For .unreasonable delay in the acceptance of the goods, and in enabling the ship to deliver, he is therefore primarily responsible. To avoid this responsibility, he must refuse acceptance, or find some other person who, both as of the goods and as assignee and holder of the bill of lading, becomes substituted in his place and to his rights and liabilities, through direct relations with the ship under and by virtue of the bill of lading. what neither the railroad company nor Perkins & Choate did in this case. The terms of sale to the railroad company were: "All duties paid. and cash on handing invoice and order on vessel," after arrival. These terms, it, will be observed, did not include any indorsement or delivery of the. bill of lading.' The opposite was plainly intended, becausethe respondents were to pay the duties, and hence were to enter the goods as. to lio which the bill oflading must have been held and used by them as their own, as in fact it was. Tb,isfixed the right of the ship to hold the respondents, and to look to .them for freight, and for a timely accept!ince of the goods, in enable the ship to. earn .ber freight without unreasonable delay. The fact .that the railroad company had agreed to take the goods ex ship, l\.nqqn, receipt of the invoice and order upon the ship, might charge company for the delay a& between it and the respondents. That did not,relieve the latter. The of the Company would deonly upon the terms of but uPQn the notice it received from the respondents under the contract. 'The notice itself might have been long delayed, or insufficient, or the papers delivered imperfect. With none of these things had the ship anything to do. She owed no. duty directly to the railroad company but only to. the respondents, 'as and holders of the, bill of lading, to deliver according to the orders of the latter. Any persons receiving goods, or dealing with the ship, under the respondents' orders, and .not directly under the. bill of lading, dealt with the ship, as between, her and the: respondents, as the representatives only of the latter in receiving the goods., Fowler v. KnorYp, 4 Q. B. Div. 299. The libelants are therefore entitled to a decree.
THE DORIS EQKHOFF.
and others'll. THE DORISEOKHoFE,etc.
" , '
Where, upon arrest, 'R vessel' is released. upon a stipulation given for her value, and by subsequent amendment. in the progress of the cause. is allowed to plead the statutes in limitation of liability, the owners are not estopped by the stipulation from showing that the stipulated value included the value of
THE DORIS ECKHOFF.
subsequent repairs. The stipulation for value to and the undertakin,e: given under the statute of limited' ,liability being for different purposes, reappraisement should be allowed to fix the value of the vessel and freight at the termination of the voyage, as determining the statute limit of liability in case the ,owners are found entitled to its benefits.,
George A. Black, for lib\'llants.
« Goodrich, for respondents.
BROWN, J. The bark Doris Eckhoff, having been libel\'ld for damages inflicted upon the libelant's vessel, both being in tow of steam-tugs, was released from custody upon the execution of a stipullJ,tion for th sum l of $8,000, her appraised value. Both vessels, as the evidence showl3, by collision. Prior to the, hearing, an amendment to her answer, was allowed, setting up the statutes)nlimitation ity as a partial, defense. The libelant now that the 0,\"ner8 ,of the bark and, the. stipulators ;are estopped by,the appraisement and. stipulation in the sum of $8,000 from provinz that her value, for· which ,her owners woul<ibe accountable.,ooder tion of liability, is any than the amount oi, their stipulatipI). given in this ,cause. I the 'J;here doubt that the ,stipulation stands the pJaqe of the Tea, aI).dthll;t tb;e stipulators, to the extent of their stipulation, are substituted for the are liable "to the exercise of all those authorities on the part of ;tbe 'court which the tribunal could properly:' exercise if the thing were still in the custody of the court." The Webb, 14 Wall. 41S; U. S. v. Ames, 99 U. S. 36. If ,the bark were still in custody, the amount which her owners would be obliged to pay in order to exonerate themselves from liability would be; not her value as she then was, but her value immediately after the collision, or after the termination of the voyage. The Great Western, 118 U. S. 520,525,6 Sup. Ct. Rep. 1172. The value of the. repairs that might have been made upon her,ip the meantime would be excluded. The auy oj Norwich, 118 U. S. 468,471, 6 Sup. Ct.' Rep. 1150. " . When the bark was appraised, and released the stipulati(ju. for $8,000, it would seem that no proceedings.in limitation ofliability were .contemplated. '.. This limitation was not set up in the original. answer. The object of the stipulation was simply the immediate releflse of the vessel, and:her delivery to her owners, without reference to any of limited liability. When it afterwards appeared that applicati<;lO for 11 limitation. of liability might be expedient, there is good reasou:why the the owners should be precluded from showing the actual vessel at the termination of the voyage, exclusive of any that time and the time when the stipulation was given. The objects of the two stipUlations are quite distinct,-the()De is for the possessioQ;ofthe she is; the other, for the payment into cQurt of her value in her damaged condition at the' clPIil of the voyage, or security for that value. lithe vessel were still in custody, upon tbeamalld-
allowoosetthig'up the oflinHted liability, an appraisement 'Would he ordered her value at the close of the voycondition., As the stipulationalTeady given repreage in sents her value in her impl'o'V'ed condition, and is subject to all orders of the court that might affect the reB itself, if still in possession, it is competent for the court to admit an appraisement of the vessel in her damaged condition, and to substitute that measure of liability in case the claimants are entitled to the benefits of the statute. In the case of The Oity of Norwich, ,above cited, the original stipulation wasfor $70,000. Areappraisemrmt'was afterwards allowed upon amendment, upon which the owners wefl:!required to pay but '$2,500, her -tralue before raising and repair, arid this was affirmed by the supreme court. Pages 471, 489493. It will doubtless be the duty df'the commissioner to scrutinize closely any effortS that may be nia:de to depreciate unduly the value of the bark in her damaged condition, or her value when. repaired. There is no 1'E'.aBon,ho'Wever, to apprehend any such attempt in this case more than in ordinarY cases. That is reason for holding the owners or the stipulatorsto·· the mue of $8,000, which plainly was not intended as her damaged value, nor given to proceedings in limitation of liability; and upon the precedent of 'Phe Oity of Norwich it is clearly the duty of the court: to admit proof of her value at the'close of the voyage, and before repair.
