oollision witti 'thelicldgetor witlftherocksat ,the' $ide of m the case of Hill v.' Board, 4:5': i'ed,. Rep. 260," alleged in this libel. There;. as steamer, ·.8I tmawbridgeacross '. a Iiaviga,ble : stream, .she, sounde!l,"tbWusualwhiStbJioonotify the bridge to open the: draw, ,fl'hQ(loutywas .$tJ :negligently;'. performed .that· the propeller, without fatdt, eollidedWftl1the bridge. Upon the question of ·juri$. Green.att:.er re:vi.ewi.D.g the deci$ions of the supreme thg 11ni;ted StateS, :Says: ,"As tl:teri, 18 admiralty jUrisdiction ovm-1iorts, the
th.e ,cham:ret 'The facts
was the tort ienmplained ·of committed on land ,or on )lll.vigait may be, Is decisive alld final. Clearly, inthts. it appears tha.t, the wrongf\l1 act WI!S commlttedupon navigable watepi!, ;4p.dl:iellce Within the,jUrisdiction of this court.'.' ,
, : '.1-',,:, ,,' :.'
are. overruled. '
TlIE GUY C. GOBS. pVGET $OUND MACHINERY DlJ)POT v. THE GUY O. GOSS. (District Court,D. Washington, N. D. December 19, 1892.)
vnreference of an o,e;tmiralty cause toa commissioner to take and report the evidence, the libelant rested after examining three witnesses, and Without giving notice of intention to offer further proof at a later stage. , The cla.b:nant. thereupon, filed a motion to dismiss for want of e.idence sutlicientw sustain. the libel, but, without waiting tosubmlt the motion to the court, he proceeded be!ore the commissioner to take evidence on his side, after notice that the motion was not waived. Held; that the claimant ,was entitled toha"fe thecaae decided on the evidence of the first three witnesses, unaided by evidence adduced by libelant on cross-examination of claimant's witnesses or in rebuttal; no suflicient reason appearing for receiving such evldenceout of time.
,CARRIAGE op' GOODS .,', LIABILITY pOR DAMAGE -;-PLEADING AND ,
In Admiralty.Suitby'the Machinery Depot (a cOr,poratioil) for damage by.' rust to· a consignment of· iron pipe, shipped fr?m York via Gape Horn to.Seftttle, on the bark Guy C. GQ$S. ;DISmIssed.": , '
.. THE GUY'C;GOSS.
Winflor & Farwell, for libEslant.: W. R. and JolUlH..Elder, for claimant.
HANFORD, District Judge. The libel in this case charge's that tnepipe was so damaged when delivered as to be' of no vbJ.ue what· ever, and that the damage was caused by bad stowage, and negligence on the part of the master and crew,but fails to specify in what way the pipe was damaged,-whether by breakage, rust. or otherwise. .' The answer admits that the pipe was received by the ship in good order, but denies that it was damaged when delivered; denies all the allegations of negligence; and avers that the cargo was properly. stowed and dunnaged. 'l'he case was, according to th..., practice in this court, referred to a commissioner to take and report the evidence. The libelant produced as witnesses its president, secretary, and manager, and upon the testimony of these three rested; Said teatimonj' as a whole is quite as vague and unsatisfactory as the libel: In substance it is that the pipe, when first examined after being discharged from the ship, was in bad condition. Mr. Thomas M. Greene, the secretary, estimates the total damage at $1,000. The others each say (referring to the entire consignment, as I assume} that it was damaged about 33-1 per cent. 'l'here is not a word in the testimony offered in behalf of the libelant in chief as to breakage or rust. No offer was made to give in detail any information as to the number of pieces that were found to be injured, nor as to the manner in which the damage was caused. Only from questions to the respondent's witnesses, and testimony introduced after the evidence for the defense had closed, does it appear that the grievance is on accOlUlt of rust. No offer was made of evidence tending to prove that the vessel was unseaworthy, or that the cargo was not well stowed or not properly dunnaged, or that the master, mariners, or stevedores were guilty of any negligence; and the proctor for the libelant rested upon the meager testimony above summarized, without giving notice of an intention to offer further proof at a later stage of the case. Thereupon the proctor for claimant filed with the commissioner a motion to dismiss for want of sufficient evidence to sustain the materiaJ. allegations of the libel; bUt, without waiting to submit the motion to the court, the respondent proceeded before the commissioner with the taking of evidence on his side, after giving notice that the motion was not waived. The pipe was shipped undel' a contract containing a clause exempting the ship from liability for "leakage, breakage, or rust, except from improper stowage;" which contract is set forth in an exhibit attached to the libel. 'l'he voyage was not protracted beyond the time ordinarily required for sailing from New York to Puget sound. The vessel at, the time of sailing was staunch and seaworthy, and made the passage without developing any defect or incapacity for transporting in safety the cargo w:hich she carried. All necessa.ry repairs occasioned by events of t!J,e voyage were promptly made.. 'l'he pumps were worked regularly, and kept the water from accumulating in the ship. Theevi-
dence on the part of the respondent is positive to· the effect that the cargo was well stowed and properly dunnaged, and that in every way known to ship masters and stevedores the cargo was protected and .Lilade Secll1'6 for the voyage. In .rebuttal the libelant introduced some expert evidence to the effect that, in .the opinion of the witnesses, the character of the rust on the piM indicated that it was caused by salt water. The proctors for the libelant appear to have a theory that the damage was caused by the blowing of bilge water through the air strip, but there i.s no evidence to support it; and there is in the case no testi· mony as to the cause of the rust, except mere conjectures of the wit· nesses, These who give opinions that salt wa,ter caused it know nothb,lg about the construction of the ship, or the manner in which the cargo was stowed, or the occurrences of the voyage, and of cOll,rse have no basis for a.n opinion as to how or when salt water couldluwe come in contact with the pipe. Without better evidence than this, I cannot find that the rust was caused by "improper stow· age," unseawortohiness of the ship, or negligence or unfaithfulness on the part of the master or any person in the service of the ship; and without evidence to s:qpport such findings the libelant cannot recover. BUilt is a cause of deterioration inherent in the goods. In issuing the of lading care·was taken to protect the ship from lia· bility for damage from this cause not due to some act or omission or defect for-which the owner, ,master, agent, or some person ,in the service Oftha might be held to be blameworthy. Therefore the burden of, proof rests upon,J;he libelant to show such blameworthy act, omiSli!iQll., or defect. Olark v. Barnwell, 12 How. 272; McKin· lay v. Morriell. 21 How. 343;- Transportation 00. v. Downer, 11 Wan. 129. 'rhe practice ,in admiralty, while flexible and liberal, reo quire procedure and fairness in the conduct of a cause. Ad· ditioDetI eridence may be introduced at any stage of the case befol'E a final signed in 1;4e court of original jurisdiction, and even after· when a trial, de novo is allowed in the appellate court, provided good cause be shown for not producing it at the proper tiIne; but it cannot be received out of time, without a sum· cient therefor appearing. Under this rule the claimant is entitled to,lll1ive the case decided, upon the evidence of the first three witnesses examined, unaided by the other evidence taken. It is my opinion, that the result must be the same whether all the evidence offered on poth sides, or only tha,t offered by the libelant in chief, be considered. Decree of dismissal.
ONE THOUSAND BAGS OF SUGAR v. HARRISON. (Circuit Court of Appe81s, Third Circuit. January 10, 1893.) No. 12.
1. CHARTER PARTy-CONSTRUCTION-PRINTED FORMS, Matter expunged from It printed form used in drawing
up a charter party may be considered in determining the intention of the parties. 50 Fed. Rep. . 116, affirmed;