396
FEDERAl, REPORTER.
Parker v. Great Western R. 00., 11 C. B. 545, illustrate the distinction between illegality of performance and illeg81ity of the promise which is the consideration of performance. In the former case the law of France, where the contract was made, was held to determine the validity of the carrier's stipulation for increased rates on "packed parcels," though the transportation was to be partly in England, where increased charges were illegal. Any additional express stipulation inserted by our own carriers in their billsoflading adopting the foreign law as the law of the contract, would be regllrded as but an. additional extortion or evasion, designed for the same illegal end, and would not be suffered to overturn the policy of the federal law on this subject, any morfl than an express contract to abf'lolve from negligence, signed by the shipper, would do, (Railway Co. v. Steven8, 95 U. S. 655, and if such an express stipulation by our own carriers could not be. upheld in favor of our own citizens, an. implied one to the same effect, in favor of a foreign ship, if any such could be implied, is no better. In my judgment, all stipulations made here, of whatever form, secure, directly or indirectly, the exemption of the carrier from; consequences of his own negligence, whether the carrier is a domestio or a foreign ship, are equally illegal and void un:der the federal law· Phcenix 1m. 00. v. Erie &; Tramrp. Co., 117 U. S. 312. 322, 323; 8 .. C.6 Sup. Ct. Rep. 750,1176; The Hadji, 22 BIatchf. 235; S. C. 20 Fed. Rep. 875; New Jersey Steam Nav. 00. v. Merchants' Brmk, 6 How. 344. In no aspect in which I am able .to view it does the provision of the bill of lading as to negligence afford a defense, and the libelant is therefore entitled to a decree, with costs. A reference may be taken to compute the damages.
THE J.CARl. JACKSON.
HALL 'l1. THE J. CARL JACKSON.
(District Oourt, B. D. N:6'ID York. December 16.1886.) CRAMPERTY-" AN OBLIGING ADVANCE" BY PROC1'OR-CODE CIVIL FROC.
N. Y. §§The essentlaI ch aracterlstlc)qgre d' 78,74. · .... " .' . lent 0 f ch amperty IS t h e mtent to promote litigation. Therefore,where proctors in a suit in admiralty, by the ar· rest of the vessel, and stipulation given for her release, had secured the payment of the demand. and had informed the libelant that the claim was secured, and the latter afterwards, supposin,lt the money had been collected, gave to a third person. an order for the amount upon the proctors, and the latter honored and paid the order while the suit was in progress. and before evidence, that this was not for the purpose of proscollection. held, upon ecuting the suit, but was an' obliging advance only, and did not violate, in letter or in spirit, the statute against champerty and maintenance.
In Admiralty. Hyland & ZabrWkie, for libelant. Derby & Luque8, for claimant.
THE SAMUEL E. SPRING.
397
BROWN, J. The Jackson was prosecuted for a balance of $50 claimed to be due to the libelant for towing a canal-boat from Buffalo. The facts show, without question, the performance of the contract for the agreed price of $100, and that the balance of $50 has not been paid by the respondent, or any part of it. After the filing of the libel, the attachment of the canal-boat, and security given for the claim, the libelant was told by the proctors that the claim had been secured. Subsequently he gave to a third person an order upon the proctors for the money, and the proctors, at the request of the bearer, honored the order by an advance of the amount; it being supposed, when the order was given, that the amount had been collected. The proctors stated at the time they honored the order that they would hold the plaintiff responsible for it if not collected as expected. The respondent claimed that the advance was made by the proctors aEI a purchase of the claim; and that the further prosecution of the action was in violation of the statute against cham- ' pertyand maintenance, as contained in sections 73 and 74 of the New York Code of Civil Procedure. It is entirely clear, however, that the essential and characteristic ingredient ohhese and other statutes on the same subject, namely, the inducement by the proctors to litigation, is here entirely wanting. The transaction, as the evidence shows, was nothing more than an obliging advance, made by the attorneys upon an order upon them given by their client under a misapprehension. The statutes as to champerty and maintenance, neither in letter nor in spirit, cover such a case. Fowler v. Callan, 102 N. Y. 395, 399; S. C. 7 N. E. Rep. 169; HarriJJ v. BriBco, 17 Q. B. Div. 504. . The receipt of the bill in full is clearly explained as made prospectively only, and for the purposes of collection. The balance was not paid by the respondents, or by anyone in their behalf. The libelant is entitled . to a decree for $50, with interest and costs.
THE SAMUEL
E.
SPRING.·
(Diatriet (Jourt, D. Ma88achu8ett8. December 15, 1886.) CARRlEIlS-OF GOODS-SHIPS-DAMAGE TO CARGO- LEAKY HOLD OF THE CARRIER. OBLIGATION
The presence of a leak in a vessel's hold. and injury to the cargo in con. sequence, is sufficient to charge the carrier with neghgence. unless it can be shown tbat the direct cause of. the damage was a peril of the sea. The ship i.s bound to provide the means necessary to enable her hold to be kept free from water, and will be liable for the failure in this regard, from whatever other cause it may occur.
Admiralty. Libel in rem. H. M. Rogers, for libelant. A. A. Strout, for claimant. lReported by Theodore M. Etting, Esq., of the Philadelphia bar.
