The Farragut

APPEAL from the Circuit Court for the Southern District of Illinois.

Clark libelled the steamer Farragut for causing the destruction of the canal-boat Ajax and her cargo on the 8th of March, 1866. The Buckeye Mutual Insurance Company having paid Clark $1500 insurance on the canal-boat, came in by petition, and were made parties libellant, and subrogated to Clark's rights in the cause to the amount thus paid. The principal charges of the libel were, that the steamer Farragut, being engaged in running between Beardstown, Illinois, and St. Louis, Missouri, on the Illinois and Mississippi Rivers, on the 7th of March, 1866, took the canal-boat Ajax, loaded with wheat, corn, and oats, in tow at Beardstown; that the owner or master of the Farragut contracted to tow the Ajax safely to St. Louis and return for $130, and caused it to be lashed to the side of the steamer, and proceeded safely down the Illinois River until about four o'clock in the morning of the 8th of March, when, in attempting to pass through the railroad bridge at Meredosia, the steamer was so carelessly and negligently managed that she caused the Ajax to come in contact with the pier of the bridge, whereby boat and cargo sank and became a total loss.

The answer alleged that the canal-boat was unsound and rotten; that the only contract between the parties was a verbal contract to tow the Ajax to St. Louis for $65, made with reference to the general usage on the Illinois and Mississippi Rivers, by which contracts for towing, in the absence of special agreements, are contracts to tow safely, except the usual dangers and hazards of river navigation, and do not involve the liabilities of a common carrier. The answer denied that the steamer was carelessly and negligently managed, or that the loss of the Ajax was attributable to the unskilfulness, negligence, or fault of any person having charge of her, and alleged that it was due to the usual dangers of river navigation; that the bridge in which the loss occurred is located at a bend in the river, which there changes its course from southeast to southwest; that this bend rendered it difficult to pass the draw of the bridge at any time without striking the eastern pier; that this difficulty was greatly enhanced at high water by a cross-current which strikes it diagonally across the draw, and that at the time of the loss complained of this current was at its worst; that the captain of the steamer himself, one Ebaugh, who was a skilful pilot of the river, took the helm on this occasion, and was steering the vessel when the accident occurred; but that, by the strength of the diagonal current, she was forced towards the piles protecting the east pier, with which the canal-boat came into contact and was stove and sunk, without any want of care or skill on the part of the owner or those in charge of the steamer. It was further alleged that the said piles formerly yielded to pressure, so that a sound boat rubbing against them received no serious damage therefrom; but that, during the preceding winter, the piles had been stiffened up with braces, so that when the unsound and rotten timbers of the Ajax came in contact with them they were crushed.

Both courts below were of opinion that the defence was sustained by the evidence, and decreed against the libellant. That party now brought the case here.

Mr. Laurence Proudfoot, for the appellant:

Captain Ebaugh was in the wheel-house, and acted in the capacity of wheelsman and look-out. Now the law says that there must be a man specially detailed, to have a trustworthy and constant look-out stationed at the part of the vessel best adapted for that purpose, and whose whole business is to keep such look-out; that an omission in case of collision would be prim a facie evidence of fault; that the wheel-house is not a proper place for such look-out, nor the hurricane-deck, and that the captain of the watch is not such a look-out as is required by law.

These requirements of the law extend to all classes of steamers and vessels, including especially those of steamers engaged in towing.

It is asserted by the steamer that, in order to recover, it must be shown affirmatively by us (though the steamer violated the law in regard to a look-out) that the want of the look-out was the cause of the collision. We look in vain in any of the already quoted decisions for such a qualification of the law. No such qualification can be found. Certainly, we having made a prim a facie case against the steamer, it devolves on it to show by largely preponderating evidence, that the neglect to have a look-out did not in the slightest degree tend to the collision and loss.

The Ottawa, one of the latest cases on this subject, goes further in our favor. Clifford, J., there says, in giving the court's opinion, what had been said many times before, as follows: