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said drawbridge, as a public highway, is in the care, control, and management of the said town of Westport." The defendant excepts to the libel on the following grounds, namely: "Because there are no allegations in the libel showing an express statutory liability, or any legal liability;" and because the allegations do not bring the case within the jurisdiction of a court of admiralty. In support of these exceptions defendant claims that, in the absence of state legislation, there is no obligation on the part of towns to open and close drawbridges, and that no statutory duty is imposed upon the town of Westport. It is further claimed that this bridge is not necessarily a nuisance, and that the commercial use of said Westport river, at the point where it is crossed by said bridge, is not such that it would justify the expense of the constant attendance of a man at said draw. Finally, it is claimed that a court of admiralty has jurisdiction of such cases only where there has been an actual collision, as in trespass at common law, and not where the damage claimed indirectly results from the injury, as in case.

The first claim under the exception seems to me to overlook the nature of the jurisdiction of a court of admiralty. The libel alleges negligence in the management of a drawbridge over a navigable stream, and damage suffered thereby. This constitutes a maritime tort. "Admiralty has jurisdiction over damage done to a vessel on navigable water by a bridge or permanent structure." City of Boston v. Crowley, 38 Fed. Rep. 204; Assante v. Bridge Co., 40 Fed. Rep. 767. And, if the defendant has undertaken to manage and control this drawbridge, it is liable for misfeasance, although it might not have been originally charged with the duty of opening said draw. The evidence as to whether there was misfeasance in fact, and in regard to the alleged commercial insignificance of the navigable stream, is only admissible by way of defense. As is stated by Judge Brown in Edgerton v. Mayor, etc., 27 Fed. Rep. 233:

"In constructing the bridge with a draw, and in undertaking to open and manage the draw, so as to allow vessels to pass, the state and the city have recognized the right of vessels to pass through without any appeal to the national authority to protect that right. People v. Saratoga, etc., R. Co., 15 Wend. 113, 134, 136; Escanaba & L. M. Transp. Co. v. Chicago, 107 U. S. 678, 683, 2 Sup. Ct. Rep. 185; Miller v. Mayor, etc., 109 U. S. 385, 393, 3 Sup. Ct. Rep. 228. Having thus recognized the rights of commerce, and undertaken to provide accommodations for the passage of vessels, the corporation is bound that the custodians of the bridge shall use ordinary diligence to avoid accidents to vessels going through the draw at customary hours, and in the customary manner, as one of the incidents of the care, management, and control of the bridge itself. It is responsible, therefore, for the want of ordinary care and diligence in its servants, and for the consequent damage."

The claim that only trespasses are included under the term "maritime torts" is not supported by the authorities in the federal courts. Mr. Justice Grier, in Philadelphia, W. & B. R. Co. v. Philadelphia & H. De G. Steam Towboat Co., 23 How. 209, holds that maritime torts have always included wrongs suffered in consequence of the negligence or malfeasance of others, where the remedy at common law is by an action on the case. It seems to me that, if the town was negligent in the discharge of a duty which it had undertaken to discharge, it is immaterial whether the damage resulting therefrom consisted in an

unavoidable collision with the bridge, or with the rocks at the side of the channel. The facts in the case of Hill v. Board, 45 Fed. Rep. 260, were very similar to those alleged in this libel. There, as the steamer approached a drawbridge across a navigable stream, she sounded the usual whistle to notify the bridge attendant to open the draw. The duty was so negligently performed that the propeller, without fault, collided with the bridge. Upon the question of jurisdiction, Judge Green, after reviewing the decisions of the supreme court of the United States, says:

"As locality, then, is the test of admiralty jurisdiction over torts, the critical question is, was the tort complained of committed on land or on navigable waters? The answer, whatever it may be, is decisive and final. Clearly, in this case, it appears that the wrongful act was committed upon navigable waters, and hence within the jurisdiction of this court."

The exceptions to the jurisdiction are overruled.

THE GUY C. GOSS.

PUGET SOUND MACHINERY DEPOT v. THE GUY C. GOSS.
(District Court, D. Washington, N. D. December 19, 1892.)

No. 536.

1. ADMIRALTY-PRACTICE-MOTION TO DISMISS.

On reference of an admiralty cause to a commissioner to take and re port the evidence, the libelant rested after examining three witnesses, and without giving notice of intention to offer further proof at a later stage. The claimant thereupon filed a motion to dismiss for want of evidence sufficient to sustain the libel, but, without waiting to submit the motion to the court, he proceeded before the commissioner to take evidence on his side, after notice that the motion was not waived. Held, that the claimant was entitled to have the case decided on the evidence of the first three witnesses, unaided by evidence adduced by libelant on cross-examination of claimant's witnesses or in rebuttal; no sufficient reason appearing for receiving such evidence out of time.

