APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
MR. JUSTICE BLATCHFORD, after stating the case as above reported, delivered the opinion of the court.
The only questions presented to us by the counsel for the libellants for consideration are as to what constitutes a deviation from the voyage, and what a custom or usage binding upon the libellants. No question of fact is open, because we are concluded by the facts found by the Circuit Court. The Gazelle, 128 U.S. 474, 484, and cases there cited.
The findings of fact are distinct and specific that "it has been the general usage in the Pittsburg and New Orleans barge trade, coeval with the commencement of the business, and constantly practised where cargo is to be taken on en route to the port of destination at several points in the same neighborhood, to land and tie up the tow or fleet of barges at the more commodious and safer landing, and detach from the tow the barge or barges designated to receive such cargo, and tow the same to the several points where the cargo may be stored, whether up or down stream or across the river;" that "at the
time of the sinking of the barge Ironsides No. 3 it was the general and established usage for barges towed by steam vessels in the Pittsburg and New Orleans trade, having cargo to receive at New York Landing and other points between there and Mt. Vernon, Indiana, to land and tie up the fleet at the latter place and tow back for such cargo the barge upon which it was to be placed, and that the course pursued by the Iron Mountain on the occasion in question was in conformity with such usage of the trade;" that "the usage so practised at Mt. Vernon and elsewhere, as mentioned in the foregoing findings, tends to cheapen the cost of transportation, facilitates business and conduces to the safety of the whole tow, and is, therefore, a reasonable usage;" that, "while the steam tow-boat Iron Mountain, with the barge Ironsides No. 3 in tow, was backing out from Whitmon's Landing, and when out in the river, the barge struck some unmarked, unknown and hidden object below the surface of the water, which caused her to take water and sink, and this, without negligence on the part of the tow-boat, or on the part of the owners of the tow-boat and barge, their agents or servants; and that it was an unavoidable accident."
The only question presented is, whether the conclusion of law made by the Circuit Court from the foregoing facts, that the respondents were not liable to the libellants for the loss and damage in question, was justified by those facts. On this point we entirely concur with the Circuit Court. It is true that that court does not find directly as a fact, what is averred in the answer, that the usage in question was well known to the libellants at the time their goods were shipped; but it does not find to the contrary; thus leaving for consideration the question of law, whether the existence of such a usage as is found as a fact, is to be presumed conclusively to have been known to the libellants, so as to have formed part of the contract of carriage created by the bill of lading, and to control its terms, and to have made the accident which caused the loss of the goods of the libellants a danger of navigation and an unavoidable accident, excepted in the bill of lading. It was distinctly found by the Circuit Court to have been "an unavoidable accident."
A deviation is defined to be "a voluntary departure, without necessity or reasonable cause, from the regular and usual course" of a voyage, in reference to the terms of a policy of marine insurance; but it is no deviation, in respect to such a voyage, to touch and stay at a port out of its course, if such departure is within the usage of the trade. Coffin v. Newbury-port Marine Ins. Co., 9 Mass. 436, 447; Bentaloe v. Pratt, 1 Wall. Jr. 58; Bulkley v. Protection Ins. Co., 2 Paine, 82; Oliver v. Maryland Ins. Co., 7 Cranch, 487, 491; Columbian Ins. Co. v. Catlett, 12 Wheat. 383, 387, 388; Gracie v. Marine Ins. Co., 8 Cranch, 75, 83; Child v. Sun Mutual Ins. Co., 3 Sandford, 26; Lockett v. Merchants' Ins. Co., 10 Rob. (La.) 339; Vallance v. Dewar, 1 Campb. 503; Ougier v. Jennings, 1 Campb. 505; Kingston v. Knibbs, 1 Campb. 508; Moxon v. Atkins, 3 Campb. 200; Salvador v. Hopkins, 3 Burrow, 1707; Phillips on Insurance, secs. 980, 997, 1003.
The same doctrine is applicable in the case of a bill of lading, even though the usage be not known to the particular shipper, if it be established as a general usage. Phillips on Insurance, secs. 980, 1003; Thatcher v. McCulloh, Olcott, 365, 369, 370; Lowry v. Russell, 8 Pick. 360, 362; McMasters v. Pennsylvania Railroad, 60 Penn. St. 374; Pittsburg Ins. Co. v. Dravo, 2 Phil. W.N.C. 194.
It is well settled that parties who contract on a subject matter concerning which known usages prevail, incorporate such usages by implication into their agreements, if nothing is said to the contrary. Robinson v. United States, 13 Wall. 363, 366.
The contract in the bill of lading, that the goods are to be delivered at New Orleans "without delay," is qualified by the exception of "the dangers of navigation" and "unavoidable accidents;" and if the navigation was in its course according to the usage of the trade, as is found to be the fact, the loss in question occurred through a danger of navigation. Transportation Co. v. Downer, 11 Wall. 129; The Favorite, 2 Bissell, 502; Williams v. Grant, 1 Connecticut, 487.
The claim made in the amendment to the libel, that the sinking of the barge was caused by ...