GtERARD ". THE LOVSPRlr>G.
ant does not use the feeding-stem of the second and third claims. Not only does his stem 6top far short of the upper end of the reservoir, but it is not provided with the U-shaped groove, or placed close to the wall of the reservoir so as to form the "internal capillary channel" of the patent. Other differences between the two structures exist, but they are of minor importance. Sufficient dissimilarity has already been pointed out. I 30m constrained to hold, therefore, that the defendant does not infringe. 'Where the patent relates only to a progressive step in a series of improvements the tendency of modern decisions is more than ever towards a strictcoDstruction of claims and a finding of non-infringement in doubtfulcases. Snowv. Railway Co, 121 U. S. 617,7 Sup. Ct. Rep. 1343; Newton v. Manufacturing Co., 119 U. S. 373, 7 Sup. Ct. Rep. 369; Paving Co. v. Schalicke, 119U. S. 401, 7 Sup. Ct. Rep. 391; Hartshorn v. Barrel OJ., 119 U. S. 664,7 Sup. Ct. Rep. 421; Grier v. Wilt, 120 U. S. 412, '1 Sup. Ct. Rep. 718; Brewing Co. v. Gottfried, 128 U. S. 158, 170, 9 Sup. Ct.' Rep. 83; McCormick v. Graham's Adm'r, 129 U. S. I, 9 Sup. Ct.. Rep. 213; Sargent v. Burge88, 129 U.S. 19, 9 Sup. Ct. Rep. 220; Peters v. Manufacturing Co., 129 U. S.530, 9 Sup. Ct. Rep. 389; WaterMeter Co. v. Desper, 101 U. S. 332. It would seem that the world is wide enough for both these patentees, and that each should be permitted to enjoy the fruits of whatever novel features he has supplied to the art. The bill is dismissed.
(DiBtrWt Court, D. Smith Carolina. May 16, 1890.) L
SALE-WREN TITLE PASSES.
Libelant contracted to sell and deliver of a chartered vessel, for lOad. ing, a quantity of phosphate rock. He had a copy of the charter-party in his possession, and selected the stevedore and lighterman himself to deliver the rock. After several lighters had' been delivered and made fast to the vessel, one of them capsized. Libelant took bills of lading to his OWJ1, order, and surrendered the receipts of the ship-master for all the rock except the load tl1Us lost, the receipt for which he retained. Held, that libelant showed an intent not to pass the property in the lost rock, but to retaip. the jU8. disponend'l,and a suit therefor against the vessel was properly brought in his own name as owner. The charter-party provided for delivery of the rock, "the cargo to be brought Q,long-side and taken frolll along-side fre!'! froJ;ll expense and.risk to the ship," lOl\ld the charterer reserved "the option of appointing stevedore for loading at the sbip's expense." There was no provision that lohe stevedore was to act uuder the master's orders. Part of the rock was towed to the ship in lighters, and made fast, andre. ceipts therefor were given by the master. One of the lighters, after being fastened, capsize.!, losing. her load. Held, that an action in rem for the lost rock could. not be maintain.ed against the vessel.
ADMIRALTy-PROCEEDING IN REM.
In Admiralty. Brawley & Barnwell, for libelant. J.P. K. Bryan, for claimant.
