A c: ! A ^^^^^= o ■ CO o d ' X ' ID ' o ro 7 — = en 7 ^ M "^^ = ^ , — ro - - > 7 ID 9 ^^— ~ < ^^^^_ 2> O 4 - 1 6 THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW £0e 1E) orn 6oofi ^ertee of Elementary Treatises on all the Principal Subjects of the Law The special features of these books are as follows: 1. A su«cinct statement of leading principles In black-letter type. 2. A more extended commentary, elucidating the principles. 3. Notes and authorities. Published in regular octavo form, and bound in buckram. Barrows on Negligence. Black on Construction and Interpretation of Laws (2d Ed.). Black on Constitutional Law (3d Ed.). Black on Judicial Precedents. Burdick on Real Property. Chapin on Torts. Childs on Suretyship and Guaranty. Clark on Contracts (3d Ed.). Clark on Corporations (3d Ed.). Clark on Criminal Law (3d Ed.). Clark on Criminal Procedure (2d Ed.). Cooley on Municipal Corporations. Costigan on American Mining Law. Croswell on Executors and Administrators. Dobie on Bailments and Carriers. Eaton on Equity. Gardner on Wills (2d Ed.). Gilmore on Partnership. Hale on Damages (2d Ed.). Hughes on Admiralty (2d Ed.). Hughes on Federal Jurisdiction and Procedure (2d Ed.). McKelvey on Evidence (2d Ed.). Norton on Bills and Notes (4th Ed.). Shipman on Common-Law Pleading (2d Ed.). Shipman on Equity Pleading. Smith's Elementary Law. Tiffany on Agency. Tiffany on Banks and Banking. Tiffany on Persons and Domestic Relations (2d Ed.). Tiffany on Sales (2d Ed.). Vance on Insurance. Wilson on International Law. In preparation: Handbooks of the law on other subjects to be an- nounced later. Published and for sale by WEST PUBLISHING CO., ST. PAUL, MINN. C11517 t HANDBOOK OF ADMIRALTY LAW BY ROBERT M. HUGHES, M.A., LL.D. OF THE NORFOLK V.O BAR SECOND EDITION ST. PAUL, MINN. WEST PUBLISHING CO. 1920 >4t ^ \110 Copyright, 1901 BT WEST PUBLISHING CO. Copyright, 1920 BY WEST PUBLISHING CO. (Hughes Adm.2d Ed.) This volume is respectfully dedicated to HON. NATHAN GOFF A genial and noble man An urbane, upright, and able judge 58 PREFACE TO THE SECOND EDITION The main object had in mind in this edition has been to modernize thoroughly both the text and references, in or- der to bring the treatise up to date and to show the great changes in admiralty law which have taken place, both by statute and by judicial decision, since the publication of the first edition. On account of these changes, much of the first edition has become obsolete, and discussion of questions then un- settled has been obviated by their subsequent settlement. It is not claimed as a feature of this book that it cites all or any large proportion of cases on a given subject. Nothing is more laborious or difficult than the selection of the references. Frequently the two or three cases cited in a footnote are the survivors of a dozen or more that had to be examined or weighed. The rank of the court, the reputation of the judge, the reasoning and style, all must be considered and balanced. Printing an opinion may ren- der it more accessible, but does not add to its value. There is no alchemv in print to transform a baser metal into gold. This edition has had the general practitioner in view rather more than the first edition, which was largely in- tended as a text-book for law schools. The Table of Illustrative Cases contained in the first edi- tion has been omitted, but many leading cases are printed in capitals throughout the text as a means of directing special attention to them. Though it is impossible to make the paging of the new edition conform to the old, it has been found feasible to preserve the original numbering of the black-letter sections. (vii) VU1 PREFACE This will facilitate referring from one edition to the other — a matter of some importance, as the courts have frequently done the author the honor of citing the work. The author desires to make special acknowledgment to Professor George B. Eager, Jr., of the University of Vir- ginia, for valuable suggestions, and to the publishers for their readiness at all times to aid with all descriptions of labor-saving devices. Norfolk, Virginia, January 12, 1020. PREFACE TO THE FIRST EDITION The germ of this treatise is a series of lectures on admiral- ty law, which the author has been giving to the senior law class at Washington and Lee University for the past few years. His experience there has emphasized the need of a text-book on marine law. Probably the lack of such a text-book is the explanation of the scant attention given to the subject in the law schools; but its constantly increasing importance seems now to demand more elaborate treat- ment than it has heretofore received. This is especially true in view of the recent important legislation bearing up- on the subject, and its intimate connection with many oth- er topics which are usually treated more fully, such as the law of carriers and the general substantive law in relation both to contracts and to torts. To meet the need of such a text-book, this treatise has been prepared. It is intended to be elementary, and is so arranged that those schools which give but slight attention to the subject of admiral- ty can use it by omitting certain chapters, and those which desire to give it more emphasis can supplement the text by the use of the table of leading cases, which are printed in large capitals throughout the book, and for which a spe- cial index has been prepared, giving an outline of the points passed upon by them. The author hopes, also, that the book will be found use- ful to the very large class of general practitioners who wish to be in position to answer ordinary routine questions of admiralty law arising in practice. The failure of the law schools to treat this subject at any length results in the failure of the young bar generally to know anything about (ix) X PREFACE it when they first commence to practice. It is hoped that this book will enable them to acquire a bird's-eye view of the -abject during those leisure hours which usually fall heavily upon the younger practitioner, and that it will also enable the more experienced general practitioners who do not make a specialty of admiralty to advise, at least on cur- rent questions, without the necessity of consulting a spe- cialist. In view of the elementary character of the work, the au- thor cannot hope that the specialist in admiralty will find anything novel in his treatment of the subject, unless, per- haps, in one or two chapters where the law is not yet crys- tallized into very definite shape, — such as the chapter on death injuries and the chapter on the subject of damages, — and where the author's views may be of interest. At the same time, it is believed that the insertion in the appendix or in the main text of practically all the statutes which the admiralty practitioner usually needs will make it a useful vade mecum, obviating the necessity of handling, either in the office or at court, the cumbrous volumes in which these statutes are found. A list of the acts printed in full will be found in the index under the title "Statutes." The author begs leave to express his acknowledgments to man}' friends for suggestions and aid. He also wishes to acknowledge publicly the numerous courtesies received at the hand of the publishers. TABLE OF CONTENTS CHAPTER I OF THE ORIGIN AND HISTORY OF THE ADMIRALTY AND ITS EXTENT IN THE UNITED STATES Section Page 1. Origin and History 1-4 2. The Admiralty Classics 4-8 3. The Colonial Admiralty Jurisdiction, and Constitu- tional grant ot "Admiralty and Maritime Ju- risdiction" 9-10 4. The Waters Included 10-13 5. The Craft Included 14-17 CHAPTER II OF THE ADMIRALTY JURISDICTION AS GOVERNED BY THE SUBJECT-MATTER 6. Cases in Contract and Cases in Tort 18-22 7. Tests of Jurisdiction 18-22 8-10. Contracts of Seamen 23-28 11. Master's Right to Proceed in Rem for his Wages. . 2.8-31 12-19. Pilotage ^1-10 CHAPTER III OF GENERAL AVERAGE AND MARINE INSURANCE 20. "General Average" Defined 41-44 21. Requisites of General Average 44-50 22. "Marine Insurance" Defined 51-52 23. Maritime Character of Contracts 51-52 24. Insurable Interest 52-54 25. Conditions in Contracts of Insurance 55-59 26. Misrepresentation and Concealment 55-59 Hughes. Adm. (2o Ed.) (xi) Xll TABLE OF CONTENTS Section Page 27. Seaworthiness 59-64 28. Deviation 64-67 29. Illegal Traffic 67-71 30. The Policy and Its Provisions as to Risk and Perils Insured Against 71-75 31. Perils of the Seas 75-77 32. Barratry 77-78 33. Thefts 78 34. All Other Teiils 79-80 35. Proximate Cause of Loss 80-83 36. The Loss— Total or Partial 83-87 37. Actual or Constructive 83-87 38. Abandonment 87-88 39. Agreed Valuation 88-91 40. Subrogation of Insurer 91-92 41. Suing and Laboring Clause 92-93 CHAPTER IV OF BOTTOMRY AND RESPONDENTIA; AND LIENS FOR SUP- PLIES, REPAIRS, AND OTHER NECESSARIES 42. "Bottomry" Defined 94-96 43. Requisites of Bottomry Bond 96-97 44. Respondentia 97-98 45. Supplies, Repairs, and Other Necessaries 98-101 46. "Materialman"' Defined 98-101 47. Necessaries Furnished in Foreign Ports 101-107 48. "Necessaries" Defined 107-110 49. Necessaries Furnished Domestic Vessels 110-115 50. Domestic Liens as Atfected by Owner's Pres- ence 115-116 51. Shipbuilding Contracts 116-117 52. Vessels Affected by State Statutes 118 CHAPTER V OF STEVEDORES' CONTRACTS, CANAL TOLLS, AND TOWAGE CONTRACTS 53. Stevedores' Contracts — "Stevedore" Defined 119-121 54. Maritime < Jharacter of Contracts, and Liens on Foreign and I >omestic Vessels 119-121 ",. Privity of Contract Necessary to Lien 122-123 56. Canal Tolls 123 TABLE OF CONTENTS Xlll Section Pa f e 57. Towage — "Service" Defined 124-125 58-59. Responsibility as Between Tug and Tow 125-129 60. Degree of Care Required of Tug 129-130 61. For Whose Acts Tug or Tow Liable 131 CHAPTER VI OF SALVAGE 62. Nature and Grounds 132-134 63. "Salvage" Defined— Elements of Service 134-141 64. The Award — Amount in General 142 65. Elements of Compensation and Bounty 142-145 66. Incidents of the Service 146-149 67. Salvage Contracts 149-150 68. Salvage Apportionment 150-151 69. Salvage Chargeable as between Ship and Cargo... 152-153 CHAPTER VII OF CONTRACTS OF AFFREIGHTMENT AND CHARTER PARTIES 70-72. "Contracts of Affreightment" Defined, and Distin- guished from Charter Parties 154-155 73. Warranties Implied in Contracts of Affreightment against Unseaworthiness and Deviation 155-156 74. Mutual Remedies of Ship and Cargo on Contracts of Affreightment 156-157 75. Entirety of Affreightment Contract 158 76. Apportionment of Freight 159-160 77-78. Ship as Common Carrier 160-161 79. Bill of Lading — Making and Form in General 161-162 80. Negotiability 162-163 81. Exceptions in General 163-164 82. Exception of Perils of the Sea 165-166 83. "Charter Parties" Defined 166-16S S4. Construction of Charter Parties 168-171 85. Conditions Implied in Charter Parties of Sea- worthiness and against Deviation 171-173 86. Cancellation Clause in Charter Parties 174-175 87. Loading Under Charter Parties 175-176 88. Execution of Necessary Documents under Charter Parties 177-178 89. Cesser Clause in Charter Parties 178-179 XiV TABLE OF CONTENTS CHAPTER VIII OF WATER CARRIAGE AS AFFECTED BY THE HARTER ACT OF FEBRUARY 13, 1893 (27 Stat. 445 [U. S. Comp. St. §§ 8029-8035]) Paee Section ^ a S e 90-91. Policy of Act 180-183 92. Act Applicable Only between Vessel Owner and Shipper 183-187 93. Vessels and Voyages to which Act is Applicable.. 187-188 94. Relative Measure of Obligation as to Handling the Cargo and Handling the Ship 188-19:5 95. Necessity of Stipulation to Reduce Liability for Unseaworthiness 193-194 CHAPTER IX OF ADMIRALTY JURISDICTION IN MATTERS OF TORT 96-97. The Waters Included, and Wharves, Piers, and Bridges 195-199 98. Torts, to be Marine, must be Consummate on Water 199-201 99. Torts may he .Marine though Primal Cause on Land 201-202 100. Detached St ructures in Navigable Waters 202-20:: 101. Torts Arising from Relation of Crew to Vessel or ( )wner 204-20!t 102. Personal Torts Arising from Relation of Passen- gers to Vessel 209-210 103. Obligations to Persons Rightfully on Vessel, but Bearing no Relation to It 210-212 104. Liability as between Vessel and Independent Con- tractor 213-214 105. Doctrine of Imputed Negligence 214-215 Km;. Miscellaneous Marine Torts 215-220 107. Doctrine of Contributory Negligence 221 CHAPTER X OF Till: RIGHT OF ACTION IN ADMIRALTY FOR INJURIES RESULTING FATALLY LOS. Survival of Action for injuries Resulting in Death — The Genera] Common-Law Doctrine 222-2i'7 LOG. The Civil-Law Doctrine 2^2-227 110. The Continental Doctrine 222-227 Section TABLE OF CONTENTS XV Page 227 111. The English Doctrine as to Survival in Admiralty 112. The American Doctrine as to Survival in Admir- alty—Independent of Statute 228-230 113. Under State Statutes 230-236 114. Under Congressional Statutes 236-241 115. The Law Governing 242-243 116. Effect of Contributory Negligence 243-244 117. Construction of Particular Statutes 244 CHAPTER XI OF TORTS TO THE PROPERTY, AND HEREIN' OF COLLISION 118. Rules for Preventing Collisions, the Different Sys- tems, and the Localities where They Apply- • ■ • 245-250 119. Preliminary Definitions 250-251 120. Distinctive Eights Prescribed for Different Vessels 251-258 121. Sound Signals in Obscured Weather 25S-261 122. Speed in Obscured Weather 262-264 123. Precautions when Approaching Fog Bank 265 124. Steering and Sailing Rules in Obscured Weather.. 265-267 CHAPTER XII THE STEERING AND SAILING RULES 125-127. Origin, Reasons on Which Based, and General Ap- plication 26S-270 128. Sail Vessels 270-273 129. Steamers— The Port-Helm Rule 273-277 130. The Crossing Rule 277-278 131. Steam and Sail 278-281 132. Privileged Vessels 281-283 133. Crossing Ahead 283 134. The Stop and Back Rule 284-286 135. Overtaking Vessels 286-287 CHAPTER XIII RULES AS TO NARROW CHANNELS, SPECIAL CIRCUMSTANC- ES, AND GENERAL PRECAUTIONS 136. The Narrow Channel Rule 288-291 137. The General Prudential Rule, or Special Circum- stance Rule 291-295 138. Sound Signals 296 XVI TABLE OF CONTENTS Section Pa8* 139. The General Precaution Rule 296 140. Lookouts ♦ 296-299 141. Anchored Vessels 299-303 142. Wrecks 303-304 143. The Stand-by Act 305-307 CHAPTER XIV OF DAMAGES IN COLLISION CASES 144. Recovery Based on Negligence 30S-309 145. Inevitable Accident or Inscrutable Fault 309-312 146. One Solely in Fault 312 147. Both in Fault 312-318 148. Rights of Third Party where Both in Fault 318-319 149. Contribution between Colliding Vessels — Enforce- ment in Suit against Both 320 150. Enforcement by Bringing in Vessel not Party to Suit 320-321 151. Enforcement by Independent Suit 321-326 152. Measure of Damages 326 153. When Loss Total 326-327 154. When Loss Partial 328-330 155. Remoteness of Damages — Subsequent Storm 330-331 156. Doctrine of Error in Extremis 331-332 CHAPTER XV OF VESSEL OWNERSHIP INDEPENDENT OF THE LIMITED LIABILITY ACT 157. Method by Which Title t j Vessels may be Acquir- ed or Transferred 333-336 158. Relation of Vessel < hvners Inter Sese 336-340 159. Relation of Vessel Owners as Respects Third Par- ties 341-344 CHAPTER XVI OF THE RIGHTS AND LIABILITIES OF OWNERS AS AF- FECTED BY THE LIMITED LIABILITY ACT 160. History of Limitation of Liability in General 345-346 161. History and Policy of Federal Legislation 346-354 162. By Whom Limitation of Liability may be Claimed 354 TABLE OF CONTENTS XV11 Section Page 1G3. Against what Liabilities Limitation may be Claimed 355-357 164. Privity or Knowledge of Owner 357-364 165. The Voyage as the Unit 364-365 166. Extent of Liability of Part Owners 365 167. Measure of Liability — Time of Estimating Values 365-366 168. Prior Liens 366-368 169. Damages Recovered from Other Vessel 369-371 170. Freight 371 171. Salvage and Insurance 372-373 172. Procedure — Time for Taking Advantage of Statute 373-374 173. Defense to Suit against Owner, or Independent Proceeding 374-375 174. Method of Distribution 375 CHAPTER XVII OF THE RELATIVE PRIORITIES OF MARITIME LIENS AS AMONG EACH OTHER AND ALSO AS BETWEEN THEM AND NONMARITIME LIENS OR TITLES 175. Relative Rank as Affected by Nature of Claims. . 376-377 176-177. Contract Liens in General ^ 377 178. Seamen's Wages 378-380 179. Salvage 380-382 180. Materials, Supplies, Advances, Towage, Pilot- age, and General Average 382-384 181. Bottomry 384 386 182. Nonmaritime Liens and Titles 3S6 153. Tort Liens 387-391 154. Relative Rank as Affected by Date of Vesting — Among Liens of Same Character .".91-393 155. Among Liens of Different Character 393-394 186. Between Contract and Tort Liens 394 1S7. As between Tort Liens 394-397 1SS. Relative Rank as Affected by Suit or Decree 397-398 CHAPTER XVIII A SUMMARY OF PLEADING AND PRACTICE 189. Simplicity of Admiralty Procedure 399-400 190. Proceedings in Rem and in Personam 400-403 191. The Admiralty Rules of Practice 403 192. The Libel 403-405 Hughes, Adm. (2d Ed.)— b XV111 TABLE OF CONTENTS Section Page 1 93. Amendments 405 194. The Process 406-408 195. Decrees by Default 408 409 L96. The Defense 409-410 197. The Trial 410-411 198. Evidence 411 199. Attachments in Admiralty 412 200. Set-Off 412 201. Limitations 413 202. Tender 413 20:;. Costs 414 2(»4. Enforcing Decrees 414-415 205. The Fifty-Ninth Rule 415 206. The Courts having Admiralty Jurisdiction 415-41S 207. The Process of Appeal 418 208. Questions of Fact on Appeal 419-420 209. New Evidence 420-422 APPENDIX 1. The Mariner's Compass 424 2. The Salvage Act of August 1, 1912 425-426 3. Statutes Regulating Navigation, Including: (1) The International Rules 426-445 (2) The Rules for Coast and Connecting Inland Waters 445-461 (3) Lines between International and Inland Rules... 462-468 (4) The Lake Rules 468-479 (5) The Mississippi Valley Rules 479-4S8 (6) The Act of March 3, 1899, as to Obstructing Chan- nels 4S9-493 (7) The Stand-By Act of September 4, 1890 493-494 4. The Limited Liability Acts Including: (1) The Act of Mar.h 3, 1851, as Amended 494-496 (2) The Act of June 26, 1884 497 5. Section 941, Rev. St., as Amended, Regulating Release of Vessels from Arrest, on Bond or Stipulation 497-49S 6. Statutes Regulating Evidence in the Federal Courts 498-504 7. The Bandwriting Act of February 20, 1913 504 8. Suits in Forma Pauperis 505 0. Certain Admiralty Suits against the United States.. 50&-51J 10. The Admiralty Rules of Practice 511-J31 t HANDBOOK OF ADMIRALTY LAW SECOND EDITION CHAPTER I OF THE ORIGIN AND HISTORY OF THE ADMIRALTY AND ITS EXTENT IN THE UNITED STATES 1. Origin and History. 2. The Admiralty Classics. 3. The Colonial Admiralty Jurisdiction, and Constitutional Grant of "Admiralty and Maritime Jurisdiction." 4. The Waters Included. 5. The Craft Included. ORIGIN AND HISTORY 1. The admiralty law originated in the needs of commerce and the custom and usage of merchants. In the dawn of recorded story, when mythology and his- tory were too intermingled to separate the legendary from the authentic, commerce by means of ships was drawing the nations together, and beginning to break down the bar- riers of prejudice and hostility due to the difficulty and dan- ger of land communication. The voyage of the Argonauts. the Trojan Expedition, the wanderings of Odysseus, though military in the songs of Homer, were probably as Hughes, Adm. (2d Ed.) — 1 2 ORIGIN AND HISTORY OF THE ADMIRALTY (Ch. 1 much for exploration as for conquest ; merchants and warriors were combined in one person of necessity. The enterprising Rhodians had not only a commerce, but a Code, in which is found the germ of the law of general average. The Phoenician traders were carriers for the wise Solomon, and planted trading colonies throughout the Mediterranean. Their Carthagenian descendants were worthy successors. Until Rome copied their trireme, her domain was limited to Italy. When maritime skill supple- mented military prowess, and placed at her command new and easier lines of advance, she overran the world. The mart followed the camp ; for it is a teaching of history that in the providence of God the havoc of war opens new ave- nues for the arts of peace. In the Middle Ages the Italian republics became, the car- riers of the world, and reached a high plane of enlighten- ment. The Saracen civilization could compare favorably with that of the West; and the Italians, in their constant warfare against Mohammedanism, acquired and assimilat- ed this civilization, and spread it over Europe. Venice, Florence, Pisa, and Genoa furnished the mariners who scat- tered the gloom of the Dark Ages; who civilized the old world, and discovered the new. The Conflict between the English Common Lazv and Ad- miralty Courts The student who observes the present commerce and maritime power of England finds it hard to realize how re- cent is its development. Yet our English ancestors were not by nature addicted to maritime enterprise. The Anglo- Saxon loved the quiet recesses of the forest, and was re- luctant to venture on the water. He could not be made to understand that his only security against the Danes, who harried the British coast, was to meet them at sea. The naval victory of Alfred was sporadic, and the sea power of the Danes enabled them to overrun and conquer England. Even the Danish conquest did not infuse sufficient mari- § 1) ORIGIN AND HISTORY 3 time blood to overcome the Saxon propensity to remain on terra firma. During- many months William the Conquer- or was engaged in fitting out his fleet and army in sight of their coast, yet no effort was made to harass him on the voyage, or resist his landing. It is difficult to understand that the vanquished of Hastings and the victors of the Hogue were of the same nation. The Norman conquerors added a sea-faring strain to Anglo-Saxon blood, and the subsequent wars with France developed to some extent a taste for the sea ; but, despite the trade with the Baltic nations, the Mediterranean re- mained the great center of world commerce. The discov- ery of America directed the gaze of navigators beyond the Pillars of Hercules and made their aspirations worldwide. Prior to the reign of Elizabeth, many continental nations surpassed England in maritime enterprise. Such were the Spaniards, Portuguese, Dutch, and even the French. She it was who first grasped England's true policy, and the age of Bacon and Shakespeare in letters was the age of Drake and Frobisher and Raleigh in navigation. The dis- graceful reign of her successor, James I., brought about a partial reaction. Lord Coke, the apostle of the common law, was the leader in the attack on the admiralty, is- suing prohibitions to its courts, and in every way curtailing its jurisdiction. His persecution of Raleigh, the great nav- igator, was the personification of his hatred for the new order of things. In consequence of this common-law hostility, English commerce was long retarded, just as was the jurisdiction of the English admiralty. The reigns of the Stuarts up to the English commonwealth were noteworthy for a tenden- cy to cultivate friendly relations with Spain, thus checking the enterprise of the great sea captains who had long made relentless war against her. Charles II. and James II. were more subservient to France than their ancestors had been to Spain, so that the steady growth of English commerce hardly antedates the eighteenth century. 4 ORIGIN AND HISTORY OF THE ADMIRALTY (Ch. 1 Meanwhile the common-law judges had put fetters upon the marine law of England which could not be so easily cast off. Anything continental or international in origin met their determined resistance. It was long before the English courts were willing even to admit that the law and custom of merchants, to which England owes its greatness of to-day, was a part of English law ; or that it was more than a special custom, necessary to be proved in each case. In consequence of this sentiment, the English admiralty jurisdiction at the time of the American Revolution was much restricted, being narrower than the continental ad- miralty, and far narrower than the present jurisdiction of the American and English admiralty courts. In England an act of parliament was necessary to enlarge their re- stricted jurisdiction to its ancient extent. 1 In the United States the same result has been achieved, so far as neces- sary, by much judicial, and some congressional, legislation. THE ADMIRALTY CLASSICS 2. The sources of the admiralty law lie in the reason of man as educated by international trade relations, and are evidenced by the great admiralty classics. The law of the sea is not the product of any one brain, or any one age. It is the gradual outgrowth of experience, expanding with the expansion of commerce, and fitting it- self to commercial necessities. It is practically a branch of the law merchant, cm account of their intimate connection ; § 1. i The modern English admiralty jurisdiction is regulated by statute. The principal are: 3 & 4 Vict. c. G5 ; 17 & IS Vict. c. 104, § 476 ; 24 & 25 Vict. c. 10 ; 31 & 32 Vict. c. 71 ; and 32 & 33 Vict. c. 51. They will be found in the Appendix to Abbott's Law of Mer- chant Ships and Seamen. The admiralty jurisdiction, while much extended by these enactments, still differs sharply from the Amer- ican admiralty jurisdiction. Some of these differences will be point- ed out iu other connections. § 2) THE ADMIRALTY CLASSICS » and grew, not from enactment, but from custom ; not from the edicts of kings, but from the progressive needs of so- ciety. The Ancient Codes and Commentators Yet there are various compilations and treatises which evidence the maritime law of their respective dates, and are valuable for reference, because they did not originate the provisions on the subject, but reduced to concrete form the customs and practices which had grown up independ- ent of codes and commentators. These are the great class- ics of marine law, which occupy to it the relation that Ba- con's Abridgment or Coke's and Blackstone's writings bear to the common law of England. The Roman Civil Law contains many provisions regu- lating the rights and responsibilities of ships. The Digest quotes from the ancient Rhodian Code its provision as to contribution of interests in general average. It contains provisions also in relation to the liability of vessels for injury to cargo, for punishment of thieves and plunderers, and for borrowing on bottomry or responden- tia. 2 The Consolato del Mare is a collection of marine laws antedating the fifteenth century, though neither its author nor its date is known. It is probably a compilation of the marine customs then in vogue among the trading nations of Europe, and may be found in the collection of maritime laws made by Pardessus. The Laws of Oleron take their name from the island of Oleron off the French coast, and show the customs then prevailing in respect to many of the most important sub- jects relating to shipping. They are supposed to have been compiled under the direction of Eleanor of Aquitaine, who, as queen, first of France and then of England, and as re- gent of the latter during the absence of her son Richard § 2. 2 Dig. 14, 2 ; 4, 9 ; 22, 2 ; 47, 5 ; 47, 9. 6 ORIGIN AND HISTORY OF THE ADMIRALTY (Ch. 1 Coeur de Lion on the Crusades, was impressed with the importance of such a work. The Laws of Wisbuy, a city of the island of Gothland, in the Baltic, are similar to the Laws of Oleron, and were probably based upon them. The Ordonnance de la Marine of Louis XIV vindicates France from the charge that her people are not fitted for maritime enterprise. It was published in 1681, and is a learned and accurate digest of marine law and usages, and the best evidence to this day of the extent and nature of the admiralty jurisdiction. The Laws of Oleron, the Laws of Wisbuy, and the Or- donnance were printed as an appendix to Peters' Admiral- ty Decisions. They have been 'reprinted, along with the Laws of the Hanse Towns and other interesting matter of the same sort, as an appendix to volume 30 of the Federal Cases, thus rendering them easily accessible. In 1760, Valin, a distinguished advocate of Rochelle, pub- lished a commentary on the Ordonnance, in two quarto volumes, which ranks in authority as high as the Ordon- nance itself. Cleirac, another French writer, published at Bordeaux, about the middle of the seventeenth century, his work "Us et Coustumes de la Mer," which contains the Laws of Oleron, of Wisbuy, of the Hanse Towns, and many other continental provisions, with valuable annotations of his own. The treatise of Roccus "De Navibus et Naulo," the writ- ings of Casaregis on mercantile subjects, and those of Po- thier in the same field, especially that on maritime hiring, are equal in authority to any of those previously named. 3 3 An instructive account of the ancient admiralty classics and of their relative value will ho found in Mr. Justice Story's Review of Jacobsen's Laws of the Sea, first published in the North American Review in 1818, and his Review "f Phillips on Insurance, first pub- lished in the North American Review, 1825. These were reprinted § 2) THE ADMIRALTY CLASSICS 7 The English Authorities Selden's Mare Clausum (1635), Godolphin's View of the Admiral Jurisdiction (2d Ed. 1685), the productions of Sir Leoline Jenkins (partly found in Wynne's Biography of him published in 1724), and the second volume of Browne's lectures on the Civil and Admiralty Law give a view of the development of the admiralty law in England and its subsequent restriction by the warfare of the com- mon-law judges. More recently the publication by the Selden Society of the two volumes of Select Pleas in Admiralty has thrown a flood of light on the early history of the English admiral- ty system. These two volumes came out in 1894 and 1897 and constitute volumes 6 and 11 of the publications of the Society, but are numbered independently. The introduc- tions to the two volumes by Mr. R. G. Marsden are a price- less contribution to the literature on the subject. The in- troduction to the third edition of Roscoe's Admiralty by Mr. T. L. Mears (reprinted in volume 2, p. 312, of Select Essays in Anglo-American Legal History) will well re- pay careful perusal ; and the first chapter of the recent work of Mr. E. C. Mayers on Admiralty Law and Practice in Canada (Carswell Co., Ltd., Toronto, 1916) is a useful discussion of the later English admiralty jurisdiction in the light of the more recent publications. The value of many recent English treatises to the stu- dent or practitioner is diminished by the space given to the discussion of statutes. But the later editions of Abbott on Shipping, Arnould on Marine Insurance, Carver on Car- riage by Sea, Kennedy on Merchant Salvage, Marsden on Collisions, and Scrutton on Charter Parties are of great assistance. in the collection of his Miscellaneous Writings published by Mun- roe, Boston, 1835, at pages 245 and 294, respectively. See, also, his; Inaugural Address as Dane Professor of Law at Harvard, pages 440, 470, of the same work. 8 ORIGIN AND HISTORY OF THE ADMIRALTY (Cll. 1 The American Authorities In the United States the marine classics are mainly de- cided cases. The only treatise covering the whole field is the excellent two-volume work of Parsons on Shipping and Admiralty, which cannot be commended too highly. Its only fault is that it was published fifty years ago. There are other good works on separate departments of marine law; such as Marvin's work on Salvage, Dunlap's Admi- ralty Practice, Betts' Admiralty Practice, Spencer's work on Collisions, and especially Benedict's treatise on Admi- ralty Practice, which is indispensable on the subject of which it treats. As to the European codes and works above named, it must be borne in mind that they are only persuasive au- thority. They are evidence of the general maritime law, and not necessarily of our maritime law, except in so far as they have been adopted by us. As was said by Mr. Chief Justice Tilghman in an early Pennsylvania case : "They and the commentators on them have been received with great respect both in the courts of England and the United States, not as conveying any authority in them- selves, but as evidence of the general marine law. When they are contradicted by judicial decisions in our own coun- try, they are not to be regarded, but on points which have not been decided they are worthy of great consideration." 4 * Morgan & Price v. Insurance Co. of North America (1807)' 4 Da 11. 