having taken an assignment of the repair claim and lien, and the shiP. wright still retaining possession as agent for Mr. Every, the assignee. The evidence shows a bona fide assignment of the shipwright's claim and lien, to obtain moneys tb pay bills that the shipwright had incurred in making the repairs. The repair bill being a maritime contract, it is considered, in this court, competent for a shipwright to transfer his common-law lien along with his claim, and to enforce such a lien at the suit of the assignee in admiralty for the sale of the vessel, or of the owner's interest in it, in order to satisfy the common-law lien. The B. F. Woolsey, 7 Fed. Rep. 108, 116; The Two Marys, 10 Fed. Rep. 919, 925; Nash v. Mosh(f1', 19 Wend. 431; 3 Pars. Couto (6th Ed.) 244; 2 Kent, Comm. 639. Both libels were, therefore, properly filed. The libelant Park is entitled to possession of the vessel on payment of $1,578, without interest; and Every is entitled to a decree in his suit for the same sumj and the costs of the two suits must be divided be, tween the parties.
(Dlatrict (Jourt, E. D. Michigan.
Under a marine policy exempting the underwriter from liability for" all perils. losses. misfortunes. or expenses consequent upon, or arising from, or caused by, * *' * the want of ordinary care and skill in navigating said reco,v,er general average expenses incurred in resvessel," the cuing the vessel from a peril brought about by negligence in her navigation.
, ,. ,
POLICy-:"ExEHPTIONS-NEGLIGENCE OF INSURED.
Where a vessel was negligelltly,run ashore, and, a storm coming on, was voluntarily scuttled to save her from total loss. and other general average expenses were s\lbsequently incurred, held, that the stranding, and not the storm, was the proximate cause of the loss. .
(Bgllabu8 by the (Jowrt)
In Admiralty. This was a libel by the Northwestern Transportation Company, owner of the Ontario, against the Boston Marine Insurance Company, to recover a general averftge loss. The facts connected with this loss were substantially as follows: The propeller Ontario, valued at $55,000, was insured against total loss and general average only in five companies, of which .· the respondent was one. The policy in suit contained the following exception to the general liability of the respondent as insurer: "Excepting all perils, losses, misfortunes. or expenses consequent upon, or arising from. or caused by, the follOWing or other legal.excepted causes: 'I< * * Damages that may be done by the v:essel hereby insured to any other vessel property; incompetency of the master or inSUfficiency of the crew, or want of' ordinary care and skill in navigating said vessel, and in loading, stowing, and securing the cargo of said vessel; rotte'nness, inherent defects, overloading. and all other unseaworthiness; theft, barratry, or robbery."
On the 11th day of October, 1883, the propeller, laden witba large ,cargo of miscellaneous merchandise, left the port of Samia, Ontario, bound for Duluth. Wbile endeavoring to enter the barbor of Southampton, on the east shore of Lake Huron, and while running at her ordinary speed of nine or ten miles an hour, in a 'dense fog, the propeller took the ground upon a shoal near what is known as "Nine Mile Point," a short from Southampton. She stranded hard and fast, and in her struggles to relieve herself, broke her wheel and shoe. Efforts were made to get her off by the officers and crew, but, failinK so to do, they sent for lighters and tugs, and notified the insurers. Before the arrival of the tugs, the wind and sea increased so much, and the steamer began to pound so heavily, that it was found necessary to open the seacocks, and allow her to fill and settle to the bottom. This was done, and thereby the cargo was greatly damaged. Soon after she was scuttled, a wrecking agent representing the underwriters appeared upon the scene, and took charge of the work. She was subsequently gotten off, and, with her cargo still aboard, taken to Samia. The owner, claiming that there was a general average loss, caused an adjustment to be made, and filed this libel to recover the propeller's share of the damage done to the goods by water, and the expense ofreleasing the vessel. The insurance company defended upon the ground that the 10s8 was occasioned by negligence, and was within the exception of the policy. Moore &- Canfield, for libelant. H. H. Swan, for respondent.
