from the tides at Boston, and must also be affected by the flow of the current from above. The guaranty. in terms, extends to all tides, and is not limited to average tides. The master, being ignorant of the channel, had the right to rely on the judgment of the respondent who was present. and, receiving no warning of the danger from him, to assume that the \Vater was sufficient for his Tessel. The silence of the respondent, under the circumstances, was equivalent to an assurance that the depth of water was sufficient, and amounted to an express invitation to enter. The circumstance that the respondents did not own the title to the bed of the river is immaterial, since they dredged it out, and occupied it, and used it as a berth for vessels unloading coal. The case of The Calliope, (1891,) App. Cas. 11, cited by the respondents, is not hi point. In that case there was no guaranty of depth of water, and no invitation to enter, and the court expressly found that the grounding of the vessel was caused by the negligence of the master and pilot, and exonerated the wharfinger on that account. Upon the facts as found. the respondents are responsible for the injury to the schooner. The John A. Bf/fkman, 6 Fed. Rep. 535; Higgins v. Gaslight (b.,33 Fed. Rep. 295. Decree for libelants.
THE STROMA. NAPIER
SHIPPnl'G Co., Limited; ".
(Cwcuit Court qf Appeals. Second Cwcuit. February 16, 1892.)
WBJ.BVES AND WJU.BftNGIIBS-<JBsTBUCTION-KNOWLIIDGB-LIJ.BILITY.
Libelant's steamer was berthed at respondent's wharf. alongside of which lay a sunken wreck. The presence of the wreck was known both to respondent's agent and to the of libelant, who applied for the berth. There was no understanding, express or implied, relieving the respondent from the ordinary obligations of a wharfinger, except the implied obligation on the steamer to go to the particular berth assigned. Respoudent's agent saw the steamer at the wharf discharging, but made no objection to the berth. The steamer was afterwards injured by tlie .uuken wreck. and sank in the slip. Held, that the steamer's agent was justified iu assuming that respondeut's agent had better iuformation than he had as to the couditiou of respoudent's premises aud in relyiug and acting upou such assumption; aud that as a wharfing-er, in accommodatious for hire, the eut impliedly agreed that the steamer would not be exposed to danger arisiug from coucealed obstructions knowu to Its ageut, aud which the steamer was uot reqUired to Buticipate; that respoudent therefore was liable for the iujury done the steamer. 42 Fed. Rep. 922, reversed.
In Admiralty. Appeal from the circuit court of the United States. for the southern district of .N.ew York, affirming pro farma a decree of the district court of the United States for the said district, dismissing the libel. Reversed. Butler, Stillman &; HUbbard, (Wilhelmua Myndf/fBe, ofcounsel,) for II.ppel. Iant. Coudert Bros., (Frederick R. Coudert, of counsel,) for appellee. Before \VALLACE and LACOMBE, Circuit Judges.
: This i&Jld:luithy the N apii6r Sbipping ComJhe is,trama, to recover; of the respondent, CQmpany,aB wharfinger, for injuries sustained ,by t!ll;l,:ste/lmer in oonsequence of the negligence of the respondent in assign,ipg to an unsafe, berth. The respondent was the proprietor of .piers No. 1 and No.2, and,the slip between these piers, in the harbor of Colo11 " of Panama. It bad been engaged in dredging in the had used for tbis purpose a. steam dredge consisting of a sha!slip, .1owsoow, upon which was a boiler,and near one end a crane. During a violent storm ,the dreqge foundered, and sank in the slip. The respOl;Hlent.employed a wrecking vessel to raise the dredge and remove it, and operations in this l;Iehalf had beeJ;l progressing for about three weeks time of ipjuries to the libelant's ste.amer. The diver of prior to, the respCilndent had found the wreck lying in broken fragments, the scow diagonally at a little distance from the northerly side of pier 2, and the crane and boiler detached, and lying cn the bottom of the slip, some distance Jurther from the pier. AttllChed to the scow, and an integral part of it, was a spindle, the pivot ,of the crane, which was an upright timber capped with iron, about 9 feet long, and located in the middle of the forward end of the scow. He reported the scow as having 22 feet of water above her. Subseguently to the aqcident the spindle was found to be projecting from the scow at a point only about 21 feet away from the northerly side of pier 2. 'fhe diver had not observed it. About three weeks after the sinking of the dredge, and on December 29, 1888, the agent of the libelant's steamer at Colon, in expectation of her arrival at that port \vithin' the next day or two, applied to the agent of the for a berth. The Stroma was a steel steamer, 2.10 feet in length, her draught, when loaded with cargo, was about 13 feet aft and between 10 and 11 feet forward. Her agent knew that the rehad sunk in the slipsomewhere between the two piers, and in fact he saw her sink; but he did not know precisely where she hadsllqk. The piers were about 150 feetapart, and about 400 feet long. He supposed that the Stroma could make her berth, and discharge safely at thenotthside of picr2, at the seaward end; and he suggested to the respondent's agent that she be given a berth at that place. The respondto thil;l sugge"tiou. According to the course of busient's lIess between the respondent and vesse.! agents at CololJ it waR customary, upon '" being assigned to a vessel, to leave the putting her at berth entirely.lJuder the manngement of her agent; the agent to report to the respondent after the berthing of the vessel. The Stroma arrived early on the morning of December 31, 188$. Her agent was present, and by his iustrn6t'ions she made her' berth on the north side of pier 2 at the seaward ehd. The respondent's agent,' whose offipe was but a short disshe was rnaking her berth, and when she tance away, saw the was made fast, and. throughop,t the day while she w.as discharging. Some of the employes of the respondent were present while the steam"er was being berthed. No intimation was given by the respondent's agent; or to anyone connected with the by anyone on behalf of the
, THE STROlki.
