ants have been adjudged to be infringers, and decreed to account for the gains, profits, and damages of their infringement, they are to go forward in the accounting and bear the necessary expenses of doing so, among which are the master's fees. This was so held in Bridges v. Sheldon, Dist. Vt. Oct. Term, 1879. Let an order be entered that the defendants pay these fees within 15 days from the entry of the order.
J. C. STEVENSON, now the Stanmore.
(District Court, D. Maryland.
SITIPPING-Loss OF nATIGO OF CA:£TLE-STORM AT SEA-BURDEN OF PnOOFSUITAllLEXESS OF VESSEL.
'Where respondcnts prove that a steam-ship, on which a lot of cattlc were shipped by the libelant, encountered a storm of unusual scvcrity, and show the charactcr of the damage sustained by their vesscl and by other steam-ships carrying cattle which cncoun' cred the same hurricane, the burden is put upon the libelant of proving that thc losses sued for were occasIOned by the want of due care in provid,ng a proper ship, and suitable stalls and other fittings, for carrying the cattle.
Upon the whole tcstimony, considering the contnvances then in use fOr carrying cattlc, and the known risks and uncertainties of the business, and the character of ves,els customarily used, it does not appeal' that the steam· ship in this case would have been considered unsuitable for the business at the time she was so uscd, or that the fittings were improperly constructed, and no damage Clln be recovercd on that account.
DELAY IN CO)[[NG TO PORT FOR CATIGo-DA)UGES.
Where a vesscl is to arrive at a port and rcceive a cargo of cattle hy a certain day spccified, and she does not arrive for several weeks after the appomted time, thc only damages that can be recovered on account of the delay, when the vessci is accepted and the cattle shipped. is such expense as may hav.. been incurred for keeping the cattle during the period of delay, and the additional insurance the shipper may have had to pay by reason of the increased risk caused thereby.
S.\.)fE-D.uUGES A LIEN
'Yhere the cattle were actnally laden on hoard under the contract, and reference being specially made tn it in the lihel, and the ship has obtained the benefit of the contract, it seems that the shipper would have a lien on the vessel for such damages.
Marshall t.f; Hall, for libelants. Brozcn t.f; Brane, for respondent.
MORRIS, J. This libel is filed to recover damages for the loss of a large number of cattle shipped by libelant on the steam-Ship J. C. Stevenson, on November 13, 1879, to be curried to London, which were lost on the voyage, and for damages resulting from the delay of the steam-ship in arriving at the port of Baltimore to enter upon the voyage. The contract for the shipment of the cattle was as follows:
THE J. C. STEVENSON.
September 22, 1879, Mr. Francis Bell, hereinafter called the shipper, hereby agrees to ship in the steam-ship .J. C. Stevenson, to sail from Baltimore for London on the twelfth day of October or thereabonts, seven days' notice having been previously given by the agents of the steam-ship to the shipper, 380 cattle, subject to the following conditions: (1) The steam-Ship is to carry the cattle stowed on her decks; (2) the steamship is to provide stalls or pens for the cattle constructed upon the plan of those hitherto adopted, or such new plan as may be mutually approved; (3) the between-decks are to be satisfactorily ventilated; (4) a supply of fresh, cool water, equal to a maximum of eight gallons per head per diem is to be !'1upplied by the steam-ship; (5) the steam-Ship is to provide free steerage passages to and from London to one attendant upon every 25 cattle, if requiretl, and cabin passages to the foreman in charge; (6) the shipper is to provide feed, and all necessaries and ntensils, such as buckets, pitchforks, ropes, etc.; (7) the ship is to carryall the feed that the animals consume on the passage freight free; (8) the shipper is to rope the animals before or after they are put on board; (9) the freight is payable upon said cattle, for transportation from Baltimore to Deptfortl, at the rate of thrE'e pounds ten shillings per head each, at Baltimore or Deptford, at shipper's option, but is to ue collected upon the number shippetl at Baltimore; (10) the steam-Ship is warrantell uy the shipper free from responsibility for mortality or accident of any kind; antl if any or them die, or are thrown overboartl, or are washed overboard, or are lost in any manner whatsoever, the freight is nevertheless to be paid. If the shipper desires that freight should be paid at Deptford he must, if required. deposit insurance policy with agent of vessel assigned to him, or, if insured in England, assign lien or policy to the amount that .. llJay be incurred."
