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P.EAnCE V·. THE THOMAS NEWTON·

(Df.$trictOou'I't,.1).NorthOarolina. November 20, 1889.)

. Tile lien' upon . shipped . owners. ,.

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vessel for <the at ,

TO ,CARGO.

and due transport1of goods to be delivery Qfsuoha-oo&s toher agElnts and
PERILS'.

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2. SRIPPINa--D.urAGB TO

'\Vl,J,ere haye provide\! a place for the tllegoods, from allbilt elFtraordinary events, they are not liabl.e for damages resultmg from & tidal wave arid flood; such as had ooourred but tWice before in 40 years.

, , But tlley,'aI1'liable for the damage that, results from their failure to dry snch goods, " even where :they'could not do 80, if thai have refused to the, goods to :owner,Whoallll:ild for them,and thUfl alford him an OpportUlllty to dry t.hem him·
Belf. , , ' , , '

Starke&: for libelant. Sharp kHugMB, ..
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In Adnii'8.1ty:Libe!'

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four. of goods, which. by ,the on Marcb. g. 3 ...1st a.n4, rUj"t la.st, Ddr b.J..ll of lad.i.n . . .. gi. '. th eref!.pro . Th. .. ,Were C. The plydeHne runs .. 0 .. ffl.01.f,'.. .:"V to, the ..ere.,. as, a.. p.. p,ear.s., b..Y the b.ills,pf . '. '.' .th ,lading" :e . n.J. t.0,.,': Thomas. . .. Tlle is. 1II0,rfol1:t" through the Disma:) North Carolina, ,,RJ;1d viz., 'rh,ursdays, at 6.A.M. She property oI,the NQrfolk Swamp Steam:Boat to thisppmpanlY at nboqt ,Ho'clock ,late for the trip pi. t,he Newton for I, il.D.Q w,{l$. therefore. the company's to /lwi\.it the have. been ,QnMonday morning. sqstc;>r,eqa, stprx;n and. flood of water pccurred, which flooded., warehouse,butthe ,entire water front :of; Norfolk. '. : Its the evidence, tl- flood such as had 'occurred but twice during the previous 40 years. COI1l,paQY sllifel1ed, ,in wilP ,otllers who had' whal;ves on the river, j7-!J.mqng ,Whose agent, :14r to [ljl1erchandiseawaitingtranshad rooms on ,in ;which. these, gC)ods,were stored, which the rise. of,.the,flood.,was so sudden abd unexpected that it would have been impossible-occurring, as it did, late at night-to have moved the goods to these upper stories. The damage was done by the water on Saturday night and the following day, or resulted from the wetting then received by the merchandise. As a result of the storm, the steamer Thomas Newton was unable to make her
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regular tripon MOridajr,' 'and only" delivered t1ie goods atSoutll' ,Mnis on, the following Friday. There was considerable testimony adduced with' a view to'show negligence in the company in riot taking the' goods to South Mills earlier than was donejbut, in 'the view taken by the dourt of the case, that matter becomes immaterial. On Monday, as'the court finds from the evidence, after the storm, and after his goods were wet, libelant went to the agents of the Thomas Newton, and asked if there were any goods there for him. He testifies that young Mr. Johnson, whom he saw, said he had not seen any; that there were none there. On Wednesday, being informed that they were stilIat Norfolk, libelant asked the agents of the boat for the goods, and was told that he could not sae them or have them. Young Johnson says he would not give them to libelant unless he would give a receipt. On Thursday the goods were shipped, and on Friday, as has been said, delivered by the steam-boat Thomas ,Newton at South Mills. The damage done to the goods by the wetting was, as the court finds from the evidence, $528.35, and·of this 30, per cent., or $157, was caused by the fact that they were not properly dried on Monday, but were, on the contrary, kept boxed lip, in their wet condition, until Friday. Three questions arise upon these facts: First. Was the damage ODe for which, the vessel is liable in rem? Second. Were the owners liablefor .' of April? Third. If, the damages by the storm of Saturday, the not, were tqey liable for the damage resulting from the fact that the goods' were not dried on, Monday? , 1. Itis.contended that the injuries were received before the goods' reached the vessel, and that therefore no action in rem lies. The propo-' sitionlaid down in claimant's brief, and for which he cites manyauthorities, is admitted. It is: "No lien on a vessel until a lawful contract of affreightment is made, a cargo sh,ipped under it. " . 'l'hewords.are used in numerous cases of authority. The fallacy lies in an incorrect meaning attached to the word "shipped." The sentence' is, in au bstance. to, be found in the opinion of the supreme court in TM' Freemni1.v. Buckingham, 18 How. 182,188, cited in chiimant's brief, and: is used ,with little variation of phrase in VanderWtite1' v. Mills. 19 How. 82, and Pollardv. Vinton, 105 U. S. 7-12. In all these cases the question I was whether there waS any contract of affreightment. In The FreerniJ,n v;' Buckingham the master had given a bill of lading for goods never shipped, and an assignee had libeled the vessel. In Vanderwaterv. Mills the owners ' oithe libeled vessel had made a contract to carry freight from a certain' port toan(Jther,but had never sent their vessel to the proposed shipment. In neither case had any goods haendeHvered to the master' of the libeled vessel, or its agents. In Pollard v. Vinton, 105 U. S. 7-12, MILI.ER, J., says: ..Before the power to make and deli ver a bill of could arise. some person must have shipped /{00d8 on the vessel. Only then could there be a shipper. and only then could there be goods shipped. In saying this, we do not mean that the goods must have been actually placed on the deck of the

