Undoubtedly, in a criminal prosecution, this rule would not be applied; but, considering the scope and intent of the statute solelY'as it relates to forfeitures, we think the information was supported by proof of the unlawful use and of the intent to defraud, whether such use and intent were by the claimant personally, or by some' person acting under his authority and control. This conclusion seems to us to be supported by the reasoning of the court in Dobbins' Dist·illery v. U. S., 96 U. S. 395. No error. Judgment of district court affirmed.
(DiBtrict (Jourt, D. Mm·yland. March 4, 1885.)
ABOUT READY TO SAIL
Merchants in Baltimore, desiring a steamer for an August shipment of grain, signed a charter-party, in which it was stipulated that the steamer was" now about ready to 8all from the United Kingdom, in buUast. " The steamer at the date of the charIer-party, Friday, August 8th, was in the dry-dock at Shields for repairs. She was let out of the dock the next day, lind commenced taking in ballast, coal, and stores' for the voyage. She completed these preparations on the folloWing Tuesday, when it was discovered that some of her valves had been misplaced while in the dock. 'This delayer!ller another day. and she saIled on Wednesday, 13th. She arrived in Baltimore one day too late for an August shipment of graio, and the charterers refused to load her. Held, that the steamer was not at the date of the charter-party about ready to sail in ballast, aod that the charterers had a right to refuse her.
In Admiralty. John H. Thomas and G. Le·ipe'l' Thomas, for libelants. Brown ct Brune, for respondents. MORRIS, J. 'l'his is a libel against the respondents for refusal to load the British steam-ship Orsino, which the libelants, through their agents, had chartered to the respondents in the city of Baltimore on the eighth day of August, 1884. The charter-party is the usual steam grain charter, and describes the Orsino as "now about ready to sail from the United Kingdom, in ballast," and agrees that the steamer, being tight, staunch, strong, and in every way fitted for the voyage, shall, with all convenient speed, sail and proceed to Baltimore. It was provided that should the steamer not be ready for cargo at her loading port on or before the thirty-first of Augnst, the charterers should have the option of canceling; also that they should have the option of loading thesteamel' at Newport News, order to be gh;en at a port of call.
The circumstances attending the negotiation for the charter of the steamer were as follows: Mr. Crawford, a ship-broker of Baltimore, had been authorized by Messrs. Austin, Baldwin & Co., ship-brokers of New York, and agents for Messrs. Hugh Roberts & Son, of Newcastle-on-Tyne, the owners of the Orsino, to procure a charter for that steamer. Mr. Crawford's final instructions were contained in a telegram from New York, dated August 8th, as follows:
"W'e repeat offer of Orsino at four, four and a half, cancellation if not ready August 31st. She will probably sail Saturday next."
August 8th was Friday, so that Saturday meant the next day. About noon of August 8th, Crawford approached two of the partners of the firm of Gill & Fisher, who were at the produce exchange, and, handing them this telegram, said, "Here is an A ugust boat for you." Mr. Crawford also stated that the steamer was about ready to sail in ballast. Messrs. Gill & Fisher, after consultation, agreed to take the steamer, and said to Crawford, "Go telegraph at once to Austin, Baldwin & Co., New York, so that the steamer can get right off." Crawford replied, "She is not in the port of London," (which had been mentioned as her borne port;) and the reply was, "Wherever she is, hurry her up." On Saturday, the 9th, a charter-party having been prepared and forwarded from New York by Austin, Baldwin & Co., it was presented by Crawford to Gill & Fisher for signature. It contained the words "the steamer is now in the United Kingdom;" but Gill & Fisher refused to sign it, as it did not sufficiently express the position in which the steamer. had been represented, and the words, "now about ready to sail from the United Kingdom in ballast," were accepted as satisfactory. The charter-party, so worded, and dated" Baltimore, August 