The bill of lading, dated November 13, lS70, contains all cnstomary exceptions, and states the rate of freight to be £3 lOs., "and all othcr conditions as per contract dated Septembcr 22, 1879." In the margin of the bill of lading is written: "Not responsIble for mortality. nor for any accident of any nature or kind whatever; and if any of them die, or are thrown overboard, or are washed overboard, or are lost in any manner whatsoever, freight is nevertheless to be paid on them on arrival of vessel at London." When the ship arrived in the port of London, after a long and tempestuous voyage, of the 380 head of cattle all had been lost but 21. The respondents having shown that the steam-ship encountered a storm of unusual severity, and having proved the character of the damage sustained by this and by other steam-ships carrying cattle which encountered the same hurricane, have 'lhown enough, in my judgment, to put upon libelant the burden of proving that the losses sued for were occasioned by the want of due care in providing a proper ship, and suitable stalls and other fittings, for carrying the cattle. In judging of what was reasonable in this respect, we are to put ourselves in the situation of these parties who were contracting with respect to carrying cattle across the Atlantic in November, 1879. It was then a new and experimental venture, and the improved appliances now used in the business are greatly the result of the experience then being obtained. The original contract between the agents of the steam-ship and the libelant contained the following provisions with regard to the fittings for the cattle:
"The.steam-s,hip is to provide stalls or pens for the cattle coastructed upon the plan of those hitherto or SLIGh new plan Inty be mutually proved."
It is shown that the stalls on this voyage on which the loss occurred were the same which had been put upon the steam-ship at Montreal and used on the previous voyage. On that voyage she had successfully carried 350 head of cattle and 400 sheep from ]\fontreal to England, not losing a single head of cattle, and but a few of the sheep. Immediately after the voyage to England, on which she carried these cattle and sheep, the steam-ship came to Baltimore, bringing as cargo a small quantity of pig-iron. When the pig-iron was discharged, such of the stalls as had been taken down for that purpose were replaced, and all were 'put in repair by competent carpenters, experienced in putting up stalls for cattle on board ship. These fittings were then inspected and approved by a marine surveyor, who certified, after the cattle were on board, that the loading was completed properly, and the ship in good condition to proceed on her voyage. The stalls were seen by the libelant and his agents before and while the cattle 'were being put on board, and no complaint or suggestion was made with regard to them. ,Vhen the ship arrived at the port of London the libelant paid the freight on all that were shipped, as had been agreed, and no complaint was ever made, or claim for damages, until the filing of this libel, 14: months afterThe respondents, in my judgment, have not only shown that tile stalls and the ventilation were such as might reasonably have been expected to be sufiicient, but have shown that they had been actually tested on the previous voyage and found sufficient. It was urged on behalf of the libelant that the fact that 15 of the cattle between-decks died before there was any rough weather, and while the hatches were open, is conclusive that the ventilation could not have been sufficient. But it is shown that on the previous voyage 200 cattle were carried between-decks and not one died, although the weather experienced on that voyage required the hatches to be closed. In the face of this, it seems to me that it mnst be held that the owners of the steam-ship had e\'ery reason to believe that the ventilation was sufficient; and, indeed, it \vould appear that these 15 .cattle must have died from some other cause than suffocation. As to tbe severity of the weather which the steam-ship encountered, and how long the cattle-stalls endured the violence of the storm before they were destroyed, I think that, probably, the most t.rustworthy testimony, after so long a lapse of time, is to be had from the ship's log. It contains these entries:
Tuesday, Not'ember 18,1879. Towards midnight, fresh gale hlowing. with -heavy s'lualls and rain. Hands employed repairing cattle-stalls. and threw oyerboanl three cattle that dietl in the hold. ends-fresh, increasing gale. Ship rolling heavily, aml ta!dug water all deck.
