Page:Federal Reporter, 1st Series, Volume 9.djvu/630

THE JAMES JACKSON. 615 �afterwards so earelessly towed said barge and navigated their boat that they caused said tow and barge to be grounded in the Ohio river, at Brown's island, about five miles above Steubenville, Ohio, and also carelessly and neg- ligently grounded said barge at the public landing at Steubenville; that said boat had a large tow, and carried an insuflicient crew for its proper and skil- ful management, and delayed in leaving the port of Pittsburgh, and did not leave with their tow as they agreed to, and did not reach Steubenville, Ohio, with their said barge and cargo until Wednesday, December 25, 1878, about noon, and laid np there and put said barge and cargo just below and behind the steam-boat Oella, and the steam-boat James Jackson was also lying close to said barge and her cargo; that the said steam-boat, her offlcers and crew, so carelessly and negligently managed said barge and her cargo that, by their carelessness, said oil caught flre and exploded and burned up,'whereby the bai^e and her cargb became a total loss; that said oil was worth $3,465.40, and said barge and outfit worth $1,250, making a total of $4,715.40. �To this libel the owner of this steam-boat, Andrew Lyons, answers, setting up three defences : �(1) That the seizure of the steam-boat was made sonth of a line of low- water mark on the West Virginia side, and therefore this court is without jurisdiction ; (2) that by a special agreement betweeu the parties the libellant was to assume all risks in the transportation of the oil ; (3) denies that the barge was properly loaded, or that it was in a proper condition, and denies all negligence alleged. �In argument it wasclaimed that the steam-hoat, in the perform- ance of the service of the contract, was not a common carrier, and was not, therefore, subject to the rules of law governing common car- riers in this : that she was not held to the highest possible degree of care and skill, and that she might contract to carry at the risk of the shipper. That the steam-boat engaged in towing a barge is not a common carrier would seem to be settled by the authorities. Steamer Webb, le Wall. e06; The Margaret, 94 U. S. 494; Desty, Shipping & Admiralty, 333.* Although not a common carrier, the steam-boat which engages to tow a barge is bound to the exercise of reasonable skill and care in everything relating to the work of towing the barge until the work is complete. Such being the relations and obligations of the steamboat in relation to the contract in this case, it is claimed by the respondents that it was perfeetly lawful for them to provide that the towing of the barge should be at the risk of the owners thereof. �, *See the recent case of Mann v, WAill Biver, etc., Go., 8 N. W. Rep. 550, in which the supreme court of Michigan decided that log-driving and booming companleg are not common carriers ; and the excellent note of Mr. Ewell thereto, as to whaf constitutes a common carrier, in 20 Am. Law lleg. (N. S.) 734, 737. — [Rep. ��� �