8,1884," was signed by Gill & Fisher about 4 o'clock P. M. on Saturday, the 9th, and was forwarded to New York, and was there signed by Austin, Baldwin & Co., on behalf of the owners. In the negotiations nothing had been said about the charterers having the option to load the steamer at Newport News upon giving orders at a port of call. This clause was in the charter-party prepared in New York and tendered to Gill & Fisher, and, as they accepted that clause, it became necessary to name the port of call, and at the signing of the charter-party they named Hampton Roads. It usually takes an hour to transmit a cable dispatch from Baltimore to an English port, and the difference in longitude is about five hours. The owners could not, therefore, have been advised of the port of call until after business hours on Saturday. Just before the charter-party was signed in Baltimore by Gill & Fisher, on the 9th, Crawford received from Austin, Baldwin & Co. a telegram in cipher, of which a translation is as follows: "NEW YORK, August 9, 1884. Orsino, where will captain ca71fol' orders'
She will not sail before Tuesday. North Cambria sailing to-day for Break. water. Can you induce shipper to allow I>ubstitute Cambria for Orsino, as it will give us chance on another
Crawford did offer the North Cambria to Gill & Fisher as a substitute for the Orsino, stating that the North Cambria had sailed that day for the Delaware breakwater, hut Gill & Fisher declined her as being too large for their purpose. Mr. Crawford testifies that he thinks he must have communicated at the same time the information contail1ed in tile telegram that the Orsino would not sail until Tuesday; but all of the partners of Gill & Fisher to whom the communi. cation could have beep made deny tbat the;y ever heard of it, and declare that they would not have signed the charter-party if they had be that they were not so inbeen so informed. I find the fact formed. The Orsino did actually sail from the port of Shields on the morning of Wednesday, the 13th, and, having prosecuted the voyage with speed, she arrived at Hampton Roads at 8: 30 A. M. on August 29th. Within an hour or two after the ship was at Hampton Roads, the charterers were notified that the Orsino had arrived there and was ready for cargo, and was awaiting their orders where to proceed to load. Gill & Fisher on the same day replied that they declined to accept the steamer, as she had failed to fulfill the charter; that they had no orders to give, and held themselves released, and refused to load her. They afterwards more definitely stated the particular in which she had failed to fulfill the Charter-party was that she was not at its date "about ready to sail in· ballast," and did not sail in fact until the 13th. . The facts with regard to the situation and preparations for sailing which delayed the sailing of the Orsirro were as follows: Prior to the sixth of August, the Orsino had been for 10 weeks lying in the port of Shields, about 12 miles below NewcaRtle-on-Tyne, moored in the river. On the eighth of August, wllen Gill & Fishel' agreed to take the steamer, she was in the dry-dock at Shields, having gone into the dock on the evening of Wednesday, the 6th, to have her bottom scraped and painted, her sea-valves overhauled, and some rivets pnt into her frame and different parts of the vessel, as required by on Saturday, the Lloyd's surveyors. She came out of the 9th, in the morning, and until Tuesday (12th) was lying at Tyne dock, taking in sand ballast, bunker coal, and stores for the voyage. Sbe began to load the sand ballast at 4 P. M. on Saturday, the 9th, and stopped at 8 P. M. She began again at 7 A. M. on Monday, the 11th, and finished at 7 P. M. She began to take in coal at midnight of Sunday, the 10th, and finished coaling at noon on Tuesday, (12th.) She got up steam as soon as she finished coaling, but then it was found that the sea-valves to the water-ballast tanks had been reversed by the machinists who had overhauled them in the dry-dock, and divers had to be sent down to plug the openings in the ship's bottom so that the sea-valves could be properly placed. This took about 14 hours, and the steamer sailed on Wednesday, the 13th,. at about 6 o'clock in the morning.