SIMOr>'rON, J. The libel is filed for the recovery of the value of a lighter 'load of phosphate rock. Libelant on 26th December, 1889, by sale bill, :sold toone Gesterding, of Hamburg, Germany, about 2,000 tons kiln-
<Wed phosphate rock of a cel'tainqltality and. price, for delivery JanuarY, , Febtuary, along.side vessel, cash against documents. Vessel to of. cargo as pOIll'ilible"at phosphate works, near Charleston, S. C.;: balance to beJightered down to city.by seller. Thereupon Gesterdingentered into a charter-party with the owner of the Lovspring, and s,ent. her to this port for a load of rock. The special provisions of thechll-rter-party will be noted When needed. It required the captain to apply, for cargo at Charleston to the libelant. This he did. Libelant directed him to the Rose Phosphate Works, on Ashley river. The bark then took in part of her cargo, and dropped down the stream, and anchored,forthe remainder. Libelant engaged Thomas Young as stevedore,and hired from Young a tug and lighters. Two lighters, with pho$phate. rock, were towed down to the bark on the, of 26th Mal'c.b; 'rllaching her at 8 ·o'clock, 'and the lighters were ,roade fast to with two lines, the tug furnishing one for each lighter, the ; . others. The master gave to the tug-master) areceipt for the two lighters with phosphate rock in good order. For some reason YO\lng a.nd the master could not agree, and .with the consent of both parties. Lae.was substituted as stevedore, and went aboard with his gang on 27th March.. One of the lighters capsized a.bout2 o'clock on that'daY, losing her load. ,The mates and crew of the bark say that they noticed nothing about the lighter indicating this until it went over. A witness not connected with this case, whose place of business was on shore about 200 yards opposite to the bark, says that the lighter showed a list at7 A. M., and that this gradually increased until she went over. When the tug had made fast the lighters she went away, leaving none of ber men in charge, and, no on the came back to look after the lighters. . The Pl'St, question made in this case is, in whose name should the action be brought?' The claimant contends that Guerard, by his contract with GesterqjJ.'lg·, agreed to deliver the rock along-side the vessel; that he alleges and haS"offered proof tha1'he did deliver this rock along-side; that the , property",Jf this be so,'pallSed, to his vElndee, who alone can sue. The contractOfsale in this case was not for a specific chattel. It was tor about of phosphate tock. It would have beensatis6ed by the de2,000 livery.of any rock answering the character and quality of that agreed to .In Siuch a case the appropriation, in that sense of the term which alone would pass the property from the vendor to the vendee, is long as tb,eyendor shows by some act his determination not to retain j·lJ,8,diaponendi., This act may be in thelorm of the bill Of lading which he requires. Equally so would be his retention of the ship's receipts to the lightermen, which must be surrendered for the bill of lading. ·Wait v. Baker, 2 Exch. 1; Van Casteel v;Book,er, Id. 691; T«rnel' v. TrU$tees, 6 Exch. 543; Gabarl'O'nv. Kreejt, L. E:x.ch ·. 274. Mr:. BenJamin, in his book on Sales, 328 et seq., cites these cases and many others. His conclUSion 'upon :t'he/CRses, among 'others, is this: "(5) Although, as a general rule,tbe delivery of goods by the vendor on board the purchaser's own vessel to thepurchaaer and passes the property,
,OPE,llAltD ". THE LOVSPRIKG.
yet the vendor may by special terms restrain the effect of such delivery, and reserve jus disponendi, even in cases in which the bills of lading show that the goods are free of freight: because owners' property. And on 8 sale of goods which are not specific, although the goods have been delivered on board a ship of,or,chartered by,the yet, in the absence of any appropriation Qfthe goods in the fulfillment of the contract previous to shipment, theJact that the vendor has taken a bill oflading to his own order, or tha;tofa third person, will the property in them.·from passing to the purchaser." Amer. Ed., by Kerr. In the': present case,libelant when, he finished loading the hark took th,ebille to his own order. Be did not. iijclude in these bills the lost rock"nor did he require .the master to do so, as was done in Bulkley v'. CottcinG>.,24 How. 38G., He did not demand 8eeparatebill for this ;rQck., He surrendered all tbe other receipts to hislighterman. He ,retained that for this lost lighter. Thus he demonstrated his intent not to 'paas' the property and jus disponendi. He ac,*ptsthe loss as his, tl.nd it goes withou.t slJ;ymg that his vendee concurs with ,him. This does not in any way ba.rkjor dE/prive her ofanyadv!1ntage of p!