beeD absolutely correct if they had consulted with and requested or demanded the master to point out the equipments on board the vessel. These. laws are to be enforced in a spirit of libf?rality and decency towards the masters of steam-vessels. Inspectors are not appointed to entrap the master .and owner of a vessel, but they are to' give him a fair showing; and call on him to point out the equipment, in order that there may be a just determination whether the boat is in a suitable condition to protect the life and afford safety to passengers, and, if it is wrong or insufficient, to give him an opportunity of correcting it. That was not done in this case, and it seems, from the testimony of the captain, and it is pretty clear from the testimony of at least one of the inspectors, that one of these inspectors had personal prejudice towards this master. He states he was told to watch the master closely when the latter came here from the north. Thi.s inspector detects what is manifestly an innocent and an accidental erasure, in an unimportant part of the master's certificate, and attaches culpability on the part of the master with regard to that era.'lure, extending it to an imputation of forgery. He makes four inspections of the Pope Catlin, in a very short time, when it appears that he has not inspected, or attempted to inspect, anyone of several other steam-vessels plying in this harbor; and altogether I do not think in this case the master of the Pope Catlin has had a fair examination, orfair treatment. I am uncertain, from the evidence in this case, whether these life-preservers were in accordance with the law. There must have been some deficiency in them, but to what extent the evidence is not sufficiently clear. Taken altogether, and considering its contradictions and the unshaken. denials of the master, it is insufficient to justify the court in imposing the penalties and condemning the vessel. . For these reasons it is adjudged that the libel be dismissed, at the cost of the United States.
THE KEYSTONE. 1 MENENDEZ
and others '/).
(lJiatnet Oourt, 8. lJ. New York. December 81, 1886.)
SHIPPING-CARGO-ApPARENT CONDITION-SECRET VICES.
The master is responsible only for the apparent condition of the cargo when taken on board, not for its secret vices or defects. The ship is liable for bad stowage by a stevedore employed by a charterer, where her officers retain control over the disposition of the cargo. Part of the cargo of the brig Keystone, consisting of provisions, was damaged by the sweating of hoops, etc·· which formed another part of the cargo
SAME-PROVISIONS AND HOOPS-SWEAT-STOWAGE-NEGLIGENCE-STATEMEN'I OF CASE-DAMAGES. .
iReported by Edward G. Benedict, Esq., of the New York bar.
The evidence showed that it was custotnary to carry the two articles as parts of the satne cargo. It also appeared that the sweatmg doubtless arose inpart frotn the general unseaMned condition of the hoops, which condition the master had no means of before the cargo was shipped. The hoops being apparently lawful cargo whlCh the master had no right to refuse. and which the charterers required him to take, which is custotnarily taken with provisions, held, that the master could not be charged with negligence for taking them on board. It subSequently appearing that the proper place to stow provisions in such a tnixed cargo was in the hold, in the after-part of the ship-, and not in the main hatchway, and that the tnaster knew the quantity of provisions to go aboard, held, that the ship was liable for injury by sweating t() bags of flour stowed in the hatchway, in excess of any injury caused by sweating to similar bags stowed in the proper place below.
'" ADMIRALTY-AMENDMENT AT TRIAL-WHEN DISALLOWED. AD atnendtnent of the libel will not be allowed at the trial,
introducing a wholly new ground of claim, where proper evidence on that subject has not been taken and the defendant's witnesses are gone.
Goo. .A. Black, for libelant. Benedict, Taft & Benedict, for respondents.