Gill & Fisher, after signing the charter-party, several times inquired of Crawford to know on what day the steamer had sailed, but he could not inform them. Late in the month of August they got him to telegraph, and then, learning that the steamer had sailed on the 13th, came to the conclusion that she would not arrive in time for an August shipment, and made other arrangements for the grain which they 4ad intended to ship by her. On the eighth of Augnst the rates of vessels for August shipments were higher than for vessels for September shipments, and the rate agreed to be paid for the Orsino was the August rate. On September 1st the best rate which could be obtained for the Orsino was Is. lO!d. per quarter less than the charter rate, making the loss in freight on the cargo which the ship actnally carried out on a recharter £1,067 4s. 4d. The master, before arriving at Hampton Roads, had thrown overboard all the sand ballast, and had put up the shifting-boards, and at the time the vessel anchored at Hampton Roads she was ready for a grain cargo. It was designed by the captain to use feeders, and they were not quite ready, but could have been made ready in about five hours. But these were not necessary to make the steamer ready for cargo. Feeders are wooden pipes passing through the hatches to the holds of the ship. They are with grain, and as fast as the settling of the grain in the holds leaves any vacancy the grain from the feeders runs in and fills up the vacant space, keeping the hold full and solid, and preventing shifting. It is optional, however, with the owners of the vessel whether feeders shall be used, or whether, in lieu thereof, a sufficient quantity of grain shall be put in bags and stowed on the top of the bulk grain. The feeders are less expensive to the ship, and are therefore preferred by the ship-owners, but the marine insurance inspectors do not require feeders if an equivalent amount of stowing in bags is substituted. I therefore find, notwithstanding the feeders were not completed, that, as the vessel could have been loaded without them, she was, when tendered. ready for cargo. I find that if Gill & Fisher had given or-ders on the morning of the 29th, when they received notice that the Orsino was at Fortress Monroe, and was ready for cargo, she could have proceeded either to Baltimore or to Newport News in time to have been tendered on the thirtieth of August, but I find that she could not have reached Baltimore in time to have been loaded with grain before the close of the 30th, (Saturday,) which would have been necessary in order to make her cargo an August shipment. The representation in the charter-party, "now about ready tQ sail in ballast," would seem necessarily to imply that, at the date of the eharter-party, the steamer had begun preparations for sailing. In fact, on August 8th, when the contract was made, the steamer was in the dry-dock. She had then, it is true, nearly completed the repairs for which she was put there, and she did come out of the dry-dock on the next day. But it was then that she began her preparations to
sail in ballast. It appears to me, therefore, that it was not· true on August 8th that she was then about ready to sail in ballast. The difference in time between the earliest moment she could have sailed and her actual sailing was not great. The cable dispatch of the afternoon of Saturday, August 9th, naming the port of call, allowing one hour for transmission and five hours for difference of longitude, could not have been received by the managing owners during the business hours of Saturday. But if the steamer had been on Friday, the 8th, "about ready to sail," it was reasonable to expect that she would sail on Monday. She did not sail until Wednesday. This difference of two days made the difference in the port of Baltimore of a September instead of an August vessel. Sailing on the 13th, she could not, being an ordinary freight steamer, be expected to l:trrive at Fortress Monroe earlier than the 29th, and, arriving at Fortress Monroe on the 29th, she could not be in Baltimore until the 30th, and the 30th being Saturday, and Sunday (31st) not a workingday, she could not complete her loading in August. It was a delay which made a most essential difference to the charterers, and was II> delay directly attributable to her not having begun her preparations for sailing until after the date of the charter-party. It was known to the owners' agent, when the contract was made, that what the charterers wanted was an August steamer, and the charterers agreed to pay the increased freight demanded for one. The stipulation as to the steamer's condition with regard to her readiness to sail was therefore a substantive part of the contract; and as in my view of the meaning of the language used that stipulation was broken, it follows that the respondents had a right to refuse to load the steamer, and that the libel must be dismissed.
TUE ORANMORE. :MORI'l.IS 'D. THE ORANMORE.
(Di8trict Oourt, D. Maryland.
July 21, 1885.)
INSUFFICTENT FITTINGS OF CATTLE-SHIP-AGREEMENT 'fO BE GOVERNED BY ENGLISH LAW-ExCEPTTONS IN BILL OF LADING.
The libelant, a resident of Chicago, made with the agents of a line of British steamers a contract to earry cattle from Baltimore to Liverpool. By a clause of the eon tract it was agreed that any questions arising under the contract or the bill of lading against the steamer, or her owners, should be determined by English law in England. Cattle shipped under the contract received injuries by reason of the insufficient construction of stalls pl'ovitled by the ship. The contract having been made in the United States with a British corporatiOn, owner of a British ship, for the carriage of cattle to Englaud, and the parties to the contract having expressly declared their intention that the contract and bill of lading should be governed by the law of England, the place of the performance of the contract of carriage, held, that the English law must 'govern
as to its validity, obligation, and interpretation. Held, also, that the exceptions contained in the bill of lading, stipulating that the shipper approved of the cattle fittings, and that the steamer should not be held responsible for any injury to the catt.le occasioned by the wrongful acts, default, negligence, or error in judgment of the owner, pilot, master, officers, crew, stevedores, or other persons in the service of the ship, were sufficient, under the rulings of the English courts, to exempt the ship from liability for the injuries complained of.
