The Old Reliable
This text of 256 F. 112 (The Old Reliable) is published on Counsel Stack Legal Research, covering District Court, N.D. West Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
The controversy here grows out of a verbal towing contract. As frequently occurs touching such contracts, distinct disagreements exist as to what the terms of the contract were. The cause was referred to John F. Daird, appointed a commissioner for the purpose, to take the evidence and report with all convenient speed thereon. He has fulfilled this duty and made a report, to which both sides have filed exceptions, I have very carefully read and studied the voluminous volume of testimony returned by him, upon which he has based his findings of fact. I am fully in accord with his findings, and convinced that the exceptions of both sides should be overruled. As to the law governing, fully recognizing the principle that a tug is not an insurer of the tow in its charge, but only required to exercise reasonable care, and only liable for negligence in such exercise, yet it is enough to say here that, establishing the contract to have been to deliver the two barges to McKeesport, Pa., and not to Sisters-ville, W. Va., as claimed by claimants, which the evidence in my judgment demands should be done, the negligence of the tug in substantial[113]*113ly abandoning these barges and leaving them at Sistersville for days, with no proper care and indifferently moored and tied up, becomes very apparent and fully proven. I adopt the report of the commissioner and direct it to be made a part hereof, and decree will be entered in accord therewith.
Commissioner Laird’s Report.
I find the facts as follows:
About October 1, 1917, the steamer Old Reliable, by its officers and agents, made a contract with libelant to tow four barges loaded with railroad ties up the Ohio river to McKeesport, Pa. One was to be towed from New Mar-tinsville, W. Va., and the other three, numbered 68, 131, and 111, respectively, wore to be towed from Parkersburg, W. Va., to said city of McKeesport, Pa. That the said steamer, shortly after October 1, 1917, towed said barge from New Martinsville, W. Va., to said city of McKeesport, Pa., and delivered it as per contract, for which said service libelant paid said steamer.
On October 20,1917, said steamer Old Reliable came to Parkersburg, W. Va., and after obtaining a check for $81 on account in order to purchase coal, received from libelant said two loaded barges, 68 and 131, which said barges said steamer proceeded to tow up said Ohio river, leaving Parkersburg, W. Va.. October 21, 1917, about 7 o’clock a. m. On October 22, 1917, about 3 o’clock a. m., said steamer arrived at Sistersville, W. Va., where its officers and agents undertook to land the said two barges and moor them to the river bank. This was done, and said two loaded barges remained at said landing at Sisters-ville, W. Va., until October 30, 1917, when a rise in the Ohio river caused them to break from their moorings and drift down the river with the current. Barge 131 was caught at Raven Rock, W. Va., where libelant, after notice to said steamer, the owners and claimants thereof, caused same to be unloaded and placed the ties contained therein on board of railroad cars and thus shipped them to their destination. That said barge 131, however, was beached and totally wrecked near Raven Rock, W. Va.
Barge 68 floated down the Ohio river until it reached Parkersburg, W. Va., where it collided with one of the piers of the Baltimore & Ohio Railroad bridge and was wrecked; the cargo of ties with which it had been loaded being thrown into the river and almost all of them were lost A few were salvaged. At the time of its loss, said Barge 68 contained 2,335 No. 1 cross-ties and 290 No. 2 cross-ties, and said No. 1 ties were worth at their point of destination, as per contract, 93 cents each, and said No. 2 ties were worth 83 cents each at said point.
Barge 111 was never received by said steamboat Old Reliable, its officers, agents and claimants, hut remained at libelant’s landing at the port of Park-ersburg, W. Va., from October 20,1917, to February, 1918, where it was frozen up in the ice of the Little Kanawha river, and then by reason of a rise in the river the said barge was carried down stream to the mouth of the Little Kanawha river, where it remained for a time in an ice gorge, and at which place libelant unloaded the ties therefrom and shipped them by rail to McKees-port, Pa. That said barge was afterwards carried out in the Ohio river with the ice and floated down the river to Ptuneroy, Ohio, where it was caught.
Prior to its departure from. Parkersburg, W. Va., with said barges 131 and 68, libelant loaned to said steamer some barge chains, two ratchets, two joints of siphon pipe, one three-piece swing, one 2%-ineh siphon, also two 150-foot lines to be used in tying said barges at. thoir point of destination. Said steamer Old Reliable returned all of said borrowed property (except said two lines) to the Parkersburg wharf boat May 22, 1918.
The steamer Old Reliable, claimants and defendants, offered testimony tending to prove that the contract was that they were to tow said barges to “pool water” at Sistersville, W. Va., and that they did so, and tied said barges at. said port, as per an agreement with one G. W. Justice; that said barges were received there by libelant’s agent, 10. B. Frazier, and that their responsibility for said barges ceased at that time; that said barges were unseaworthy and said tie lines loaned to them by libelant were in poor condition; that said [114]*114barges could not have been safely towed at that time (October 22, 1917), on account of the strong current in the Ohio river; that dam 17 in said river is situated near Raven Rock, W. Va., and it, together with several other dams between Parkersburg, W. Va., and Pittsburgh, Pa., were down, causing a strong current in the river; and, further, that said steamer Old Reliable did not have power sufficient to propel both of said loaded barges up said river against said current.
It was further shown by the records of the United States engineer’s office at Wheeling, W. Va., that dam No. 18 in the Ohio river,' near Parkersburg, W. Va., was down from October 21, 1917, to November 5, 1917, and that the stages of water in the river were as follows:
October 21 .12.0 feet
“ 22 11.9
“ 23 11.3
“ 24 10.5
“ 25 11.0
“ 26 14.7
“ 27 18.3
Dam No. 17 was also down, and the stages of water were as follows:
October 21 .11.3 feet.
“ 22 .11.1
“ 23 10.5
“ 24 9.8
“ 25 10.1
“ 26 13.4
“ 27 16.6
Dam No. 16, near Raven Rock, W. Va., was also down, and the stages of water were as follows:
October 21 12.8 feet.
“ 22 12.8“
“ 23 12.3 “
“ 24 11.1 "
“ 25 11.6 “
26 16.3 “
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Cite This Page — Counsel Stack
256 F. 112, 1919 U.S. Dist. LEXIS 869, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-old-reliable-wvnd-1919.