TilE BRANn'ORD CITY.
Herman Royer, or whether it was the two together, as I have already stated to you more at length. If you find that it was the invention of Herman Royer, or if you find that it was the invention of Louis Royer alone, then, in that case, you need not go any further, as I have already said, but must find your verdict for the defendants. If you find that it was invented by both of them, one man proposing or suggesting one part, and another one suggesting another part,-one suggesting a certain thing, and another suggesting modifications,-then the patent is valid, as far as that matter is concerned; all of which, as far as I can understand, is substantially what I have said to you before. My attention is called to the fact that there is other testimony regarding the amount of damages besides that of Mr. Royer. It is true, no doubt, that the defendant Coupe has testified that there is no advantage in the use of this patent3d mechanism; thllt it is not worth anything to him who uses it.. His testimony is that it is not worth anything by way of advantage to him who "uses it, because it is not worth anything to anybody, lind cannot be made to make leather, aCGording to his understanding of i t,-according to his testimony. Of course, if that be true, it not only reduces the damages to nothing, it is not only conclusive that there should not be any damages at all, but that there should be a verdict for the defendants. So that what I said before is strictly true, that, assuming that there are to be any damages at all,-assuming that the plaintiff is entitled to a verdict,-the only testimony upon the subject of theitmount of the verdict is that of Herman Royer. Mr. Wheaton. If your honor will allow me, to avoid any possible mistake of the figures that I made and handed to the jury, I desire to say, in the course of my argument, my associate added up the number of sides which the took-keeper had given between the fourteenth of July, 1879, and the tenth of March, 1885. We divided that by two, and it amounted to sixty-six and some odd thousand dollars, making it up at one dollar per hide. Oarpenter, J. The jury will understand, then, that the figures that were stated by the counsel for the plaintiff are the figures which he says are the result ola computation, and show the number of hides.
THE BRANTFORD CITY, etc. HATHAWAY and another v. THE BRANTFORD CITY, etc.
(Dismct Court, S. D. New York. December 2, 1886.)
CARRIERS-By SEA-BILL OF LADING-STIPULATIONS ExEMPTING FROM: NEGLIGENCE-FOREIGN SHIPS-CONFLICT OF LAWS-LAW OF THE FLAG.
The federal law of this country, by which stipulations of a common carrier exempting him from the consequences of his own negligence are held to be extorted without any real assent of the shipper, and to be against public
policy, ud void, is controlling in suits brought here upon shipments made here on board foreign ships, under bills of lading signed by foreign masters, though such stipulations be valld by the law of the ship's flag.
CONFLIOT OF LAWS-LAW OF THE FLAG-COMITY,
afthe flag," so called, expresses no principle of construction. So far as it differs from the general maritime law, it is but the mere municipal law of the ship's home, and has no authority abroad, except by comity, and will not be adopted in a different forum when against the policy, or prejudicial to the citizens, of the country of the forum,
SAME-INTENTION OF PABTIES-ToRTS.-
Independently of the intent of the parties, the law of the flag has no application to cases of tort, as between ships or persons of different nationalities and conflicting laws; and 'as a matter of contract, under the bill of lading, no by the law of the ship's flag, as respects acts of negliinten,t ,to be gence commItted in this country, or on the high seas, is to be reasonably inferred from the mere fact of shipment here in a foreign bottom,
SAME-SHIP SupPLIEs-MASTER'S POWERS-PERSONAL LIABILITY OF OWNERS,
Whether the mere municipal law of the ship's home contrary to the general maritime law should be held, in foreign forums, to limit the master's ordinary authority, under the general maritime law, to bind the ship -in ordinary maritime contracts, as distinguished from an unlimited personal liability of the owners, to the prejudice of foreign citizens in dealing with a ship in their own ports, upon the faith of .the ordinary maritime law, qU<JY1'e. &mble, the decisions in respect to maritime liens for supplies indicate the contrary, ..
ING FROM FITTINGs-IMPRUDENT NAVIGATION-EvIDENCE-CONFLICT OF LAWS-LEX FORI.
