The Lady Pike

APPEAL from the Circuit Court for the Eastern District of Wisconsin.

The Germania Insurance Company had insured a cargo of wheat, laden on a barge at Shockopee, on the Minnesota River, and about to be towed by the steamer Lady Pike down that river to its junction with the Mississippi, thence down the Mississippi to Savannah, Illinois; 'unavoidable dangers of the river. . . only excepted.'

The cargo was laden on the barge, and the transportation of it begun. In the course of the voyage, however, the barge was wrecked. The insurance company paid the loss, and alleging that the barge had been wrecked owing to the negligent manner in which the steamer had towed her, filed a libel against the steamer to recover what had been paid for the loss. The owners of the steamer set up that the wrecking had been caused by an 'unavoidable danger of the river,' and was, therefore, within the dangers from which they had excepted themselves. And whether the catastrophe was caused by an 'unavoidable danger of the river,' or by the steamer's negligence, was the question.

The case was thus:

In April, 1866, there stood in the Mississippi River, just above St. Paul's, certain piers of a bridge then in process of construction, beginning on the west side of the river and numbered 1, 2, 3, 4, and 5; pier No. 3 (a turn-table pier) being so far unfinished as that when the river was high, barges like that on which this wheat was laden could pass in safety over it; though when the water was low they could not. In low water the pier was exposed. Owing to a gravel point on the west side of the river which projected itself a little way into the stream, and against which the water struck, the current, in high water especially, rebounded and ran diagonally across the piers towards the east shore, so that 'a boat in going between piers No. 3 and No. 4 would drift from four to six feet towards pier No. 4.' Hills bounded each side of the river for many miles along its course, with occasional openings, or 'coolies' as the navigators call them, through which winds blow, that at other places on the river are arrested by the hills. One of the openings or coolies existed on the west side of the river opposite to these piers. The space between piers No. 3 and No. 4 when No. 3 was above the water, was about 116 feet; that between No. 2 and No. 4 (when No. 3 was below the water) was 264 feet; that between No. 4 and No. 5 was 151 feet. The main part of the channel was between No. 3 and No. 4; there was the draw of the bridge, and it was between those piers that boats and tows going down the river, and sufficiently narrow to pass through in safety, usually went. The passage between No. 4 and No. 5 was at one time obstructed by a sunken barge, but this was after the time of the transit now under consideration. That passage-the passage between No. 4 and No. 5-at this time was clear and of sufficient depth for the Lady Pike and her tow to have passed in safety.

In this state of things, it was-the rivers Minnesota and Mississippi being at the time full with the spring waters-that the Lady Pike, a stern-wheel steamer, ' a high boat, which would catch a good deal of wind on her sides,' set off from her moorings with three barges in tow, laden with six hundred tons of wheat; a tow which was to be styled a heavy two. One barge, larger than the other two, was lashed on one side, and the remaining two upon the other.

The width of all the vessels, steamer and barges when close alongside each other, was 105 feet. They were all stanch, and the steamer abundantly provided with men, including two master mariners and two pilots. Scudding clouds prevented the day from being absolutely clear, and 'puffs, gusts, or squalls of wind,' came up from time to time. These had 'bothered' the pilot nowhere, however, in a way worth mentioning, and the vessels had had no trouble except a little in going between the piers of another bridge higher up the stream, between which, however, they had got safely.

On approaching the piers just above St. Paul, of which we are now principally speaking-the vessels being under a headway of about seven miles an hour-no squall then blowing, and no 'slow-bell' having been sounded, the pilot of the steamer, judging by his eye, and thus judging, being under the impression that he could do so safely, attempted to run his steamer and its tow between piers No. 3 and No. 4. He was apparently ignorant of the exact width of his steamer and its tow, ignorant also of the exact distance between the two piers, and ignorant besides of the fact that in the then height of the water he could have run over pier No. 3; and ignorant in addition or not appreciative of the diagonal effect of the current as it set in high water between the piers. The result was that one of the barges struck pier No. 4, and was wrecked.

The captain and other officers of the steamer swore that just as they were going through the piers, a squall arose and drove the barge against the pier; that the accident arose through no negligence, and was an unavoidable danger of the river.

The District Court held that this was the true view of the case, and dismissed the libel. The Circuit Court affirmed the decree, and the case was now brought here by the insurance company for review.

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

1. If the catastrophe did arise from a squall just as the craft was passing between the piers No. 3 and No. 4, still the decrees below were clearly wrong. The master had no business to be between piers No. 3 and No. 4 at all; and he was there only because he was ignorant of certain capital matters which he was bound to know, and a knowledge of which, had he possessed such knowledge, would have certainly taken him elsewhere than between those piers, and have prevented his being there, and so have prevented the catastrophe which occurred. We mean to say that he did not know the width of his craft, the width of the strait through which he was about to carry it; the fact that he need not, in the then high state of the river, have attempted to run between pier No. 3 and pier No. 4 at all, but might have sailed right over pier No. 3, and so, for his craft of 105 feet wide, have had a passage 264 feet wide; a width absolutely safe. He was ignorant also of the fact that a current would affect him, and in his effort to run his craft of 105 feet wide through a space of 116 feet would of itself alone carry him six feet out of his course. Moreover, the captain was bound to know that wind might meet him (if any did meet him) at the 'cooly' opposite the piers, and to be prepared for it. If there was a squall it doubtless came through the 'cooly.'

