HOSTETTER v PARK No 3 SUPREME COURT OF THE UNITED STATES 137 U S 30 11 S Ct 1 34 L Ed 568 1890 U S LEXIS 2059 Argued and submitted October 21 1890 November 3 1890 Decided PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF PENNSYLVANIA THIS was a libel in admiralty in personam brought in the District Court of the United States for the Western District of Pennsylvania by David Hostetter and George W Smith copartners as Hostetter Smith against R C Gray and the executors of M W Beltzhoover deceased as owners of the steam tug Iron Mountain and the barge Ironsides No 3 to recover 10 182 76 with interest for damages sustained by the libellants by the loss of sundry boxes of bitters and other merchandise shipped by the libellants at Pittsburg on board the barge Ironsides No 3 towed by the steam tug Iron Mountain to be transported from Pittsburg to New Orleans The libel was filed March 4 1880 The bill of lading for the shipment was made December 5 1874 and the loss occurred December 18 1874 The bill of lading stated that the articles shipped were in good order and condition and were to be delivered without delay in like good order at the port of New Orleans La the dangers of navigation fire and unavoidable accidents excepted The libel alleged that Gray and Beltzhoover were the owners of the tug and the barge at the time of the shipment and the loss that the goods were shipped on board of the barge that the tug having the barge and other barges in tow proceeded down the Ohio River and arrived safely at Mt Vernon Indiana on December 17 1874 and there took on board of the barge additional cargo that the tug instead of proceeding down the river and towards New Orleans without delay and in accordance with the bill of lading dropped or left all of the barges except the Ironsides No 3 and wrongfully and without notice to the libellants deviated from and abandoned the voyage to New Orleans by steaming up the Ohio River several miles to the town of New York Landing in Henderson County Kentucky and there took on board of the barge additional cargo that on December 18 1874 the voyage down the river was again undertaken by attempting to pass for the third time over the distance between New York Landing and Mt Vernon that shortly after leaving that landing or in rounding out therefrom or at a point about half a mile or a mile below and before again reaching Mt Vernon the barge being in tow of the tug and having on board the goods of the libellants struck some unseen obstruction and sank in deep water causing the loss and damage in question and that such deviation and temporary abandonment of the voyage was contrary to the contract entered into by the bill of lading and against the law governing common carriers The answer of the respondents averred that the goods were shipped by the libellants with the understanding and knowledge that the respondents had the right to complete the cargo of the barge at any place between Pittsburg and New Orleans where they might be able to secure the same and to receive and discharge cargo upon and from the barge in accordance with the usage and custom of trade and navigation on the Ohio and Mississippi rivers It denied that the steam tug and the barges in tow of her abandoned their voyage and refused to proceed thereon without delay and averred that with all possible despatch they took on said additional cargo at Mt Vernon and at New York Landing to which latter place on the Ohio River in the immediate vicinity of Mt Vernon the steam tug towed the barge Ironsides No 3 from Mt Vernon according to the usage and custom of navigation upon that river and were only prevented from proceeding with the goods of the libellants towards New Orleans by reason of one of the dangers of navigation which occasioned the loss of the goods and of the barge and its contents that it was at the time stated and always since the transportation of goods by means of barges towed by steam vessels first began on the Ohio and Mississippi rivers and their tributaries had been the uniform continued general and well and publicly known usage and custom of such vessels and barges to load partially at the port of departure if that was necessary either by reason of the stage of water or lack of cargo and to take on additional cargo at any place where the same might be had between the ports of departure and destination that on the voyage in question the barge left Pittsburg partially laden and arrived at Mt Vernon without having secured a full cargo that in securing additional cargo along the rivers navigated en route to the port of destination it was at the time and had been since barge navigation of those rivers began the constant general well known and uniform custom and usage for the owners or agents of the vessels and barges to land their fleets at the larger safer and more convenient landings along those rivers and there meet and contract with shippers for the transportation of their goods and then detach from the fleet the barge or barges designated to receive such cargo if the cargo was not there and send the barge or barges so designated to the place where the cargo might be stored whether up down or across the river within such reasonable distance as might be reached without great or unreasonable delay or expense that Mt Vernon is a point where shippers within a radius of fifteen or twenty miles therefrom meet carriers upon the Ohio River and is the place where shippers whose goods are received at New York Landing meet and contract with carriers for their transportation to points below that in pursuance of such general uniform constant and well known usage and custom the fleet of barges landed at Mt Vernon and the respondents there contracted with certain shippers whose goods were at New York Landing a point between two and three miles above Mt Vernon to carry the same to New Orleans and detached from the fleet the barge Ironsides No 3 and the tug towed her to New York Landing and there took on board of her additional cargo with all possible despatch and without unreasonable delay that in rounding out to leave New York Landing the barge without fault negligence or want of skill on the part of those navigating her or the steam tug ran upon and struck in deep and navigable water an obstruction unknown unseen unmarked and in no way indicated and which could not have been seen known or avoided by the exercise of any degree of skill care or caution by reason
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