2. SHIPPING · CARRIAGE OF Goods

PROOF.

- LIABILITY FOR DAMAGE-PLEADING AND

A libel charged that damage to a consignment of iron pipe, shipped under a bill of lading exempting the ship from liability "for leakage, breakage, or rust, except from improper stowage," was caused by bad stowage and negligence of the master and crew. It was proved by libelant that the goods were received in a damaged condition, and by claimant that the vessel was seaworthy at the time of sailing, that she made the passage in the usual time without developing any defect, that her pumps worked properly, and that the cargo was well stowed and properly dunnaged. Testimony that the pipe was rusted by sea water was given for libelant in rebuttal, by experts who knew nothing of the construction of the vessel, how the cargo was stowed, or how or when salt water could have come in contact with the pipe. Held, that the burden of proof rested upon libelant, and that the evidence was insufficient to sustain his libel.

In Admiralty. Suit by the Puget Sound Machinery Depot (a corporation) for damage by rust to a consignment of iron pipe, shipped from New York via Cape Horn to Seattle, on the bark Guy C. Goss. Dismissed.

H

Winsor & Farwell, for libelant.

W. H. Pritchard and John H. Elder, for claimant.

HANFORD, District Judge. The libel in this case charges that the pipe was so damaged when delivered as to be of no value whatever, and that the damage was caused by bad stowage, and neg ligence on the part of the master and crew, but fails to specify in what way the pipe was damaged,-whether by breakage, rust, or otherwise. The answer admits that the pipe was received by the ship in good order, but denies that it was damaged when delivered; denies all the allegations of negligence; and avers that the cargo was properly stowed and dunnaged. The case was, according to the practice in this court, referred to a commissioner to take and report the evidence.

The libelant produced as witnesses its president, secretary, and manager, and upon the testimony of these three rested. Said testimony as a whole is quite as vague and unsatisfactory as the libel. In substance it is that the pipe, when first examined after being discharged from the ship, was in bad condition. Mr. Thomas M. Greene, the secretary, estimates the total damage at $1,000. The others each say (referring to the entire consignment, as I assume) that it was damaged about 33 per cent. There is not a word in the testimony offered in behalf of the libelant in chief as to breakage or rust. No offer was made to give in detail any information as to the number of pieces that were found to be injured, nor as to the manner in which the damage was caused. Only from questions to the respondent's witnesses, and testimony introduced after the evidence for the defense had closed, does it appear that the libelant's grievance is on account of rust. No offer was made of evidence tending to prove that the vessel was unseaworthy, or that the cargo was not well stowed or not properly dunnaged, or that the master, mariners, or stevedores were guilty of any negligence; and the proctor for the libelant rested upon the meager testimony above summarized, without giving notice of an intention to offer further proof at a later stage of the case.

Thereupon the proctor for claimant filed with the commissioner a motion to dismiss for want of sufficient evidence to sustain the material allegations of the libel; but, without waiting to submit the motion to the court, the respondent proceeded before the commissioner with the taking of evidence on his side, after giving notice that the motion was not waived. The pipe was shipped under a contract containing a clause exempting the ship from liability for "leakage, breakage, or rust, except from improper stowage;" which contract is set forth in an exhibit attached to the libel. The voyage was not protracted beyond the time ordinarily required for sailing from New York to Puget sound. The vessel at the time of sailing was staunch and seaworthy, and made the passage without developing any defect or incapacity for transporting in safety the cargo which she carried. All necessary repairs occasioned by events of the voyage were promptly made. The pumps were worked regularly, and kept the water from accumulating in the ship. The evi

dence on the part of the respondent is positive to the effect that the cargo was well stowed and properly dunnaged, and that in every way known to ship masters and stevedores the cargo was protected and nade secure for the voyage.

In rebuttal the libelant introduced some expert evidence to the effect that, in the opinion of the witnesses, the character of the rust on the pipe indicated that it was caused by salt water. The proctors for the libelant appear to have a theory that the damage was caused by the blowing of bilge water through the air strip, but there is no evidence to support it; and there is in the case no testimony as to the cause of the rust, except mere conjectures of the witnesses. These who give opinions that salt water caused it know nothing about the construction of the ship, or the manner in which the cargo was stowed, or the occurrences of the voyage, and of course have no basis for an opinion as to how or when salt water could have come in contact with the pipe. Without better evidence than this, I cannot find that the rust was caused by "improper stowage," unseaworthiness of the ship, or negligence or unfaithfulness on the part of the master or any person in the service of the ship; and without evidence to support such findings the libelant cannot recover. Rust is a cause of deterioration inherent in the goods. In issuing the bills of lading care was taken to protect the ship from liability for damage from this cause not due to some act or omission or defect for which the owner, master, agent, or some person in the service of the ship might be held to be blameworthy. Therefore the burden of proof rests upon the libelant to show such blameworthy act, omission, or defect. Clark v. Barnwell, 12 How. 272; McKinlay v. Morrish, 21 How. 343; Transportation Co. v. Downer, 11 Wall. 129.

