thl'Olt on :the libelant the burden of proving the unseaworthiness of thevessel; .or the 'of the carriers. '. ' A bill of lading IS but a policy of insurance guarantying the safety of the goods against all risks except the perils of the sea!; anrl whenever the ship-owner, in daiming exemption from liability for an admitted loss, pleads a peril' of the sea, he mu.st furnish satisfactory .evidence of the fact, to bring the loss within the exception; otherwise the ship will be accountable to the full extent of the damage. The law of the case is too well settled to admit of or require much discussion. A leading case is Clark v. Barnwell, 12 How. 272, in which it was held that where goods are shipped, and the usual bill of lading given, promising to deliver them in good order, "the dangers of the seas excepted," and they are found to be damaged, the onU8 probandiislupon the owners of the vessel to show that the injury was occasioned by one of the excepted causes. But, although the injury may have been so occasioned, yet still the owners of the vessel are responsible, if the injury might have been avoided by the exercise of reasonable skill and attention on the part of the persons employed in the' conveyance of the goods. But the onU8 probandi then. becomes shifted upon the shipper to show negligence. In the case at bar,' there is no evidence that the cabin and galley windows were protected by shutters at the time the sea broke through, or that the limber-holes had been, kept dear enough to permit the free passage of the water to the wells. If the latter precautions had not been taken, the pumps could, be of little use, if indeed they were not defective or out of order. Want of attention to these matters was neglect on the part of the, vessel's officel's to exercise reasonable skill and care in the performance of their duties. The Sloga, 10 Ben. 315; The Shand, Id. 294; The Oentennial,7 Fed. Rep. 601, 2 Fed. Rep. 409; The Pharo8, 9 Fed. Rep. 912; The Samuel E. Spring, 29 Fed. Rep. 397. A decree will be entered for the libelant, and, unless the parties can agree upon the amount of damages, an order of, reference will be issued to ascertain
THE CITY OF SALEH.
(Di8triet OO'U'I't, D. ()regon. May 14, 1889.)
The regulation contained In section 4465 of the Revised Statutes; forbid. lluthorl.zed by the local ding a steam-boat to carry more passengers than inspectors, held, applicable to such boat, engaged in. carrying passengers on a navigable water of the United States, between porte of the same state only.
OF PAllllENGERS-PENALTY FOR
(Byllab'UI 1ly tM OO'Urt.)
In Admiralty; A. F. Reed, libelant, W. Scott BtJe1ie, ·for libelant. C. J. MakldottgaU, for daimant.
· THE .CITY OF SALEM.
DEADY,' J. This suit is brought to recover sundry penalt!es, alleged to have been incllrred' by the steam-boat City of Salem and her owner,
Robert ThOlnpson, in carrying more passengers on the Wallamet river, between Portland and Clinton & McCoy's base-ball grounds, than she was authorized to by l a w . ' . The case was before the court on an exception to the libel, to the effect that the transportation of the passengers in question was wholly within the state, and therefore not within the power of congress to regulate commerce. The exception was overruled on the ground that the regulation contained in title 52 of the Revised Statutes, concerning the number of passengers that may be carried on a vessel propelled in whole or in part by steam, while navigating any of the waters oBhe United States, is eable to· vessel when engaged in carrying passengers on such water, even between ports of the same state, as a means of maintaining the safety and security of the same, considered as a highway of foreign and interstate commerce. 37 Fed. Rep. 846. The case has since been heard on the libel, answer, and testimony, from which it appearsThat the City of Salem is a steam-boat of 456.65 gross tons burden, and on March 6.,1888, was licensed to navigate the Wallamet river for one year, carrying not more than 60 passengers; that on July 4, 1888, she was permUted by the local inspectors to carry 'an excursion party from Portland to the base-ball grounds aforesaid, a distance of two miles, aridr13turn, brnot more than 400 in Dumber; and that on said day she did carryon it return-trip from said grounds to Portland, not less than 723 passengers, or 323 more than she was authorized to carry. On the hearing, testimony was introduced by the claimant to the effect that the overloading of the City of Salem could not, and did 11ot, in the -opinion of the witnesses, affect the safety or security of the river as a highway for interstate commerce. However this may be, I adhere to the ruling made on the exception to the libel, that the act of carrying this excess of passengers, being plainly contrary to a regulation of commerce prescribed by congress, which, in the deliberate judgment of that body, is necessary to maintain the safety and security of the river as a highway of interstate commerce, will not be held legal by me, sitting in this court, on the ground of unconstitutionality ofthe regulation. Since writing the opinion on the exception to the libel, I have been favored with the opinion of Mr. Justice ROFFMAN in the case of U. S. v. The Frank Sylvia, 37 Fed. Rep, 15&. So far as this question is concerned, the case is on all fours. with this. In disposing of it, this able and experienced jurist said:
"I do not feel called upon, nor hardly at liberty, to consider the very important question raised' at the bal' as to the constitutional right of congress to l'equire the inspection of steamers, or in any way regUlate the use of vessels employed Qn the naVigable waters of the United States, but not engaged in \ or interstate eommerce. The validity of the laws regulating the lise,
equipinent,'and navigation of vessels used OLI the navigable waters of the poited States, as well as those engaged in foreign or interstate commerce, has long and Ij.lmost Universally been acquiesced in. They are, in their object and effect, salutary, and in some particulars indispensable, to the safety of the foreign and interstate commerce, which congress has the unquf',stioned right to regUlate, and the effect of a decision adverse to their validity would be so momentous and far-reaching that I consider it to be my duty. as district judge ofthe United States, to assume their constitutionality, and to leave the question of their validity, in whole or in part, under the constitution, to be passed upon by a higher tribunal."
The finding of the court will be, that penalties amounting in the aggregate to the sum of $3,230 bave been incurred by the owner of said steam-boat for the causes stated in the herein, as amended, which, together with the costs of this suit, are a lien thereon from the date bereof; and, unless paid within 10 days,execution may issue to collect the same. '
R. Co. v.
(District (Jourt, 8. D. New York. May 8, 1889.)
Where the primary fault is on the vessel bound to keep out of the way for Improperly,attempting to cross the other's bows, the latter will not be held In fault except npon a preponderance of proof that she did not stop and back 8S Soon 88 she had reason to apprehend danger, because the other could not or would not clear without her co-operation. '
STEAMERS-OROBSmG Bows-BACKING WHEN DANGER AP, '
In Admiralty. Libel for collision. Goodrich,Deady Goodrich, for libelant. Wilcox,'Ada7tt8 Macklin, for claimant.
BROWN, J.' About half-past 6 A. M., November 13,1888, as the libelant's stearn-lighter Cement Rock was going up and across the East river towards the New York shore, she came in collision, from 200 to 400 feet ,off pier 39, with the ferry-boat Alaska, which was on one of her usual trips from Williamsburgh to Roosevelt-Street slip, New York. According to tbe testimony, the signal whistles of each boat were not beard as given. The Cement Rock, however, having the Alaska on bel' starboard hand, was required by the rules to go to the right. There was nothing to prevent her doing so. Tbe tide was stronK ebb. Instead of observing the rule, she undertook to cros.s the Alaska's bows to get into slack water on tbe New York shore, and gave a signal of two whistles. The pilot of the Alaska heard, as he says, but one blast, and gave a reply of one, which was not heard on the Cement Rock. The Alaska continued to sheer somewhat towards the New York shore, beading for bel' slip.