BROWN, J. At the time this case was originally submitted the principal argument of the respondent was addressed to the point that the action had' not been brought within the time required by the policy. The question was indeed raised that the libelant was not entitled to recover by reason of the exception in the policy of losses and perils occasioned by negligence, but the point was not dwelt upon or considered with the care its importance demanded, and an interlocutory decree was ordered for the libelant without much reflection. The case comes now before the court upon the report of the commissioner, to whom it was referred to compute the damages, and I am now asked to reconsider the question of liability as if it had never been determined. As no objection has been made by the libelant, I am quite willing the case should take this course. 1. There can be no doubt in my mind that the master was guilty of gross negligence in approaching the land, and in endeavoring to enter the harbor of Southampton at the speen of nine or ten miles an hour, in a fog which he admits himself to have been very wet, dense, and heavy, -"as thick a fog as we ever have on Lake Huron;" and if the loss had been total, libelant would not have been entitled to recover by reason of the exception in the policy exonerating the insurer from liability for all perils, losses, misfortunes, and expenses arising from the incompetency of the master or the insufficiency of the crew, or want of ordinary care and skill in navigating the vessel. This question was fully considered by this
,lieuj!etci, Nlivigci:tiiJrr:/; 0:>."v.In8u7tance,Qj.,26 Fed Rep.. 596.
i538. : '.
courtin:ltbe:ctise" of TheBpartan, ,1'13potted under the name 'of The RicheOther cases toihe' sameefl'echre The Portmnoutk,. 9 Wall. ,682; ' The .Costa Rica, 3,Sawy.
In this ea;se, I do not' nndel'$tand it to be seriously claimed by antthatit caU'recover for damages occasioned by the stranding of the Ontano.'1'hdlse are excluded .bothby reason of the exemption of the underwriters for all losses directly caused by the negligence of the master, alIld' the policy does not. cover cases of 'particular average or partiallalls. But it is iusisted that its right to recover general average expenses is notiU1paired by the negligence attendant upon the original stranding of the propeller, because the proximateicause,of these losses and expenses was the yoluntarysacrificeoccasionedby the souttlingof the steamer, which is all that is necessary to lay a foundation for a claim for general average. The real question then is, can the insured, under a polundarwritersfrom perils and losses consequent upon icy and arising, from or caused by. negligence, recover general average, expensesil1curred in,rescuing the vessel from a peril produced by negligence in her navigation? ' (1) Hthis were an action by:theship.owneragainst the owner ofthecargo for.!tigetlerahtverage contribution, we apprehend that it would be a sufficient answer to show that the :necessity for the sacrifice was occasioned by the negligence or unseaworthiness of the ship. We uriderstandthe law to be as stated in Gourl. Gen. Av. 15, that "ifthe necessity for the generalaverage act arises through the unseaworthiness of the vessel, the vice propre of tbedl1rgo, or the negligence or barratry' of the master or crew, nooontribution generally would be due·. If the danger and the necessarys!lr(:.. rifice are produced by the fault of the vessel or captain, and the vessel appears as a claimant for contribution, it would seein a proper answer that he by whose neglect the loss had been produced should bear it without relief." See, also, Lowndes Av. 138; Chambe:rla-in v. Reed, 13 Me. 357; The Ann Elizabeth, 19 How. 162; Ros8V. The Active, 2 Wash. C. O. 226; TheJenny Jonf38, Deady, 82; Bentley v. Bustard, 16 B.Mon. 643; The Norway, Brown & I.J. 377; Schloss v. Heriot, 14 C. B. (N.S.) 59:. There can be no doubt in my mind; under the facts of this case, that if ,the owners of the cargo sacrificed·had sued the vessel and her owners, they would have recovered not, merely a general average contribution, but the entire value of the property. In other words, this principle is but a restatement of the general doctrine that a loss produced by a peril of the sea consequent upon negligence wHl be deemed a loss by negligence, and not by the aot of God. ThePorlsmouth, 9 Wall. 682; The Hornet, 1'7 How.' 100; Davia v. Garrett,,6 Bing. 716; Williama v. Grant, 1 Conn,. 487; Grosby v. FUch, 12 Conn. 410. ., Is the same rule to be applied.as between the ship-owner 'aU'd;,tne un;. 'derwriter? " There is no doubt that, in the absence ora special provision. j,n:the policy, the underwriter is Hableio1- the consequences of all negli'gence on the part of the master and crew not amounting to· barratry or unseaworthiness. 1 Pars. Mar. Ins. 381.
