Isenberg v. St. Louis

• Citation: 13 Mo.App. 415
• Parties: ISAAC ISENBERG, Appellant, v. ST. LOUIS AND VICKSBURG ANCHOR LINE, Respondent.
• Decision Date: 13 March 1883
• Court: Court of Appeal of Missouri (US)

13 Mo.App. 415

ISAAC ISENBERG, Appellant,

v.ST. LOUIS AND VICKSBURG ANCHOR LINE, Respondent.

St. Louis Court of Appeals, Missouri.

Mar. 13, 1883.

APPEAL from the St. Louis Circuit Court, HORNER, J.

Reversed and judgment.

L. B. VALLIANT, for the appellant: The burden of showing circumstances that would justify or excuse the non-delivery of the goods is on the carrier.--Story on Bail., sect. 574, note 7; Levering v. U. T. & I. Co., 24 Mo. 88. “Salvage is the compensation allowed to persons by whose assistance a ship or its cargo has been saved in whole or in part from impending danger, or recovered from actual loss in cases of shipwreck, derelict, or recapture.”--3 Kent's Comm. *245-247; Dixon on Maritime L., No. 169. Defendant acted on the idea that, as striking a snag was “a danger of navigation,” which was excepted in the bill of lading, therefore, as soon as the Colorado struck a snag, all further duty and responsibility of the carrier ceased; that the carrier had a right to abandon his charge there and turn it over to the first man who came along. Such is not the the law.-- Daget v. Shaw, 3 Mo. 265; Collier v. Valentine, 11 Mo. 299; Steamboat Lynx v. King, 12 Mo. 272; Hill v. Sturgeon, 28 Mo. 323.

NOBLE & ORRICK, for the respondent: “Salvage will be decreed on all property saved on the sea or wrecked on the coast of the sea.”-- The Cheeseman v. Two Ferry Boats, 2 Bond, 574. The uniform rule is to consider the service ““““performed as one general salvage service, to be compensated by awarding a certain quantum of the whole proceeds, and no distinction is made in awarding salvage between the vessel and the cargo, or between different portions of the cargo.”-- Montgomery v. The Leather, Newb. 421; The Albion Lincoln, 1 Low. 76; The Vesta, 2 Hogg, 189. “Salvage is awarded in case of goods cast ashore, notwithstanding a state law in force which applies to the case.”-- Stevens v. Argus, Bee, 170; Persch v. Ware, 4 Cranch, 347. “A salvator has a qualified property in the articles saved, and he need not remain in the actual possession in order to maintain his right.”--1 Ld. Raym. 363. “A situation of actual apprehension, though not of actual danger, makes a case of salvage compensation.”-- Talbot v. Seeman, 1 Cranch, 1; The Saragossa, 1 Ben. 551.

THOMPSON, J., delivered the opinion of the court.

This was an action to recover of the defendant, a corporation engaged as a common carrier of goods, the value of certain goods shipped by the plaintiff on one of the defendant's boats, from St. Louis to Greenville, Mississippi, and which were not delivered.

In its answer, the defendant, in excuse for the non-delivery, pleaded that the boat on its voyage down the river struck a snag, without any fault of defendant or its servants, and filled with water, and sank, and that the plaintiff's goods were thereby lost, except the two boxes of tobacco, which, “being in great danger of loss by reason of the sinking of said steamboat as aforesaid, were rescued and saved by the board of underwriters of St. Louis, a corporation of the state of Missouri, then and there duly authorized to take charge of such property for the owners, and claim its salvage for the same;” that the tobacco was yet in the hands of the board of underwriters, who had offered it to the plaintiff if he would pay the salvage, and plaintiff had refused.

The reply admitted that the boat had struck a snag and had partly sunk, but only in shallow water, which covered only a part of the lower deck, leaving all the rest of the boat dry and above water, and a large part of its cargo uninjured, and not sufficient to render it untenable or to make it necessary for the officers and crew to abandon it, and that the defendant, by the use of proper care and attention, could have saved the plaintiff's goods from loss, but that, disregarding its duty, it delivered the steamboat and all the goods to the board of underwriters, a private corporation with whom the plaintiff had no concern; denied that any of the plaintiff's goods were lost, but averred that they were all delivered by defendant to the board of underwriters, which was a private corporation chartered by an act of the general assembly of Missouri, entitled “An act to incorporate the board of underwriters of St. Louis;” approved January 14, 1860, and had no authority to interfere; and that the boat did not sink within the jurisdiction of this state.

The cause was tried by the court below upon an agreed statement of facts, in substance as follows:--

“The plaintiff's goods, of the description and value stated in the petition, were shipped on the defendant's steamboat Colorado, to be carried from St. Louis to Greenville, Mississippi, and a bill of lading issued for the same with the usual clause of dangers of fire, navigation, explosion, and collision excepted. The goods were not insured. The boat, proceeding upon its voyage, at some point below Cairo, opposite the Kentucky shore, without any fault on the part of the defendant or its servants, struck a snag and began to take in water very rapidly; and the captain, seeing that it would sink, caused it to be run into shallow water against the bank on the Kentucky shore, where it was made fast to the shore by cable and there settled upon the bottom, the water coming over the lower deck at the stern and covering a considerable part of the lower deck. All in front of the stairway was above water and dry, and the whole starboard guard from the wheel forward was dry. It was an ordinary...