4:8
here and enter into competition with the labor of the country. Upon this ground, also, it is clear to my mind that the act does not apply to the crew of too Patrician. Of course, a Chinese seaman, although allowed to come into the ports of the United States as one of the crew of a vessel from a foreign port, does not thereby obtain the right to remain in the country and become a laborer therein; and if the master allows him to go ashore permanently, the latter would be lia. ble to removal, and the former to the punishment prescribed in section 2 of the act. But such seaman would have the same right to be on shore temporarily and not otherwise employed than in the business of the vessel during her stay in port, as those of other nationalities. Counsel for Moncan also claims that the act does not apply to him at all, and that he is entitled now to remain in the United Sta tes, as a laborer, because he was lawfully on board of an American vessel as a member of the crew thereof after November 17,1880, and before the passage of the act, where he has ever since remained. The rule is well established that the vessels of a nation are to be considered as a part of its territory, and the persons on board of them are deemed to be within the jurisdiction and are protected and governed by the laws of the country to which such vessel belongs. Vattel, book 1, c. 19. § 216; Wheat. Internat. Law, 157; 1 Kent, 28; Crapo v. Kelly, 16 Wall. 611. In the Matter of Ah Sing, 10 Pac. C. Law J. 52, [So C. 13 FED. REP. 286,] Mr. Justice FIELD says: 41 An American vessel is deemed to be a part of the territory of the state within which its home port is situated, and as such a part of the territory of the United states. The rights of its crew are measured by the laws of the state or nation, and their contracts are enforced by its tribunals." For many purposes, in contemplation of law, Moncan has been within the territory and jurisdiction of the United States ever since he sailed from England on the Patrician, and I think this ought to be considered one of them. He joined the crew of an American vessel, bound for a port in the United States, before the passage of the act, and while in that condition is brought within the actual territo· rial limits of the country. To drive him back now from our shores as as a person prohibited by this act from residing within the United States, would, it Beems to me, be giving it a narrow and harsh construction, utterly at variance with the spirit and intent of our treaty stipulations.
WILCOX V. FIVE HUNDRED TONS OF OOAL.
49
This act may be enforced so as, for all practical purposes, to exclude Chinese laborers from coming here and entering into competition with the labor of the inhabitants of the country, without spitefully straining it to cover a few doubtful or extreme cases, and thereby eventually bringing it into deserved odium and disrepute. Nor should it be forgotten by those who favor the exclusion of Chinese laborers from the country, and wish to see the experiment fairly tried, that the act is unfavorably regarded by a large portion of the most intelligent and influential people of the country "as being the servile echo of the clamors of the sand lot-as fraught with danger to our commercial relations with China, as inconsistent with our national policy, as obstruct.ing the spread of Christianity, and as violative, not only of the treaty, but of the inherent rights of man." HOFFMAN, D. J., In re Low Yam Chow, 10 Pac. C. Law J. 140; [8. C. 13 FED. REP. 616.] My conclusion is that neither Moncan nor Ah Kee are unlawfully in the country, within the perviewof the act of May 6, 1882, because (1) they are simply on board ofa vessel "touching" at this port on flo voyage to a foreign one; (2) they are here only as members of the crew of a vessel arriving from a foreign port and taking on cargo for another; and, further, that Moncan, having joined an American ship prior to the passage of the act, and remained on her until his arrival here, is not thereby prohibited from residing in the country. The prisoners are discharged from the arrest, and the marshal is directed to return them to the vessel from which they were taken,
WILCOX
v.
FIVE HUNDRED TONS OF COAL.
(Oircuit Oourt, N. D. Illinoi8. November 26,1880.)
1.
ADMIRA.LTY-LIEN FOR FREIGHT-DELIVERY.
As a rule, where the cargo has been delivered to the consignee, the ship-owner does not retain a lien thereon for his freight unless there is an understanding between the parties, when the goods are delivered to the cons'gnee, to that effect, or it is the usage of the port where the cargo is delivered that the lien shall remain.
2.
BUIE-NEGJ.IGENCE OF CAPTAIN-WINTERING.
The evidence in this case showing that the captain was not guilty of negUgence in not completing the voyage on account of rough weather, it was l£ellJ that the district court erred in awarding damages on that account.
v.14,no.1-4
50
EEDEBAL
In Admiralty. W. H. Condon, for libelant. Robert Rae, for respondent. DRUMMOND, O. J. The sohooner American was at Oswego in the fall of 1872, and took in a cargo of coal for Ohicago, leaving Oswego on the tenth of November. A general bill of lading was given, and a high price charged for the transportation of the coal from Oswego to Ohicago, being $2.75 per ton. The schooner met with adverse winds and did not arrive at Port Huron until November 29th. The weather, . according to the testimony of the witnesses, was very inclement that fall, and the oaptain concluded that the safest course was to strip the vessel and lay up at Port Huron. The schooner aocordingly remained there with her cargo during the winter, and the ooal was not delivered in Ohicago or received by the oonsignees until May 8, 1873, when the spring freight was paid by the oonsignees on the ooal, being muoh less than that oharged in the bill of lading. After the coal had been thus delivered by the schooner to the consignees, a libel was filed claiming the amount of freight stated in the bill of lading, the consignees having refused to pay any more than the spring price of freight. The case went to proof before the district court, where the libel was dismissed; but a oross-libel having been filed olaiming that the captain of the Amerioan was negligent in wintering at Port Huron, and that the vessel should have come on in the fall of 1872, the district Murt gave adeoree on the oross-libel for damages against the libelants in oonsequenoe of the supposed negligenoe of the oaptain. From these deorees the libelants have appealed to this court, and the question is whether the decrees of the district court are right. The first question is on the decree of the district court dismissing the libel. That deoree, I think, was right. The rule laid down by the supreme court of the United States in Bags of Linseed; 1 Black, l08,is that inordel' that the Ship-owner should retain a lien on the cargo for the freight, it should not be delivered to the consignee. Theruleis absolute, and there may be oiroumstanoes where a cargo may be delivered to the consignee and the lien of the ship-owner retained. But , the supreme court declares that in all such cases, when the goods are delivered to the consignee, there must be an understanding between the parties that the lien of the ship-owner remains upon the oargo; or it must appear there is an established local usage of the port where cargo is delivered, t4at the lien shall remain. I do not think this case is brought within any of the rules laid down
WILCOX V. FIVE HUNDRED TONS OIl' COAL.