5. CARRIERS.....BY SEA-LIMITATION OF LIABILITy-"PERILS OF THE SEAS ARIs-
The libelants, 'at Boston, shipved on board the British steamer B. C. 260 cattle, ,to be carried to Deptford, England, pursuant to a previous contract made in Boston with the resident agent of the line. The bill of ladinf,' delivered shortly after the ship sailed, excepted "death, however caused, ' and loss from "stowage, or from perils of the sea, arising from negligence," Negligence was found by the court as respects the cattle fittings prepared at Boston, the stowage there, and navigation on the high seas, in consequence of which, in. a storm of no unusual severity on the day after the steamer sailed,upon a lurch of the ship, the cattle fittings gave way, the cattle were thrown. in heaps to leeward, and. the vessel thrown nearly upon her beam ends, through which 93 per cent. of the cattle died, and were cast overboard before they reached' England. 'Held, (1) that the loss arose by negligence of the ship; (2) that the insufficiency of the cattle fittings was a breach of her implied warranty that the ship should be fit for the voyage, and for the cargo, and not covered by-the exceptions of the bill of lading; (3,that the stipulation as respects negligent stowage and negligent navigation was invalid in our courts, whether the case were viewed as a case of tort, or as a case of the proper cOllstruction of the contract in a conflict of laws; and (4) that the law of the flag''':'''that is, the law of England-which upholds such stipulations was not controlling. (a) because there was no sufficient evidence that the parties intended a purely English contract; (b) because such stipulations were deemed by our law extorted, and, being without the assent necessary to prove a legal contract, the alleged contract, pro tanto, was not proved, as a matter of evidence, according to the law of the forum; and (c) because our national policy, which disallows such stipulations in favor of our own carriers, cannot permit the adoption of the foreign law. in favor of foreign carriers, by comity.
In Admiralty. , North, Ward« Wagstaff and Henry M. Rogers, for Wheeler « 001#8, for claimants. BROWN,J,., .The libel in this case was filed to recover $40,000, damages for the loss of 234 cattle on a voyage from Boston to West Hartlepool, England. The proofs sh<.iwthat in October, iS80, the libelants made a contract at Boston with Brigham & Co., the local agents of the
THE BRANTli'QRD CITY.
Brantford City, by the terms of which the libelants British were to ship at Boston "from 250 to 300 head of cattle, as may be needed and demanded by the agents of the steamer; freight to be 85 shillings sterling per head, said cattle to be landed at Deptford, England." On the twenty-ninth of October, 260 head were accordingly shipped on board, and bills of lading were given therefor, which contained the lowing exceptiol1ll: "Loss or damage resulting from ... ... ... stowage, ... ... ... or from any of the following perils, (whether arising from the negligence, default, or error in jUdgment of the master, mariners, engineers, or others of the crew, or otherwise, howsoever,) excepted, namely: Risk of craft, explosion, or fire at sea in craft. or on shore; boilers. llteam, or machinery, 01" from the consequence of any damage or injury thereto, howsoever such damage or injury may be caused; collision, stranding, or other perils of the seas, rivard, or navigation,of whatever nature or kind soever, and howsoever such collision, stranding. or Qther; peril may be caused. ... II< II< Not accountable for death, lOllS" or. injury, howsoever occasioned. Weights, contents, and value unknown, and not answerable for leakage or The vessel.eailed on October 30th; arrived in England on th l3 sixteenth of NQ,vember; and delivered only 26 of the 260 head that were taken on board. The rest had died, and been thrown overboard, during the voy. age. The libelants allege that the 1088 ofthe cattle was 9ccasioned through of the defendants in the following particulars: First, that the the steam-!