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conducted legally in all its process and forms, and yet the purchaser may have been guilty of fraud, or may hold the property as a trustee. In this case the complainants rely upon no irregularity of proceeding, upon no absence of form. The forms of law were scrupulously observed. But they rely upon faithlessness to trusts and common obligations, upon combinations against the policy of the law and fraudulent, and upon confederate and successful efforts to deprive them wrongfully of property in which they had a large interest, for the benefit of persons in whom they had a right to place confidence. Homologation is no obstacle to such a claim.

The judgment of the Circuit Court must, therefore, be reversed.

Mr. Justice Bradley took no part in the decision of this cause.

ORDER.

This cause came on for argument and was argued by counsel. Whereupon, after due consideration, it is ordered, adjudged and decreed, that the decree of the circuit court dismissing the bill of the complainants be reversed and set aside, and that the bill be re-instated.

And it is further ordered and decreed and hereby declared, that the mortgage described in the bill, executed to John Ray or bearer, is still a valid lien upon all the property described therein not sold or disposed of by the Vicksburg, Shreveport and Texas Railroad Company before December 23, 1865, and the rights of the holders of bonds bona fide issued under the mortgage are hereby set up and maintained, 635*] and the holders *are authorized to prove their bonds under the decree of this court or the circuit court.

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(See S. C., "The Lady Pike," 21 Wall., 1-17.) Decree in admiralty, when reversed-carriers, liability of-duty of-rash act-inevitable accident.

1. This court will reverse a decree in admiralty, if the facts require it, although both subordinate New evidence may be received here on the hearing courts have concurred in a decision, on its merits. of appeals in admiralty and prize cases, and it is the duty of this court to re-examine the facts as

well as the law of the case.

2. Carriers of merchandise by water are insurers, and liable for every loss or damage to the merchandise, unless it happened by the act of God, the public enemy, the act of the shipper, or by some cause excepted in the contract of shipment.

3. The carrier must provide a seaworthy vessel, with an adequate and competent crew and a competent and skillful master, with knowledge of the route and experience in navigation.

4. It is a rash act to run a steamboat and three barges combined through a narrow and dangerous passage between two piers on a windy day, and the owners of the steamboat are responsible for the loss of a cargo of one of the barges if it results from the ignorance, unskilfulness or negligence of the master or those in charge of the steamboat. sustained if the disaster was occasioned by the incompetency, negligence of the master or pilot.

5. The defense of inevitable accident cannot be

And it is further ordered, adjudged and decreed that the sale made to John T. Ludeling and his associates, and the adjudication of the sheriff to them, together with the sheriff's deed to them, be declared to be fraudulent and void, and be set aside and canceled, and that a perpetual injunction issue commanding them and all the defendants to refrain from setting up or claiming any right, title or interest under said sale or under said deed, and also commanding them, their agents and servants, to refrain from selling or otherwise disposing of any of Argued Nov. 18, 19, 1874. Decided Dec. 7, 1874. the property, rights, credits, privileges or effects

unskilfulness or

[No. 72.]

PPEAL from the Circuit Court of the United

covered by or embraced within the mortgage A States for the Eastern District of Wiscon

made by the said The Vicksburg, Shreveport and Texas Railroad Company.

sin.

for the loss of a certain cargo of wheat. A decree having been entered in favor of the claimants of the steamboat, and affirmed upon appeal by the circuit court, the libelants took an appeal to this court.

And it is further ordered, adjudged and deThe libel in this case was filed in the District creed, that this cause be remitted to the Circuit Court of the United States for the Eastern DisCourt for the District of Louisiana, with in-trict of Wisconsin by the appellants, to recover structions to direct an account to be taken, of all the property of the said Corporation and to appoint a receiver thereof; and, also, to order that the property described or mentioned in the said mortgage be sold, under the direction of that court, for the benefit, first, of all the bona fide bond holders secured by the mortgage; and, second, for the benefit of other creditors of the Company and its stockholders, upon such terms as may appear best calculated to promote the interests of all.

The case is fully stated by the court.

Messrs. J. M. Carlisle and J. D. McPherson, for appellants:

The pilots were grossly ignorant of the facts essential to the safe navigation of the river at that place.