Bin.ce writing the abore, I tltat .similar proOf In reduction of llabillty upon · bond for value was admitted by Dr. LUSBllfGTON in the aM' 0/ DuA:lleNc D. BrabcmC, 1 Swab.
'(Circuit Oourt, D.OrfDon. ...'
February 8,188'7.) ,
THE HIGH SEAS.
The distrlctcourts have cognizabce of torts committed on the high seas, when the parties, or the vessel are found within their .jurisdiction, Without .. . , . . . reference to the nationality of either. I. BAJril:-:EX'E.RCISE OF JURIBDICTION-:-DISCRETION Oll'OOURT. The court: may in its discretion take, or decline this jUrisdiction, In the case of a controy"rsy between and its act!9,n in this reSPect will be on, appeal, unless It plain!yappears to the appellate court, that such . dIscretIon' has been wrongly exerculed; . 8. 'NEGLIGENCE-INJURY TO SE..ut:EN -PROM: DEFECTrn,CRANB·LINE. On t)l.ee:videuce, of the district court, that:theiujury to the .libelaut \Vas without hiS fault, by 8 which. defect . was known to ilie master, affirmed, and the damages given therefor allowed, with interest and costs. . '' , ( :. ' .
" In Adtniralty; , Suit
damage!hmd wages. Appeal froni' district' Decree in 28 Fed. Rep. 855, Edward N; Deady, fo1' libelant. _ ,'C.E.·f1. 'Wood, for claimant.
SaWYER,J. The bark 1IJoddleburn is a British vessel, and the claiJ;nant, master,. and libelant. are British subjects. Although the point as to t1}e jurisdiction of the court over the subject:-mattel' does not appflar to have been much relied on in. the district court, it is quite earnestlY pressed here. Under the authorities cited by the district judge, an.d the reasoning found in them, I think there can be little doubt that the court had ju.risdlction. All actions for injuries ex delicto to .the person, and actions on contracts, are transitory, and may gellerally be maintained wherever the parties may be found, whether in the country where the cause of action arose or elsewhere. This suit of that nature, upon a cause for which the ship as well the master is liable. The cause of action arose upon the high seas, alld it isa ,case of admiralty and The parties, at the time the suit, were all Within theterritorialjurisdictionof the court, arid the statutes of the United States confer jurisdiction" of all civiI causes of admiralty. and maIitime jurisdiction." . Both the subject-matter and the parties were, therefor:e, at the time of filing the libel,Within the jurisdiction of the districtcou,rt. Bernn.ar.d v. Cr/lClW, 3 Sawy. 230; TM BelgeJnland, 114 U. S. 355, 5 Sup. q. !tep. 860.. But, being no. treaty stipulations contro11ing the matter, the cases cited also.recognize the principle that .of sqit of this kin9. arises uponthe high subjects of a.for4jligll 'uatiou, it' ma:tter ofS<;lund with the ,stances case, efercis(:l. ordechne to. exercisejurisd,iction. PM Pe1genlq.nd, 114 U. S.364, 5 SUp.Ct-Rep. 860. Says the court in this case; . .' .. ' . .' "But, althoughthecourtllwill use a discretlonabo,ut a.jurisMetion of contro"ersies betweeriforeigners arising beyond the territo.'rial jurisdiction of the country to which the cqurts' belong, yet where such ai-e communis juris, that ill, whetethey arise under the cOmtmon'lawof nations, specialgronnds should appelU' :to'induceth'e Court to deny its,aid to·a.foreign suitor When it has jurisdiction of the ship or party charged> The existenc.e of ,jurisdicti.oll inalt such cases is dispute. wlll. \>6 whether it is . to it. See 2 Shipp. & Adm. 226. aJl.d cases cited iu notes." . "In 'case' the court' decided that there was 'a occasion, all the circumstances, for taking jurisdiction j and it acted upon that determination. In the language of the supreme court in The Belgenland, 114 U. S. 368, 5 Sup. St. Rep. 860: "As the assumption of jurisdiction in such cases depends so largely on the discretion of the court of first instance, ,it is necessary to inquire how far an appellate court should undertake to review its action." The court quotes from an English case (The Leon XIII., 8 Prob. Div. 121) on this point as follows: ", The plaintiff must show that the judge has exercised his discretion on wrong principles, or that he has acted so absolutely differently from the view which the court of appeals holds, that they are justified in saying he exercised it wrongly. I cannot see that any wrong principle has been acted on by the learned judge, or anything done in the exercise of his discretion 80 unjust or unfair as to entitle us to overrule his discretion;'" and the