In Admiralty. Sebastian Brown and John O. Richberg, for libelant. Brown ft Brune, for respondent. MORRIS, J. This libel is brought to recover for 67 head of cattle which died and were thrown overboard, and for the depreciation in the value of others, during a voyage on which they were being carried by the British steam-ship Oranmore from Baltimore to Liverpool in January, .1885. The plaintiff, who is a citizen of the United States, residing in Chicago, shipped on the steamer 320 head of cattle, to be carried on the upper between-decks, and received therefor, through his agent in Baltimore, the bill of lading, dated January 10, 1885, given in evidence. The bill of lading recites that. the shipment is made under and subject to the conditions of a "live-stock freight contract," dated at Baltimore, November 19, 1884, signed by the libelant for his father, by which the father had agreed, upon the terms therein expressed, to ship as many cattle as could be carried on the upper between-decks of five of the steamers of the Johnston line plying between Baltimore and Liverpool, of which the Oranmore was one, for two consecutive voyages of each of the five steamers, commencing with the voyage of the Oranmore now in question. The stipulations of this "live-stock freight contract" are much thos6 usually found in similar contracts for carrying cattle across the Atlantic, except the sixteenth clause, which I .have not met with before, and which is as follows: "16. Any questions arising under this contract or the bill of lading against
the steamer or her owners shall be determined by English law in England."
The libel alleges that the loss occurred by reason of the insufficient fittings of the stalls which the steamer contracted to provide for the cattle. The defense is that the fittings were proper and sufficient, and that the cattle were injured and lost by the negligence of the cattlemen sent by the shipper to feed and care for them on the voyage, and by the insufficient amount of bedding put under them by the cattlemen, and by the weakness of the head-ropes furnished by the libelant. The claimant of the steamer, under the sixteenth clause of the contract, denies the jurisdiction of this court, and also contends that if the court takes jurisdiction the exceptions contained in the bill of lading are to be interpreted according to English law, and that by the English courts these exceptions would be held to relieve the ship from liability, even though the losses happened by reason of the insufficiency of the cattle fittings.
I shall first consider the issue of fact as to whether the loss occurred by reason of defect in the construction of the cattle stalls. It must be conceded, although rough w.eather was experienced on the voyage, commencing soon after leaving the capes, and that the ship rolled very considerably from a high sea abeam, that this was not unusual January weather, and that the loss is attributable, not to any peril of the sea, but either to the insufficiency of the fittings of the cattle stalls, as contended by the libelant, or, as contended by the claimant of the ship, to the incompetency of the cattle-men, the want of propel' head-ropes, and the insufficiency of bedding. The Ora-amore is one of six British steamers which constItute what is known as the "Johnston Line," plying regularly between Liverpool and Baltimore, and which specially solicit and are intended for the carriage of live cattle across the Atlantic at all seasons of the year. They have, from time to time, improved the special fittings and facilities for that business, until what was some few years ago considered an extra-hazardous undertaking, has become reasonably certain and safe. The voyage of the Oranmore on which the cattle sued for were lost was the only voyage made by any steamer of the line for a long time on which all the cattle shipped, with the exception of one or two beasts, had not been carried safely at all seasons of the year. '1'he stalls on the between-decks on the Oranmore for the voyage in question were fitted up differently from any previous voyage, and were altered again before she attempted another. Prior to this voyage the stalls on the between-decks had been put up by erecting stanchions five feet apart, resting on and affixed to a false floor, laid on the iron deck, and at the top shored by braces stretching to the sides of the ship, and to other permanent objects against which they could be braced. While in the port of Baltimore, preparing for this voyage, the cattle fittings on the between-decks previously used having been all taken out on the voyage just made, she having carried no cattle on that voyage, it was determined by the captain and agents in Baltimore, in putting in new stalls, to fasten the stanchions by a new system which had peen tried, in some of its features, on other ships of the line and had been found to work well. This was to have holes bored in the iron beams, supporting the deck overhead, and to clamp the stanchions to the beam by an iron clamp and screws, so as to bind the upper end of the stanchion firmly to the beam; the foot of the stanchion to be shored and braced as before. 'rhe only difference between this system as applied to the Oranmore, and the same system of clamping to the overbead beams which had been applied on some of the other ships, was that on the Oranmore the stanchions were clamped to every other beam instead of to every beam, and this brought them eight feet apart from center to center. As they had been fastened previously without the iron clamping, they had been five feee apart. Head-boards were used of the salUe thickness as before; that is to say, about two inches thick.