2. Had it been necessary to run between piers No. 3 and No. 4 the speed was too great. The captain should have gone under a very slow bell. The space between the piers being just wide enough to get through, the craft could, of course, pass in some way. Had he been going very slowly, the barge might have grazed, rubbed, been strained, but she might not have been wrecked. In case of touching the pier her chances would have been infinitely better when going slowly, than when dashing ahead at the rate of seven miles an hour. We simply put this point, asserting however, broadly, generally, and as our principal point, that the vessels should not have been in such a Dardanelles at all, where a puff of wind could wreck them, and would not have been there but for the ignorance of the captain of matters which it was his high duty to be acquainted with.

3. The accident was not caused by wind. Admitting that the wind might have risen at the very and exact instant of time that the craft was going through the piers-a singular coincidence, it may be safely said, and one requiring the fullest proof-yet no one pretends that it was a great wind, a hurricane. Yet the laws of physics show that nothing short of a great wind, a hurricane, and this too rising in an instant, could have produced this catastrophe.

[The learned counsel then went into a calculation in physics, taking what they assumed that the evidence showed as to the weight of the cargo, the weight of the boats, the surface which they exposed to the wind, the depth to which they were in the water, the fact that the steamer had not careened, and the place in the barge which was opened, and the part of the pier at which she struck, to show that it was impossible that anything short of a hurricane could have driven the steamer and her tows sufficiently far, during the time that she was between the piers before the catastrophe occurred, to have made the collision. This part of the argument they pressed with great apparent confidence.]

Mr. T. D. Lincoln, contra:

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 libellants upon the merits, this court will not reverse the decree below, except upon a very clear case made. This is the well-settled practice of the courts of the United States and of this court.

1. The loss was caused by the act of God; a sudden gust of wind, and there was no want of care and skill. This point is made out in the proof.

The passage taken was the main channel. It was under the draw; presumptively, therefore, the very and exact right place through which to pass.

The case of Amies v. Stevens, given to us by the old but good reporter Sir John Strange, is in point. Strange thus reports it:

'The plaintiff puts goods on board the defendant's hoy, who was a common carrier. Coming through bridge, by a sudden gust of wind, the hoy sunk, and the goods were spoiled. The plaintiff insisted that the defendant should be liable, it being his carelessness in going through at such a time; and offered some evidence, that if the hoy had been in good order, it would not have sunk with the stroke it received, and from thence inferred the defendant answerable for all accidents, which would not have happened to the goods in case they had been put into a better hoy. But the C.J. held the defendant not answerable, the damage being occasioned by the act of God. For though the defendant ought not to have ventured to shoot the bridge, if the general bent of the weather had been tempestuous; yet this being only a sudden gust of wind, had entirely differed the case, and no carrier is obliged to have a new carriage for every journey; it is sufficient if he provides one which, without any extraordinary accident (such as this was), will probably perform the journey.'

Other cases are to the same effect.

If a navigator was to desist proceeding on his voyage because there was a possibility of an injury, he would never do anything. There is the possibility, perhaps even more, of the loss of a ship every time she crosses the ocean, yet, if fair nautical judgment is used, and a loss happens by an act of God, or a peril of the sea, it is held to be inevitable, and the carrier is excused. He must use his judgment. He is not bound to have the highest nautical skill in the world or a better judgment than all other people, any more than he is bound to have the best vessel in existence.

The day was fair, and there was no appearance of wind at the time they approached the piers, and the barges having no means by which they could have been floated down between the piers, and being towed in the usual manner through a place that must be passed, clearly there was no want of that care or foresight in not anticipating and guarding against this gust of wind.

2. Want of care in the speed of the Lady Pike as she approached the piers is alleged. Clear proof would be required that all the officers on watch had neglected anything in relation to passing these piers. They knew their boat and how the tow handled, and how best to pass the piers. Probably with a stern-propeller where a course is rightly taken, the highest speed that which shoots right through-is the safest; manoeuvring in such places with stern-wheeled vessels is difficult.

3. The opposing counsel endeavor to bring certain mathematical problems to bear upon this question. The trouble with all such calculations is that they have no certain bases to rest upon. The calculation and rule are not admitted to be correct, but if the rule applied were so, of what use would it be without certain data? There is nothing in the case so definite and well defined that will enable us to apply the rules of mathematics to it. All is speculation upon uncertainties and is only made plausible by assuming things not proved and not true.

Reply: We fully admit the position of the other side-one which we long ago contended for in this court -that this court will not reverse on questions of fact where the District and Circuit Courts have concurred, except in a clear case. And it is because this case is clear, and only because it is so, that we ask a reversal.

Mr. Justice CLIFFORD delivered the opinion of the court.