455, 1 L. Ed. 907, cited in 30 Fed. Cas. 1203. See, also, LOTTA- WANNA, 21 Wall. 558, 22 L. Ed. 654 ; Scotland, 105 U. S. 24, 2G L. Ed. 1001; Elfrida, 172 U. S. 186, 19 Sup. Ct. 146, 43 D. Ed. 413. § 3) COLONIAL ADMIRALTY JURISDICTION 9 THE COLONIAL ADMIRALTY JURISDICTION, AND CONSTITUTIONAL GRANT OF "ADMI- RALTY AND MARITIME JURISDICTION" 3. The grant of "admiralty and maritime jurisdiction" to the federal courts in the Constitution means the jurisdiction exercised by the colonial and state ad- miralty courts, and not the narrower jurisdiction of the English courts. Prior to the Revolution, the several colonies had admi- ralty courts by virtue of commissions from the crown. These commissions conferred a jurisdiction much wider than that of the same courts in the mother country. 6 On the Declaration of Independence, each colony became a separate nation, and organized its own system of courts. Although the abuses of power in revenue matters had been one of the grievances which led to the Revolution, and con- tributed an indignant sentence to the Declaration of Inde- pendence, the different colonies practically adopted the ju- risdiction of the colonial vice admiralty courts for their own, impressed by its advantages to their nascent shipping; and they disregarded the confined limits of the British ma- rine tribunals. The Virginia statute of 1779 is a good illus- tration : "Be it enacted by the general assembly, that the court of admiralty, to consist of three judges, any two of whom are declared to be a sufficient number to constitute a court, shall have jurisdiction in all maritime causes, except those wherein any parties may be accused of capital offenses, now depending and hereafter to be brought before them, shall take precedence in court according to the order in time of their appointment, and shall be governed in their proceed- § 3. b An idea of its extent may be gathered from Lord Corn- bury's vice admiral's commission, set out in extenso in section 124 et seq., Ben. Adm. 10 ORIGIN AND HISTORY OF THE ADMIRALTY (Ch. 1 ings and decisions by the regulations of the Congress of the United States of America, by the acts of the general as- sembly, by the Laws of Oleron and the Rhodian and Im- perial Laws, so far as they have been heretofore observed in the English courts of admiralty, and by the laws of na- ture and of nations." 6 These courts were in active operation from the date when the colonies declared their independence in 1776 to the adoption of the Constitution in 1789. THE WATERS INCLUDED 4. The waters included in the admiralty jurisdiction are all waters, whether tidal or not, navigable for com- merce of a substantial character. Repudiation of Ancient Tidal Test for Test of Navigability Article 3, § 2, of this instrument extended the judicial power of the United States, inter alia, "to all cases of admi- ralty and maritime jurisdiction." It was long assumed without examination that the measure of the jurisdiction referred to in this clause was that of the English admiralty courts at the time of the Revolution. Their standard was the reach of the tides. In the contracted islands of the mother country there were no navigable waters that were not tidal. And so, when the question first came before the Supreme Court, it decided that the domain of the American admiralty was bounded by the ebb and flow of the tide. 7 But this rule soon became embarrassing. In Peyroux v. Howard 8 the court found itself gravely discussing wheth- er a slight swell at New Orleans could properly be called a tide. Our early statesmen, living in weak communities strung along the Atlantic Coast, did not realize the possi- 6 10 Hen. St p. 9a § 4. 7 Thoinns Jefferson, 10 Wheat. 428, 6 L. Ed. 358. a 7 Tet. 342, 8 L. Ed. 700. § 4) THE WATEKS INCLUDED H bilities of the boundless West, inaccessible from its barrier of mountains and savages. Jay, our first Chief Justice, had been willing to barter away the navigation of the Missis- sippi, and even to restrict the export of cotton, which laid the foundation of our national wealth. The mighty rivers and their tributaries which gave access to a continent, the Great Lakes of our northern border, which had witnessed some of our most notable feats of arms, were by this tidal test relegated to a place with the English Cam and Isis — not wide enough for a boat race. The restriction could not be endured, and so the court gradually broke away from English traditions. In Waring v. Clarke 9 it decided that our Constitution did not mean to adopt the English stand- ard, and that the admiralty could take cognizance of con- troversies maritime in their nature, though they arose in the body of a county. This first step was but a prelimi- nary to entire emancipation, and its corollary was THE GENESEE CHIEF, 10 which repudiated the tidal test en- tirely, and held that the true criterion of jurisdiction was whether the water was navigable. Since then the court has frequently said that the grant of jurisdiction in the Constitution referred, as to subject-mat- ter, not to the curtailed limits of the English admiralty, but to the system with which its framers were familiar; and this was the colonial and state admiralty, which was prac- tically coincident with the ancient continental admiralty. 11 What are Navigable Waters It is not easy to say as matter of law exactly what wa- ters are navigable in this sense. Care must be taken to distinguish between the clause granting the admiralty ju- risdiction to the federal courts and the clause granting to congress the power to regulate interstate and foreign com- 9 ,j How. 441, 12 L. Ed. 226. io 12 How. 443, 13 L. Ed. 105S. ii LOTTAWANNA, 21 Wall. 55S, 22 L. Ed. 654; Ex parte Easton, 95 U. S. 68, 24 L. Ed. 373. 12 ORIGIN AND HISTORY OF THE ADMIRALTY (Ch. 1 merce. The Supreme Court has frequently said that they are independent of each other. Yet the admiralty jurisdic- tion is at least as extensive as the commercial clause. It extends to waters constituting actually or potentially a link in interstate commerce and navigable by craft of suffi- cient bulk to be engaged in interstate commerce, though such waters lie entirely within the limits of a state and above tide water, and though the voyage be between ports of the same state. 12 Under the commerce clause the phrase "navigable wa- ters" has been often considered. THE DANIEL BALL 13 was a proceeding against a steamer for violating the fed- eral license laws. She navigated entirely within the state of Michigan, on a short river, and drew only two feet of wa- ter. The river emptied into Lake Michigan. In the course of the opinion the court said: "Those rivers must be re- garded as public navigable rivers in law which are naviga- ble in fact. And they are navigable in fact when they are used, in their ordinary condition, as highways for com- merce over which trade and travel are or may be conduct- ed in the customary modes of trade and travel on water. And they constitute navigable waters of the United States, within the meaning of the acts of Congress, in contradis- tinction from the navigable waters of the states, when they form in their ordinary condition by themselves, or by unit- ing with other waters, a continued highway over which commerce is or may be carried on with other states or for- eign countries in the customary modes in which such com- merce is conducted by water." In Leovy v. U. S. 14 the court upheld an act of the Loui- siana Legislature authorizing the damming of a small bayou 12 IN RE GABNETT, 141 U. S. 1, 11 Sup. Ct. S40, 35 L. Ed. 631; Harrison v. Fite, 148 Fed. 781, 78 C. C. A. I IT; Manigault v. Springs, 199 D. S. 17.".. 26 Sup. Ct. 11!7. 50 E. Ed. 274. i3io Wall. rj.TT, 19 E. Ed. 999. i* 177 U. S. G21, 20 Sup. Ct. 797, 44 E. Ed. 914. § 4) THE WATERS INCLUDED 13 for the purpose of reclaiming the lands bordering thereon. It was shown that only fishermen and 03'ster boats used it. The court said that, in order to be public navigable waters, there should be "commerce of a substantial and permanent character conducted thereon." The admiralty jurisdiction does not extend over the wa- ters of a lake entirely within the borders of a state, and without any .navigable outlet. In United States v. Bur- lington & Henderson County Ferry Co. 15 Judge Love seems to think that such waters are without the admiralty jurisdiction, though the point was not directly involved. In Stapp v. The Clyde 16 the question was necessarily in- volved, and the court decided that such waters were not of admiralty cognizance. Artificial as well as natural water ways come within the jurisdiction of the admiralty. In The Oler 17 this was de- cided as to the Albemarle and Chesapeake Canal. After- wards, in Ex parte Boyer, 18 the Supreme Court upheld the jurisdiction in the case of a collision between two canal boats on the Illinois and Lake Michigan Canal, an artificial Canal entirely within the limits of a state, but forming a link in interstate communication, though the vessels themselves were on voyages beginning and ending in the state. is (D. C.) 21 Fed. 331. 16 43 Minn. 192, 45 N. W. 430. See, also, Rockaway, 156 Fed. 692 ; Robert W. Parsons, 191 U. S. 17, 24 Sup. Ct. 8, 48 L. Ed. 73. They are certainly not within the commerce clause of the Consti- tution. Veazie v. Moor, 14 How. 568, 14 L. Ed. 545. Moore v. American Transp. Co., 24 How. 1, 16 L. Ed. 674. 17 2 Hughes, 12, Fed. Cas. No. 10,485. is 109 U. S. 629, 3 Sup. Ct. 434, 27 L. Ed. 1056. See, also, Robert W. Parsons, 191 U. S. 17, 24 Sup. Ct. 8, 48 L. Ed. 73. 14 ORIGIN AND HISTORY OF THE ADMIRALTY (Ch. 1 THE CRAFT INCLUDED 5. The character of craft included in the admiralty jurisdic- tion is any movable floating structure capable of navigation and designed for navigation. The evolution of the ship from the dugout or bark canoe to the galley with gradually increasing banks of oars, then to the sail vessel with masts and sails constantly growing and replacing the human biceps, then to the self-propelling steamers, reckless of ocean lanes and calm belts, is one of the miracles of progress. As to all of these the jurisdiction of the admiralty is clear. But hardly less important, at least in local commerce, are the various nondescripts which dot our harbors, like lighters, rafts, car floats, floating docks, dredges, and barges with no motive power aboard. Here, again, it must be remembered that the admiralty clause of the Constitution, and not the commerce clause, is being considered. A vessel need not necessarily be en- gaged in commerce to come within the jurisdiction, though, if it was, the jurisdiction would be clear. The true test is capability of navigation and the animus navigandi. The very same structure, when permanently attached to the shore, and thereby becoming a practical extension of the shore, with- out any intent of moving, might be out of the jurisdiction; and yet, if temporarily attached, and designed to be shifted from place to place by water, it might be within the jurisdiction. The leading case on this subject is COPE v. VAL- LETTE DRY-DOCK CO. 19 There the court held that the jurisdiction did not include a floating dry dock perma- nently attached to the shore at New Orleans, and not in- tended for navigation. It had been moored to the same place for twenty years. Had it been designed to be towed around to different places in the harbor, that would have § 5. i» 119 U. S. 625, 7 Sup. Ct. 330. 30 L. Ed. 501. 3 5) THE CRAFT INCLUDED 15 been navigation sufficient, and in such case the court would probably have taken jurisdiction. It is difficult to reconcile with this the case of Woodruff v. One Covered Scow, 20 in which Judge Benedict took jurisdiction of a floating boat- house permanently attached to a wharf to afford access to shore for persons from small boats. As the Vallette Dry- Dock Case was only decided on January 10, 1887, and this case on February 18, 1887, it is likely that the former was not known to Judge Benedict. Under the jurisdiction are included lighters of the sim- plest kind, for they are considered to "appertain to travel or trade or commerce." 21 A floating elevator, used for the storage of grain, but designed to be moved from place to place in a harbor, is included. 22 There are many cases extending the jurisdiction over dredges, both those which lift the mud by dippers, and deposit it in scows to be towed away, and those which work on a sucking principle, drawing the mud from the bottom, and delivering it on shore by long lines of pipe. 23 The same is true of floating movable derricks, and pile drivers. 24 On the other hand, a marine pump dredge, capable of being moved from place to place, but resting on piles, and 20 (D. C.) 30 Fed. 269. 21 General Cass, 1 Brown, Adra. 334, Fed. Cas. No. 5,307; Wilming- ton (D. C.) 48 Fed. 560. 22Hezekiah Baldwin. 8 Ben. 556, Fed. Cas. No. 6,449. 23 Saylor v. Taylor, 23 C. C. A. 343, 77 Fed. 476; McRae v. Dredg- ing Co. (C. C.) 86 Fed. 344 : Mae, 7 P. D. 126 ; Richmond Dredging Co. v. Standard American Dredging Co., 20S Fed. S62, 126 C. C. A. 20. 24 Maltby v. A Steam Derrick, 3 Hughes, 477, Fed. Cas. No. 9,000; Lawrence v. Flatboat (D. C.) 84 Fed. 200 ; Southern Log Cart. & Sup- ply Co. v. Lawrence. 30 C. C. A. 4S0, S6 Fed. 907 ; Raithmoor (D. C.) 186 Fed. 849 (reversed on another point, not affecting this question, 241 U. S. 166, 36 Sup. Ct. 514, 60 L. Ed. 937). 16 ORIGIN AND HISTORY OF THE ADMIRALTY (Ch. 1 not floating, has been held to be excluded from admiralty cognizance. 25 In The Public Bath No. 13 26 Judge Brown held that a bath house built on boats, and made to shift from place to place, is within the jurisdiction. This, and U. S. v. Bur- lington & Henderson County Ferry Co., 27 are good illustra- tions of cases where the courts treat navigability irrespec- tive of trade or commerce as the proper test of the admiral- ty jurisdiction in contradistinction to the powers of Con- gress under the commerce clause of the Constitution. Judge Cushman has recently held that an aeroplane is not a subject of admiralty jurisdiction. 28 In construing the meaning of the word "ship" under the English statutes conferring jurisdiction on the admiralty courts, the House of Lords has held that a floating gas buoy, which had been broken loose, and had been saved, could not be libeled for salvage, as it was not designed either for navigation or for use in commerce. 29 The Hendrick Hudson 30 was a dismantled steamer, which was being used as a hotel. While being towed to another place, it was in peril, and salvage services were rendered to it. The court held that it was not within the cognizance of the admiralty. This decision would seem to be out of line with the more recent authorities. Whether the structure was a hotel or a steamboat, it was engaged in actual navigation. Had the Vallette Dry Dock been so engaged, the Supreme Court would probably have sustained the jurisdiction. 2 6 Big Jim (D. C.) 61 Fed. 503. 2 (D. C.) 61 Fed. 692. 27 (D. C.) 21 Fed. 331. as Crawford Bros. No. 2 (D. O.) 215 Fed. 269. 29 Gns Fl-.nt Whittnn No. 2. [1897] A. C. 337. But the English courts have sustained jurisdiction over a hopper barge. Mudlark, [1911] P. 1 L6. 803 Ben. 419, Fed. Cas. No. 6,355. § 5) THE CRAFT INCLUDED 1? A ship becomes such at her launching. Prior thereto she is a mere congeries of wood and iron. 31 Rafts Whether a raft is such a structure as to come under the jurisdiction cannot be considered settled. The Vallette Dry-Dock Case seems, in its reasoning, to assume that ships and cargoes of ships alone come under the jurisdic- tion, and that floating merchandise, never in any way con- nected with a ship, is not included. Yet in its concluding paragraph it mentions the case of rafts, and cites several well-considered decisions sustaining the jurisdiction, but without expressing either approval or disapproval. In Seabrook v. Raft of Railroad Cross-Ties, 32 Judge Si- monton, in sustaining jurisdiction, says that rafts were the original methods of water locomotion. As they are nav- igated, and designed to be navigated, and not tied perma- nently to one place, like a dry dock, the weight of reasoning is in favor of the jurisdiction in such case. si Tucker v. Alexandroff, 183 U. S. 424, 22 Sup. Ct. 195, 46 I>. Ed. 264; North Pacific S. S. Co. v. Hall Bros. Marine Ry. & Shipbuild- ing Co., 249 U. S. 119, 39 Sup. Ct. 221, 63 L. Ed. 510. 32 (E). C.) 40 Fed. 596. See, also, Mary (D. C) 123 Fed. 609; Gas Float Whittou No. 2, [1S97] A. C. 337. Htjghes.Adm. (2d Ed.) — 2 18 ADMIRALTY JURISDICTION (Ch. 2 CHAPTER II OF THE ADMIRALTY JURISDICTION AS GOVERNED BY THE SUBJECT-MATTER 6. Cases in Contract and Cases in Tort. 7. Tests of Jurisdiction. 8-10. Contracts of Seamen. 11. Master's Right to Proceed in Rem for His Wages. 12-19. Pilotage. CASES IN CONTRACT AND CASES IN TORT 6. The sources of admiralty jurisdiction, as in other branch- es of substantive law, naturally subdivide into rights arising out of contract and rights arising out of tort. (a) Rights arising out of contract are maritime when they relate to a ship as an instrument of commerce or navigation, intended to be used as such or to facilitate its use as such. (b) Rights arising out of tort are maritime when they arise on public navigable waters. 7. TESTS OF JURISDICTION— The test of jurisdiction is different in each of these classes of cases. (a) The test in contract cases is the nature of the trans- action. (b) The test in tort cases is the locality. In the warfare made by the common law upon the admi- ralty courts, one line of attack was the contention that only contracts were maritime which were made upon the sea, and to be performed upon the sea; thus attempting to apply to contractual rights, as well as torts, the test of lo- cality. Under the English decisions this distinction ex- cluded many subjects of marine cognizance which the Con- § 6-7) CASES IN CONTRACT AND CASES IN TORT 10 tinental admiralty covered. In some of the earlier deci- sions of this country traces of this distinction may also be found. But it is now settled that the test in matters of contract is irrespective of locality, and depends upon the nature of the transaction. In England itself the restriction became so intolerable that an act of parliament was nec- essary, and accordingly the acts defining the jurisdiction of the admiralty courts largely restored the ancient admiralty jurisdiction of the English courts. What Contracts Are Maritime by Nature The courts have in many instances said whether certain particular controversies were maritime or not, but no sat- isfactory definition has yet been enunciated which will en- able the student to say in advance whether a given case is marine or not. In DE LOVIO v. BOIT, 1 Mr. Justice Story, in holding that contracts of marine insurance are within the admiralty jurisdiction, discusses with great learning the early extent of that jurisdiction, naming in more than one connection the general subjects which writ- ers and codifiers had enumerated, and says that it includes "all transactions and proceedings relative to commerce and navigation" ; also "all contracts which relate to the naviga- tion, business, or commerce of the sea." In New England Marine Ins. Co. v. Dunham 2 the court says: "The true criterion is the nature and subject-matter of the contract as to whether it was a maritime contract, having- reference to maritime services or maritime trans- actions." In Zane v. The President, 3 Mr. Justice Washington says : "If the subject-matter of a contract concerned the naviga- tion of the sea, it is a case of admiralty and maritime juris- diction, although the contract be made on land." The case was a proceeding by a material man. §§ 6-7. i 2 Gall. 39S, Fed. Cas. No. 3,776. 2 11 Wall. 1, 20 L. Ed. 90. 3 4 Wash. C. C. 45.1, Fed. Cas. No. 1S.201. 20 ADMIRALTY JURISDICTION (Ch. 2 Wortman v. Griffith 4 was a suit by the owner of a ship- yard for the use of his marine ways by the vessel. Mr. Jus- tice Nelson decided that the admiralty had jurisdiction, saying: "The nature of the contract or service, and not the question whether the contract is made or the service is rendered on the land or on the water, is the proper test in determining whether the admiralty has or has not juris- diction." Under the test as laid down, the fact that a ship may be incidentally connected with the transaction does not make the matter maritime. In Ward v. Thompson 5 there was an agreement between certain parties to carry on a trade venture, one contributing a vessel and the other his skill and labor, on the basis of a division of profits on a fixed ratio. The court held that this was nothing but an ordinary common-law agreenfent of partnership, and was not made maritime by the fact that a ship was part of the partnership property. On the same principle a traffic agreement between a rail- road company and the owner of a number of steamers to operate as a through line of transportation, dividing the receipts, is not maritime. 6 Bogart v. The John Jay 7 was a proceeding in admiralty 4 3 Blatchf. 52S. Fed. Cas. No. 18,057. See, also, North Pac. S. S. Co. v. Hall Bros. Marine Ity. & Shipbuilding Co., 249 U. S. 119, 39 Sup. Ct. 221. G3 L. Ed. 510. s 22 How. 330, 16 L. Ed. 249. a Graham v. Oregon R. & Xav. Co. (D. C.) 134 Fed. 454. i 17 How. 399, 15 L. Ed. 95. In England, independent of statute, admiralty had no jurisdiction to enforce a mortgage. By 3 & 4 Vict, c. •',.";, § 3 the mortgagee was allowed to intervene when (he ship was under arrest in a case of which the court had jurisdiction. And by 24 Vict. c. 10, § 11, any duly registered mortgagee was allowed to institute an independent proceeding. Mayer, Admiralty Law & Pr. 70; Atalanta, 5 Can. Ex. 57. As Parliament is not bound by the Limitations of a written constitution, it can make a thing marine by statute which is not so by nature. But the grant of admiralty juris- diction in tbis country is constitutional, and Congress could hardly § 6-7) CASES IN CONTRACT AND CASES IN TORT 21 to foreclose a mortgage on a vessel. There was nothing to show th'at the money had been borrowed for any purpose connected with the use of the vessel, and the only connec- tion the vessel had with it was the fact that it was his se- curity for the debt, just as any other piece of personal prop- erty might have been. It was held that admiralty had no jurisdiction. In Minturn v. Maynard 8 the Supreme Court decided that an admiralty court had no jurisdiction of mere matters of account, though they were accounts relating to a ship. In the Illinois 9 a party had leased the privilege of run- ning a bar on a passenger steamer plying between Mem- phis and Vicksburg. When the vessel fell into trouble, and was libeled by some other creditor, he, too, came into the admiralty court, and claimed that this was, in effect, a char- ter of part of the vessel, and that he had a remedy in ad- miralty. The court, however, could not see that a transac- tion of this sort had any maritime characteristics, and de- cided that there was no jurisdiction. In Doolittle v. Knobeloch 10 the owner of a vessel had em- ployed the libelant to purchase a steamer for him, and to look generally after his interests in bringing the steamer from New York to Charleston, though not in connection with any navigation of the vessel. He attempted to collect his money by a proceeding in rem against the vessel and in give a mortgagee the right to institute an independent proceeding in view of the decision of the Supreme Court that such a right is not by nature maritime. The right to intervene in a proceeding by a holder of a maritime right of action is conferred by rule 43 of the Supreme Court, and rests on a different basis. s 17 How. 477, 15 L. Ed. 235 ; Zillah May (D. C.) 221 Fed. 1016. Here, too, express jurisdiction has been conferred in England by 24 Vict. c. 10, § 8, as to registered ships. Lady of the Lake, L. R. 3 A. & E. 29. 9 2 Flip. 383, Fed. Cas. No. 7,005. io (D. C.) 39 Fed. 40. But an agreement to undertake the re- sponsibility of navigating a vessel back to her home port is mari- time. Laurel (D. C.) 113 Fed. 373. 22 ADMIRALTY JURISDICTION (Ch. 2 personam against the owner. The court decided that it was not an admiralty contract. If the principal contract is maritime, jurisdiction is not ousted by the fact that some incidental question growing out of it would not be maritime in case it stood alone. 11 On the other hand, preliminary contracts looking to a formal contract are not maritime, though the contract it- self, when executed, may be so. For instance, a contract of charter party partly performed is maritime, but a prelimi- nary agreement to make a contract of charter party is not maritime. 12 The same transaction may be maritime in one case and not maritime in another. As emphasizing this distinction, there is the maxim that "a ship is made to plough the seas, and not to lie at the walls." Hence, wharfage rendered to a ship while loading or unloading, or in her regular use as a freight-earning enterprise, is a maritime contract. 13 On the other hand, wharfage to a ship laid up for the winter while waiting for the season to open is not mari- time. 14 This distinction is further illustrated by the decisions in relation to watchmen on vessels. Those who are watchmen while vessels are in port during voyages are considered as having made a maritime contract, but those who have charge of her while laid up have no such contract. 15 11 Charles F. Perry. 1 Low. 475, Fed. Cas. No. 2,616; Nash v. Bohlen (D. C.) 167 Fed. 427. i- Andrews v. Essex Fire & Marine Ins. Co., 3 Mason, 6, Fed. Cas. No. 374 ; Tribune, 3 Suran. 144, Fed. Cas. No. 14,171 ; Oakes v. Rich- ardson, 2 Low. 173, Fed. Cas. No. 10,390; Eugene, 87 Fed. 1001, 31 C. C. A. 345 ; Steamship Overdale Co. v. Turner (D. C.) 206 Fed. 339. « Ex parte Easton, 95 U. S. 6S, 24 L. Ed. 373; Braisted v. Den- ton (D. C.) 115 Fed. 428. K C. Vanderbilt (D. C.) 86 Fed. 785. Wharfage in its proper sense must not be confused with rent due for the lease of a wharf. This latter is not maritime, being simply a contract relating to real es- tate. .Tamos T Furber (D. C.) 157 Fed. 126. is Erinagh (D. C.) 7 Fed. 231 ; Fortuna (D. C.) 206 Fed. 573. §§ 8-10) CONTRACTS OF SEAMEN 23 CONTRACTS OF SEAMEN 8. Every person (apprentices excepted) who shall be em- ployed or engaged to serve in any capacity on board a vessel shall be deemed and taken to be a seaman. 9. Seamen are the wards of the admiralty, and have a prior claim for their wages. 10. Their contracts are governed by the ordinary rules of contract except as modified by statute, and by the disposition of the courts to guard them against imposition. The contracts of seamen have always been considered among the most important in the admiralty, as a good crew is the most important outfit that a ship can have. Her construction may be the best that modern ingenuity may produce. Yet, unless she has a brain to direct her course, and skillful hands to regulate the pulsations of her engines and manage her numerous complicated machinery, her pro- peller is paralyzed, her siren is dumb. It is not the gun, but the man behind it, that is formidable; and in modern as in ancient times the personal equation is still controlling. On this account the utmost encouragement and the fullest protection to seamen are the established policy of the ad- miralty law. Who are Seamen As the courts have been liberal in their construction of the word "ship," they have been equally so in deciding what constitutes a "seaman," in the modern sense. The term is not limited to those who actually take part in the naviga- tion of the ship. Every one who is regularly attached to the ship, and contributes to her successful handling, is a seaman, though he may not know one rope from another. The definition above given is the exact language of sec- 24 ADMIRALTY JURISDICTION (Ch. 2 tion 4612 of the Revised Statutes as amended. 16 For in- stance, as a dredge has been considered a ship, so the men who operate it are held to be seamen. 17 Fishermen and sealers, who go for that purpose, are held to be seamen, though they may do other incidental work. 1 * The wife of the cook, engaged by the master as second cook, is a mariner in this sense. 19 So, too, the clerk of a steamboat. 20 So, too, a bartender. 21 So as to the ship's steward. 22 And the wireless operator. 23 On account of the peculiar character of seamen, the courts scrutinize closely their contracts, in order to protect them from imposition. They are improvident and wild, easily imposed upon, and the constant prey of designing men. Their rights, in modern times, are largely governed by statute. In the United States the statutory provisions regulating them are contained in sections 4501^4-612 of the Revised Statutes. This codification of the law in relation to them, however, has been much amended and liberalized by subsequent legislation. The acts modifying them will be found in the notes. 24 A detailed discussion of the par- §§ 8-10. 16 u. S. Comp. St. § S392. 17 Saylor v. Taylor, 77 Fed. 476, 23 C. C. A. 343; Ellis v. U. S., 206 U. S. 240. 27 Sup. Ct. GOO, 51 L. Ed. 1047, 11 Ann. Cas. 589. is Minna (D. C.) 11 Fed. 759; Ocean Spray, 4 Sawy. 105, Fed. Cas. 10,412; Domenico v. Alaska Packers' Ass'n (D. C.) 112 Fed. 554; Alaska Packers' Ass'n v. Domenico, 117 Fed. 99, 54 C. C. A. 185 ; North Alaska Salmon Co. v. Larsen, 220 Fed. 93, 135 O. C. A. 661. is James H. Shrigley (D. C.) 50 Fed. 287. 20 Sultana, 1 Brown, Adm. 13, Fed. Cas. No. 13,602. si J. S. Warden (D. C.) 175 Fed. 315. 22 Pacific Mail S. S. Co. v. Schmidt, 214 Fed. 513, 130 C. C. A. 057. 23 Buena Ventura (D. C.) 243 Fed. 797. -4 Act June 9, 1874 (18 Stat. 64); Act June 26, 1884 (23 Stat. 53) ; Act June 19, 1886 (24 Stat. 79) ; Act Aug. 19, 1890 (26 Stat. 320) ; Act Feb. 18, 1S95 (28 Stat. G67) ; Act March 3, 1S97 (29 Stat. 6S7) ; §§ 8-10) CONTRACTS OP SEAMEN 25 ticular effect of those amendments is impracticable for want of space. Statutory Provisions The first provisions relate largely to the method of their engagement, requiring shipping articles carefully prepared and publicly executed, and providing penalties for the vio- lation of such articles. In cases of ambiguity in construing these articles, the courts lean in favor of the seamen. 25 The next class of provisions relates to seamen's wages and effects. It was an old maxim of the English admiralty law that "freight is the mother of wages," though there were many exceptions to it, and its true limits have not been always understood. This rule no .longer prevails in the United States under the statutory provisions referred to. The ancient rule and its limitations may be seen from the opinion of Mr. Justice Woodbury in the Niphon's Crew. 26 In order to protect a seaman from imposition, the stat- utes render void any agreement by him waiving any reme- dies for his wages, and forbid any assignment or attach- ment of them. 27 Under the same policy, disproportionate advances to sea- men beyond wages earned are made unlawful. The act goes so far as to forbid such advances in our ports to sea- men in foreign ships, though it has been held inapplicable Act December 21, 189S (30 Stat. 755). Act March 4, 1915 (38 Stat. 1164), known as the La Follette Act, materially changes the above in the interest of seamen. As modified, they are collected in title LIII of the U. S. Comp. St. §§ S287-8392a. zsWope v. Hemenway, 1 Spr. 300, Fed. Cas. No. 18.042; Cata- lonia (D. C.) 236 Fed. 554. 2 6Bmnner, Col. Cas. 577, Fed. Cas. No. 10,277. 2 7 Despite earlier conflict of authority, it is now settled that this applies not only to preliminary attachments, but to garnishments or supplementary proceedings after judgment. Wilder v. Inter-Island Steam Nav. Co., 211 U. S. 239, 29 Sup. Ct. 58, 53 L. Ed. 164, 15 Ann. Cas. 127. 26 ADMIRALTY JURISDICTION (Ch. 2 to advances in foreign ports, whether to American or for- eign ships. 28 Under the practice of the admiralty courts, a seaman is not required to give the usual stipulation for costs when he libels a vessel. 29 But, in order to protect the vessel from being arrested on frivolous charg-es, the law requires that, before issuing any libel, he must cite the master to appear before a commissioner to show cause why process should not issue. The commissioner thereupon holds a sort of preliminary examination, and issues process if he thinks there is sufficient justification for it. 30 The statutes also contain elaborate provisions for the seaman's discharge, and for his protection in relation to the character of the vessel, the character of the food and medi- cine furnished, his clothing, etc., for which reference must be made to the statutes. Priority of Lien Under the same policy, the admiralty courts have always held that, as a general rule, the wages of seamen constitute among contract claims the first lien upon the ship, and ad- here to it as long as a plank is left afloat. 