];'EDERALREPORTER.
theport of can for a time, or else the liberty..to call WOllld.l>:eidJe. 11;>elieve the term hal!! to .mean that the ship may call at sucbports as would. naturally and usually be ports of call on the voyage 'named. If the call at any ports, the invariable construcstipulation were only that she tion has been that she would only be entitled to call at such ports in their geographicalorder; and therefore the words ·in any order' are frequently added. But in any case it appears to me that the ports must be ports substantially on the course of the voyage. It follows that when the defendant's ship went off the ordinary track of a voyage from fiume to Dunkirk, to a port not on the course of that voyage, such as Glasgow, there was a deviation, and she was then on a voyage different from that contracted for, to which the exceptedpt>rilS clause did not apply; and therefore tha ship-owners are' responsible for the loSS of theg?ods." Pages 481,482. ' Theadditi(nla{clause in the bmofIading in the present case, "to tow and assist vessels in all situations," is used in immediate connection with the "liberty to call atanyport'pr'p'orts, for whatever purpose," and seems to me manifestly subject to the same necessary implications. It was inneeding help in all situations tended to ltuthorize assistance. to that might be met with in the otdinarycourse of the voyage. It was not designed to authorize, and did not justify the vessel in proceeding, after she wasloarled, as was done in this case, 40 miles directly away from' her port of destination, ti,uda way from the ordinary course of the voyage. Her doing so added materij;tlly to the risks of the voyage, and f$eems to me a deviation wholly foreign to the purpose 'and to the wellknown construction of such clauseshl bills of lading. Cases of slight' departure, like that of Stuart v. Navigation Co., 32 Law T. (N. S.) 257, for the salvage of vessels in imminent danger and distl'ess, are not app1icableto a '\lolllmercial contract. of towage of this kind, which would, i,f justified, subject cargoes, without limit, to the speculative ventures of masters. The o£fset is allowed,',and'judgment must therefore be for the with, costs. ," , .
THE PISKATAQUA.·
THE' PISR:ATAQUA. WARD' et
aL
V.SAME.
(lJiatrict Court, E. D·. (NWl York. June 16, 1888.) 1;' SimoPING-AFFREIGHTMENT-'S:EAWORTHlN'ESS - PRELrM:INAR"t SUMPTION. i" I"
'
,
PRE-
In the abSElnce,of any evidence of concealment, latent defect, bias, or fraud, ·a 'strong presumption of tbeseawortbiness of a vessel arises when a prelim!. nary ,survey has b.e,e,n held, by thll Ch,arterer, and upon such inspection the ves(8el has been found seaworthy. ' (SAME__
Libel,ant, SOl:lg,ll.t to hold the. ,bark p.liab. deliver,in g h.is c.argo of hidell claiming that the vessel, when she saIled from Montevideo for New Jaeported'b1EdwardG; Esq;, of the New-York bar.
623 York.1WU in an uuseaw.orthycondition. On the "evidence. 1l,81d, that the damage arose frpm. the sev:ere to which the vessel.was exposed during tpe voyage, and not to unseaworthIness, and that the libel should therefore be dismissed. . ' ..
In Admiralty. J. Adriance Bush. for libelants. Wing, Shoudy & Putna,m, for claimants. BENEDICT, J. These actions were tried together. They are brought to recover, for damages to a cargo of dry ox hides,. cow hides. and skins receiyed, during, a voyage ofthe bark Piskataqul\ from Montevideo. to New ·York. The only question presented for determination is whether the vessel was seaworthy at the time she left the port of Montevideo. The Mnterition of the libelants is that the vessel, when she sailed, stood in need'ofcaulking; that one Of her bow ports was in bad condition; and tha.t it was by reaSon of het unseltworthy condition in these particulars in which the cargo '. On the part of the vessel the contention is that the unseRworthyconuition in which the vessel was when she arrived .,to baq during the voyage! ., The deficienciesfouod in thevesseI.on arrival were of two kinds: . (1) Open seatnsand 'butts 'in her <leek top sides; (2) an opellirig in her. bow port. In regard to theoperi seams,.a'nd butts, several marine inspectors., who examined ,the arrival, have expressed a confident opinion that. the ,conditiQn of the seams and butts, as they fouud them, cannot be prop·.accounted for by the weather encountered by the vessel on the voy,. age.. it is' sought to be inferred that the seltms and buttsweie in bad condition when the vessel sailed from Montevideo. On thie other · hand, there is positive testimony from those on board the vessel that the in good condition when she sailed, and that the sl,wereweather which the vessel undoubtedly encountered furnishes'a 'satisla:ctOf)' reason for the. condition of the seams and butts upon arrival. ,.rhere is one undisputed fact iii the case. which, in my opinion, should be conclusive upon this point in a conflict like this. and that is the fact that the charterer ill Montevip,eo, before shipping his cargo, caused the ·veSSEll to 1,e inspected for the purpose of ascertaining whether she was in a seaworthycoriqition or 1;10t; and upon stich inspection she was found ,.seaworthy. The testilnony of the inspector who made the inspection is ; before the court, and it is clear and positive to the effect that the vessel was then. seaworthy. and fittp undertake the voyage in question.' This inspection, which seems to have been made in accordance with' the local law at Montevideo, was also in accordance with the general maritime law. Provision for such a preliminary inquiry as to the seaworthiness of a ship intended to be freighted is to be found in the Rhodian Laws, in the ordinance of 1681, and in many Codes derived therefrom. Of course, as Valin says, (Comm. vol, 1, p, 654,) such preliminary inspection "is not conclusive, because it applies only to external parts. But in the absence of any evidence of concealment, latent defect, bias, or fraud, the presump!
