Steamshipping Company, a British corporation, and the owner of the steamship; and an order was subsequently entered substituting that corporation as claimant. Before the time to answer expired, the Turret Company presented a petition, setting forth that at the time of the collision the Barnstable was chartered to the Boston Fruit Company, a Massachusetts corporation; that the charterer supplied its own officers and crew, who were navigating the vessel at the time of the collision, and that, if there were any faults on the part of the Barnstable, they were the faults of the charterer, and not those of the owner. In compliance with the prayer, a summons was issued to the Boston Fruit Company to appear before the district court to answer the petition. The company appeared and answered, admitting the charter (copy of which was annexed to the petition), but denying liability for the negligence of the officers and crew of the steamship, or that it had assumed liability therefor under its charter. Subsequently, however, but after certain testimony had been taken, counsel for the owners and also for the charterer became satisfied that the Barnstable was in fault, and assented to a decree against her, leaving the question of liability as between the owner and charterer to be passed upon by the court. ap by the circuit court of appeals, 36 C. C. A. 199, 94 Fed. Rep. 213. Mr. J. Parker Kirlin argued the cause, and Messrs. Convers & Kirlin filed a brief for petitioner: Under the authorities there is hardly room for a doubt that this charter party effected a demise of the ship to the charterer. Carver, Carriage by Sea, 3d ed. §§ 113117; United States v. Shea, 152 U. S. 178, 38 L. ed. 403, 14 Sup. Ct. Rep. 519; Baumwoll Manufactur von Carl Scheibler v. Furness, 7 Asp. Mar. Cas. 263, [1893] A. C. 8; Clark v. United States, 95 U. S. 539, 24 L. ed. 518; Bramble v. Culmer, 24 C. C. A. 182, 42 U. S. App. 303, 78 Fed. 497; The India, 21 Blatchf. 268, 16 Fed. 262; Meiklereid v. West, 3 Asp. Mar. Cas. 129, 1 Q. B. Div. 428; Reeve v. Davis, 1 Ad. & El. 312; Belcher v. Capper, 4 Mann. & G. 502; Newberry v. Colvin, 7 Bing. 190, 1 Clark & F. 286; Sandeman v. Scurr, L. R. 2 Q. B. 86; The Francis Wright, 105 U. S. 381, sub nom. Duncan v. The Francis Wright, 26 L. ed. 1100; Trinity House v. Clark, 4 Maule & S. 288; The Scout, 1 Asp. Mar. Cas. N. S. 258; The Alert, 40 Fed. 836; Gulzoni v. Tyler, 64 Cal. 334, 30 Pac. 981; Somes v. White, 65 Me. 542, 20 Am. Rep. 718; Tucker v. Stimson, 12 Gray, 487; Webster v. Disharoon, 64 Fed. 143. The conduct of the parties in the execution of the contract shows conclusively that it was a demise in its operation. United States v. Shea, 152 U. S. 178, 38 L. ed. 403, 14 Sup. Ct. Rep. 519. Whether the charter party was a demise or not, it is manifest that the navigation of the steamer and the carrying of cargoes was the charterer's business. The Turgot, L. R. 11 Prob. Div. 21. In the doing of the charterer's work, those who were engaged in the navigation of the ship at the time of the collision must be regarded as agents. the charterer's servants and Young v. Lehmann, 27 Fed. 383. See Boyd v. Moses, 7 Wall. 316, 19 L. ed. 192; The Cen turion, 57 Fed. 412. The material provisions of the charter party, which was for thirty-six months from March, 1894, were that the charterer should "provide and pay for all oils and stores for the vessel, gear, tackle, and appliances for loading and discharging the cargo, and for all the provisions and wages of the captain, of ficers, engineers, firemen, and crew, who, ex(466]cept the guarantee engineer, shall be pointed by them;" that the owners should "maintain the vessel in a thoroughly efficient state" for the service, but the charterer should "provide and pay for all the coals, fuel, port charges, pilotages, agencies, commissions and all other charges whatsoever, excepting for painting and repairs to hull and machinery and everything appertaining to keeping the ship in proper working order:" to pay for her use £550 per month, and that "in the event of loss of time from collision, stranding, want of