was
about passing through the piers, and that she was therefore not
answerable for the consequences of the collision.
The case was heard on the testimony introduced by the
respondents, the libellant having called no witnesses.
The weather in the morning of the day when the boat set off was
calm, but during the afternoon became rough and windy, so much so
that the boat laid up at Mendota, near the mouth of the Minnesota
River, and about four miles above the piers, on account of the
wind. After sundown -- that is to say, a few minutes after seven
o'clock -- she proceeded on her voyage, the wind having "abated,"
as the master said, or, according to the testimony of the mate,
having "calmed down some." At eight, the barge struck the pier,
killing a man on board and sinking the barge. The night was
starlight, and the piers had signal lights upon them.
On the trial, there was great discrepancy between the testimony
of the master and that of the mate as to the condition of the wind
after the boat left Mendota. The master swore that there was no
wind to affect the boat until the
Julia, an ascending
boat, got near the
Mohler, while the mate said that the
wind rose after the
Mohler left Mendota and blew hard by
spells all the way down. They also disagreed as to the point where
the
Julia was met, the master saying that it was not more
than a quarter of a mile above the piers, while the mate fixed the
distance at one and a half miles.
From Mendota down to within a short distance of these piers,
high bluffs, it should be stated, line the sides of the river and
prevent boats feeling or being affected by the wind, but that just
before reaching the piers, the bluffs recede from the river and
open so as not to operate as a protection
Page 88 U. S. 232
from the wind, and that on reaching this point wind will be
felt, and sometimes very strongly, though before arriving at this
point it would not be. On coming near to these parts, there was no
doubt that the wind had not gone down, and that it was from a
dangerous quarter, the south, the river here running east and south
wind tending to drive a boat on a pier.
"When we came within about half a mile of the piers," said the
pilot,
"gusts came at times hard enough to split the posts of fences,
but they lulled. Then a heavy gale struck us four or five lengths
above the piers. We could not have then changed our course or made
a landing. Everything possible to prevent a collision was done, but
the collision was inevitable."
An expert witness -- of the respondent's, of course -- on
cross-examination testified that within a quarter of a mile or even
less, the steamer and her tow could have rounded to and landed,
even in a hard wind from the south, and that not to do so in such a
case would be bad seamanship.
Other witnesses testified that these piers increase the danger
of the navigation; that vessels were very liable to be driven
against such obstructions; that extraordinary precaution was
necessary in going through them, and then that "a man is liable to
be beat at it."
Both the district and the circuit court held that the officers
of the steamer were guilty of a wrongful act in attempting to pass
between the piers of the bridge in the state of the weather at the
time, and condemned the steamer. From this condemnation her owners
appealed.
Page 88 U. S. 233
MR. JUSTICE DAVIS delivered the opinion of the Court.
It is insisted that the loss occurred through a peril of
navigation, which was one of the exceptions contained in the bill
of lading, and that therefore the carrier was excused from a
delivery of the wheat. The burden of proof lies on the carrier, and
nothing short of clear proof, leaving no reasonable doubt for
controversy, should be permitted to discharge him from duties which
the law has annexed to his employment. This burden has been assumed
by the carrier, and the case was heard on the testimony introduced
by the respondents, the libellant having called no witnesses.
It may be true, as the answer implies, that the boat would have
safely made the passage if the wind had not driven her against the
pier, but this does not solve the difficulty. The inquiry is
whether the passage should have been undertaken at all in the
general bent of the weather on that day. If the carrier had
sufficient warning to put him on his guard, and chose to neglect it
and take the chances of a venture when common prudence told him
there was danger in it, he cannot escape on the ground that the
particular peril which finally overcame him was a sudden gust of
wind. The general doctrine that a carrier is not answerable for
goods lost by tempest has no application to such a case.
It is undeniable that the weather was boisterous during the
afterpart of the day on which the loss occurred, and that the boat
laid up at Mendota on account of the wind. It had at best only
"abated" or "calmed down" when she left Mendota and proceeded on
her voyage. There is a singular discrepancy in the testimony of the
master and the mate as to the condition of the wind after the
departure from Mendota, and as to where it was that the wind
began
Page 88 U. S. 234
to blow hard, the master swearing that there was no great wind
until the boat met the
Julia, and that this was but a
quarter of a mile above the piers, the mate giving a very different
account as to both facts. Both these officers had equal
opportunities of judging, and there is nothing in the record
affecting the credibility of either. In such a case the defense
fails, for the respondents have no right to ask the court to prefer
the testimony of one witness over the other when there is nothing
in the record to show that one is more reliable than the other.
Apart from this, there is enough in the evidence to establish
satisfactorily that the weather had not cleared nor the direction
of the wind changed, and that the boat should either not have left
her moorings at Mendota or have landed at some proper point before
the piers were reached. It won't do to say that the wind had
moderated and that the officers of the boat thought they could get
through without trouble. They had no right to think so, for on such
a day squalls were likely to arise at any moment, and it was bad
seamanship, being forewarned, to attempt to go through such a
dangerous place in the river. It is difficult at all times to make
the passage of these piers, and especially so in sudden gusts of
wind blowing from the south, which was the case on that day. And
this difficulty is enhanced in the night time, and when the
current, by reason of high water, is increased.
Any prudent officer would have stopped until the weather became
calm. At any rate, it was the duty of the master of the boat in
question to have done so, and, failing in this duty, he is
chargeable with the consequences of his negligence, which in this
case were lamentable, for not only was the property in his charge
destroyed, but a human life lost. The officers of steamers plying
the Western waters must be held to the full measure of
responsibility in navigating streams where bridges are built across
them. These bridges, supported by piers, of necessity increase the
dangers of navigation, and river men, instead of recognizing them
as lawful structures built in the interests of commerce,
Page 88 U. S. 235
seem to regard them as obstructions to it, and apparently act on
the belief that frequent accidents will cause their removal. There
is no foundation for this belief. Instead of the present bridges'
being abandoned, more will be constructed. The changed condition of
the country produced by the building of railroads has caused the
great inland waters to be spanned by bridges. These bridges are, to
a certain extent, impediments in the way of navigation, but
railways are highways of commerce as well as rivers, and would fail
of accomplishing one of the main objects for which they were
created -- the rapid transit of persons and property -- if rivers
could not be bridged. It is the interest as well as the duty of all
persons engaged in business on the water routes of transportation
to conform to this necessity of commerce. If they do this and
recognize railroad bridges as an accomplished fact in the history
of the country, there will be less loss of life and property and
fewer complaints of the difficulties of navigation at the places
where these bridges are built. If they pursue a different and
contrary course, it rests with the courts of the country in every
proper case to remind them of their legal responsibility.
Decree affirmed.
* The bridge and piers are the same referred to,
supra,
p.
99 U. S. 1, in
The Lady Pike.