>8ition she, would otherwise enjoy. Uihe lost rock be the property of the <fuarlerer, and he brought this action, he would, be bound I:>yand And she would be pr-otected by all the limitations,c<mditi.oos; and exceptions of the charter, party. But sO,a1so, is the libelant. He was ,the agent, in that behalf of the cha:rterer, ,haQ. in his pqssessiopa copy of the charter-party, selected the stevedore, engaged the, lighterman., He deliveJ;ed the rock, orattampted to deliverit, this ch8,!l',ter-partYt and eoJely 'because of it. He knew precill.6ly bow,,,ip, what capfl.city, 'under what limitation!3-1 qualifications,and.,exceptiQns, the cargo was, sent ,to tbe'b4rk in the stream. , He is as much bound 'as chartE)rer woulii ,be·.'H-e could not treat this vessel as a commop carrier. He knew that general ship, up for agtll1eralcatgo,. carrying goods for anyone offering them. Macl. Shipp. 115, 391. He knew that sbe was underspeQial charter to one man for this voyage for one purpose, and with all her freight room engaged, , This, action is properly brought in his name. and, as he alleges, as owner. Our next inquiry is, has he a cause of action in Tern against theba,rk? By his. own contract and that of the charter-party, a portion of the cargo was be delivered in the stream. His responsibility for thisportlon ,depends upon the express contract, and, where this is silent, upon: the general usage subject to w1)ich contract was made. Maude ,&P. Shipp. 136. This charter.party provides: "The cargo to be brought along-side and taken from along-side free of expenile and: risk to the ship, any custom of the port to th,e contrary notwith· .tanding.· Ship to receive cargo at charterer's wharf if reqUired, provided issufticient water, OJ' to load as deep as possible, always afloat, as charteter' or appoint, at wharf, takil)g balance of cargo in stream. .. .. * Whenever orde.red. the ship is to load and discharge at such safe or place, always afloat, a8charterer or his agent shall appoint. the option:of loading at ship's ex. ;lIeDS'.'.·., ' ;
The place of loading must be safe. As the charterer selects it, he is responsible for its safety. If, therefore, when the cargo was being delivered tit the phosphate landing, the wharf, by reason of some defect in it, had fallen in, and the rock had been lost, there can be no doubt that the loss cduld not fall on the ship. As the wharf must be safe, so, also, the merlOS used in transferring cargo from the shore to the ship in the stream safe, "free of expense and risk to the ship." And for this also the shipper is responsible. That is to say, if he uses lighters· for this purpose they must be tight, staunch; and seaworthy in all respects; and must remain so as long as they are so used. Lyon v. MeUs, 5 East, 437; Word v. Leathers; 97 U. S. 379. I say they must remain so. The master had no 'control whatever over the stevedore. He was selected by the shipper. The provision S0 common in charter-parties, that the Stevedore,though named by shipper, should act under the mastel"s orders, is- omitted in this chartwparty. So the master could not put a pound in his ship himself, or receive it in his ship,until it suited of this the! st&vOOor6: For this teason'the lightermullt not only come along-side so until the other agent tight, staunch , and of his'prinoi'pal is ready to 'dis6harge its contents. There' was not such a delivery Of this rock futhe master as to put it under his control, and theref<n'&' fit his risk. Btaikie Stembridge,95 E. C. L. 908, is a .leading ca&e. It was affirmed on appeal. It is quoted in all the text-books, in hiswoi'k on Shipping, 415,note 4, qu.otesSwainswn v. and Ga1'T'ir.k;2I.law J. Exch.255; Consolate 2, Perciss 220, as sustaining it. The cO\1rtsays: "The stevedore was to be appointed by the charterer, and therefore to act for him and represent his interests. For this purpose J;1e had the charge and custody of the goods until they were laden and sto,,-ed onhonrd." This same case, construing ,8 charter-par.ty Hke this in every important respect; only that it has the clause, omitted from this, "that stevedore is to be under master's orders," says: "The cargo is to. be brought along-side at the risk and expense of the charterer,' and it is to be shipped and stowed by his stevedore; consequentJy at his risk, though at the expense of the Rhip-owner." The case of The Sunright, decided in thiscourt and affirmed in the circuit court, (2 Hughes, U. S.l1,) is not in conflict with tbis case. In the case of The Sunlight, phosphaterock, whic'h· the agreed statement of facts says was the propel'ty of the bark, 'was' biQught along-side and put entirely under the control, botb as: tll the rock and the lighter, of the bark and her master. It capsized in the dock; and the bark lost the property. There was no special contract, and the case went off on a supposed custom of the port. This beingthe result of this contract made between the owners of the Lovspring and the charterer,no receipt or act of the master could alter, amend, or vary any of the terms of this contract. Burgan v. Sharpe,2 Camp. 529;. Macl. Shipp. 138; Sickens v.Jrving, 7 C. B.(N. S.) 165, 29 Law J. (C. P.) 25; Ma,'T,lchi8a v. Card, ..39 Fed. Rep. 495. .... Let uslook at the cllBefrom another point of view. The lighter was· sent to the 'bark in order to fulfill the pontract of the shipper. Itwas. loaded with rock intended to be part of her cargo l was put along-side-
fl. THE LOVSPRI:\G.
