ant's counsel. This policy must be construed, like all other contracts, by the well-settled rules of interpretation that are applied to written instruments. In looking at the words of the policy, and considering all the parts together in the light of attendahtfacts and circumstances, well known to the local agents of the company, we are of opinion that we may fairly infer that the intention of the parties, when they used the express terms restricting the statement of the applicant as to the quantity and value of the whisky in the warehouse, to his personal knowledge, was to qualify the words of warranty, so that they should not extend further than a warranty of the honest belief of the applicant in the truth of his statements. Such statements were clearly in the nature of representations-themere expression oian opinion founded upon knowledgederived from what the rssured might honestly and reasonably have regarded as reliable sources of information; and as there was no evidence of fraud, gross negligence, or want of good faith on the part of the plaintiff, their incorrectness did not vitiate and avoid the policy on which this action was brought. We think that our opinion is founded in reason an.d justice, and is fully sustained by adjudged caaes. Bank v. Insurance Co., 95 U. S. 673; Moulor v. Insurance Co., lUU. S. 335,4 Sup. Ct. Rep. 466; Miller v. Insurance Co., 7 Fed. Rep. 649; L1J,ce v. insurance 00., 19 Myers, Fed. Dec. § 1484. Motion for new trial denied.
HAYS fl.' PITTSBURGH,
(Di8trict Oourt. w: D.Pen'nB1Jlvania· . January 18, 1888.)
Whiletecbnical rules of common-law pleading do not prevail in admiralty, still, to entitle the libelant to a decree, there must be a substantial agreement between the allegations of the libel and the proofs; hence, a libel which sets up an express contract as the cause of. suit is not sustained by proof of a naked tort.
SALE-WHEJ:!' TITLE PASSES-LoADING GOODS.
Under a contract for the sale of a full boat-load of coal-slack, the slack to be loaded by the vendor into the fiat-boat of the vendee, the title to the slack does not pass to the purchaser as fast as it is put into the boat in the course of tilling it.
In Admiralty. . Libel brought by W. S. B. Hays against the Pittsburgh, Geneva & Brownsville Packet Company. 16m &- Reed, for libelant. Goo. ,W. Acklin, for respondent.
ACHESON, J. While technical rules of common-law pleading do not prevail in admiralty, still, to entitle a libelant to a decree, there must be a substantial agreement between the allegations of the libei and the proofs. McKinlay v. Morrish, 21 How. 343. But here there is an entire lack of
PITTSBURGH, G. & B. PACKET CO.
such correspondence. The libel is expressly framed as "in a cause of contract," and sets up an actual sale and delivery by the libelant to the respondent of certain coal-slack at an agreed price. But the proofs show nothing of the kind. Indeed, there is no element of contract in the whole transaction. If the libelant has, any cause of action against the respondent, it is for the tortious acts of the agents of the latter in taking and using hig property. Under the libelant's proofs it is very doubtful whether the case is one in which there might be a waiver of the tort, and a recovery had as upon an implied promise to pay. But the libel presents no case of that character. Besides, the second paragraph of the libel, under which the claim for demurrage is made, is framed upon an entire misconception of the true facts. But, considered on its merits, the libelant's case fails. It is clear that the title to the slack in question had not passed to the libelant, but that ihemained the property of the Climax Coal Company when taken by the respondent's agents. The Climax Coal Company had undertaken to fill the fiat-boat with coal-slack. The sale was of a full load of slack; but the bQat was only partially filled when the slack wa.'! taken therefrom. .The contract was still executory. 