'steamer, t11at sbe was !rhdoredat a place to which flhe had not assigned, or that she was in· an unsafepll1ce; The steamer continued there unloading until about 6 o'clock P. M., when it was found that she hRd been forced upon the spindle,apparently in consequence of the lowering of the tide and the swell caused by a light wind. The spindle pierced the steamer's bottom, and injured her so budly that she soon filled and sank. When it was discovered that her bottom had been pierced, her master sent for the agent of the respondent, and the latter, together with one of the managers of the respondent, visited the steamer, and at that time expressed themselves as unable to account for. the injury. Later in the evening the master of the steamer formally notified the respondent tbat he would hold it liable for the injury to his vessel; whereupon the respondent's agent replied that the steamer had been hauled to the pier, without authority from the respondent, and the respondent would look to her owner for any damages which might arise by her sinking at a berth to which she had not been assigned. We.areunabJe to agree with the learned district judge who decided this cause in the court below that the respondent's agent merely consented to permit the steamer's agent to berth her at the pier at a place beyond the sunken wreck, or that the latter was aware of the risk, and took the chances of avoiding it. We think the respondent's agent supposed, as did the steamer's agent, that there was sufficient room fora. small steamer like the Stroma to make her berth and be discharged with. safety at the place where she was subsequently berthed; that he supposed that the wreck lay far enough from that end of the pier, and there was so much water above the scow that the Stroma would be safe there, although it would not be a safe place in which to berth a large vessel; and that he overlooked the fact that the spindle was attached to the scow. His conduct is very convincing that the steamer was berthed at the place where he expected she would be, and does not square with his testimony that he consented to her being berthed at the end of the pier, but not at the side. His conduct also denotes very persuasively that he believed she was in a safe place where she lay. He would have expostulated when he saw where she wils being berthed and discharged if she had hot been rightfully there, or if he had l'lupposed she was curring danger of injury from the wreck. He knew that she would not have been placed where she was if those in charge of her were aware that she was in danger there, and that his principal, as a wharfinger for compensation, was at least morally bound to notify them of a peril of which they were ignorant. Good faith and common courtesy would have prompted him to give warning,evell though he considered· the respondent under no legal liability, if he had not supposed she was in a safe place. Even after she was injured he did not think of the sunken wreck as the cause. His subsequent conduct, when he found that a claim for damages was to be made against the respondent, was not consistent with the theory that he had given permission to her agent to berth her at his own risk. If that had been the understanding between him and her agent, he would have said so; but, instead of taking that
position, .be insisted that she was. there without right, and that her 0WQer was therefore answerable to the respondent for impeding access to the by his disabled . Upon the facts, as we find them to be, we think the respondent is liable. Although the respondent's ll.gent assigned the berth to the steamer at the requei:lt of the steamer's agent, and with the knowledge of the latter that there was a sunken wreck somewhere in the vicinity of the berth, there was no agreement or understanding, express or imthe respondent from the ordinary obligations of a wharfinger,except that by designating the particular place at which she was to 'have a berth it was implied that she would not attempt to make a .berth at a,ny other place on the respondent's premises.. It is not necessary to qiscuss considerations which would b,e pertinent if the steamer's agent had been aware of the existence of the dangerous obstacle in the berth,oreven of the prepise location of the wreck. Under the circumstances, and when the respondent's agent consented to assign the berth, withoutarw suggestion that it was unsafe, the steamer's agent was justhat the respondent had better .information than he .had .of t1:W condition of it!! own premises, and in relying and acting upon the Asa wharfi,nger, offering accommodations to the for tpe respon8ent impliedly undertook that the .steamer would not be exposed to unnecessary hazard in using the part of the premises iowhich she was