with a fine powder,-debris of the ore. The adoption. of the rule suggested by respondent prevents the vesseUrom asserting this. The master demanded 1,575 tons. He was assured that he had this number, of loading and. at Villareal de San Antonio, a port of both at the call provided in .the charter-party. The bill of lading prepared by the agent of thecha.rterel' called for 1,575 tons. It is. manifest, therefore, that this is. the amount attributed to. cargo by both parties at the port number of tons of lading.. The .freight was to be .regulated by the port of lading. In effect, it fixed' the intaken, and to be fixed amountof freight which the one party agreed to pay, and which the other party expected to receive, as the compliance with and the result of his demand. ,The manner in which the ship was loaded from a train of cars, partly nt the quay and by lighters at l;lea, precluded the master from weighing it himself. The charterer was thepurchilser of this cargo, and expected .to sell it Rgain. The ship could reasonably trust that he would not overstate tbecargo he was getting from the mines. When he made his demand, the master calculated upon 1,575 tons, at 16 shillings per ton. By their assurances the agents of the charterer prevented his expectations. In my opinion; both parties him from 1,575 tons was the weight of the cargo intaken, agreed to and adopted that as the numbpr on which freil(ht should be estimated. See SpCfight v. Fbmworth, 5,Q. B. Div. 119. Let a decree be in accordance with this opinion·.
THE SANTA ANNA MARIA. FORACr. tI. SALINAS.
(Dl8trlct Oourt, D. Bout'll Oarol£ft.lJ.
February 27, 1892.)
An Italian bark. through collision, sprung' a leak and thereafter jettisoneCl some of her spare furniture, as well alii part of the carlil'0. On an adjustment In ·general average a certain sum was !lharged against the cargo. and the owners thereof objected that the jettison was unnecessary. This suit was brought to recover the amount charged. against. the cargo In the adjustment. The evidence Indicated that thel'e was great exaggeration. both In the alleged condItion of the .bark a.fter the a.ccldent, and.ln the number and value 0( the lie/d. that libelant must malee· out his case bov a preponderance of credible evidence. and. In view of the Impression of exaggeration given by the evidence, such articles as were not olearly proved to have been jettisoned should be exclUded from the general aV8rA$e adjustment, the otilers being allowed.
10 Admiralty. Suit to eufo.rce adjustment of general average. J. N. Nathan. for libpJant. . . . .J. P. K. Bryan and D. B. Gilliland, for respondent.
District ,Judge. .'i'he,Santa Anna Maria, an Italian bark, the port of Charleston. She had II,
THE· SANTA ANNA MARtA.
fuil cargo:of sulphul','-'570 tons. When she reached this port the master filed his protest, reporting jettison of part of his cargo, 41.481 tons, and of a chain, cable, anchor, water-casks, sails, awnings, hawsers,lines, and cordage, property of the ship. An adjustment of general average was made by Mr. Johnson,a professional adjuster, based on the statements of the protest and of the log. The net sum charged against cargo under this adjustment is $477.20. The cargo had been delivered under the general average agreement. The owner of the cargo makes no complaint as to' the mode of the adjustment. He: denies the facts upon ' which it was based. 'l'he adjustment is not conclusive. The facts are open to inquiry. The Alpin, 23 Fed. Rep. 819; The NiJlgara, 21 How. 9. The libelant's testimony is this: The bark left Girgenti, 22d April, 1891. She met no Severe weather, and no unusual incident, until the night of 26th of July, 1891. About 11:30 P. M., the night being dark and rainy and the wind fresh, she came into 'collision with some dark object, unknown, at a pointupon her bow just about, perhaps a little below, the water-line. She disengaged herself immediately, and passed on. Her rate of speed was six knots. Very soon the sound of water was heard, entering the ship, but from the thickness of the frame at the bow the exact place of the leak could not be ascertained. It would have been a difficult and tedious task to'cut into the frame in order to find the spot. The pumps were manned at once by four men. At 2 P. M., the water still gaining on her, sails were shortened. Two casks of water at the bow,holding three-quarters of a ton, were broken open. The starboard anchor chain, and more chain, with the kedge, were thrown overboard. The water still gaining, a consultation was held, and the conclusion reached to jettisoncl1rgo. The bark had four hatchways ,-a small one near the bow, another just abaft the foremast, the main and mizzen hatch. They conclUded to begin at this second batch. In order to get at this hatch, it was necessary to remove certain articles-spare sails, awnings,rope, and hawsers-piled up on it. These were all removed, and for the' purpose of speedy removal were thrown overboard. When the hatch was cleared, they gQt at cargo, and threw overboard 15 to 20 tons of sulphur. They then went to the main hatch and threw over the rest,-in all, 41.481 tons. This lightened the ship. The water was gotten under control, the leak ceased, and by 2 P. M. the next day the ship was dry. She came ,lnto this port on3tst July. No survey of the vessel for the purpose of ascertaining the nature and extent of the injury to her hull was had, nor was she repaired, except by a mate, who was a sOrt of carpenter; and at what cost does not appear. The hatchway was 4 feet In order to get at it, they had to remove, from on top of it, 1 foresail, measuring 220 yards; 2 stay-sails, 200 yards; 1 spanker, 110 yards; 4 awnings, 200 yards each; 1 top-gallant sail, 130 yards; 1 topsail, 160 yards; 2 5-inch hemp haw/lers, 120 fathoms each; 1 hemp towline, 7 inches, 100 fathoms. The sulphur lay on the skin of the ship, I! feet from the keel. When the pumps were sounded, at first, she had in her 2 feet of water above the skin, which continued to increase