and lost several days, during which time she was off hire. The respondent also filed a cross libel, claiming damages of $6,000 on account of the refusal to allow the steamer to be sent by way of Halifax. There were several amounts claimed by the respondent which it was called upon to pay and which it contends it should be reimbursed for by the libellant, to be noted hereafter.

The provisions of the charter party covering the disputed points are: "That the said owners agree to let, and the said charterers agree to hire the said steamship from the time of delivery, for one trip from port or ports in United States to port or ports in Brazil &/or River Plate via port or ports en route Steamer to be placed at the disposal of the Charterers at New York. *

3. That the Charterers shall accept and pay at once on delivery of steamer for all Coal in the Steamer's Bunkers on delivery and the Owners shall on expiration of this Charter Party pay for all Coal left in the Bunkers, each at the current market prices, except as hereafter modified as to price on redelivery at the respective ports where she is delivered to them but it is mutually agreed that about 500 tons of coal is to be quantity left on board at port of redelivery the price of which is now agreed to be 27/6 per gross ton to be paid by steamer & owners on redelivery.

4. That the Charterers shall pay for the use and hire of the said Vessel Nine hundred and twenty-five pounds (£925) British Sterling per Calendar Month, commencing on and from the day of her delivery, as aforesaid, and at and after the same rate for any part of a month; hire to continue until her delivery, with clean holds to the owners, (unless lost) in the River Plate.

17. The act of God, enemies, fire, restraint of princes, rulers and people, and all dangers and accidents of the seas, rivers, machinery, boilers and steam navigation, and errors of navigation, throughout this Charter Party, always mutually excepted."

Sending Vessel to South America via Halifax.

The principal controversy is that relating to the right claimed by the charterer to send the vessel to the River Plate via Halifax. This was before the court on exception to the cross libel and it was held that the matter was not determinable upon the pleadings but was open to testimony. Tweedie Trading Company v. Glasgow Steam Shipping Co., Limited (D. C.) 143 Fed. 184. Testimony has therefore been taken here by the libellant but none by the Tweedie Company except that of its president, Mr. Tweedie. A number of shipmasters and persons experienced in the trade have testified that Halifax and St. John could not, under any circumstances, be considered en route between New York and Brazil. It appears that there is no port on the direct line Between New York and Pernambuco, the easternmost port of Brazil, ut that some deviation from such a line is usually allowed which, however, would not include Halifax. This is substantially without contradiction by expert navigators, which Mr. Tweedie is not. There is no route from Halifax to Brazil shown on the Track Chart of the Hydrographic office of the Department of the Navy and it appears that there is no direct trade between the port of Halifax and places in South America, goods being usually sent by way of New York. The witnesses have said that ports south of New York might be considered en route to Brazil but not ports north of New York, which seems consistent with the general drift of the testimony and ordinary common sense. The respondent urges that the distance from New York to Pernambuco via Halifax is shorter than by way of Savannah,

Georgia, where the vessel went but that is immaterial. She went by way of Savannah because the contract provided for "ports in the United States" and Savannah was properly utilized under that provision. It does not affect this question. The parties could have included Halifax if they had wished but they did not do so. No provision was made in the owner's policy of insurance for such a risk and the president of the respondent recognized that the owner did not have the privilege of sending the vessel to Halifax without paying an additional premium for the extra risk.

It does not appear that the parties to the contract ever contemplated sending the vessel to any port in British North America and I must hold that the respondent was not entitled to send her to Halifax. The libellant contends that it was never requested to allow such privilege but I think that it sufficiently appeared the respondent claimed it indirectly and would doubtless have put the matter in more definite form if the owner had not anticipated the requirement and refused it in ad

vance.

Price for Coal on Board When Delivered.

The question of the amount which is recoverable for the coal on board depends upon the market price which prevailed in New York at the time of delivery there in December, 1903. Section 3 of the contract, quoted above, required that the rate should be determined by the current market price, and the dispute is as to what price then prevailed. The libellant contends that $3.60 per ton was the correct amount and the respondent that the amount allowed, $2.95 per ton— based upon what it paid by contract for other coal, $2.60 per ton, plus 35¢ per ton for putting it into the bunkers--was correct.

