bills of lading was not in fact the mere freight for the goods, but was many times in excess of the freight proper. The sums called "freight" in the bills of lading included, as was stated to the master by the agent of the charterer, advances made by the charterer upon the fruit; that is to say, the purchase price of the fruit at Catania, wholly or in part. The cargo arrived in New York in good condition, but the "freight" so called, was much in excess of the whole value of the fruit; and, no one appearing to claim it, it was taken possession of by the collector, and sold by him at auction, bringing fair prices, but netting less than half the price of the so-called "freight." The answer alleges that the master's draft was procured by fraud, and was made by the master without authority; that upon crediting the libelant with the freight collected upon the other parts of the cargo, and with the net amount realized from the fruit, there is a balance due the charterer of $462.96, which was tendered and paid into court with the answer, on account of the draft of $5,543.56.

Wing, Shoudy & Putnam, for libelant.

Butler, Stillman & Hubbard, (Wilhelmus Mynderse,) for claimant.

BROWN, J. This suit being in rem, the libel cannot be sustained, unless a lien upon the ship is established. The case differs in some important respects from that of The Woodland, 104 U. S. 180, 7 Ben. 110, and 14 Blatchf. 499. In that case the drafts were drawn, "payable ten days after sight," and contained the words, "recoverable against the vessel, freight, and cargo." There was no express pledge of the vessel. The drafts were not bottomry drafts, but were designedly given in lieu of bottomry. 7 Ben. 113, 115. In the present case the bill expressly pledges the vessel for payment, and is made payable only on condition of arrival at the port of destination. Such drafts constitute, in form, valid bottomry. Force v. Pride of the Ocean, 3 Fed. Rep. 162; Force v. Insurance Co., 35 Fed. Rep. 767. But the master had no authority in this case, under the general maritime law alone, to execute bottomry; for the vessel was under no such necessity as would authorize bottomry. The consideration of the draft was in part for "necessary last disbursements;" but these advances by the charterer were not made as a loan to the ship, but in part payment of the hire, pursuant to the stipulations of the charter. No bottomry could be lawfully executed for such advances; nor does the maritime law authorize bottomry in order to settle in advance differences of freight. The draft, on its face, moreover, purports to be given merely in fulfillment of the obligations of the charterparty. The master's authority, either to make this draft or to bind the ship for its payment, must therefore be sought in the charter-party alone.

Two questions are presented. First, as to the right of Tassi, the payee and charterer, to enforce the draft; second, the rights of the libelant, as an alleged bona fide indorsee.

1. The libelant is, in this case, in no better position than the payee. Though this bill, being drawn to order, is doubtless transferable by in

dorsement, it has not those qualities of negotiable paper under the lawmerchant, that give superior rights to a bona fide indorsee before maturity. This bill lacks the essential conditions of such paper, since the obligation to pay is conditioned on the arrival of the vessel at her destination, and is not payable absolutely in money, but may be paid in demand bills on London. Coolidge v. Ruggles, 15 Mass. 387; Nunez v. Dautel, 19 Wall. 560; 2 Daniel, Neg. Inst. 43. In the case of The Woodland, supra, the instrument was a bill of exchange proper, payable "10 days after sight." As the bill, moreover, on its face purports to be made under the charter alone, the indorsee had constructive notice of the contents of the charter, and of its limitations on the master's authority. Again, there is not a word in this charter that authorizes the master to pledge the ship, or to create any express lien on her, for the payment of the bill that he was thereby authorized to execute. If any lien, therefore, attaches to the ship for the payment of such a draft, it cannot stand upon the master's express contract alone, for the charter gave him no such authority; it can stand only upon the implication of the general maritime law, which might possibly attach a lien to the ship as an implied security to the charterer for the fulfillment of the ship's obligations under the charter-party. See The Scotia, 35 Fed. Rep. 909, 917; Freeman v. Buckingham, 18 How. 182, 189. It is unnecessary to inquire here whether such an implied lien would arise for the payment of obligations like the present, properly given, because no such lien could in any event be upheld beyond what the ship actually owed on a fair settlement under the charter; and the indorsee of the draft would therefore take no greater lien than Tassi, the payee. In this respect the decision of the supreme court in the case of The Woodland, supra, upon this precise point, is strictly applicable. If it be said that the master's representation on the face of the bill was that its amount was due "for advances and difference of freight, pursuant to the charter-party," and that the indorsee was misled by that statement, this would not aid the libelant in any claim of a lien upon the ship. The situation is no better for a bona fide indorsee than that of a bona fide holder of a bill of lading, signed by the master, stating the shipment of goods not in fact put on board. It is well settled that no obligation on the ship or her owners in such a case arises, since the master has no authority to bind either in that way. Freeman v. Buckingham, 18 How. 182; Pollard v. Vinton, 105 U. S. 7; The Querini Stamphalia, 19 Fed. Rep. 123, 125; Sears v. Wingate, 3 Allen, 103. In every point of view, therefore, I must hold the rights of the indorsees of such drafts no better than those of the payee. The Italian authorities, cited by counsel, have reference, as I understand, solely to transactions within the scope of the master's authority. This was in clear excess of authority.

