taken place. The channel was wide at this point, and there were no vessels near enough to offer any obstruction. The tug, however, kept her course so closely that when she approached the steamship it was evident that she would be obliged to pass within a few feet. She herself managed to get by in safety, but the first scow sheered toward the steamship and broke one of the blades of the screw, and the second scow sheered more decidedly and with her forward starboard corner struck the ship a severe blow on the starboard bow, doing a good deal of damage.

"It is argued on behalf of the tug, that the steamship was at fault, because she did not anchor, because she was too far out in the channel, and because it is averred that she made certain movements with her engines that put the ship into a more dangerous position than she would have otherwise occupied. It is also argued that she did not keep a proper lookout, and therefore did not see the tug in time to move out of the way. In my opinion none of these charges is well founded.

"The pilot and second officer were on the bridge, other officers and men were on the deck, and the tug was seen more than a mile away. The steamship stopped in the customary place, and was not, I think, more than 500 or 600 feet from the station. She was not obliged to anchor in the absence of special circumstances indicating that to be her duty. I am also of opinion that her engines were not put into motion at all while she was undergoing examination. An order to go ahead was undoubtedly given, but it was countermanded immediately, and was not carried into effect. No signals were given by either vessel, and none was required. I see no reason, therefore, to charge the steamship with any fault. As it seems to me, the collision is properly chargeable to the tug, for approaching too close to the ship with so unwieldy a tow. It is well known that scows of this description are very apt to sheer, as they have no rudder, or other means of guidance than the tug itself, and as these were being towed on a very long hawser, the danger of sheering was increased. The tug was bound to take note of the position of the ship and the business upon which she was engaged, and to pass far enough to the eastward to avoid the danger of collision. Apparently, she either miscalculated the distance or put off the effort to take the tow to the eastward until it was too late."

From a careful examination of the testimony sent up to us in the record of this case, we are of opinion that the learned district judge was right in his findings of fact, and in the conclusions founded upon them.

Counsel for the appellant contends, with much force and ingenuity, that the tug was not in fault in her navigation, and that the steamship was solely in fault for the collision. The court below has found as a fact, that the Vedra was coming up the river in charge of a competent and licensed pilot, and that, at the lower end of Reedy Island, she hoisted a quarantine flag, and stopped, as under the circumstances she was bound to stop, to be boarded by a quarantine physician from the station at the upper end of the island. The island is something less than a mile in length, running nearly parallel with the center line of the channel, the course of which up the river would be north 14 degrees east. Necessarily, she ran to the westward side of the channel, to accommodate the boarding officer, and after her engine stopped and the physician was on board, her headway and the flood tide carried her up abreast of the quarantine station, and about 800 feet or two ship lengths away. The pilot and second officer were upon the bridge, and during all the time covered by the events detailed in the record, the captain was mustering the other officers and crew, for examination by the physician. The tug with her tow was coming down to the westward of the middle of the channel, as, under ordinary circumstances, she was entitled to do, and the steamship was in full

view of those on board the tug for more than a mile above the quarantine. The engines of the steamship, from the time they stopped at the lower end of the island, were not in motion, until just before the collision, when they were started ahead, in consequence of the impending peril of a collision with the barge, but were immediately stopped by the pilot, to avoid cutting the barge with the propeller. The steamship was practically in the situation of a motionless ship, moving only with the drift of the tide, without steerageway. The purposes for which she had stopped, were perfectly understood by the pilot and all others on board the tug.

The court was right in its statement, that under ordinary circumstances, the tug and tow should be where they were, that is, on the westward side of the channel. But the "ordinary circumstances," to which the learned judge alludes, would be where the steamer was under way, coming up the channel. In such a case, the steamer would presumably have passed on the port side, or to the eastward of the tow, and the tug would have probably borne a little more to the westward, to insure a safe passage. But these were not the circumstances of the case before us. The steamship was not under way, but had stopped for a proper purpose, well understood by those in charge of the tug, and though not exactly in the situation of a ship at anchor, had, to a large extent, the rights of a ship at rest, in regard to the movements of a passing vessel. The head of the steamer was always veered a little toward the westward of the channel, and it was perfectly apparent to the tug that it must pass to the eastward of the steamship. That this was in fact understood to be its duty by the tug, is evidenced by the fact that no attempt was made to do otherwise than pass to the eastward of the steamer, while practically at rest off the quarantine station. There was ample room in the channel eastward of the steamer, at least a half mile of water navigable for the tug and her tow.