And it is further ordered and decreed that the Neither of them knew the width of the opendefendants do account for all money and prop-ing between the piers, nor the width of the tow

that was to pass through that opening. They evidence is that the tow was midway between both overestimated the width of the opening, | piers three and four, when the bow of the barge and underestimated the width of the tow. was opposite the ends of the piers. She ran There was gross negligence in passing be- sixty feet nearly before she struck. She was tween the third and fourth piers, and midway going, with the current, ten miles an hour, and between these piers. There was a wider pas-in running sixty feet, would drift six feet, thus sage between piers four and five, and there was overcoming the entire space between her and a passage over pier number three. the pier when she entered. But we maintain, further, that the wind described by the witness was incapable of overcoming the distance between the pier and the boat, during the time of the accident.

The steamer approached and endeavored to pass through the piers at full speed, without slowing up at all. It is not enough for the defendant to show that the accident was inevitable at the moment it took place.

The Merrimac, 14 Wall., 199, 20 L. ed. 873; Lushington in The Europa, 2 Liv. Law Mag., Dec., 1850, p. 499.

In 9 Wallace, 19 L. ed., in several cases, the court condemns steamers for running at high rate of speed in almost every variety of cases.

In entering a crowded harbor: The Corsica, 9 Wall., 634, 19 L. ed., 806.

In passing a crowded thoroughfare: The City of Paris, 9 Wall., 638, 19 L. ed., 753, and see The New York v. Rea, 18 How., 223, 225, 15 L. ed., 359, 361, where a speed of eight to ten miles an hour is declared grossly reckless.

In running into port: The Portsmouth, 9 Wall., 686, 19 L. ed., 756.

In passing between vessels in the river: The Syracuse, 9 Wall., 675, 19 L. ed., 784.

"It may be a matter of convenience that steam vessels should proceed with great rapidity; but the law will not justify them in proceeding with such rapidity, if the property and lives of other persons are thereby endangered." Lushington, The Rose, 2 W. Rob., 1.

But it was not the force of the wind that drove the boat against the pier.

There were two modes of action by the wind upon the boat.

1. The wind had a tendency to make the boat flank. This motion is that of a revolution around the center of gravity. It tended to revolve the boat and bring her head to the wind.

2. The wind also tended to drive the whole mass before it, giving it a motion of translation. Now, it was not the flanking motion which caused the disaster. The barge which struck was a hundred and twenty-five feet long and its bow was even with the bow of the steamer. It struck nearer its bow than its stern. The point of contact was, therefore, before or in advance of the center of gravity; and, consequently, the place it struck would, by a revolving motion, merely have been thrown further away from the pier, instead of being thrown against it. Then the stroke must have been produced by a motion of translation; a motion which moved the whole mass.

What produced that motion? A competent and sufficient cause was the current, which set across the river from the south side towards the north or St. Paul side, as testified by Monfort and Snow. That current bore against the pier, and as Snow says, would carry a boat or raft several feet while crossing the pier. Of this current the pilot, who was steering, confesses himself ignorant, and consequently he could have made no allowance for it.

If the current was moving but a mile an hour across the heads of the piers, it would, while the boat was running sixty feet, overcome the distance at which he had entered the piers. The

Every witness for the defense speaks of the wind as of a few seconds' duration, and of very little force.

First, then, we have the fact that the boat did not careen; that the blast was not strong enough to careen her; and yet we are told it was sufficient to drive her six feet in a few seconds, together with her barges, which were deep in the water and hardly touched by the wind. We say that this, on its face, is a physical impossibility. The resistance to the careen would be almost nothing; the boat was light, twenty-one feet out of water, and only two feet or twenty-six inches in it.

Second, the weight and draft of the barges offered an immense resistance to the lateral motion. They carried 600 tons of wheat alone (20,000 bushels, of 60 pounds each). If all the barges and steamboats together weighed as much more, and this cannot be doubted, there was a mass of 12,000 tons to be driven.

Third, when a vessel is in motion, the lateral pressure of the wind abeam or on the quarter, causes so little leeway, that in calculating a ship's position it may safely be disregarded.