J. C. STEVENSON.
Wednesday, November 19, A.)1. Increasing gale, with hard rain-squalls; high sea getting up. At 2:30 A. 111., washed several cattle-stalls away on the after-deck. Some cattle rolling about the decks. Hove ship to, and slowed engines. All hands employed securing the loose cattle and repait:ing stalls. At S A. 111., set fore lower top-sail, and kept ship on her course. At 11 A. M., gale veered west with great violence. In top-sail, and brought ship to the wind. Battened all hatches down. Ship laboring heavily, and taking in heavy water fore and aft. Noon, cattle-stalls give way on the after-deck. Cattle all washing and rolling aoout the decks. All hands commenced throwing the cattle overboard. P . .M., blowing a hu:ricane; a high cross-sea running; ship laboring heavily. Started starboard bulwark, with weight of the cattle rolling against it. Cattle washing and rolling about the after-deck; all hands throwing them overboard. 4 P. 111., continues blowing a hurricane. At 8 P. 111., gale moderating; kept ship S. E.; set fore trysail; ship laboring heavily. At 9 P. )1. took off fore hatch for ventilation; found in the between-decks cattle-stalls all down; several dead. Midnight, moderate breeze. Thnrsday, November 20, A. 111. Moderate breeze; ship rolling heavily; a high cross-sea running. At daylight commenced throwing dead cattle overboard. After between-decks, several dead cattle and some stalls broken down. A quantity of water washing about the after between-decks. Noon, fresh increasing gale from southward. P. Moo fresh increasing gale and high cross-sea running; ship laboring heavily, and taking heavy water on deck. All hands employed throwing the dead cattle overboard. At 5 P. violent gale blowing; battened all hatches down fore and aft. Several cattle-stalls on upper deck forward, washed a way; cattle getting adrift, and rolling and washing about the decks. Several washed overboard. Midnight, gale moderating and sea going down. Friday, November 21st. Gale moderating, and high cross-sea running; ship rolling heavily. At daylight, commenced throwing the dead cattle overboard out of the fore and aft between-decks. Five horses and three cattle left alive in the fore between-decks, and all dead in the after between-decks. P. 11., high cross-sea running, and ship rolling heavily. At 6 P. got all dead cattle overboard, and commenced bailing water out of after between-decks. On looking around the ship found the starboard after-boat stove in and rails broken, ventilators washed down and broken. two stanchions started in tile after between-decks. Saturday, November 22d. Moderate breeze and clear weather. At daylight commenced taking out the dead cattle on the deck forward. Carpenter repairing stalls for the 35 cattle left.
These were the entries in the log, and the testimony of such of the officers of the ship as eould be found after the libel was filed, show the storm to have been of the severest character. It appears that the gale began at midnight on Tuesday, with the ship taking large quantities of water on deck, and continued with increasing violence, the stalls on the after-deck giving way about noon on ·Wednesday. This destroyed not only the cattle on the after-deck, but broke down the ventilators so that the cattle below, the hatches haying to be battened down, were without any ventilation. The gale continued throughout "Wednesday, doing more dam:lge to the ship and to the cattle fittings on deck, and made it necessary to keep the batches down until 9 o'clock in the eYening.On Thursday morning the gale had moderatec1,but-incrc'ased again in. the afternoon,when
the stalls on the forward deck were broken down and the cattle were washed about the deck, and some of them carried overboard. The hatches were again battened down, and so continued until midnight of Thursday. I think the proof is quite convincing that experience has shown that no cattle fittings of a temporary nature, and without a permanent shelter deck over them, can be construded which can be depended on to withstand a continuous gale of this character. It is shown that the Rathmore, a steam-ship which sailed from Baltimore on November 18th with cattle, and which on the 20th encountered this same gale, although she was also a steam-ship which had previously carried cattle successfully, and had stalls constructed upon an improved plan, had nearly all her cattle-stalls forward of the bridge carried away, and suffered such damage that she put back to