Hostetter v. Park

• Citation: 11 S.Ct. 1,137 U.S. 30,34 L.Ed. 568
• Parties: HOSTETTER v. PARK et al
• Decision Date: 03 November 1890
• Court: United States Supreme Court

137 U.S. 30

11 S.Ct. 1

34 L.Ed. 568

HOSTETTER v. PARK et al.

November 3, 1890.

This is a libel in admiralty, in personam, brought in the district court of the United States for the western district of Pennsylvania, by David Hostetter and George W. Smith, copartners as Hostetter & Smith, against R. C. Gray and the executors of M. W. Beltzhoover, deceased, as owners of the steam-tug Iron Mountain and the barge Ironsides No. 3, to recover $10,182.76, with interest, for damages sustained by the libelants by the loss of sundry boxes of bitters and other merchandise shipped by the libelants of Pittsburgh on board the barge Ironsides No. 3, towed by the steam-tug Iron Mountain, to be transported from Pittsburgh to New Orleans. The libel was filed March 4, 1880. The bill of lading for the shipment was made December 5, 1874, and the loss occurred December 18, 1874. The bill of lading stated that the articles shipped were 'in good order and condition,' and were 'to be delivered without delay, in like good order, at the port of New Orleans, La., (the dangers of navigation, fire, and unavoidable accidents excepted.)' The libel alleged that Gray and Beltzhoover were the owners of the tug and the barge at the time of the shipment and the loss; that the goods were shipped on board of the barge; that the tug, having the barge and other barges in tow, proceeded down the Ohio river, and arrived safely at Mt. Vernon, Ind., on December 17, 1874, and and there took on board of the barge additional cargo; that the tug, instead of proceeding down the river and towards New Orleans without delay, and in accordance with the bill of lading, dropped or left all of the barges except the Ironsides No. 3, and wrongfully, and without notice to the libelants, deviated from and abandoned the voyage to New Orleans by steaming up the Ohio river several miles to the town of New York Landing, in Henderson county, Ky., and there took on board of the barge additional cargo; that on December 18, 1874, the voyage down the river was again undertaken, by attempting to pass for the third time over the distance between New York Landing and Mt. Vernon; that shortly after leaving that landing, or in rounding out therefrom, or at a point about half a mile or a mile below, and before again reaching Mt. Vernon, the barge, being in tow of the tug, and having on board the goods of the libelants, struck some unseen obstruction, and sank in deep water, causing the loss and damage in question; and that such deviation and temporary abandonment of the voyage was contrary to the contract entered into by the bill of lading, and against the law governing common carriers. The answer of the respondents averred that the goods were shipped by the libelants with the understanding and knowledge that the respondents had the right to complete the cargo of the barge at any place between Pittsburgh and New Orleans where they might be able to secure the same, and to receive and discharge cargo upon and from the barge in accordance with the usage and custom of trade and navigation on the Ohio and Mississippi rivers. It denied that the steam-tug and the barges in tow of her abandoned their voyage and refused to proceed thereon withbut delay, and averred that with all possible dispatch they took on said additional cargo at Mt. Vernon and at New York Landing, to which latter place, on the Ohio river, in the immediate vicinity of Mt. Vernon, the steam-tug towed the barge Ironsides No. 3 from Mt. Vernon, according to the usage and and custom of navigation upon that river, and were only prevented from proceeding with the goods of the libelants towards New Orleans by reason of one of the dangers of navigation, which occasioned the loss of the goods, and of the barge and its contents; that it was at the time stated, and always since the transportation of goods by means of barges towed by steam vessels first began on the Ohio and Mississippi rivers and their tributaries had been, the uniform, continued, general, and well and publicly known, usage and custom of such vessels and barges to load partially at the port of departure, if that was necessary either by reason of the stage of water or lack of cargo, and to take on additional cargo at any place where the same might be had between the ports of departure and destination; that, on the voyage in question, the barge left Pittsburgh partially laden, and arrived at Mt. Vernon without having secured a full cargo; that, in securing additional cargo along the rivers navigated en route to the port of destination, it was at the time, and had been since barge navigation of those rivers began, the constant, general, well-known, and uniform custom and usage for the owners or agents of the vessels and barges to land their fleets at the larger, safer, and more convenient landings along those rivers, and there meet and contract with shippers for the transportation of their goods, and then detach from the fleet the barge or barges designated to receive such cargo, if the cargo was not there, and send the barge or barges so designated to the place where the cargo might be stored, whether up, down, or across the river, within such reasonable distance as might be reached without great or unreasonable delay or expense; that Mt. Vernon is a point where shippers within a radius of 15 or 20 miles therefrom meet carriers upon the Ohio river, and is the place where shippers whose goods are received at New York Landing meet and contract with carriers for their transportation to points below; that, in pursuance of such general, uniform, constant, and well-known usage and custom, the fleet of barges landed at Mt. Vernon, and the respondents there contracted with certain shippers whose goods were at New York Landing, a point between two and three miles above Mt. Vernon, to carry the same to New Orleans, and detached from the fleet the barge Ironsides No. 3, and the tug towed her to New York Landing, and there took on board of her additional cargo, with all possible dispatch and without unreasonable delay; that, in rounding out to leave New York Landing, the barge, without fault, negligence, or want of skill on the part of those havigating her or the steam-tug, ran upon and struck, in deep and navigable water, an obstruction unknown, unseen, unmarked, and in no way indicated, and which could not have been seen, known, or avoided by the exercise of any degree of skill, care, or caution, by reason whereof the barge was sunk and totally lost, and her cargo greatly damaged; that the voyage was not abandoned, or wrongfully deviated from, but the action of the respondents in the premises was lawful, customary, and right, and in accordance with the established usage of the trade in which they were plying, which usage was well known to the libelants at the time of the shipment of their goods; and that the goods were damaged and lost through one of the dangers of navigation, within the exception of the bill of lading. An amendment to the libel was afterwards filed, setting up that the sinking of the barge was not the result of an...