THE HETTIE ELLIS.
ing her to a convenient wharf, that anything like excessive campen. sation should be allowed. Let there be a decree in favor of the libelants against the Manhat. tan No. 12 and her cargo for the sum of $200 and costs, and a decree in favor of the libelants against the Two Brothers and her cargo for $25 and costs. The owners, masters, and crew are all represented by one proctor, and I think that no apportionment of these sums need be made, be. cause they will probably easily agree. If no agreement is reaclled, application for an apportionment may be made hereafter.
THE HETTIE ELLIS}
(Diltrict Court. E. D. Louisiana. March. 1884.)
With reference to cargo stowed on deck, the ship is not liable as a common carrier, but its liability in this case is limited to ordinary care. i. e., sach degree of care as a prudent owner would es:ercise. If the loss was the result of the negligence, want of skill and care of the master. the of the vessel is established. Lawrence v. Minturn, 17 How. 111, followed.
In Admiralty. E. H. Farrar, for libelants. James R. Beckwith, for claimants. BILLINGS, J. This is a suit to recover the value of lumber shipped from Tensas river or Bay Minette, Mississippi, to this port. The lumber was, with the knowledge of the libelants, who were owners. stowed on deck. There was a storm, and the preponderance of evidence establishes that the lumber was jettisoned. There was no bill of lading or other contract in writing. The testimony as to usage, with reference to the liability, fails to edtablish any custon which could vary the liability which the law imposes upon the vessel as to property thus stowed. Wlth reference to cargo stowed on the deck the ship is not liable as a common carrier, but its liability in this case is limited to ordinary care; i. e., such decree of care as a prudent owner would exercise. Lawrence v. Minturn, 17 How. HI. The case shows the jettison occurred to save the vessel aud the mariners from destruction, and leaves the sole question of fact to be decided: Did the unskillfulness of the master expose the vessel and cargo to the danger or peril from which the loss arose? The allegation in the libel is that "the 108s was the result of the negligence, want of skill and care of the master." If this allegation is maintained, the liability of the vessel is established. Lawrence v. Minturn, 8upra.
by Joseph P. Hornor, Esq., of the New Orleans bar.
In Shackelford v. Wilcox, 9 La. 33, 39, the court says: "In relation to underwriters without special agreement, and in relation to other owners of the cargo under deck, in case of jettison, it is well settled that goods on de0k form no part of the cargo. · · · As between the owner and the carrier, it is otherwise, and the carrier is bound by the same obligation as for the rest of the cargo, save only the damage which may result from its exposed situation." In New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 883, the court say "the vessel was not exempt from ordinary care in the management of the vessel by the master and hands." These last two cases establish the law to be that when the cargo is stored ou the deck, the burden of proof is on the shipper. Does, then, the evidence establish want of ordinary skill in the management of the vessel? The facts, as detailed by the master and the witness, John Brown, are that the schooner came through Grant's Pass E2aturday morning. Towards night a heavy fog came on, with ino\'easing wind. At Round island they took in the mainsail and sailed on before and after dark, the master being uncertain of his whereabouts, or even his direction or course. In the night the vessel went upon Dog keys, where the lumber was jettisoned. It was easy for the schooner to have anchored in olosed waters and to have waited until the fog broke, and not to have sailed on without knowledge of locality, and not have attempted to navigate the vessel square bowed in au open sound full of shoals. But for this want of skill or oare the 108s would not have occurred. Let there be judgment for the libelant.
(Circuit Oourt, D. Rhode Island.
LrnEL-NEGLJGENCE-PBEPONDERANCE OF TESTIMONY.
When a libelant makes ont a case of negligence by a clear preponderance of testimony, a decree will he entered in his favor.
In Admiralty. Miner a: Roelker, for libelants. Thu1'sfon,. Ripley J; 00., for claimant. COLT, J. On October 15, 1882, the steam.tug Narragansett, having the barges Manhattan and Union in tow, when near and to the westward of Point Judith, deeming it imprudent to round the point owing to the force of the wind, determined to turn back and seek the nearest harbor. The turn was made inshore. The tug turned about, and waf:! heading to the westward, but the barge Manhattan, when