In Falconer's Marine Dictionary, article, Leeway, after discussion to show that the leeway is diminished by the speed of the vessel, he says that leeway is very inconsiderable, except when the ship is close-hauled, and may be disregarded when the wind is large.

"Large" in the same work is defined to mean, when the wind is on the beam or quarter.

This is the case with sailing ships, where the proportion of exposed surface is far greater than in this; many times as great, for the three barges showed, probably, not more than one fifth of their bulk above water, and the resistance to lateral motion was increased several times by the separate bodies of the barge and boat.

Moreover, in this case, the wind was not directly on the beam, but came aft a little; that is, it came a little down the river.

A very strong, if not conclusive, confirmation of these views may be drawn from the physical laws of motion.

1. The squall struck the boat just as the bow of the barge was opposite the pier.

2. The boat was running with the current ten miles an hour.

3. The barge struck the upper edge of the pier în less than half her own length, which was a hundred and twenty feet; in other words, the barge ran less than sixty feet while drifting six feet.

4. The broadside of the boat and barges exposed to the wind showed not more than 3,360 square feet.

5. The boat, barges and cargo weighed over 600 tons.

Now, if these are facts, it would have re-libelants upon the merits, this court will not quired a wind of the violence of a hurricane to reverse the decree below, except upon a very move the boat sidewise six feet in five seconds. clear case made. This is the well settled pracThe laws of motion are such that, where a tice of the courts of the United States and of constant pressure, expressed in pounds, oper- this court. ates upon a mass measured in pounds, and the pressure and mass are equal, the motion produced is 16.1 feet in the first second of time, and for every other period of time 16.1 feet multiplied by the square of the time in seconds. That is the case of a falling body, when the mass is, say, of one pound, and presses down ward, of course, with the weight of a pound, if suffered to fall freely.

If the same mass, say one pound, were driven horizontally with the same pressure, it would move at the same rate, and it would move in 5 seconds (5 by 5 by 16.1) 402 1-2 feet.

To drive it 6 feet in the same time, would require only 6-402 1-2, or 1-67 of its own weight, and to drive 600 tons 6 feet in 5 seconds would require 1-67 of 600 tons, or 9 tons.

If nine tons be diffused over the 3,360 square feet exposed to the wind, it gives upwards of 5.3 pounds to the square foot.

Now, in a reputable work on Seamanship, written by an officer of the United States Navy (Luce, Seamanship, ed. of 1860, p. 514), it is stated that a pressure of from 3.126 to 4.689 pounds indicates a strong gale, requiring close reef topsails and storm sails, and having a velocity of 32 miles an hour.

Now, surely it cannot be contended that the gust described in the testimony was more than such a gale; and if not stronger than this, it would not have sufficed to transport the wheat alone the distance in question, leaving out of the question the weight of the steamer and barges.

But the wheat alone weighed 600 tons (20,000 bushels at 60 pounds). If the steamer and the barges altogether weighed as much as the wheat, the force required to move it would have been 10.16 pounds pressure.

We have assumed the whole broadside of the steamer to be closed throughout its whole length and presenting a solid obstacle to the wind; it is safe to say that one third of the entire side was open. If so, to get the pressure required, the wind must have blown with a force of 15.9 pounds per foot, for 2 by 15.9 equals 3 by 10.6. We have assumed that the wind came directly across the river and struck the boat at right angles to its course; whereas the wind came a little down the river, as the witness Eugard

says.

The Spray, 12 Wall., 367, 20 L. ed., 286; The Hypodame, 6 Wall., 223, 18 L. ed. 796; Newell v. Norton, 3 Wall., 267, 18 L. ed. 273; P. W. & Balt. R. Co. v. Towboat Co., 23 How., 219, 16 L. ed. 436; The Marcellus, 1 Black, 417, 17 L. ed. 218; The Sunswick, 5 Blatchf., 281; The Narrangansett, 1 Blatchf., 217.

Here we have the two pilots in the pilothouse; the captain on the hurricane deck, in front; the mate in the forecastle, or main deck forward, and captain Montford, on the barge Salmon, forward near where she hit the pier; all swearing to these facts:

1. That there was no wind, appearance or expectation of wind, when they approached the piers.

2. That the wind came up suddenly, a sudden gust, and blew them upon the pier.

3. They entered between the piers fairly, and would have gone through safely if it had not been for this sudden and unexpected gust of wind.