BROWN, J. This libel was filed to recover damaKes for injury to a quantity of provisions which were shipped on board the brig Keystone in January, 1885, to be delivered at Caibarien, Cuba, and were damaged. as the libel charges, through "bad stowage, and the carriage of unsuitable and improper cargo in said vessel, or the taking off of the hatches improperly." The brig was loaded by the charterer, to whom she had been chartered, "for a full cargo oflawful merchandise under and on deck." After she was about two-thirds loaded with a cargo of "cooperage," llo called, consisting of hoops and shooks of barrels, the provisions were put on board, part of which was flour in bags. These were alllawfulmerchandise, and when received on board the master supposed they all belonged to the charterer, and it was not until the bills of lading were presented that he learned that the provisions were for several other shippers. The vessel sailed on the seventeenth of January, and reached Caibarien on the second of February. On the night of the twenty-ninth of January, when near the Bahamas, a great deal of heat as well as steam was found between-decks and below, through the steaming and sweating of the cargo; and the provisions were thereby considerably damaged. Several of the witnesses testified that the damage was from sea water, and the libel charges that the hatches were improperly opened. The proof shows, however, that the hatches were not opened 'lntil the 30th; and at the close of the cause the opposite charge was made, that ventilation ought to have been given earlier by opening the hatches to diminish the heat and sweating of the cargo. The master testified, however, that the weather was such that he could not safely have opened the after-hatches; and as the provisions were aft, they certainly were not injured by the opening of the forward hl\tch on the 30th. The master's statement that he could have opened the after-hatch if he had wanted to, is subject to the previous qualification that it was not safe on account of the water and rough weather. I have no doubt that'the damage to the provisions arose from \he
sweating of the cargo and the heat generated from the presence of the cooperage when going from. a cold to a warm climate. Sweating is, however, a peril of the seas, falling within the exceptions .of the· bill of lading, unless it appear to have been caused by thenegligen<;:e of the Star oj Hape, 17 Wall. 651. ship. '1' Pars. Shipp. & The averment of the libel that the cargo was improperly. stowed is not sustained by the proofs. The strong weight of proof is to the effect that not only is cooperage like this, consisting of hoops' and shooks, a comalong with promoncargo, but that such cargo is almost always visions in the winter season, and not infrequently as much in proportion as was carried by the Keystone., If hoops are dry, no danger is hendedJrom their presence; if.not dry, they may generate steam and heat, and cause injury. It being proved to be customary to take such cargo to Cuba, the libelant's assent thereto is presumed. Baxter v. Leland, 1 Blatchf. 526. This presumed assent would not extend beyond the customary proportion of cooperage, if any such limit by custom were established. But the evidencedoesnot establish any customary limit, nor show, as I have said, that the amount taken aboard was in excess of what is frequently taken. .Nor would this presumed assent of the shipper justify,the master in taking aboard hoops apparently unfit from wet or want of seasoning; for this would constitute negligence in the master. But the master is responsible for the cargo's apparent condition only; riot for its secret vices or defects. I do not think there is any sufficient evidence of negligence in this case on the part of the masterin respect to the condition of the hoops taken on board. A small portion was wet by rain, which he refused to take on board until it. was apparently dry; and this, although at the time he supposed all the cargo was to be shipped by the charterer, who, having employed £he stevedore, would, therefore, have no redress against the ship or master from any defects in the condition of the (largo, whether apparent or not. The master's objections under such circumstances, are, therefore. evidence of his entire good faith. The mere fact that much steam and sweat arose in the cargo during the voyage does not of itself indicate that the master should not have received it on board. So much sweat and heat was unusual and could not have been anticipated. One of the libelant's own experts was asked: "Question. If they steamed on the voyage so that tbA captain couldn't burn a lamp in his cabin, would that indicate to you what the condition was when they were taken in? Answer. I hardly think it would. Q. Can you from your experience state whet,her it was proper or not to carry bags of 110ur in conjunction with a quantity of hoop-poles and old sugar hogshead shooks, leaving New York in the month of January? A. If they were dry they could be stowed away aboarq of a vessel perfectly safe. Q. And if they were not dry? A. Improper/'
It is impossible to find, as it seems to me, that this steaming was occasioned simply by the wetting of the small portion of the cargo of hoops that were kept upon the wharf a day' or two to be dried, and
