was intended and provided for. The agreement was that the vessel should "be discharged with' customary quick at port of discharge." The stipulation contemplated haste, and, if the sugar was to be weighed as taken from the vessel, required the resort to such well-known, approved, and commonly practiced method of weighing at the port of discharge as would secure to the vessel ordinary quick dispatch. The learned district judge found as a fact that customary quick dispatch at the port of Philadelphia, in the discharge of sugar, where the cargo is to be weighed as delivered, is such dispatch as can only be afforded by the use of platform scales in weighing. The evidence fully justifies that finding. At the date of this charter party, and for at least two years previously, it was the almost universal practice at the port of Philadelphia to weigh sugar as discharged from vessels on platform scales, and not more than one cargo in twenty was weighed on sticks. The testimony of the experienced witnesses examined in this case quite satisfies us that the appeIlants did not give to the Black Prince the customary quick dispatch for which her owners had contracted. The amount of demurrage allowed seems to us to be entirely rea· sonable, under the evidence. We find no error in this record, and therefore the decree of the district court is affirmed.
THE TIMOR. NELSON et a1. v. NORDLINGER et al. (Circuit Court of Appeals, Second Oircuit. April 22, 1895.) No. 121.
BBIl'PING-DAMAGE TO CARGO :BY RATS-BILL OF LADING.
A cargo of beans in sacks was shipped from Fiume, Austria, to New York, under a bill of lading containing exceptions of damage from vermin. On arrival at New York the cargo was found to have l>een badly damaged by rats. The vessel was of iron, and it was shown that her holds were thoroughly scrubbed before her arrival at Fiume, and that no rats were discoverable; that there were no hiding places for them; and that they came on board at Fiume, without the knowledge of the officers. It appeared further that the character of Fiume as a seaport frequented by rats is well known. The vessel had five cats during the voyage, which had abundant access to the cargo, and the testimony showed that, if the cats proved active and vigilant, this was an adequate number. Held, that the injury was within the excepted clause, and that the evidence failed to show that the damage was attributable to the neglect of the vessel to exercise ordinary and reasonable precautions. 46 Fed. 859, reversed.
Appeal from the District Court of the United States for the Southern District of New York. This was a libel by Jacob D. Nordlinger and others against Nelson, Donkin, and others, owners of the ship Timor, to recover damag-e for injuries caused liyrats to a cargo of beans. The district court entered a decree for libelants. 4.6 Fed. 859. The cause was then
referred to a commissioner to assess damages, and was afterwards heard upon exceptions to the commissioner's report. 61 Fed. 683. Defendants appealed. J. Parker Kirlin, for appellants. Oharles C. Burlingham, for appellees. Before WALLACE, LAOOMBE, and SHIPMAN, Oircuit Judges. SHIPMAN, Oircuit Judge. The libelants shipped on board the .British ship Timor, an iron steamship, 325 feet in length, at Fiume, Austria, 3,700 sacks of beans, for safe transportation to New York, damage from vermin excepted. On arrival of the vessel in New York this part of the cargo was found to have been badly damaged by rats during the voyage. It is not doubted that an injury thus created is within the excepted clause. The owners of the cargo thereupon filed their libel against the owners of the ship to recover for the damage, upon the ground that it was caused by the negligence of the officers in not taking proper precautions at Fiume or during the voyage, and that it could have been avoided by proper and the usual care and skill on their part. It was not denied by the libelants that, in view of the exceptions contained in the bills of lading, the burden of establishing this negligence rested upon them. Clark v. Barnwell, 12 How. 272; Transportation Co. v. Downer, 11 Wall. 129. The libel averred that the negligence consisted in not fumigating the vessel for- her voyage. It is conceded by the libelants that on the proofs the omission to fumigate would not justify a finding of negligence, and on the trial they relied upon an insufficiency of cats and of traps. The district court was impressed with the extraordinary extent of the damage, and thought that the ship could not have taken the necessary and usual precautions, or such an amount of injury would not have occurred. The testimony that the holds of the iI'on vessel were thoI'Oughly washed and scrubbed before its arrival at Fiume, that no rats were discoverable, that there weI'e no hiding places for them, and that they came on board, with· out the knowledge of the officers, from the whaI'f at Fiume, is satis· factory. It furthermore appears that the character of Fiume as a seaport frequented by rats is well known. In this state of affairs, when the holds aI'e free from rats before the cargo is taken on board, and there is no knowledge on the subject, but the probability is that vermin have come in with the cargo, the principal reliance of captains is. upon the presence of cats on board the vessel, The Timor had five cats from the Mediterranean to New York, which had abundant access to the cargo, and the sum of the testi· mony is that, if the cats proved to be active and vigilant, this was an adequate number. The precautions taken by the TimoI' were of the usual fullness, which had ordinarily proved to be adequate, and the libelants' charge of negligence was not sustained. They had taken bills of lading which excepted the owners from liability for damage by vermin, and, in our judgment, failed to show that the loss was attributable to the neglect or failure of the officers of the vessel to exercise ordinary or reasonable precautions to rid the ship
of the presence of this source of danger. The decree of the district court is reversed, with costs, and the cause is remanded, with instructions to dismiss the libel, with costs.
THE WANDRAHM. MERRITT et a!. v. MORSE. (CIrcuIt Court of Appeals, Second CircuIt. April 22, 1895.) No. 109.
MARITIME LIENS--LABOR AND MATERIAl, CONTRACTS WITH STRANGER TO THE
"Vhen a person. whose relation to the vessel Is unknown. but who Is Dot the apparent agent of the owners (who are unknown, but who can readily be ascertained), makes a contract for Bomethlng to be done upon the vessel In the line of his known business as a mechanic, the co-contracting party Is put upon inquiry to ascertain the powers which he possesses. If no Inquiry is made, and nothing is said about the credit of the vessel, the Inference is that the co-contracting party Is satisfied with the security of his debtor, and his mere subsequent declaration that he relied upon the credit of the vessel will give him no lien. 62 Fed. 935, affirmed.
Appeal from the Circuit Court of the United States for the Eastern District of New York. l'his was a libel by Israel J. Merritt and Israel J. Merritt, Jr., against the steamer Wandrahm, Edward T. Morse, claimant, to enforce an alleged lien for labor and materials. The district court dismissed the libel. 62 Fed. 935. Libelants appeal. E. G. Benedict, for appellants. Hyland & Zabriskie, for appellee. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. SHIPMAN, Circuit Judge. The facts in this case are peculiar. In June, 1893, the steamship Wandrahm, owned by the Hamburg American Packet Oompany, a German corporation, was lying, in a damaged condition, in the port of Quebec, Canada. The owner thereupon made a written contract with the shipsmiths and machinists known as the Morse Iron Works Company, hereinafter called the Morse Company, a partnership in the city of Brooklyn. N. Y., to take the steamship from the St. Lawrence river, tow her to New York, and completely repair and restore her, within a specified time, for the sum of $63,000. The contract was thereafter completely executed, and the contract pri'ce was paid. On June 24, 1893, Edward P. Morse, one of said firm, wrote the following letter to the libelants:
"Morse Iron Works Co., "Shipsmiths, Machinists, and Boilermakers. "New York·.Tune 24. 1893. "The Merritt Wrecking Co.-Gentlemen: Kindly send me approximate estimate for furnishing 3 wrecking pumps, with boilers and all gear; also