31 There may be circumstances in which other liens would be preferred to seamen's wages, as where salvors bring a ship in, and thereby save the ship for the seamen as well as others ; but these cases are exceptional, and cannot be dis- cussed, at least in this connection, in detail. 32 28 Act March 4, 1915. §§ 4, 11 (U. S. Conip. St. §§ 8322. 8323); Sandberg v. McDonald, 248 U. S. 185, 39 Sup. Ct. 84, 63 L. Ed. 200; Neilson v. Rhine Shipping Co., 248 U. S. 205, 39 Sup. Ct. S9, 63 L. Ed. 208 ; Pinna (D. C.) 252 Fed. 203. 2« Act July 1, 1918, c. 113, § 1 (U. S. Comp. St. Ann. Supp. 1919, § 1630a). »o Rev. St. U. S. §§ 4546, 4547 (U. S. Comp. St. §§ 8335. 8336). si Ocean Spray, 4 Sawy. 105, Fed. Cas. No. 10,412. 82 Relf v. The Marin, 1 Pet. Adni. 186, Fed. Cas. No. 11,692. See poet, pp. 380. 393. §§ 8-10) CONTRACTS OF SEAMEN 27 Enforcing Obedience In one respect the contracts of seamen vary materially from ordinary contracts. The general rule in the usual contracts of hiring is that suit or discharge is the only rem- edy for its violation. On the other hand, the importance of preserving discipline upon a vessel, and of performing the services necessary for her protection, and for the protection even of life, justified the master, under the law as it long prevailed, in using physical force to a reasonable extent in order to enforce obedience. He could inflict blows for the purpose of compelling obedience to an order, or put muti- nous seamen in irons or in confinement as a punishment, or forfeit their wages for misconduct. In fact, under exception- al circumstances of aggravation, he might take life. But the other officers of the ship could not punish for past offenses. They could only use a reasonable amount of force to com- pel obedience. 33 But under the recent legislation all forms of corporal punishment are prohibited, and the only punishment that the master can inflict for disobedience of orders is to put the seaman in irons till the disobedience ceases, or put him on bread and water for a limited time. He can no longer have a deserter apprehended, but the only punishment for desertion is total or partial forfeiture of wages and effects. 34 Seamen of Foreign Vessel As a rule, the court will not take jurisdiction in contro- versies between the seamen of a foreign ship and her mas- ter or the ship. Many of the countries have express treaty stipulations giving sole cognizance of these disputes to their S3 tj. S. v. Alden, 1 Spr. 95, Fed. Cas. No. 14,427; Relf v. The Maria, 1 Pet. Adm. 186, Fed. Cas. No. 11,G92 ; Turner's Case, 1 Ware, 77, Fed. Cas. No. 14,248; Macoinber v. Thompson, 1 Sunin. 384, Fed. Cas. No. 8,919 ; ROBERTSON v. BALDWIN, 165 U. S. 275, 17 Sup. Ct. 326, 41 L. Ed. 715 ; Stout v. Weedin (D. C.) 95 Fed. 1001. b* Act March 4, 1915, c. 153, § 9, 38 Stat. 1167 (U. S. Corap. St. § 8391) ; Ex parte Larsen (D. C.) 233 Fed. 708. 28 ADMIRALTY JURISDICTION (Ch. 2 consuls. In cases where such a treaty exists, the court will not interfere at all. 35 In cases where there is no treaty expressly forbidding it, the courts have discretion whether to take jurisdiction or not, but they will not take jurisdiction unless under ex- treme circumstances of cruelty or hardship. 36 In considering this question, the sailors are presumed to be of the same nationality as the ship, no matter what their actual nationality. 37 When the court takes jurisdiction under such circum- stances, it applies by comity the law of the vessel's flag". 38 MASTER'S RIGHT TO PROCEED IN REM FOR HIS WAGES 11. Under the general admiralty law, the master has no right to proceed in rem for wages. Whether he has when a state statute purports to give it is un- settled. The master is not allowed, under the general admiralty law, to proceed against the vessel either for his wages or any disbursements that he may make on her behalf. One reason assigned for this exception is that the master does not need such a remedy, as he may pay himself out of the freight money. But the difficulty about this is that he docs not always have the right to collect it, and, in fact, under modern conditions, very rarely has that right. A better reason is his relation to the ship. He is the trustee or representative of the owners in distant ports. so Montapedia (D. C.) 14 Fed. 427; Albergen (D. C.) 223 Fed. 443. seBKUiKNLAND, 114 U. S. 355, 5 Sup. Ct. S60, 29 L. Ed. 152; Albanl (D. C.) 169 Fed. 220. 37 in re Ross, 140 U. S. 454, 11 Sup. Ct. 897, 35 L. Eld. 5S1 ; Ester (D. C.) 190 Fed. 216. saBeMdere (D. C.) 90 Fed. 106; Hannington Court (D. C.) 252 Fed. 211. §11) master's right to PROCEED E\ t rem for wages 29 The law looks to him to protect their interests, and they have the right to assume that he will protect their inter- ests. When a ship herself is sued, process is served upon her alone, or her master, and not upon her owners. In such case the master is their representative for the very purpose of protecting- the ship and safeguarding their interests. Hence, if he were allowed to sue his own vessel, he might confiscate her at the very time when they think he is pro- tecting her, and so he has no right to proceed against the ship which is intrusted to him to protect. 39 It is a more difficult question whether a state statute can give a master a right of action against the ship. In the Raleigh Case, just cited, Judge Hughes held that it could not. The principle as to the effect of state statutes is that, if a contract is maritime in its nature, a state statute can add to it the additional remedy of a lien, and the feder- al courts will enforce it. Hence, if the claim of the master is maritime under the principles of general admiralty law, it would seem that a state statute could add to the right which he would then have to sue in personam the addition- al right of proceeding against the vessel in rem. There was some wavering on the question whether he can pro- ceed even in personam. 40 But it is now settled that the contract is maritime, which would give him the right to proceed in personam. In the Mary Gratwick, 41 where a statute of California purported to give the master a lien, Judge Hoffman held that his contract was maritime, and that, therefore, the statute could give the right of procedure in rem. The fact that the contract is maritime is settled by the §11. so Raleigh, 2 Hughes, 44, Fed. Cas. No. 11,539; Grand Turk, 1 Paine, 73, Fed. Cas. No. 5,683. 40 Grand Turk, 1 Paine, 73, Fed. Cas. No. 5,6S3 ; Hammond v. Essex Fire & Marine Ins. Co., 4 Mason, 196, Fed. Cas. No. 6,001. *i Fed. Cas. No. 17,591. 30 ADMIRALTY JURISDICTION (Cll. 2 William M. Hoag. 42 There a master had proceeded against a vessel under a statute of Oregon purporting to give him the lien. District Judge Bellinger had held that he was en- titled to hold the vessel. 43 Thereupon an appeal was taken direct to the Supreme Court under the clause of the appel- late court act giving such appeal on questions of jurisdic- tion. It was contended that whether the master had a lien for his wages was a question of jurisdiction. The case was heard along with that of the Resolute. 4 * Mr. Jus- tice Brown therefore found it necessary to discuss exactly what constitutes jurisdiction. He held that: "Jurisdiction is the power to adjudicate a cause upon the merits, and dispose of it as justice may require. As applied to a suit in rem for a breach of a maritime contract, it presupposes — First, that the contract sued upon is a maritime con- tract ; and, second, that the property proceeded against is within the lawful custody of the court. These are the only requirements to give jurisdiction. Proper cognizance of the parties and subject-matter being conceded, all other matters belong to the merits." The opinion of the Supreme Court, therefore, settles that the contract is maritime, which required an affirmance of the decree of the District Court without passing upon the question whether the state stat- ute could create the additional lien. Under the principles laid down in the J. E. RUMBELL, 45 it seems that state statutes could have this effect, though in that case the question whether it could have such an effect as to a claim of the master for wages was expressly re- served, in fact, these two cases show that the Supreme Court is reluctant to sustain such a lien, on account of the inconvenience and abuses to which it may give rise. 42 168 U. S. 443, 18 Sup. Ct 114, 42 L. Ed. 537. See, also, Union Fish Co. v. Erickson, 24S U. S. 30S, 30 Sup. Ct. 112, 63 L.. Ed. 261. " (D. C.) 69 Fed. 742. 44 168 U. S. 437, IS Sup. Ct 112, 42 L. Ed. 533. 4 5 148 U. S. 1, 13 Sup. Ct. 408, 37 L. Ed. 345. §§ 12-19) PILOTAGE 31 The English statutes give the master such a lien, both for wages and disbursements. 40 PILOTAGE 12. A pilot is a person who, in consequence of his special knowledge of the waters, has charge of the han- dling of a vessel. 13. State pilot laws are constitutional. 14. The skill required of a pilot is the ordinary care of an expert in his profession. 15. When in charge of navigation, he supersedes the mas- ter. 16. Under the American decisions the vessel is liable for his negligence, though he is a compulsory pilot. 17. He is liable for negligence. 18. The ordinary forms of pilot associations are not liable for the acts of one of their members. 19. In America admiralty courts have jurisdiction of suits against pilots. The word "pilot''' is used in admiralty in reference to two classes. He may be a regular member of the crew, or he may be taken aboard simply to conduct a vessel in or out of port. The nature of his duties is in each case about the same. He is supposed to know specially the waters through which the vessel navigates, and to conduct her safely through them. The importance of his duties, there- fore, is only second to that of the master. In fact, the courts have frequently looked upon him as practically charged with the same responsibility as the master. 46 Morgan v. Castlegate S. S. Co., [1893] A. C. 3S ; Rupert City (D. C.) 213 Fed. 263. 32 ADMIRALTY JURISDICTION ( Ch. 2 Validity of State Pilot Laws Most of the states bordering on navigable waters have passed laws regulating the business of pilotage, and render- ing it obligatory upon a vessel to take a pilot, or pay the pilotage fees, though the master of the vessel may himself be familiar with the waters, and not need assistance in taking his ship to port. The compulsory nature of these laws has been often criticized, but they are based upon reasons of sound public policy. Unless pilotage is com-' pulsory, the occupation would not be sufficiently remunera- tive to induce men of skill and character to engage in it. It is like other numerous kinds of expenses in modern business where people must pay when no direct service is rendered, in order to support a class of men who can ren- der that service best. It is similar to the payment of taxes in order to support police and fire departments, though the individuals who pay them may never be robbed or have their houses burned ; for a moment may come when any one of them may need such protection. In COOLEY v. BOARD OF WARDENS OF PORT OF PHILADELPHIA 47 the court says: "Like other laws, they are framed to meet the most usual cases — quae frequentius accidunt. They rest upon the propriety of securing lives and property exposed to the perils of a dan- gerous navigation by taking on board a person peculiarly skilled to encounter or avoid them ; upon the policy of dis- couraging the commanders of vessels from refusing to receive such persons on board at the proper times and places ; and upon the expediency, and even intrinsic justice, of not suffering those who have incurred labor, and ex- pense, and danger to place themselves in a position to ren- der important service generally necessary, to go unreward- ed, because the master of a particular vessel either rashly refuses their proffered assistance, or, contrary to the gen- eral experience, does not need it. There arc many cases in §§ 12-19. " 12 How. 290, 13 L. Ed. 996. §§ 12-19) PILOTAGE 33 which an offer to perform, accompanied by present ability to perform, is deemed by law equivalent to performance. The laws of commercial states and countries have made an offer of pilotage service one of those cases; and we can- not pronounce a law which does this to be so far removed from the usual and fit scope of laws for the regulation of pilots and pilotage as to be deemed for this cause a covert attempt to legislate upon another subject under the ap- pearance of legislating on this one." In the China 4S the court said : "It is necessary that both outward and inward bound vessels of the classes desig- nated in the statute should have pilots possessing full knowledge of the pilot grounds over which they are to be conducted. The statute seeks to supply this want, and to prevent, as far as possible, the evils likely to follow from ignorance or mistake as to the qualifications of those to be employed, by providing a body of trained and skillful sea- men, at all times ready for the service, holding out to them sufficient inducements to prepare themselves for the dis- charge of their duties, and to pursue a business attended with so much of peril and hardship." These pilotage laws are among the state statutes relat- ing to vessels which have been upheld as not in conflict with the clause of the federal constitution conferring on congress the exclusive right to regulate interstate and for- eign commerce. 49 The theory of these decisions is that such laws affect commerce incidentally, and are valid un- til congress legislates on the subject. The leading case on the subject is COOLEY v. BOARD OF WARDENS OF PORT OF PHILADELPHIA. 50 4§7 Wall. 53, 19 L. Ed. 67. 4 9 Article 1, § 8, el. 3. bo 12 How. 299, 13 L. Ed. 996. See, also, Olsen v. Smith. 195 U. S. 332, 25 Sup. Ct. 52, 49 L. Ed. 224 ; Thompson v. Darden, 19S U. S. 310, 25 Sup. Ct. 660, 49 L. Ed. 1064. Hughes,Adm. (2d Ed.) — 3 34 ADMIRALTY JURISDICTION (Ch. 2 Skill Required of Pilot Since a pilot hires himself out as an expert, and is em- ployed because he is an expert, the measure of care requir- ed of him is a high one. Some of the cases go so far as to say that his liability is as great as that of a common car- rier, but the contract of pilotage is, after all, one of mere hiring, and the duty required of him is simply the ordi- nary care required of any servant. This ordinary care, however, varies with the character of the employment, so that the ordinary care required of an expert is much high- er than the ordinary care required of a simple driver of a land vehicle. The pilot's liability is for ordinary care, but that means the ordinary care of an expert in his profession. While he is not liable for mere errors of judgment, he is liable for any accident that care and attention and an in- telligent knowledge of the locality with which he profess- es familiarity might prevent. He is supposed to know the currents, the channel, and all special difficulties connected therewith, except unknown and sudden obstructions which he could not find out by intelligent attention. He is sup- posed to know how to cross the bar, and when it is the proper time to cross it. 51 In ATLEE v. NORTHWESTERN UNION PACKET CO. r ' 2 the court lays down the following as the knowledge required of a river pilot: "The character of the skill and knowledge required of a pilot in charge of a vessel on the rivers of the country is very different from that which enables a navigator to carry his vessel safely on the ocean. In this latter case a knowl- edge of the rules of navigation, with charts which disclose the places of hidden rocks, dangerous shores, or other dan- of the way, are the main elements of his knowledge 51 Guy v. Donald, 157 Fed. 527, S5 C. C. A. 291, 14 L. K. A. (N. S.) Till, t3 Ami. Cas. 947; Dora Allison m. C.) 21o Fed. 645. 52 21 Willi. 389, 22 I.. Ed. »',i!>; Harrison v. Hughes, 125 Fed. 8G0, 60 C. ('. A. 142. §§ 12-19) PILOTAGE 35 and skill, guided as he is in his course by the compass, by the reckoning and the observations of the heavenly bodies, obtained by the use of proper instruments. It is by these he determines his locality, and is made aware of the dan- gers of such locality, if any exist. But the pilot of a river steamer, like the harbor pilot, is selected for his personal knowledge of the topography through which he steers his vessel. In the long course of a thousand miles in one of these rivers he must be familiar with the appearance of the shore on each side of the river as he goes along. Its banks, towns, its landings, its houses and trees, and its openings between trees, are all landmarks by which he steers his vessel. The compass is of little use to him. He must know where the navigable channel is in its relation to all these ex- ternal objects, especially in the night. He must also be familiar with all dangers that are permanently located in the course of the river, as sand bars, snags, sunken rocks or trees, or abandoned vessels or barges. All this he must know and remember and avoid. To do this he must be con- stantly informed of changes in the current of the river, of sand bars newly made, of logs, or snags, or other objects newly presented, against which his vessel might be injur- ed. In the active life and changes made by the hand of man or the action of the elements in the path of his vessel, a year's absence from the scene impairs his capacity — his skilled knowledge — very seriously in the course of a long voyage. He should make a few of the first 'trips' as they are called, after his return, in company with other pilots more recently familiar with the river. "It may be said that this is exacting a very high order of ability in a pilot. But when we consider the value of the lives and property committed to their control — for in this they are absolute masters — the high compensation they receive, and the care which Congress has taken to secure by rigid and frequent examinations and renewal licenses this very class of skill, we do not think we fix the standard very high." 36 ADMIRALTY JURISDICTION (Ch. 2 In the Oceanic 53 the court says : "A licensed pilot, who undertakes to take a ship, with sails up, through a channel such as that leading over the bar of the St. Johns river, Fla., should know the channel, its depths, shoals, and the changes thereof, and should be charged with negligence if he fails to skillfully direct the course of the ship, and give proper supervision and direction to the navigation of the tug which is towing her." Relative Duties of Pilot and Master When a pilot comes aboard, it is often a difficult question to say what are his duties and those of the master in con- nection with the navigation. No ship is large enough for two captains. It may be said, in general, that the pilot has charge of the navigation, including the course to steer, the time, place, and method of anchorage, and, in general, the handling of the ship. The master must not interfere unless the pilot is plainly reckless or incompetent. Then he must take charge himself. In fact, in many cases the pilot is spoken of as the temporary master. On their rela- tive duties the Supreme Court says: 54 "Now, a pilot, so far as respects the navigation of the vessel in that part of the voyage which is his pilotage ground, is the temporary master, charged with the safety of the vessel and cargo, and of the lives of those on board, and intrusted with the command of the crew. He is not only one of the persons engaged in navigation, but he occupies a most important and responsible place among those thus engaged." 55 The master however may and should call the attention of 58 20 C. C. A. ."4. 74 Fed. G42. See, also, Saluda, Fed. Cas. No. 17,232; SIDERACUDI v. MAPES ID. C.) 3 Fed. S73; Com- pazine de Navigation Francaise v. Burley (D. C.) 1S3 Fed. 166; Burley v. Compagnie de Navigation Francaise, 104 Fed. 335, 115 C. C. A. 199. B*COOLEY v. BOARD OF WARDENS OF PORT OF PHILA- DELPHIA. 12 How. 316, 13 L. Ed. 1003. so See, also. Oregon, 15S U. S. 194. 195, 15 Sup. Ct. 804, 39 L. Ed. 94::; MARCELLUS, 1 Cliff. 481, Fed. Cas, No. ii,347. §§ 12-19) PILOTAGE 37 §the pilot to dangers which seem to have escaped the lat- ter's attention. 56 Liability of Vessel for Acts of Pilot In one respect the decisions in relation to pilots run ' counter to common-law ideas on the subject of agency. It is a principle of the law of agency that the foundation of the master's responsibility for the acts of his agent is the right of selection and control. Yet the American courts hold that a vessel is responsible to third parties for inju- ries arising from the negligence of the pilot, though he came on board against the will of the master, under a state statute of compulsory pilotage. 57 The English law was long different. But by Pilotage Act 1913, § 15, the ship is made liable, though in charge of a com- pulsory pilot.* A pilot law is not considered compulsory, if the only pen- alty imposed is the payment, of the pilotage fee. 58 The reason why the vessel is held liable is that admiral- ty looks on the vessel itself as a responsible thing, and that under the ancient laws relating to pilots the responsi- bility was one which attached to the vessel itself, irrespec- tive of ownership, it being thought unjust to require injur- ed third parties to look beyond the offending thing to ques- tions of ownership or control. 59 The rationale of the doctrine excludes the idea of any sg Homer Ramsdell Transp. Co. v. Compagnie Generate Trans- atlantique (C. C.) 63 Fed. S45 ; Tactician [1907] P. 244. 5 7 China, 7 Wall. 53, 19 L. Ed. 67; Indra Line v. Palmetto Phos- phate Co., 239 Fed. 94, 152 C. C. A. 144. ♦Marsden, Coll. (7th Ed.) p. 237; Carver, Carriage by Sea (6th Ed.) p. 43, § 30a. 5 8 Merrimae, 14 Wall. 199, 20 L. Ed. 873 ; Homer Ramsdell Transp. Co. v. La Compagnie Generate Transatlantique, 182 U. S. 406, 21 Sup. Ct. 831, 45 L. Ed. 1155. See, also, Dallington. [1903] P. 77. 59 Tucker v. Alexandroff, 183 U. S. 424, 22 Sup. Ct. 195, 46 L. Ed. 264. 38 ADMIRALTY JURISDICTION (Ch. 2 personal liability of the owners for the act of a compulsory pilot. 60 A pilot is liable to the vessel for any damage caused by carelessness or negligence. 61 Liability of Association for Acts of Individual Pilot Where state pilot laws prevail, it is usual for the pilots to organize into associations, frequently unincorporated. The question whether the association would be liable for the negligence of one of its members is a nice one. It would depend upon the character of the association. Some of them own no common property, keep no common fund, and the pilots take vessels in rotation, and each pilot takes the fee which he makes. Other associations own pilot boats in common, rent officers, own other property, keep a common fund, pay all expenses, pay all the separate fees collected from vessels into the common fund, and divide the balance remaining among the individual members. On principle it would seem that this ought to constitute a joint liability, and that the different members of such an as- sociation ought to be responsible for the acts of an indi- vidual pilot. It would seem that all the requisites that con- cur to make a joint liability would be present in such a case. In fact, it would hardly be putting the case too strongly to call it a partnership, provided the individuals composing the association have the right to decide who shall be members of the association. In Mason v. Ervine, 62 Judge Pardee, as circuit judge, held that the Louisiana Pilots' Association was not liable for the act of one of its members. This case rather turned so Homer Ramsdell Transp. Co. v. La Compagnie Generate Trans- atlantique, 182 U. S. 406, 21 Sup. Ct. S31, 45 L. Ed. 1155; Hathor (D. C.) 107 Fed. 194. oi SIDERACUDI v. MAPES (D. C.) 3 Fed. 873; Guy v. Donald, 157 Fed. 527, 85 C. C. A. 291, 14 L. R. A. (N. S.) 1114, 13 Ann. Cas. 947. 02 (O. C) 27 Fed. 459. §§ 12-19) PILOTAGE 39 upon the special language of the Louisiana Code, for the report itself does not show the provisions or character of their association. In any event, the question was not nec- essary for the decision of the case, as he held that the pilot himself was not guilty of any negligence, which of itself was sufficient to dispose of the case. In the City of Reading, 63 District Judge McPherson held that the Delaware River Pilots' Association was not re- sponsible for the negligence of one of its members. The report does not fully show the character of that associa- tion, but it would seem to be a mere association for benev- olent purposes, and that even the pilot fees were not paid into a common treasury. In Guy v. Donald 64 the Supreme Court decided that the Virginia Pilot Association is not such a partnership or joint adventure as rendered its in- dividual members liable for each other. The controlling consideration was the construction placed upon the Vir- ginia pilot laws to the effect that such laws did not give the members the delectus personse, nor the right of dis- charge or control. If such right exists, no reason is perceived why pilots cannot form a partnership or joint adventure, with its usual advantages and liabilities, as well as any one else. 65 Remedies for Pilotage A pilot may proceed in rem against the vessel for his fees, though they are merely for a tender of service which the vessel refuses to accept. 66 6 3 (D. C.) 103 Fed. 696, affirmed City of Dundee, 108 Fed. 679, 47 O. C. A. 5S1, as to nonliability of association, reserving question as to liability of sbip for act of pilot. See, also, Manchioneal, 243 Fed. SOI, 156 C. C. A. 313. 6 4 203 U. S. 399, 27 Sup. Ct. 63, 51 L. Ed. 245. es Jones v. Fell, 5 Fla. 510; Joseph Vaccaro (D. C.) 180 Fed. 272 (discussing the Guy v. Donald decision, 203 U. S. 399, 27 Sup. Ct 63, 51 L. Ed. 245). eeAlzena (D. C.) 14 Fed. 174; Queen, 206 Fed. 148, 124 O. C. A. 214. 40 ADMIRALTY JURISDICTION (Ch. 2 It seems clear on principle that admiralty has jurisdiction of suits against pilots for negligence. The English deci- sions, however, are against it. 67 But their decisions turn upon their special statutes, and upon doctrines not adopted by our courts. There are many such cases in our reports, though the question of jurisdiction was not raised in some of them. 68 On principle the jurisdiction is clear. It would be diffi- cult to find a transaction more maritime in character than the duties of a pilot. His right to proceed in rem is set- tled, and the right to proceed against him ought to be as maritime as his right to seize the vessel. As will be seen in a future connection, the test of a mar- itime tort is that it is a tort occurring on maritime waters. The act of a pilot in injuring a vessel by his negligence measures up to this test. Therefore there ought to be no question of the right to proceed against him in the admi- ralty. 67 Urania, 10 Wkly. Rep. 97: 1 Mar. Law Cas. (O. S.) 156; Alex- andria, L. R. 3 A. & E. 574; Flower v. Bradley, 44 L. J. Ex. 1; Queen v. Judge, [1892] 1 Q. B. 273. es See, as illustrations, SIDERACUDI v. MAPES (D. C.) 3 Fed. 873; WILSON v. PILOTS' ASS'N (D. C.) 55 Fed. 1900; Wilson v. Charleston Pilots' Ass'n (D. C) 57 Fed. 227; Strathleven S S. Co. v. Baulch, 244 Fed. 412, 157 C. C. A. 38. § 20) GENERAL AVERAGE AND MARINE INSURANCE 41 CHAPTER III OF GENERAL AVERAGE AND MARINE INSURANCE. 20. "General Average" Defined. 21. Requisites of General Average. 22. "Marine Insurance" Defined. 23. Maritime Character of Contracts. 24. Insurable Interest. 25. Conditions in Contracts of Insurance. 26. Misrepresentation and Concealment. 27. Seaworthiness. 28. Deviation. 29. Illegal Traffic. 30. The Policy and Its Provisions as to Risk and Perils Insured Against 31. Perils of the Seas. 32. Barratry. 33. Thefts. 34. All Other Perils. 35. Proximate Cause of Loss. 36. The Loss — Total or Partial. 37. Actual or Constructive. 38. Abandonment. 39. Agreed Valuation. 40. Subrogation of Insurer. 41. Suing and Laboring Clause. "GENERAL AVERAGE" DEFINED 20. General average contribution is a contribution by all the parties in a sea adventure to make good the loss sustained by one of their number on account of sac- rifices voluntarily made of part of the ship or cargo to save the residue and the lives of those on board from an impending peril, or for extraordinary ex- penses necessarily incurred by one or more of the 4:2 GENERAL AVERAGE AND MARINE INSURANCE (Ch. 3 parties for the general benefit of all the interests embarked in the enterprise. 1 Antiquity and N at lire This is one of the earliest known subjects of maritime law. It can be traced back through the Roman law to the Rhodian law, which prevailed before Lycurgus laid the foundations of Spartan, or Solon of Athenian, greatness. "Lege Rhodia cavetur ut si levandse navis gratia jactus mercium factus est, omnium contributione sarciatur quod pro omnibus datum est." If, in a storm, the ship must be lightened in order to save her and her contents, and a part of the cargo is thrown overboard for the purpose, the ship, her freight money, and the remaining cargo must contribute to indemnify the own- er of the goods sacrificed ; in other words, the ship and cargo are looked upon as a single maritime venture, and the loss is averaged on all. This instance of general average by the throwing of goods overboard, or by throwing over parts of the ship for the same purpose, like anchors, boats, masts, etc., is called "jettison." - But there are many other forms. Suppose, for example, a master, for the common safety of all interests, voluntarily strands his vessel. The salvage for getting her off would be a subject of general average, as also her value, in case she was not saved, but the cargo was saved. 3 The principle applies as among underwriters on a vessel not intended for cargo, as a tug, or a vessel in ballast. 4 Al- i Quoted from the STAR OF HOPE, 9 Wall. 203, 19 L. Ed. 638. See, also, the definition in the Jason, 225 U. S. 32, 32 Sup. Ct. 562, 56 L. Ed. 969. § 20. 2 Montgomery v. Insurance Co., [1901] P. D. 147; May v. Keystone Yellow Pine Co. (D. C.) 117 Fed. 2S7. 3 Columbian Ins. Co. v. Asliby, 13 Pet. 331, 10 L. Ed. 186. i So decided as to a tug by Judge Addison Brown of New York. acting as arbitrator in the matter of the Hercules, February 11, 1903. As to vessels in ballast or without cargo, see Greely v. Tremont § 20) "general average" defined 43 so among underwriters on different interests, where there is a common ownership of vessel and cargo. 5 Stranding Some of the closest questions in general average arise when the issue is whether the stranding is voluntary, which would be a case of general average, or involuntary, which would be a peril of the sea, to be borne by the party who suffers from it. A notable case on this subject is Barnard v. Adams, 6 where a ship that had broken from her moor- ings in a storm was stranded intentionally by the master in such a way that the cargo could be saved. The ground- ing was inevitable, but the master chose the best place that he could reach, instead of letting her drift. In the STAR OF HOPE, 7 fire was discovered upon a vessel, in consequence of which she made sail for the Bay of San Antonio, which was the easiest port to reach. On arrival there she waited some time for a pilot to guide her into the bay, but none came, and, the fire increasing, and destruction being inevitable if he remained outside, the mas- ter endeavored to take her in himself, having in his mind the risk of grounding in the attempt. In doing so she struck upon a reef accidentally. The court held that it was a case for general average, though he did not run her upon that special reef intentionally, as he purposely took the chance of grounding in making harbor, and by his act a large por- tion of the common venture was saved. On the other hand, in the Major William H. Tantum, 8 where the vessel grounded without the master's intending to do so, and in no better place than if he had not slipped Ins. Co., 9 Cush. (Mass.) 415 ; Potter v. Ocean Ins. Co., 3 Sumn. 27, Fed. Cas. No. 11,335; Steamship Carrisbrook Co. v. London, [1902] 2 K. B. 681. s Montgomery v. Indemnity Mutual Ins. Co., [1902] 1 K. B. 734. c 10 How. 270, 13 L. Ed. 417 ; Norwich & N. Y. Transp. Co. v. Insurance Co. of North America (D. C.) 118 Fed. 307 ; Id., 129 Fed. 100G, 64 C. C. A. 610. i 9 Wall. 203, 19 L. Ed. 638. s 1 C. C. A. 236, 49 Fed. 252. 