Robert Baldwin, for libellants.

Sebastian Brown, for respondents.

MORRIS, D. J. The owners of the British ship Naval Reserve, 1,831 tons, on February 4, 1880, chartered her to the libellants for a voyage from Liverpool, where she then was, to Baltimore, for the lump sum of £1,212 10s.

The charter-party shows that it was contemplated that the libellants, who were ship-brokers of Liverpool, might not load the vessel themselves, but might procure a cargo to be put on board by other freighters, at a rate which would yield them a profit, and that the consignee of the vessel, in that case, was to collect the whole freight, and they were to receive through him the excess. Accordingly, the charter-party contains these stipulations: "The freight, [that is, the lump sum] to be due and payable, on true delivery of the cargo, in cash, at current rate of exchange for bankers' 60-days' sight bills on London, on date of vessel's entry at custom-house; captain to give his draft on his consignees, at the port of discharge, in charterer's favor, payable 10 days after ship's arrival, for any excess of freight as per bills of lading and this charter. Any deficiency between freight and charter to be paid here in cash, less three months' interest and cost of insurance thereon. The charterers are not to be held liable for any loss of freight arising from breakage, leakage, drainage, or any other cause beyond their control."

The charterers, who are the libellants, did procure for the ship a full cargo of 1,800 tons of iron ore, known as "purple ore," at the rate of 14s. 3d. per ton on weight delivered. If 1,800 tons had been delivered the freight thereon would have amounted to about £70 in excess of the lump sum, and it is to recover this alleged excess of £70 that this suit. is instituted. It appears, however, that when the cargo was delivered in Baltimore there was a loss of weight of about 120 tons, so that, instead of an excess, the freight actually received by the ship was some £20 less than the lump sum mentioned in the charter. The ship encountered on the voyage exceedingly rough weather, and was

obliged to put back to Crookhaven to repair her rudder, and afterwards was compelled to jettison about 10 tons of the cargo, and to put back to Queenstown to get her pumps cleared, and while there discharged and reshipped a part of the cargo. She finally reached Baltimore, and discharged the cargo during the month of June. The discharging was conducted in the manner usual in the port. The ore was hoisted from the hold and dumped into a shute leading to wheelbarrows, then wheeled to cars standing at some distance and dumped into the cars. When the cars were loaded they were run on to scales and weighed by the custom-house officials. This process of discharging in this climate in the summer season necessarily affords opportunity for the drying of the ore. Purple ore is, when dry, a very fine powder, and when wet forms into lumps about the size of grains of wheat. It takes up moisture very readily, and the difference in weight between its dry and wet condition may amount to 12 per cent. It appears from the proof that there is always some loss of weight on a cargo brought from Great Britain and discharged at Baltimore. By merchants in the trade 5 per cent. is estimated to be the average loss. On 25 cargoes received by one merchant the evidence shows that there was a loss, on every cargo, varying from a per cent. to 7 per cent. The loss on the cargo of the Naval Reserve was 7 37-100 per cent.

The contention of the libellants is that, as by the terms of the charter-party "the charterers were not to be held liable for any loss of freight arising from breakage, leakage, drainage, or any cause beyond their control," they were to be paid. the excess of freight called for by the bills of lading over the lump sum mentioned in the charter, notwithstanding no excess of freight was collected by reason of loss of weight in the ore from drainage or evaporation or other loss, and they claim that the true interpretation of the charter entitled them to have a draft in their favor, drawn by the captain, before the vessel sailed from Liverpool; the draft to be for the amount of this excess, drawn on the consignees of the vessel at the port of discharge, payable 10 days after the vessel's