the bark, and attached to her by lines. Hso remained until she sank, with no one to watch her but the master and the crew of the bark, certainly until the stevedore came aboard. As we have seen, it was the duty of the shipper to furnish lighters, tight, staunch, and in every way seaworthy. As these lighters carried his rock to be put aboard ship by his stevedore at such time as he selected, he was bound. to keep his lighters in that condition until this was accomplished. As the lighter was loaded by him, it was his duty to see that it was properly stowed,and that it should remain so until discharged by his own stevedore. If, because it took in water, not being seatherefore, the lighter worthy, or because of bad stowage of cargo, he is responsible for it. If the lighter capsized from stress of weather, it is a danger of the sea for which the bark could not be responsible. There was no delay on the part of the bark. The stevedore was not ready to begin loading at any time during which the lighter was along-side the bark. Thetestimony gives no reason to think that the lighter at any time came into collision with the bark. It certainly did not at the time that it capsized. As the lighter was made fast to the bark by lines furnished in part by and with the co-operation of the tug people, negligence in the mode in which it was made fast cannot be imputed to the bark, in the absence of all testimony to this effect. These are all the causes for capsizing lighters which Mr. Rhodes could give,and he has large experience in handling them·. But the master received the lighters, and, notwithstanding the absence of the stevedores and the hour of the night at which they arrived, permitted them to be attached by lines to his bark, and suffered the tug-master to leave them unguarded without objection. Did the bark incur any liability for this? Did her master assume the responsibility of these lighters, seeing that they did not leak, that their cargo was kept properly stowed, that no accident befell them? Assuming, for the sake of argument,. that nothing can be deduced from the terms of the charter-party on this ,point, and treating it as if it were silent as to it, is there any custom of this port which makes the vessel custodian of lighters bringing cargo at the risk and expense of the shipper? No such custom has been proved. On the contrary, it appears from the testimony of Mr. Rhodes that the White Cross Line, who do a large lighterage business, employ a man specially to visit and care for their lighters. And the tug-master in this case, employed by Capt. Young, another lighterman, only knew that they kept a pump for lighters to be used when the tugs could not be employed in pumping them out. There being, therefore, nothing in the express contract nor in the custom of the port which would make it the duty of the bark to safely keep and care for this lighter, the only other way in which she can be made liable is on the implied. contract of the master when he gave the receipt for the two lighters in good order. What was the consideration for this? He was not bound by his charter-party to undertake the care and custody of the lighters, nor by the custom of the port. His, freight was secure under his charter-party, and the delivery of the rook on the lighter as 1,\ part of his cargo, or withholding it, were equally indifferent
He thus became ali unpaid agent, having in 'possession the about it. Even;themaster in such a case could not be held liable, except in an action:charging his negligence as theeause of the damage, and proving it,. .oogga v. Bernard, 1 Smith,Lead. Cas. (6th Amer.Ed.) pt. 1, p. 419, notes; Story, Ag. 213, 278, 839. Neither of these has been done in this.case.' Ajortiori the bark cannot be held in this court in this proceeding in rem. Let an order be entered dismissing the libel, with costs.
property of another, undertaking to keep or perform
SmoNTON,J. In deference to the ,earnest conviction oflibelllnt's proctor, for whom the court entertains great respect, and in view of the importance of this case to the trade ,of this port, a rehearing has been granted, and tbe questions at issue. exhaustively discussed. Is the bark responsible for the'sinking of the lighter, attached to her by lines, and loaded with rock intended to be a part orher cargo? What is the effect of her master's receip,t :for the lighter in good order? The charter-party made between the:ownersof the bark and the charterer, for whom libelant was the agent, is the law of this case. Who is responsible for the seaworthiness and: safety of the lighter, from the time she came along-side the ship up to and, during the process- of loading from it? Under the charter-party the charterer could load her' at a wharf, so long as the ship could lie there with perfect safety. When it became unsafe to remain at the wharf she could be loaded in the, stream. But the cargorilustbe,brought along-side without expense or risk to the ship, any custom of the port to the contrary notwithstanding. When the ship arrived at this port she was secure of her freight money, whether she'took a cargo or not. The charterer was bound by penalty, fora full cargo. The libelant, his agent, was under contract to deliver such a cargo. So the loading was solely for the interests of the charterer and of the libelant. The mode of