Baltimore, with a loss of 64 cattle and with others badly injured. The official survey of the Rathmore sho'l\s that the cattle pens were broken and mashed up, both forward and aft, on the main deck, and that between-decks some were broken down and more or less damaged by the heavy rolling and lurching of the ship. It is contended that the fact that the stalls bet'l\een-decks on the J. C. Stevenson did not stand, shows that they must have been improperly constructed. But the fact that many of the beasts had died of suffocation, and that a large weight of water had got down into the bet'l\een-decks through the broken ventilators, and was washing the carcasses about as the vessel rolled, is, in my judgment, sufficient to account for the destruction of the stalls. Sufficient appears to make it evident that, except on a "essel specially constructed for the protection of cattle, their safe carriage across the Atlantic is much a question of good or bad weather on the voyage, and that, with bad weather and heavy seas s'l\eeping the decks, temporary fittings will give way, and the cattle be lost, and if the cattle are between-decks the ventilatOl"8 will be broken down and "ater get below, and their safety thus imperiled. Upon the whole testimony, 1 do not find that, considering the contrivances then in use for carrying cattle, and the known risks and uncertainties of the business, and the character of the vessels customarily 1,lsed, that this steam-ship would then have been considered unsuitable for the business, or that the fittings were improperly constructed. I think tbe steam-ship and the fittings "ere as good as were ordinarily provided and used at that time. It remains to consider wbat "ere the liabilities incurred by the steamer by her delay in arriving at Baltimore to perform the contract dated September 22, IS79, in "hich it is provided that "Mr. Francis Bell agrees to ship in the steam-ship J. C. Stevenson, to sail from Baltimore for London on the twelfth day of October, or thereabouts, (seven days' notice having been previously given by the agents of the steam-ship to the shipper,) 380 cattle, subject to the following conditions," etc. The steamer did not arrive in the port of Baltimore until November 4th, and did not take the cattle on board until No-
THE MOI:",ING MAIL.
vember 13th, and sailed on the 14th. This was a delay of about one month. Damages of various kinds are claimed in the libel for this delay; but, in my opinion, the damages on this ground cannot be extended beyond such as had accrued up to the time the cattle were put on board. The libelant, when the vessel did not arrive, had his right of action for breach of the contract, and could have recovered the expenses of keeping the cattle and any additional freight he might have had to pay if he sent them forward by another ship, and tlle additional insurance premium he might have had to pay if the premium was increased by the lateness of the season. As the ship, when she did arrive, was accepted by him, and did in part perform the contract by their taking the cattle with his consent, all he can recover is the cost of keeping the cattle during the delay, and the increased rate of insurance premium actually paid by him. It is a qnestion not free from doubt, perhaps, whether for these items of damage the ant has a lien on the ship; but as the cattle were actually laden on board under the contract, reference being specially made to it in the bill of hding, and as the ship oLtained the benefit of the contract it seems to me within the spirit of the decisions that she should be held for the delay in receiving them on board. Oakes v. Richardson, 2 Low. 173. I will sign a decree in fa VOl' of libelant, with a reference, if required, to ascertain the expenses of keeping the cattle for, say, one month, and the extra premium actually paid by libelant in excess of what he would have had to pay for the same insurance if the ship had sailed on the fourteenth of October.
(District Court, D. Kentucky.
STRIKING BRIDGE PlERS.
"UXAVOIDATILE DANGERS OF NAVIGATION
The exception, "unavoidable dangers of navigation," as used in a bill of lading for transportation of goods Ly river, includes unavoidaLle dangers of navigation which may arise from Lridge.s across the rivers to be navigated. Under the circumstances of this case, the goods Leinlr lost by the boat striking a bridge pier, and the court tindlDg that the boat was properly navigated, held, that tlie loss was within the exception.