arrival. It is to be observed, however, that the charter-party speaks of an excess of freight "as per bill of lading and this charter." The bill of lading states the freight to be 14s. 3d. per ton on weight delivered, so that whether or not there was an excess of freight, "as per bill of lading and this charter," could not be ascertained until the cargo was delivered. This being the contract for freight expressed by the bill of lading,— a contract made by the libellants themselves with the freighters, and it being almost an absolute certainty that there would be, on a cargo of purple ore, some loss of weight, it is scarcely supposable that the owners intended that they were to pay to the charterers a fictitious excess of freight which they could have no expectation of collecting. The more obvious and reasonable meaning of the clause, "charterers not to be held liable for any loss of freight arising from breakage, leakage, drainage, or any other cause beyond their control," in the connection in which it is found in this charter, is, it seems to me, that if there was once put on board cargo sufficient, at the rate fixed by the bills of lading, to satisfy the lump sum, then the charterers were not afterwards to be held liable to the owners for any deficiency which might arise from any cause beyond their control. This interpretation, I think, fully satisfies the language of the stipulation, and is reasonable and sensible, while that contended for by the libellants seems to me strained and unreasonable. Whatever causes there were which united to produce the loss of weight in the cargo, it is clear they were not causes attributable to any fault of the ship or owners; and as the excess of freight intended by the charter must, in my judgment, be held to be an actual excess, which the ship's consignee was entitled to collect from the consignee of the cargo, it follows that there is nothing due to the libellants. The claimants have urged the court not to exercise jurisdiction in this case for the reason that the libellants and claimants are all British subjects, the ship British, and the contract one made in Liverpool. If there were any allegations that the language of the charter is to be explained by any

usage or custom of the port of Liverpool, or if the facts necessary for the consideration of the case had to be proved by testimony to be taken in that port, there might be reasons for remitting the libellants to the courts of their own country; but as the facts necessary for the determination of the question raised are not disputed, and as the meaning of the contract seems to me perfectly clear and favorable to the party objecting to the jurisdiction, I have considered that in this case justice will be promoted by my exercising the jurisdiction which undoubtedly this court has, and by now disposing of the case. Other questions, as to the form of the libel, have been raised by the claimants, but in the view I have taken of the controversy, on its merits, it is not necessary to pass upon these questions.

Libel dismissed.

THE STEAMER ADIRONDACK.

!District Court, 8. D. New York. December 29, 1880.)

1 SALVAGE-APPORTIONMENT-EXPENSES-SHARE OF STEAMER-ENGINEER-TAKING ASSIGNMENT OF SEAMAN'S SHARE.

On apportionment of a fund awarded by the court as salvage, which is applied for by the master and part of the crew of the steamer rendering the service:

Held, that the owners are entitled to $750, to be re-imbursed out of the fund before it is apportioned, as indemnity for all the expenses and loss by reason of the salvage service.

That law expenses, incurred in the trial of the suit in which the amount of salvage was awarded, should not be included, as they were rendered mainly unnecessary by the claimants having tendered, in their answer in that suit, and paid into court, all that was properly due for salvage service.

That, following the principle of admiralty courts favoring the claims of a steamer employed in a towage salvage service, a proper apportionment in the present case will be three-fifths of $6,750-the fund remaining after deducting the owners' expenses of salvage service-to the owners of the steamer, as principal salvor, and two-fifths to the master and crew, as follows: $300 to the master, and the residue among the officers and crew, including the master, in proportion

to their respective wages; the shares of the master and crew to be free of all charges and expenses incurred by the owners.

That no sufficient ground is shown for giving the engineer of the steamer an extra share.

Also held, that the owners cannot extinguish the claims of seamen for salvage who have not appeared to claim their shares by taking an assignment from them. The amounts actually paid the seamen may be considered as paid on account of their shares, and re-imbursed to the owners, the residue of the seamen's shares to remain in the registry to await their application therefor.

In Admiralty.

L. Ullo, for master and seamen.

J. E. Parsons, for owners.

CHOATE, D. J. This is an application by the master and part of the crew of the steam-ship Plainmeller for an apportionment of the salvage in the case of The Adirondack, 2 FED. REP. 387, 872. It is shown, on the part of the owners of the Plainmeller, that they incurred some expenses, by reason of the salvage service, which should be first re-imbursed to them out of the amount paid. They are: For port charges in New York, about $275; extra coal, $250; captain's expenses, $60; and some other trifling expenses. They ask to be allowed, also, for law expenses in the trial of the suitsome $750; charges of their agents for attending to the business of the suit; and some $400 for repairs. As to these expenses, it was not shown upon the hearing, and is not now shown, that the towage service made any repairs necessary, and the law expenses incurred were, in my judgment, mainly unnecessary, as the Adirondack offered to pay all that was properly due for the service rendered. These charges ought not, therefore, to be taken into account in apportioning the salvage; and, under all the circumstances, I think that $750 will be a full indemnity to the owners of the vessel for their expenses and loss by reason of the salvage service. This is all for which they have any just claim on the master and crew for re-imbursement. Deducting this sum, there remains $6,750 to be apportioned between the vessel and the master and crew. The owners of the vessel urge that the vessel was the principal salvor, and that the service of the master and