44 GENERAL AVERAGE AND MARINE INSURANCE (Ch. 3 her cable, and with no benefit in the final result, it was held that general average could not be enforced. REQUISITES OF GENERAL AVERAGE 21. To give the right to a general average contribution, the sacrifice (a) Must be voluntary, and for the benefit of all. (b) Must be made by the master, or by his authority. (c) Must not be caused by any fault of the party asking the contribution. (d) Must be successful. . (e) Must be necessary. The Sacrifice must be Voluntary, and for the Benefit of All If a mast is carried away by a storm, that is a peril of the sea — one of the risks which the ship carries, and which she cannot ask any other interest to aid her in bearing. If, in consequence of a storm, and without negligence on the part of the ship or her crew, water reaches the cargo, and injures it, that must be borne by that part of the cargo alone which is injured. There is nothing voluntary about either of these cases. If a ship springs a leak at sea, and puts into port, and has to unload and afterwards reship the cargo, the expenses of repairing the leak must be borne by the ship, and cannot be charged as average. Such a charge would be for the benefit of the ship alone, not for the bene- fit of all. In such case the expense of handling the cargo would not come into the average under the English deci- sions, but would under the American. 9 Temporary repairs, of no lasting value to the shipowner, and enabling the vessel to complete her voyage, are a prop- er subject of general average. 10 •'STAR (>F HOPE, ;» Wall. I'd::, L9 L. Ed. 638; Hobson v. Lord, 92 D. s. ::'.»7, 23 1;. Ed. 613; Svensen v. Wallace, 10 A. ('. 104. io Shoe v. Craig . C.) 189 Fed. 227; Shoe v. George P. Craig & Co., I'.u Fed. 678, 115 C. C. A. 72; Congdoo on General Average, 119. § 21) REQUISITES OF GENERAL AVERAGE 45 On the same principle, flooding the compartments of a vessel, with the result of diminishing the damage to the cargo, may be the subject of general average. 11 In Anglo-Argentine Live Stock & Produce Agency v. Temperley Shipping Co., 12 there was a deck cargo of live stock to be carried from Buenos Ayres to Deptford under a contract which required that the ship should not call at any Brazilian port before landing her live stock, the reason be- ing that, if she did, the cattle could not be landed in the United Kingdom. After sailing, the ship sprang a leak, and the master, for the safety of all concerned, put back to Bahia. Consequently the cattle could not be landed in England, and had to be sold elsewhere at a loss. It was held that this loss was a proper subject of general average. In Iredale v. China Traders' Ins. Co., 13 a cargo of coal on a voyage from Cardiff to Esquimault became heated, so that the master had to put into a port of refuge, and land the coal. On landing a survey was held upon it, and it was found incapable of being reloaded, and hence was sold. Thereupon the voyage was abandoned, and the freight was lost. The freight underwriters claimed that under these circumstances freight should be the subject of general av- erage, but the court held otherwise, as the coal had really become worthless, not from any act of the master in going into port, but from internal causes, and therefore it was not a voluntary sacrifice. It must be Made by the Master, or by his Authority The powers of the captain are necessarily extended. His owners may be scattered, or inaccessible. He may not know who are the owners of the cargo. His voyage may 11 Wordsworth (D. C.) S8 Fed. 013. 12 [1899] 2 Q. B. 403. is [1S99] 2 Q. B. 356; Id., [1900] 2 Q. B. 515. See, also. Green- shields v. Stephens, [1908] A. C. 431 (allowed for damage caused by water to other cargo ; water having been used by master's consent in extinguishing the fire). 46 GENERAL AVERAGE AND MARINE INSURANCE (Ch. 3 extend around the globe, where communication is impossi- ble. Hence he has, ex necessitate rei, powers unknown to any other agent. He can bind the ship and owners for necessary funds to complete the voyage. He can often sell part of the cargo to raise funds for the same purpose. He can give bottomry or respondentia bonds with the same object. He must communicate with the parties interested, if reasonably practicable, 1 ' 4 but there is a strong presump- tion in favor of a discretion honestly exercised by him. 15 But he alone has such powers, and his right to incur a general average charge is limited to his own ship and her own cargo. In the J. P. Donaldson, 16 the master of a tug, which had a tow of barges, voluntarily cast them off in a storm to save his tug. The owners of the barges libeled the tug for an average contribution, the tug having been saved, and the barges lost. The court held that it was not a case for gen- eral average, as the barges did not occupy the relation to the tug which the cargo occupies to a ship, and the master of the tug did not hold to them the relation which the mas- ter of a ship holds to her cargo. In RALLI v. TROOP, 17 a ship which had caught on fire was scuttled by the municipal authorities of the port, and became a total loss; but it resulted in saving the cargo. The court held that the loss of the ship could not be charged against the cargo in general average, for the reason that it was the act of strangers, and not of the master. The learned opinion of Mr. Justice Gray may be specially rec- 14 Julia Blake, 107 U. S. 418, 2 Sup. Ct. 692. 27 L. Ed. 595; Shoe v. Craig (D. C.) 1S9 Fed. 227; Shoe v. George F. Craig & Co., 194 Fed. 679, 115 C. C. A. 72. 16W111COX Pecfe & Hughes v. American Smelting & Refining Co. (D. C.) 210 Fed. 89. ic 1G7 U. S. 599, 17 Sup. Ct. 951, 42 L. Ed. 292. it 157 U. S. 38G, 15 Sup. Ct. 657, 39 L. Ed. 742. See, also, Minne- apolis, St P. & S. S. S. Co. v. Manistee Transit Co. (D. C.) 156 Fed 424. § 21) REQUISITES OF GENERAL AVERAGE 47 ommended as an epitome of our law on the subject. He summarizes his conclusions thus : ''The law of general average is part of the maritime law, and not of the municipal law, and applies to maritime ad- ventures only. "To constitute a general average loss, there must be a voluntary sacrifice of part of a maritime venture, for the purpose, and with the effect, of saving the other parts of the adventure from an imminent peril impending over the whole. 'The interests so saved must be the sole object of the sacrifice, and those interests only can be required to con- tribute to the loss. The safety of property not included in the common adventure can neither be an object of the sac- rifice nor a ground of contribution. "As the sacrifice must be for the benefit of the common adventure, and of that adventure only, so it must be made by some one specially charged with the control and the safety of that adventure, and not be caused by the compul- sory act of others, whether private persons or public au- thorities. "The sacrifice, therefore, whether of ship or cargo, must be by the will or act of its owner, or of the master of the ship, or other person charged with the control and protec- tion of the common adventure, and representing and acting for all the interests included in that adventure, and those interests only. "A sacrifice of vessel or cargo by the act of a stranger to the adventure, although authorized by the municipal law to make the sacrifice for the protection of its own interests, or of those of the public, gives no right of contribution, either for or against those outside interests, or even as be- tween the parties to the common adventure. "The port authorities are strangers to the maritime ad- venture, and to all the interests included therein. They are in no sense the agents or representatives of the parties 48 GENERAL AVERAGE AND MARINE INSURANCE (Ch. 3 to that adventure, either by reason of any implied contract between those parties, or of any power conferred by law over the adventure as such. "They have no special authority or special duty in re- gard to the preservation or the destruction of any vessel and her cargo, as distinct from the general authority and the general duty appertaining to them as guardians of the port, and of all the property, on land or water, within their jurisdiction. "Their right and duty to preserve or destroy property, as necessity may demand, to prevent the spreading of a fire, is derived from the municipal law, and not from the law of the sea. "Their sole office and paramount duty, and, it must be presumed, their motive and purpose, in destroying ship or cargo in order to put out a fire, are not to save the rest of a single maritime adventure, or to benefit private individu- als engaged in that adventure, but to protect and preserve all the shipping and property in the port for the benefit of the public. "In the execution of this office, and in the performance of this duty, they act under their official responsibility to the public, and are not subject to be controlled by the owners of the adventure, or by the master of the vessel as their representative. "In fine, the destruction of the J. W. Parker by the act of the municipal authorities of the port of Calcutta was not a voluntary sacrifice of part of a maritime adventure for the safety of the rest of that adventure, made, according to the maritime law, by the owners of vessel or cargo, or by the master as the agent and representative of both. But it was a compulsory sacrifice, made by the paramount au- thority of public officers deriving their powers from the mu- nicipal law, and tin- municipal law only; and therefore nei- ther gave any right of action, or of contribution, against the owners of property benefited by the sacrifice, but not § 21) REQUISITES OF GENERAL AVERAGE 49 included in the maritime adventure, nor yet any right of contribution as between the owners of the different inter- ests included in that adventure." But, if the scuttling was done at the request of the mas- ter, the loss would be the subject of general average. 1 ' 8 It Mast Not be Caused by Any Fault 19 For instance, it is implied in all contracts of shipment that the vessel shall be seaworthy. 20 If a voluntary sacri- fice is rendered necessary by a breach of this warranty, the vessel so far from being entitled to recover in general av- erage, can be held liable for any injury to the cargo caused thereby. 21 Under the Harter Act, if she has exercised due diligence to make herself seaworthy, she is no longer liable to the cargo for negligent navigation, but in the absence of spe- cial agreement she cannot claim contribution in general average for an injury so occasioned. But since the passage of that statute she can claim such contribution if the right to the same is the subject of special stipulation. 22 A shipper, however, is not considered in fault, and there- by deprived of the right to contribution, when the peril is caused by a concealed defect in his shipment equally un- known to him and the shipowner. 23 Cargo carried on deck, of a character not customarily is Roanoke, S C. C. A. 67, 59 Fed. 161. ifllrrawaddy, 171 U. S. 187, IS Sup. Ct. S31. 43 L. Ed. 130; Tara- bochia v. American Sugar Refining Co. (D. C.) 135 Fed. 424. 20 Caledonia, 157 U. S. 124, 15 Sup. Ct. 537, 39 L. Ed. 644. zilrrawaddy, 171 U. S. 1S7, IS Sup. Ct. 831, 43 L. Ed. 130; Pacific Mail S. S. Co. v. X. Y. II. & R. Min. Co., 20 C. C. A. 349, 74 Fed. 564 ; Snow v. Perkins (D. C.) 39 Fed. 334. 22 Post, c. 8, p. 1S6; Jason, 225 U. S. 32, 32 Sup. Ct. 560, 56 L. Ed. 969; Ralli v. Societa Anonima de Xavigazione (D. C.) 222 Fed. 994. 23 Win. J. Quillan, ISO Fed. 6S1, 103 C. C. A. 647; Greenshields y. Stephens, [190S] A. C. 431. HuGnES,ADM.(2D En.) — 4 50 GENERAL AVERAGE AND MARINE INSURANCE (Ch. 3 carried there, cannot claim the benefit of a general average as against those not agreeing thereto. 24 It Must be Successful The foundation of the claim is that it is for the benefit of all. If they are not benefited thereby, there is no equita- ble claim upon them. 25 It Must be Necessary This almost goes without saying. The master is vested with a large discretion as to its necessity, and the courts are inclined to uphold that discretion. 28 Practice In practice, when a master has had a disaster, he comes into port for the purpose of repairs, and employs an aver- age adjuster to make up a statement, pick out such items as are properly chargeable in general average, and appor- tion them among the several interests. The master is en- titled to hold the cargo until this is done, or until its own- ers give average bonds conditioned to pay their respective proportions. If he does not do so, his owners are liable to the parties injured. 27 Remedies to Enforce Contribution At first there was some question whether admiralty had jurisdiction over suits to compel the payment of such pro- portion. But it is now settled that the master has a lien upon the cargo to enforce their payment, that such lien may be asserted in an admiralty court, and that suits on aver- age bonds are also sustainable in admiralty. 28 2*Hettie Ellis (C. C.) 20 Fed. 507; John H. Cannon (D. C.) 51 Fed. 46; Wood v. Phoenix Ins. Co. (D. C.) 1 Fed. 235; Id. (C. C.) 8 Fed. 27. 2BCongdon on General Average, 11. 2 6 Lawrence v. Minturn, 17 How. 100, 15 L. Ed. 58. This means that there must be, in the language of Ralli v. Troop, supra, "an imminent peril impending over the whole." it Santa Ana, 154 Fed. 800, S4 C. C. A. 312. ssDupont de Nemours v. Vance, 10 How. 1G2, 15 L. Ed. 584; §§ 22-23) "marine insurance" defined 51 "MARINE INSURANCE" DEFINED 22. Marine insurance is an insurance against risks connect- ed with navigation, to which a ship, cargo, freight, or other insurable interest in such property may be exposed during a certain voyage or a fixed pe- riod of time. 23. MARITIME CHARACTER OF CONTRACTS— Such contracts are cognizable in the admiralty, but are not so connected with the ship as to give a proceed- ing against the ship herself for unpaid premiums. Marine insurance is of great antiquity, and is recognized as within the jurisdiction of the admiralty courts by the leading continental courts and authorities. In America it was so held by Mr. Justice Story in the great case of DE LOVIO v. BOIT, 29 and was definitely settled by the de- cision of the Supreme Court in New England Mut. Ins. Co. v. Dunham. 30 But, while such contracts are maritime, the distinction heretofore drawn still prevails, as pre- liminary contracts for insurance, or suits to reform a policy not in accordance with the preliminary contract, are not maritime. 31 San Fernando (C. C.) 12 Fed. 341. On this general subject. See, also, 1 Pars. Shipp. & Adin. 338-478 ; Coast Wrecking Co. v. Phoenix Ins. Co. (C. C.) 13 Fed. 127 ; Ralli v. Societa Anonirna de Navigazione (D. C.) 222 Fed. 994. §§ 22-23. 20 Fed. Cas. No. 3,776. so li Wall. 1, 20 L. Ed. 90. In England the admiralty courts have no jurisdiction in such cases. Queen v. Judge (1S92) 1 Q. B. 273, 293.. The English act to codify the law relating to marine insurance, known as the Marine Insurance Act, 1906, so far from restoring such jurisdiction, provides that "the rules of the common law, including the law merchant, save in so far as they are inconsistent with the express provisions of this act, shall continue to apply to contracts of marine insurance." 3i Andrews v. Essex Fire & Marine Ins. Co., 3 Mason, 6, Fed. Cas. No. 374 ; Reliance Lumber Co. v. Rothschild (D. C.) 127 Fed. 745. 52 GENERAL AVERAGE AND MARINE INSURANCE (Ch. 3 Though insurance contracts are maritime, a claim for un- paid premiums can only be asserted against the party tak- ing out the insurance, and cannot be made the basis of a proceeding in rem against the vessel insured. 32 The reason of this is that insurance is for the benefit of the owner alone. It does not benefit the vessel as a vessel. It does not render her more competent to perform her voy- age, or aid her to fulfill the purpose of her creation." 3 INSURABLE INTEREST 24. Every person has an insurable interest who is inter- ested in a marine adventure. In particular, a person is interested in a marine adven- ture, where he stands in any legal or equitable re- lation to the adventure, or to any insurable prop- erty at risk therein, in consequence of which he may benefit by the safety or due arrival of insura- ble property, or may be prejudiced by its loss, or by the detention thereof, or by damage thereto, or may incur liability in respect thereof. This definition is taken from the English Marine Insur- ance Act, 1906. It does not necessarily mean that the in- sured must have an insurable interest at the time of effect- ing the policy. He must have it, however, at the time of the loss. For instance, it is frequently the case that vessels whose whereabouts are unknown may be insured "lost or not lost," and this insurance is valid though at the time it is effected it may turn out that the vessel has been totally lost. In HOOPER v. ROBINSON, 34 the court quotes with 32 Hope (D. C.) 49 Fed. 279; City of Camden, 147 Fed. S47. sspierouia (D. C.) 175 Fed. 639. § 24. 84 98 T T . S. r.L'.x. 25 L. Ed. 219. See, also. Woodside v. Can- ton Ins. Office (I). C) 84 Fed. 283; Canton Ins. Office v. Woodside 90 Fed. 301. 33 C. C. A. 63. § 24) INSURABLE INTEREST 53 approval a paragraph from A mould's Insurance, which says that the insurable interest subsisting during the risk and at the time of loss is sufficient, and the assured need not allege or prove that he was interested at the time of effecting the policy. The court also says that where the insurance is "lost or not lost" the thing insured may be irrecoverably lost when the contract is entered into, and yet the contract is valid, for it is a stipulation for indemnity against past as well as future losses, and the law upholds it. In the same case the court says : "A right of property in a thing is not always indispensable to the insurable in- terest. Injury from its loss or benefit from its preserva- tion to accrue to the assured may be sufficient, and a con- tingent interest thus arising" may be made the subject of a policy." In Buck v. Chesapeake Ins. Co. 35 the Supreme Court says that interest does not mean property. A contract of marine insurance, like other contracts of property insurance, is a contract of indemnity, and hence the party taking out the insurance can only claim indemni- ty for his actual loss, and cannot make a wager policy. An absolute title or property is not necessary for the validity of such insurance. For instance, in China Mut. Ins. Co. v. "Ward, 30 it was held that advances by a ship's husband, accompanied by no lien, but constituting a mere personal debt of the shipowner, were not such an interest as gave him an insurable interest. On the other hand, in the Gul- nare, 37 an agent who was operating a vessel on commission, with an actual pledge of the vessel as security, was held to have an insurable interest. In Merchants' Mut. Ins. Co. v. Baring, 33 it was held that 35 1 Pet. 151, 7 L. Ed. 90. ss S C. C. A. 229, 59 Fed. 712. See, also, Seagrave v. Insurance Co., Iy. R. 1 C. P. 305. 3T (C. C.) 42 Fed. S61. 3S20 Wall. 159, 22 L. Ed. 250. See, also, Fern Holme (D. C.) 46 54 GENERAL AVERAGE AND MARINE INSURANCE (Ch. 3 advances of money for the benefit of the ship which had attached to them a lien, marine or equitable, upon the ship for their repayment gave an insurable interest. A carrier has an insurable interest in goods under its control. 39 Double Insurance As it is possible thus to insure not simply the entire prop- erty, but different interests in the property, different par- ties may insure different interests in the same property without its constituting double insurance. In International Nav. Co. v. Insurance Co. of North America, 40 it was held that a policy on disbursements, which covered many subjects connected with the use of the ship as well as any interest in the ship not covered by in- surance (which was against total loss only), was not double insurance with the policy on the ship herself covering par- tial as well as total loss. The subject-matter of the insur- ance was different. In St. Paul Fire & Marine Ins. Co. v. Knickerbocker Steam Towage Co., 41 a marine policy permitting the tug to navigate certain waters provided that, while she was out of these waters, the policy should be suspended, and should reattach when she returned to such waters. The vessel, intending to go out of these waters, thereupon procured in- surance during such deviation. The court held that this was not double insurance, as the two policies necessarily did not overlap. The issue of the policy raises a presumption that the party insured has an insurable interest. 42 Fed. 119; Providence Washington Ins. Co. v\ Bowring, 50 Fed. 613, 1 C. C. A. 583. so Ursula Brighl S. S. Co., Ltd., v. Amsinck (D. C.) 115 Fed. 242; Munich Assur. Co. v. Dodwell, 128 Fed. 410, 63 C. C. A. 152. 40 (D. C.) 100 Fed. 30-1 ; Id., 108 Fed. 987, 48 C. C. A. 181. 4) 93 Fed. 931, 36 C. C. A. 19. 42 Nantes v. Thompson, 2 East, 386. §§ 25-26) CONDITIONS IN CONTRACTS OF INSURANCE 55 CONDITIONS IN CONTRACTS OF INSURANCE 25. CONTRACTS OF MARINE INSURANCE ARE SUBJECT TO CERTAIN CONDITIONS, ex- press or implied, a breach of which avoids the contract. 26. MISREPRESENTATION AND CONCEALMENT— Any misrepresentation or concealment of a ma- terial fact, or any breach of warranty of any fact, will avoid the policy. The law on the subject of representations in insurance policies may be said to be generally the same as in any oth- er contract. Any representation of a material fact, or a fact which would influence the judgment of a prudent un- derwriter, as to taking the risk or assessing the premium, must be substantially true, and every fact of this sort which is within the knowledge of the assured, and not in the knowledge of the underwriter, must be stated. The courts, perhaps, have been a little stricter in reference to marine in- surance policies than other contracts, on account of the pe- culiar nature of the business. In Hazard v. New England M. Ins. Co., 43 the vessel was represented as a coppered ship. She was then in the port of New York, and the party applying for the insurance wrote from there to Boston to get it. The expression had different meanings in New York and Boston. The court held that the New York meaning was to be taken. If the representation had not come up to that meaning, the policy would have been void. In the same case it was held that an underwriter is pre- sumed to know the usages of foreign ports to which insured vessels are destined ; also the usages of trade, and the political conditions of foreign nations ; and that, therefore, §§ 25-26. 4 3 s Pet. 557, 8 L. Ed. 1043. 56 GENERAL AVERAGE AND 3IARINE INSURANCE (Ch. 3 such matters of common knowledge as this need not be ex- pressly stated. In Buck v. Chesapeake Ins. Co., 44 which was a policy "for whom it might concern," the court held that it was not incumbent upon the party taking out the insurance to state who were interested in it, unless the question was asked, but the questions asked must be answered truthfully. SUN MUT. INS. CO. v. OCEAN INS. CO. 45 was a case where a company which had insured a vessel on certain voyages reinsured the risk in another company. They failed to state, in the information which they gave the sec- ond company, the existence of an important charter, of which they knew, and of which the second company did not know. The policy was held void. The court said : "It thus appears that at the time of the loss Melcher had insur- ance on two concurrent charters and his primage thereon during one voyage, being insured, besides his interest in the ship, on double the amount of its possible earnings of freight for one voyage. This fact was known to the Ocean Company at the time, and was not communicated by it to the Sun Company, which was without other knowledge upon the subject, and executed its policy to the Ocean Com- pany in ignorance of it. "That knowledge of the circumstance was material and important to the underwriter, as likely to influence his judgment in accepting the risk, we think is so manifest to common reason as to need no proof of usage or opinion among those engaged in the business. It was a flagrant case of overinsurance upon its face, and made it the pe- cuniar}- interest of the master in charge of the ship to fore- go and neglect the duty which he owed to all interested in her safety. Had it been known, it is reasonable to believe that a prudent underwriter would not have accepted the proposal as made, and, where the fact of the contract is in ** 1 Pet 151, 7 L. Ed. 90. *s 107 D. S. 485, 1 Sup. Ct. 582, 27 L. Ed. 337. §§ 25-26) CONDITIONS IN CONTRACTS OF INSURANCE 57 dispute, as here, it corroborates the denial of the appel- lants. The concealment, whether intentional or inadvert- ent, we have no hesitation in saying, avoids the policy, if actually intended to cover the risk for which the claim is made. "In respect to the duty of disclosing all material facts, the case of reinsurance does not differ from that of an orig- inal insurance. The obligation in both cases is one uber- rimas fidei. The duty of communication, indeed, is inde- pendent of the intention and is violated by .the fact of con- cealment, even where there is no design to deceive. The exaction of information in some instances may be greater in a case of reinsurance than as between the parties to an original insurance. In the former, the party seeking to shift the risk he has taken is bound to communicate his knowledge of the character of the original insured, where such information would be likely to influence the judgment of an underwriter; while in the latter the party, in the lan- guage of Bronson, J., in the case of New York Bowery Fire Ins. Co. v. Insurance Co., 17 Wend. (N. Y.) 359, 367, is 'not bound, nor could it be expected that he should speak evil of himself.' "Mr. Duer (2 Ins. 398, Lect. 13, pt. 1, § 13) states as a part of the rule the following proposition : " 'Sec. 13. The assured will not be allowed to protect him- self against the charge of an undue concealment by evi- dence that he had disclosed to the underwriters, in general terms, the information that he possessed. Where his own information is specific, it must be communicated in the terms in which it was received. General terms may in- clude the truth, but may fail to convey it with its proper force, and in all its extent. Nor will the assured be per- mitted to urge, as an excuse for his omission to communi- cate material facts, that they were actually known to the underwriters, unless it appears that their knowledge was as particular and full as his own information. It is the 58 GENEKAL AVERAGE AND MARINE INSURANCE (Ch. 3 duty of the assured to place the underwriter in the same situation as himself; to give to him the same means and opportunity of judging of the value of the risks ; and, when any circumstance is withheld, however slight and imma- terial it mav have seemed to himself, that, if disclosed, would probably have influenced the terms of the insurance, the concealment vitiates the policy.' " 4G If the insurance is placed through a distant agent igno- rant of a material fact which is known to the principal, it is the duty of the latter to communicate it to the agent if possible; and his failure to do so would avoid the policy. 47 In England it is the practice to have a preliminary bind- er before the issuing of the main policy, and the initialing of this by the parties is treated by them as morally bind- ing, although unenforceable as a contract for want of a stamp. In Cory v. Patton, 48 after this preliminary contract was made, but before the policy was issued, certain material facts came to the knowledge of the agent of the insured; the fact so coming to his knowledge being the very ma- terial one that the ship had been lost. The court held, however, that it was not incumbent upon the insured to communicate this fact, though the preliminary contract was not binding, and the policy had not been 'issued, be- cause he had given all the material facts up to the time of the preliminary contract, and they would not tempt the un- 46 See, also, Northwestern S. S. Co. v. Maritime Ins. Co. (C. C.) 161 Fed. 166. Granger v. Providence Washington Ins. Co., 200 Fed. 730, 119 C. C. A. 174. The English Marine Insurance Act, 190G, is an accurate summary of the law as to disclosure and representations. See sections 17-20. See Gow, Mar. Ins. p. 392, and Winter, Mar. Ins. p. 3S7, for the full text of this act. 47 McLanahan v. Universal Ins. Co., 1 Pet. 171, 7 L. Ed. 98; Kerr v. Union Marine Ins. Co., 130 Fed. 415, 64 C, C. A. 617. 48 L R. 9 Q. B. 577. Merchants' Mat. Ins. Co. v. Lyman, 15 Wall. 664, 21 L. Ed. 246, can hardly be considered in conflict with this. § 27 CONDITIONS IN CONTRACTS OF INSURANCE 59 derwriter to repudiate an obligation treated as a moral one by those in the business. A leading case on this general subject is IONIDES v. PENDER. 40 There the assured greatly overvalued the goods without disclosing the real valuation to the under- writer, and it was shown that the question of valuation is, among underwriters, a very material consideration. The court held that this misrepresentation vitiated the policy. The general doctrine that a warranty, even of an imma- terial matter, if broken, avoids the policy, is well settled. 60 SAME— SEAWORTHINESS 27. It is an implied condition of marine insurance on ves- sel, cargo, or freight that the vessel shall be sea- worthy, which means that she must be sufficient- ly tight, stanch, and strong to resist the ordinary attacks of wind and sea during the voyage for which she is insured, and that she must be prop- erly manned and equipped for the voyage. The Marine Insurance Act, 1906, expresses this pithily as follows : "A ship is deemed to be seaworthy when she is reasona- bly fit in all respects to encounter the ordinary perils of the seas of the adventure insured." 51 Seaworthiness is, necessarily, a variable term. A vessel which is seaworthy for river navigation may not be for bay navigation, and a vessel which is seaworthy for bay navigation may not be for ocean navigation. Hence the seaworthiness implied means seaworthiness for the voyage insured. It applies not only to the hull of the vessel, but to *9 L. R. 9 Q. b. 531. so l Pars. Ins. 337; Snyder v. Home Ins. Co. (D. C.) 133 Fed. 848; Id., 148 Fed. 1021, 79 C. C. A. 536. § 27. si Section 39, cl. (4). 60 GENEEAL AVEEAGE AND MARINE INSURANCE (Ch. 3 her outfit, including her crew. She must be properly fitted out for the voyage which she is to undertake, and she must have a sufficient and competent crew. In Pope v. Swiss Lloyd Ins. Co., 52 it was held that a vessel with insufficient ground tackle to hold her against or- dinary incidents of navigation, including ordinarily heavy weather, was not seaworthy. In RICHELIEU & O. NAV. CO. v. BOSTON MA- RINE IXS. CO./' 3 it was held that a vessel whose compass was defective, though not known to be so, was unseawor- thy ; for it is implied not merely that the vessel owner will use ordinary care to keep his vessel seaworthy, but that she actually is seaworthy. In the case of steamers, seaworthiness implies sufficient fuel for the voyage. 54 In the Niagara 55 (which was a suit by a shipper, not an insurance case, but which applies on this point) the court -ays: "A carrier's first duty, and one that is implied by law, when he is engaged in transporting goods by water, is to provide a seaworthy vessel, tight and stanch, and well furnished with suitable tackle, sails, or motive power, as the case may be, and furniture necessary for the voyage. She must also be provided with a crew, adequate in num- ber, and sufficient and competent for the voyage, with refer- 52 iD. C.) 4 Fed. 153. " 13G U. S. 408, 10 Sup. Ct. 934, 34 L. Ed. 39S. B4McIver v. Tate Steamers, Ltd., [1903] 1 K. B. 3G2; Greenock S. S. Co. v. .Maritime Ins. Co., [1903] 1 K. B. 3G7 ; [1903J 2 K. B. 657. But fodder for a cargo of cuttle is not an appurtenance of the ves- sel, so as to render her unseaworthy, if not fit for the cattle. Of course such unfitness may be a violation of some special agreement. Tweedie Trading Co. v. Western Assur. Co., 179 Fed. 103, 102 C. < '. A. 397. 21 How. 7, 16 L. Ed. 41. See. als... Whealton Tacking Co. v. .Etna Ins. C.,.. L85 Fed. 1<>s. 107 C. C. A. 113. 