The fairness ahd jUBtmlsS ofexetnptionBfor negligence th:policieiiof insurandemay admit of considerable doubt; but Bolong as ship-oWfiel'8 will consent to accept such polidies. they must expect that :oo'Urui:will give them the construction ordinarily put upon. aimilar exemptions. The remedy, if one be needed, must be applied by the legislature, andn6t by the courts. '. ",,The clause in this policy excepts from the' general liability of the underwriter all perils, losses, or expenses consequent upon or arising from or caused "by the want of ordinary dine and skill in navigating the vessel," and if. in answer to this, it be said that the immediate, proximate cause of the loss in this case was a: peril of the sea, the defendant may Justly reply that the policy also excepts all "perils" caused by negligence. ' It would seem to follow that, if the vessel had been brought intO peril by the negligence of her master, the general average expenses .inctlrred in ing; her from that peril, also fall within the exception of the policy.. Indeed, if the vessel be liable, and the insured be exonerated for aU:damages done directly by the stranding, it is difficult to see wby the saine rule should not beappliad with regard to losses and expenses incurred cuing the vessel. It is not less an "expense" or "loss"caused'by; msing from, 'and consequent upon'the original neglig;ence, by reason ofthe'fitct that it was voluntatily incurred.: Had the act tion and effect, or had there been a distinct intervening pause, such as fire oroollision', the'dalllages consequent thereon would undoubtedlY. be attributed tOsucb intervening cause. Such was the casein InsuranalCo; v. Ada7M,123 U; S. 67,8 Slip; Ct. Rep. 68. In this case there warftm exemption of liability for all losses "arising from or caused by * ...it< barratry,'" .... *or occasioned by the bursting of boilers, the-'o<>llapsing' of flues', explosion of' guupowder, or derangement or breaking the: engine or maehinery, or any consequence resulting therefrom, unless the' aame be aausedby unavoidable external viulence." The evidence' showed that on the arrival of the stea.mer at Louisville the master gave' thensnalsignlll, which was transmitted to the engineer, that he had no present need of the engine., The joint of the mud-valve Was out oforder, threatening damage to the cargo,and making repairs necessary. The thereupon blown off in order to make repairs. The captain, coming on board, saw that repaiirs Were going' on, and knew' that the mud-valvecon'nect¢d,with the boiler needed repairs. He sUbsequenti'y: went on deck, and without making inquiry of the engineer as to the con'" dition of the steam, or receiving any notice from him that the steam .was' ready, gave the signal to let go the boat. At that time there was not 'Iufficient steam topropelthe vessel. It was shown to be the custom··of +he',river for the master; before giving the order to let go, to inquireo( the engineer' as to the condition of the steam, and await his reply that the steam is ready before giving the order to let go. Upon being started, tbesteamer waacarried by the current down the river, and o\'Ter the falls, and, striking. :pil'lr, was badly damaged, in consequence of whicnshe sank. It was held tMtthe loss was not the consequence ofthe derangemtlllt of the mud-valve, and therefore not within thee:Xception ,of the
policy; ·butrthat the proximate causa of the loss was a peril ofthe river, occasioned by negligence of the master in not ascertaining, before giving the signal to let the vessel go, that she had steam enough for her proper management. It is that in delivering the opinion of the court Mr. Justice HARLAN uses language which would seem to indicate that, if the loss was occasioned by a peril of the river, it would make no difference that it was remotely caused by the negligence of the master; but the case did not call for this observation, as there was no cxceptionin the policy of losses occasioned by the negligence of the master, and the law has ever been well settled in this country that for such negligence the underwriter, in the absence of any stipulation to the contrary, is liable. 