DETEXTTON OF GOODS UXTTL GEXERAL
,rhere there was a privilege of reshipping, and the goods were damaged while in the possession of one of the connecting lines, making a general lwerage necessary, such connecting carrier can hold the goods until the avemgo contriLution is paid or secured.
1 Reported by 1. C. Harper, Esq., of the ClnclnnatJ DU.
CAUSE OF Loss. Whcre a deter,tion takcs place by rcason of the adjust.ment of such general avemge contrilJUtion, one boat in the connecting line leaving port in thc mean time, and tlrc goods go forward on the succecding boat. of the Iinc and are lost by the boat striking a bridge pier, held, that such detcntion was too remote, and not. the proximate cause of the loss of the goods.
In Admiralty. Collins x Beach, for libelant. Lincoln x Stephens and Goodloe & Roberts, for respondent. BARR, J. The libelant, Blatterman, sues to recover the value of goods and household furniture shipped at Maysville, Kentucky, to Kansas City, Missouri, by the Morning Mail, and which were sunk on the Joe Kinney in the Missouri river, at the Glasgow bridge, April 12, 1882. The bill of lading, which is dated March 16, 1882, agreed to deliver in good order, without delay, at Kansas City, "unavoidable dangers of navigation and fire only excepted." The Morning Mail was a packet running between Maysville and Cincinnati, and both parties understood the goods were to be reshipped at Cincinnati and St. Louis. The goods were reshipped at Cincinnati for St. Louis on the Montana, and passing down the Ohio river the Montana met with an accident at the mouth of Louisville canal, which detained her and made the cargo subject to general average. The Montana arrived at St. Louis, noon, March 25, 1882, and her cargo was there unloaded and the general average ascertained and apportioned. The libelant's goods remained in St. Louis until the eighth of April, when they were reshipped on the Joe Kinney. The Fanny Lewis went out on the first of April, but the libelant's goods were not sent on that boat, and were held subject to the claim for general average. The Kinney was the next boat of the packet line, and the average having been, as it was supposed, adjusted, the goods were shipped on her and lost, with the boat, at the bridge at Glasgow. The libelant's claim based upon this delay I do not think is good. It is agreed that the goods "'ere properly subjected to the payment of a general average claim, and the proof shows that five days were a reasonable time within which to assort and determine the amounts to be paid by the owners of the cargo. The shipper was not bound to send the goods on to Kansas City and there hold them until the average claim was paid, but, I think, might hold them at St. Louis, which was the termination of the )lontana's voyage. Again, I think this claim cannot be sustained because the sinking of the Kinney was in no way connected ,,,ith the detention of the goods, and the loss of the goods was not directly caused by their detention. This loss is too remote and indirect to be compensated for as the resultof the detention. . . The defendant, as common carrier, is liable for the loss occasioned by the sinking of the Kinney, as she gan a through bill of lading, unless the loss was caused by the "unayoidaLle dangers' of llavigaThis means the dangers of navi::;ation as they existel tlJ8
time, and includes, I think, unavoidable dangers of navigation which may arise from bridges across the rivers to be navigated. The libel alleges that the Morning Mail had the right, by agreement, to reship said goods, etc., at Cincinnati and at St. Louis, which was done at St. Louis by shipping on the Joe Kinney; but there is no allegation that the Kinney was negligently or unskillfully navigated. The allegation is that the Kinney "was old and unseaworthy in this: that her tiller-rope was old and worn, and was carelessly, negligently, and improperly allowed so +,0 remain; insomuch that, without unusual external cause co-operating, it was broken by the ordinary turning of the pilot-wheel in guiding said steamer under the bridge at Glasgow, whereby said steamer became unmanageable, and, striking the pier of the bridge, sank, and thus caused the total loss of said merchandise." The libelant has taken no evidence upon this allegation resting upon the presumption which he is insisting arises from the fact that the tiller-rope did in fact break, and the boat and cargo were lost. The respondent has taken the depositions of all of the officers on the Kinney except the captain, who is now living in the city of