and no ttlention is made of· other marks or notices. It is very doubtful, therefore, whether parol evidence to show any other marks would be admissible. However, as proof of the said notices as attached to the packages has been made, without objection, it is necessary to determine what effect such attached notices had on the responsibility of the carrier. The proof does not show that the notices were called to the attention of anyone of the carrier's agents. In the course of loading and stowing the packages aboard the ship the notices might or might not be seen by the stevedore and freight-handlers. The notice "Must not be put in the hold" is the only one that, under the evidence, it is clear was not complied with. Under the authority of The Delaware, 8upra, if the case were one where the goods had been stowed above decks, and had been lost or damaged, the carrier would not be allowed to prove by parol the notice, so as to show a consent by the shipper to the deck stowage. No authorities are cited to show what effect should be given such notices when they are not called to the attention of the carrier, and are not referred to in the bill of lading. The conclusion I reach is that, as such notice will not protect the carrier, it should not bind him, and I am satisfied that a notice marked on goods, not called to the attention of the carrier, and not mentioned in the bill of lading, ought not to increase the carrier's responsibility. A decree will be entered dismissing the libel, with costs.
CUNNINGHAM and others v. SWITZERLAND MARINE INs. Co. and others.!
(District (lourt, 8.
1. :MARINE INSURANCE -
December 81, 1885.)
EXPENSES OF LI1;:GATION - SUE AND LABOR CLAUSEPREYIOUS SUITi!-SEAWORTIDNESS OF VESSEL-ESTOPPEL.
Certain insurance companies, in conjunction with cargo owners, defended against a claim on. a bottomry bond. The cargo was finally released from the claim. Afterwards, on suit brought by the cargo owners against the insurance companies, under the "sue and labor" clause in the policies, to recover the expenses of defending the bottomry suits, the company set up the unsea· worthmess of the vessel, which they had not utilized as a defense in the previous suits. It appearing that such a defense would not have availed in the former suits, and that in part, at least, at the time of the former litigation the condition of the vessel was unknown to the companies, and that libelants were not misled in any way by the former assistance of the companies, held, that the companies were not estopped in this litigation from using such a defense, nor was there anything in the above facts to prevent an inquiry in this suit into the question of unseaworthiness The evidence showing that there were facts tending to indicate unseaworthiness, unless explained, and no explanation being offered, held, that, as
8AME-UNSEAWORTmNESS OF VESSEL-POLICY OF INSURANCE.
iReporled by Edward G. Benedict, Esq.,
of the New York bar.
SWITZERLAND MARINE INS. CO.
the vessel was unseaworthy when she sailed, the policies of insurance never attached. and cargo owners could not recover of the insurance companies the expenses of defendini" the former suits.
In Admiralty. Wheeler et.Souther, for libelants. Butler, Stillman et Hubbard, for respondents. BROWN, J. The above libels were filed by cargo-owners to recovet the expenses of defending a suit on a bottomry bond, under the "sue and labor" clauses of certain policies of insurance issued by the respondents upon the cargo of the Julia Blake, from Bioto New York. the vessel put into St. Thomas, where extensive necOn the essary repairs were made, in order to procure which a bottomry bond wa.s given to the Bank of St. Thomas upon her hull and cargo. The vessel with her cargo uninjured, subsequently arrived in New York. were thereupon libeled for the enforceThe vessel, freight, and ment of the bottomry bond. Practically no defense in that suit was made as respects the ship and freight. The controversy as regards the cargo was carried to the supreme court. The decisions of this court and of the circuit court were there affirmed, and the cargo released on the ground that no communication was had with the owners of the cargo prior to executing the bottomry bond. The Julia Blake, 16 Blatchf. 472; S. C. 107 U. S. 418; S. C. 2 Sup. Ct. Rep. 692. At first the insurers employed proctors and counsel to defend l\gainst the claim on bottomry. They appeared for the owner of the vessel, and answered in behalf of the owner; and also as agent or carrier, in behalf of the cargo. Some months afterwards the libelants, owners of the cargo, themselves intervened and answered separately by proctors and counsel of their own; and, after the decree in the district court, they represented mainly, if not solely, the interests of the cargo in that suit. The insurance companies had previously agreed to pay any sum which might be fixed by the average adjusters 80S general average. The libelants now sue for their expenses and counsel fees in that litigation. In the present action the respondents have set up in defense the unseaworthiness of the vessel when she left Rio, and allegethat the policies consequently never attached. As the claim in suit rests upon the stipulations of the policies only, there can be no if the policies never attached, nor became operative as respects the cargo. It is urged that this defense ought not to be regarded as made in good faith, because no such ground was taken in the previous litigation, and because the insurance companies did not act upon that theory; but during the progress of the action in the district court, at least, were active in defeating the bottomry bond upon other grounds. Two answers are given to this contention that I think are sufficient. No issue of unseaworthiness would have been material in the former action. On the contrary, the more unseaworthy the ship the greater would be
