be decided in these cases, for the reason that the charter-party in this case contains no provision for the consignment of the ship at any port except the port of loading. The libelants' claim is for a failure to allow them to do the ship's inward business at the port of New York, which was a port of discharge and not of loading. The language of the charter is as follows: "The steamer to be consigned to charterer's agents at ports of loading, paying one commission of two and a half per cent. to charterer's order at the first loading port. and to be report,ed a.t the custom-house by the said' agents on customary terms." This language imports no obligation on the part of the ship to the 'charterer's agent at the port of New York, because the port of New York was not a port of loading, but a port of discharge; and its imporL is too obvious to permit it to be varied by parol testimony. As to the point made in behalf of the libelants that the charter is not before the court, it is sufficient to say that the present motion is a motion to dismiss the libels. The motions were heard without objection, and the charter-party was preseJ;lted to the court and commented on by the counsel; no question being raised as to its terms. It is, moreover, referred to in the answers to the interrogatories. It is not now open to the libelants to demand that the question be determined according to the allegations of the libel, and not according to the written 'contract, on which the libelants' claim must rest. There are some other causes of action set forth in the libels to which little importance seems to be attached. The principal question is the one already stated, and, as that cannot be raised under the charter-party In question here, the libels may as well be dismIssed at this time. If, however, counsel desire an examination and decision upon the other causes of action, and will request such a decision, those questions will be examined and passed on, otherwise the motion to dismiss the libels will be granted.
THE THOMAS MELVIL1;.E· . WOOMULLER
11. THE THOMAS MELVILLE
(Circuit Court. S.
York. October 15,1888.)
&. SHIPPING-CARRIAGE OF GooDs-INJURIES TO CARGO-PLEADING AND PROOF'
Upon a libel for damage alleging "that by reason of the neglect and failure of the said master * * * to properly stow the said merchandise, and of the imP,foper, unsafe. and unseaworthy condition of the said. steamer. and by want of proper care of the said master, * * it and by reason of the im· proper and Insufficient dunnage of the merchandise, and the unsafe and leaky condition of the deck of said steamer. on said voyage, the said merchandise was damaged, "no recovery can be had for damage by coal-dust not resulting 'from 'improper stowage.
THE THOMAS MELVILLE.
I. ADMIRAL"ri.::....ApPEAL-REvmw. Where the evidence is conflicting, and no new evidence Is Introduced, th.9 circuit court will not, on appeal of a libel for damage, review the finding of the district court.
In Admiralty. Libel for damages. On appeal from district court, 81 Fed. Rep. 486. Libel by Windmuller and others against the Thomas Melville, James Turpie, Son & Co., claimants, for damage done to a cargo of prunes shipped in October, 1883, on board the Thomas Melville, at Trieste, in casks, boxes, barrels. and kegs, to be delivered at New York. The greater part ofthe damage was done by sea-water, which leaked through the decks; but there was also a claim of damage from coal-dust, which penetrated some of the boxes. The libels were dismissed by the district court, and the libelants appeal. Franklin A. Wilcox, for libelants. E. B. Convers, for claimants. LACOMBE, J. 1. The court below, upon conflicting evidence, has founelthat the ship was seaworthy, and her decks not insufficient for the voyage when she left Trieste; that she experienced very tempestuous weather, and that the leaks in her decks, which caused the sea-water damage complained of, were produced by a peril of the seas, and not by the ship's own fault. These are questions of fact. No additional evidence on this branch of the case is presented here, and the finding of the district judge ., will not be disturbed. 2. The same considerations apply to his decision as to damage claimed from insufficient dunnage and. improper stowage. It was formed upon conflicting testimony, anti no new evidence is introduced here. 3. The only remaining claim is for damage from coal-dust. Much evidence that branch of the case was introduced in this court. The amended libel setting up this damage as a separate cause of action having stricken from the files, (The Thomas ]'lelville, 34 Fed. Rep. 350,) the claim can be sustained only upon the theory that the district judge erred not properly pleaded in the original in holding that coal-dust damage libel. The averments upon which libelants rely are these: "That by reason of the neglect and failure of the said master and the said owners of the said steamer, and the officers thereof. to properly stow the said merchandise, and of the improper, unsafe, and unseaworthy condition of the said steamer, and by the want of proper care of the said master and owners and officers of said steamer, and by reason of the improper and insufficient dunnage of the said merchandise, and the unsafe and leaky condition of the deck of said steamer on said voyage, the said chandise was damaged," etc. This is not a case where claimants, having gone to trial under general averments in a libel without objecting, or without asking for a specification of particulars, are not allowed to object to proof of special damage fairly within the general allegations. Here the pleader has specifically enumerated bad stowage, unseaworthy conditidn, insufficient dunnage, and leaky decks as causes of damage. Having
undertaken to set forth specificltlly his separate grounds of claim, he must ',enumerate them all,or else confine his proof to those which he has declared upon. 4. As to packages of prunes damaged by dust from being stowed in the coal-bunkers, it might be claimed that damages would be recoverable under the averment of bad stowage. Here, however, the proof is insufficient. Only apart of the whole cargo of prunes, (consigned to others as well as to Jibelant) was in the bunkers, and there is no evidence to show that libelants' casks were the ones stowed there. The decree of the district court is 'affirmed.
SCHWERIN 'V. NORTH
PAC. C. R. Co.
(District Oourt, No D. OalijOfflia. October 22,1888.)
SRIPPmG-CARRJAGE OF PASSENGERS-NUMBER-PENALTY-FERRy·BoAT.
Rev. St. U. S. §(:l4464-4466, respecting the number of passengers that may lawfully be carried by a pltssenger steamer. have no application to a ferry-boat, though temporarily employed as an excursion boat.
At Law. On demurrer to complaint. Action by H. W. Schwerin against the North Pacific Coast Railroad Company to recover the penalty prescribed by section 4465, Rev. St. U. S.· for carrying on its steamer passe'ngers in excess of the number stated in the certificate of inspection. Milton E. Babb, for complainant. Page &: Eells, for defendant. I
HOFFMAN, J; The complaint in this case is filed by an informer seeking to recover certain penalties imposed by sections4464, 4465, Rev. St. U. S., for violations of their provisions. The violations complained of are alleged to have been committed by the steamer Tamalpais. a regularly licensed ferry-boat, plying between this port and Sausalito. She was, however, frequently employed as an" excursion boat," and on such occasions procured from the inspectors a permit specifying the number of passengers she was authorized to carry, the number and kind of lite-saving apparatus, etc., to be carried, and the route and distance for such excursions. These permits were issued, it is presumed, under the supposed authority of section 4466. It is contended that on one of these excursions she carried more p/lssengers than was allowed by the permit. Sections 4464 and 4465 are as follow!!: "Section 4464. The inspectors shall state in every certificate of inspection granted to steamers carrying passengers, other than ferry-boats, the number of passengers of each class that any sllch steamer has accommodations for, and can carry with prudence and safety. "Sec. 4465. It shall not be lawful to take on board of any steamer a greater number of passenger" than is stated in the certificate of inspection;