34 L. R. A. (N. S.i 563; Forshaw v. Chabut, :: Br. & B. 158 (7 E. C. L.); Clifford \ Hunter, 3 < \ A: P. It; H 1 G. C. L.). § 27) CONDITIONS IN CONTRACTS OF INSURANCE CI ence to its length and other particulars, and with a compe- tent and skillful master, of sound judgment and discretion; and, in general, especially in steamships and vessels of the larger size, with some person of sufficient ability and ex- perience to supply his place, temporarily, at least, in case of his sickness or physical disqualification. Owners must see to it that the master is qualified for his situation, as they are, in general, in respect to goods transported for hire, re- sponsible for his acts and negligence." In STEEL v. STATE LINE S. S. CO., 56 Lord Cairns defines seaworthiness as follows : "I think there cannot be any reasonable doubt enter- tained that this is a contract which not merely engages the shipowner to deliver the goods in the condition mentioned, but that it also contains in it a representation and an en- gagement — a contract — by the shipowner that the ship on which the wheat is placed is, at the time of its departure, reasonably fit for accomplishing the service which the ship- owner engages to perform. Reasonably fit to accomplish that service the ship cannot be unless it is seaworthy. By 'seaworthy,' my lords, I do not desire to point to any tech- nical meaning of the term, but to express that the ship should be in a condition to encounter whatever perils of the sea a ship of that kind, and laden in that way, may be fair- ly expected to encounter in crossing the Atlantic. * * * "But, my lords, if that is so, it must be from this, and only from this, that in a contract of this kind there is im- plied an engagement that the ship shall be reasonably fit for performing the service which she undertakes. In prin- ciple, I think there can be no doubt that this would be the meaning of the contract ; but it appears to me that the question is really concluded by authority. It is sufficient to refer to the case of Lyon v. Mells, 5 , 7 in the court of 6 6 3 A. C. 72, 76, 77. See, also, Bullard v. Roger Williams Ins. Co., 1 Curt. 148, Fed. Cas. No. 2,122. 67 5 East, 42S. 62 GENERAL AVERAGE AND MARINE INSURANCE (Ch. 3 queen's bench during the time of Lord Ellenborough, and to the very strong and extremely well considered expres- sion of the law which fell from the late Lord Wensleydale when he was a judge of the court of exchequer, and was advising your lordship's house in the case of Gibson v. Small." 5S As a general rule, the burden of proving unseaworthiness is on the underwriter. 59 But where a vessel which has been exposed to no unusual peril suddenly develops a leak within a short time, this may raise a presumption of unseaworthiness. 60 In reference to this Judge Curtis says : "But, as I have already indicated, the presumption is that this brig was seaworthy, and the burden of proof is on the underwriters by some sufficient evidence to remove this presumption. This may be done either by proving the existence of defects amounting to unseaworthiness before she sailed, or that she broke down during the voyage, not having encountered any extraordinary action of the winds or waves, or any other peril of the sea sufficient to produce such effect upon a seaworthy vessel, or by showing that an examination during the voyage disclosed such a state of decay and weakness as amounted to unseaworthiness, for which the lapse of time and the occurrences of the voyage would not account. * * * "There is such a standard, necessarily expressed in gen- eral terms, but capable of being applied, by an intelligent jury, to the proofs in the cause. The hull of the vessel 58 4 II. L. Cas. 353. 59 Nome Bench Lighterage & Transp. Co. v. Munich Assur. Co. (C. C.) 123 Fed. S20; Fireman's Fund Ins. Co. v. Globe Nav. Co., 236 Fed. 618, 149 C. C. A. 614 ; Pickup v. Insurance Co., 3 Q. B. D. 594. ooBullard v. Roger Williams Ids. Co., 1 Curt 148, Fed. Cas. No. 2,122. See, also, Moores v. Underwriters (C. C.) 14 Fed. 226; Batchelder v. Insurance Co. % of North America (D. C.) 30 Fed. 459; Work v. Leathers, 07 U. S. 379, 24 L. Ed. 1012; Ajum v. Insurance Co., [10011 A. C. 3G2. § 27) CONDITIONS IN CONTRACTS OF INSURANCE 63 must be so tight, stanch, and strong- as to be competent to resist the ordinary attacks of wind and sea during the voyage for which she is insured." This warranty of seaworthiness applies at the commence- ment of the voyage. A vessel may be in port, and require extensive repairs, but, if these repairs are made before she sails, so as to make her seaworthy at sailing, she fulfills what is required of her. 61 ' This condition always applies to insurance under voyage policies. As to time policies, there is quite a difference be- tween English and American decisions. Under the Ameri- can decisions a vessel, when insured by a time policy, must be seaworthy at the commencement of the risk. If, when so seaworthy, she sustains damage, and is not refitted at an intermediate port, and a prudent master would have refitted her there, and she is lost in consequence of the failure to refit her, she would be unseaworthy, and the underwriter would not be liable. If, however, she is not refitted, and is lost from a different cause, the underwriters would be lia- ble, though a prudent master would have had her refitted. 62 In England, on the other hand, there is no warranty of seaworthiness on time policies, either at the commencement of the voyage or at any other time. 63 ei'McLanahan v. Universal Ins. Co., 1 Pet. 171, 184, 7 L. Ed. 9S ; St. Paul Fire & Marine Ins. Co. v. Pacific Cold Storage Co., 157 Fed. 625, 87 C. C. A. 14, 14 L. R. A. (N. S.) 1161 ; Stetson v. Insurance Co. of North America (D. C.) 215 Fed. 186. But such a warranty does not apply to lighters employed to land the cargo. Pacific Creosot- ing Co. v. Thames & Mersey Marine Ins. Co., Ltd. (D. C.) 210 Fed. 958; Thames & Mersey Marine Ins. Co. v. Pacific Creosoting Co., 223 Fed. 561, 139 C. C. A. 101. es Union Ins. Co. v. Smith, 124 U. S. 405, 8 Sup. Ct. 534, 31 L. Ed. 497; Cleveland & B. Transit Co. v. Insurance Co. of North America (D. C.) 115 Fed. 431 (discussing the Inchmaree clause, which is intended to cover latent defects in machinery or hull not due to want of due diligence by owners) ; Luckenbach v. W. J. McCahan Sugar Refining Co., 24S U. S. 139, 39 Sup. Ct. 53, 63 L. Ed. 170, 1 A. L. R. 1522. es Dudgeon v. Pembroke, 2 A. C. 284. Section 36, el. 5, of the 64 GENERAL AVERAGE AND MARINE INSURANCE (Ch. 3 This condition only applies to the vessel. There is no implied condition that the cargo shall be fitted to with- stand the voyage for which it is insured. 04 SAME— DEVIATION 28. It is an implied condition of a voyage policy that the vessel will take the course of sailing fixed by com- mercial custom between two ports, or, if none is fixed, that it will take the course which a master of ordinary skill would adopt. Any departure from such course, or any unreasonable delay in pursuing the voyage, constitutes what is known as a "deviation." The reason is that such an act on the part of the vessel substitutes a new risk different from the one which the un- derwriters have assumed, and. after such deviation com- mences, the insurers are not liable for any loss incurred dur- ing the deviation. The cases on this subject are numerous. Whether an act is a deviation depends largely upon the particular language of the policy and the course of trade. In HEARNE v. NEW ENGLAND MUT. MARINE INS. CO., 65 a vessel was insured to a port in Cuba, and at and thence to a port of advice and discharge in Europe. The vessel went to the port in Cuba, and discharged, and then, instead of sailing direct to Europe, sailed for another port in Cuba to reload, and was lost on her way there. The court held that this constituted a deviation, and released Marine Insurance Act 1906, provides: "In a time policy there is no implied warranty that the ship shall be seaworthy at any stage Of the adventure, but where, with the privity of the assured, the ship is sent to sea in an unseaworthy state, the insurer is not liable for any loss attributable to unseaworthiness." a*Koebe] v. Saunders, 17 C. B. N. S. (112 E. C. L.) 71; 141 Re- print, 29. § 28. ™20 Wall. 488, 22 L. Ed. 395. § 28) CONDITIONS IN CONTRACTS OF INSURANCE 65 the underwriters, and that, in the face of the express lan- guage of the contract, it was not admissible to prove a us- age in such voyages to go to two ports in Cuba, one for dis- charge and another for reloading. In Columbian Ins. Co. v. Catlett, 06 which was the case of a voyage policy from Alexandria to the West Indies and back, it was held that, as the known usage of the trade al- lowed delay to accomplish the object of the voyage by sell- ing out the cargo, it was not a deviation to remain for that purpose, provided the time so occupied was not unreason- able. In Wood v. Pleasants, 67 it was held that a stoppage on the way for the purpose of taking on water, and only for that purpose, was not a deviation, assuming that the ves- sel had a proper supply at the time of sailing. In West v. Columbian Ins. Co., 68 a vessel insured on a voyage to Pernambuco unnecessarily anchored off port, when she might have gone directly in. It was held that this delay was such a deviation as discharged the under- writers. Under the decisions, it is not a deviation for a vessel to delay, or go out of her way, in order to save life at sea, but would be for the purpose of saving property. Under the special facts of special cases this principle is sometimes difficult to apply ; for a vessel in deviating to save life can sometimes best accomplish it by saving property, as, for instance, by taking a disabled vessel in tow. But when, after doing so, the facts are such that the lives can be saved without the property, a continued attempt to save the prop- erty is a deviation. 6 6 12 Wheat. 383, 6 L. Ed. 664. 6 7 Fed. Cas. No. 17,961, 3 Wash. C. C. 201. es Fed. Cas. No. 17,421, 5 Cranch, C. C. 309. See, also, Martin v. Delaware Ins. Co., Fed. Cas. No. 9,161, 2 Wash. C. C. 254. Hughes.Adm. (2d Ed.) — 5 66 GENERAL AYEEAGE AND MARINE INSURANCE (Ch. 3 A leading case is SCARAMANGA v. STAMP. 69 It was a case arising out of a charter party (in which there is also an implied warranty not to deviate), where a disabled ves- sel was taken in tow, causing considerable delay to the oth- er vessel. The court held, under the facts, that the delay was unjustifiable. On the other hand, in Crocker v. Jackson, 70 Judge Sprague held that a departure of the vessel from her course in order to ascertain whether those on board a vessel in apparent distress needed relief, and the delay in order to offer such relief, was not a deviation, though such action for the mere purpose of saving property would be. He held, also, that, if both motives existed, it would not be a deviation, and that, if the circumstances were not decisive, or were ambiguous, as to the motives of the master of the salving vessel, the court would give him the benefit of the doubt. Distinction between Deviation and Change of Voyage It is important to bear in mind the distinction between a deviation and an entire change of voyage. As to the former, a mere intention formed to deviate does not avoid the policy until that point is reached where the act of deviating com- mences. Up to that point the policy is still in force. On the other hand, a change of voyage avoids the policy ab initio, because that substitutes a different risk from the one on which the underwriter has made his calculations. The test as between the two is that, as long as the ter- mini remain the same, and the master, on leaving, intends to go to the terminus named, and then goes out of his way, or is guilty of an unreasonable delay, it is a deviation; but, if the terminus is changed, then it is a change of voyage. This is illustrated by Marine Ins. Co. of Alexandria v, co 4 ('. i>. D. 316; Id.. 5 C. P. D. 295. 7(» i Spr. in. Fed. Cas. No. ::.::9s. § 29) CONDITIONS IN CONTRACTS OF INSURANCE 67 Tucker. 71 There, a vessel was insured at and from King- ston, Jamaica, to Alexandria. The captain, at Kingston, took on a cargo for Baltimore, intending to go to Balti- more, and then to Alexandria. His ship was captured be- fore reaching the Capes. The court held that this was merely an intended deviation, as the actual deviation would not have commenced until he had gone inside of the Capes to the parting of the ways for the two ports, and that, as no man could be punished for a mere intention, the under- writers were liable. In such case, had he intended to go to Baltimore alone, and not to Alexandria (the terminus nam- ed in the policy) at all, it would have been a change of voyage, and his policy would have been void at once. SAME— ILLEGAL TRAFFIC 29. It is an implied condition that a vessel shall not engage in illegal trade. This is but another phase of the principle that a contract tainted with illegality is void. Hence any trade which con- templates dealing with an alien enemy, or a violation of the revenue laws of the country whose law governs the policy, renders the contract void. 72 Care must be taken to remember the difference between the effect of illegal trade known to the parties and its effect when unknown. Even when equally known to both par- ties, the contract is void, because the court will not lend its aid to enforce such contracts. On the other hand, such a voyage known to one party and unknown to the other is void on a different principle, namely, that the failure of the insured to give the underwriter information of the charac- ter of the trade avoids the policy on the ground of misrep- resentation or concealment. 7i 3 Cranch, 357, 2 L. Ed. 466. § 29. 72 Jansen v. Mines Co., [1902] A. C. 484. 08 GENERAL AVERAGE AND MARINE INSURANCE (Ch. 3 An interesting case on this subject is the decision of Mr. Justice Story in ANDREWS v. ESSEX FIRE & MARINE INS. CO. 73 There insurance had been effected on the car- go to proceed to Kingston, Jamaica, and, if not allowed to sell there, then to Cuba. It was known to both parties that the British government forbade American vessels carrying such cargoes there, but both parties thought that the pro- hibition might be removed by the time the vessel landed. The court held that the knowledge of the underwriters that the trade was illicit did not make them assume that risk, and that it was a risk not covered by the policy. In Clark v. Protection Ins. Co., 74 which also was a deci- sion of Mr. Justice Story, when the ship arrived at the port of New Orleans the master took on board a chain cable, which had been bought at his request in Nova Scotia, brought there on another ship, and smuggled on board his vessel. After this she sailed from the port of New Or- leans, and was lost. The underwriters contended that this act vitiated the entire insurance. The court held, however, that, as the insurance was originally valid, any subsequent illegality in the voyage did not affect the insurance as to property not tainted with the illegality, although no re- covery could be had for the special property which was so tainted. In Craig v. United States Ins. Co., 75 an American during the war between the United States and England took out a British license. Mr. Justice Washington held that, as this was an illegal voyage throughout, there could be no rem- edy upon an insurance policy covering it. Calbreath v. Gracy 7i involved a somewhat similar ques- 733 Mason, 6, Fed. Cas. No. 374. 7* 1 Story. 109, Fed. Cas. No. 2,832. Here the penalty of for- feiture Imposed by the revenue law for smuggling was upon the vessel bringing the cable, not upon the vessel receiving it. 75 Fed. Cas. No. 3,340, Pet. C. C. 410. 7c 1 Wash. C. C. 219, Fed. Cas. No. 2,290. Bee, also, Schwartz v. 29) CONDITIONS IN CONTRACTS OF INSURANCE 69 tion, though the warranty in that case was express, and not implied. The warranty was of neutrality, the vessel and cargo being warranted as American, but during the voyage she was documented as Spanish, and while so doc- umented was captured by a foreign privateer, and after- wards recaptured by a British privateer. The court held that the warranty that the vessel was American implied a warranty that there should be the necessary documents to show it, and that the act of the insured in having their ves- sel documented as Spanish defeated their right of recovery. Violation of Revenue Laws of Another Country It is a principle of English law that the English courts pay no attention to the revenue laws of another country; and therefore it is not illegal per se to endeavor to smuggle goods into another country. As such an act would increase the risk, failure to tell the underwriter, at the time of ef- fecting the insurance, that it was contemplated, would be a concealment, and avoid the policy on that ground. But, if both the underwriter and insured knew that such action was contemplated, the policy would be valid, although un- der exactly similar circumstances an attempt to smuggle into England would be an illegal contract, and avoid the policy. Mr. Parsons, in his work on Marine Insurance, 77 states this as a general principle of insurance law, equally apply- ing to this country, and cites some American decisions to sustain him. One of these is the decision of Mr. Justice Story in Andrews v. Essex Fire & Marine Ins. Co., above referred to; and certainly in that opinion the justice seems to assume that the underwriters would be bound if they knew that illegal trade with a port of a foreign country was Insurance Co. of North America, 3 Wash. C. C. 117, .Fed. Cas. No. 12,504. 77 i Pars. Mar. Ins. p. 34. In Gow, Mar. Ins. (London, 1913) 269, this doctrine is characterized as a "slight obliquity of vision, or a temporary blindness of justice." 70 GENERAL AVERAGE AND MARINE INSURANCE (Ch. 3 contemplated. The decision cannot be considered as abso- lutely in point, as the underwriters were held not liable on another ground. Insurance on vessels or goods engaged in blockade run- ning is not illegal. Such a business is not criminal, or im- moral, or against public policy. It only affects the bellig- erent who has established the blockade. Neutrals may run it if they can, and their only risk is of being caught. A ves- sel cannot be seized on a subsequent voyage for such an act, which shows that there is nothing immoral about it. Accordingly such insurance is common. 78 But it is criminal to violate the revenue laws of anoth- er country, if made so by those laws ; and such violation should be against public policy in any country, and render a contract based upon such act void, even as between the parties. In Oscanyan v. Winchester Arms Co., 79 a Turkish con- sul living in this country made a contract with the Win- chester Arms Company by which he was to receive a com- mission on all the arms of that company which he influ- enced his government to buy. When he sued for such com- missions, the Supreme Court decided that the contract was void as against public policy, and not enforceable. It was urged upon the court that, while such contracts were void under our law, they were quite the proper thing under Turkish law, and that it was a recognized right of Turkish officials to serve their government in that way. The Su- preme Court, however, repudiated the argument, and held that it was a question regarding our own citizens, and that, if such transactions might have the effect of demoral- izing them, it would not enforce any rights based upon them. This decision, though not exactly in point on the question above discussed, would, at least, indicate a pos- 78 Maritime Ins. Co., Ltd., v. M. S. Dollar S. S. Co., 177 Fed. 127, Kilt ('. C. A. 547. Gow, Mar. Ins. 270. ™ 103 U. S. 261, 26 L. K<1. 539. § 30) PROVISIONS AS TO RISK AND PERILS 71 sibility that the Supreme Court would think it just as illegal to defraud a foreign government by smuggling as by giving commissions on arms purchased for it. THE POLICY AND ITS PROVISIONS AS TO RISK AND PERILS INSURED AGAINST 30. The written contract of insurance is called a "policy." The better opinion is that the word "policy" is from the Latin "polliceor" — "I promise." The forms of policies .vary. The most common is the English form, which has been in use for a long time, and the American forms in use in Boston and New York. These vary materially in their general provisions, and, of course, the stipulations in them are varied to suit the special circumstances. The English form will be found in appendix No. 1 of Park on Insurance. It has been frequently criticised by the courts as ambiguous and inartificial, but its various provi- sions have now been so generally construed that it is well understood. 80 A good example of the American form will be found in SUN MUT. INS. CO. v. OCEAN INS. CO. 81 This was a reinsurance policy on goods, but the important clauses commonly in use will be found embodied in it. Of the Beginning and End of the Risk The clause in the English form bearing upon this is word- ed as follows: "Beginning the adventure upon the said goods and merchandise from the loading thereof aboard the said ship * * * upon the said ship," etc., "and so shall continue and endure during her abode there, upon the said ship," etc. "And, further, until the said ship, with all her ordnance, tackle, apparel," etc., "and goods and mer- § 30. s0 The common or "stem" form of the English Lloyds is given in full in Gow on Marine Insurance, 29. si 107 U. S. 485, 1 Sup. Ct. 5S2, 27 L. Ed. 337. 72 GENERAL AVERAGE AND MARINE INSURANCE (Ch. 3 chandise whatsoever shall be arrived at upon the said ship," etc., "until she hath moored at anchor twenty- four hours, in good safety ; and upon the goods and mer- chandises, until the same.be there discharged and safely landed." The American policy above referred to expresses all this more simply, as follows : "Beginning the adventure upon the said goods and merchandise from and immediately fol- lowing the loading thereof on board of the said vessel at ■ aforesaid, and so shall continue and endure until the said goods and merchandise shall be safely landed at aforesaid." In filling- up the blank indicating the voyage, the initial point is frequently described as "at and from • to ." The meaning of these words varies according to circumstances. They cover injuries received in the initial port in the ordinary course of preparing for the voyage, provided the delay is not unreasonable. For instance, the LJSCARD 82 was a case of insurance on a cargo of wheat "at and from New York," and bound for Lisbon. After the loading of the vessel, the signing of her bills of lading, and other preparations to leave port, the vessel cast off her lines for the purpose of starting, but, on account of some trifling derangement of her engines, again made fast to her wharf. While lying there she was run into by a barge. She was surveyed, pronounced seaworthy, and started, meeting very heavy weather, which caused water to damage the wheat. The court held that the policy had attached at the time of this collision. In Haughton v. Empire Marine Ins. Co. 83 a vessel while 82 (D. C.) 56 Fed. 44; London Assurance v. Coinpanhia De Moagens Do Barreiro, 15 C. C. A. 379, 68 Fed. 247; Id., 167 U. S. 1 19, 17 Sup. ( ft 785, 42 L. Ed. 113. As to the meaning of "breaking ground," see 1 Pars. Mar. Ins. ?>~u el seq.; 2 Pars. Mar. Ins. 48, 49. Ill the Gracie D. Chambers, 253 Fed. L82, 184, 165 C. C. A. 82. Judge Ward says that a ship had broken ground "if she had sailed a mile." 83 L. K. 1 Ex. 206. § 30) PROVISIONS AS TO RISK AND PERILS 73 at sea was insured "lost or not lost, at and from Havana to Greenock." In entering the harbor of Havana she ground- ed, and received damage. The court held that under such circumstances the words were used in a geographical sense, the ship being in the geographical limits of the harbor of Havana in the sense of the policy, and that, therefore, the policy had attached. In this case the injury was received from the anchor of another ship in the harbor after her ar- rival within its limits. Seamans v. Loring 84 was a decision of Mr. Justice Story. In reference to the meaning of these words he says : "The next question is, at what time, if ever, did the policy at- tach? The insurance is 'at and from,' etc. What is the true construction of these words in policies must, in some measure, depend upon the state of things and the situation of the parties at the time of underwriting the policy. If at that time the vessel is abroad in a foreign port, or expected to arrive at such port in the course of the voyage, the policy, by the word 'at,' will attach upon the vessel and cargo from the time of her arrival at such port. If, on the other hand, the vessel has been at no time in such port without refer- ence to any particular voyage, the policy will attach only from the time that preparations are begun to be made with reference to the voyage insured." In this case there was an unreasonable delay in sailing, and he instructed the jury that such an unreasonable and unnecessary delay prevented the policy from attaching during this preparation, and that the policy did not attach until the vessel began her prep- arations for the voyage insured. As to the question when the voyage terminates, the courts have held that it lasts, under the language of the policy, until she has been moored twenty- four, hours in good safety, and that a vessel which arrives as a wreck incapa- ble of repair, and is lost in the port of final destination un- der such circumstances, even after being moored, has never s* 1 Mason, 127, Fed. Cas. No. 12.5S3. 74 GENERAL AVERAGE AND MARINE INSURANCE (Ch. 3 arrived "in good safety," in the meaning of this clause, and that, therefore, the underwriters are liable. 85 An interesting case on the meaning of these words "in good safety" is LIDGETT v. SECRETAN. 86 There the ship Charlemagne insured from London to Calcutta, with this clause in the policy, sustained considerable damage at sea, so as to require constant pumping, but still not so seri- ous as to make her an absolute wreck. She arrived at Cal- cutta in this condition on October 28, 1866. After unload- ing she was taken on November 12th to a dry dock for sur- vey and repairs, and was destroyed by accidental fire on De- cember 5th. The court held that, as she had arrived, and been moored for twenty-four hours in good safety as a ship, and not as a mere wreck, the risk had terminated, and the underwriters were liable for the loss incurred before entering the port, but not for the fire which had happened after such anchoring. The anchoring must be at the place of final discharge. Coming to anchor in port with the intention of entering the dock afterwards is not a final mooring in the sense of this clause. 87 The Perils Insured Against The ordinary language in an English policy enumerating the perils is as follows : "Touching the adventures and perils which we, the assurers, are content to bear, and do take upon us in this voyage, they are of the seas, men-of- war, fire, enemies, pirates, rovers, thieves, jettisons, letters of mart and countermart, reprisals, takings at sea, arrests, restraints, and detainments of all kings, princes, and peo- se Sliawe v. Felton, -2 East, 109. See, also, as to the termination of the voyage or* risk, Alaska Banking & Safe Deposit Co. v. Mari- time Tns. Co. (D. C.) 15G Fed. 710; Conifoot v. Assurance Corp., [1903] 2 K. B. 363. '• L. K. 5 C. P. 100. ■ Samuel v. Assurance Co., 8 B. & C. (15 E. C. L. 66) 119, 118 Reprint, 087. § 31) PROVISIONS AS TO RISK AND PERILS 75 pie of what nation, quality, or condition soever, barratry of the masters and mariners, and all other perils, losses, or misfortunes that have or shall come to the hurt, detriment, or damage of the said goods and merchandises and ship." The "restraint of princes" clause refers to acts of state or acts authorized by the sovereign authority. 88 It does not cover losses caused by riots. 89 SAME— PERILS OF THE SEAS 31. "Perils of the seas" mean all losses or damage which arise from the extraordinary action of the wind and sea, or from extraordinary causes external to the ship, and originating on navigable waters. The phrase does not cover ordinary wear and tear, nor does it cover rough weather or cross seas. There must be something extraordinary connected with it. 90 Under this principle the Supreme Court has held that injury to a ves- sel from worms in the Pacific, if an ordinary occurrence in that locality, is not included in the phrase. 91 On the other hand, injuries received from accidentally striking the river bank in landing, in consequence of which the vessel sank, are included in the term. 92 It also covers a loss caused by a jettison of part of the cargo. 93 In Potter v. Suffolk Ins. Co., 94 Mr. Justice Story held that injury caused to a ship by striking on some hard sub- ss Miller v. Insurance Co., [1902] 2 K. B. G94 ; [1903] 1 K. B. 712; Robinson G. M. Co. v. Ins. Co., [1904] A. C. 359. soNesbitt v. Lushington, 4 T. R. 7S3, 100 Eng. Reprint, 1300. § 31. so Gulnare (C. C.) 42 Fed. 861. si Hazard v. New England M. Ins. Co., 8 Pet. 557, 8 L. Ed. 1043. 92 Seaman v. Enterprise Fire & Marine Ins. Co. (C. C.) 21 Fed. 778. 9 3 Lawrence v. Minturn, 17 How. 100, 15 L. Ed. 58. 94 2 Suinn. 197, Fed. Cas. No. 11,339. See, also, Wells v. Hopwood, SB. & Ad. 20, 110 Eng. Reprint, 8. 76 CEXERAL AVERAGE AND MARESTE INSURANCE (Ch. 3 stance in the harbor, due to the ebbing of the tide, is a loss by a peril of the sea, unless it was mere wear and tear, or unless it was an ordinary and natural occurrence. Injuries caused by the negligence of the master or crew are also covered, unless, there is an express stipulation against them — as is not uncommon. 95 In policies which contain an exception protecting the in- surer from injuries caused by lack of ordinary care and skill of the navigators, it is the tendency of the courts to con- strue this phrase strictly against the insurer. They con- strue it in such cases to apply rather to the general qualifi- cations of the crew than to their carelessness in particular instances. 96 The courts also hold that injuries received by collision with another vessel are covered, though not injuries inflict- ed. This question is discussed in the case of GENERAL MUT. INS. CO. v. SHERWOOD, 97 in which the opinion was rendered by Mr. Justice Curtis. In Peters v. Warren Ins. Co., 98 the court held that under the term "perils of the sea" the insured could recover not only the damage received by his vessel, but the amount that he had to pay in general average, under the provisions of the German law, to the other vessel. As to the latter part of this decision, however, it turned upon the peculiar provisions of the German law of average, making the ves- sel liable in such case even without fault. But it was not intended by the Supreme Court in that case to decide the general proposition that the above term quoted in the pol- icy gave the right to recover for injuries inflicted. In this respect the law of England is the same as that of America. 99 »5 Rogers v. aJtna Ins. Co., 35 C. C. A. 396, 95 Fed. 103 ; Orient Mot Ins. Co. v. Adams, 123 U. S. 67, 8 Sup. Ct. 68, ::i U Ed. 63. »e Egbert v. St. Paul Fire & Marine Ins. Co. (D. C) 71 Fed. 739. 07 14 How. 357, 366 367, 14 L. Ed. i'/J. »s 14 Pet. 99, 10 L. Ed. 371. 09 De Vaux v. Salvador, 4 A. & B. (31 E. C. L. 195) 420. § 32) PROVISIONS AS TO RISK AND PERILS 77 The clause covers fire caused by negligence of the crew, the proximate cause in that case being taken to be the fire ; but, if the fire was caused not by the mere negligence, but by design, then the proximate cause would not be the fire, but the design, and the underwriter would be liable if his policy covered barratry, but not if otherwise. 1 In the G. R. Booth, Mr. Justice Gray discusses the mean- ing of the clause in a bill of lading, and says that it has the same meaning as in an insurance policy, except that negli- gence of the master has a different effect in the two con- tracts. 2 SAME— BARRATRY 32. Barratry is an act committed by the master or mariners of the ship for some unlawful or fraudulent pur- pose, contrary to their duty to their owners, whereby the latter sustain an injury. The above is the definition given by Justice Story in Marcardier v. Chesapeake Ins. Co. 3 The meaning of the term is discussed at great length and learnedly in PATAPSCO INS. CO. v. COULTER. 