her need of repairs at St. Thomas, where the bottomry bond was executed. The facts affecting the question of the seaworthiness of the ship at Rio were not at first known to the insurers. When they were, in a measure, apprised of the facts, the counsel of the insurers stated to the libelants that these facts raised a question concerning their liability as insurers, although not material in the pending litigation. Brtt that merely afforded to the insurance companies an additional ground of defense as insurers of the cargo. Considering the difficulties of establishing that defense before a jury, the insurance companies could not be considered as wholly indifferent whether the claim on bottomry was defeated upon another ground. The assistance of the insurance companies' in the former litigation for a time, in no way misled the libelants, or induced them to incur any expense which they would not otherwise have incurred. There is no element, therefore;· of estoppel in the case; nor do I find anything in the circumstances that precludes an inquiry into the seaworthiness of the vessel, which is for the first time presented in this suit. On that point the evidence of the master,whose deposition was taken in this suit, but who was not examined in the former suit, is very strong, and shows clearly that the vessel was grossly unseaworthy when she sailed, There are several considerations which suggest a suspicion of great exaggeration in the. master's testimony; but, after making all possible allowances for such exaggeration, the undisputed facts concerning the condition of the vessel when she arrived at St. Thomas, and the absence of any severe weather on her passage, would seem to necessitate the inference that she was unseaworthy when she left Rio. When sailing in only a fresh breeze, as it would appear, first her topmast, and then her cross-trees, gave way and fell down, and portions of the foremast were carried away. The testimony is that they were exceedingly rotten, and many parts of the hull were in a similar condition. Such extraordinary accidents require explanation, or the vessel must be held to have been unseaworthy when she sailed. No explanation was given; and it is not suggested that a satisfactory explanation through any extraordinary weather, or other cause, could be proved. I am obliged to hold, therefore, that the vessel was uuseaworthy when she left Rio; that the respondents never became liable upon the policies; and, consequently, that they are not answerable for the expenses claimed. The libel is therefore dismissed, with costs.
In Ife Estate of MCCLEAN, Jr., Deceased.
(Oireuit Oourt, w: D. Pennsylvania. December 14, 1885.)
Where the subject-matter of the suit is a testamentary trust, all the benefi· ciaries, by themselves or their guardians, being joint exceptants to the trustee's account, the purpose of the proceeding being the enforcement of the trust,-the preservation of the trust-estate, and its due administration,-held that, as between one of the exceptants and the trustee, there was no separable controversy under the removal act. 12. SAME-CU'IZENSHiP OF GUARDIAN. Upon a question of the right- of removal, the citizenship of the guardian suing, and not that of his ward, is the test of jurisdiction.
REMOVAL OF CAUSE-SEPARABJ,E CONTROVERSY.
Motion to Remand the Cause to the Orphans' Court of Allegheny County.. S. A. McClung, for the motion. Wm. A. Stone, contra. ACHESON, J. Undoubtedly, in resolving the question of jurisdiction, regard mus,t be had to the state of the record as it was when the petition for removal was filed. But, discarding the subsequent order of the state court, how stands the case in respect to the parties? On the one side we find Mrs. Susanna McClean, A. J. Pentecost, guard. ian of Harry McClean, a minor, and William H. Parsons, guardian of Florence H. McClean, a minor, and on the other side Abdiel McClure. Now, according to the allegations of the petition for removal, all these parties are citizens of the state of Pennsylvania, except William H. Parsons, and his ward. Is there disclosed, then, in the suit "a controversy which is wholly between citizens of different states, and which can be fully determined as between them?" For the proper solution of the problem we must consider the subject-mat. ter of the suit, and this we discover to be a testamentary trust; Mrs. McClean and the two named minors being the beneficiaries, and Abdiel McClure the trustee. In the state court Mrs. McClean and the guardians of the two minors joined in filing exceptions to the acis the enforcement count of the trustee. The object of the of the testamentary trust,-the preservation of the trust estate, and its due administration. Now, certainly, all the beneficiaries are directly interested in the relief sought, and the presence of all the named parties would seem to be necessary for full and complete redress. Winchester v. Loud, 108 U. S. 130; S. C. 2 Sup. Ct. Rep. 311. I am, then, of opinion that there is here no separable controversy, within the meaning of the removal act, between William H. Parsons, guardian of Florence H. McClean, and the testamentary trustee. Nor would the case be removable were the proposed amendment (averring that the minor, Harry McClean, is a citizen of the state of New York) allowed; for not only would the citizenship of Mrs. Mev.26F.no.2-4