THE LAURA M. STARIN.
preclude the exercise of this right. He was not induced to do anything, ana had done nothing, before he knew of the managing owner's disclaimer, by which he suffered any loss. The only loss he has sustained is the loss of his bargain, and for this the respondents cannot, under the circumstances, be held responsible. The libel is dismissed, with costs.
(District Court, E. D. New York.)
1. PENALTy-OVERCROWDllilG PASSENGERS-REV. ST. i 4465.
In an action for the penalty, under this section of the Revised Statutes. the United States is not a necessary party.
2. SAME-SEPARATE PENALTIES.
The statute gives a separate penalty for every violation of the act.
The libel need not allege that the libellant was a passenger, or that he was an informer, or that he sued as such; nor need it set out the names of the passengers taken on board.
This was a suit, brought under section 4465 of the Revised Statutes, to recover the penalty for violation of law in overcrowding passengers on steamers.· H. G. Atwater, for libellant. P. Cantine, for respondent. BENEDICT, D. J. All the questions raised by the exceptions to the lib.el in this case, unless it be that as to the <.:onstitutionality of the
(District Court, N. D. Ohio.)
Libel for penalty for overcrowding passengers, in violation of the statute. Exceptions to libel, reaching question of jurisdiction. Mix, Noble & White, for libellant. George Willey, for claimant. WELKER, D. J. Held. (1) That proceedings in rem may be maintained in the district court for the penalty 'provided by section 4465, Revised Statutes of the United States, for taking on board a steamer a greater number of passengers than stated in the certificate of inspection. (2) That section 4469 of the Revised Statutes having provided that the penalty imposed by section 4465 Shall be a lien upon the vessel, and authorizing a bond to be to aecura the judgment as in other cases, the proper way to the lien is by proceedings in rem against the vessel. Exceptions overruled.
statute under which the libel is filed,-if such a question can be said to be fairly raised by any of these exceptions as framed,---.appear to have been passed on by Judge Choate in the case of The Sea Bird, 8 FED. REP. 573. I agree with Judge Choate in his conclusions. The question as to the constitutionality of the act is one that can be better passed on at the final hearing, and its oonsideration will therefore be reserved until that time. All the exoeptions are therefore overruled, and leave to answer given the claimant.
NOTE. The statute gives a separate penalty for every violation of the act, (Pollock v.The Sea Bird, 3 FED. HEP. 573,) and a direct remedy in admiralty against the vessel for the recovery pf the penalty, (Pollock v. The Sea Bi1·d. 3 FED. REP. 573; citing The 1I1:is801tl'i,3 Ben. 508; S. C. 9 Blatchf. 433; The Queen, 4 Ben. 237; S. C. 11 Blatchf. 416;) and any admiralty court in which the vessel may be has jurisdiction. Pollock v. The Sea Bird,3 FED. REP. 573. The object of the act is to protect the health and lives of passengers from becoming a prey to the avarice of ship-owners. U. S. v; The Neurea, 19 How. 94. An attachment of the vessel before filing the libel is not necessary; nor is the lien divested by a sale to a bona fide purchaser. Hatch v. The Boston,3 FED. REP. 807. The United !States is not It necessary party to suits under section 4465, Hev. St., prescribing a penalty for carrying an excess of passengers. Pollack v. The Sea Bird,3 FED. REP. 573; Hatch v. The Baston, Id. 807. The libel need not allege that the libellant was It passenger on such steamer, or that he was an informer, or that he sued as such; nor need it set out the names of the passengers. Pollock v. The Sea Bird, 3 FED. HEP.573. It is sufficient if it sets forth the offence in the words of the statute which creates it, with sufficient certainty as to the time and place of its commission. U. S. v. The Neurea, 19 How. 94. In estimating the number of passengers on a steamer no deduction is to be made for children or persons not paying. 'but those employed in managing the vessel are not to be included; and in estimating the tonnage the measurement of the custom-house at the port of arrival is to be taken. The Louisa Barbara, Gilp. 332. An oral permission to carry an excess of passengers is not admissible as a defence. Pollock v. . he Lanra, 5 FED. REP. 133. Nor will the bringing of an action of debt T against the master and owners of the boat, and prosecuting the same to judgment, release the lien given by section 4469, Rev. St. Hatch v. The Baston, 3 FED. REP. 807.-[ED.
BOSTEl'TER V. GRAY.
(District Oourt, W. D. PennsyZvania. February 18, 1882.)
CARRmRIl-BILL OF LADING-UIilAGES AS TO VOYAGE.
If nothing is expre88ed to the contrary in the bill of lading, established usages relating to a voyage are impliedly made part of the contract.
2. SAME-DEVIATION-USAGES O:B' TRADE AS A TEST.
After the express provisions of the contract, the usage of the trade is the predominating test as to deviation, and of what belongs to the voyage, and the proper course in prosecuting it.
3. SAME-USAGES O:B' TRADE-CASE STATED.
Where a tow-boat having a fleet of barges in tow, on a voyage from Pittsburgh to New Orleans, landed at Mt. Vernon, Indiana, and the fleet was there safely moored, and a single barge detached therefrom and towed back up stream to take on cargo at four or five different points on the Indiana and Kentucky shores. all within the distance of three miles, held, that it was not a , deviation; it appearing that the course pursued was in conformity with the usage of the trade-a usage which tends to cheapen the cost of transportation, facilitates business, and conduces to the safety of the whole tow.
4. ExCEPTIONS IN BILL OF LADING-DANGER OF ACCIDENTS.
The exception in a bill of lading of the dangers of navigation and unavoidable accidents relieves the carrier from liability for loss of the cargo of a barge which sunk by striking, without negligence, sume unknown 'and concealed obstruction in the Ohio river.
In Admiralty. A. H. Clarke and S. A. Wills, for libellants. Knox &; Reed, for respondents. AOHESON, D. J. On December 6, 1874, the steam tow-boat Iron Mountain, having in tow several barges, (one called Ironsides No.3,) partly loaded with a miscellaneous cargo, left Pittsburgh bound for New Orleans. The libellants shipped by the barges 2,000 boxes of bitters and 18 boxes of show-cards, which were placed on the Ironsides No.3, the bill of lading stipulating that the goods were "to be delivered without delay, in like good order, at the port of New Orleans, Louisiana, the dangers of navigation, fire, and unavoidable accidents excepted." At the argument it was claimed in behalf of the libellants that there was a verbal agreement touching the course of transportation additional to the bill of lading, but the libel itself asserts that "in confirmation of said agreement" the bill of lading was signed, and the evidence fails to establish such alleged verbal contract. The case stands upon the bill of lading. The tow-boat and her barges, after taking an additional cargo at various. iptermediate places, arrived safely o.t Mt. Verneo, India.na,