>hip was improperly stowed, so as to be. unseaworthy when s,hesailed, having a.list t<> port, and being down by the head; second, that.the fittings for; the cattle were insufficient and improper, the headboards being weak and insecurely fastened, and the, cleats on the floor insufficient to prevent the cattle from slipping;. third, . that the. ventilation was insufficient; and,jourth, that the navigation wa,a unskillful and negligent. The claimants deny any negligence; they also set up the stipulations of the bill of lading as a further defense, in case any negligence is lished; and they further plead in their answer to the libel that these stipulations are valid by the British law, and that that law governs this case. The .evidence shows that on Sunday, the second, day out, the ship met a gale from the S. S. E., with cross-seas. The log of that day reads as follows: "This commenced with strong wind S. S. E., and showers of rain. 4 A .· II. Strong gale. and heavy rain. 8 A. II. Strong gaIe, with rain and heavy sea, shipping large quantities of water. Noon. Wind and weather do. P. M. Very heavy cross-sea; ship rolling very heavily. Put ship's head to Sea, and eased the engines. 4 P. M. Wind veering to the S; W., with heavy squalls. 6 P. M.Sllip took a very heavy lurch to port, breaking cattle fittings, and throWing the cattleto leeward. Employed all hands righting the cattle. Midnight. Sea decreasing. wjth moderate S. W. wind. Kept ship her course, full speed." The testimony shows that the weather was moderate during the rest of 'the voyage, except dn the 4th and 5th, when there was again much
rolling, with further injury to tpe cattle; but that, Rsawho]e, the passage was not one of any unusual severity for t.hat season of the year. The steamer was 290 feet long over all, 36 feet beam amid-ships) and her mean draft on this voyage 20 feet 4 inches. Her gross tonnage was 2,371 tons. In her lower hold she carried 1,447 tons of grain and other cargo. On her three decks above she carried, in all, 509 cattle, weighing about 351 tons. The cattle were put in pens or stalls on each side of and fAcing a central passage-way running fore and aft, each pen holding from four to six cattle. The cattle were tied to head-boards secured to the stanchions. On the lower or orIop deck were 203 cattle) weighing about 140 tons; on the upper 'tween decks, 210 cattle, or about 145 tons; and on the spar deck, 96 cattle, weighing about 67 tons. The evidence shows that by the heavy lurch to port on the thirty-first of October, above referred to, the steamer was thrown nearly upon her beam-ends, and so continued f01'a. considerable time; that the cattle on all the three decks were hurled to the port side of the ship, breaking through, and carrying away the head-boards on each side, and lay in hea.ps until extricated during the fOllowing night.. Some had their limbs broken. In others, their horns were broken and bleeding. Nearly all were more or less crushed, and suffered from the weight of the heaps in which' they lay. By this misfortune the courage and spirits of the cattle were broken. Some were so badly'injured t9at they died very shortly after. Some others could not be kept on their feet at all, and the rest only with difficulty. They would not take necessary food or drink. All became more or less overheated and fevered, and they died rapidly, from day to day. Scarcely a day passed that many carcases were not thrown overboard. Moreover, the difficulty and delay in: removing the swelling and'decaying bodies of the dead, in the feverish air of the ill-ventilated lower decks, increased the misery of the situation, and made existence there scarcely endurable to the attendants. The 26 cattle tbat alone remained alive were landed in England on the sixteenth of November, much damaged. 'Besides the libelants' cattle, 249 others were shipped upon the same trip by one Osborne. A still larger loss proportionately occurred in his shipment, only seven being landed alive. This circumstance leads me to the conclusion, with the other evidence, that the loss of the libelants' cattle is not attributable to their weakness through previous transportation without a sufficient period of rest, as averred in the answer. A large amount of testimony has been taken, and the case has been argued with the,most painstaking thoroughness. Upon the best consideration that Ibave been able to giV'El to it, in all its. aspects, I am s.atis..fied that, whatever faults may be attributable to the ship in res.pect to .hetstowage anrlfittings, the lurch on .the evening of the thirty-firs.t of Without that, October was. the immediate cause of the loss that ttll the other wottld, I think, have had comparatively small effect, if any, in producing death of the cattle. This lurch was, doubtless,one of the perils of the sea, provided it .was the unavoidable result of the wave that struck the ship at that time; and also pro-
THE BRANTFORD CITY.
