4. As·this conrt holds' the judgment onght to be canceled. and satisfied, it follows that we must also hold tbat the petitioners luwe no Tight under their claim of lien; but before rendering final decree we ,will make them parties in order to give them the bellefit of an appeaL There need be no delay. Let the petitioners be made defendants, and file their bill of intervention at the prBsent term within a time certain to be fixed. They can only be heard upon the record as it stands. They cannot, because of the misconduct of their client, be permitted to reopen the case for taking further testimony. Final decree will, therefore, be entered at this term, and an appeal allowed.
NEW ORLEANS TRANSPORTATION
Co. and others. 1
E. D. Missouri.
Cmmox C.\TInrEll-llII,L 01<' LADIXG-ExCEPTED PETIIL&-" DANGERS OF TilE
llIv8H." The phrase" dangers of the river," as used in bills of lading, includes dangers arising from unknown reefs whIch have sUddenly fOl'lnell in the channel, and arc not discovemble by care aUlI skill.
TOWAGE COXTRACT-ExCEPTED PERILS.
the lattcr place, " tlll' ,langeI'S of navigation and other known or unknown obstacles excepted," and said tow-boat ran said barge against a tre2, whieh had rceently fallen into the channel, and ,vas cntirell" sUlJmerged and hid,[en from view, tl1ld the ]lreSl'IlCe of which in the channel was unlZnown, and not discoverable by care and skill on the pilot·s part, and ,aid barge and cargo were greatly damagcd, //1;'/, that the al'cidl'llt arose flom an excepted peril, and that the owner of the tow-boat ,,,as not liable.
St. Louis to Kew Orleans, ami to delivcr the barge au,1 cargo to a consignee at
'Where the owner of a tow-boat a!'"rees to tow a barge containing a cargo from
In Equity. The Babbage Transportation Company, a corporation doing business as common carrier on the Mississippi, and also engaged in towing barges for hire, contracted to transport a large amount of wheat, insured by plaintiff, from St. Louis to Kew Orleans,- "the dangers of the riYer, fire, and collision excepted." The wheat was loaded for transportation upon saidcornpany's barge, the Sallie Pearce. The Babl>age Transportation Company also contracted to tow the barge Colossal and cargo from 51. Louis to ew Orleans, and deliYer them to a consignee at the latter place,-"the dangers of l1!wigation and the dan. gel'S of " " collision, " .. .. and other known or unknown obstacles, excepted." Said barge and cargo were also insured by plai!ltiff. The steamer :Means, belonging to said company, took the .Sallie Pearce and several other barges in tow and proceeded down the
n. F. Hex, £s1., of
HIBERNIA INS. CO. V. ST.LOUIS & N. O. TRANSP. CO.
river, but before reachIng her destination she ran, together with her two upon a hidden reef or lump of sand in the channel with such force as to cause them to stick fast. The sudden checking of the steamer caused the lines of the starboard barges to part,-and caused the Sallie Pearce to break away from the steamer, though fastened in the proper manner and with lines of usual strength. After breaking away the barge was carried by the rapid current violently against thegl1ards of a steam-boat laid up at the Missouri shore, a short distance below the reef, and her cargo box was broken in and a large part of her cargo lost. Evidence was introduced by defendants, at the trial, tending to prove that the reef upon which the Means struck was in the channel; that it had been formed suddenly; that the pilot had no reason to suppose it was there; and that the boat was being handled with care and skill when the accident occurred. The Colossal appears to have been unseaworthy at the time she started. She was taken in tow by a steamer belonging to the Babbage Transportation Company, which started down the river with her and some other barges, but on her way down, as she was nearing the mouth of the St. Francis river, and while said steamer and barges were in a very narrow channel, not over 100 yards wide, and while floating and flanking down through said channel in the safest and most prudent manner, the steamer and her tow occnpying the width of the channel, the pilot saw that there was an unnsual current setting in towards the Missouri shore just at the mouth of said St. Francis river, and that he would run very near the shore unless he backed said. boat, and he immediately backed said boat, and would have passed in safety through this narrow place, but just below the mouth of said river the bank had shortly before caved in, of which no one coming down the river could have had any knowledge, and a large tree upon the land had fallen into the river, and, in passing, the stem of said barge Colossal struck the tree, which was hidden in the water from view of the pilot, and which by no act of his, or prudence or precaution on the part of the steamer, or those in charge of her, could have been avoided, and the Colossal was broken loose from the tow-boat and floated down about a mile before said boat could overtake her and make her fast again, and when said barge was reached she had been so much damaged and injured by her stroke against said tree, in her weak and unseaworthy 'condition, that she was almost full of water, and it was impossible to pump her out or do more than land her and make her fast to shore, which was done without loss of time, and all of her cargo saved that could be sa\"ed, but a large portion of it was unavoidably damaged and rendered worthless. Plaintiff paid the losses and became subrogated to the owners' rights against said transportation company. Said company has since been absorbed by the Orleans Transportation Company, which has succeeded to Its ,wInl· ities. '
O. B. Sansum. and George H. Shields, for plaintiff. Given Campbell and Thomas J. Portis, for defendant. TREAT, J. As to the structure of the bill and the principles involved, the views of this court were heretofore expressed;1 following Case v. Beauregard, 99 U. S. 119, and S. C. 101 U. S. 688. As to the shipment on the Sallie Pearce, the contract was that of a com· man carrier. As to the Colossal there has been some testimony offered in order to determine whether the contract was simply that of towage or that of a common carrier. The court holds that it was simply a towage contract, which is apparent, not only from the face of the written contracts themselves, but also from the facts as developed that said barge and cargo belonged to the shipper. Whether this be so or not is of 110 moment, in the view the court takes of the case. There were two accidents; one as to the Sallie Pearce, and the other as to the Colossal. As usual in such cases' there is a great conflict of testimony. Hence, the court has sougbt to reach a correct conclusion by examining the physical facts and circumstances connected with each disaster. The conclusion reached is that each disaster was caased by an inevitable accident, falling within the ex· cepted perils of the river. The bill will be dismissed, with costs.
RUTTEN V. UNION PAC. Ry.
Co. and another.
July 25, 1883.)
(Oircuit (fourt, S. D. New York.
R.UT,ROAD Bmms-COXSOLIDATIO::> OF RAILROAD CmIPAXIES-BILT, TO E::>FORCE
The holdcrof thc bonds of a railroad and telegraph companypayahle to bearer, with interest semi-annually, secured on the income from the sale of its land, and operation of its road and line, which have passed by consolidation to another railroad company, is a creditor having a specific lien upon the income of the propcrty which has gone from his debtor into the hands of the other company, and he may file a bill in equity to en 'orce such lien after default in payment of the principal of such bonds, and interest according to the terms thereof.
In Equity. Simon Sterne, for orator. Artemas H. Holmes, for defendant. WHEELER, J. This case is not like Walser v. Seligman, 13 FED. REP. 415, and Jones v. Green, 1 Wall. 330, and that class of cases, which are mere creditors' bills, seeking a decree against the holder of the debtor's property solely because it is the debtor's property and the defendant has it; nor like WhipF'" v. Union Pac. By. Co. Sup. Ct. Ran., where a personal judgment was sought for personal injuries
596, and 13