hawser, and so dragged upon the dredge, or whether the ship, as she approached the dredge on a course to westward, suddenly, and of her own accord, sheeered to starboard, and thereby brought herself in contact with the dredge. Upon this question the weight of the evidence seems to me to be in favor of the ship. In my opinion, the collision arose from the attempt of the Vosburgh to pass from the east to the west side of the dredge, when so near the dredge that the ship, while following the tug, brought up upon the hawser leading aft from the dredge. The case contains much testimony going to show that for a mile or more below the dredge the course of the tug was to the west of the dredge, but estimates of distances in the night are always uncertain, and there is testimony in the case which, in my opinion, overcomes any evidence as to this distance, and warrants the conclusion that the collision was caused by the tug's changing her course from the eastern side to the western side of the dredge when she was so near the dredge that the ship, while following the tug, caught upon the dredge's hawser, and so was brought in collision with the dredge. There must be a decree for the libelant, for an order of reference to ascertain the damages.

CHADWICK et al. v. DENNISTON.

(Circuit Court, S. D. New York. December 31, 1889.)

SHIPPING-DAMAGE TO CARGO-LIABILITY OF VESSEL OR Owner.

Respondent chartered his vessel to M., who subchartered to libelants. Both charters provided that the vessel should not be responsible for delivery of cargo in bad condition, and exempted the owner from liability for the act of God, and all other dangers and accidents by sea, rivers, and navigation. The charterers further agreed to indemnify the owners from all consequences arising from the captain's signing bills of lading. The vessel was loaded with fruit, under a bill of lading which provided as follows: "Loss or damage resulting from the following perils excepted, viz.: Risk of craft, explosion or fire at sea, in craft or on shore, boilers, steam, or machinery, or from consequences of any damage or injury thereto, however such damage or injury may be caused." In proceeding to her destination the vessel's shaft broke, and, while lying in the trough of the sea, the cargo shifted, and was damaged. It appeared that the shaft was of the best material and workmanship, had been frequently inspected, and disclosed no defects, and that there was no negligence on the part of the owners or their employes. Held, that neither the vessel nor her owners were liable for the damage to the cargo.

In Admiralty. Libel for damages. On appeal from district court.

FINDINGS OF FACT.

(1) The British steam-ship Rover was chartered by her owner, Peter Denniston, (under his firm name of Peter Denniston & Co.,) under a charter of affreightment, on June 16, 1885, to the Merritt Fruit Company, and by that company subchartered to the libelants on September 21, 1885. Under these charters, she had made several trips previous to the voyage hereinafter referred to. (2) Both charters contained the following written clause, "Steamer not responsible for delivery of cargo in

bad condition," and exempted her owner from liability for the act of God, and all other dangers and accidents by the sea, rivers, and navigation. They further provided that the captain, although appointed by the owners, shall be under the orders and direction of the charterers, as regards employment, agency, or other arrangements; and the charterers agree to indemnify the owners from all consequences or liabilities that may arise from the captain's signing bills of lading, or in any other wise complying with the same. (3) The libelants, on or about December 7, 1885, loaded the steamer at Puerto Cortez, Honduras, with a cargo of 10,092 bunches of bananas and 42,159 cocoanuts, to be transported to Charleston, S. C., and thereupon the master issued a bill of lading, such as had also been used on previous trips, which contained the following exceptions:

*

"Loss or damages resulting from * * any of the following perils excepted, whether arising from the negligence * * * of the master or mariners, or others of the crew, or otherwise however, viz.: Risk of craft, explosion or fire at sea, in craft or on shore, boilers, steam, or machinery, or from the consequences of any damage or injury thereto, however such damage or injury may be caused; collision, stranding, or other perils of the seas,"

etc.