The libellant has shown by testimony that enquiries were made in the market for the price and it appeared to have been $3.24 alongside. The difference of 36 cents would be made up by the delivery in the bunkers. In Cliquot's Champagne, 3 Wall. 114, 125, 18 L. Ed. 116, the trial court charged the jury:

"The market value of goods is the price at which the owner of the goods, or the producer, holds them for sale; the price at which they are freely offered in the market to all the world; such prices as dealers in the goods are willing to receive, and purchasers are made to pay, when the goods are bought and sold in the ordinary course of trade. You will perceive, therefore, that the actual cost of the goods is not the standard. On the contrary, that having been the standard, the law has been changed, and for the standard of the cost has been substituted another standard, to wit, the actual market value.”

The Supreme Court in affirming said (141) that evidence of this character was relevant and should be considered in connection with other evidence adduced by the parties. This testimony supports the libellant's contention, but on the other hand it appears that the respondent actually bought coal in the open market, trimmed into the bunkers, at $2.95 per ton. This steamer was furnished with coal at that price and many others at about the same time. I regard this as better evidence of the market value than mere enquiries without any attempts to purchase. The suggestion that it was poor coal is without weight. It is not probable that the respondent would furnish steamers it was operating on time charters with inferior coal. The respondent's contention in this respect will be sustained.

Short Delivery of Cargo.

The charterer makes a claim for short delivery of a small portion of oil and rope cargo loaded at New York for Maceio and Rio. These consignments were received, tallied in and stowed by the charterer's agents. The master of the ship refused to receipt for them for such reason but subsequently upon the recrest of Mr. Tweedie, the chief officer gave a general receipt for the cargo. At places of destination all of the cargo was taken out by the charterer's agents. None had been lost, jettisoned or used during the voyage. The owner was not therefore liable for shortages. Golcar S. S. Co. v. Tweedie Trading |Co. (D. C.) 146 Fed. 563, 566.

Hire of Gear in Brazil.

This is claimed under the provision:

22. That the owners are to provide ropes, falls, slings and blocks, necessary to handle ordinary cargo up to three tons (of 2,240 pounds each) in weight, also lanterns for night work."

The charterer says that it was obliged to incur this expense because the ship's gear was insufficient but the master testified that the ship's gear was in accordance with the contract and he was not informed that the charterer was employing additional gear. The charterer has not established a right to recover this item.

Surveyor of Coal on Redelivery.

The question presented in this connection is, by whom a charge for survey fees and for boat hire incurred by the libellant should be paid. It appears that there was a difference in the estimate of the quantity of coal on board the vessel at time of redelivery and a surveyor was called in by each party to decide it. It is proper that each

should bear its own expense.

Quarantine in River Plate.

When the steamer went to that river she ran into a quarantine which delayed her for a period, said by the master to have been 48 hours. This should have been at the expense of the libellant, Tweedie Trading Co. v. George D. Emery Co. (D. C.) 146 Fed. 618, recently affirmed. The respondent is therefore entitled to credit for the hire for this period.

There will be a decree for the Glasgow Company, with an order of eference. The libel of the Tweedie Company will be dismissed.

BARBER v. HOME INS. CO. OF CITY OF NEW YORK.

(District Court, S. D. New York. May 8, 1907.)

NSURANCE-MARINE INSURANCE-TOWERS POLICY.

A marine policy of insurance on a towing tug, insuring against loss or damage for which the tug should become legally liable caused by collision or stranding, provided that the tug should be well found in anchors and the underwriter only responsible for injuries received by a tow while such

tow was alongside or attached to a hawser. Held, that there could be no recovery on the policy for the loss of tows while they were at anchor where they had been placed by the tug, and for which she had been adjudged liable on the ground that she had left them in an unsafe place and insufficiently anchored.

In Admiralty.

Peter S. Carter, for libellant.

Kneeland & Harrison, for respondent.

ADAMS, District Judge. This action was brought by William E. Barber against the Home Insurance Company of the City of New York to recover upon a policy of insurance the sum of $2382.17 claimed to be due by reason of the same having been paid and incurred in consequence of a decree in favor of the owners of the canal boats Stella O'Callaghan and Thomas A. Kilfoyle against the steamtug Flushing, insured under a policy covering the period of 12 months from the 11th of July, 1902. The provisions in the policy pertinent to the claims in this action were:

"Do make insurance * against any loss or damage for which the said tug may become legally liable, caused by collision and or stranding as hereinafter stated. * * *

This Policy shall cover only the legal liability of the said tug for loss or damage and charges as herein provided. First: When such legal liability of said tug shall have been incurred or caused by injury to any other vessel or crafts, their freights then being earned on cargoes on board of such vessels or crafts at the time of the disaster and or cargoes, by stranding and or collision while they shall be in tow of the said tug, either alongside or at the eld of a hawser. * * *

This Policy shall not cover any injury or damage to the hull, machinery, engines, tackle or fittings of the said tug, and shall not cover any injury or damage to any other vessel or cargo or freight owned wholly or in part by the insured.