2. As respects Tassi, the case seems clear. The advances made by him upon the fruit were plainly not "freight." The master had no right to include such advances under the word "freight" in the bill of lading, nor to take them into account in settling "difference of freight" under the charter. If such advances might be included under the term

"freight" in the bill of lading, for the purposes of collection from the consignees on delivery, this did not give the charterer the slightest claim to have such advances included in the bill to be drawn in the settlement of differences. The charter expressly provides that the bills of lading, signed as presented, should be "without prejudice to the charter." It is unnecessary to consider here whether any such settlement under clauses of this character should be deemed other than provisional, as treated by the parties in the cases of Eisenhauer v. De Belaunzaran, 26 Fed. Rep. 784, 790; Naval Reserve, 5 Fed. Rep. 209; for no fraudulent settlement can be upheld; and this whole transaction was plainly fraudulent as against the ship and her owners. Under the guise of a settlement of differences of freight, pursuant to the charter, the master was induced by Tassi to include under the name of "freight" alleged advances on the goods, exceeding their value; and the ship and owners, instead of being mere carriers, were thus sought to be turned into purchasers of the cargo. On arrival, no consignees appeared to claim the goods under the bills of lading. The unavoidable inference is that Tassi did not expect that anybody would appear. No such "settlement" can stand. The goods having been entered and sold by the collector in default of anyone appearing. to claim them, the vessel is entitled to be paid out of the net proceeds her full freight, according to the usual market rate. The libelant, as indorsee of the draft, is entitled only to the residue, and as this amount, $462.96, has been tendered and paid into court without objection, judgment may be entered for that sum less the defendant's costs.

THE BRUCKLAY CASTLE.

LUTTKE V. THE BRUCKLAY CASTLE.

(District Court, S. D. California. November 5, 1888.)

1. ADMIRALTY-OBJECTION TO JURISDICTION-WAIVER.

On a libel for wages, after the claimant has pleaded to the merits, and testimony has been taken on the issues made by the pleadings, it is too late to object to the jurisdiction of the court, on the ground that the wages were earned by a foreign seaman on board a foreign vessel.

2. SEAMEN-THE CONTRACT-EVIDENCE.

Where the allegations of the libel and the testimony of libelant as to the length of the voyage are contradictory, and libelant's explanations of his reasons for not leaving the vessel at the end of his alleged voyage also contradictory, the court is not justified in disregarding the written articles.

In Admiralty. Libel by August Luttke against the British bark Brucklay Castle for wages as seaman.

W. J. Hunsaker, for libelant.

Anderson & Story, for claimant.

Ross, J. The libelant, an ordinary seaman, signed articles for a voyage from "Penarth (Cardiff) to Montevideo, and any ports or places within

or

the limits of 75 degrees north and 60 degrees south latitude, the maximum time to be three years, trading in any rotation, and to end in the United Kingdom or on the continent of Europe, between the Elbe and Brest, at master's option, calling for orders if required." On the part of the claimant it is objected that, the suit being for wages earned by a foreign seaman on board a foreign vessel, the court should decline to take jurisdiction, and remit the libelant to the tribunals of his own country. But this objection was not raised until after claimant had pleaded to the merits, and until after testimony had been taken on the issues made by the pleadings. Under such circumstances the objection will not be regarded. Apart from this objection, the only defense set up is that the libelant deserted the vessel at the port of San Diego, without cause, and in violation of the shipping articles. The case has been submitted upon these articles and the testimony of the libelant. The libel, which is sworn to by the libelant, charges that libelant shipped on or about December 21, 1887, at the port of Montevideo, South America, for a voyage to the port of New Castle, New Zealand, and thence to San Diego, in the state of California, United States of America, at the agreed wages of three pounds per month, or its equivalent in lawful money of the United States, and that for the due performance of said voyage libelant signed the articles already referred to; that the bark arrived at the port of San Diego on the 27th of July, 1888, and was there safely moored; and that, the term of libelant having expired, the master discharged him from the service of the said vessel without payment, after demand made, of the wages due him for the voyage.