repairs, break down of machinery, or any cause appertaining to the duties of the owner, preventing the working of the vessel for more than twentyThe general owner is not liable at law in four working hours, the payment of hire a personal action for the torts of the chartershall cease from the hour when detention be-er's servants. gins until she be again in an efficient state to resume her service." There was a final and most important provision, upon the construction of which the case turned, "that the owners shall pay for the insurance on the vessel." The case, as thus presented between the owner and the charterer, was submitted to the district court, which dismissed the own er's petition, holding it to be liable under the charter for the consequences of the collision. 84 Fed. Rep. 895. This decree was affirmed Where a vessel is let out by a charter of demise, the charterer, or owner pro hac vice, as he is sometimes called, is liable for colli. sion damages caused by the negligence of his servants. Thorp v. Hammond, 12 Wall. 408, 20 L. ed. 419; Williams v. Hays, 143 N. Y. 442, 26 L. R. A. 153, 38 N. E. 449. Thorp v. Hammond, 12 Wall. 416, 20 L. ed. 422; Gulzoni v. Tyler, 64 Cal. 334, 30 Pac. 981; Webster v. Disharoon, 64 Fed. 143; Scott v. Scott, 2 Starkie, 438, 20 Rev. Rep. 438. The general owner is not liable on the mas ter's contracts. Tucker v. Stimson, 12 Gray, 487; Baumwoll Manufactur von Carl Scheibler v. Furness [1893] A. C. 8; Reeve v. Davis, 1 Ad. & El. 312; Somes v. White, 66 Me. 542, 20 Am. Rep. 718; Thorn v. Hicks, 7 Cow. 697 It would be against public policy to presume that such was the intention of the in Wendover v. Hogeboom, 7 Johns. 308; Leon- If the steamship had been injured physically, instead of by the impairment of her title by the lien that arose from the collision, there would be no doubt that the charterer, unless absolved by some exception in the contract, would be liable for the damage. Coupe Co. v. Maddick [1891] 2 Q. B. 413. Damage to a hired vessel, caused by the bailce's negligence, must be made good to the bailor. Cocks v. Bovyngton, 2 Marsden's Select Pleas Ct. Adm. 14; Schultz & Markley's Case, 3 Mott & Hunt, 56. The bailee also answers for the total loss of the vessel if caused by his fault. Bouker v. Smith, 40 Fed. 839, 1 C. C. A. 481, 1 U. S. App. 80, 49 Fed. 954; Davey v. Chamberlain, 4 Esp. 229; Williams v. Hays, 143 N. Y. 442, 26 L. R. A. 153, 38 N. E. 449; United States v. Yukers, 9 C. C. A. 171, 23 U. S. App. 292, 60 Fed. 641. The rule that requires the bailee to return the vessel free froin damage caused by his fault must also compel him to discharge all liens on her and encumbrances on her title for which he is responsible. The Alert, 40 Fed. 836; The Centurion, 57 Fed. 412; O'Brien v. Miller, 168 U. S. 287, 42 L. ed. 469, 18 Sup. Ct. Rep. 140. Whatever may be the true office of the insurance clause, it does not make a person an insurer merely because he has agreed to pay or bear the cost of an insurance. Williams v. Knight [1894] P. 342; Carver, Car. by Sea, 3d ed. § 566; Dufourcet v. Bishop, L. R. 18 Q. B. Div. 373; Hill v. Scott [1895] 2 Q. B. 371; Steele v. Buck, 61 Ill. 343, 14 Am. Rep. 60. A clause in carriage contracts assuming to exclude liability for all insurable damage does not release the carrier from damage due to negligence. Carver, Car. by Sea, 3d ed. § 105; The Hadji, 22 Blatchf. 235, 20 Fed. 875. It was not stipulated that the charterers should be named as the assured in the shipowner's policy, and hence, of course, they could claim nothing under it directly. Carroll v. Boston Marine Ins. Co. 8 Mass. 515. The underwriters have a right to have the owners prosecute the claim in these proceedings as against the charterer, by virtue of their right of subrogation. Dufourcel v. Bishop, L. R. 18 Q. B. Div. 373. This right on the part of the underwriters cannot be cut off except by the most explicit provision in the contract between the owner and the charterer. Mobile & M. R. Co. v. Jurey, 111 U. S. 584, 28 L. ed. 527. 