1 Pars.. Mar. Ins. 534, note; Waters v Insurance Co., 11 Pet. 213; InsuranceC,o. v. Webster, 83 Ill. 470; Insu,rance Co. v. PoweU, 13 B. Mon. 311; Insurance Co. v. Transportation Co., 117 U. S. 325,6 Sup. Ct. Rep. 750, 1176. This case, however, is readily distinguishable from the 0l1e under consideration in the following particulars: Ji'irBt. There was no exception in the policy of liability for losses occasioned by the negligence of the master or crew. Second. Apparently the derangement or breakage of the machinery, for the consequences of which the company was not responsible, had been repaired. Third. But it is clear the accident was not due to such derangement or breakage, but to the negligence of the master in giving the signal to start the boat before inquiring oithe engineer whether there was sufficient steam. As this negligence was followed by the sinking of the ves8el,-,.a peril of the sea,-,.for of which the underwriter was responsible, there would seem to have been no doubt of the owner's right of recovery. Here, it will be noticed, there was a distinct intervening cause between the remote cause-the derangement of the machinery-and the loss, viz., the negligent act of the master in starting the boat. A. case nearer in point, .and an instructive one upon the subject of proximate and remote cause, is that of Dole v. Insurance 00.,2 Cliff. 394. In this case the policy was warranted free from capture, seizure, or detention. During the Rebellion, the ship was captured and burned by the commander of a rebel privateer, and it was insisted on behalf of the plaintiff that the fire, and not the capture, was the proximate cause of the loss; that the fire. not having been a means used in taking possession of the ship, but having occurred after the taking was complete, and after her assailants had obtained undisputed possession of her, was the efficient and sale cause of her loss. But the defense contended that the hostile act of the officers and Crew of the privateer were the efficient and prevailing cause of the loss and destruction of the vessel, and that the taking and the burning were parts of one and the same act of hostility. Mr. Justice CUFFORD took this view, and held that the capture was, made for the purpose of destroying the vessel, and that the capture and bum,. ing were parts of the same act. The capture was held to be the efficient, predominating peril, fOfwhich the complJ,ny was not liable, and judg-
ment was rendered for the defendant. The learned judge cites in support of his decision the case of Water8 v. Insttrance Co., 11 Pet. 213, in which a vessel had been set on fire by the master and crew with a barratrous intent, and it was held that the loss was properly a loss attributable to the barratry, as its proximate cause, as it concurred as the efficient agent with the fire, when the injury was produced. It was said that if the master or crew should barratrously bore holes in the bottom of the vessel, and the latter should thereby be filled with water and sink, the loss would properly be deemed a loss by barratry, and not by 11 peril of the sea, although the flow of the water should co-operate in producing the sinking. It was also held in this case that any explosion of gunpowder caused by the fire should be deemed a loss by fire, and not by explosion. The rule announced in the case of The Portsmouth, 9 Wall. 682, is consonant with these principles. This was an action for the loss of part ofa cargo by a jettison resorted to in order to lighten the vessel after she had been run aground by the negligence of the masterjand the question was whether the jettison was occasioned by the dangers of lake navigation, for which, under the bills of lading, the vessel was not liable. Mr. Justice STRONG in delivering the opinion, observed that"A loss by a jettison occasioned by a peril of the sea is, in ordinary cases, a loss by perils of the sea. But it is well settled that if a jettison of a cargo, or a part of it, is rendered necessary by any fault or brea<lh of contract of the master or owners of the vessel, the jettison must be attributed to that fault or breach of contract, rather than to the sea peril, though that may also be. present, and enter into the case. This is it principle alike applicable to the e'xceptions in bills of lading and in policies of insurance. Though the peril of the Bea may be nearer in time to the disaster. the efficient cause, without which the peril would not have been incurred, is regarded as the proximate caUBe of the loss."