This Company shall not be liable for any loss or damage under this Policy. unless the liability of the said tug for such loss or damage shall have been first determined by a suit at law or otherwise, if this Company shall so elect. and in case legal counsel shall be employed in defending any proceeding to test the liability of the said tug, the same shall first be approved in writing by this Company. In all cases when the legal liability of the tug herein insured shall have been determined by any court of law, a certified copy of such decision shall accompany and form part of the proofs of loss.

All losses shall be payable in sixty days after proofs of loss and or damage and the amount thereof and proofs of interest and or liability of the insure i satisfactory to this Company shall have been made and presented at the office of this Company; the amount of any and all indebtedness to this Company shall be first deducted therefrom, and in all cases of claim hereunder 2000 Dollars shall also be deducted.

The insured as a part consideration for this insurance, agrees and expressly warrants: **

Fourth. That the said tug shall at all times be commanded by and in charge of a duly licensed captain or pilot, and that she shall not take in tow a larger number of vessels or crafts than she can at all times safely handle and fully protect, and that in all cases where two or more vessels or crafts are towed together in the same tow they shall be so fastened, moored or lashed to each other with proper fenders and other appliances as to prevent ther injuring one another by chafing, bumping, pounding or riding.

Fifth. That the said tug shall at all times during the continuance of this Policy be tight and well found in anchors, cable, rigging, tackle and apparel, as is

usual and customary, and that when the said tug shall lie at anchor in the night time, she shall show one or more lights in a conspicuous place, so as to warn and give notice to approaching vessels."

The owners of the two canal boats mentioned filed libels against the Flushing in the Eastern District of New York, which resulted in decrees for half damages against the tug. 134 Fed. 757. It was shown there that she took six barges in tow for distribution in Long Island Sound and after reaching Field Point, off Greenwich Harbor, Connecticut, the boats having no anchors, supplied one for their use but it was small and proved insufficient to hold the flotilla in a moderate storm which subsequently arose. Three of the boats therefore went ashore and two of them were lost. It was held that the tow was negligent in not having anchors but it also held that the tug left the boats in an unsafe place insufficiently anchored and was therefore liable in half Camages. This was affirmed on appeal. 145 Fed. 614, 76 C. C. A. 304. Thereafter a final decree was entered in the eastern district against the Flushing for $762.30 and $791.93 and the libellant was obliged in addition to these sums to pay out $891.23 for the expenses of the actions and, it is claimed, the further sum of $136.71 for witness fees and expenses. The foregoing after deducting $200 particular average, provided for by the policy, amount to $2382.17, the amount first mentioned herein for which the action was brought.

The respondent's defences are:

"(1) That there was a breach of the express warranty that the tug should at all times during the continuance of the policy be well found in anchors as is usual and customary, and that said Tug had been adjudged liable for failure to provide and furnish an anchor of sufficient size for the requirements of her tow.

(2) That the injuries to the canal boats for which the tug has been adged liable were not caused or incurred while said canal boats or either of them were in tow of said Tug, either alongside or at the end of a hawser."

These defences seem to be well sustained.

1. The Fifth provision in the policy with respect to the fittings of the tug requires that she shall at all times during the continuance of the policy "be well found in anchors."

The courts in the case of the Flushing, supra, found that the tug was negligent in not having sufficient anchors and was therefore in fault.

2. There can be no question that when this loss occurred, the lost vessels were not in tow of the tug, "either alongside or at the end of a hawser" and every other loss of the vessels of the tow is necessarily excluded under the terms of the contract.

There is no similarity between this case and that of Ferguson v. Providence Washington Ins. Co. (D. C.) 125 Fed. 141, cited by the libellant, with reference to the rule for interpreting policies of insurance favorably to the insured. That action was under the old form of Towers Liability Policy which provided:

This insurance is to fully indemnify the assured for loss and damage arising from or growing out of any accident caused by collision or stranding resulting from any cause whatever to any other vessel or vessels, which said steamer or its owners may be legally liable."

for