4 Sup. Ct. Rep. 566; Clark v. Wilson, 103 Mass. 219, 4 Am. Rep. 532; North of England Iron 8. S. Ins. Asso. v. Armstrong, L. R. 5 Q. B. 244; Inman v. South Carolina R. Co. 129 U. S. 128, 32 L ed. 612, 9 Sup. Ct. Rep. 249. General Mut. Ins. Co. v. Sherwood, 14 How. 351, 14 L. ed. 452. The "insurance on the vessel" for which the owner was to pay does not include insurance against "running down risks," but only insurance against damage to the vessel insured. Ibid.; 1 Arnould, Mar. Ins. 3d ed. 20, 21; 2 Arnould, Mar. Ins. 672, 673; Tyser, Marine Ins. Losses, London, 1894. Mr. Arthur H. Russell argued the cause, and, with Mr. Charles T. Russell, filed a brief for respondent, the Boston Fruit Company: The presumption is that, as the vessel is the offending res, her owner is her representative to respond to the maritime lien existing upon his property. Joyce v. Capel, 8 Car. & P. 370; Hibbs v. Ross, L. R. 1 Q. B. 534; Frazer v. Cuthbertson, L. R. 6 Q. B. Div. 93; Chasteauneuf v. Delange, 7 App. Cas. 127. The charter party as a commercial contract is to be liberally construed in furtherance of the apparent intention of the parties to it. Raymond v. Tyson, 17 How. 53, 15 L. ed. 47; Rich v. Parrott, 1 Cliff. 55, Fed. Cas. No. 11,760; Donahoe v. Kettell, 1 Cliff. 141, Fed. Cas. No. 3,980; Richardson v. Winsor, 3 Cliff. 402, Fed. Cas. No. 11,795. The meaning is to be ascertained by the whole instrument, and every clause and word must be given effect, and that construction of the whole adopted which will best, or most nearly, recognize a meaning and force in each clause and word. Hogarth v. Miller [1891] A. C. 48; Glynn v. Margetson [1893] A. C. 351; Bishop, Contr. 384; Metcalf, Contr. pp. 287, 288; 2 Parsons, Contr. p. 500; Carver, Car. by Sea, § 173; Lawrence v. Aberdein, 5 Barn. & Ald. 107; Leggett, Charter Parties, p. 4; Morris v. Levison, L. R. 1 C. P. Div. 157; 1 Parsons, Shipping & Adm. p. 319. The construction of the charter party will, in doubt, be against the party claiming an exceptional right or release from liability. Leggett, Charter Parties, p. 30; Airey v. Merrill, 2 Curt. 11, Fed. Cas. No. 115. Where the parties to the contract have put a practical construction upon it, that construction will be adopted by the court. District of Columbia v. Gallaher, 124 U. S. 505, 510, 31 L. ed. 526, 8 Sup. Ct. Rep. 585; Carver, Car. by Sea, § 165; Leavitt v. Windsor, 4 C. C. A. 425, 12 U. S. App. 193, 54 Fed. 439; Davis v. Shafer, 50 Fed. 764. The conversation between the shipowner who negotiated the charter party and drafted it, and the representatives of the shipowners, is a circumstance of the adoption of the contract, of assistance in determining the subject-matter and meaning of the insurance provision and the standpoint of the parties in relation to it. Fire Ins. Asso. v. Wickham, 141 U. S. 564, 35 L. ed. 860, 12 Sup. Ct. Rep. 84; Clay v. Field, 138 U. S. 464, 34 L. ed. 1044, 11 Sup. 566. The courts refuse to recognize as a demise Leary v. United States, 14 Wall. 607, 20 Ct. Rep. 419; Mobile & M. R. Co. v. Jurey, | (p. 233, L. ed. 249): "That the act makes {466] *Mr.Justice Brown delivered the opinion of the court: The question involved in this case is, whether the owners of a vessel, who have let charterers. 1. It was within the power of the court, Indeed, the liability of the vessel for the (487) under general admiralty rule 59, to entertain negligence of the charterers is now fixed by the petition of the Turret Steamshipping statute in this country. Rev. Stat. § 4280. Company, owner and claimant of the Barn- The charterer of any vessel, in case he shall stable, and to call in the charterer to show man, victual, and navigate such vessel at his cause why it should not be condemned for own expense, or by his own procurement, the damage resulting from this collision. The shall be deemed the owner of such vessel Alert, 40 Fed. Rep. 836. Such proceeding, within the meaning of the provision of this though not within the words, is clearly with- title relating to the limitation of the liabiliin the spirit, of the rule; and the case, as bety of the owners of vessels; and such vessel, tween the Turret Company and