tion within this country of hostile expeditions against other na· tions. Section 5283, Rev. St., does not make the fitting out and arming of a vessel at a port of the United States unlawful unless it be coupled with specified intents or purposes, one of which is that the vessel, after being so fitted out and armed, "shall be employed * * * to cruise or commit hostilities against the sub· jects, citizens, or property of" a foreign prince, state, colony, district, or people. The libel of information in this case charges tbat certain persons did unlawfully fit out and arm the Itata with intent that she should be employed to cruise and commit hostili· ties against the republic of Chile. On this point there is an issue, and a finding of the truth of the charge is indispensable to a sufficient basis for a lawful decree in favor of the United States. It is a strange anomaly of the case that this issue is malle by the republic of Chile. '1'he acts whereby the vessel has become forfeited, as the libel of information alleges, if criminal a[ all, urc so because designed to do harm to the government of Chile; find in the very suit in which it is sought to have the forfeiture adjudg-ed for said cause tbat government has intervened, claiminga right of property in the vessel, and by its answer has assumed responsibility for the acts alleged to be criminal, :111(1 avows that all the persons who participated in said acts, instead of being enemies, are and were its faithful defenders. The bond given for the release of the vessel which is now held in place of the vessd was given in its behalf, so that the penalty in of a decree in favor of the United States must fall upon an indepenJent nation, and that nation the one for the sake of whose our gl\vernment has taken the pains to arrest the Itata and now prosecute this case. It is said that the case should be determined according to the: facts existing at the time of the occurrences, and that, if the Itata was tlH:n in the hands of insurgents, whose was to employ her as a transport in making war upon the established government of Chile, acts of the insurgent forces in violation of a statute of the united States do not become purged of criminality by the suhsequent success of the insurrectionary enterprise. 1t is unnecessary to admit or controvert the soundness of this proposition, becaUl"e it does not fit the facts of the case. It is not applicable, for the reason that the Congressional parly, instead of being an organization of rebels against the government of Chile, was in fact composed of and controlled by the legislative branch of national government, and was supported by a considerable part of its military and naval forces. The object of the Congressional party was not revolution, but the preservation of the government by deposing President Balmaceda for maladministratioll of his office. Balmaceda was not the government. He was merely the highest officer and head of the government. The tlwrefore, was not between the government and a faction, but between the different departments of the government. While it continued the condition of affairs in Chile was similar to what might have been brought about in the United States if a sufficient number
of senators had voted for the impeachment of President Andrew Johnson, and the vote had been followed by an attempt on !lis part to forcibly resist removal from office. The right to determine finally every question involved in that struggle belonged to ihe people of Chile, and their decision must be accepted everywhere as conclusive. It is now an historical fact that the Congl'essional party, in whose service the Itata was employed, ihe will and sovereignity of the Chilean people. This court is bound, in deciding the case, to take notice of the important facts of history. We cannot be expeeted to attempt a retrial of the question of right or wrong in what the people in Chile have done for themselves. By the foregoing considerations I have been led to the conelllsion that the accusation against the Itata has not been sus mined. The contrary is established, and I think that the decision of Cl)urt affirming the judgment of dismissal rendered by the district court ought to be placed upon the ground that the vessel was not intended for service against the republic of Chile.
BOWRING et al v. THEBAUD et at (Circuit Court of Appeals, Second Circuit. December 6, 1892.) No.2.
SHIPPING-WARHANTY OF SEAWORTHINESS-CHARTER STIPUI,ATION.
'l'he implied warranty of seaworthiness extends to the time when the vessel actually breaks ground for the voyage, and not merely to the time when she begins to take in cargo; and this implied warranty is not in any way varied by an express warranty in the charter that the vessel shall be staunCh, strong, etc., "for such voyage," namely, the contmnp1'lted voyago "from New York to Progreso, [Mexico,] and back again to New York or Boston;" nor is it varied by a further st'ipulation that, if the vessel shall be reqnirl,d to go from one dock to anotJwr while loading the charterers shall pay towage. Hence there was a breach of the warranty where the vessel was pierced by an unknown obstruction while receiving cargo at a dock to which she had been removed, and the owners were solely liable for a resulting injury to part of the c.."ll·go, and there was no case for a general average. '1'he exception 'in a charter party as to dangers of seas and is not applicable to a hidden danger which, by injuring the vessel at her receiving dock, works a breach of the warranty of seaworthiness.
SAME-ExOEPTIONS IN CHARTER PAnTY.
A vessel was injured at her dock at New York while loading, and one of her compartments was flooded. She was docked and repaired without unloading. the owners of the cargo giving a bond, whereby, after reciting that certain expenses were incurred thereby, they covenanted to pay tlk "lo:,:s and damage aforesaid, and such other incidental expenses tl]('reon as shall be made to appear to be due from us as ownN'S, consignees, or 8hippers uf carga, .. ... .. according to our interest th"rein, or responsibility therefor;" and that "such losses and expenses be stated and apportioned 'in accordance with the established usages and laws of this state in similal' cases." I-Idd, that this bond merely covered any possible liability of the obligom for a general average contributIon, [wd, there being no case for general average, there was no liabiIity in the bond.