4 It seems to exclude the idea of mere negligence, to involve at least some element of design or intention or negligence so gross as to be evidence of such design or intention. In that case the final decision was that, where the loss was caused by a fire, and it appeared that the master and crew did not take proper steps to extinguish the fire, the cause of loss was the fire, and not the negligence of the crew, and therefore they held the insurer liable. In the more recent case of New Orleans Ins. Co. v. Albro i Waters v. Merchants' Louisville Ins. Co., 11 Pet. 213, 9 L. Ed. 691. 2 171 U. S. 450, 19 Sup. Ct. 9, 43 L. Ed. 234. § 32. 3 8 Craneh, 39, 3 L. Ed. 4S1. 4 3 Pet. 222, 7 L. Ed. 659. 78 GENERAL AVERAGE AND MARINE INSURANCE (Ch. 3 Co., 5 a voyage had been broken up, and the cargo sold. It was charged that the master made the sale in a method knowingly contrary to his best judgment, and to the injury of the parties interested. The court held that this, if so, would constitute barratry. As barratry is something done to the prejudice of the owners, it follows that the master who is sole owner can- not commit barratry, as a man can hardly cheat himself ; but, if he is part owner, he can be guilty of barratry towards his other owners. 6 SAME— THEFTS 33. Thefts in a marine policy, according to the better opin- ion, cover thefts from without the ship, and do not cover thefts by the crew. This is the decision according to the great preponderance of English authority. 7 Parsons, in his Marine Insurance, states that the weight of American authority would make the insurers liable for larceny by the crew. 8 His citations, however, hardly seem strong enough to meet the reasoning of the English cases. c 112 U. S. 506, 5 Sup. Ct. 2S9, 2S L. Ed. S09. In Compania de Navigation La Flecha v. Brauer, 168 U. S. US,. 18 Sup. Ct. 12, 42 L. Ed. 398, Mr. Justice Gray held that "there was no barratry, because there was neither intentional fraud, nor breach of trust, nor will- ful violation of law, one of which, at least, is necessary to constitute barratry." b Marcardier v. Chesapeake Ins. Co., S Cranch, 39, 3 L. Ed. -LSI ; Jones v. Nicholson, 10 Ex. 2S. § 33. i Taylor v. Steamship Co., L. R. 9 Q. B. 546. This case also holds that thefts are not covered by a clause insuring against "damage to goods." &1 Pars. .Mar. Ins. 563-566, and notes'. 34) PROVISIONS AS TO RISK AND PERILS 79 SAME— ALL OTHER PERILS 34. "All other perils," etc., mean all other perils of the same general character. These words, according to the construction placed up- on them by the courts under the rule of ejusdem generis, are intended as a general safeguard to cover losses similar to those guarded against by the special enumeration, and not in as sweeping a sense as the language would mean. The English Marine Insurance Act, 1906 (under the rules of construction annexed to the first schedule of section 30), expresses this as "only perils, similar in kind to the perils specifically mentioned in the policy." But "all risks by land and water" cover all risks what- soever. 9 The leading case as to the meaning of these words is THAMES & M. MARINE INS. CO. v. HAMILTON, 10 wherein Lord Bramwell, in his opinion, in reference to the meaning of these words, uses the following language : "Definitions are most difficult, but Lord Ellenborough's seems right : 'All cases of marine damage of the like kind with those specially enumerated, and occasioned by sim- ilar causes.' I have had given to me the following defini- tion or description of what would be included in the general words : 'Every accidental circumstance not the result of ordinary wear and tear, delay, or of the act of the assured, happening in the course of the navigation of the ship, and incidental to the navigation, and causing loss to the sub- ject-matter of insurance/ Probably a severe criticism might detect some faults in this. There are few definitions in which that could not be done. I think the definition of Lopes, L. J., in Pandorf v. Hamilton [16 Q. B. D. 629], very good : 'In a seaworthy ship, damage of goods caused § 34. 9 Schlos.s v. Stevens, [1906] 2 K. B. G65. io 12 A. C. 484. 80 GENERAL AVERAGE AND MARINE INSURANCE (Ch. 3 by the action of the sea during transit, not attributable to the fault of anybody,' is a damage from a peril of the sea. I have thought that the following might suffice : 'All per- ils, losses, and misfortunes of a marine character, or of a character incident to a ship as such.' " And Lord Hersch- ell, in his opinion, discusses the cases which had previous- ly passed upon them. The case was an insurance under a time policy, in which, under English law, as previously stated, there is no implied warranty. The donkey engine was being used pumping water into the main boilers, but, owing to the fact that a valve was closed which ought to have been left open, the water was forced into and split open the air chamber of the donkey pump. The court held that, whether the closing of the valve was accidental or due to the negligence of the engineer, it was not such an accident as was covered either by the words "perils of the sea," or by the general saving clause above quoted. PROXIMATE CAUSE OF LOSS 35. Where an injury is due to more than one cause, the ef- ficient predominating cause nearest the loss is con- sidered the proximate cause, though later causes incidental thereto are also set in motion. Any later cause, to supersede the first, must be an in- dependent cause. This definition is the result of the decisions of the Unit- ed States Supreme Court in HOWARD FIRE INS. CO. v. NORWICH & N. Y. TRANSP. CO. 11 and the G. R. Booth, 12 where the subject is thoroughly discussed. The question what is the proximate and what the re mote cause gives rise to some of the most difficult points in marine insurance law. The only general rule is that § 35. ii V2 Wall. 194, 20 L. Ed. 378. ■ -• 171 D. S. 150, L9 Sup. Ot. 9, 43 L. Ed. 2P.1. § 35) PROXIMATE CAUSE OP LOSS 81 laid down above, and, like most general rules, its difficul- ties lie in its application. In IONIDES v. UNIVERSAL MARINE INS. CO., 13 a vessel loaded with coffee was insured under the ordinary policy, which contained a warranty "free from all conse- quences of hostilities." It was during the Civil War, and the Confederates had extinguished Hatteras Light as a means of embarrassing the navigation of the Federal ships. The captain, on his way from New Orleans to New York, supposing that he had passed Cape Hatteras, when he had not, changed his course in such a way that his vessel went ashore. The Confederate authorities took him and his crew as prisoners. Federal salvors came down, and saved part of the coffee, and might have saved more but for the inter- ference of Confederate troops. In a day or two the vessel was lost. The court held, under these circumstances, that, as to that part of the coffee which remained aboard, it was lost by a peril of the sea, that being the proximate cause, and not the act of the Confederates in extinguishing the light ; but that as to the cargo which was saved, and as to that part which could have been saved but for the inter- ference of the Confederate authorities, the proximate cause was the consequence of hostilities, and that as to that part the underwriters were not liable. In Mercantile S. S. Co. v. Tyser, 14 the insurance was on is 14 C. B. N. S. (108 E. C. L.) 259, 143 Reprint, 445. During the World War, it has been customary to insure ships, whether through government insurance or otherwise, against war risks which would not be covered by the ordinary provisions of a marine policy. The same question has also arisen in the construction of similar provisions in charter parties, and it has been necessary in many cases to decide whether a given loss falls upon the ordinary insur- ance policy or the war policy, in other words, whether it was a war risk or a sea risk. See Lobitos Oil Fields v. Admiralty Commis- sioners, 34 T. L. R. 466 ; British & Foreign S. S. Co. v. The King, 34 1*7 Q. B. D. 73. A somewhat analogous case is Williams v. Can- ton Ins. Co., [1901] A. C. 462. Huc.nES,ADM.(2D Ed.) — 6 82 GENERAL AVERAGE AND MARINE INSURANCE (Ch. 3 freight during a certain voyage. The charter party con- tained a clause that the charterers might cancel the charter party if the vessel did not arrive by the 1st of September. The ship started from England on the 7th of August, but her machinery broke down, and she had to put back. The time lost caused her to arrive in New York after the 1st of September, and the charterers canceled the charter par- ty. The court held that the proximate cause of the loss of freight was not the breaking down of the machinery, but the option exercised by the charterers of canceling the charter party, and that, therefore, the underwriters were not liable. In Dole v. New England Mut. Marine Ins. Co., 15 a ves- sel was captured by the Confederate cruiser Sumter. As she could not be brought into any port of condemnation, her captors set her on fire and destroyed her. The policy contained a clause Avarranted free from capture. It was argued, inter alia, that the proximate cause of the loss was the fire, and not the capture. Justice Clifford held, how- ever, that the proximate cause was the capture and the acts of the captors, and that the underwriters were not liable. HOWARD FIRE INS. CO. v. NORWICH & N. Y. TRANSP. CO. 10 arose under a fire insurance policy. The steamer Norwich collided with a schooner, injuring her own hull below the water line. She rapidly began to fill, and 10 or 15 minutes after the collision the water reached the fire of the furnace, and the steam thereby caused blew the fire around, and set fire to the woodwork of the boat. In consequence, she burned until she sank in deep water. The injury from the collision alone would not have made T. L. It. 546, [1918] 2 K. R. S79. British India steam Nav. Co. v. Green. 35 T. L. R. 209; Britain Steamship Co. v. The King, Id. 271; Anl Coasters. Ltd., v. The King, Id. 604. 15 2 Cliff. 394, Fed. Cns. No. 3,966. is 12 Wail. 101. 'JO L. Ed. 378. §§ 36-37) the loss 83 her sink. The court held that the fire was the efficient pre- dominating cause nearest in time to the catastrophe, and that the underwriters were liable for that part of the injury which was caused by the fire. In Orient Mut. Ins. Co. v. Adams, 17 the master of the steamer Alice, lying above the falls of the Ohio near Lou- isville, gave the signal to cast the boat loose, and started when she did not have steam enough to manage her. There was no clause in the policy exempting the insurers from lia- bility for the negligence of the master or crew. The vessel was carried over the falls, and the court held that the prox- imate cause was the damage done by going over the falls, which was a peril of navigation, and not the act of the mas- ter, that being a remote cause. A like application of the rule is made to the sale of cargo in an intermediate port of distress to raise funds. Such a loss is not recoverable under the policy, as the sea peril that caused the vessel to enter the port of distress is deem- ed a remote cause. 18 THE LOSS— TOTAL OR PARTIAL 36. A loss may be total or partial. 37. ACTUAL OR CONSTRUCTIVE— A total loss may be actual or constructive. (a) There is an actual total loss where the subject-matter is wholly destroyed or lost to the insured, or where there remains nothing of value to be abandoned to the insurer. (b) There is a constructive total loss when the insured has the right to abandon. it 123 U. S. 67, 8 Sup. Ct. 68, 31 L. Ed. 63. is- Powell v. Gudgeon. 5 Maule & S. 431; Ruckman v. Merchants' Louisville Ins. Co., 5 Duer (N. Y.) 371. 84 GENERAL AVERAGE AND MARINE INSURANCE (Ch. 3 Actual Total Loss of Vessel An actual total loss of a ship occurs when she is so in- jured that she no longer exists in specie as a ship. If she still retains the form of a ship, and is susceptible of repair, it is not an actual total loss. In BARKER v. JANSON, 19 Wills, J., says: "If a ship is so injured that it cannot sail without repairs, and cannot be taken to a port at which the necessary repairs can be executed, there is an actual total loss, for that has ceased to be a ship which never can be used for the purpose of a ship ; but if it can be taken to a port and repaired, though at an expense far exceeding its value, it has not ceased to be a ship." In Delaware Mut. Safety Ins. Co. v. Gossler, 20 Clifford, J., uses substantially the same language. Actual Total Loss of Goods There is a total loss of goods not only when they are ab- solutely destroyed, but when they are in such a state that they cannot be carried in specie to the port of destination without danger to the health of the crew, or when they are in such a state of putrefaction that they have to be thrown overboard from fear of disease. 21 Interesting questions arise when there is an insurance against total loss only on goods and part of the goods are lost. If the goods are all of the same kind, and a part of them are lost, then, under the ordinary language of the pol- icy, the loss would be partial only. But, if there were dif- ferent kinds of goods insured under one policy, the courts hold, unless the language of the policy is specially worded to exclude it, that there is a total loss of separate articles. though there may not be a total loss of the whole. This question is discussed in Woodside v. Canton Ins. §§ 36-37. "L.R.3C. P. 303. 20 90 U. S. 045, 24 L. Ed. 803. See, also, Fireman's Fund Ins. Co. v. Globe Nav. Co., 230 Fed. 018, 149 C. C. A. 61 I. 2i Hugg v. Augusta Ins. Co., 7 How. 595, 12 L. Ed. 834. §§ 36-37) the loss 85 Office. 22 That was an insurance against total loss only, or, what has been held to mean about the same thing, "war- ranted free from all average," on personal effects of the master of the vessel. The personal effects consisted of a variety of different articles. The vessel was lost, and so were all the master's effects, except a sextant and a few small articles. The court held that there was a total loss of the different articles which were not saved, although some of the personal effects were saved. On the other hand, in Biays v. Chesapeake Ins. Co., 23 the insurance was on a cargo of hides. Some of the hides were entirely lost. The court held, however, that as the insurance covered only one article, namely, hides, this was a partial loss on the entire subject of insurance, and not a total loss of some of the different subjects of insurance. But where the subject insured is a single unit, though composed of different parts, the loss of one of those parts, which renders the others absolutely useless, and which could not be replaced at an expense less than the cost of the -entire unit, makes it a total loss. In Great Western Ins. Co. v. Fogarty, 2 * there was insur- ance upon a sugar-packing machine composed of various different units. Some of these parts were lost, and could not have been replaced for less than the price of a new ma- chine. Some were saved, but were only valuable as scrap iron. The court held that this was a destruction of the machine in specie, and therefore a total loss. Actual Total Loss of Freight There is a total loss of freight whenever there is a total loss of cargo or when the voyage is broken up and no 22 (D. C.) S4 Fed. 283; Canton Ins. Office v. Woodside, 33 C. C. A. 63. 90 Fed. 301. See, also, Duff v. McKenzie, 3 C. B. (N. S.) 16 (91 E. C. L.); Wilkinson v. Hyde. 3 C. B. (N. S.) 30 (91 E. C. L.) ; Ralli v. Janson, 6 E. & B. 422, 119 Eng. Reprint, 922. 23 7 Cranch, 415, 3 L. Ed. 389. See, also, Washburn & M. Mfg. Co. v. Reliance M. Ins. Co., 179 U. S. 1, 21 Sup. Ct. 1, 45 L. Ed. 49. 2* 19 Wall. 640, 22 L. Ed. 216. SG GENERAL AVERAGE AND MARINE INSURANCE (Ch. 3 freight is earned. But if the vessel can be repaired in suffi- cient time to carry her cargo without frustrating the ob- jects of the voyage by delay, or the cargo is in a condition to be shipped by another vessel and another vessel is pro- curable, there is not a total loss of freight. 25 Partial Loss The term "particular average" is nearly synonymous with "partial loss," and policies which contain clauses "war- ranted against particular average" or "warranted against average" are practically policies insuring against total loss only. 20 The measure of recovery in case of partial loss is strik- ingly different in marine and fire insurance. If a house is insured against fire for $5,000, and the value of the house is $10,000 and the loss is $5,000, the insured recovers the full value of his policy. Under similar circumstances in marine insurance, he only recovers such proportion of the loss as the insured portion bears to the total value, it being considered that as to that part of the value which is not insured he is his own insurer, and must contribute to the loss to that extent. 27 In arriving at these proportions, the - 5 Hugg v. Augusta Ins. Co., 7 How. 593, 12 L. Ed. S34 ; Jordau v. Warren Ins. Co., 1 Story, 342, Fed. Cas. No. 7,524. -« Lowndes on Marine Insurance (.lid Ed.) 70, defines particular average as "loss or damage of the thing insured, not amounting to total loss, and not including the cost of measures taken for its preservation from a greater loss." Gow on Marine Insurance, p. L89, defines it as "the liability attaching to a marine insurance pol- icy in respect of damage or partial loss accidentally and immediate- ly caused by some of the perils insured against, to some particular interest (as the ship alone, or the cargo alone) which has arrived at the destination of the venture." In Kidston v. Empire Marine In- surance Co.. L. R. 1 C. P. 535, 2 C. P. 357, the cost of measures taken for preservation from greater loss is excluded as particular average and dubbed "particular charges." 872 Pars. Mar. Ins. 405; Ursula Bright S. S. Co. v. Amsinck (D. C.) 115 Fed. 242; Peninsular & O. S. S. Co. v. Atlantic Mnt. Ins. Co § 38) THE LOSS 87 actual value of the subject insured is taken, except where there is an insured value fixed in the policy, in which case the insured value is taken. SAME— ABANDONMENT 38. Abandonment is the surrender by the insured, on a constructive total loss, of all his interest, to the in- surer, in order to claim the whole insurance. (a) Under the American rule, if the cost of saving and repairing a vessel exceed one-half her value when repaired, the owner, by giving the underwriter notice of abandonment, may surrender his vessel to the underwriter, and claim for a total loss. (b) Under the English rule, he can do the same thing if the ship is so much injured that she would not be worth the cost of repair. This is the most radical difference between the American and English law of marine insurance. Under the American law, as stated above, the right of abandonment is govern- ed by the facts as they appear at the time of the abandon- ment. If, therefore, at that time, under the highest degree of probability, the cost of saving and repairing the vessel would exceed one-half of her value when repaired, the in- sured may abandon. 28 The title of an insurer acquired by an abandonment re- lates back to the disaster. 29 In the absence of special stipulations, the cost must ex- ceed one-half the value of the vessel when repaired at the (D. C.) 185 Fed. 172 ; Atlantic Mut Ins. Co. v. Peninsular & O. S. S. Co., 191 Fed. 84, 114 C. C. A. 162. § 38. 28 Bradlie v. Maryland Ins. Co., 12 Pet. 378, 9 L. Ed. 1123: Royal Excb. Assur. v. Graham & Morton Transp. Co., 166 Fed. 32, 92 C. C. A. 66; Fireman's Fund Ins. Co. v. Globe Nav. Co., 236 Fed. 618, 149 C. C. A. 614. 20 Gilchrist v. Chicago Ins. Co., 104 Fed. 566, 44 C. C. A. 43. 88 GENERAL AVERAGE AND MARINE INSURANCE (Ch. 3 place of disaster, and the policy value of the vessel or her value in the home port is no criterion. In consequence of these decisions, it has become com- mon to provide in the policy that the right of abandonment shall not exist unless the cost of repairs exceeds one-half the agreed valuation. Such a stipulation is valid, but there also the right of abandonment is determined by the facts as they exist at the time, and is not devested by the fact that the vessel may subsequently be saved for less. 80 Currie v. Bombay Native Ins. Co. 31 was a case of insurance on cargo and disbursements. The vessel was wrecked, and the captain made no effort to save the cargo, deeming it im- practicable. It appeared from the facts that the cargo could have been partially saved if he had. The ship was a total wreck. The court held that this was not a total loss of the cargo by the peril insured against, but that it was a total loss of the disbursements. SAME— AGREED VALUATION 39. The valuation fixed in the policy is binding, though it may differ from the actual value. In passing upon the rights and obligations of insured an< 1 underwriters, the valuation in the policy, except as above stated, is taken as conclusive upon the parties. Although this may sometimes partake of the nature of wager poli- cies, yet the convenience of having a certain valuation as a basis to figure on, and the diminution of litigation thereby, have caused the courts to hold the parties to their valua- tion. The firmness with which they hold to this doctrine may be judged by BARKER v. JANSON, 32 where, at the > orient Mut. Ins. Co. v. Adams, 123 U. S. 67, 8 Sup. Ct. 68, ol L. Ed. 63. si L. R. 3 P. C. 71'. g 39. ■■- L. R. 3 C. P. 303. § 39) THE LOSS 89 time the policy attached, the ship, on account of injuries, was practically of no value at all, yet the court held both parties bound by the valuation. In North of England Iron S. S. Ins. Ass'n v. Armstrong-, 33 a policy of insurance was effected for £6,000 on a vessel valued at £6,000. She was sunk in collision, and the under- writers paid for a total loss. Her real value was £9,000. Subsequently £5,000 was recovered from the colliding ves- sel. The court held that it all belonged to the underwriter by subrogation to the insured, and that the assured could not take any part of it in payment for the actual valuation of his vessel uninsured. On the other hand, in the Livingstone 34 the Circuit Court of Appeals for the Second Circuit held that, where the recovery from the wrongdoer exceeded the value of the policy, the underwriter was entitled only to such part of the recovery as reimbursed him for the amount paid out, and that any excess over the insured value went to the owner of the ship. The basis of the American holding is that the insurer 'ought not in equity to expect more than he had paid out. The basis of the English holding is that an abandonment vests the title in the underwriter as of the time of the dis- aster, that if he subsequently raises the wreck it is his, that the damages recoverable from the other party are nothing more than a substitute for the wreck, and that the insured was responsible for any hardship, as it was the result of the undervaluation, on the basis of which he had paid the pre- mium. It must be confessed that the English reasoning is sub- stantial logic, if not substantial justice. The idea that the damages recoverable from the wrong- doer are a substitute for the vessel is elementary in Ameri- 3 3 L. R. 5 Q. B. 244. s* 130 Fed. 746, 65 C. C. A. 610, reversing a strong opinion by '.Judge Hazel (D. C.) 122 Fed. 278. 90 GENERAL AVERAGE AND MARINE INSURANCE (Ch. 3 can law. For instance, where a vessel owner desires to claim the benefit of the Limited Liability Act and surren- ders his vessel for the benefit of her creditors, the right of action against a third party for the damage goes with it. 3r ' In another respect the American and English decisions diverge as to the effect of a valuation in a policy. In a salvage case, the salvage award is apportioned be- tween vessel and cargo according to values, which are passed upon by the court as one of the facts in the case. As the salvors look to the properties salved, they are not bound by or concerned with any valuation that may be agreed upon between owners and insurers in a policy. Now suppose that in a proceeding to recover salvage the court finds as a fact that the ship is worth $100,000 and the cargo $50,000; and that an award of $30,000 is made on such valu- ations. The vessel would be liable to the salvors for $20,- 000 of this, and the cargo for $10,000. Now suppose that the owner has insured his ship on a valuation of $75,000. If this value were taken in distribut- ing the salvage award, the proportionate share of the ship would be $18,000 and of the cargo $12,000. As salvage is a peril of the sea, there is no question of the insurer's ob- ligation to refund one of these two sums to the owner. In America it is held that the insurer must refund to the insured the amount charged against the ship in the court proceeding, regardless of the method of arriving at the values which the court may adopt, provided the total amount recovered on the policy is within the policy limit; that the other rule would make the owner a constructive insurer of the excess of value over the policy valuation and result in holding him to the policy valuation while not hold- ing the insurer to it. 30 so Post, § 1G9, p. 369. 86 International Nav. Co. v. British & Foreign Marine Ins. Co. (D. C.) 100 Fed. 304. The decision was in 190©, by Judge Addison Drown of New York. • § 40) THE LOSS 91 • On the other hand, the English courts hold that the lia- bility of the insurer must be settled by the terms of the contract between him and his insured, that he is liable only for that part of the salvage represented by the valuation named in such contract, and that to make him pay the en- tire amount would be to let the insured collect out of his policy on an interest which he, the insured, had purpose- ly left uncovered and on which he had paid no premium. 37 SAME— SUBROGATION OF INSURER 40. An insurer who has paid the insurance is subrogated to the rights of the insured against others liable to the insured for the loss. The insured is entitled to recover his loss from the un- derwriter, though he may possess other remedies for it. For instance, if he can recover back part of the loss in gen- eral average, the underwriter must still pay him, and look to the collection of the average himself, and not force the insured to exhaust his remedies on general average. 38 But, when the underwriter has paid the loss, he is en- titled by subrogation to all the rights of the insured against any other parties for the recovery of all or part of what he has paid. In such case, he stands in the shoes of the as- sured, and has no greater rights than the assured himself would have, so that if the assured has stipulated away his right by any enforceable clause in a bill of lading or other- wise, the underwriter cannot recover. This right of subro- 3 7 Balmoral S. S. Co. v. Marten, [1900] 2 Q. B. 74S ; [1901] 2 K. B. S96 ; [1902] A. C. 511. It is noteworthy that the English judges all agreed, including Bigham in the trial court, A. L. Smith, Vaughan, and Stirling in the Court of Appeal, and Lords Maenaghten, Shand, Brampton, Robertson, and Lindley in the House of Lords. To the author the argument seems all in favor of their view. § 40. 3 8 International Nav. Co. v. British & Foreign Marine Ins. Co. (D. C.) 100 Fed. 304. 92 GENERAL AVERAGE AND MARINE INSURANCE (Ch. 3 gation springs, not necessarily from assignment, but from the general principles of equity. 39 SAME— SUING AND LABORING CLAUSE 41. In addition to the amount of his loss, the insured may recover, under the suing and laboring clause of the policy, expenses incurred by him in protecting the property. In the old English policy this clause was in the following language: "And in case of any loss or misfortune it shall be lawful to the assured, their factors, servants, and assigns, to sue, labor and travel for, in, and about the defense, safe- guard, and recovery of the said goods and merchandise, and ship," etc., "or any part thereof, without prejudice to this in- surance." In later policies the clause has been modified largely in the interests of the underwriter, but the general language is the same. This clause is intended, in mutual interest, to encourage the assured to do everything towards making the loss as light as possible ; and the expenses thereby in- curred are recoverable outside of the other clauses of the policy, though in some instances it enables the assured to recover more than the face value of the policy. In other words, the assured may recover a certain amount under that clause of the policy giving him the right to recover for loss caused by the perils of the sea, etc., and this additional amount as expended for the general benefit, and this, too,, often in policies insuring against total loss only. And, 8» See, as illustrating the extent of this doctrine, Liverpool & G. W. Steam Co. v. I'henix Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469, 32 L, Ed. 788; Mobile & M. Ry. Co. v. Jurey, 111 U. S. 584, 4 Sup. Ct. 5G6, 2S L. Ed. 527; Wager v. Providence Ins. Co., 150 U. S. 99, 14 Sup. Ct 55, 37 L. Ed. L013; Fairgrleve v. Marine Ins. Co., 37 C. C. A. L90, 94 Fed. 686; Hall v. Nashville & C. R. Co., 13 Wall. 307. 20 I* Ed. 594. § 41) THE LOSS 93 since an abandonment under the American decisions relates back, the underwriters are liable for the acts of the master after abandonment, as he is then their agent. 40 The acts of the insurer or the underwriter, in sending and making efforts to save, cannot be construed as an ac- ceptance of the abandonment. 41 The clause does not cover legal expenses incurred in de- fending the ship against an unsuccessful attempt to hold her liable for damages in the collision out of which the loss arose. 42 This clause, however, only covers such acts of the under- writer as are authorized by the policy. If the underwriter takes the vessel to repair her, intending to return her, and keeps her an unreasonable time, and then returns her, not in as good condition as she was before, the suing and labor- ing clause will not protect him, and his acts in so doing, being unauthorized by the suing and laboring clause, will be held an acceptance of the notice of abandonment. 43 § 41. 40 Gilchrist v. Chicago Ins. Co., 104 Fed. 566, 44 C. C. A. 43. 4i RICHELIEU & O. NAV. CO. v. BOSTON MARINE INS. CO., 136 U. S. 408, 10 Sup. Ct. 934, 34 L. Ed. 398. 42 Munson v. Standard Marine Ins. Co., 156 Fed. 44, 84 C. C. A. 210. 43 Washburn & M. Mfg. Co. v. Reliance M. Ins. Co., 179 U. S. 1, 21 Sup. Ct. 1, 45 L. Ed. 49 ; Copelin v. Phcenix Ins. Co., 9 Wall. 461, 19 L. Ed. 739. 94 BOTTOMRY AND RESPONDENTIA (Ch. 4 CHAPTER IV OF BOTTOMRY AND RESPONDENTIA ; AND LIENS FOR SUP- PLIES, REPAIRS, AND OTHER NECESSARIES 42. "Bottomry" Defined. 43. Requisites of Bottomry Bond. 44. Respondentia. 45. Supplies, Repairs, and Other Necessaries. 46. "Material Man" Defined. 47. Necessaries Furnished in Foreign Ports. 48. "Necessaries" Defined. 49. Necessaries Furnished Domestic Vessels. 50. Domestic Liens as Affected by Owner's Presence. 51. Shipbuilding Contracts. 52. Vessels Affected by State Statutes. "BOTTOMRY" DEFINED 42. This is an obligation executed generally in a foreign port by the master of a vessel for repayment of advances to supply the necessities of the ship, to- gether with such interest as may be agreed upon, which bond creates a lien on the ship enforceable in admiralty in case of her safe arrival at the port of destination, but becoming absolutely void and of no effect in case of her loss before arrival. 