37 F. 380 | E.D. Mo. | 1889
In this ease I announce the following conclusions of law and fact, namely: The barge East, at the time it was taken in tow by the steamer Jarrett, to be towed from Quincy, Ill., to St. Louis, Mo., was not in a. fit and proper condition to stand the voyage with a load of 420 tons of ice stored wholly on deck. In other words, the barge, so laden, was unseaworthy. One end of the barge ivas unquestionably in a bad condition. The stem-post was either weather-checked or rotten, and the planking about the stem had burst its fastenings. An attempt had been made at Quincy to repair the defect by nailing pine plank to the stem-post, so as to strengthen the bow, but the work had been imperfectly done. When the barge reached Clarksville, Mo., and was tied up temporarily, the injured stem pointed up stream, and most.likely
It may be conceded that, although tire libelant had agreed to assume all risks incident to unseaworthiness, yet that it was respondent’s duty, after the barge had sprung a leak, to make all reasonable and proper efforts to save the barge and cargo, oras much thereof as possible. Any violation of such duty would render the respondent liable, not for the entire value of the barge and cargo, necessarily, but for whatever loss was sustained by the libelant over and above what would have been sustained if reasonable and proper steps had been taken to save the barge and cargo. After a careful consideration of all the evidence, my conclusion is that the testimony in the case does not show with any degree of certainty that the libelant sustained any greater loss by reason of the fact that the barge was towed from the landing at Clarksville, after it was partially sunk, and was tied up some distance below the town, than he would have sustained if the barge had been left at the landing. I consider it most probable that in any event the cargo (consisting, as it did, of ice loaded on deck) would have been, as it was, wholly lost. As the barge careened at the landing, in the act of sinking, it would most likely have precipitated the entire cargo into the river. This, I think, would have been the necessary result before the ice could have been unloaded, if the necessary appliances had been at hand (which they were not) for unloading with economy and dispatch. Even if the cargo had not been lost in the manner last indicated, 1 think it verjr doubtful, considering the value of the cargo, and the expense of obtaining the necessary appliances for unloading, and of unloading it, whether a prudent owner, if the barge had been left at the landing at Clarksville, would have made any effort to unload, and thus save, the cargo.
In opposition to these views it may he urged that the barge itself could have been raised more easily, and at less expense, if allowed to sink at the landing, than at the point below the town where it was subsequently moored and sunk. This may be true, but the evidence fails to show how much more it would have cost to raise the barge in the latter place
The cross-demands mentioned in the third and minth articles of respondent’s answer must be dismissed for the reasons following: Respondent is not entitled to recover the full contract price for towing the barge from Quincy to St. Louis, as the voyage was broken up at Clarksville. At most he can only recover reasonable compensation for towing the craft to Clarksville, Mo., and there is no evidence of the reasonable value of such service. Theisum of $25, claimed for towage from Cottonwood isl- and to Quincy bay, is not recoverable in this action, as there is no legal evidence of a promise on libelant’s part to pay that sum, and no evidence of the reasonable value of such service. Both cross-demands are therefore rejected, and a decree will be entered accordingly.