of ,the ship in ,receiving these boxes, or in stowing them as was done with other cargo in the hold or in the subseq1.lent handling- of the cases. The small capsules are so packed in 'cases, and with such care, it difficult or impossible to produce any ex· 'or' by dropping, knocking or pound· plosion by any mode of ing. . See Mackenzie's Report. ' 'l'hey had been lopg accustomed to be handled by sea and land as ordinary merchandise is handled, and carried in the same manner. 'l'hey were not known, or con· sidered, or treated, as dangerous cargo. No previous explosion in transit is shown. Prior to this accident, it was usual to carry them indiscriminately with Qther cargo. Since this accident, it has become customary for steamers to carry them either in the hatches or on the deck; while sailing vessels stilI stow them below deck. In the absence of any proof of knowledge of danger, it is sufficient, on a question of stowage, to stow according to the knowledge and experience of the time, and to observe the usages of the time and plate. See Baxter v. Leland, 1 BIatchf,526, Fed. Cas. No. 1,125; IAmb v. Parkman, 1 Spr. 343, Fed. Cas. No. 8,020; The Ti· tania, 19 Fed. 107, 108; The Dan, 40 Fed. 691, 692; The Dunbritton, 61 764, 766; Carv. Carr. by. Sea, § 96. This was done by the steamship in this case. Why the explosion occurred in this instance can only be conjectured, viz., from some possible detachment of a portion of the fuhriinatewithin the capsules, an occurrence previously unknown in transportation, and arising, probably, in the manufacture and packing; certainly not from any fauIt of the ship. To charge the ship in this case with negligence in care or stow· age,wOiuld be .to make her responsible for what was essentially accidental, and altogether contrary to previous experience and usage, which justified the carriage of these boxes in the same man· ner in which they were carried, even had the officers fully under· stood their contents., The libel must be dismissed, with costs.
THE ETuNA. DOHERR v. THE ETONA.
(DfstHct Court, S. DJ·New York.
The ship .E.' being anChored by a local pilot in the Amazon at Para, While j.mloadingplll't of .her cargo dragged her anchor from the great forceoN;he current anc;Igrounded upon a sand bank which caused her to tak;e .lIciltrong list, in of which the drainage from some PerI1arnbucostigar in the between decks ran over the coamings upon some hides in the lIoldbeneath:Held (1) that the stowage of hides beneath sugar stowed oD; perfectlytjgh,t Iron between decks was not negligent stowlAg; (2); that,the .pqssibjUty· tbe. escape of dJ.'ainage into the hold over coalliings a foot high, in consequence of a listfrom stranding, was not Bucha' .contingency was to be foreseen and guarded against, or evidence of the ship's negligence; (3) that the selection of a place for ,anchoring, from which the stranding resulted, was a part of "the navigation and management of the ship," within the third section of the Harter
'1'0 I:hDES-SUGAR DRAINAGE-FOREIGN SHIPSPILOT'S MrS'liA'KE-INVALID STIPULATIONS--:'HARTER ACT.
act of February13, 1893 (2 Supp. Rev. St. 81); (4) that the provisions of that section include foreign ships; (5) that the provisions of the bill of lading that "all damage claims shall be settled direct with the owners according to English law, to the exclusion of proceedings in the courts of any other country," were invalid, as respects transportation between Brazil and New York.
This was libel in rem by John B. DohelT against the steamship Etona for damages to a load of hides stowed in her hold. Wing, Shoudy & Putnam, for libelant. Conyers & Kirlin, for claimant. BROWN, District Judge. The above libel was for damage to hides shipped at Buenos Ayres on board the British ship Etona in the lower hold, No.2 hatch, above which was stowed a quantity of Pernambuco sugar, the drainage from which was found on arrival of the ship at New Yox:k, to have injured the hides beneath. The evidence shows that the deck where the sugar was stowed, was a perfectly tight iron deck; that the shipment of hides in January, 1894, was under a bill of lading, which permitted the taking of cargo at other ports, excepted damages arising from negligence, provided that in no case should the steamer be liable for any damage to the goods, and that all damage claims should be "settled direct with the owners according to English law to the exclusion of proceedings in the courts of any other country"; an evidently invalid stipulation as against these consignees, and as to transportation between Brazil and New York. Slocum v. Western Assur. Co., 42 Fed. 236; The Guildhall, 58 Fed. 796, and cases there cited. The drainage in question arose under the following extraordinary circumstances: After the loading of the hides at Buenos Ayres in the lower hold, the ship proceeded to Rio, and thence to Pernambuco, where she took in sugar between decks. Thence, by a passage of a1;>out 7 days, she went to Para, a port about 100 miles up the river Amazon, where she was taken to an anchorage by a local pilot, and anchored by him near other shipping with first 45 fathoms of chain out, and afterwards 60 fathoms, and proceeded to unload certain cargo shipped for that port. On the fourth day after anchoring, and while unloading, the anchor dragged, probably from the great force of the current on the flood tide, which there rises about 12 feet, and from being somewhat outside of the ordinary anchorage ground.. .Before she could be brought to a stand, by the second anchor, which was then thrown over, the ship grounded upon a sand bank, which caused her to take a strong list, and some of the drainage of the sugar in consequence of this list ran down over the coamings of the hatch upon the hides beneath, notwithstanding all efforts to prevent it. lt is evident that the efficient cause of this damage was the stranding on going adrift. This was wholly unexpected, and could not have been anticipated. It was a sea-peril within the exception of the bill of lading.. Montoya v. Assurance Co., 6 Exch. 4.51. The burden of v.64F.no.7:-56