108

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vol 41.

vesset . If they come within the control and custolly of tlle officers of the boat, for the purpose of shipment, the contract of carriage bad commenced." The case of Bulkley v. Cotton Ch., 24 How. 386, is one in which no lien could have been enforced, the word "shipped" bear the interpretation contended for. The bark Edwin, lying below the port of Mobile, to carry 707 bales9f cotton to Boston, and the injury to had the gOQds, for which she was libeled, happened by the explosion of a boiler (,If a steam-boat employed to carry them from the wharf to the Edwin, and before they had reached the bark. NELSON, J., says, in the opinion of the supreme court: "The unloading of the vessel, at. the .port of discharge, upon the wharf, or even tile deposit of the goods in th.e warehouse, does not discharge· the lien * > and we do not see wh)' the lien may not attach w:hen the cargo is delivered,to tile master for shipment, before it reaches tile hold of the vessel." L, .Tothesameefl'ect is The OregQn, Deady, 179, affirmed in the circuit oourt ;on'appeal by FIELD,J.· That delivery of.goods to a lighter, and receipt therefor by the master,'is. a good delivery, is held in The Sunlight, 2 Hughes1 9.. There are two liens in a contract of one, of the vessel on the freight; the other, of the freight on the vessel. The.owne.r'df the cargo has it lien upon the ship for the safe custody, due tl'anspo.rt, ;ood right delivery of the same, as much as the Ship-owner has upouthe,cargo for height. TkeJM/{/gie Hammond, 9 WalL 435. This lien the rec.eipt Qfthe goods for shipment. Upon receipt the goods are "shipped." 1 Pars. Mar. Law, 132; Conk. Adm. 151. The court therefore holds that the responsibility 6f the Thomas Newton began on Thursda.y, when her.agents ,and owners received the goods. 2. Fertha storm, and its consequences, the owners cannot be held liable. They had, as appears, provided a place of storage for the goods, safe but extraordinary events; An earthquake, a tidal wave, an unprecedented storm, a flood such as occurs but twice in a generation, no one required to provide against. If it were otherwise th.e risks to carrier8J or else their expenses in pl'oviding against would be increased. It is for that reason that they are Ilrotected law-writers call the "acts of God." .8. B\lt ,force ;prevented them from doing what was qecessary for Ute preservl:\.tipnof tlJ,e: goods .after they were injured. Admit theyhad"::no means.of dJ:'yingthem. The owner aaked for them, and they have giv.en him an opportunity of doing what they <'Puld or did not, do the.mselves,;For the: damages resulting from the remained unQlj.redfor from Monday.until Friday, W;hich at $157, entitled to a judgmentin rem against Th()mas
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mE BUNGARIl.

109

THE' HUNGARIA.

PINOXNEY

v.

THE llUNGARIA.

(District Oourt, D. South OaroM-no,. November 23,1889.)
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ADMIRALTY-JURISDIC'l'ION-TERRITORIAL LIMITS-CIVIL PROCESS.

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As the territorial limits of a federal court's jurisdiction in civil causes in admiralty are confined to the territorial limits of the judicial district, its civil process does not run to that frontier or belt of water recognized by thE! law of nations as under the control of the littoral owner, for purposes of revenue and defense. For the purposes of a libel in rem, a vessel canno!; be considered to be c.onstructively in port, within the court's jurisdiction, though it did not· clear when it left port. .
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SAME-LIBEL IN REM-CONSTRuoTiVE JURISDICTION.

SAME-JURISDICTION BY. CONSENT-o-POW:HR Oil' MASTER.

When a vessel is outside .the territorial limits of a court's civil process, the court cannot obtain jurisdiction of it, for the purposes of a libel in rem, by thecousent or'stipulation of the master. .. ' .

In Admiralty. LibeUn rem by Charles C. Pinckney; Jr., .against the. British steam.. ship Hungaria; 1. N. Nathana, for libelant. J. P.K. Bryan, for respondent. SIMONTON, J. This is a libel in rem. The steam-ship Hungarill came into the port of Charleston for a cargo of phosphate rock. Owing to her draught, she took part of her cargo on board , and then' crossed the bar and completed her loading from lighters. For this purpose she anchored about R mHeor a mile and a half south-east of the outer bar buoy,. about four or' four and one-half miles from the nearest shore·. Thiem the place at which vessels habitually anchor when they discharge or take in cargo by aid of lighters near this port. She crossed the bar without clearing at the custom-house with the written permission of the collector, and was not finally cleared until 27th August last, at 11:20 A. M. She neverre-entered the port. The libel was filed on 27th August,the ship being at. her anchor at this place, outside of the bar. Underthe warrant of arrest,the mal'flhal boarded and took possession of her at 11: A.· M. She was released on stipulation on 31st August, 1889. . An exceptiqn has been filed to the libel,that when the warrant of·arrest was issued and served the ship was not within the territorial jurisdiction of this court. The territorial limits of the state of South Oarolina are the territoriallimHs of the judicial districts over which the dis-< tnct court of the United 'States for South Carolina has jurisdiction in civil causes in admiralty·. Rev. St. § 546; In re Manufacturing (b., 108 U. S. 405, 2 Sup. Ct. Rep. 894. Its civil. process runs throughout the to its territory.. Toland v. whole lltate, .and is 300.. The easterIl houqqary of the ot South O/l,rolina, by her act of bly, is the Atlantic .ocean, including all thlilislands. Gen. St. S. C. § 1.