the Fruit when so chartered, shall be liable in the same Company, thereafter proceeded substantially manner as if navigated by the owner thereas an independent cause, in which the orig-of." inal libellants had no substantial interest, As the charterers hired the Barnstable for their claim being adequately protected by a definite period, and agreed to select their the decree against the Barnstable. The po- own officers and crew, and pay all the runsition of the Turret Company was in no manning current expenses of the vessel, includner affected by the failure of the libellants ing the expense of loading and discharging to appeal from their own decree. cargoes,-the owners only assuming to delivand condition, and to maintain her in an efer the vessel to the charterers in good order ficient state during the existence of the charter party, there can be no doubt that, irrespective of any special provision to the contrary, the charterers would be liable for the consequences of negligence in her navigation, and would be bound to return the steamer to her owners free from any lien of their own contracting, or caused by their own fault. Thorp v. Hammond, 12 Wall. 408, 20 L. ed. 419; Williams v. Hays, 143 N. Y. 442, 26 L. R. A. 153, 38 N. E. 449; Scott v. Scott, 2 Starkie, 438; Webster v. Dishroon, 64 Fed. Rep. 143; Gulzoni v. Tyler, 64 Cal. 334, 336, 30 Pac. 981. 2. Whatever may be the English rule with results of wear and tear, and such injuries If, then, the owners be liable for the negli- arise from the particular stipulation in the|ers, masters, and seamen that underwriters charter party that "the owners shall pay for were responsible for all the damage done by colthe insurance on the vessel." The language lision with other vessels through their negli of the clause is peculiar and significant. It gence would tend to relax their vigilance and is not an agreement to insure, or to procure materially enhance the perils, both to life or provide insurance, but to pay for such and property, arising from this case insurance as the owner should see fit to take [cause]." As the construction of a policy of out, and perhaps inferentially to apply insurance is one of general, rather than one such insurance toward the extinguishment of local, law (Liverpool & G. W. Steam Co. of any liability of the charterers for losses v. Phenix Ins. Co. 129 U. S. 397, 443, 32 L. covered by the policy. It is entirely cleared. 788, 792, 9 Sup. Ct. Rep. 469; Gloucester that, under this stipulation, the owners could not charge the charterers with the expense of insurance, that is, the premiums, whatever form of policy the owner might select, though insurance be in fact a part of the running expenses of the vessel, and perhaps, in the absence of a special clause, covered by the stipulation that "the charterers shall provide and pay for all the coals and fuel, port charges, pilotages, agencies, commissions, and all other charges whatsoever, excepting for painting and repairs to hull and machinery, and anything appertaining to keeping the ship in proper working order." Ins. Co. v. Younger, 2 Curt. C. C. 322, Fed. Cas. No. 5,487), we are constrained to adopt our own views as to such construction, though the courts of the state in which the cause of action arose have adopted a different view. But, whatever be the obligations as between the insured and his underwriters, this clause in the charter party should be construed in consonance with its other provisions and with the obvious intention of the parties that the duty of the owner is discharged by keeping the vessel in good order and condition, and that the charterers assumed and agreed to pay all her running exIt may be conceded, however, that for any penses. Conceding that damages done to andamage to the vessel coverable by an ordinary other vessel are neither the one nor the othpolicy of insurance "on the vessel" the owner, they are incident rather to the navigation ers must look to the companies, at least for than to the preservation of the vessel, althe insured proportion of such damage, and though the cost of the premiums may