The loss then was clearly caused by an act of God.

Amies v. Stevens, 1 Str., 128; Colt v. McMechen, 6 Johns., 165; Ready v. The Highland Mary, 17 Mo., 464;The Lady Pike, 2 Bis. C. C. 141; Hays v. Kennedy, 41 Pa., 383.

See especially the opinion of the court in The Niagara v. Cordes, 21 How., 33, 16 L. ed., 50.

Mr. Justice Clifford delivered the opinion of the court:

Appeals in admiralty, it may be admitted, are not favored where it appears that the subordinate courts have both concurred in the same view of the merits of the controversy; but it is not accurate to say that the Supreme Court will not reverse such a decree in a clear case.

Such a proposition cannot be adopted, as a rule of decision, consistently with the provisions in the Act of Congress allowing appeals from final decrees rendered in the circuit court to the Supreme Court, in all cases of equity and of admiralty and maritime jurisdiction, where the matter in dispute, exclusive of costs, exceeds the sum or value of $2,000.

Decrees of the kind were formerly required to be removed here for re-examination by a But, above all, we have assumed that the writ of error, by the Congress subsequently mass moved with perfect freedom in space, as repealed those regulations, and provided that if suspended in the air, and moving with the appeals should be allowed in all such cases, and wind. To the contrary of this the boat and that upon such appeal a transcript of the libel, barges were imbedded in the water; the boat bill, answer, depositions and all other proceeddrawing 26 inches and the barges 4 feet, and ings of what kind soever in the case, shall be exposing, in all, a surface of 1,760 square feet transmitted to the said Supreme Court. Proto the action of the water, a fluid equal to near-vision is also made by that Act that new evily 800 times the weight of air and at equal velocity, exerting 800 times the pressure on the same extent of surface, or, on half the surface, 400 times the pressure.

Mr. T. D. Lincoln, for appellees: This being a case presenting a question of fact merely, and there having been two full hearings, one in the district court and one in the circuit court, on appeal, and upon both hearings the case having been decided against the

dence may be received here on the hearing of such appeals in admiralty and prize cases, which affords very strong support to the proposition that the facts, as well as the law of the case, are open to revision by this court in the exercise of its appellate jurisdiction.

Considerable weight, undoubtedly, in such a case should be given to the decree of the subordinate court, and hence the rule, which is well settled, that the burden is on, the appellant to

show that the decree of the subordinate court | lege that the master did not so transport and 9*] is erroneous, but it is a mistake to suppose deliver the wheat to the said consignees, althat this court will not re-examine the facts as though no dangers of the river or fire prewell as the law of the case, as the express com- vented him from so doing. Instead of that, mand of the Act of Congress is that the Su- the libelants charge that he, the master, and preme Court shall "hear and determine such ap- his mariners and servants, so negligently and peals," which makes it as much the plain duty carelessly conducted themselves in the navigaof this court to re-examine the evidence in the tion of the steamer and barges that the barge case as the questions of law presented for de- containing the wheat was sunk in the river, cision, The Baltimore, 8 Wall., 382, 19 L. ed., and that the wheat became and was a total loss. 464; Rogers v. Wheeler, reported ante, 385. Process was served and the claimants appeared and filed an answer, in which they admit the shipment of the wheat and the contract of the master to transport and deliver the same, as alleged in the libel, but they allege that the sinking of the barge and the consequent loss of the wheat were occasioned by the unavoidable dangers of the river, and they deny that the sinking of the barge was caused by any negli

Wheat of the quantity and quality specified in the libel was delivered by the shipper to the master of the steamer at the place mentioned in the libel, to be transported from the port of shipment to the Port of Savannah, in the State of Illinois. Such a shipment it was not expect ed would be laden on board the steamer, as she was not constructed nor fitted for the stowage of grain in bulk, nor was it in the contem-gence or carelessness on their part or on the plation of either party that the wheat would be shipped and transported to the port of destination in that way, as the shipper as well as the carriers knew that such freight was accustomed to be stowed in bulk in barges belonging to the carriers, and that the respondent steamer was employed in towing barges so laden with such cargoes.