vided the ship was navigated with all reasonable prudence and skill to avoid the effect of such waves, having reference to the nature of the cargo. But as all of the cargo above the hold consisted of live-stock, if the cattle fixtures and fastenings were not secure and adequate, or if the foothold furnished the cattle was insufficient, the moment these should give way, from some lurch a little greater than usual, the whole weight of live-stock, amounting to 351 tons, would constitute a suddenly shifting cargo. going over to leeward, as happened in this case; so that what might otherwise h:tve been only a little greater lurch than usual, doing no injury, would result, through this shifting of the live-stock cargo, in throwing the vessel upon her beam ends. The question to be determined here is whether the vessel's being thrown neai'ly upon her beam ends can be fairly attributed to a peril of the sea alone, or whether there existed such faults in the navigation of the ship, or in the stowage of the cargo, or in the fittings for the cattle, .as were the necessary conditions without which this lurch, to the extent that it reached, and its consequent disaster, would not have occurred. If the latter is the fact, then the loss is not to be deemed a mere peril of the sea, but a result of the ship's negligence, (Traruportation Co. v. Doume:r, 11 Wall. 129,) or, as the bill oflading has it, a "peril of the seas arising from negligence. II The loss in this case was not only unusual and extraordinary,but unparalleled. No other similar misfortune in the transportation of cattle is reported. The proof shows that cattle shipped on other vessels, at about the same time that the Brantford City sailed, met either with no loss, or with very slight loss. During the last three months of that year, from October to December, upon many voyages on which cattle were carried, none were lost. One of the claimants' witnesses says that, out of 7,000 cattle shipped during the year, only 40 were lost, or about one-half of 1 per cent.; another witness that, out of 4,500 head, only 4 were lost. The Brantford City, on her two previous voyages, lost but two or three cattle. On the present voyage, out of 509 taken on board. 476 cattle, or 93 per cent., were lost. That a cattle ship like the Brantford City should be thrown upon her beam ends, or nearly so, is as extraordinary as the nearly total loss of the cattle on board. Upon repeated consideration of all the testimony. I find it impossible to become satisfied that this heavy lurch is reasonably to be accounted for by anything in the weather, the sea, or other circumstances, had the usual and reasonable skill and precautions been observed in the fittings, the stowage, and the navigation of the ship. The evidence, as I have said, does not indicate anything unusual for that season, either in the wind or sea, in the storm of the 31st. Nothing of any llccount was carried away on deck; and, though the hatches were left off up to that time, little, if any, water was taken in below. The log, indeed, reads: "P. M. Very heavy cross-sea, ship roUingvery heavily. Put ship's head to sea, and eased the engines. 4 P. M. Wind veered to S. W., with heavy squalls." But the stowage of 1,447 tons of cargo in the lower hold, with only 351 tons on the three decks above, be-
sides the hay and water-tanks, WllS calculated to make her center of gravity low, and her rolling greater than if more weight of cargo had been stowed above the hold. But, however great the rolling actually was on the 31st, it was not Buchas to do any harm until two hours after the wind had veered totheS. W .· when, at 6 P. lIf., the heavy lurch occurred, without any further explanation of its cause in the log. The testimony on the part of the claimants affords no additional explanation, except that a heavy wave struck the ship upon her starboard bow. But, as I have said, it also appears that no considerable water was taken aboard by it. none went down .the· open hatches, and no damage was done on deck. The third officer testified that he was on the dog watch. from 4 to 6 P. M., and that "there was not a great deal of sea;" but, before he left, a "very heavy sea struck her starboard bow, and made her keel right over to port." "The ship," he says, "was exactly on her course." A steamer of the -size of the Brantford City is not thrown upon her beam ends, even by a heavy sea, when heading the sea, or when meeting it at a reasonable angle, but only when the seas approach more from abeam. Considering the heavy weight of live cargo on board, it was the undoubted duty of the commander, in any considerable sea, to head towards it for the purpose of easing the ship, and thus to avoid the dangers incident to excessive rolling. The log states that the commander did head to the sea. But the time of doing so is not stated, although, from the form of the entry in the log, the ordinary inference would be that it was done at 12 o'clock noon, or very soon thereafter. But there