were apparently dry when loaded. To what extent the heat and sweat arose from the change of climate, and how much from the cooperage, is uncertain. So far as the sweating was produced by the hoops it must have been mainly through their general unseasoned condition, which the master had no means of kno:wing or determining. The cargo being ap.parently lawful cargo, which he had no right to refuse, and which the charterers required him to take, and being customarily taken with provisipns, I think the master cannot be charged with negligence for taking hoops not sufficiently seasoned, if such was the fact, when he had no means of knowing their condition. In the case of The Helene, the privy council says, ill" reversiqg the decision below, (L. R. 1 P. C. 239:) were ignorant of the consequences of taking such a cargQ [\V'o(ll, rags, and oil] we do not think it amounted to culpable negUstow, in the only place they could be stowed, the goods which under the charter-party the charterers had a right to insist, and did insist, .should form a part of the cargo." So; bere, the master was not a guarantor of the latent condition of the hoops. The hoops being by custom a proper cargo to be carried with provisions, and the hoops being apparently in proper condition, the masterwas bound to receive. them, and is not chargeable with negligence or wrong. The injuries that arose from the internal condition of the hoops, if they were not sufficiently seasoned, are chargeable either to the perils ofthe voyage, or to the charterer who shipped them. The libel should therefore be dismissed. Upon further argument it appears that the captain's testimony was misunderstood by the court as respects his ignorance before loading of the quantity of provisions and flour to be taken aboard. It now appears that he knew this at the outset; and that some bags of flour were put in the main hatch because sufficient space had not been left for all the flour below; The master and the stevedore both state that the afterpart of the ship below was the most suitable place for flour in and this was doubtless so, as the hatches were battened down and ventilation aft at that season was Knowing what quantity of flour in bags was to be taken on board, and that if there were much heat and steam upon the voyage arising from change in climate, irrespective of any unseasoned condition of the hoops, for which he is not chargeable, the bags would probably be more injured by such sweating in the hatch, the master took the risk, as respects third persons, of providing sufficient room below as the proper place for flour in bags, as well as for the other provisions. As respects the charterer, whose goods he at first supposed they were, he might not have been liable; since the stevedore who stowed the cargo was employed by the charterer. The inference in this case is that the shippers dealt with the charterer only, and not directly with the' master, any further than to receive the bills of lading which the charter required the master to sign for all cargo put on board. Although the presentment of bills of lading by other persons as owners of the flour and provisions may have been a surprise to the master, there was still
<>pportunitybefore he sailed for the discharge of his duty to the shippers and to the ship as respects the storage of flour in the place most suitable for it with a cargo of cooperage. The ship was; I think, liable to the shippers for improper stowage, no matter by whom the stevedore was employed, or whosoever may have been liable per8onally. The master's mate evidently retained some control over the disposition of the cargo. Richardson v. Winsor, 3 Cliff. 404407; Sandeman v. Scurr. L. R. 2 Q. B. 86; The T. A. Goddard. 12 Fed. Rep. 174; 184. The master was bound, therefore, to avoid the particular risk of damage from stowing the bags in the hatch, and either to make provision for those bags in the proper plMe below, or' else give notice and obtain the assent of the shippers to their remaining there, or to reject the goods until properly stowed by the charterer's stevedore. The Star of Hope, 17 Wall. 651; Peek v. Larsen, L. R. 12 Eq. 378. Not having done so, I think the ship is answerable for any Ilamage arising to the bags stowed in the main hatch in excess of that happening to the similar bags stowed below, if there was anysuch excess. · The amendment of the libel asked upon the trial cannot be allowed. It introduces a new and somewhat inconsistent ground of claim, to which <>bjection is rightly made; since the evidence in reference to such a Claim has not been taken, and the witnesses for the defense are gone. .A reference may be taken to ascertain the excess ofdahtage, if any, as above indicated, and the question of costs will be reserved until the coming in of the report. .
CLAIMANTS OF THE MARY
In rePetition of LORD, Owners,
(Oircuit Oourt, D. Maine. March 7, 1887.)
8BIP-OWNERS-LIMITATION OF LIABILITy-ORIGINAL JURISDICTION.
The circuit court has not original jurisdiction of proceedings to limit the liability of ship-owners by virtue of· admiralty rule 58, which provides that all the rules and regulations for proceedings in cases where ship-owners desire the benefit of the limitation of liability "shall apply to the circuit courts of the United States, where such cases are or shall be pending in said courts upon appeal from the district courts," or otherwise. The proceedings must originate in the district court.
In Admiralty. On motion to dismiss the petition. in The collision, which was the subject of the original suit, November, 1883. The libel was filed in December, 1884,Jlnd the opinion of the district court, finding the Mary Lord solely in fault for the <:ollision, is reported in 26 Fed. Rep. 862. In June, 1886, the circuit <lourt, on appeal, affirmed the decree of the district court, and entered It