The con tention of the libelant is that as the direct strain of the weight of the cattle when pitching and slipping in rough weather is against the head-board to which they are tied, and by which they sustain themselves, that although the tops of the stanchions were more securely fastened by being clamped to the iron beams overhead, the additional length of three feet between them, with a head-board of no greater thickness than had been sufficient when the stanchions were only five feet apart, produced such a strain that the two-inch headboards were not strong enough, and broke in many places, letting the cattle get out of the stalls and fall over each other, and become wounded and helpless. The testimony of the cattle-men is directly and strongly in support of this contention, and goes to show that the great atrain and weight of the cattle on each eight-foot head-board caused many of these boards to give way, and also caused the shores at the foot of many of the stanchions to give way, and the stanchions to yield at the foot, and to sway from side to side, although the top remained fast. They also testify that this yielding of the head·boards let the weight of the cattle, in their efforts to keep up, come entirely against the cross cleats nailed to the floor to assist them to keep their footing, and that the cleats in many instances yielded to the weight and came loose, and left the beasts without means of maintaining their footing. Patient consideration of the testimony leads me to the conclusion that the facts relied on by libelant are established by a preponderance of evidence and probability. The Oranmore appears to have been the only ship of this line on which it was attempted, with beams so far apart, to risk putting the wooden stanchions to every other beam, using a head-board only two inches thick. It is true that in the forward part of the ship there were some iron stanchions 10 feet apart, but with these the head.boards used were three inches thick,-in fact, what are called "joists." Whether the owners intended to leave the fittings on this ship affixed to every other beam, or whether they intended as soon as they could to increase the number of stanchions, and were only prevented from doing so preparatory to the voyage in question by the shortness of the time and the haste to get the vessel off, is a matter which it is not now very easy to determine; the fact is, that immediately after this voyage, and before she made another with cattle, the stanchions were put to every beam, so that they were only four feet apart. The weight of the testimony leads to the conclusion that placing the stanchions so far apart without increasing the strength of the headboards was an experiment which no previous experience had justified, and which was made at the risk of the shipper of the cattle during one of the worst winter months, and that it was a negligence or error of judgment for which the ship should be held responsible, unless the shipper has, by the contract contained in the bill of lading, agreed to release the ship.
hereinafter and before mentioned, are to be delivered from the steamer's deck, where the steamer's responsibility shall cease, at the port of Liverpool or at Birckenhead, unto Jas. Nelson & Sons, or to his or their assigns. Freight payable by consignees at the rate of sixty shillings Br. stg. per head, general average according to York and Antwerp rules."
The bill of lading, among a great many other exceptions and stipulations, oontains the following, which appear applicable to the loss sued for in this case: "* * '" The said animals, sUbject to the stipulations and exceptions
transit, of whatsoever nature 'or kind, and whether any of the perils, causes, or things above mentioned, or the loss 01' injury arising the1'ef,'om, be occaJioned by the wrongful act, default, negligence. 01' error in judgment of the owners, pilot, master, office1's, crews, sttvedores, or other persons whomsoever. in the service of the ship, or for whose acts the ship-owner would otherwise be liable; or by unseaworthiness of the ship at the commencement of the voyage, (provided all reasonable means have been taken to provide against such unseaworthiness,) or otherwise, howsoever excepted. "The shipper provides fodder and attendance for the live-stock, and takes all responsibility in their shipping, carriage, an 1 discharge, and for the accidents, damage, and mortality that may happen to them, from whatever cause arising, in loading, discharging, and during the voyage. '" * '" "The steamer provides tittings as customary upon steamers of this line, and also provides a condenser for distilling water; but the steamer is not to be held responsible for any defect or insufficiency in said fittings, or in the condenser, or any of its appurtenances, or in the ventHation of the ship, the same being hereby apProved of by the shippel'; nor for any claim notice of which is not given before the delivery of the live-stock by the steamer."