is nd statement that this heading to the sea was continued after the wind veered to the S. W., while the cross-sea, and the effect of the wave referred to, apparently giving the ship an impetus to leeward greater than had been experienced before, would indicate that no such further change was made; and the third officer confirms this inference, even if any change at all was made before 6 P. lIf. There is strong ground for suspicion that the entries in the log in respect to what was done in the afternoon are misleading, and that the ship's head was not put to sea at all until after the lurch. The speed of the ship was not sufficient, nor was her position at noon of the next day, as given by the log, such as to make it seemingly credible that the ship was put head to the sea at or about noon of the 31st, as would naturally be inferred from the reading of the log. During the 24 hours the distance made, and the positions of the ship in latitude and longitude as indicated by the other entries in the log, are incompatible with the steamer's having been headed to the sea, i. e., S. S. E., during most of the ernoon of the 31st. The third officer, as above stated, testified that the ship, at the time of the lurch, was exactly on her course, and that there was not a great deal of sea. Moreover, Williams, who was in charge of the cattle, in his memorandum written the next day, put down 5 o'clock in the evening as the time when the storm arose. The engineer testifies that it was between 7 and 8 in the evening when the engines were eased; that is, after the lurch. For the claimants it is suggested that this is " mere error of the engineer as to time; but the engineer's log, which
should have shown the correct time, is not produced, nor is its absence accounted for. From the circumstances above referred to, it is quite possible that neither the storm nor the sea were such as to have clearly required the steamer to be put head to the sea before 6 P. M., had she been in perfect trim, and her stowage favorable. But she had a list to port on leaving Boston, variously estimated from a foot and a half to two or three inches only. She was down a foot by the head, instead of being somewhat by the stern, as she ought to have been; and her stowage brought her center of gravity so low as to induce more rolling than usual or prudent. All the testimony shows that she rolled heavily. Her navigation should have been accommodated to these unfavorable conditions to a greater degree than, in my judgment, was done. In addition to this, I am also satisfied from the evidence that there was a parsimony in the preparation of the fittings,-the head-boards, floorings, and cleats for the cattle,-in consequence of which they were neither sufficient nor secure enough for a voyage at that season. In my judgment, it was from the effects of all these causes combined that a lurch a little heavier than usual, in a storm of no extraordinary character, resulted in throwing the vesseillearly upon her beam ends, and in the destruction of the cattle that followed. It would not be profitable to discuss the details of the voluminous evidence in regard to the fittings, or other condition of the vessel on leaving port. As to some particulars, there is great diversity in the proofs; and as to others, the}acts are not entirely clear. For the defense it is urged, particularly as respects the fittings, that they were subjected to the inspection of the libelants' agents, and of the agents of the insurers, and that both substantially approved of everything that was done. The evidence does not, to my mind, sustain this contention. Some complaint was certainly made, both as to stowage and as to the insufficiency of the fittings. One of the witnesses testified that, on complaint to the chief agent of the line that the fittings were insufficient, the latter replied that the captain and owners were grumbling about expenses, and he did not know whether he could get anything done or not; that he wanted to keep the expenses down, and had great difficulty in getting the captain's and the owners' consent. Had these fittings been built with such substantial strength and security as experience, up to that time, had shown to be necessary, in the judgment of persons versed in that business, I should not regard the vessel as in fault simply becauso they subsequently proved to be insufficient. The Titania, 19 Fed. Rep. 101; The J. C. Steven80n, 17 Fed. Rep. 540. But, upon the evidence, I cannot find that these fittings meet that test. On the contrary, I think that they were not such as the current knowledge and experience at that date had shown to be reasonably required fora voyage at that season; the proof of which is found in the complaints on this subject made at the time, and evidence as to the character of the fittings, and their subsequent giving way. The evidence as to the flooring is somewhat contradictory. It may have been-laid differently in different places.. A good deal of evidence