898 NELSON, J.. The Samuel E.Spring sailed from· Matanzas, Cuba, on the nineteenth of April, 1886, for Boston, having on board, as part of her cargo, 687 hogsheads of MusCovado sugar, the property of the libelant, the Continental Sugar Refinery. The cargo was properly stowed, and well dunnaged. The bilLoflading was in the common form, containing .the usual exception of the perils of the sea. On the fifth day out, in latitude 29 deg. N., it was discovered, on sounding the pumps, that there was three feet of water dn the hold. The pumps had preViOllSly- been· sounded regularly eY.ery four. hours without finding any more than the usual amount. A few hours pumping was sufficient to relieve the 'hold of the water, and no unusual quantity was made for the remainder of the voyage. She in Boston ,May 7th, .having met with no unusual weather on the passage. On discharging the cargo, the bottom tier of hogsheads, principally those stowed in the bilges, proved , to be damaged by sea-water. No ,leak whatever could be found in any part ofthe ship, after a full examination. The libelant attempted to account for the undetected presence {)fthe water in the hold by showing neglect totty' the pumps, choking ofthe lim her holes or water passages to the pump-well,and want of capacity of thepumps to lift the mixture of seawater a,nd sugar drainings. . The is hardly sufficient to prove either of these ,to have been the real ClluBe of the damage. Amore probable solution of the difficulty is this: Before sailing for Boston, the ship lay at Matanzas and Havana for 25 dayA, exposed to the hot .tropical' sun. The effect of this exposure was to calIse a slight opening of the seams oLthe upper works. owing to the the outer planks.' Fortne 24 hours riext preceding the discovery of the waterthe ship had been beating, under full sail, against strong head,;wimds, in a choppy.sea. This caused a considerable list to leeward.' The sides of the ship being submerged,: the water entered through the open seems, and settled in the bilges, where it could not be reached by the pumps, so long as the list continued, or until a larger quantity had accumulated than had already entered. On the 24th the wind died out, and the ship righted. Then the water flowed to the pumps, and its presence became known. The action of the sea, and the cooler climate, will account for the closing of the seams before reaching Boston. . This is, probably the true explanation of the way the. leak occurred. If it is, the direct cause of the damage was not a peril. of the sea within the exception, but the leaky and unseaworthy conditionof the ship before' sailing. . But, .in whatever manner the leak happeneq, the ship was bound to provide whatever means were necessary to· enable the hold to be kept free from water. In either alternative, the ship must be held responsible for the damage. Phs Centennial, 7 Fed. Rep. 601; S. C. 2 Fed. Rep. 409. Decree for the libelant.
THE BERMUDA.
899
THE·BERMUDA,l PEREIRA
v.
THE BERMUDA,
etc.
(Oi'l'euit Oo'lilrt, E. D. New York. June 22, 1886.)
t.
CARRIEM OJ' GooDs-SHIPs....,.LnnTATloN OJ' LIABILITY- BILL OJ' LADINQ.-
REv. ST. U. S. § 4281. . . A stipulation in a bill of lading that the carrier will not be responsible for certain specified articles of value contained in any shipped under the bill of lading, unless the value thereof be expressed, and extra freight paid therefoI', is authorized by section 4281, Rev. St. U.S., and the reasonableness of it cannotbequestioned.. . .
I.
BA.ME-CONCEALlIENT OF VALUE-SUBSEQUENT LoS&---cCAlUUER'S LIABILITY.
Libelant shipped a trunk containing jewelry on the steam-ship B., under a bill of lading which contained the stipulation that the carrier would not be reo .sponsible for .the 108s of valuables, unless the value thereof were expressed in the bill of lading, and extra freight paid therefor. Libelant did not disclose the valuable nature of the contents of the trunk. On the voyage the trunk was broken open, and the contents stolen. HeliJ" that the carrier was not liable for the lOllS; affirming 27 Fed. Rep. 476.
In Admirlj.lty. LOf'enzo wtO, for libelants·. . fat' claima:p.t·
. The dec.ision of the district dismissing the libehvas correct, arid the grounds assigned for it were proper 27 Fed. Rep. 476. There was a special acceptance of the mercha.ndise under the clause in the bill of lading in regard to non-accountability for gold or silver, manufactured, plated articles, jewelry, trinkets, and watches, contained in any package or parcel shipped under the bill of lading, "unless the value thereof will be therein expressed, and extra freight, as may be agreed, be paid." The shippers were, in view of that clause, substantially guilty of imposition on the owners of the vessel, and of misrepresenting the nature of the articles, within the rule sanctioned in Hart v. Pellnsylvan';,a R. Co., 112 U. S. 340, S. O. 5 Sup. Ct. Rep. 155, where it is said: "If the shipper is guilty of fraud or imposition, by misrepresenting the nature or value of the articles, he destroys his claim to indemnity, because he has attempted to deprive the carrier of the right to be compensated in proportion to the value of the articles and the consequent risk assumed, aud what he has done has tended to lessen the vigilance the carrier would otherwise have bestowed. 2 Kent, Comm. 693, and cases cited; BeVv. Rapp, 3 Watts & S. 21; Dunlap v. International Steam-boat 00., 98 Mass. 371; Railroad 00. v. Fralo.ff, 100 U. S. 24."
The same rule was applied in Gibbon v. Paynton, and in Batson v. Donovan, 4 Barn. & Ald. 21.
4,
Burr. 2298,
1 Reported by R. D. & Wyllys Benedict, Esqs., of the New York bar. ·See note at end of case.