be not to the charterers. It may also be con-referable to the preservation of the ship, inceded that the owner might have selected a asmuch as the owner obtains the benefit of form of policy containing a special running them in case of damage or loss, for which, down clause that would have covered dam- as between him and the charterer, he is[471) ages done to another vessel, though the rule chargeable. If the responsibility for an exin this court is, following the English case traordinary class of damages, that is, done of De Vaux v. Salvador, 4 Ad. & El. 420, to another vessel, be thus shifted from the that an ordinary policy against perils of the charterer, by whose agents the damage is sea does not cover damage done to an- done, and to whom its reimbursement propother vessel by collision. General Mut. erly belongs, to the owners, it should be eviIns. Co. v. Sherwood, 14 How. 351, 14 denced by some definite undertaking to that L. ed. 452. Mr. Justice Curtis remarked effect, and not be inferred from an obscure in this case (p. 363, L. ed. p. 456): "We provision of the charter party, which seems believe that, if skilful merchants, or un- to have been designed for a different purpose. derwriters, or lawyers, accustomed to the It is scarcely credible that the owners could practice of the commercial law, had been have intended to assume a liability for the asked whether the insurers on one vessel acts of men not chosen by themselves and were liable for damage done to another vessel, entirely beyond their control, which in this [470] not insured by the policy, by a collision *oc- case equalled the hire of the ship for eight casioned by the negligence of those on board months, and might, had the Fortuna been of the vessel insured, they would, down to a greater value, have exceeded the whole very recent period, have answered unhesi- amount of rent payable by the charterers. tatingly in the negative." This case was decided in 1853, although shortly before that the supreme court of Massachusetts had held in Nelson v. Suffolk Ins. Co. 8 Cush. 477, 54 Am. Dec. 776, that a policy on the vessel cov-tle value, since the charterers would not in any ered damages which the vessel insured might event be liable for damages resulting from do to another vessel. The same view had al- the perils of the sea or other risks ordinarily ready been taken by Mr. Justice Story in covered by insurance upon the vessel. But Hale v. Washington Ins. Co. 2 Story, 176, this argument loses much of its force in view Fed. Cas. No. 5, 916. In speaking of these of the ruling of this court that an ordinary cases Mr. Justice Curtis observed (p. 367, L. policy of insurance on a vessel does not coved. 458) "But with great respect for that er damages done to another vessel; and as very eminent judge, and for that learned and there seems to be a difference in practice, able court, we think the rule we adopt is some charters providing that the insurance more in conformity with sound principle, as shall be paid by the charterer (Latson v. well as with the practical interpretation of Sturm, 2 Ben. 328, Fed. Cas. No. 8,115) and the contract by underwriters and merchants, others providing that it shall be paid by the and that it is the safer and more expedient rule. owner, we think the probable object of the We cannot doubt that the knowledge by own-clause was to fix beyond cavil the responsi There is undoubtedly weight to be given to the proposition that, unless we hold the owners liable for everything a policy of insurance could have covered, the clause is of lit bility for premiums. It was probably inserted in this charter to negative the inference derivable from that provision of the charter, imposing upon the charterers the obligation to pay the running expenses of the vessel, and all other charges whatsoever. But, however this may be, we find ourselves unable to give it the broad construction that it was intended to fix upon the owners a new and extraordinary liability, which we think could not have been within the contemplation of the parties. The evidence of a parol understanding