(4) On December 10, 1885, while in the Florida straits, the steamer experienced very tempestuous weather, with a violent gale and heavy sea, causing her to take much water on board. While thus exposed, and between much pitching, her crank-shaft, operating the propeller, broke. (5) Owing to the fracture of the crank-shaft, the vessel lay in the trough of the sea for nearly 36 hours, while the engineer strapped together the broken parts of the shaft. During this time she rolled heavily. The bins which kept the bunches of bananas in place between decks and in the hold were broken down; and the bananas became more or less bruised and mashed, so as to be greatly damaged on arrival. By reason, also, of the laboring and straining of the steamer while lying in the trough of the sea, and thus taking much water aboard, sea water also penetrated to the cargo, and damaged the same. (6) The engineer having strapped together the broken parts of the shaft, the aft engine was set in motion, and the vessel again proceeded on her voyage, reaching Charleston on December 15th, where she delivered the cargo, damaged as aforesaid, to the libelants. (7) The Rover was built at Dumbarton, Scotland, in 1874. Her tonnage was 431 gross and 270 net. Her engines and machinery were supplied by a firm that stood high in the trade. The subcontractor who forged the shaft had the highest reputation for turning out good work of that kind. (8) The shaft which broke was made of the best scrap-iron, which is considered the best material for the purpose, and was forged in the manner then and now generally in use for the forging of such shafts, namely, by building out the ingot metal in the form of a parallelogram, and then slotting the form out of the solid, so as to avoid a weld at or near the junction of the cylindrical part of the shaft with the web of the crank. The mode of manufacture known as "jumping on," by which the end of a shaft is

welded into the concave surface of its arm, was not followed in the forging of this shaft. (9) The shaft was 25 per cent. larger than required by the board of trade rules for vessels of her size. It had been in use in the Rover ever since her construction, in 1874. Frequent examinations were made and surveys held upon the machinery and shaft by private surveyors, by the board of trade surveyors, by the surveyors to Lloyds, and by the engineers; but no material or substantial defect in the shaft was ever discovered. (10) The broken parts disclosed no substantial defect which in any way conduced to the fracture, or determined its direction or extent. (11) There was no negligence on the part of the owners of said steam-ship, or any of their employes, which contributed to or caused the fracture of the crank-shaft, or the damage to her cargo in consequence thereof. (12) At the dates of the charters, and at the commencement of the voyage upon which her crank-shaft broke, the steamship Rover was in all respects seaworthy, and reasonably fit for the service upon which she was about to embark.

CONCLUSIONS OF LAW.

(1) The Rover is not, nor are her owners, responsible for the damage to the fruit; it not appearing that the same was caused by her unseaworthiness, or by the negligence of her owners, or of any of their employes. (2) There should be a decree for the respondent, with costs of both courts.

Wm. W. Goodrich, for libelants.
E. D. Convers, for respondent.

LACOMBE, J., (after stating his findings and conclusions as above.) In affirming the decision of the district judge, nothing need be added to his exhaustive discussion of the law and the facts of the case as presented to him. The additional testimony taken in the court by the respondent fully establishes the identity of the crank-shaft, while it reiterates and supplements the positive statements of those who actually forged such shaft as to the process of manufacture used by them. Against such testimony the further evidence of the expert Burr, substantially to the effect that he believes it was not made in the way described by those who forged it, and that, in his opinion, the district judge was mistaken as to the evidential value of 11 years of good service, is not sufficiently persuasive to call for a reversal.

MCPHAIL v. WILLIAMS et al.

(District Court, D. Massachusetts. January 7, 1890.)

SHIPPING-LIABILITY OF OWNER-LIMITED LIABILITY ACT.

In a libel in personam by a material-man for repairs on a vessel, it appeared that the repairs were made and the supplies furnished on the authority of both respondents, each being a half owner in the vessel, and that they were furnished on the order of one of them, with the previous knowledge and consent of the other. Held that, under Act Cong. June 26, 1884, providing that the liability of a ship-owner shall be limited to the proportion of any and all liabilities that his share of the vessel bears to the whole, but that this provision shall not apply to wages due to persons employed by such ship-owner, both the respondents were liable for the whole amount due for such repairs, they being made on the personal contract of each of

them.

