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shipment of goods for third persons who were to pay freight to be credited on the charter hire, which, therefore, did not become applicable to this case. The charterers, as the agreed statement of facts sets forth, thereupon contracted for the purchase and shipment of 14,062 bales of hemp from the firm of Stevenson & Co., and of 3,000 bales from Smith, Bell & Co., both of Manilla, which were to be transported to the port of New York by the Asphodel; the purchase price to be paid by the charterers upon presentation to the charterers' agent in London of the bills of lading for the hemp signed and issued by the master of the steamship. The master had no knowledge of this arrangement. The bills of lading were signed by the master upon the faith of a tally of the number of bales taken by the mate as the bales were delivered to the ship from lighters. The evidence shows not only a liability to honest mistake in such a tally, but clear evidence of attempted fraud upon the ship in this instance. The bills of lading recited the goods as shipped by W. F. Stevenson & Co. and by Smith, Bell & Co., respectively, deliverable to order; and the bills were indorsed in blank by the shippers named. The bills of lading, with drafts attached, were thereupon forwarded by the shippers to the agents of the respondents at London, who thereupon paid the price of the whole number of bales stated in the bills of lading for account of the respondents. The bills of lading refer to the charter party.

From the above it appears that the respondents were the freighters of the ship. They contracted to load her with a "cargo of hemp" through their agent at Manilla. The ship received her cargo there through Stevenson & Co., who appear to have been the only persons there to act as the agent of the charterers in loading her. The hemp which Stevenson & Co. caused to be put on board, was shipped by virtue of their contract with the respondents. They, with Smith, Bell & Co., had agreed to load 17,062 bales; but they actually put on board 48 bales less, either through mistake, or fraud, the evidence leaves uncertain which. The bales shipped were shipped under their contract with the respondents, and on their account. The bills of lading, as between the shippers and the respondents, were not subject to the "order" of the shippers. They had no right or power, after the delivery to the charterers' vessel, which the latter had sent to Manilla to receive this hemp, to divert it from the respondents by any sale or delivery to any other person than the respondents, at least not until after a breach of the contract by the respondents. The bills of lading, though in form made to order, and indorsed in blank by the shippers, were in no wise different, in legal effect, than if they had made the hemp deliverable to the respondents directly. No different use was attempted to be made of the bills of lading; and they were not negotiated, but were delivered to the respondents' agent in London, precisely as they would ve been delivered, had they been made out deliverable to the order of the respondents. If so made out, plainly the facts would not amount to any negotiation.

The true view of the facts, as it seems to me, is simply that the shippers undertook to ship and deliver the above number of bales to the respondents. They did not ship as many by 48 as they agreed to ship; nor as many as by their drafts upon the bills of lading they represented that they had shipped. They obtained from the master, either through mistake or fraud, bills of lading for a greater number than was put on board; and in that way they procured from the respondents payment for 48 bales more than they had shipped, and payment for their full contract without having performed it. If the ship or her owners were held liable in such a case, the effect would be to make them guarantors and insurers of the correctness of a tally as against all possible mistake or fraud; and that too without any negotiation of the bills of lading, but simply as between consignor and consignee, or vendor and vendee, under a secret arrangement for their convenience to enable the vendor to get payment before delivery to the consignee. To hold the ship to such a liability, would be not only in plain contradiction of the authorities above cited, but a plain enlargement and perversion of the ship's business from that of simple transportation, to that of guarantor and insurer against fraud or mistake in the execution of contracts between vendor and vendee for their convenience. That is not the proper business of the ship, or of her officers. The vendor and vendee could not make the ship or her owners responsible for the exact performance of the contract between themselves by means of the ship's tally taken for the purpose merely of giving the receipt in the bills of lading. The shipper plainly could base no conclusive claim upon such a tally; nor can the consignee, because neither the tally nor the bills of lading were given for the purpose

of authorizing payment by the consignee before delivery or without any verification of the ship's count; nor was the consignee authorized to make use of the tally for such a purpose, except at his own risk, as regards fraud or mistake.