624
FJj)]);Jl)RAL .REPORTER.
tionfroInsuch a preliminary survey is strong. In this connection, the cited by the learned counsel from the French law may well be reJerred to. Thus the court of Bordeaux has decided as follows: "The certificate of survey on a vessel raises a presumption not only that the ship at the time of her departure was fit for sea, but besides that it was sufficiently staunch in all its parts. aM especially in the sheathlllg, to stand the hardships of the voyage it was to undertake; hence the damages and injuries pointed out in subsequent surveys, either at the port of repair or the port of destination. are presumed to be due to accidents of navigation." Dalloz,1860, 2,83. . . The court at Havre, in 1878, decided as follows: "The charterers have much less grollnd for reclamation: because of the result of events occllrring after they have definitely accepted the vessel which they themselves, or by their agents, have acknowledged to be in good seaworthy ,condition to perform the voyage. This was, on the other hand, for the shipowners, the best evidence of goodsel1oworthy condition which they could have, because it proceeded from their own charterers, interested in the performance of the voyage; wherefore it cannot be allowed that the charterers can come to-day and argue against a fact which they have themselves acknowledged." T-his decisionis,qnotedwith approval in Desjardin's Droit Maritime, vol. 3, 415. In a case like this, the survey proved to have been made in behalf of the charterers is in. my opinion decisive. I therefore conclude that the damage in question was not caused by an unseaworthy conditiol]. of the vessel in regard to her seams and butts. As to the matter of the bow port, the evidence makes still more strongly in favor of the. a,hip. For the evidence of the libelant is that, on the ship's arrival, the middle seam of the shutter of the bow port was so open tpat one inside could see daylight through the seam; and Capt. Cutler says: "I ilon't thInk I could h\tve got a seaman to go in her in the condition she was in then." It is impossible to believe that the ship would be put to sea with the bow port in the condition described, and equally incredible that with such a bow. port the ship would have passed the inspection instituted by the charterer in Montevideo. There is also in the case evidence tencling to show that. her bow port had suffered a severe blow. The evidence of severe weather encountered by the ship is strong. She had one storm of five days, during which the ship worked to northward only apout ten miles a day. Upon all the evidence, I am satisfied 'that it was to the severe storm to which the ship was exposed during the voyage, and not to unseaworthiness, that the damage to cargo complained of should be attributed. The libel must be dismissed, and with costs.
:MALONE V. RICHMOND &:
R. CO.
625
MALONE'll. RICHMOND
& D.
R.
Co.
(CHrc'Uit Com't, E. D. North Carolina.
August 1,1888.'
1.
REMOVAL OF CAUSES-LoCAL PREJUDICE-AMOUNT IN CONTROVERSY.
To entitle the defendantto remove acause, under the "local prejudice" clause of the act of "March 3. 1887. the matter in dispute must exceed the sum of $2.000, the limit prescribed by the act for the original jurisdiction of the circuit court. Such clause provides that it shall be "made to appear" to the circuit court that from" prejudice or local influence" the defendant will not be able to obtain justice in the state courts. lIeld. that it is the duty of the circuit court to examine into the truth oft.he facts alleged to support the grounds for removal, and to ascertain their existence. The simple affidavit by the defendant, stating, in general terms, the existence of such prejudice, and its effect, in the langnage of the statnte.-no opportunity having been given the plaintiff, by notice, to' controvert such statement,-ought not to be accepted as sufficient evidence of the fact. l
2.
SAME-PROCEDURE-ExISTENCE OF PREJUDICE-TRIAL.·
Application for Removal of Suit under the Act of March 3, 1887. D. Schenck, Olw.rles Price, and John N. Staples,. for petitioner. HARLAN, Justice. The plaintiff in this suit, which was brought in the superior court of North Carolina for the county of Buncombe, is R citizen of this state. The defendant is a corporation created under the laws of Virginia. The object of the suit is to recover.statutory penalties, alleged to have accrued, under the statute, against the railroad company for non-shipment of certain personal property. The value of the matter in dispute is less than $2,000, exclusive of interest and costs. The time having passed for a removal of the suit silllPly on the ground of diverse citizenship, the defendant, without notice to the plaintiff, pre'sents here a petition for its removal into this court, upon the ground that, from prejudice or local influence, the company could not obtain justice in the court in which the suit was brought, or in any other court of North Carolina, to whic,h, under her laws, it may be removed on account of such prejudice or local influence. With the petition is filed theaffidavit of the third vice-president of the railroad company, in which he repeats the general statement as to its inability, on the grounds just stated,tooptain justice in the state courts. That affidavit constitutes all the evidence offered in support of the petition for removal. This application involves the construction of certain clauses ofthe act of March 3, 1887, amending the. act of March 3, 1875, a11d further regulating the jurisdiction of the circuit courts of the United tltates. 24 St. 552; 18 St. 470. The first section, among other things, specifies certain classes of suits of a civil nature of which those courts may take original cognizance, concurrent with the courts of the states. Among such suits are those involving controversies between citizAns of different stutes. In respect to Buits specified in that section, it is provided that the matter in 1 See
note at end of case, post, 683.
v.35F.no.9-40