It will be observed here that the court expressly repudiates a distinction formerly taken between bills of lading and policies of insurance with regard to what shall be deemed a loss by a peru of the sea. This distinction has also been fully exploded by the house of lords in England in the recent cases of Wilson v. Owners, etc., 6 Asp. 207, 12 App. Cas. 503, and Hamilton v. Pandorf, .6 Asp. 212, 12 App. Cas. 518, 525. Pertinent illustrations of this doctrine of proximate and remote causes are also contained in the opinion of Justice STORY in Peters v. Insurance Co., 14 Pet. 99, 110. In this case the vessel had met with a collision in the River Elbe, and, upon being libeled in the admiralty court at Hamburg, was condemned to bear half the entire loss, although the court decreed that the collision was without fault on the part of either vessel. It was held that the underwriters were liable, under the peculiar law of Hamburg fixing the liability for half the loss, and that the collision was to be deemed the proximate cause of the loss. The doctrine of proximate and remote cause was admirably illustrated by Mr. Justice STORY in this case in his argument upon page 110. See, also, InSurance Co. v. Sherwood, 14 How. 351. The result of these cases seems to be tho.t by v.37F.no.5-15
cause ,lie: .that which 'instantly precedes or the loss 10 P010t of hme, d(1)litiant cause, the cause but for which the loss would not have ooouritd; 'lind between which and the loss no other distinct cause intervened; I, ( L.': , " : apparently, fu SOtll9' extent, the pertinence and force of theselluggestions, the 1earne<,ladvocate for libelant'insists that such diStinct;intervening cause did exist in this case in the storm or threatened stormwhi'chia claimed to have created the necessity for the scuttling. The factsiiith'isconoection, putting tBern in the most favorable light for the libelant, areihat the stranding, which occurred about half past 2 in the aftern060,' no serious damage to the steamer. At this time the weather was plea,sant, the sea, smooth, and no immediate danger threatened the vessel or herCcargo.After making some'fruitless efforts to get her off, it appeltrsthat; some tw06r three hciurs after she stranded, the master sent one ofhis officers ashore ror 'the' 'purpose of telElgraphing for a tug. Up to thattime she had not pounded, nor was she considered in danger. About half past 5 o'clock in the afternoon, and some five or six hours after the stranding occurred,thewind changed from the north.west,and the sea began to rise; and about 1.1 o'clock in the evening it became necessary to $cuttlethe propeller to prevep.t her p(}unding on the boulders, and being driven further ashore. If this had not been done, the steamer would )?l'obablyha'Ve been a total wreck, and the cargo lost; the wind ollhanging frorti north-west to north; and blowing hard, with aheavy sea running. "qn Monday night thEltugs and steam-}:H:uupS arrived, and operations .were)eguntogeUhe steamer.off. These were continued until Tuesday afternoon, when she was gotten off, and left: for Sarnia in tow , of the tugs., i i ' i , The question is thus presented whether the storm which arose after the stranding must be deemed the proximate cause ofthe voluntary sacrifice of scuttling, and the subsequent expense of tllgS, and Iightersto relieve the certainly was not the occasion of the whole of this expense, since t,he 'steamer had made fruitless efforts and the masterhad sent one of his officers ashore for the Jor'a tug, some hours before the stottn arose. But, irrespecti"e of this considerntion, wal:\ the storm such a distinct, 'inde- . would have been, had it hroken pimdeIit cause of loss as 'fire or a' out or while the itgl'ound,as renders the insurer liable? In my6pinion it was not. .' To have this effect there must be not only a new agency productive of 1013s, but it must have been ahagellcy and ohe could not teasonably have i>een antlCIpated asa'(\6n'sequence of It.. Now, to say that a storm may"tlOti.l?e expected toJoUow upon ,a strimding, by which the by the strapdiqgmay be increased, is to contradictthe experience ()f sailor upon the lakes. Indeed, the danger following upon a stranding, and the amount of salvage allowed in such cases for rescuing the vessel, is determined very largely by the sitl,lation of the vessel stranded. If she be ioan e:Jcposed position, where storm is