1 This is an express lien created by act of the parties. The Admiralty Lien Admiralty is not a difficult branch of the law, and the difficulties of this part arise not inherently, but from the confusion incident to the use of the word "lien." To the student of the common law its use suggests the ideas which our studies in that branch associate with it; and, even if § 12. i GRAPESHOT, 9 Wall. 129, 10 L. Ed. G51. § 42) "bottomry" defined 95 there was such a production in those modern specialist times as an admiralty lawyer ignorant of all other law, the confusion would still exist to a lesser extent, since the word is used in different senses in marine law itself. The admiralty lien, pure and simple, is strikingly dis- similar from the common-law lien. Take a common-law mortgage as an illustration. There the title to the security is conditionally conveyed to the creditor and he has a prop- erty interest in it. Take, on the other hand, the hotel keep- er who retains the trunks of his guests till they pay for their wine. The moment he relinquishes possession of the trunks he loses his security, for his lien depends on posses- sion. In other words, the common-law liens give the cred- itor a qualified title or right of possession as security for a personal debt due by the owner and as incident to such a debt. The admiralty lien is different. Its holder has no right of possession in the ship. It exists as a demand against the ship itself as a contracting or wrongdoing thing, ir- respective of the fact whether the creditor has any person- al action against the owner or not. It is not a mere inci- dent to a debt against the owner, but a right of action against the thing itself — a right to proceed in rem against the ship by name, in which the owner is ignored, may nev- er appear, and appears, if at all, not as defendant, but as claimant. It is nearer what the civil law terms a "hypothe- cation" — a privilege to take and sell by judicial proceedings in order to satisfy your demand. This shows how little it has in common with the common-law lien. 2 As said above, there are liens in admiralty law enforcea- ble by admiralty process which yet are not admiralty liens in the above sense. Such is the lien of the ship on the car- go for freight and demurrage, which is lost by delivery. It is to be regretted that the term was not limited to such cas- 2 Pleroma (D. C.) 175 Fed. 639 ; Mayer's Admiralty Jur. & Pr. 55. 96 BOTTOMRY AND RESPONDENTIA (Ch. 4 es, and some better expression, such as a privilege or right of arrest, substituted in the others. The lien by bottomry is a good instance of maritime hy- pothecation. It is a debt of the ship, arises out of the ne- cessities of the ship, and is good only against the ship. If the ship meets with a marine disaster, and seeks shelter and restoration in a port where she and her owners are stran- gers without credit, her master may borrow money for the purpose of refitment, and secure it by a bond pledging the vessel for its payment, on arrival at her destination. As the bond provides that it shall be void in case she does not ar- rive, the principal is at risk, and therefore a high rate of in- terest may be charged without violating the usury laws. 3 The loss which avoids a bottomry bond is an actual total loss. The doctrine of constructive total loss is found only in the law of marine insurance, and does not apply in con- sidering the law of bottomry. 4 REQUISITES OF BOTTOMRY BOND 43. The requisites for the validity of a bottomry bond are that the repairs or supplies must be necessary, and that the master or owner has no apparent funds or credit available in the port. But, if the lender satisfies himself that the supplies are necessary, he may, in the absence of knowledge, actual or constructive, as to the existence of funds or credit, presume, from the fact that the master orders them, that there is a necessity for the loan, and his lien will be upheld, in the ab- sence of bad faith. It is the duty of the master to communicate with the owner of the ship or cargo proposed to be bottomried if s Northern Lisht (D. C.) 106 Fed. 748. * Delaware Mut. Safety Ins. Co. v. (Jossler, 96 U. S. 645, 24 L. Ed. 863 ; Great Pacific, L. R. 2 P. C. 516. § 44) RESPONDENTIA 97 he can. 5 The modern facilities for communication and ease of transferring funds from port to port have rendered bottomry bonds less common than in former times. In America the right to bind a vessel for repairs and supplies as a maritime contract without any bottomry renders them rarely needed. The holder of a bottomry bond must enforce it promptly after the arrival of the ship, or he will be postponed to any subsequently vested interests. 6 Among different bottomry bonds the last is paid first. This is another sharp distinction between admiralty and common-law liens. Among admiralty liens of the same general character, the last takes precedence ; the theory be- ing that the last is for the benefit of the preceding ones, and contributes to saving the ship in the best possible condition for all concerned. 7 The case of O'Brien v. Miller 8 contains a form of bot- tomry bond printed in full. RESPONDENTIA 44. This is a hypothecation of cargo, similar in nature, purposes, requisites, and effect to the hypotheca- tion of the vessel by bottomry. A bottomry bond may hypothecate not only the vessel but the cargo. If it is on the cargo alone it is called a "re- spondentia bond." Since the master has greater powers as agent of the vessel owner than he has as agent of the car- go owner, it requires a stronger necessity and a stronger effort to communicate with the cargo owner in order to § 43. « Karnak, L. R.2A.& E. 289 ; Id., 2 P. C. 505. e Charles Carter, 4 Cranch, 328, 2 L. Ed. 636. i Omer, 2 Hughes, 96, Fed. Cas. No. 10,510. s 168 U. S. 287, 18 Sup. Ct. 140, 42 L. Ed. 469. The following cases are interesting and typical: Virgin, 8 Pet. 554, 8 L. Ed. 1036; GRAPESHOT, 9 Wall. 129, 19 L. Ed. 651. Hughes, Adm. (2d Ed.) — 7 98 BOTTOMRY AND RESPONDENTIA (Ch. 4 sustain a respondentia bond than to sustain a bottomry. 9 In other respects the law as to the two is similar. Admi- ralty courts have cognizance of suits to enforce these bonds. 1 * SUPPLIES, REPAIRS, AND OTHER NECESSARIES 45. The lien of materialmen for supplies and repairs or other necessaries is an instance of implied hypothe- cation, similar to the bottomry lien for moneys advanced with the same object, the latter being an express hypothecation. 46. "MATERIALMAN" DEFINED— A materialman is one whose trade it is to repair or equip ships, or furnish them with tackle and necessary provi- sions. 11 Under the general admiralty law as expounded by the Supreme Court, the materialman who furnished neces- saries to a vessel in a foreign port on the order of her mas- ter was presumed to credit the vessel, though nothing was said on the subject; and he could therefore proceed against the vessel. The reason was the apparent necessity for credit in the absence of her owner, in order to enable the vessel to carry out the objects of her creation. As Mr. Justice Johnson expressed it in the St. Jago de Cuba, 12 it was to furnish wings and legs to the vessel to enable her to complete her voyage. For the same reason, necessaries furnished a domestic vessel gave no claim against the vessel, but could be as- serted simply against the owner; for in such case the ne- cessity for the credit ceased, and the presumption would be that the credit was given to him. § 44. o JULIA BLAKE, 107 U. S. 418, 2 Sup. Ct. 092, 27 L. Ed. 595. io Admiralty rule 18 (29 Sup. Ct. xl). §§ 45-40. ii Neptune, 3 Bagg. Ad. 1 12. 129 Wheat. 410, •; L. Ed. 122. §§ 45-46) SUPPLIES, REPAIRS, ATST> OTHER NECESSARIES 99 The distinction between these two classes was the re- sult of an early decision of the court, from which it has never felt at liberty to depart. 13 The opinion in that case was but a page in length and announced the distinction without any discussion or re- view of authorities. In the Lottawanna 14 a vigorous attack was made upon it, but the court followed it in spite of the unanswerable dissenting opinion of Mr. Justice Clifford, which demon- strated that the distinction between foreign and domestic vessels had no place in the sources of the maritime law from which the grant of admiralty jurisdiction in our Con- stitution was drawn. Soon after the organization of the Maritime Law Asso- ciation, which includes many of the leading specialists in admiralty law, the subject of restoring the law by congres- sional action to its ancient uniformity in this respect was taken up, and a committee was appointed to draft such an act and submit it to the Association. It was before the As- sociation for several years, was the subject of much con- sideration, and was redrafted many times, during which the committee underwent many changes. At last it assum- ed a shape which was acceptable to the Association, and Congress gave it the force of law by Act June 23, 1910. 15 The act is as follows : "An Act Relating to Liens on Vessels for Repairs, Sup- plies, or Other Necessaries. "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that is General Smith. 4 Wheat. 438. 4 L. Ed. 609 (1819). i4 21 Wall. 558, 22 L. Ed. 654 (1874). is 36 Stat. 604 (U. S. Conrp. St. §§ 77S3-7787). The Committee of the Association which gave the act its final shape was composed of Mr. Frederic Dodge, of Boston. Mr. FitzHenry Smith, Jr., of Bos- ton, and the author. Mr. Dodge has since been elevated to the bench. 100 BOTTOMRY AND RESPONDENTIA (Ch. 4 any person furnishing repairs, supplies, or other neces- saries, including the use of dry dock or marine railway to a vessel, whether foreign or domestic, upon the order of the owner or owners of such vessel, or of a person by him or them authorized, shall have a maritime lien on the vessel which may be enforced by a proceeding in rem, and it shall not be necessary to prove that credit was given to the ves- sel. "Sec. 2. That the following persons shall be presumed to have authority from the owner or owners to procure repairs, supplies and other necessaries for the vessel: The managing owner, ship's husband, master, or any person to whom the management of the vessel at the port of supply is intrusted. No person tortiously or unlawfully in pos- session or charge of a vessel shall have authority to bind the vessel. "Sec. 3. That the officers and agents of a vessel specified in section two shall be taken to include such officers and agents when appointed by a charterer, by an owner pro hac vice, or by an agreed purchaser in possession of the vessel, but nothing in this act shall be construed to confer a lien when the furnisher knew, or by the exercise of rea- sonable diligence could have ascertained, that because of the terms of a charter party, agreement for sale of the ves- sel, or for any other reason, the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel therefor. "Sec. 4. That nothing in this act shall be construed to prevent a furnisher of repairs, supplies, or other necessaries from waiving his right to a lien at any time, by agreement or otherwise, and this act shall not be construed to affect the rules of law now existing, either in regard to the right to proceed against a vessel for advances, or in regard to laches in the enforcement of liens on vessels, or in regard to the priority or rank of liens, or in regard to the right to proceed in personam. § 47) SUPPLIES, REPAIRS, AND OTHER NECESSARIES 101 "Sec. 5. That this act shall supersede the provisions of all state statutes conferring liens on vessels in so far as the same purport to create rights of action to be enforced by proceedings in rem against vessels for repairs, supplies, and other necessaries." The purpose of the act was to abolish the artificial dis- tinction between foreign and domestic vessels as to the presumption of credit. In other respects it is substantially a reaffirmation of previous law. It renders obsolete many decisions turning upon the prior law as to the presumption of credit. But it cannot be understood without some knowledge of previous law, and of course is subject to re- peal at any time; so that it is necessary to give some at- tention to the previous law, taking care to point out how it has been affected by the act. It is proper to consider, then: (1) Necessaries furnished in foreign ports ; (2) necessaries furnished in domestic ports. SAME— NECESSARIES FURNISHED IN FOREIGN PORTS, 47. For supplies furnished a foreign vessel on the order of the master in the absence of the owner the law implied a lien. But prior to the act the presump- tion was against a lien if ordered by the owner or by the master when the owner was in the port. As the master in a proper case could bind the vessel for such necessaries by means of a bottomry bond, so he could contract direct with the materialmen. By so using his ship as a basis of credit, he saved the marine interest usually charged in such bonds. The test of his power was the needs of his vessel. He could not do this unless the neces- sity was shown for the supplies or repairs, but when that was shown the rest was presumed. The materialman could then assume from the necessity of the repairs, and the fact 102 BOTTOMRY AND RESPONDENTIA (Ch. 4 that the master ordered them, that a necessity existed for the credit, though in point of fact the master had funds which he might have used. Only knowledge of this fact or willful shutting of the eyes to avoid knowledge would defeat the materialman's claim. 16 As the basis of this implied hypothecation was the pow- er of the master as agent of the owner in the latter's ab- sence, the presence of the owner defeated the master's im- plied power, and in such case the presumption in the ab- sence of other evidence of intent was that credit was given to the owner. 17 But in such case the owner himself could bind the vessel by agreeing that the materialman might look to the vessel ; and, indeed, if it appeared that the owner had no credit or was embarrassed or insolvent, the presumption would be that the credit was given to the vessel, and not to him. 18 The fact that the supplies are charged to the vessel by name on the creditor's books was regarded as evidence of an intent to credit the vessel, though not very strong evi- dence, as such entries are self-serving. 19 But these distinctions are wiped out by the first section of the act, which gives a maritime lien on the furnishing of the service, regardless of the question as to whom credit was given. 20 The second section of the act enumerates the persons who are presumed to have authority to bind the ship ; that § 47. isKALORAMA, 10 Wall. 204, 19 L. Ed. 914; Underwriter (D. C.) 119 Fed. 713 (an invaluable opinion by Judge Lowell dis- cussing the history and development of the doctrine). J ■ VALENCIA, 165 U. S. 270, 271, 17 Sup. Ct. 323, 41 L. Ed. 710 ; Reed Bros. Dredge No. 1 (D. C.) 135 Fed. 867. isKALORAMA, 10 Wall. 204. 19 L. Ed. 944; Patapsco, 13 Wall. 329, 20 L. Ed. 696; Worthington, 133 Fed. 725, 66 C. C. A. 5:1.1. 70 L. R. A. 353. i» Mary Bell, 1 Sawy. 13.1, Fed. Cas. No. 9,199: Samuel Marshall, .11 Fed, 396, 4 C. C. A. 3S5; Ella (D. C.) 84 Fed. 471. 20 City of Milford (D. C.) 199 Fed. 0.10 fan excellent discussion of the pnn>ose of the act by Judg i Rose). § 47) SUPPLIES, REPAIRS, AND OTHER NECESSARIES 103 is, those who may be supposed by third parties to be au- thorized to deal with them. This is not intended as exclu- sive. Others may have such power, either from previous course of dealing or other circumstances, such as are usu- ally matters of proof when a question of agency is involved. But in the latter case the party who attempts to hold the ship must prove their authority, while as to those named in this section their authority is presumed. The concluding sentence of the second section, denying the right of any one in tortious possession to bind the ves- sel was intended to settle a question as to which there had been some difference. 21 Suppose the vessel is chartered — that is, hired by the owner to some one else to operate her — under an agree- ment that the charterer is to furnish all running supplies and the owner is to furnish the crew. In that case the ma- terialman could not proceed against the vessel for such supplies furnished, even on the order of the master, if the materialman knew or could have ascertained that the char- terer's power was so limited. 22 And this is true as to a vendee in possession under a sale, where the vendor retains title till payment. He could not bind the vessel under such circumstances. 23 Even in case of chartered vessels, if the supplies were ordered in a foreign port by the master, the vessel would be bound, unless the materialman knew or could have ascer- tained the limitations of the charter party. 24 21 See the article by Mr. Frederic Cunningham on "Respondeat Su- perior in Admiralty," 19 Harvard Law Review, at page 446. See, also, Jackson v. Julia Smith, Fed. Cas. No. 7,136; Thurber v. Fan- nie, Fed. Cas. No. 14,014; Anne, Fed. Cas. No. 412 (Story, J.); G. H. Starbuck, Fed. Cas. No. 5,37S; Dias v. Revenge, Fed. Cas. No. 3,877; Clarita, 23 Wall. 11, 23 L. Ed. 146. 22 Kate, 164 U. S. 458, 17 Sup. Ct. 135. 41 L. Ed. 512; VALENCIA, 165 U. S. 264, 17 Sup. Ct. 323, 41 L. Ed. 710. 23 H. C. Grady (D. C.) 87 Fed. 232. 24 O. H. Vessels (D. C.) 177 Fed. 589; Id., 183 Fed. 561, 106 C. C. A. 107. 104 BOTTOMRY AND RESPONDENTIA (Ch. 4 The third section of the act substantially adopts the pre- existing law on the subject, except perhaps that it rather extends the powers of a purchaser in possession. It does not impose upon the materialman the duty of in- augurating any inquiry or search of records. In the ab- sence of anything to put him on inquiry, he may assume that the officers or agents usually empowered to act for ships have such powers. 25 The existence of a charter party and knowledge of that fact by the materialman do not necessarily defeat the lien. The owner may estop himself to deny it by his conduct, or the charter party may not forbid the incurring of a lien. 26 By "foreign port" was meant not simply ports of for- eign countries, but in this respect the states also are for- eign to each other. The character of the vessel is pre- sumptively determined by her port of registry, so that, if a vessel registered in New York goes to Jersey City, she was in a foreign port for the purposes of this doctrine. 27 This was only a presumption, and could be overcome by showing the real residence of the owner. Hence, if a ves- sel, though registered in New York, had an owner living in Norfolk, and the supply man knew this, or was put upon inquiry, supplies ordered in Norfolk would be treated as ordered in the home port. And this was true also as to a charterer operating a ship under a charter that amounted to a demise. 28 25 City of Milford (D. C.) 199 Fed. 956; Eureka (D. C) 209 Fed. 373; Oceana (D. C.) 233 Fed. 139; Id., 244 Fed. 80, 156 C. C. A. 508. 26 Mt. Desert, 158 Fed. 217; Id., 175 Fed. 747, 99 C. C. A. 323 (decided before the act); South Coast (I). C.) 233 Fed. 327; Id., 247 Fed. 84, 159 C. C. A. 302 ; Id., 251 U. S. — , 40 Sup. Ct, 233, 64 L. ].;,! ; New York Trust Co. v. Bermuda-Atlantic S. S. Co. (D. C.) 211 Fed. 988. 27 KALORAMA, 10 Wall. 210-212, 19 L. Ed. 944. 28 Ellen Holgate (D. C.j :•.<> Fed. 125; Francis (D. C.) 21 Fed. 715; Samuel Marshall, 54 Fed. 396, 4 C. C. A. 385. § 47) SUPPLIES, REPAIRS, AND OTHER NECESSARIES 105 Under the act the distinction between foreign and domes- tic vessels has lost its importance. These claims, being maritime in their nature, take prec- edence of common-law liens. Hence, though not required by any law to be recorded, they take precedence of a prior recorded mortgage, on the maritime theory that, being in- tended to keep the ship going, they are for the benefit of other liens, as tending to the preservation of the res. 29 How Waived or Lost Taking a note or acceptance for a claim of this sort is not a novation or waiver of the right to hold the vessel, unless so understood. 30 Such a claim is lost under some circumstances by delay in enforcing it. In such cases it becomes "stale," to use the language of the admiralty judges. In its general prin- ciples the doctrine of staleness is substantially the same as the equitable doctrine of the same name. In its application admiralty is perhaps prompter in enforcing it. As between the original parties, the claim would hold by analogy until a personal suit of the same nature would be barred by the act of limitations, in the absence of special circumstances, such as loss of evidence or changed condi- tion of parties. But, where other interests have been ac- quired in ignorance of its existence, it would be held stale in a much shorter period, depending on the frequency of opportunities for enforcing it. 31 Illustrations of such interests would be an innocent pur- chaser for value or a subsequent supply claim. A holder of 20 Emily B. Souder, 17 Wall. 666, 21 L. Ed. 6S3 ; J. E. RUMBELL, 148 U. S. 1, 13 Sup. Ct. 40S, 37 L. Ed. 345. so Emily B. Souder, 17 Wall. 6G6, 21 L. Ed. 6S3. si SARAH ANN, 2 Sumn. 206, Fed. Cas. No. 12,342; Key City, 14 Wall. 653, 20 L. Ed. S96 ; Queen (D. C.) 78 Fed. 155 ; Pacific Coast S. S. Co. v. Bancroft-Whitney Co., 94 Fed. ISO, 36 C. C. A. 135: Queen of the Pacific, ISO U. S. 49, 21 Sup. Ct. 27S, 45 L. Ed. 419: Norfolk Sand & Cement Co. v. Owen, 115 Fed. 778, 53 C. C. A. 96. post p. 392. 106 BOTTOMRY AND RESPONDENTIA (Ch. 4 a mortgage to secure a subsequent debt is a purchaser for value, but not to secure an antecedent debt. 32 As against innocent purchasers, even as short a delay as three months in enforcement, where there was ample opportunity, has been held to render a claim stale. 33 In older days, when voyages were longer, they were often held stale after one voyage. 34 On the Lakes, the limit, in the absence of special circumstances, is one season of navigation. 35 In short, the time varies according to the opportunity of enforcement, the change in the situation of the parties, and the hardship occasioned or avoided by enforcing it or denying it. 36 The supply man acquires his right against the vessel, not only by furnishing necessaries in his own port, but by shipping them to the vessel in another port. 37 Necessaries are not "furnished" to a vessel, unless that particular vessel is in the mind of the parties. Though it may not be necessary to show that they were actually used upon her, an indiscriminate furnishing of necessaries to the owner of a fleet does not give an indiscriminate lien upon the fleet, regardless of the manner in which the necessaries were applied. 38 32CHUSAN, 2 Story, 455, Fed. Cas. No. 2,717; Ella (D. C.) 84 Fed. 471. ■■:■■ Coburn v. Factors' & Traders' Ins. Co. (C. C.) 20 Fed. 644. 3 4 General Jackson, 1 Spr. 554, Fed. Cas. No. 5,314. 36 Hercules, 1 Spr. 534, Fed. Cas. No. 6,401; Nebraska, 00 Fed. 1009, 17 C. C. A. 94. »« Harriet Ann, 6 Biss. 13, Fed. Cas. No. 6,101; Eliza Jane, 1 Spr. 152. Fed. ('as. No. 4,363; CHUSAN, 2 Story, 455, Fed. Cas. No. 2,717; Thomas Sherlock (D. C.) 22 Fed. 253; Tiger (D. C.) 90 Fed. 820. • Marion S. Harris, 85 Fed. 79S, 29 C. C. A. 42S ; Yankee, 233 Fed. 910. 147 C. C. A. 593. 38 James H. Prentice (D. C.) 36 Fed. 777 (decided before the act); Aitcheson v. Endless chain Dredge (D. C.) 40 Fed. 253 (decided before the act); Astor Trust Co. v. B. V. White & Co., 241 Fed. 57, 154 C. C. A. 57. L. R. A. 1917E, 526; Cora P. White (D. C.) 243 V^l 240; Walter Adams. 253 Fed. 20, 165 C. C. A. 40. § 48) SUPPLIES, REPAIRS, AND OTHER NECESSARIES 107 Advances Not only the supply man can proceed against the vessel, but any one who advances money on the credit of the ves- sel, express or implied, for the purpose of paying for such necessaries, has a claim against the vessel. In other words, advances of money under such circumstances are neces- saries. 39 But money lent to the master or owner without reference to the ship, or money advanced to pay off claims not maritime, cannot be collected by suit against the ves- sel. 40 The fourth section of the act specifically provides that it shall not be construed to "affect the rules of law now exist- ing. * * * j n regard to the right to proceed against a vessel for advances." 41 SAME— "NECESSARIES" DEFINED 48. "Necessaries," in this connection, mean whatever is fit and proper for the service on which a vessel is en- gaged. Whatever the owner of that vessel, as a prudent man, would have ordered if present at the time, comes within the meaning of the term, as ap- plied to those repairs done or things provided for the ship by order of the master, or other legal rep- resentative of the owner. Care must be taken to consider the meaning of the term "necessaries," as used in connection with this doctrine of supplies and repairs. In a broad sense of the word, any- thing is necessary for the ship which tends to facilitate her use as a ship or to save her from danger. In that sense 'Emily B. Souder, 17 Wall. 6G6, 21 L. Ed. 6S3; Guiding Star (C. C.) 18 Fed. 263; Worthington, 133 Fed. 725, 66 C. C. A. 555, 70 L. R. A. 353. ., 253 Fed. 689, L65 C. C. A. 283; West- i ucl Co. v. Garcia (C. C. A.) 255 Fed. 817. 59 248 U. S. 308, ."'.I Sup. Ct. 1 L2, 63 I,. Ed. 201. § 49) SUPPLIES, REPAIRS, AND OTHER NECESSARIES 113 undertaken to recognize, amended it so as to read as fol- lows : "In all suits by materialmen for supplies, or repairs, or other necessaries for a foreign ship, or for a ship in a foreign port, the libelant may proceed against the ship and freight in rem, or against the master or owner alone in personam. And the like proceeding in personam, but not in rem, shall apply to cases of domestic ships, for supplies, re- pairs, or other necessaries." The effect of this was to take away the right to proceed in rem for necessaries furnished to domestic vessels, though given by a state statute. And in the St. Lawrence, 60 de- cided soon afterwards, Chief Justice Taney justified this action by saying that the question whether a creditor should proceed in rem or in personam to enforce a mari- time right was a question of procedure, which the court might allow or abolish at its pleasure. This rule remained in this form till May 6, 1872, when the court again amended it so as to read as follows : "In all suits by materialmen for supplies or repairs or other necessaries, the libelant may proceed against the ship and freight in rem, or against the master or owner alone in personam." The effect of this was to give exactly the same procedure in the case of domestic and foreign vessels. It does not mention the existence of a state statute as requisite to the enforcement of a lien against a domestic vessel. If, as Justice Taney says, it is a mere question of procedure which the court can give or take away at will, it is difficult to see why the language of this rule did not give the right independent of state statutes, though the decisions have settled that prior to the act of June 23, 1910, in case of domestic vessels it was only enforced when giv- en by a state statute. But, in the great case of the LOT- TA WANNA, 01 Mr. Justice Bradley said that a right to proceed in rem was not a mere right of procedure, but a so 1 Black, 522, 17 L. Ed. ISO. si 21 Wall. 558, 22 L. Ed. 654. Hughes,Adm.(2d. Ed.) — 8 114 BOTTOMRY AND RESPONDENTIA (Ch. i right of property which the court by rule could not give or take away, and that the amendment of 1872 was not in- tended to give any lien, but merely to remove all impedi- ments in enforcing such as already existed. This being so, the kaleidoscopic changes of the twelfth rule only created confusion. Prior to its enactment in 1844, the right given by state statutes had been enforced, and now, irrespective of the act of June 23, 1910, the rule, as construed by its makers, creates no new right, but merely removes impedi- ments in enforcing a right already existing. The fact is that the whole doctrine is unsatisfactory and illogical in its development. Its difficulties commenced when the court, following the narrow views of the English law, denied that any right of procedure in rem for neces- saries existed in the case of domestic vessels. Any one who reads the dissenting opinion of Mr. Justice Clifford in the LOTTAWANNA CASE will be convinced that by the general principles of maritime law there was no distinction between foreign and domestic vessels, and that it would have saved much confusion and litigation if the court had promptly come out and corrected its error, as it did on the tide-water question. It has been corrected at last by the act. of June 23, 1910, but it took an act of Congress to do it. Mr. Justice Bradley, in the majority opinion of that same case, is forced to say that this idea of a state giving an ad- ditional remedy to an admiralty contract and of a federal court recognizing and enforcing it is anomalous. He at- tributes it to the fact that the state admiralty courts prior to the Constitution recognized and enforced it, and that the new federal judges, many of whom had been state judge-, continued the same jurisdiction, without recognizing their altered relations. Perhaps a stronger reason is that state statutes only in- cidentally affecting commerce, like pilotage laws, quaran- tine laws, and laws authorizing bridges over navigable § 50) SUPPLIES, REPAIRS, AND OTHER NECESSARIES H5 streams, have been upheld as valid in the absence of leg- islation by Congress, and that these statutes belong to the same category. 62 At the same time it must be remembered that the admi- ralty jurisdiction is not dependent upon the commerce clause of the Constitution, but is derived from an entirely different one. 63 The history and changes of the twelfth admiralty rule may be traced in the cases stated in the footnote. 64 In general, this right against domestic vessels was gov- erned by the principles which apply in case of foreign ves- sels. It is prior to nonmaritime liens ; it is not waived by taking a note; it becomes stale usually in less time than in case of foreign vessels, as it is more easily enforceable ; it is given for advances, and for things not merely neces- sary, but fit and proper. SAME— DOMESTIC LIENS AS AFFECTED BY OWNER'S PRESENCE 50. Prior to the act of June 23, 1910, the owner's presence rebutted the presumption of credit to the ship in the case of domestic as well as foreign vessels, but the act abolishes this doctrine, so that the furnish- ing of necessaries to a domestic vessel gives the lien just as in the case of a foreign vessel. Prior to the act there were some decisions holding that under the general terms of state statutes the mere furnish- ing of the service gave a lien on domestic vessels, though 62 21 Wall. 5S1, 5S2, 22 L. Ed. 6G4. es Const, art. 3, § 2; EX PARTE GARNETT, 141 TJ. S. 1, 11 Sup. Ct. S40, 35 L. Ed. 631. 64 GENERAL SMITH. 4 Wheat. 443, 4 L. Ed. 609; St. Lawrence, 1 Black, 522, 17 L. Ed. ISO ; Circassian, Fed. Cas. No. 2.720a ; LOT- TAWANNA, 21 Wall. 558, 22 L. Ed. 054 ; J. E. RUMBELL, 14S U. S. 1, 13 Sup. Ct. 49S. 37 L. Ed. 345. 116 BOTTOMRY AND RESPONDENTIA (Ch. 4 the owner was present, and independent of any understand- ing to that effect. 65 But the better opinion was that the presence of the own- er rebutted the presumption of credit — and hence of a maritime lien — in the case of domestic vessels also. 66 SAME— SHIPBUILDING CONTRACTS 51. A contract for building a ship is not maritime, and hence cannot be enforced in the admiralty, nor can it be made so by a state statute. Such a stat- ute, however, can give a remedy to the state courts for its enforcement. The theory on which these state liens were enforced was that they were maritime in their nature. But a state can- not make a contract maritime which is not in its nature maritime, nor attach a maritime lien to a nonmaritime cause of action. For this reason a state statute cannot cre- ate a right to proceed in the admiralty to enforce a con- tract for building a ship, as the courts have held these con- tracts not marine in their nature. This was first decided by the Supreme Court in People's Ferry Co. of Boston v. Beers. 67 The ground of the decision is that such contracts have no reference to any voyage, that the vessel is then neither registered nor licensed as a seagoing ship, that it is a contract made on land to be performed on land, and there- fore nonmaritime. This decision was during a period when the Supreme Court was leaning against the extension of admiralty juris- r Alvira (D. C.) 63 Fed. 144; McRae v. Bowers Dredging Co. (C. •C.) 86 Fed. 244: Iris, 100 Fed. 104. 40 C. C. A. 301. c6 Guiding Star (C. C.) 18 Fed. 203; Samuel Marshall, 54 Fed. 396, 4 C. 0. A. 385; Electron, 74 Fed. 6S9, 21 C. C. A. 12; Mack S. S. Co. v. Thompson. 176 Fed. 400. 100 C. C. A. 57; Kate, 104 U. S. 458, 17 Sup. Ct. 135, 41 E. Ed. 512. § 51. ct 20 Now. 393, 15 L. Ed. 061. § 51) SUPPLIES, REPAIRS, AND OTHER NECESSARIES 117 diction. It has long repudiated any dependence on the commerce clause for admiralty jurisdiction. 68 And the ar- gument that it was made on land, to be performed on land, recalls the most bigoted period of English common-law jealousy. It is a test no longer insisted on ; for it would debar from the admiralty courts all coppering, painting, or calking on marine railways or in dry docks, and even sal- vage contracts to float a stranded vessel. A shipbuilding contract is not entirely to be performed on land. When a ship first floats upon her destined ele- ment, she is a hulk. Her masts, her sails, her anchors, and general outfit are all added after she is afloat. It might as well be said that a bill of lading signed in an agent's office, and representing cotton alongside a ship in the sheds subject to her order, is a contract made on land, to be per- formed on land. Under the general maritime law, ship- building contracts were maritime. 