'rhe libelant was not bound to accept the fiat-boat only a third or one-half full. If the boat had then been swept away by a fiood the loss of the slack would have fuJIep on the coal company. True, the fiat-boat belonged to the libelant,Lut the title to the slack did not pass to him as fast as it was loaded into the boat. Nesbit v. Berry, 25 Pa. St. 208; Oil Co. v.Hughey, 56 Pa. St. 322; Sneathen y. Grubbs, 88 Pa. St. 147. There iE! no evidence or circumstance indicating that it was the understanding or intention of the parties that, during the progress of the filling of the fiat-boat, the title to each bushel of slack as was loaded should pass to the purchaser. Now,it appears that an arrangement had been entered into between Capt. Cock,of the respondent's steam-boat Germania, and John E. Leonard, one of the partners of the Climax Coal Company, that the steamboat, when inneed of fuel,might at any time take slack out of any'fiatboats in progressof being·fllled at the tipple of the company's works.. This was a continuing contract.. True, Leonard,. it seems, had gone out of tho firm shortly before this particular occurrence; but that fact was he was justified in not known to Capt. Cock, and under his taking the slack in question. The only wrongful act done was the taking of the fiat-boat away from the tipple and not returning it for two or three days, but that small trespass is not the real subject-matter Qf this suit. Upon the whole, I am of the opinion that the libelant is not entitled to the relief here sought. If he has suffered the damages alleged he must look for redress to the Climax Coal The libel must be dismissed, and the libelant adjudged to pay the costs .to the extent of the entire fees of the marshal, clerk, and commissioner; but, as the Germania was in fault in removing the libelant's fiat-boat, and there seemed to be some good ground for this suit, I think it would he right to deny costs to the respondent, and all costs Save the fees above specified. Let a decree be drawn in accordance with this opinion.
FEDERAL REPORTER. THE EXCELSIOR. 1 BRYANT
(DiBtrict (Jourt, E. D. New York. December 81. 1887.)
COLLISION BETWEEN STEAMAl'm SAIL-FAILURE TO KEEP COURSE-LIGHTS.
On a.clear night a schooner, on a course of N. by E., bound into the port of New Y9rt, was run into by '" bound to 9n suit brought against the stea.mer for the damage, the eVIdence showed that the schooner had not held 'her course; tha.t there was no green light on 'her as she approached the steamer, and ,that schooner, w,h<> was on deck. had with him a white light, which was seen on the steamer, and gave rise to the belief that the schooner was going in, the same direction as the steamer. He/il,. that the steamer was without faultj: and that the libel should be dismissed. VesselsulI,vigating the waters below the New York ,Narrows are governed by the international rules of ,
YORK-BELOW T.ElIl NARROWS.
In Adnliralty. Libel for d$mages by collision. Libel by Ivanhoe C. Bryant against the Excelsior; to recover damages sustained' by-reason of a collision; of libelant's schooner :with the steamship alleged toh8.vebeen occasioned by the negligent navigationof ,,' , Goodrich, Deady & .Goodrich,' 'for libela.nt·.' " Olw,rla and R. D'1!enedict, for claimant. BENEDICT,J. After a careful examination 'oCthe testimony in this caSe to see how theJi1;>elant can recover. ,The pQints in controversy are: '(1) Whether the schooner, coming up the bay of New York, on a 'cqurse north by held her colirse: approaching the steamer,llsthe'libelant or whether she, changed her coUrse to westward, (2) whether the schooner's sldelightwasburiiing a$ sheapproach:ed the steainer;,(3) .whetherthe steamer · was in fault' fornot seeing she did; (4) whether the schooner displayed a white light .to the steamer a,s she approached; (5) whether the steamer stopped her speed 8.S800n 8.S: she should have done. : ' J ' : " ' . ' , . , !" U pohthe questi.on first ,stated; respecting a change of course on the part of the schooner, it seemstobe proven by thelookout, as well as by of. sar 'they apprdac,hed}he dlsplaymg. her red bght, until the ves'selswere'ulo'se together,and .t1l,at the green hght was only seen when the bow of the schooner passed'the, bow of tbesteamer, then aboqt to strike , on theschooqe;r's starboardsiM. This testimOny' the sChooJ;ler is In harmon? the' testimonY,froIU the steamer, and shows that, at the time or thecoUision, the' schooner was on a course from east to west across the 'tf'this be so, there must have been a change of Course'on the part of schooner.
by Eifwiard G. BenediCt, 'Esq·· of the N