51
by the snpreme court. The language of the libel is "that by reason of the premises the libelants acquired a lien on said cargo for the freight thereon, as set forth above," which amounted in the whole to the sum of $1,375. This was the amount due for freight, on the assumption that $2.75 per ton was to be paid, claiming t.he whole amount as contained in the bill of lading. The answer of the claimants to this allegation of the libelant is that, in regard to the matter stated in the fifth article of the libel on information and belief, they deem the same to be true; and it is claimed on the part of libelant that there is an admission in the answer that the libelant had a lien. But I think this is not a true construction of the language of the answer. It is entirely inconsistent with other claims set forth in the answer, and it could not have been the meaning of the defendants in the court below, I;tnd they could not have intended to admit that the libelant had a lien on the cargo for the whole amount of the stipulated freight. I take it, therefore, all they intended to admit was that, if the freight had been brought to Chicago in the fall of 1872, then the vessel would have had a lien for the freight stipulated in the bill of lading. This question of pleading being decided adversely to the libelant, is there any other proof which will bring the case within the rule as stated by the supreme court of the United States? I think there is not. Certainly, there was no understanding on the part of the consignees that the lien was retained by the libelant; there is no proof whatever of any statement made or claim insisted on at the time the property was delivered to the consignees. There is no settled usage of the port of Chicago shown upon the subject of these liens where the property is delivered to the consignee. So on that account I think the lien must fail. But, independent of that, it may be a question whether the fair construction of , the contract between the parties was not that the price was to be paid on the a.ssumption that the property was delivered in Chicago that fall. There is no evidence whatever upon this point, and the court is left to infer what the intention of the parties was at the time the coal was delivered on the vossel in the early part of November, 1872. T,he price was a very high price,-confessedy so; alid perhaps the natural inference to be drawn from all the circumstances of the case is that the price WaS agreed to be paid on the understanding that the coal was to be delivered ill Chicago that fall; and if that is so, the libelant is not entitled to the full amount of the price named in the bill of lading, because that would be an essential element entering into the contrMt. It was so eady in the fall that the expectation by
52
FEDERAL REPORTER.
both parties probably was that the vessel would arrive in Chicago before na vigation closed. Therefore, I hold that the decree of the district court in dismissing the libel was correct. But I also hold that the decree of the court in sustaining the cross-bill and awarding damages to the consignees, on the ground that the captain had been guilty of negligence in remaining at Port Huron, was incorrect, and must be reversed. I have gone through all the testimony in this case, and I think the evidence is conclusive that the captain was guilty of no negligence in wintering his vessel at Port Huron. He did not arrive until November -29th, and there is no satisfactory evidence that any sailing vessel passed Port Huron after the arrival of the schooner American there. There is evidence, to which some weight must have been attached by the district court, that some sailing vessels passed after that time; and there was some testimony taken from the deputy collector of customs here about the arrival of vessels in Chicago; but there is no satisfactory evidence whatever, and I have examined the case with the utmost care to that view, upon which the court ought to rely, showing that any sailing vessel passed Port Huron after the arrival of the American there. But suppose it were so, and that vessels did pass Port Huron after the arrival of the American, and did arrive in Chicago that fall, that is not the rule by which thiscase is to be governed. It is not because of that the master of this schooner should be charged with negligence. The question is whether he was, in point offact, guilty of negligence in wintering his schooner there. All the testimony concurs in this: that the fall was remarkably boisterous and l'ough, with a great deal of tempestuous weather. There is concurrent testimony on the part of masters of vessels that it would not have been prudent for the American to leave Port Huron after her arrival there, with a view of proceeding to Chicago, and the question is to be determined by the state of the case at the time; and if, acting as a reasonablyprudent man, in exercising that prudence he made a mistake, he is not to be visited with damages as if he had been guilty of negligence in . not coming forward with his vessel to Chicago. The court is to look at the surrounding circumstances a·ttending the arrival of the American at Port Huron, as developed by the testimony, to see whether it was a prudent act for the master to remain', or whether his duty to the consignees required him to take the. risk which obviouslyexistell, and push his vessel forward in the hopeof arriving at Chicago during the fall. I think .the testimony is satisfactory that it would have been an act of imprudence for him to 'attem.pt to reach [email protected] there-