assigned, arising in consequence of any coucealed opstruction or danger, known to the respondent,orofwhich it ought to, have knowledge. the existence of. which those in charge of the steamer were not required to anticipate, and there was a breach of this obligation if such an obstruction existed. Mer8ey Dock Trustees v. (Jibbs, 11 H. L. Cas. 686; Wendell v. Baxter, 12 Gray, 4:94; Nicker80n v. Tirrell, 127 236; Smith v. Havemeyer, 36 Fed. Rep. 927. Very likely the respondent's agent believed from the report of the diver that the only part of the wreck near the berth assigned the steamer was the scow, which, with 22 feet of water above her, at a place where the fall of the tide is only 18 inches. would not e'1danger a vessel oftheSirorna's draught, even if she were moored over the scow; and undollbtedly he overlooked the probability of danger from the spindle. But he should not have permitted the steamer to be berthed where she was until there had been a sufficiently careful examination of the condition of the wreck to demonstrate that she could be berthed there with safety.· The respondent cannot be excused from responsibility for consequences of its own remissness. The libelant is entitled to a deeree for thearnount of its loss. The decree is reversed, and the cause remanded with instructions to ascertain the libelant's loss, and to decree for the libelant, with costs· of the district court and of this court.
THE IOWA. MONROE 'V. THE IOWA.
(DlsWict Court, D. Massachusetts. May 26, 1892.)
CARRIERS BY SEA-8TIPULATION EXEMPTING FROM NEGLIGENOE.
It is the settled law of the federal courts that an express stipulation exempting a common carrier, whether or domestic, from liability for losses caused by the negligence of himself or his servants, is contrary to public policy, and cannot be enforced against the shipper.
SAME-OQNTRAOT OF OARRIAGE -DISPUTES TO BE SETTLED ACOORDING TO BRITISH
A clause in the contract providing that all questions arising under the contract shall be' settled according to British law is a nullity, as an attempt to impress UpOD the contract a construction which our law rejects as contrary to public policy. Cattle were shipped on a British steamship under a contract which provided that the ship was to furnish the ,fittings for the cattle, but the shipper was to assume all risks of the fittings, the ship not to be responsible for any injury to the cattle arising from any cause, and all controversies to be decided according to British law. By the negligence of the employes of the ship, part' Of the fittings were not sufficieptly secfIred, which fact was unknown to the shipner, and in an ordinary gale they gave ",ay, and some of the cattle were killed. Held" that the ship was liable.
SAME....TRANSPOR'I'ATION OF CATTLE-NEGLIGENT FITTING.
In Admiralty. 'Libel for damage to cattle. Decree for libelant. Proctor & Tappan and Payson E. Tucker, for libelant. 'J. D. Ball; for claimant.
NELSON, District Judge. This is a in admiralty filed by Albert N. Monroe, an e:::porter of cattle, againbt the British steamship Iowa, of the Warren line of transatlantic steamers, to recover for damage to cattle on.a voyage from Boston to Liverpool. The cattle were shipped under a special contract in writing between the steamship company and one Hathaway, made in Boston, and assigned in part by Hathaway to Monroe, the provisions of which were expressly assented to by Monroe by a memorandum indorsed on the instrument signed by his agent. The material clauses in the contract relative to the questions now before the <lourt are the following: "Ship to furnish liLtings." "The fittings to be such as are used on board the steamships of our line, and you [the shipper] are to assume all risks connected with said fittings. It is understood that you approve the fittings and ventilation of the steamship herein referred to, and that you will not require any change in or addition to saiq fittings and ventilation. Neither the steamship. her agents nor her owners, are to be accouutable for the dangers of the seas, or accidents to fittings, water tanks, machinery, or condensing apparatus; nor for any other accidents; nor for any action which the authorities in Europe or America may take concerning the animals, no matter what may be the cause or consequence of such action; nor for any mortality of or injury to the animals for any cause; nor for delay in sailing caused by long. passage, necessary repairs, or any circumstances beyond our control." "All questions arising on this contract shall be decided according to British law." The contract also prescribed a form of bill of lading to be issued for f.he cattle, containing similar exemptions from liability on account of the fittings. The steamship sailed from Boston on the afternoon of Tues-