Pursuant to that usage the wheat in question was stowed in bulk on board the barge described in the libel, and the barge, with two others of like character, similarly laden, was taken in tow by the steamer, which furnished the motive power for the whole craft, and the proofs show that the several barges, as well as the steamer, were commanded by the same master and manned by the same crew. They, the steamer and barges, were all arranged abreast, the larger barge being lashed to the starboard side of the steamer, and the smaller of the other two being lashed to the port side of the steamer, between the steamer and the starboard side of the barge containing the wheat which is the subject of litigation.

Different estimates are made by the witnesses as to the width of the whole craft as arranged,

but the evidence taken as a whole convinces the 10*] court that the steamer and the *three barges combined, including the guards of the steamer and the planking of the barges, could not have been less than one hundred and five feet even if they were all closely lashed together, which is highly improbable. Lashed as they were, broadside to broadside, of course the stem of the steamer was much in advance of some or

part of those navigating the steamer or barge which contained the wheat; and they also allege that when passing in the usual channel *between the piers in the river, near St. [*11 Paul, in the usual way, the steamer and barge were by a sudden gust of wind blown to the larboard, so that the barge containing the wheat struck the pier on that side of the barge, which caused the barge to sink, as alleged in the libel. Proofs were taken, and the district court, after hearing the parties, entered a decree dismissing the libel. Hearing was again had in the circuit court on appeal, and the circuit court entered a decree affirming the decree of the district court. Whereupon the libelants appealed to this court.

Errors assigned here are in substance and effect as follows:

1. That the steamer and barge were not properly manned, nor were they fit for the voyage, as neither the master nor pilots had either the requisite knowledge of the vessels under their command or of the dangers and difficulties of the navigation which they had to meet in the course of the trip down the river.

2. That the pilot improperly endeavored to steer the craft midway between piers Nos 3 and 4 when he ought to have known that the latter pier was so far under water that the craft might have safely passed over it, as was usually done in times of high water, by which improper and unnecessary act the barge containing the wheat was brought within five and a half or six feet of the pier which she struck; all of the respective stems of the barges, as she whereas, if the pilot had steered the craft farthexceeded in length even the largest barge, byer to the westward and passed over that pier, more than fifty feet. Barges for transporting such products were furnished by the carriers, but the wheat was put on board the barge by the shipper, it being the duty of the carrier to have agents present to oversee and regulate the stowage.

Sufficient appears in the pleadings and proofs to support the proposition that the wheat, when stowed in the barge and delivered to the master, was in good order and condition and that the master, when he received the wheat, contracted with the shipper to transport and deliver the same in like good order and condition, to the consignees at the port of destination, as when received at the port of loading, "the unavoidable dangers of the river and fire only, excepted," and the libelants al

as he should have done at that stage of the water, the distance to the piers on either side of the craft would have been so great as to avoid all danger of collision.

3. That the craft might have been navigated in safety between piers Nos. 4 and 5, which are one hundred and fifty-one feet apart, showing that the craft might have been navigated through that pass, leaving a space on either side of twenty-three feet, which is manifestly too great to have been overcome by the alleged gust of wind.

4. That the speed of the steamer with the barges in tow, in passing between the piers, was improper and unwarrantable, and was the ficient cause of the disaster and loss.

*5. That it was the course of the cur-[*12

rent, which was unknown to the pilot, that drove the craft to the leeward, and not the wind, as alleged in the answer, and the libelants allege that the pilot, if he had had proper knowledge of the navigation, might have prevented that movement of the craft by the exercise of due skill in steering.