as to the meaning of the insurance clause in this connection, is entitled to no weight whatever. In answer to a question put to the broker who negotiated the charter, upon cross examination, he testified as follows: [472] *Q. You have had no experience, I understand you, of the actual working out of this clause in any particular cases? A. I have had considerable experience in various insurance claims-so much so that I clearly expressed to the owner that he would have to pay for all insurance on the vessel in any way, shape, or manner against stranding, collision, and everything, as is usually done in all vessels, unless he wanted to take the risk and not insure. Q. Tell us what experience you have actually had of these insurance clauses, or the working out of them? A. I have never known an owner to insure a charter for damage by collision before. He has always taken that risk. Several answers may be made as to any inference derivable from this testimony. In the first place, the answer to the first question was not responsive to the question at all. In the second place, it was not the testimony of an expert as to the meaning of this clause among underwriters, and their customers, in which case it might properly have been admissible, but an attempt, in respect to the particular charter, to introduce the antecedent understanding of the parties, and thereby to explain, control, and qualify the language of the charter. This was obviously impossible. Scitz v. Brewers' Refrigerating Mach. Co. 141 U. S. 510, 35 L. ed. 837, 12 Sup. Ct. Rep. 46. Finally, giv ing to the answer its full effect, his stateinent of the owner's liability does not include damage which might be done to other vessels. In addition to this, however, the testimony was quite inadmissible as against the Turret Steamshipping Company, the purchaser of [473] the vessel and the assignee of the charter party, since it was not shown to have had any notice of the conversation, and therefore, in taking over the charter, was only bound by the obligations imported by the words of the insurance clause in their ordinary commercial sense. Page v. Cagwin, 7 Hill, 361; Bristol v. Dann, 12 Wend. 142; Clews v. Kehr, 90 N. Y. 633; Truax v. Slater, 86 N. Y. 630; Tabor v. Van Tassell, 86 N. Y. 642. In conclusion, we are of opinion that, if anything more were intended by the insurance clause than to impose on the owners the duty of paying the premiums, it was fully satisfied by an ordinary policy of insurance against perils of the sea; that such policy would not cover damage done to another vessel by a collision with the vessel insured, and that the primary liability for such damage rested upon the charterers, and not upon the owners. We express no opinion as to the effect of any payment that may have been actually made by the underwriters upon this loss. The decrees of both courts must therefore be reversed, and the case remanded to the District Court for the District of Massachusetts, for further proceedings not inconsistent with this opinion. [No. 161.] The statement of the witness, too, differs from his testimony upon direct examination, Argued January 28, 29, 1901. Decided May which was as follows: Q. Did you have any conversation with 13, 1901. Mr. Craggs [the then owner of the vessel] IN ERROR to the Supreme Court of the with regard to that clause? A. I did; several. Q. Please state the substance of that conversation. A. I told him that he would have to insure for his vessel the same as the charter party stated. Q. Did he make any reply? A. Of course, I told him if he did not want to insure, he could take that risk. But his intention was to insure. State of Wisconsin to review a decision affirming a judgment to compel the distribution of trust securities of a building and loan association. Dismissed. NOTE.-A8 to Federal jurisdiction over state courts; necessity of Federal question-see notes to Hamblin v. Western Land Co. 37 L. ed. U. S. 267; Kipley v. Illinois ea rel. Akin, 42 L. ed. U. S. 998. As to what is a Federal question; when oonsidcred-see note to Re Buchanan, 89 L. ed. U. 8. 884. |