Mexico, and several witnesses not on the boat, who prove the repairs done the Kinney just before she started on this trip. This testimony sholls that the Kinney had been on the docks some two weeks, and had been overhauled and repainted, and 'was generally in excellent condition. The tiller-rope ,ras handled and examined. It \Vas taken out, and greased and oiled, and then replaced, and no defect or ,veakness vms discovered in it. It was not a new tiller-rope, nor is it sho\Vn how long it had been in service. There is nothing in the record tending to show that it \vas defective, either in size or strength, except the fact that it broke when put to the test under the bridge. This was a severe test, but not an extraordinary one. The pilot testifies that his wheel felt, at the time of the parting of the tiller-rope, as if the rudder had struck drift in the river. There is also proof that the river was rising rapidly and much drift in it, and that the piers bad caused cross currents in the river. Several of the officers of the boat testify that the tiller-rope would have been of no use at the time of the accident, as the boat \Vas backing on hath wheels, and that that the only thing which could be done, and hence the parting of the tiller-rope made no difference in the result. If these opinions are correct, the sinking of the boat and cargo haye been unaYoidable, eyen if the tiller-rope had not parted. There are no opposing opinions to tlJ.is yiew taken by the libelant, but I must think these opinions are extreme ones, and not correct to the extent stated, since the rudder must haye been of some . use in getting to slJ.ore after the boat struck, if of no use in a voiding the pier which was struck. It would not, howeYer, do for me to ignore all of the eyidence inthat caution and carE troduced by the defendant \rhich tends to
were taken in overhauling and repairing this boat, and that the tillerrope was taken out, examined, and oiled, without the discovery of any defect, and make the Morning Mail liable for value of these goods, etc., because, and only because, the tiller-rope in fact broke, especially as the evidence shows this is not an unuBual occurrence in the Missouri river. The evidence, I think, proves that the sinking of the Kinney was caused by the "unavoidable dangers of navigation," witpio.the meaning of the bill of lading. The libel will be dismissed.
C. & C. l1nooKB.
(District GOltrt, D. New Jersey. July 26, 1883.)
SALVAGE SERVICE-TOWAGE-UNCONSCIONAllI,E CONTRACT.
A schooner of 13" tons, worth about $2,OUO, with a cargo of the value of $400 or $500, was leaking badly on the higll seas from the efIect of a collision with a vessel that had afterwards abandoned her, but was not derelict. Her crew was tired out hy p"mping and long watehin"s; she was making very little progress, and With a change of wind was gradually working seaward, when a tug calUC to hcr and towed hcr up the bay to .lersey City, where she was left, at the reqnest of her master, on the flats, consuming in so doing about four bours. lleld, that this was a case of salvagc service of low grade, involving no circnmstances which would justify the court in making lar;l:c compcnsation; that a contract to pay $I,OUO for such servicc was unreasonable and would not be enforced; but that 82:;0 and the costs of the proceeding would be allowed for the towage and sah'uge service. Contnlcts made for salvage service and salvage compensation will be enforced when the salvor has not taken advantage of his power to make an unconscionable barg'ain; but the courts will not tolerate thc doctrine that a salvor can take advantage of his sitnation and avail himself of the calamities of others to drivc a bargain; nor will they pcrmit the performance of a public duty to be tumed into a trallic of protit.
In Admiralty. Libel ill rem. Samuel H. Valentine, for libelants. Bebee J; Wilco.r, for claimants. J. This is a libel in rem, and the claim is for $1,025 for a towing and salvage service rendered by the libelants. The libel sets forth that on the twenty-ninth of November, 1877, the schooner of the respondents was on the high seas, east of the Highlands, in a sinking condition, and with a flag of distress flying at her mast-head; that libelants' tug, seeing her in tbis condition, steamed along-side, and the master of the schooner reqnested the master of the tug to make fast and tow her into the port of Xew York; that the request was complied with, and the'llug towed the schooner, with a hawser, up the bay to Jersey City, and, at the request of the master of the