In his testimony libelant states that he shipped for a voyage from Montevideo to New Castle only, and that the understanding between himself and the captain was that the voyage was to end at that port; that he signed the articles, but that they were not read or explained to him; and that the consul at Montevideo simply asked him his age, and where he was born, and told him to sign, which he did. Although the shipping articles are by no means conclusive as to the contract between the parties, it will not do to disregard them upon such testimony as that of the libelant in this case. When he verified the libel he swore that he shipped · from Montevideo to New Castle, and thence to San Diego. In his testimony he swears that the contract was that the voyage should end at New Castle. In his direct examination he states that the reason he did not leave the vessel at New Castle, he was sick; and added: "The captain called me aft when we were two days out at sea, and said he made a mistake in taking me out of the harbor." On cross-examination, when asked why he did not go ashore at New Castle, he answered: "The captain would [not] discharge me. He said I signed three years' shipping articles." Such contradictory statements as these show that but little reliance can be placed upon the testimony of the libelant in his own favor. And that it was not his understanding that the voyage was to end at New Castle is very clearly shown by the fact, admitted by him, that, after reaching the port of San Diego, he sought to be discharged upon the ground that the condition of his health was such as not to permit him to

continue further on the voyage. The testimony is clearly insufficient to justify the court in disregarding the written articles. That libelant deserted the bark at San Diego without any valid excuse, and was not discharged as sworn in the libel, abundantly appears from his own testimony. There should be a decree dismissing the libel at libelant's cost; and it is so ordered.

NESBIT et al. v. THE AMBOY AND THE TRANSFER No. 2.1

(District Court. S. D. New York. November 27, 1888.)

1. LIMITATION OF ACTIONS-COMMON-LAW PERIOD-ADMIRALTY-DISCRETION OF COURT.

The period of limitation fixed by statute in common-law actions should not be extended by discretion in admiralty cases, except for some cause of practical inability to sue, or for some peculiarity of a maritime nature that demands recognition in a court of admiralty, and makes it plainly a matter of justice that this discretion should be applied.

2. SAME-VOLUNTARY DELAY-SIX AND A HALF YEARS.

Libelant, owner of cargo on a vessel lost by collision, did not bring suit for six and a half years after his loss, waiting, by advice of counsel, until the litigation as to the fault of the vessels had been decided in a suit by the owner of the lost vessel; but nothing prevented him or his assigns from suing at any time during that period. Iled, that the claim was barred.

In Admiralty. Action for damages through loss of cargo in collision. Hyland & Zabriskie, for libelants.

Biddle & Ward, for the Amboy.

Page & Taft, for the Transfer No. 2.

BROWN, J. The above libelants were the owners of a cargo of brick on board the canal-boat Idle Hope, which was sunk on the 23d November, 1881, while in tow of the Amboy, by a collision with the Transfer No. 2, in going up the East river, to the westward of Blackwell's island. Upon a previous action against the defendant vessels, brought by the owner of the Idle Hope, both tugs were found in fault, and a decree entered against both in December, 1884, which, upon appeal, was affirmed in the circuit on July 14, 1886. The Amboy, 22 Fed. Rep. 555. The libel in the present case was filed July 6, 1888. The claimants plead the statute of limitations; and, under the recent decision in the case of Southard v. Brady, ante, 560, I feel bound to sustain the plea. There has been no time since the collision during six and a half years when an action could not have been brought by the libelants or their representatives or assigns to recover their damages. It appears, however, that the claim was early placed in the hands of competent counsel, who advised waiting until the previous case was decided, in the expectation that, if the tugs were held liable, payment would be made without further legal

'Reported by Edward G. Benedict, Esq., of the New York bar.