The fault, it seems to us, as it seemed to the court below, was that, in passing to the eastward, those navigating the tug did not go far enough to allow for the sheering of the two barges, the towlines of which were, in the aggregate, 800 or 900 feet long, and the testimony shows that with towlines of such length, the sheering takes a very wide range. The barges were square at the ends, and were without rudders, so that, when the tug changed its course, to itself avoid the steamer, it was natural to expect that the barges would not be straightened out in the wake of the steamer for some appreciable time, and that the tendency to sheer would be augmented by the changed course of the tug. These conditions, those navigating the tug were bound to recognize and to exercise the degree of care and caution in passing the steamer made necessary thereby.

That a tug with such a tow is properly called an incumbered vessel, is most true, and, in a narrow channel, and when meeting steam vessels under way, is entitled to a consideration and indulgence often recognized by the courts. But, on the facts presented by this record, the tug is entitled to no such indulgence. The channel above and below the point of collision was wide, the course running straight past the quarantine and parallel with the island for a distance of between

four and five miles. The incumbrance of the tow, and the difficulty and danger ensuing therefrom, in passing any object at rest, must, as we have said, be recognized by those in charge of the tow, and in proportion to the danger and difficulty is the measure of duty imposed to avoid it. We repeat that, under the circumstances of this case, the Vedra was entitled to the privileges and rights of a vessel at rest. She was well over on the western side of the channel, was not under steerageway, and the pilot of the tug understood that it was his duty to pass to the eastward, and as ample room for that purpose existed in that direction, the responsibility of making a safe clearance of the vessel not under way, rested on the tug.

We do not find the contention of appellant, that the force of the wind and tide together had drifted the steamer so far to the eastward as to have contributed to the collision, to be supported by the evidence. The wind was northwest and light, and the pilot had kept the steamer's head well into the wind. But even if the steamer had, from the effect of the wind or the tide, or both, been carried, while not under way, toward the tow, such fact must have been apparent to the tug, and upon her rested the responsibility of taking that drift into the account. A steamer that is stopped, so far as her machinery is concerned, has, when her steerageway is gone, under such circumstances as these, the rights of a vessel at rest, as regards other vessels that are passing.

A matter in evidence, which should not be overlooked, is that there was no lookout on the stern of the tug to observe the situation of the barges in tow. Such a lookout, as the tug was approaching the steamer, might have given timely notice to the pilot of the danger threatened by the sheering of the tow, so that it could have been avoided by proper caution on his part.

We think the decree of the court below should be affirmed, and it is so ordered.

PORTLAND FLOURING MILLS CO v. BRITISH & FOREIGN MARINE INS. CO., Limited.

(Circuit Court of Appeals, Ninth Circuit. May 31, 1904.)

No. 998.

1. EVIDENCE-CONTRADICTING WRITTEN CONTRACT-PROOF OF CUSTOM. Proof of a custom of doing business between the parties is not admissible to contradict or vary the contract made by a bill of lading, which is plain and unambiguous in its terms.

2. SHIPPING-CONTRACT OF AFFREIGHTMENT-LIABILITY FOR FREIGHT.

A provision in a bill of lading that the freight shall be "considered as earned, steamer or goods lost or not lost at any stage of the entire transit," is valid and enforceable.

3. SALE-PASSING OF TITLE-DRAFT ATTACHED TO BILL OF LADING.

Where goods are shipped by a vendor to a vendee, the vendor taking a bill of lading in which he is named both as consignor and consignee, which bill is indorsed in blank and attached to a draft on the vendee

3. See Sales, vol. 43, Cent. Dig. § 547.

for the purchase price, the title to the goods does not pass to the vendee until payment of the draft.

4. SHIPPING-LIABILITY OF CONSIGNOR FOR FREIGHT.

The rule is that the consignor of goods is primarily liable for the payment of the freight, as the party making the contract, regardless of whether or not he is the owner of the goods, or whether the freight is secured by lien.

5. SAME.

Respondent shipped a cargo of flour, consigned to its own order under bills of lading providing that freight should be deemed earned, vessel or cargo lost or not lost. The flour was shipped under contracts of sale, and was insured by respondent in its own name for sufficient to cover the invoice price and freight. Respondent then indorsed the bills of lading and policies in blank, and attached them to drafts drawn on the purchasers for the selling price and cost of insurance, which were forwarded for collection. Held, the vessel having been lost, that respondent was liable for the freight, whether its interest in the cargo was that of owner, or whether it merely retained a lien, since in either case the purchasers were to have possession only on payment of the drafts.

& SAME-DEFENSES.

Where a cargo was insured by the shipper for sufficient to cover its value and the freight, the fact that on the wrecking of the vessel the cargo was surrendered by the master to the insurer without notice to the shipper did not prejudice him, and constituted no defense to an action to collect the freight under the terms of the bills of lading. Appeal from the District Court of the United States for the District of Oregon.