1. Applied exclusively to the number of the steamer's company, the complaint contained in the first assignment of errors would not be well founded, as the crew was sufficient in number, and the proofs show that the steamer had on board two pilots and two master mariners; but the gravamen of the complaint is that neither the master in charge of the deck nor the pilot had any sufficient knowledge of the craft under their command, nor of the dangers of the navigation in passing down the river in such a steamer with three such barges in tow arranged in the manner before described. Proof of the most satisfactory character is exhibited, that they did not even know the width of the craft, as the same was arranged, nor the actual distance between the piers where the disaster occurred. On the contrary it appears that they both overestimated the width of the space between the piers, and underestimated the width of the tow, including the steamer, as they were arranged abreast, the distance between the two first named piers not exceeding one hundred and sixteen feet and the width of the whole craft being at least one hundred and five feet. Nor does the fact that the pier on the starboard side was so far under water that the craft might have passed over it, palliate the rashness of the act, as the evidence shows that both the master and the pilot were ignorant of that fact, and that as they approached the place of danger they put the steamer upon a course to cause the whole craft to pass midway between those two piers, which brought the port side of the barge containing the wheat within five and a half or six feet of the pier on that side which was not submerged in the water.

2. Attempt is made to excuse the master and pilot for endeavoring to pass midway between those piers, upon the ground that they did not 13*] know that it would be safe to pass *over the pier on the starboard side, but the sufficiency of that excuse cannot be admitted, for two reasons: (1) Because they ought to have known both the dangers and the facilities of navigation before undertaking the responsible duties in which they were engaged. (2) Because it was their duty, if they believed that the pass in question was restricted to the distance between the two piers, to have taken the other pass, which the evidence shows has the width of one hundred and fifty-one feet.

Opposed to that is the suggestion that the wider passage was obstructed by a sunken barge, but the evidence satisfies the court that the alleged obstruction did not exist at that time, and that the disaster that caused that barge to sink occurred at a later period.

3. Unobstructed as the wider passage was, it was plainly a rash act to attempt to pass down the narrower passage on a course which brought within five and a half or six feet of the pier on the port side of the barge containing the wheat that side; which act can only be accounted for upon the ground of negligence and inexcusable jmerance of the dangers and facilities of the

navigation, as it was evidently a hazardous experiment to attempt to pass between those piers if the craft could not pass over the pier on the star board side, and it is equally clear that it would have been safe to have steered between the piers forming the wider passage, which it seems never occurred to the master or pilot.

4. Even if such an attempt could be justified at all on a windy day when the water was high, it is quite clear that neither skill nor good judgment was exercised in setting the course of the craft before passing between the piers. Beyond all doubt some allowance, though the margin was small, should have been made for the leeway of the craft, as the evidence is convincing that the course of the current at high water tends somewhat to force the craft towards the pier on the port side. Besides they had met with some difficulty previously during the trip that day, at the bridge higher up the river and, therefore, were forewarned that a like difficulty might again occur.

*Ignorance of the danger before them [*14 is no sufficient excuse, as the owner appoints the master and is bound to select one of competent skill and knowledge, to transport goods and merchandise shipped on board in safety, which necessarily imposes the obligation to employ a master mariner who knows enough about the route to avoid the known obstructions and to choose the most feasible track for his route. Knowledge of the kind, in river navigation, is peculiarly essential, as the current frequently shifts from one side towards the other, and the track of navigation is often obstructed by snags, sand bars and shoals, which no degree of skill would enable the mariner or pilot to avoid without a prior knowledge of their existence.

Cross currents between the piers of bridges which span the river somewhat diagonally are not infrequent, and as they are not always fully appreciable to the casual observer, it is important that master mariners should know of their existence and something of their force, in order that they may be able to steer their steamer or other vessel properly through such a passage. Neither the master nor pilot, in this case knew that there was any such cross current between these piers and, consequently, took no precaution to guard against its influence.

Carriers of merchandise by water, seeking general employment, are to be regarded as common carriers and, like common carriers by land, in the absence of any legislative provision prescribing a different rule, are in general to be held responsible as insurers; and, consequently, are liable in all events and for every loss or damage to the merchandise, unless it happened by the act of God, the public enemy, or by the act of the shipper, or by some other cause or accident, without any fault or negligence on their part, as expressly excepted in the bill of lading or contract of shipment.

Standard authorities show that the first duty of the carrier, and one that is implied by law, is to provide a seaworthy vessel, well furnished with proper motive power, and furniture necessary for the voyage. Necessary equipment is as requisite as that the hull of the vessel should be stanch and strong; and she must also [*15 be provided with a crew adequate in number and competent for their duty with reference to

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