likely to do would hesitate ioallow the expenses ofsal'i'ing her in general average, though the weather aUhe time were never so pleasant; while if the stranding takesl"lace in protected of waters, where a storm ,cando, heit' no additional getting'heroff is not regarded as a salvage claim, but as an cident of navigation, and chargeable to the alone; The Alcona; 9 Fed. 172., Now, if it had not been for the origibal stranding in this case, there is no reason to believe that the storm, which was one of the 0l'dinary iucidents of navigation,would have put the steamer in any whatever..'. It was the stranding, and that alone, which made the storm an element of danger, and this was a cause which never ceased complete. The setiqence of events ,from the to operate until the loss original shock of striking the rock u,nCl the final relief of the vessel, is unbroken by asillgle incident that could not reasonably have been anticipated. If the steamer had been released from this peril, and before a arriving at her port of destin[ltion had encountered and been lost storm, tilat w'otild \lodoubtedly have been proximate cause of the loss, though it were proved that, had she not been delayed by the stranding, she would destination before the stonn arose. Dan'iels v. BaUantfite,23 Ohio St. 532; Railroad Co. v. Reeves, 10 Wllll. 176; Morrison v. DaVis, 20 Pa.St. 171; Denny v. Railroad Co., 13 Gray, 481. But where the storm occurs while the negligent act isstill in fUll operation, and injury by such stofm might reasonably be anticipated as a consequence of the negligenc!l, the storm will not be deemed the dominant, efficient cause of the ross. While there may be a few authorities, both in England and in this country, which lend some encouragement to the position assumed by the libelant here, the federal cases lean distinctly in the other direction. In Railroad Co. v./(ellogg, 94 U. S. which was an action to recover for the destruction by fire of plaintiff's saw-mill, the plaintiff alleged the fire was negligently communicated from the defendants' steam-boat to an built of pine lumber 120 feet high, owned by the defendants, and standing on the bank of the river, and from the to plaintiff's saw-mill and lumber-pile, while an upusuaIly strong wind was blowing .from the elevator towards the mill and lumber. The court submitted it to the jury to find whether the burning of the millll.nd,lumber was a result nll.tul'ally and reasonably to be expected from the burning of the elevator, under the circumstances, and whether it was the result of the continued influence and effect of the sparks from the boatwitllOut the aid or concurr,ence of. other causes not reasonably ,to have been expected. Tqe instructiqn was held to be correct, and in delivering opinion' Mr., Justice observed:
"It is generally held that, in order to warrant a finding that negligence, 01 an act not amounting to 'Wanton wrong, is the proximate cause <>fan injUry. it must appear that injury was the natural and probable consequence of the negligence or wrongfUl act, and that it oughttobave been fores'een in the light of the attending circumstances. lie lie, ... But when thereis no intermediate efficientca4\ll:l, tbe original wrong must, be all reaching to
the etract, and proximate to It. The Inquiry must therefore always be whether there was any intermediate cause, disconnected from the primary fault, and self-operating, which produced the injury. II In Insurance Co. v. Boon, 95 U. 8.117, a policy of fire insurance exempted the company from liability for any loss or damage by fire which might happen by means of any invasion, insurrection, riot, or civil commotion, or of any military or usurped power. An armed force of rebels, under military organization,· surrounded and attacked the city in which the property was located. Finding the city could not be successfully defended, the federal officer in command, in order to prevent the military stores deposited in the city hall from falling into the possession of the rebel forces, set fire to the hall. Without other interference or agency the fire spread to the building adjacent to the city hall, and through two intermediate buildings to the store containing the goods insured, and destroyed them. It was held that the fire was excepted from the risk undertaken by the insurers, upon the ground that the burning of the city hall and the spreading o£ the fire afterwards was not a new and independent cause of the loss. On the contrary. it was an incident-a necessary incident-and consequence of the hostile rebel attack on the town,-a military necessity caused by the attack. It was one of a continuous chain of events brought into being by the usurped military power,-events so linked together as to form one continuous whole. The case of Brown v. In8urance (70., 61 N. Y. 332, is much hke the present. A policy of insurance upon the cargo of a