supreme court then adds: <'This seems to us to be a very sound vie'w of the sUbject; and, acting on this principle, we certainly see nothing in the course taken by the district judge, in assuming jurisdiction of the present case, which calls for apimadversion." , So, also, I see nothing in the action of the court below "in assuming jurisdiction 6f the preS6!;ltcasewhich calls for animadversion." .Indeed, it woUld be1:?utlittle short of an arbitrary denial of justice, in many cases of this kind, to tU,rn a,party out of court, and refer him to the <lOUrts of his own country ,with the probability that he could never find the ship ina port of the natioll to which it belongs, and whither, per· 'haps frompovorty, or in conseq'tience of his injury,or from other causes, the injured party could poffoll'ow it; aud, if he did, pis witnesses would probably be, scattered, and the evidence to establish' his right unattain· able.. In' suc:fr :casestbere, ccnildi be nothing toiiifed' injuriously the rightspf'the nation 'whicH 'tpesnip belongs. Indeed, it isits interest that jusiiceshould, be 'properlyadrriinistered between its subjects by some impartia1t}:ibunal, such as the. court'of a foreign friendly nation is likelyti)' be." I see nothingJn ,t,hii:l' case to justify interfering,with the discretion 'as 'exercised by the district jUdge. . . .' . ' , . As to, the'lrierits of the controversy, I haveexaql.ined all the evidenoo with, cine,'li.Iid I see no llubstanti;al reason to find fault with the concIu'sions, by the disb#t judge upon the facts, or the law applied to them.' 'Thereissome conflict itithe testimony upon some of the mateb:utupon the I 'think the distric:t judge was correct'in rial his findings of facts. At all events he had the him, and position to judge,of the credibility'Of the opposing witnesses upoinhe points of difference than this court can be. But upon .in tml record I fl,m satisfied with his findings. .1 therefore ,affirm and adopt the of fact stated in the decree tllui of the district court, andaflirm the q.ecree. It is therefore a decree be entered in favor of the libelant and appellee for the sum of $1,570.70, with interest thereon at the rate of 7 per cent. perannwn froin the date thereof, O<ltdber 23, 1886, till theelltry of the decree now ordered, together with his costs and disbUrsements· herein, to be duly laxed. . r.
ARNOLD V. CHESEBROUGH. ARNOLD and others v. CHESEBROUGH' and others.'
(Circuit Court, E. D. New York. January 11,1887.)
InEqUity. GeOrge W. Norris, for complainants. Bliss & &h1ey, for defendants. BENEDICT,J. In this case several questions which have arisen upon the taking of the testimony before an examiner have been presented to me for decision. The first question is whether the plaintiff can require the defendant Charles A. Chesebrough, when examined as a witness for the plaintiff, to produce certain papers admitted to be in his custody, or in the custody of his counsel for him. It appears that on a former ocCasion when one Harran was examined as a witness for the plaintiff in this case, the defendant's counsel exhibited to Harran what purported to be a signature attached to certain papers, and inqUired of the witness whether the signature was his. As to some of the signatures Harran was unable to'state; as to others, he said the signature was his. The papers were thereupon marked for identification by the examiner, and retained by the defendant's counsel. Upon these facts the plaintiff now claims the rigpt to inspect the papers the signatures of which were so exhibited to I have often ruled at ni8'i prius that the exhibition of a paper toa witness on the stand entitles the other side to an inspection of thE! paper so shown the witness. This ruling has not proceeded upon the ground that a paper becomes evidence in a cause by the mere proof of itsexecutioD,. but upon the ground that a party is entitled to be intranspires between his opponent· and a witness while formed
by Edward G. Benedict, Esq" of the New York bar.