loading was wholly for his convenience, with the one qualification that the ship should be safe. So the libelant selected the wharf, engaged and paid the lighterman, who was under his control, and selected the stevedore for the special purpose of loading in the stream from the lighter. No 'words qualified the selection of stevedore. It is not said that he is to, ,be employed by the ship, or should aot under the direction of the master; only he Innstbe paid by the ship· . When libelant selected a wharf for the ship at which she was to be loaded, he was responsible for a safe wharf,-safe to hold the goods until they could reasonably have been taken ltboard.Young v. Lehmann, 27 Fed. Rep. 385. So when, fOfhis own convenience and the safety of the ship, he began to load from lighters" be substitated the lighter in the place ofthe wharf.. He was bound to furnish safe lighters,-safe to hold the goods !un:tiltbev could reasonably have been taken aboard. Were we dealing with hi$ responsibility as lighterman only,."that responsibility
would cease then;" or, what is the'same thing, continue until the cargo is properly placed on the slingsjand. hooked to the tackle," (NELSoN, J., in The Cordillera, 5 Blatchf.519;) and as the loading ·frolU the lighter was to be done by his stevedore, using none of the ship's appliances, he could himself control the ,duration of this responsibility. This, then, was the obligation assumed by the shipper,-a part of his contract. He could not devolve on another the duty of performing it to his own exoneration, without changing the terms of the charter-party. The master had no authority whatever to alter, amend, or waive anyone of the terms of the charter-party. Macl. Shipp. 138; Carv. Carr. by Sea, § 44, p. 45. If, therefore, as is contended by libelant, the master accepted the delivery of the rook, and assumed the custody of or responsibility for the lighter, notwithstanding the charter-party, his act was outside of his authority as master, and libelant knew it. His act did not bind his owners nor the ship. If he undertook the less responsible duty of watching the lighter, and of reporting to the libelant at his place of business in Charleston allY change in her condition or threat of disaster, so that libelant should meet it, and avert it if possible, this would seeman imperfect obligation. Assuming it to be a lllgal contract, it certainly is not 9, maritime contract, as its· performance was to be on land. It could create no lien on the ship enforceable in this eourt. So whatever personal responsibility the master may have assumed in any aspect of the matter, it was not a thing for·which the ship is responsible to this libelant. It being the duty of the libelant to furnish a safe lighter,-safe for the purposes of loading a cargo from it to the ship,this lighter capsized. She was brought to the ship at 8 o'clock at night. At 7 the next morning she had a list. At 2 P. M. she went over. Yet the only evidence at all which we have that she was seaworthy when she arrived is the receipt of the master, given after dark, without examination. We have no evidence, whatever, that she continued lleaworthy, or that libelant or his agents ever inquired about it. There was one person whose duty it was to know this, and who must have known it,-the tug-master in charge of the lighter. He was called by libelant, but was not examined in chief on this point. On the cross-examination· be said that when he got to the bark he sent a man-his mate-into the hold of the lighter. He does not give his report. We do not know his report. The man was not produced. His name is John Smith. We are equally without any evidence as to her condition at the phosphate works. The only person who could tell- Mr. Alston, who loaded her-,. was not called. Upon this showing the libelant cannot hold the bark in this proceeding in rem. for this rock. It would not be pmperto conclude without consideration of a part of the argument challenging the correctness of the conclusion in Blaikie v. Stembridge, 95 E.C. L.894. That case determined that, under the terms of the charter-party produced in it, the charterer was in tbe custody of the gOOds until they were taken from the lighter and put into the ship. It wa.s used \:>y me as persuasive authority. The case is quoted as authority in all the English text writers to whom there is access, and
REronTER, vol. 42.
by very many English judges. Among these is Sir Robert PHIU,IMORE, than whom there is none of higher authority. The Catharine Chalmers, 32 L.T. (N. S.) 847, abstracted in 1 Pritchard's Dig. 499. It is not COntended that when, under charter-party, the stevedore is selected or appointed by the charterer, this at all times and under all circumstance;! relieves the ship and its master. On the contrary, there being no demise of the ship, her owners under charter-party with such a provision in it are responsible upon a bill ot lading by the master to a shipper who is ignorant of the charter-party. Sande-man v. Scurr, L. R. 2 Q. B. 86; The Boskenna Bay, 22 Fed. Rep. 666; The St. Cloud, Brown & L. 4; 8 Jac. Fish. Dig. 12401. When the charter-party provides that, though appointed by the charterer, the stevedore is employed by the ship, and is under the direction of the master, he is an agent of the ship. The T. A. Goddard, 12 Fed. Rep. 174. And as the master is always responsible for the navigation of the ship, and the safe carriage and safe delivery of the goods in her, and as the proper stowage of cargo is equally essential to proper navigation and proper carriage, he cannot be freed from this responsibility for good stowage, unless the contradt with the owner of the goods' expressly declares, or. the clear, unambiguous custom of the port provides, that the charterer and his stevedore are alone responsible for stowage. Macl. Shipp. 