The following are the exoeptions and stipulations above referred to: "* * * or any other perils of the sea, rivers, navigation, or of land
From the above quotations from the bill of lading (which was similar to those constantly before used by the agents of this line of steamers in dealing with this libelant and his father) it appears that the ship-owners have contracted for exemption from the negligence and errors of their employes in putting up the cattle fittings, and have exacted the shipper's approval of them as a condition of issuing the bill of lading. The embarking of the cattle at Baltimore was attended to by an agent of the libelant, who had for a long time frequently attended to this business for libelant and his father. There was nothing about the appearance of the stall fittings to attract his special attention, and as there was no insurance effected on this shipment, it became no one's special business to critically examine them on behalf of the shipper. It is conceded that the exemptions of the bill of lading, so far as they are properly applicable to the loss sllstained, are, by the English law relating to common. carriers, valid and operative; but libelant contends that the bill of lading is to be interpreted by the American law, which, as declared by the federal courts, rejects the attempts of common carriers to exempt themselves from the consequences of want of care and diligence on the part of themselves, or their agents or em-
ployes, and holds such stipulations void as against public policy, and not to be enforced. Where a contract is made in one country to be performed in another, it is not always easy to determine whether the law of the place where the contract was made, or of the place where it is to be performed, is applicable. It seems, however, quite generally conceded that the question is to be determined by arriving at the intent of the parties to the contract, where that is possible. Hutch. Carr. 142; Chartered Bank of India v. Netherlands Nav. Co., 10 Q. B. Div. 529. The presumption is that the parties enter into a contract with reference to the law of the place where it is made, but this presumption is easily overthrown by circumstances which show that this was not the intention 6f the parties. Whart. Conii. Laws, 434. In Cox v. U. S., 6 Pet. 203, it is said by the supreme court: "The law of the place where the contract is made is to govern in expounding and enforcing the contract, unless the parties have a view to its being executed elsewhere, in which case it is to be governed according to the law where it is to be executed." The present question is not one which affects the capacity of the parties to make the contract. It is not a case in which, according to the American law, it could be said that there is no contract at all binding on the parties. It is merely a question of the extent and nature of the obligations and conditions of a contract. The law is thus stated in Story, Conii. Laws, 242: "Generally speaking, the validity of a contract is to be decided by the law of the place where it is made, unless it is to be performed in another country; for, as we shall presently see, in the latter case the law of the place of performance is to govern." And, at page 280: "The rules already considered suppose the performance of the contract to be in the place where it is made, either expressly or by tacit implication. But where the contract is oxpressly or tacitly to be performed in any other place, there the general rule is, in conformity to the presumed intention of the parties, that the contract, as to its validity, nature, obligation. and interpretation, is to be governed by the law of the place of performance." And the author cites, as clearly expressing the rule, the statement of Lord MANSFIELD: "'.rhe law of the place can never be the rule where the transaction is entered into with an express view to the law of another country as the rule by which it is to be governed." In Whart. Conii. Laws, 472, it is stated to be a rule fairly deducible from adjudged cases that where there are no other circumstances a contract of carriage is to be interpreted by the Jaw of the carrier's principal office. In this case, although the contract was made in the United States, it was made in the port of Baltimore by a resident of Chicago with a British corporation for carriage in a British ship to a port in Great Britain, and the express agreement of the parties, deliberately made two months hefore the shipment,
'was that any question arising against the carrier under the contract or the bill of lading should be determined by English law. Under all these circumstances it seems to me the court should give effect to this clause of the agreement. It leaves the intention of the parties beyond doubt of any kind, and that intention was to give to the provisions of the bill of lading such efficacy as the English courts would give to them. As I understand the facts of the case, and the rulings of the courts upon similar bills of lading, I think the exceptions cover the injuries sustained by this libelant, and the libel must be dismissed.