There has long been, no doubt, a recognized tendency in favor of commercial dealings in goods in transit, to which dealings the ship is no party, to make the ship responsible, by the application of the principle of equitable estoppel, for the accuracy of the receipt stated in the bill of lading. This has never been by any acquiescence or agreement on the part of the carrier. In self-defense and to protect themselves against liabilities which they never intended to assume and for which they have received no corresponding remuneration, masters and ship owners have long been in the habit of inserting various restrictions and exceptions in order to guard against such responsibility. Under the construction of the bill of lading and of the master's authority in the federal courts, such qualifying words, as regards the amount, weight, etc., of the goods shipped, are less necessary than in tribunals where a more extended responsibility is enforced. In the present case the insertion of the clause "weight, measure, quality, contents, and value unknown," though the word "number" is omitted, probably accidentally, indicates clearly the general purpose to limit the ship's responsibility under the receipt clause of the bill of lading. Even under the most extended liability as enforced in the courts of this state, it is held that “the recital in the bill of lading that the contents of the packages

were unknown would have left the defendant free from responsibility for a variance of the actual contents from those described in the bill of lading." Bank of Batavia v. New York, L. E. & W. R. Co., 106 N. Y. 195, 202, 12 N, E. Rep. 433.

The ship, when a common carrier, is an insurer of the goods taken on board as against all perils not lawfully excepted; but not an insurer as regards goods not shipped. She is bound to care and diligence in keeping tally and in receipting for a specific quantity of goods. The recitals in the bills of lading of the amount of goods shipped are entitled to weight. But none of these constitute, in the federal courts, any estoppel against proof of fraud or mistake. The remedy of the respondents is against the shippers.

Decree for the libelants, with costs.

THE GUY C. GOSS.

E. LOBE CO. v. THE GUY O. GOSS.

(District Court, D. Washington, N. D. December 19, 1892.) 1. CORPORATIONS-ACTIONS-PROOF OF CORPORATE EXISTENCE.

A libel in admiralty by a corporation will be dismissed where the legal existence of libelant is put in issue, and there is no proof of its organiza

tion. 2. SHIPPING CARRIAGE OF GOODS — LIABILITY FOR DAMAGE — PLEADING AND

PROOF.

Where goods were shipped under a bill of lading exempting the ship from liability"for leakage, breakage, or rust, except from improper stowage,” the proof that the goods were delivered damaged by breakage, rust, chafing, sweating, and dampness is insufficient to sustain a libel charging damage to the goods by unseaworthiness of the ship, bad stowage, want of proper dunnage, negligence, and improper conduct of the master and crew.

In Admiralty. Suit in rem by the E. Lobe Company, (a corporation,) for damage to toys arid furniture carried by the bark Guy C. Goss from New York to Seattle. Dismissed.

Thompson, Edsen & Humphries, for libelant.
W. H. Pritchard and John H. Elder, for claimant.

HANFORD, District Judge. The libelant sues as a corporation. Its legal existence and right to sue is put in issue by the answer, and there is no proof of its organization. For this cause, if no other, the libel must be dismissed.

I have, however, read all the evidence, and find that to sustain the allegations in the libel of damage to libelant's goods by the unseaworthiness of the ship, bad stowage, want of proper dunnage, “negligence, carelessness, and improper conduct and want of attention of the master, his mariners, and servants,” there is no proof whatever, except testimony showing that certain goods, when delivered at Seattle, were in a damaged condition, the damage being by breakage, rust, chafing, sweating, and dampness. The bills of lading contain a clause exempting the ship from liability for "leakage, breakage, or rust, except from improper stowage.To warrant a decree awarding damages, the libelant must prove affirmatively one or more of the faults of the ship, her master or crew, which the libel charges. Clark v. Barnwell, 12 How. 282; McKinlay v. Morrish, 21 How. 343; Transportation Co. v. Downer, 11 Wall. 129. The evidence fails to do so. It does not go more than half way towards making a com. plete case. Therefore the court decrees that the suit be dismissed.

BYRNE V. JOHNSON et al.

(Circuit Court of Appeals, Fifth Circuit. January 8, 1893.)

No. 49.