Appellant is engaged in the manufacture and sale of flour, having its principal office at Portland, Or., and a branch office at Hong Kong, China. It appears that the flour shipped to Hong Kong by appellant is handled by a Chinese syndicate; that the sales made are confined to the company's agent at Hong Kong, through whom the orders are made; that the members of the syndicate receive the flour in certain definite proportions, designated by shares -one firm having three shares, another two, and the third one; that on August 29, 1901, appellant received from its Hong Kong agent a cable confirmation of a contract for an amount of flour to be intended for the members of the syndicate, with a request that the order be confirmed, which was done, according to the shares of each. In December, 1901, appellant shipped with the Portland & Asiatic Steamship Company, for carriage on the Knight Companion, a British vessel operated by said company, a large quantity of flour. One lot, intended for Cornes & Co., was billed to Kobe, Japan, and the others, intended for different purchasers, were billed to Hong Kong, China. The goods in each case were shipped under a bill of lading issued by the carrier, wherein it was stipulated that the flour shipped was to be delivered "at the vessel's tackle unto the Portland Flouring Mills Company, or to his or their assigns. Freight on same as per margin to be collected in U. S. gold coin or its equivalent. The several freight and primages to be considered as earned, steamer or goods lost or not lost at any stage of the entire transit." On the margin of the bills of lading were the letters "N'fy" or "Notify," followed by the name of the firm on whose account the shipment is alleged to have been made. These bills of lading were in each case accepted by appellant, who was therein named both as consignor and consignee. Policies of insurance in the name of appellant were taken out at the invoice price and 40 per cent., which included freight, and drafts drawn at 60 days' sight on the members of the syndicate in the proportion of their shares for the selling price of the flour plus cost of insurance. These policies, one for each member of the syndicate, although in the name of appellant, and the several bills of lading, were indorsed in blank, so that they were available to the holder. The drafts, with the policies and bills of lading, so indorsed, were delivered to Ladd & Tilton, bankers of appellant, and the amount placed to the latter's credit.

The steamship Knight Companion left Portland, Or., on the 31st day of

December, 1901, and reached the coast of Japan, and was there stranded on the 2d day of February, 1902, and abandoned as a total loss by the steamship company and the several insurance companies interested. One of these insurance companies was the appellee, which had insured the steamship company for the freight to be earned by the voyage. Appellee settled with the steamship company, paying its claim in full, and the other insurance companies settled with the holders of their policies, and the insurance companies thereupon divided among themselves certain moneys secured from the salvage of the cargo; the insurers of appellant's shipment receiving 45,205 yen, approximately $22,500. Appellant's insurers paid the face of their policies, which exceeded the selling price of appellant's goods. On the payment of the steamship company's claims in full for freight, appellee became subrogated to the steamship company's rights, and in addition thereto took from the steamship company an assignment of its claim for the freight, and brought this libel in personam for the recovery of the same. The court rendered a decree in favor of appellee (124 Fed. 855), and from that decree the appeal herein is taken.

C. E. S. Wood, S. B. Linthicum, J. C. Flanders, and Williams, Wood & Linthicum, for appellant.

Page, McCutchen & Knight and Snow & McCamant, for appellee. Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY, District Judge, after making the foregoing statement, delivered the opinion of the court.

The contention of appellant is that the bills of lading and the practice between the parties in their previous business relations of a similar character show that the steamship company had always collected from the purchasers of the flour, that the bills of lading constitute a consignment to order, that the person or firm who is to receive the freight at its destination is indicated by the person who is named to be notified, and that the understanding and intention of the parties were, at the time the bill was given, that the freight should be collected from the person receiving the goods. Appellant's counsel in their brief say:

"Our contention is that it was well known by the Portland & Asiatic Steamship Company in this particular case, and by some years of customary traffic between the parties, that the flour was sold to the consignees f. o. b. at Portland, and in making delivery to the steamer and receiving the bill of lading the shipper, so far as all carriage of the goods was concerned, was acting only as the agent and representative of the purchasers' consignees,"

The contention of the appellee is that the bills of lading upon their face clearly show that appellant was the owner and consignee, as well as the consignor, of the flour, and that these facts necessarily make it responsible for the freight. We are of opinion that, whatever the customs, usages, and understanding between the parties may have been in their previous transactions, where the goods were delivered and the payment of the freight thereon made by the parties who received the goods, it cannot have any controlling effect in the present case, where the goods were not delivered. The testimony as to the usages and customs in the shipping of the flour was all received subject to the objections urged by appellee as to its sufficiency and relevancy, in this: that each bill of lading constituted a contract between the parties, and could not be impeached or contradicted by parol evidence. The general rule upon this subject is well stated by Story, J., in The Reeside,