Lake Michigan Car Ferry Transp. Co. v. Crosby

• Decision Date: 08 April 1901
• Citation: 107 F. 723
• Parties: LAKE MICHIGAN CAR FERRY TRANSP. CO. v. CROSBY et al.
• Court: U.S. District Court — Eastern District of Wisconsin

107 F. 723

LAKE MICHIGAN CAR FERRY TRANSP. CO. v. CROSBY et al.

United States District Court, E.D. Wisconsin.

April 8, 1901

The libelant was the owner of Barge A, a registered scow of peculiar construction, without sails or other motive power which was designed for carrying loaded cars, and so used for a time, then adapted for transportation of lumber, and so employed by the libelant, in one instance carrying a return cargo of coal from the Lower Lakes. The registered capacity of the barge was 403 net tons; her length was 135 feet, and beam 34 feet. The respondent was a steamboat vessel owner of large experience, and a contractor in harbor work, which included the transportation of stone in scows for such work. Desiring a barge for the carriage of stone to Racine and Milwaukee, he entered into negotiation with the libelant for Barge A, and after a personal inspection, and on representations of her lumber capacity, appears to have been satisfied that he could utilize the barge for that purpose. Thereupon the charter party in question was executed, whereby the respondent engaged to take the barge at South Chicago where she then was, to paint her (with pain furnished by the libelants), 'and use her during the charter in transporting stone from Chicago to Milwaukee and intermediate points, and return her to the owner at Chicago' at the expiration of five months. The rental was to be $1,500, and the contract provided an option of purchase at $4,500; the rental to apply as purchase money in the event of an exercise of such option. The barge was taken by the respondent accordingly, loaded at Chicago with stone,--approximately 150 cords, the definite amount not being shown,-- and safely towed to Racine. This stone was all loaded on deck, as customary in the case of flat scows used in the stone trade while this barge had an eight-foot hold, without such knees as entered into the construction of stone scows. Moreover, her sides were made of 6x8 timber, drift-bolted, extending above the deck, and making what is called a 'rail' of three feet and ten inches; and the stone was so loaded as to use this rail by way of substitute for the wall of stone usually placed upon the sides of such cargo on flat scows. When the barge arrived in Racine, no part of the stone being taken off, was towed up the river to receive the remnant of the cargo of another vessel; and after several cords, variously estimated, were placed along her port quarter, giving her a decided list, the tug was called to wind the barge for the purpose of receiving the remainder of the stone on her starboard side. In this maneuver the weight of the stone and the list of the barge caused a collapse,-- the port side appearing to 'flatten out,' as described by some of the witnesses,-- so that the barge was completely wrecked, and return to the owner became impossible.

C. E. Kremer, for libelant.

M. C. Krause, for respondents.

SEAMAN District Judge.

The primary contention on behalf of the libelant is that the terms of the charter are express and absolute for return of the barge or payment of the purchase price, and that the obligation of the charterer is not absolved by the fact that the barge was destroyed, even thought it be without his fault. The cases of Moore v. Association, 41 C.C.A 506, 101 F. 591, and Steele v. Buck, 61 Ill. 343, and the line of authorities reviewed in the opinions, are cited in support of this extreme view, while Young v. Leary, 135 N.Y. 569, 32 N.E. 607, is cited contra, as a leading case for the more liberal construction of a provision for the return of the property. It must be noted that the Moore Case on the one hand, and the Young Case on the other, each present terms in the charter party which do not appear in the simple provision involved in this inquiry, and neither can be followed as a...