1 BALVAGE SERVICES—WHAT ARE-COMPENSATION-M18CONDUCT.

The steamer E., of 2,500 tons, struck a concealed rock near the Bahama bank, and sprung a leak, which made it necessary to run her agrund about 10 miles from Great Isaac's lighthouse. In order to lighten ship the master sent to Key West, and obtained the schooner Cora, with a crew of 22 men. She worked for five days, but her appliances and the methods of her crew were crude, and her diver failed to discover the largest leak. At the end of that time other salvors arrived, with a competent crew and efficient apparatus, who soon stopped the leak, and got the E. off, and towed her to a sheltered place, where her cargo was transferred to the steamer New York, sent out by her owners for that purpose. In the mean time the Cora, with a portion of the E.'s cargo, which she had on board, returned to Key West, against the protest of E.'s master; her reasons for so doing being fear of a hurricane, and a broken rudder, which the officers of the E. offered to repair. At Key West the cargo was libeled for salvage. Held, that the Cora's services were of doubtful value, and, in view of the fact that she unnecessarily carried part of the cargo to a place where it would not sell to advantage, the service was one for which the compensation should be pro labore et opere, and not for salvage services.

50 Fed. Rep. 951, reversed. 2. SAME-COMPENSATION.

Libelants having been already compensated for their services, as respects the E. herself, through a decree of another district court, their services in respect to the cargo which was carried to Key West by them should be compensated at the rate of $25 for each of the crew, and $550 for the Cora, which was valued at $3,500. 50 Fed. Rep. 951, reversed.

Appeal from the District Court of the United States for the Southern District of Florida.

In Admiralty. Libel by B. W. Johnson and others against a portion of the cargo of the steamer Eldorado (Henry J. Byrne, claimant) to recover for salvage services. The district court held that the service rendered was a salvage service, and awarded 25 per cent. of the value of the cargo saved as compensation. See 50 Fed. Rep. 951. The claimant appealed. Reversed.

J. P. Blair, (G. Bowne Patterson, on the brief,) for appellante
Jefferson B. Browne, for appellees.

Before PARDEE and McCORMICK, Circuit Judges, and BILLINGS, District Judge.

BILLINGS, District Judge. This suit was a suit for salvage brought by the master of the schooner Cora, for himself, the crew and the owners of the schooner, for services rendered in saving a portion of the cargo of the steamship Eldorado. The Eldorado, on August 4, 1891, while proceeding from New York to New Orleans, being a vessel of 2,500 tons, struck a concealed rock near the Bahama bank, which caused her to spring a leak, so that it became necessary to run her aground. She was grounded successfully upon a bank about 10 miles from Great Isaac's lighthouse. The master desired to lighten the ship by taking out the cargo, and, having employed without success several crews from North Bimini, sent to Key West the mate, who obtained the revenue cutter McLean and the schooner Cora. The latter was brought by the former alongside the disabled steamship Eldorado. The Cora, with her pumps, diver, and crew, worked from the 9th to the 14th of August, but did not stop the leaks, nor permanently lower the water in the Eldorado to any great degree.

Meanwhile, on the 14th of August, the Merrit Wrecking Company arrived, and, with their complement of men and apparatus, got her in such a situation that on the 18th she was towed by the steamer New York to a sheltered place, and on the 25th of August proceeded towards Hampton Roads. On the 16th of August the large steamer New York, sent out by the owners of the Eldorado to receive her cargo, arrived and received it. The original object of the master in having the Cora brought out from Key West was to stop the leaks of the Eldorado, and get her off the reef, by lightening her of her cargo, and, after she was sufficiently unladen to enable him to get her off, to replace in her the cargo. Tlris object was changed to the purpose to reload the unladen cargo of the Eldorado on board the New York after the arrival of the latter. On the 16th of August the Cora, against the wishes of the master of the Eldorado, instead of transferring that portion of the Eldorado's cargo which she had on board onto the New York, took it to Key West, where it was libeled. The reason which led the master of the Cora to take the schooner and her cargo back to Key West was fears of hurricanes, and a broken rudder, which the officers of the Eldorado offered to repair.

Two facts are impressed upon our minds by a study of this case:

First. It is doubtful whether the services of the Cora would, in any event, have been of much value to the Eldorado and cargo. The appliances and methods of the improvised crew seem to have been crude. Their diver had failed to discover the large leak which existed, and was discovered when the diver from New York arrived. This failure made their services to stop the leak of little effect. On the whole it is not, from all the testimony, a case of clear, undoubted contribution to the saving of property.

Secondly. The withdrawal of the Cora from the Eldorado, and her taking a portion of the cargo to Key West, against the wishes and to the detriment of the owners of the salved property, is a serious feature of the case. Undoubtedly, salvors, as a general proposition, are entitled to the possession of the property which has been salved.

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