canal-boat provided the policy should cease if the boat was" prevented or detained by ice, or the closing of navigation, from terminating the trip;" and it was held that where the canal-boat had been driven ashore and stranded, and ice had subsequently formed around it during the night, so that it could not be reached, and was subsequently broken in two by the ice, and the cargo injured, that the predominating efficient cause of the loss was the storm, and not the ice, and that the company was liable. The court observed: "The detention caused by her 1;leingdriven out of her course was due, beyond all question, to the gale. Her detention on the shore until the ice formed around her was due to a consequence of the gale,-stranding. Did that cause cease to operate because ice formed in front of the boat, and between her and the channel? Is it not rather the true view that the presence of the ice prevented the removal of the cause which created detention, and was slowly working the destmction of the cargo?" That a storm is not to be regarded as an unexpected incident, or ODe which a prudent man should not anticipate, either upon land or water, was held in the case of Poeppers v. Railway Co., 67 Mo. 715, and in De:rry v. Flitner, 118 Mass. 134. It was said in these cases that the rise of the wind could not be regarded as the intervention of a new agency, so as to relieve the defendant from the conseqqences of preyious negligence. Upon the whole, it seems to me that the storm in this case, which was not one of unusual violence, was such a consequence of the stranding as might have been reasonably anticipated, and ought not to be considered as a distinct, independent cause of the voluntary scuttling. Bearing in
M'KAY tI. ENNIS.
mind the very broad exemption of this policy "of all 'perils, losses, and expenses arising from or consequent upon negligence," and that jettison or voluntary scuttling is not a distinct peril or loss of itself, but is such only when covered by a peril insured against, I find it impossible to avoid the conclusion that the loss in this case was within the exception of this policy, and that the libel should be dismissed.
McKAY et ale v. ENNIS et al. l
(Di8triet (JQU'I't; 8. D. New York. December 21, 1888.)
BBlPPING-BILLS OF LADING-MISCONDUCT OF MASTER.
A master who is in doubt as to the weight of cargo received, and who con· sequently inserts in the bill of lading. "Vessel not responsible for difference in weight. " is not chargeable with misconduct in signing such bill of lading, though it eventually appear that it calls for more cargo than was actually received on board. A chartered vessel received on board less cargo than was called for by the bill of lading. through fraud or error of the consignor. but the master. before signing. inserted in the bill of lading. "Vessel not responsible for difference in weight," and she thereafter duly delivered her cargo. but, owing to the error in the bill of lading. the draft drawn against it being protested. and the transmission of the bill of lading being delayed. no consignee appeared to receive the cargo on arrival, and it was consequently taken by the collector and afterwards sold for customs duties. Held, that the ship had made a "right delivery" of her cargo. and that the charterers, who were also the con· signees of the cargo, were liable for the agreed bire of the ship, notwithstanding that they had suffered an indirect loss through the error of the bill of lading. by not having funds sufficient to meet the draft drawn against the quantity specified in it; such damage being too remote to be off-set.
BAME-CHARTER-PARTy-WEIGHT OF CAllGO-LTABILTTY OF VESSEL-BET-OFF.
In Admiralty. Action for charter money against charterers of the bark Platina. R. D. Benedict, for libelants. Whitehead, Parker &: Dexter and Mr. Parker, for respondents.
BROWN, J. On the 6th of February, 1888, the libelants, owners of the barks Platina and Silicon, entered into two separate contracts, by which they cbartered those vessels to the respondents to proceed to load with ore at Santander, Spain, and to deliver the same at Philadelphia. The Platina loaded at Santander as agreed, and, having received her cargo from Casuso y Hijo, a bill of lading therefor to his order was delivered to him by the master. On arrival at Philadelphia, about May 1st, no person appearing with the necessary bill of lading or other documents authorizing them to receive delivery of the cargo within the time limited by law for unloading, (Rev. St. § 2880,) it was directed by the collector to be discharged and
lReported by Edward G. Benedict, Esq., of the New York bar.