given by the libelants tends to show that it was simply boards or planks, laid upon the iron deck, and affording no sufficient hold for the cleats nailed into it. In one place the cleats could be kicked off with the boot. Much of the material for all the fittings was old, pieced, and spliced, after use on two prior voyages, instead of being new. Several of the libelants' witnesses say it was rotten, warped, and, in general, unfit. The testimony of the claimants' witnesses on this point is, in the main, in general terms only, affirming its good quality and sufficiency; and the captain so testifies as to all the details. But the testimony of those who did the work is the less satisfactory from the lack of any clear recollection on definite points of detail, partly, 'perhaps, the natural result of the lapse of time. But some of them say that they speak only from their general habit of doing such work, and their belief that this work was done well, and in the usual way. In this state of the evidence, the proof that all the head-boards gave way upon this lurch of the ship, in a storm of no extraordinary character, points indubitably, as it seems to me, to the insufficiency of the head-boards, cleats, and flooring as one of the causes of the disaster. In the case of The J. a. SteveMDn, 17 Fed. Rep. 540, the proofs, as respects nearly aU the important facts, appear to have been wholly different from the proofs in the present case. Whether the grain cargo shifted, or did not shift, during the voyage, is also a controverted question. It is not very material, except as evidence in regard to the degree of care used in stowage. The evidence for the claimants is very positive that there was no shifting of the grain. The evidence from the libelants' witnesses is equally positive to the contrary, and is sustained by the contemporaneous memorandums of Williams: It seems to be further sustained, also, by the local deviations of the compass, as recorded in the log, which are difficult to be accounted for in any other way than through a decided list to starboard after N0vember 5th. Without dwelling further upon these details, I must find, upon the evidence, that the vessel, while not chargeable in anyone particular with a very palpable or very gross departure from the requirements of prudence, is nevertheless chargeable with such departures from the customary and safe course, in several important particulars, as to indicate a general disregard of the reasonable and necessary conditions of safety for such a cargOj and that these various departures constitute negligence in the discharge of her duty, which, combined, must be held to be the cause of the disaster. Her starting with a list to port; her being down, by a foot, at the head; the large quantity of hay over the sheds on her spar-deck; her stowage so low as to cause unusual rolling; her fittings, to a considerable extent of old materials, more or less patched up; and the flooring and cleats imperfect, and insecurely laid ,-are all evidences of a general indifference to the conditions of assured safety for a cargo of live-stock; and, unless the incompatibilities in the statements in the log, and their inconsistencies with the testimony, can be reconciled in some way that I ,have not been able to discover, the further inference is
also unavoidable that, until after the disastrous lurch, the ship was not navigated so much with reference to the safety of her cargo of live-stock as to the speedy accomplishment of her voyage. If all these acts were qone under a supposed exemption from liability for negligence, under the terms of the bill of lading and the English law, this tendency to subordinate, if not to sacrifice, the interests of the cargo to the supposed interestsofthe ship, would be to some extent explained; and the wisdom and the necessity of the law of the federal courts of this country, as respects liability for negligence, would be b6th illustrated and vindicated by the results of this voyage. 2. The defendants contend, however, that, inasmuch as the cargo was taken on board of a British ship, and as the bill of lading was signed by 8 British master, for transportation to England, the stipulations of the bill of lading exempting the ship from liability for negligence, and from loss by death, however occasioned, afford a complete defense; because such stipulations are valid by the law of England, (Oarr v. Lancashire & Y. By. 00., 7 Exch. 711; Chartered Mercantile Bank of India v. Netherland8 India Steam Nav. 00., 9 Q. B. Div. 118, 122; S. C. 10 Q. B. Div. 521, 532; Steel v. State Line Co., 3 App. Cas. 88; The Regulus, 18 Fed. Rep. 380; S.C. 23 Fed. Rep. 98,) and because the Engli8h law, as it is claimed, is controlling in this case as the "law of the flag." Notwithstanding the considerable time during which similar stipulations have been in use by most of the English lines of steamers, no case, so far as I am aware, has expressly adjudicated whether the English law or the American law should be deemed controlling. The cases most nearly approaching this are those of The Monkma, 17 Fed. Rep. 377; S. C. 22 Fed. Rep. 716, and The Oranmore, 24 Fed. Rep. 922. In the latter there was an express stipulation that any question arising under the bill of lading should be determined by the English law. In the former case, the answer alleged exemption from liability by the provisions of the bill of lading; but it did not set up the defense that the case was subject to the.English law, or that the English law, as respects the validity of stipulations against negligence, was different from our own. The failure to plead this defense was held to exclude it. both in the original decision and upon the appeal. 