414; Sack v. Ford, 13 C. B. (N. S.) 90; The Boskenna Bay, swpraj The Keystone, 31 Fed. Rep. 416. Blaikie v. Stembridge is commented upon by two judges who have no superiors as admiralty lawyers on the bench,-Mr. Justice CLIFFORD and Judge BROWN of New York. Judge CLIFFORD, in Richardson v. Winsor, 3 Cliff. 404, is deciding a case between the owner and the charterer respecting the responsibility for the act of the stevedore and clerk appointed by the latter, and employed by the former. This English case was quoted. He does not dispute it at all. He distinguishes it from his own case, because the charter-party had a provision the one he wasC<)llsidering did not have: "Cargoes to be brought along-side and taken along"side .at the .expense and· risk. of charterer/' The· charter-party we are dis;oussing has a similar provision in: stronger terms: "Cargo to be brought and taken from along-Side without expense or risk to the ship." Judge BROWN, in The T. A. Goddard, 12 Fed. Rep. 184, does say that Blaikie v. Stembridge is overruled by Sandeman v. Scurr. But this lastnamed case turned wholly upon the fact that the shipper who held a bill oJ lading from the master of a ship, not demised, was ent.irely ignorant of the existence of any .cbarter-party; so the ship was liable. The char.ter-party we are discussing carefully Olnits the words, "Under the direction of the master," and any provision for assistance by the master or crew of the appliances of the sbip. It comes under cases ,of The Diadem, 4 Ben. 247; The Miletus, 5 Blatchf. 335; and Blaikie v. Stembridge. The stevedore was the agent of tbe charterer. Tbe case has caused considerable trouble, and has raised freqilentdoubts. Under these circumstances the provision as to. costs· will be modified. Let each party pay bis own costs, .arid half the other costs. In every other respect the former decree is affirmed.
THE GULNARE. THE GULNARE, (TIMOTHY MORONEY, Intervenor.)
(Cireuit court, E. D. Loui8i.ana.. Juue 6, 1890.)
L MARINE INSURANCE-INsuRABLE INTERBST-CHARTEREU. One in possession of a vessel under. a written contract with the owners which proviaes that he shall man and run her for a commission, and hold her as security for his disbursements, has an insurable interest. 2. SAME-BEAWORTHINESS. · A vessel made a voyage from New Orleans to Frenchman's Harbor, where there was, no opportunity to make repairs, took on a load, started back, and almost immediately sprung a leak, and was lost, without encountering any sea peril. Held, that the evidence showed the vessel was not seaworthy. 8. SAME-THE POLICy-SEA PERIL. Encountering heavy seas is not a sea peril, within the meaning of a policy of marine insurance.
In Admiralty. E. B. Kruttschnitt, for intervenor. Henry Deni8, for receiver. BILLINGS, J. This is a suit on a marine policy of insurance upon the steam-ship Gulnare. The loss of the vessel is admitted, and the binding force of the policy, with two exceptions. It is claimed that the vessel insured was not seaworthy, and that Moroney had no insurable interest. 1. Had Moroney an insurable interest? The policy is "on account of whom it may concern. Loss, if any, payable to him as his interest may appear." Therefore he must have had an insurable interest to enable him to maintain this action. The vessel belonged, so far as registered title showed, to Boyd Bros.; but the real. owners came, and were represented by a Mr. Kerwan, of New York. In 1883 the plaintiff in this suit went into possession of her under a contract in writing with the owners, which was lost with the vessel. That contract provided that the plaintiff should keep possession of and run the vessel for a commission, and for his advances he should look for security to the vessel. The plaintiff had no proprietary interest. He had no admiralty lien, since his allowances were made under a contract with and for the owners. But he had a written contract, under which he was, for a commission, to possess and man and run the vessel, and was to hold her as security for his disbursements. I think his intereElt, with reference to capability to be insured, was that of a charterer under a charter-party. Has the charterer an insurable interest in the vessel ?Prof. Parsons answers this question in the affirmative. 1 Pars. Mar. Ins. 165, and note. See, also, Bell v. Insurance Co., 5 Rob. (La.) 423,444, where the court say: "If the property is held as security, it gives an insurable interest." See, also, cases cited by Prof. Parsons in the note. 2. Was the vessel seaworthy? Applying the settled principles of law to the evidence, she was not. She started from New Orleans, made the voyage to Frenchman's Harbor, took on a, load of fruit, started on a return voyage, and almost immediately sprung a leak, and was lost. The presumption is in favor of seaworthiness; "but if the vessel spring