Molenbrock v. St. Louis & Clarksville Packet Co. , 5 McCrary's Cir. Ct. Rpts 294 ( 1883 )

Treat, J.

The rules of law by which the rights of the parties are to be determined are not disputed. This was a towage contract; the decisions concerning which are collected in Desty, Shipp. & Adm. 339 et seq. The libelee was bound to exercise ordinary care, skill, and diligence. In this, as in most cases of like character, there is a great diversity of opinion by experts. Under such diversity it is the duty of the court to reconcile diversities by seizing upon physical facts in the light of which truth can be ascertained. The contention by libel-ants is that respondent's tow-boat ran down, at the then stage of water, an unsafe channel, whereby the injury occurred. On the other hand, it is contended that the channel pursued at the then stage of water was the usual and proper channel; also that the barge in tow was old and unseaworthy, considering the cargo that it was carrying.

An analysis of the voluminous evidence shows that the channel in winch the barge was towed was reasonably proper at the time. This is evidenced from the fact that other vessels, immediately before and after the accident, passed up and down by the sunken barge in safety, and that soundings immediately thereafter showed sufficient depth of water. Without entering into a consideration of the seaworthiness of the barge, which might or might not have contributed to the disaster, it is clear to the court that there was no act of negligence, within the rules of law, by means of which the respondent can be held liable.