22 Fed. Rep. 716-728. After the decision on appeal, upon a petition for leave to amend the answer by setting up this defense, the petition was held to come too late, under the rules. Id. 730. In the present case the defense is specifically pleaded, and the validity of the stipulations for exemption from liability for negligence under the British law, as shown in the cases above cited, WitS admitted at the hearing. The neglect to supply adequate fittings for the cattle, such as stanchions, head-boards, and flooring with secure cleats for proper foot-hold, etc., "as negligence arising before the cattle were shipped, and' before the voyage was.commenced. The exceptions in the bill of lading, carefully scrutinized, will be found not to include any exemption from negligence in these particulars. There was no express warranty in this bill of lading that. the ship was seaworthy; but in every such contract there
is an implied warranty that the ship shall be reasonably fit for the voyage, and for the particular service for which she is engaged. 'The neglect to fulfill this preliminary obligation has been held not covered by the ordinary exceptions as to negligence. Steel v. State Line S. S. Co.· 3 App. Cas. 72,86; Kopitoffv. Wikon, 1 Q. B. Div. 377; The Hadji, 16 Fed. Rep. 861, 864i Tattersall v. National S. S. 00., 12 Q. B. Div. 297. In the first case cited a defective fastening of the orlop port-hole before the ship sailed, if such as to make the vessel unseaworthy, was held not covered by the exceptions, because "Dot arising upon the voyuge. In the last case cited, death of cattle, caused from failure properly to purify the ship from the effects of a contagious disease through the carriage of cattle on a previous voyage, was held not' within the terms of a bill of lading quite as broad as the present. These excevtiol?s, however, do include "stowage," which embraces the distribution of the cattle, and of the other cargo; and they include also "perils of the seas arising from negligence," which would cover imprudent navigation. But a.s I cannot find that the loss of the cattle would have probably happened if there had been no negligence in these respects, notwithstanding the inferiority of the fittings, the validity of the exceptions, as depending upon the application of the English or the American law, is involved in the decision. The question presented is a very important one. All the steam-ship lines, whether domestic or foreign, that sail from this port, insert in their bills of lading substantially the same conditions. Considering the number and magnitude of the shipments by these lines, and the very diverse views found in the text-books and decisions upon this branch of the conflict of laws, I have deferred a decision of the cause until able to give the questions involved something, at least, of the consideration their importance demands. The conclusion to which I have come is that our law must prevail, whether the question be viewed as a question of responsibility for a tort; or of the construction and validity of the exceptions in the bill of lading, in a conflict of laws; or as a question of evidence and procedure; or as a question of comity, as related to our national policy. First. By the law of both countries negligence in a common carrier is a tort, as well as a breach of contract. It was upon its aspect as a tort that the decision of the court below was reversed on appeal, and only half damages given, in the case of Chartered j}[ercantile, etc., v. Netherlands, etc., 10 Q. B. Div. 521, 534. The tort found upon the facts in the present case is a tort committed partIy. within the exclusive jurisdiction of this country, and partly upon the high seas, within the exclusive jurisdiction of neither country. Under the terms of the bill of lading in this case, the English courts hold that, for such a tort, the ship and owners are not liable; the law of this oountry holds that they are liable. It is well settled, however, that responsibility for torts committed within the exclusive jurisdiction of the country of the forum, and affecting its own citizens, are determined according to its own laws. It is only as respects tortious acts committed beyond its jurisdiction that any doubt has existed as to the remedy to be afforded. In the latter