In Admiralty. Libel for labor and materials.

NELSON, J. This case was a libel in personam by a material-man to recover a balance of $322.56 for repairs and supplies furnished to the bark Carib, of which the respondents, Williams & Luiz, were owners. I find, upon the proofs, that the repairs and supplies were furnished at Boston, the home port of the vessel, upon the authority of both respondents, each being a half owner; that they were furnished upon the order of Luiz, with the previous knowledge and consent of Williams; and that the balance claimed has not been paid, and is a proper charge for the work and materials furnished. Upon these facts, the respondent Williams contends that the decree should be so framed as to limit his liability to one-half of the debt, relying on the eighteenth section of the act of June 26, 1884, (23 St. 57,) which provides "that the individual liability of a ship-owner shall be limited to the proportion of any or all debts and liabilities that his individual share of the vessel bears to the whole; and the aggregate liabilities of all the owners of a vessel on account of the same shall not exceed the value of such vessels and freight pending: provided, that this provision shall not affect the liability of any owner incurred previous to the passage of this act, nor prevent any claimant from joining all the owners in one action, nor shall the same apply to wages due to persons employed by said ship-owners." It was decided by Judge BROWN in The Amos D. Carver, 35 Fed. Rep. 665, that this statute has no application to the personal contracts of ship-owners. In his opinion the learned judge says:

"The act of 1884, limiting the liability of the owners of a vessel on account of the same, does not, I think, restrict the liability of owners upon their own personal contracts, but only their liability on account of the vessel;' that is, the liability that is imposed on them by law, in consequence of their ownership of the vessel, viz., for the contracts or acts of the ship, or her master, without the owner's express intervention."

In Judge BROWN's conclusion, that the act does not extend to contracts entered into personally by the owner, I fully concur. In Butler v.

Steam-Ship Co., 130 U. S. 527, 554, 9 Sup. Ct. Rep. 612, Mr. Justice BRADLEY, in delivering the judgment of the court, referring to section 18, says:

"The language is somewhat vague, it is true; but it is possible that it was intended to remove all doubts of the application of the limited liability law to all cases of loss and injury caused without the privity or knowledge of the

If this section was intended to refer to debts and liabilities arising in contract at all, about which some doubt may be inferred from this remark of Mr. Justice BRADLEY, it must be those for which under the law, as it stood before the act, the ship-owner was bound, although contracted without his privity or knowledge. Certainly there was no occasion for congress to legislate to limit the liability of ship-owners on contracts which they enter into personally, or expressly authorize. The libelant is entitled to a decree against both respondents for the whole amount of his claim, with interest thereon from the filing of the libel. Ordered accordingly.

CHRISTIE V. THE CRAIGTON.1

(District Court, S. D. Alabama. January 6, 1890.)

1. SHIPPING-CARRIAGE OF GOODS-Loss-BURDEN OF PROOF.

If goods shipped on a vessel are lost before delivery at destination, the presumption is that the loss occurred by default of the carrier, and the burden is on him to show it due to a peril of the sea, from liability for which he is exempted by the bill of lading.

2. SAME-EXEMPTION FROM LIABILITY.

If the claimant shows that the ship encountered such bad weather as warrants the conclusion that the loss was due to the motion caused by the sea, this is a peril of the sea, within the meaning of the exception in the bill of lading, and exempts the carrier from liability, unless the libelant shows that the loss would have been prevented by proper stowage.

In Admiralty. Libel for loss of goods on a voyage from Liverpool to Mobile.

D. C. & W. S. Anderson, for libelant.
Pillans, Torrey & Hanaw, for claimant.

TOULMIN, J. If goods are lost after their reception, and before their delivery by the carrier, the presumption is that such loss was occasioned by default of the carrier. Where no account of how the goods were lost is given, the vessel is held responsible. The carrier being prima facie liable, the burden is on him to show that the loss was occasioned by a cause for which he is not responsible; that it was occasioned by some

1 Reported by Peter J. Hamilton, Esq., of the Mobile bar.