The rules of practice in admiralty, while flexible and liberal, require orderly procedure and fairness in the conduct of a cause. Additional evidence may be introduced at any stage of the case before a final decree is signed in the court of original jurisdiction, and even after an appeal, when a trial de novo is allowed in the appellate court, provided good cause be shown for not producing it at the proper time; but it cannot be received out of time, without a sufficient reason therefor appearing. Under this rule the claimant is entitled to have the case decided upon the evidence of the first three witnesses examined, unaided by the other evidence taken. It is my opinion, however, that the result must be the same whether all the evidence offered on both sides, or only that offered by the libelant in chief, be considered. Decree of dismissal.

ONE THOUSAND BAGS OF SUGAR v. HARRISON.

(Circuit Court of Appeals, Third Circuit. January 10, 1893.)

No. 12.

1. CHARTER PARTY-CONSTRUCTION-PRINTED FORMS.

Matter expunged from a printed form used in drawing up a charter party may be considered in determining the intention of the parties. 50 Fed. Rep. 116, affirmed.

2. SAME-FREIGHT.

In making a contract for the transportation of a full cargo of sugar, the parties used a printed form containing this provision: "The freight to be paid on the unloading and right delivery of a cargo of sugar at and after the rate of nine shillings sterling per ton of twenty hundredweight delivered." The printed word "delivered" was struck out, and the words "on intake weight" were interlined in writing. Held, that the charterer was bound to pay freight on the whole cargo taken aboard, although part of it was damaged without the ship's fault by an excepted peril, and sold on the voyage. Dallas, J., dissenting. 50 Fed. Rep. 116, affirmed.

Appeal from the United States Circuit Court for the Eastern District of Pennsylvania.

Libel in rem by James W. Harrison, master of the steamship Wetherby, against 1,000 bags of sugar, (Claus Spreckels, claimant,) to recover freight. In the district court a decree was rendered for libelant. 44 Fed. Rep. 686. On appeal by the claimant this decree was affirmed in the circuit court. 50 Fed. Rep. 116. From the latter decree, claimant appeals. Affirmed.

Morton P. Henry, for appellant.

Curtis Tilton, for appellee.

Before DALLAS, Circuit Judge, and WALES and GREEN, District Judges

WALES, District Judge. This is an appeal from the United States circuit court for the eastern district of Pennsylvania, affirming the decree of the United States district court for the same district, for the full amount of the libelant's claim, which was for freight on a cargo of sugar shipped at Hamburg, and to be discharged at the port of Philadelphia, to the order of Claus Spreckels, the appellant. The case was heard in each court on libel and answer. The finding of facts by the circuit court is as follows:

"(1) This action was brought to recover the freight on 14,515 bags of sugar, part of the cargo of the steamship Wetherby, shipped at Hamburg for Philadelphia, which was sold by the master at Hamburg.

(2) The whole cargo, consisting of approximately 25,000 bags, belonged to Mr. Claus Spreckels, the claimant, and was shipped under a charter party, executed on his behalf, for a full cargo from Hamburg to Philadelphia, of which only 10,489 bags were landed and delivered at Philadelphia.

"(3) In making the contract the parties used the ordinary form of a freighting charter party for the full capacity of the vessel, the printed clause for the payment of freight reading thus: The freight to be paid on the unloading and right delivery of the cargo at and after the rate of nine shillings sterling per ton of twenty hundredweight delivered.' The printed word 'delivered' was struck out by running the pen through it, and the words 'on intake weight' were interlined in writing so that the completed clause reads: "The freight to be paid on unloading and right delivery of the cargo, at and after the rate of nine shillings per ton of twenty hundredweight on intake weight.'

"(4) The Wetherby returned to Hamburg in consequence of damage sustained by a collision with the steamer Sultan in the river Elbe, without fault on the part of the Wetherby. The Sultan admitted full liability in proceedings taken in England to limit the liability of the owners of that vessel.

"In consequence of injury to the cargo, caused by the collision, the master sold 14,515 bags of sugar at Hamburg, under the recommendation of a survey, regularly made, as unfit for transportation, to protect the interest of the cargo owner. On arrival at Philadelphia the vessel delivered to Mr. Spreckels 10,849 bags of sugar, the remaining part of the cargo unsold, who paid

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