11 Wall. 129; The [1.894] Prob. .:Neptune, 6 :BIatchf. 193,Fed. Cas. No. 10,118. Other vesi!selsttll that· vicinity did not drag. If negligence !sto be imputed to anyone, it would seem to be against the local pilot in respect to t4e,ppsition assigned by him ·to the ship, and in not ordering over both aI!chors instead of one only. I cannot find it to be negligence in the ship to stow sugar in the between decks over hides, in a ship with a perfectly tight iron deck and coamings a foot high, and with scuppers sufficient for all drainage that could be :anticipateq. I do not think the mere pos· sibilityiof, stranding and of the escape of drainage over/coamings a foot high, through a' strong list arising from stranding, are such contingencies as are to' foreseen and guarded against of and ordinary care;' and in all other in the respects'the evidence acquits the ship of negligence.' There is no prooithat'the patent anehors were inferior 01' deficient. , If,however, under the,above the ship could formerly have been held liable for negligence of the local pilot in consequence'of which she adrift, the evidence ihher behalf shows the of "due diligence by the owners tt) make her in all respec>ts.' $eawol'thy ,and properly manned, equipped, arid supplied," so aWtdl'bting both the vessel and]ier owners within the protection of the HHM' section of the act of congress passed February 13, 1893 ,(27 Stat.c. '105," p. 445; 2 Supp. Rev'. St. c. 105,P;, S1)'. See the recent ease, of The Silvia, 64 Fed. 881. ,', , . If that;' section exten.;1s to vessels ,bringing cargoes to ports of the United States, the case must be decided in favor of the defendant, whether the clauses of the bill Of, lading with, ref· 'erence to negligence, and adopting the law of England, be deemed 'valid and 'operative or not. If they a,revalid nn4 operative, then under the stipulation as to of thel3ritish law, the defense is whileif the clatiseadoptingthe law of England be held invalid' or inoperative as an attempt to the jurisdiction of all o,ther countries than that of England,or,as attempting to "introduce whol'esale the law of a forum'wholly foreign to the transin the absence 'of any reference to the law of action, Brazil, remains as the only law possibly applicable to the case. Under the e,:tplicit language of the third se¢tion of the ad 9f 13,1893, which 'extends its provisions fu "any vessel transporting merchandise or property to or from any port in the United States," Iddhpt feel authorized to' limit its, application to vessels of the United States alone. The construction gttren to our statute, lin1itingshipowners'liabilities to the value of the "'esseland freight, 'seems tome analogous. The Scotland, 105 U. S. 24, 30. AlthOugh foreign carriers ,Will therflby enjoy some immunities ·undel' this act ·that are not accorded to our vessels in foreign ports, that is a matter for Which' eongress is responsible under the explicit terms of the act, andnotthe,conrts. The libelis"therefore, without costs.
hi the ship waSon the libelafit.' Transporta·
THE MILLIE R. BOHANNON.
THE MILLIE R. BOHANNON. HEWLETT et aL v. 'I'HEi MILLIE R. BOHANNON. (District Court, S. D. New York. December 20, 1894.)
SEA CARRIAGE""'- WORKING - CALM - LEAKS AROUND CEN'l'ERBOARD WORTHINESS--"-LACK OF DUE DILIGENCE-HARTER ACT.
The three-masted centerboard schooner M. R. Bo, on a voyage from Cardenas to New York, when five days out, met a dead calm in a heavy swell of sea, during which she rolled considerably, and during two hours-from 12 to 2 p. m.-sprang a leak, taldng in three feet of water, which was with difficulty got under control at 6 p. m., when a breeze sprang up, after which, there were no more leaks. The evidence left no doubt that the leak. was in the centerboard seams, along the keelson and grub beam, in the bottom of the schooner. Held, that so heavy a leak, so soon after leaving port, due to mere rolling in a calm, was inconsistent with reasonable'fitness for the voyage, or with that necessary careful inspection of the I:leams about the centerboard which "due diligence" under the Harter act required; and that the vessel was liable for the damage to sugar cargo caused by the leak.
This was a libel by George Hewlett and others against the schooner Millie R. Bohannon to recover for damages caused by leakage to a quantity of sugar. George A. Black, for libelants. Wing, Shoudy & Putnam and C. C. Burlingham, for claimants. BROWN, District Judge. On a voyage of the three-masted schooner Millie R. Bohannon from Cardenas to New York, where she arrived' on May 25, 1894, the libelants' consignment of 3,400 bags of sugar, stowed on top of mahogany in the bottom of the hold, was damaged by sea water, some bags on discharge being empty, and some partly empty. The 'evidence leaves no doubt that there was no. extraordinary weather upon the voyage; that the ship, nevertheless, sprang a leak on the 14th of May, during a calm, in which she was unmanageable and lay rolling in a heavy swell; and that the leak which began between 12 and 2 o'clock p. m. was so heavy as to show by the pump soundings from two to three feet. of water in the hold, though the rod may have shown more depth than was actually present, from the effects of heavy rolling. Only the lower tier of bags was damaged. When the vessel was docked in New York, after discharge, the only seen upon her hull in which water might enter, wa3 'a fracture :in· one of the plank streaks of the bow below the water line, believed by experts to have arisen while the vessel was building. All the witnesses agree, however, that this would not naturally account for the great amount of water that appeared in the hold so suddenly between 12 and 2 o'clock of the 14th of May. By means of four hand pumps, and a small donkey engine attached to a fifth pump in addition, the hold was not cleared of water till about 6 p. m.; whereas, before that, ten minutes at a single pump every two hours was sufficient to keep her clear. After 6 p. m. some wind sprang up,'and the vessel then proceeded upon her course, and thereafter leaked no more than before the calm. The opinion of the masthe working of the vessel caused .the seams along the ter. is schootle-r a centerboard boat