00 But, however it may be on principle, the law is settled that such contracts are not maritime in their character. 70 This being so, it necessarily followed that a state statute could not make them maritime, and so the court soon held. 71 As the limitation upon these statutes is simply that they shall not interfere with the exclusive jurisdiction of the ad- miralty, it follows that any lien or special process given to enforce any nonmaritime right is valid ; and therefore the Supreme Court has upheld a special remedy conferred by a state statute upon a state court to enforce a shipbuilding contract, for the very reason that it is not maritime. 72 es EX PARTE GARNETT, 141 U. S. 1, 11 Sup. Ct. 840, 35 L. Ed. 631. ss Ben. Adm. § 264. to North Pae. S. S. Co. v. Hall Bros. Marine Ry. & Shipbuilding Co., 219 U. S. 119, 39 Sup. Ct. 221, 63 L. Ed. 510; United Shores (D. C.) 193 Fed. 552. f i Roach v. Chapman, 22 How. 129, 16 L. Ed. 294. 72 Edwards v. Elliott, 21 Wall. 532, 22 L. Ed. 487 ; Iroquois Transp. 118 BOTTOMRY AND RESPONDENTIA (Ch. 4 SAME— VESSELS AFFECTED BY STATE STAT- UTES 52. The better opinion is that state statutes created this lien only on domestic vessels, and that the rights of material men against foreign vessels depended upon the general maritime law. As stated above, the distinction between supplies fur- nished to domestic vessels and to foreign vessels is largely artificial, and it is to be regretted that it was ever made. The symmetry of marine law requires that the general doc- trine be modified as little as possible. If state statutes can regulate not only claims against domestic vessels, but against foreign vessels, they can add liens to maritime caus- es of action that did not exist before, and take them away where they did exist. Consequently, a foreign vessel would find a different law in every port. It is more consistent with principle to hold, as is historically true, that the sole purpose and object of these state laws were to put domestic vessels on the same footing as foreign vessels. The con- verse of this, that they can reduce foreign vessels to the basis of domestic vessels, would be a great anomaly. Ac- cordingly, the best-considered decisions have held that the maritime rights of foreign vessels are independent of these state statutes (as an attempt to regulate them would be to interfere with the general admiralty jurisdiction), and that these statutes regulated only rights against domestic ves- sels. 73 For this reason the fifth section of the act of June 23, 1910, provided that it should supersede all state statutes on the subject. Co. v. Delaney Forge & Iron Co., 205 U. S. 354, 27 Sup. Ct. 509, 51 L. Ed. 836. T8CHUSAN, 2 Story, 455, Fed. Cas. No. 2.717: Lyttdhurst (D. C.) is Fed. 839; Electron, 7! Fed. 689, 21 C. C. A. 12; Roanoke. 189 D. S. L85, 23 Sup. Ct. 491, 47 L. Ed. 770; Corsica Transit Co. v. W. s. Moore Grain Co, 253 Fed. 689, 165 C. C. A. 283. § 54) stevedores' contracts 119 CHAPTER V OF STEVEDORES' CONTRACTS, CANAL TOLLS, AND TOWAGE CONTRACTS 53. Stevedores' Contracts — "Stevedore" Defined. 54. Maritime Character of Contracts, and Liens on Foreign and Domestic Vessels. 55. Privity of Contract Necessary to Lien. 56. Canal Tolls. 57. Towage — "Service" Defined. 58, 59. Responsibility as between Tug and Tow. 60. Degree of Care Required of Tug. 61. For Whose Acts Tug or Tow Liable. STEVEDORES' CONTRACTS— "STEVEDORE" DEFINED 53. A stevedore is a workman or contractor who loads or discharges a ship and properly stows her cargo. SAME— MARITIME CHARACTER OF CONTRACTS, AND LIENS ON FOREIGN AND DO- MESTIC VESSELS 54. A contract for such service is maritime, and gives a maritime lien. The services of a stevedore are essential to the financial success of a ship. The modern ship is intricate and compli- cated in her cargo spaces, and it requires the skill of an expert to load her to advantage. He must not only know- how best to stow the cargo without loss of space, but also how to arrange it so as to trim her properly, putting the heavy nearest the bottom so as not to make her crank ; and he must work with rapidity, for the daily demurrage of ves- sels amounts to a large sum, and every delay means heavy 120 stevedores' contracts, etc. (Ch. 5 loss. In view of the narrow margin on which business is conducted nowadays, the proper stowage, of the cargo makes all the difference between a profit and a loss. In view of the importance of these services, it is surpris- ing that its maritime character could ever have been ques- tioned, yet until recently the preponderance of authority was against it. The probable explanation is that, when ves- sels were small, no great skill was required, and the load- ing was mainly done by the crew themselves. In the Amstel, 1 Judge Betts denied the maritime char- acter of the service on the ground that it was partly to be performed on land, and was no more connected with the good of the vessel than a man who hauls goods to the wharf, and many cases follow this decision without question. But it has been seen that in matters of contract the test is the character of the service, and not its locality. Accord- ingly, in the GEORGE T. KEMP, 2 Judge Lowell held that such services were maritime, and gave the stevedore a right to hold the vessel itself, at least if she was a foreign vessel, and this has been followed in many later cases. 3 Some of these cases hold that, although the service is maritime, the stevedore has his remedy in rem only against a foreign ship, or against a domestic ship where there is a state statute giving it. A typical case drawing this dis- tinction is the Gilbert Knapp. 4 It is a good illustration of the confusion caused in marine law by the distinction drawn between foreign and domestic vessels in connection with §S 53-64. 1 1 Blatchf. & H. 215, Fed. Cas. No. 339. -• Fed. Cas. No. 5,341. sLuckenbach v. Pearce, 212 Fed. 3SS, 129 C. C. A. 64; Rupert City (D. C.) 213 Fed. 263; Atlantic Transport Co. of West Virginia v. Imbrovek, 234 U. S. 52. ::i Sup. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (X. S.) 1157. This last case was a suit by a stevedore for per- sonal injuries, not u suit to enforce a lien for services rendered. it decided thai such service is maritime in character, from which the right to proceed In rem ought to follow as a corollary. 4(D. C.) 37 Fed. 209. § 54) stevedores' contracts 121 the doctrine of the rights of material men. The cases which hold that a stevedore has no lien upon a domestic vessel compare his work and character to that of a material man and follow those analogies. Most of these cases, when ex- amined, will appear to be cases where the vessel actually was a foreign vessel, and where this qualification was put in by the judge, not as a decision, but as a cautious reservation which might protect him in future. 5 But the better opinion is that a stevedore is more like a sailor than a material man. The duties now performed by him under modern demands are the same as those that sailors used to perform. No one has ever supposed that a sailor had no lien on a vessel unless given by a state statute, and this distinction should not be drawn against a steve- dore. Accordingly, in the SEGURANCA, 6 Judge Brown reviews this question, holds that a stevedore is more like a sailor than he is like a material man, and decides that he ought to have a lien even in the home port, just as a sailor would have. But, while the individual workman is like a sailor in his rights when he contracts directly with the ship, the above and other cases draw a distinction between his rights and those of a contracting stevedore who employs laborers and does not work himself. He is held to resemble a material man and his service is on that footing. Hence, in the absence of statute, he would not on this theory have a lien on a domestic vessel. 7 The question is not important since the act of June 23, 1910, 8 abolishing the distinction between domestic and foreign vessels as to the presumption of credit if his service is correct- ly classed as a necessary. If not a lien independent of the act, it would he by virtue of it. s Main, 51 Fed. 954, 2 C. C. A. 569 ; Norwegian S. S. Co. v. Wash- ington, 57 Fed. 224, 6 C. C. A. 313 ; Scotia (D. C.) 35 Fed. 916. « (D. C.) 58 Fed. 908. 7 Rupert City (D. C.) 213 Fed. 263 ; ante, p. 10S. s 30 Stat. 604 (TJ. S. Comp. St. §§ 7783-7787). 122 stevedores' contracts, etc. (Ch. 5 SAME— PRIVITY OF CONTRACT NECESSARY TO LIEN 55. This being a lien arising from contract, only those are entitled to it who have a contract with the vessel. It is not like a subcontractor's lien under a state mechan- ic's lien law. Hence, if a vessel employs a stevedore to load her, he would have a lien, but the workmen employed by him would not, for their contract would be with him, and not with the vessel. So if a vessel comes under a charter party, by which the charterer is to load her and pay a lump sum for her use, it is no interest of the vessel whether the charterer loads her or not. If he does not, he will have to pay the charter price for her use just the same, and no loss would be entailed upon the vessel, as she would get dead freight. In such case, the charterer would be an independ- ent contractor, and, if he employs a stevedore, the latter would have no contract with the vessel itself, and would have to look to him. On principle, this doctrine is clear. The only confusion which has arisen under it at all is that frequently the charterer is not only charterer, but agent of the vessel, having authority from the vessel. If the stevedore deals with him in that capacity, and does not know the limitations of his power, or is not so put upon inquiry as to charge him with knowledge, it may sometimes be the case that the vessel will be bound, but the natural presumption would be the other way." The relation between the stevedore and ship is but a branch of the general law of master and servant, and is for- eign to the present subject. He is so far the agent of the ship as to bind the ship by his acts, even when the charter b That a contract with the vessel must be shown, see Flattie M. Bain (D. C.) 20 IV,]. 389; Mark Lane (D. C.) 13 Fed. S00 ; Cliickhule (D. C.) 120 Fed. 1003. § 56) CANAL TOLLS 123 party expressly requires the ship to employ the charterer's stevedore, as is frequently the case. 10 CANAL TOLLS 56. Tolls due by a vessel for use of a canal are a maritime contract, and can be enforced by a libel in rem in admiralty. In the St. Joseph, 11 ' a corporation was authorized by its charter to improve a navigable stream and charge for the use of the same, and the charter, which was a public one granted by act of the Legislature, made these tolls a lien in rem upon the vessel. The court held that the contract was maritime, and could be enforced in admiralty against the vessel. In the Bob Connell, 12 the court held that a service of this sort was maritime, likened it to the lien of a material man, and held that it could be enforced against a domestic vessel if there was a state statute, and not if there was no statute. As these decisions treat it in the nature of a necessary, it follows that there is no difference between domestic and foreign vessels, but there would be a lien upon both under the act of June 23, 1910. 13 io T. A. Goddard (D. C.) 12 Fed. 174; Brooks v. Hilton-Dodge Lumber Co., 229 Fed. 70S, 144 C. C. A. 118. § 56. ii Fed. Cas. No. 12,230. 12 (C. C.) 1 Fed. 218. 13 36 Stat. 604 (U. S. Coinp. St. §§ 7783-7787). 124 stevedores' contracts, etc. (Ch. 5 TOWAGE— "SERVICE" DEFINED 57. Towage is a service rendered in the propulsion of un- injured vessels under ordinary circumstances of navigation, irrespective of any unusual peril. This has become a topic of steadily increasing impor- tance. The saving of time and diminution of risk accom- plished by the use of tugboats has caused every harbor to be thronged with them, from the wheezing little high-pressure boat that pulls watermelon sloops and oyster pungies, to the magnificent ocean-going triple expansion tugs, equip- ped with machinery, bitts, and hawsers strong enough to tow a fleet. Their services are not limited to towing sail vessels, but in contracted harbors the long, narrow mod- ern steamers, in turning or docking, do not disdain their aid. It is often hard to draw the line between a towage and a salvage service. When a tug is taken by a sound vessel, as a mere means of saving time or from considerations of convenience, the service would be classed as towage, while if the vessel is disabled and in need of assistance, to escape actual or possible risk the service is a salvage service, of a high or low merit according to circumstances. 14 Indeed, a service may start as towage and end as salvage. For instance, a tug starts to tow a vessel from one point to another under contract for a certain sum. The towage con- tract is presumed to cover only the ordinary incidents of the voyage. If a tempest arises of sufficient severity to greatly endanger or to disable the tow, the towage con- tract is abrogated by the vis major, and the tug may claim i* Reward, 1 W. Rob. 174; Princess Alice, 3 W. Rob. 138; Emily B. Soudcr, 15 Blatch. 185 ; Fed. Cas. No. 4,458 ; J. C. Pfluger (D. C.) 109 Fed. 93 ; Lowtbcr Castle (D. C.) 195 Fed. G04. Though the vessel may be partially disabled, the service would still be towage, if she was In no risk. Robert S. Besnard (D. C.) 144 Fed. 992; Josepn F. Clinton. 250 Fed. 977, 163 C. 0. A. 227. §§ 58-59) towage 125 salvage, provided she has not been negligent in unneces- sarily exposing her tow, or bringing about the dangerous situation. 15 SAME— RESPONSIBILITY AS BETWEEN TUG AND TOW 58. The tow is not liable for the tug's acts where the latter directs the navigation. 59. It is liable for its own negligence, and may be for the tug's, where it directs the navigation. The relation between tug and tow, under the American decisions, under ordinary circumstances, is that of inde- pendent contractor, not that of principal and agent. The tug is not the servant or employe of the tow, and therefore the tow is not responsible for the acts of the tug. Hence, if the tow collide with some vessel during the voyage, it is not liable for the damage caused thereby, unless some neg- ligence contributing to the collision is proved against the tow. The law is summarized in STURGIS v. BOYER, 1 ' 6 where the court says: "Looking at all the facts and circum- stances of the case, we think the libelants are clearly enti- tled to a decree in their favor; and the only remaining question of any importance is whether the ship and the steam tug are both liable for the consequences of the colli- sion, or, if not, which of the two ought to be held respon- sible for the damage sustained by the libelants. Cases arise, undoubtedly, when both the tow and the tug are jointly lia- 15 H. B. Foster, Fed. Cas. No. 6,290; Minnehaha, Lush. 335; Mad- ras, [1898] P. 90 ; Harvest Home, [1904] P. 409 ; Id., [1905] P. 177. §§ 5S-59. is 24 How. 110, 16 L. Ed. 591. See, also, Clarita, 23 Wall. 1, 23 L. Ed. 146; Eugene F. Moran v. New York Cent. & H. R. It. Co., 212 I'. S. 466, 29 Sup. Ct. 339, 53 L. Ed. 600; C. W. Mills (D. C.) 241 Fed. 204; Id., 241 Fed. 378, 154 C. C. A. 651: Cromwell (D. C.) 247 Fed. 207; Id. (C. C. A.) 259 Fed. 166; Vio- letta (D. C.) 141 Fed. 690 ; Id., 153 Fed. 1023, 82 C. C. A. 078. 126 stevedores' contracts, etc. (Ch. 5 ble for the consequences of a collision; as when those in charge of the respective vessels jointly participate in their control and management, and the master or crew of both vessels are either deficient in skill, omit to take due care, or are guilty of negligence in their navigation. Other cases may well be imagined when the tow alone would be respon- sible, as when the tug is employed by the master or owner of the tow as the mere motive power to propel their ves- sels from one point to another, and both vessels are ex- clusively under the control, direction, and management of the master and crew of the tow. Fault in that state of the case cannot be imputed to the tug, provided she was prop- erly equipped and seaworthy for the business in which she was engaged ; and, if she was the property of third persons, her owners cannot be held responsible for the want of skill, negligence, or mismanagement of the master and crew of the other vessel, for the reason that they are not the agents of the owners of the tug, and her owners in the case sup- posed do not sustain towards those intrusted with the nav- igation of the vessel the relation of the principal. But whenever the tug, under the charge of her own master and crew, and in the usual and ordinary course of such an em- ployment, undertakes to transport another vessel, which, for the time being, has neither her master nor crew on board, from one point to another, over waters where such accessory motive power is necessary or usually employed, she must be held responsible for the proper navigation of both vessels ; and third persons, suffering damages through the fault of those in charge of the vessel, must, under such circumstances, look to the tug, her master or owners, for the recompense which they are entitled to claim for any in- juries that vessels or cargo may receive by such means. As- suming that the tug is a suitable vessel, properly manned and equipped for the undertaking, so that no degree of neg- ligence can attach to the owners of the tow, on the ground that the motive power employed by them was in an unsea- §§ 58-59) TOWAGE V21 worthy condition, and the tow, under the circumstances supposed, is no more responsible for the consequences of a collision than so much freight; and it is not perceived that it can make any difference in that behalf that a part, or even the whole, of the officers and crew of the tow are on board, provided it clearly appears that the tug was a sea- worthy vessel, properly manned and equipped for the en- terprise, and from the nature of the undertaking, and the usual course of 'conducting it, the master and crew of the tow were not expected to participate in the navigation of the vessel, and were not guilty of any negligence or omission of duty by refraining from such participation. Vessels en- gaged in commerce are held liable for damage occasioned by collision, on account of the complicity, direct or indirect, of their owners, or the negligence, want of care or skill, on the part of those employed in their navigation. Owners appoint the master and employ the crew, and consequently are held responsible for their conduct in the management of the vessel. Whenever, therefore, a culpable fault is com- mitted, whereby a collision ensues, that fault is imputed to the owners, and the vessel is just as much liable for the con- sequences as if it had been committed by the owner him- self. No such consequences follow, however, when the per- son committing the fault does not, in fact, or by implica- tion of law, stand in the relation of agent to the owners. Unless the owner and the person or persons in charge of the vessel in some way sustain towards each other the re- lation of principal and agent, the injured party cannot have his remedy against the colliding vessel. By employing a tug to transport their vessel from one point to another, the owners of the tow do not necessarily constitute the mas- ter and crew of the tug their agents in performing the serv- ice. They neither appoint the master of the tug, or ship the crew, nor can they displace either the one or the other. Their contract for the service, even though it was nego- tiated with the master, is in legal contemplation made with 128 stevedores' contracts, etc. (Ch. 5 the owners of the vessel, and the master of the tug, not- withstanding the contract was negotiated with him, con- tinues to be the agent of the owners of his own vessel, and they are responsible for his acts in her navigation." The courts hold the relation between tug and tow to re- semble that between the hirer and driver of a livery-stable carriage. The hirer merely designates the destination, and as the driver is not employed or selected by him, but by the livery-stable keeper, the hirer is not liable for his acts. 17 But if the tow is the dominant mind, and the tug merely furnishes the motive power and acts under the tow's orders, the responsibility would be upon the tow, though the tug would be liable for its own negligence. 18 The English courts are inclined to regard the tug as the servant of the tow, and to hold the tow liable for the tug's negligence. 19 But the difference between the American and English de- cisions is more apparent than real. The statements of facts in the English cases show that it is the usual practice in England to have the master of the tow direct the naviga- tion of both vessels. In such case, the negligence would be that of the tow rather than the tug; and so the English courts have settled upon the doctrine that the question whether the tug is the agent of the tow or an independent contractor is a question dependent upon the special circum- stances of each case. 20 The relative duties of tug and tow are explained in DUT- TON v. THE EXPRESS. 21 If the tow is fastened along- 17 Quarman v. Burnett, 6 M. & W. 499. i« In re Walsh, 136 Fed. 557, G9 C. C. A. 267; Degama, 150 Fed. 323, 80 C. C. A. 93. > ' Xiobe, 13 P. D. 55; Isca, 12 P. D. 34. 20 Quickstep, 15 P. D. 196; America, L. It. 6 P. C. 127; Smith v. Towboat Co., L. R. 5 P. C. 308; Devonshire, [1912] A. C. 634. Note especially the discussion of the American and English deci- sions on the subject in Marsden on Collision (7th Ed.) 193 et seq. 213 Cliff. 462, Fed. Cas. No. 4,209. § 60) TOWAGE 129 side the tug, and the tug has full charge of the navigation, then the liability for a collision would be upon the tug. If the tow is towing at the end of a hawser, the liability would be upon the tug if the tow steered properly, and would be upon the tow if the proximate cause of the collision was wild steering on her part. Even if she was steering properly, and the tug steered her into danger, she would be responsible to the injured vessel if by changing her helm or taking any oth- er reasonable precautions she could avoid the consequences of the tug's negligence, for it would be her duty to avoid collision if she could do so. It is also the duty of the tow to arrange the hawser at her end. 22 The tug is entitled to rely upon the statement of the tow as to the draft of the latter, and is not required to examine the tow's footmarks. 23 SAME— DEGREE OF CARE REQUIRED OF TUG 60. A tugboat is not a common carrier, and is liable only for lack of ordinary care, as measured by prudent men of that profession. There are some early decisions to the effect that a tug boat is a common carrier, but the later authorities have set- tled thoroughly that it is not, but only an ordinary bailee, liable for ordinary negligence. It is also settled that the occurrence of an accident raises no presumption against the tug, and that the burden is on the complaining party to prove a lack of ordinary "care. 24 At the same time, the ordi- 22 Isaac H. Tilly er (D. C.) 101 Fed. 47S ; America, 42 C. C. A. 617, 102 Fed. 767; Virginia Ehrinan, 97 U. S. 309-315, 24 L. Ed. S90; Imperial (D. C.) 38 Fed. 614, 3 L. R. A. 234 ; Pederson v. Spreckles, 31 C. C. A. 30S, 87 Fed. 938 ; Doris (D. C.) 108 Fed. 552 ; Maurice, 135 Fed. 516, 68 C. C. A. 228: C. W. Mills (D. C.) 241 Fed. 204; Id., 241 Fed. 37S, 154 C. C. A. 651. 2 3 Coney Island (D. C.) 115 Fed. 751; Royal (D. C.) 13S Fed. 416. § 60. 24 EASTERN TRANSP. LINE v. HOPE, 95 U. S. 297, 24 L. Hughes,Adm.(2d Ed.) — 9 130 stevedores' contracts, etc. (Ch. 5 nary care required of those engaged in the profession of towing is a high one, for they hold themselves out as ex- perts. The measure of care required is similar to that required of pilots. In fact, they are pilots. 23 As an expert, a tugboat man must know the channel and its usual currents and dangers, and the proper method of making up tows. He is liable for striking upon obstructions or rocks in the channel which ought to be known to men experienced in its navigation, but not for those which are unknown. 26 He is required to have such knowledge of weather indications as experienced men of his class are supposed to have, though it would not be negligence in him to start to sea with his tow where the weather bureau pre- dicted good weather. Nor would it be negligence to start on inland navigation merely because the weather bureau indicated storms at sea. 27 A tugboat man who contracts to perform a service im- pliedly warrants that his tug is sufficiently equipped and efficient to perform the service, though he would not be lia- ble for any breakdown arising from causes which ordinary care could not have discovered and prevented. 28 Ed. 477 ; Atlantic City, 241 Fed. 62, 154 C. C. A. 62 ; Kunkle Bros. (D. C.) 211 Fed. 540. 25 Margaret, 94 U. S. 494, 24 L. Ed. 146: Mount Hope, 29 C. C. A. 365, 84 Fed. 910; Syracuse (D. C.) 84 Fed. 1005; Somers N. Smith (D. C.) 120 Fed. 569 ; Consolidated Coal Co. v. Knickerbocker Steam Towage Co. (D. C.) 200 Fed. 840. 20 Ashbourne (D. C.) 206 Fed. S61 ; Louisa (D. C.) 209 Fed. 1001; 215 Fed. 92, 131 C. C. A. 400; Mason, 249 Fed. 718, KJ1 C. C. A. 628; Westerly, 249 Fed. 93S, 162 C. C. A. 130 ; Cray's Harbor Tug- boat Co. v. Petersen, 250 Fed. 956, 163 C. C. A. 206. 21 Victoria, 37 C. C. A. 40, 95 Fed. 1S4 ; William H. Yerkes, Jr. (D. C.) 214 Fed. 881 ; May McGuirl (D. C.) 215 Fed. 805 ; Salutation (D. C.) 239 IV, l. 421. 28 Undaunted, 11 P. D. 46; Ratata, [1898] A. C. 513; Charles B. Sandford, 204 Fed. 77, 122 C. C. A. 391 : Enterprise (D. C.) 228 Fed. i:;i ; Ooleman v. Aiken, 242 Fed. 239, 155 C. C. A. 79. § 61) TOWAGE 131 SAME—FOR WHOSE ACTS TUG OR TOW LIABLE 61. A tug and tow are liable, either in contract or in tort, only for the acts and defaults of those who are the lawful agents or representatives of their owners. Hence, if a charterer employs a tug to tow his vessel and under the terms of the charter party he has no right to bind the vessel for such contracts and this is known to the party dealing with him, the vessel would not be liable for the tow bill. So, too, if the tug at the time is in the hands of parties who have no right to her use, she would not be liable in rem for torts committed or contracts made by them. 29 A towage contract is pre-eminently maritime, and may be enforced against the tug or tow. 30 The better opinion is that a towage service is not a nec- essary in the sense in which that word is used when the rights of material men are under consideration, and does not depend upon state or federal statutes for its existence, but is a distinct class of marine service. 31 § 61. 2 9 Mary A. Tryon (D. C.) 93 Fed. 220; Tasmania, 13 P. D. 110; Anne, 1 Mason, 508, Fed. Cas. No. 412: Clarita, 23 Wall. 11, 23 L. Ed. 146 ; J. Doherty (D. C.) 207 Fed. 907. so Ward v. Banner, Fed. Cas. No. 17,149; Williams, 1 Brown, Adm. 208, Fed. Cas. No. 17,710; Erastina (D. C.) 50 Fed. 126; Knapp, Stout & Co. Company v. McCaffrey, 177 U. S. 638, 20 Sup. Ct. 824, 44 L. Ed. 921; Holthe (D. C.) 249 Fed. 783; Energy, L. R. 3 A. & E. 4S; International (C. C, A.) 256 Fed. 192 (failure of tug to come to aid of signaling vessel entitled to her services gives suit in personam, not in rem). 3i J. Doherty (D. C.) 207 Fed. 997; Hatteras, 255 Fed. 518, 166 O. C. A. 586. Ante, p. 108. 132 SALVAGE (Ch. 6 CHAPTER VI OF SALVAGE 62. Nature and Grounds. 63. "Salvage" Defined — Elements of Service. 64. The Award — Amount in General. 65. Elements of Compensation and Bounty. 66. Incidents of the Service. 67. Salvage Contracts. 68. Salvage Apportionment. 69. Salvage Chargeable as between Ship and Cargo. NATURE AND GROUNDS 62. Salvage is peculiarly maritime in its nature. It is awarded on grounds of public policy, and is inde- pendent of contract. This is one of the most interesting branches of marine jurisprudence. It is more purely maritime in its nature than any heretofore discussed. It finds no analogy in the common law, nor, indeed, as far as procedure is concerned, in the chancery law, though it largely partakes of equitable principles in its administration. Both the common-law and chancery courts enforce rights of positive obligation aris- ing either from contract or from a violation of some binding duty which one man owes to another in the organization of modern society. Duties of imperfect obligation appeal in vain to those courts. But the right of salvage depends on no contract. A sal- vor who rescues valuable ships or cargoes from the grasp of wind and wave, the embrace of rocky ledges or the devour- ing flame, need prove no bargain with its owner as the basis of recovering a reward. He is paid by the courts from motives of public policy — paid not merely for the § 62 NATURE AND GROUNDS 133 value of his time and labor in the special case, but a bounty in addition, so that he may be encouraged to do the like again. In an early case Chief Justice Marshall contrasted the doctrines of the common-law and marine courts on the subject: "If the property of an individual on land be ex- posed to the greatest peril, and be saved by the voluntary exertions of any person whatever, if valuable goods be res- cued from a house in flames, at the imminent hazard of life, by the salvor, no remuneration in the shape of salvage is allowed. The act is highly meritorious, and the service is as great as if rendered at sea, yet the claim for salvage could not perhaps be supported. It is certainly not made. Let precisely the same service, at precisely the same hazard, be rendered at sea, and a very ample reward will be bestowed in the courts of justice.'' x This same comparison is made in the interesting English case of Falcke v. Insurance Co. 2 While salvage does not necessarily spring from contract, it may do so, and in fact usually does so ; the most frequent instances to the contrary being services to derelicts. In modern times the greater use of steamers and better meth- ods of construction render these cases rare, and make nearly all the cases with which we have to deal spring from con- tract. Hence salvage is classified in this treatise under con- tract rights, sacrificing logic to convenience. These contracts, as in other branches of the law, may be express or implied. A service rendered to a distressed ves- sel with the acquiescence of those in charge implies an § 62. i Blaireau, 2 Cranch, 240, 2 L. Ed. 266. 2 34 Ch. D. 234. The origin and early history of the law of salvage may be found in Lord Hale's tract De Jure Maris (Hall on Sea- shore [2d Ed.] Appx. xxxvii), the essay of Mr. Mears on the Ad- miralty Jurisdiction reprinted in 2 Select Essays in Anglo-American Legal History, 331, note, and in Mr. Marsden's Introduction to 2 Select Pleas in Admiralty (published by the Selden Society) xxr et seq. 134 SALVAGE (Ch. 6 agreement for payment therefor, though not a word is said about price. 3 "SALVAGE" DEFINED— ELEMENTS OF SERVICE 63. Salvage is the reward allowed for a service rendered to marine property, at risk or in distress, by those un- der no obligation (independent of statute) to render it, which results in benefit to the property if even- tually saved. "A Service Rendered" Space forbids the enumeration of all services that have been held by the courts to be included in these words. The following may be named rather as illustrations than as a catalogue : (1) Towage of disabled vessels. 4 (2) Piloting or navigating endangered ships to safety. 5 (3) Removing persons or cargo from endangered vessel. (4) Saving a stranded ship and cargo. 7 (5) Raising a sunken ship or cargo. 8 3 Gould v. U. S., 1 Ct. CI. 184 ; Bryan v. U. S., 6 Ct. 01. 128 ; Potomac Steamboat Co. v. Baker Salvage Co., 123 U. S. 40, 8 Sup. Ct. 33, 31 L. Ed. 75. Compare U. S. v. Cornell Steamboat Co., 202 U. S. 184, 26 Sup. Ct. 648, 50 L. Ed. 9S7. § 63. * AKABA, 54 Fed. 197, 4 C. C. A. 281 ; Blake v. Baltimore & C. S. S. Co. of Baltimore City, 211 Fed. 116, 128 C. C. A. 577; Roanoke, 214 Fed. 63, 130 C. C. A. 503 ; Adelaide T. Carleton (D. C.) 215 Fed. 932 ; Antilla (D. C.) 245 Fed. 973. 6 Anna, 6 Ben. 166, Fed. Cas. No. 398 ; Alamo, 75 Fed. 602, 21 C. C. A. 451 ; J. L. Bowen, 5 Ben. 296, Fed. Cas. No. 7,322. « John Wesley, Fed. Cas. No. 7,433; Sir William Armstrong (D. C.) 53 Fed. 145. r Sandrlngham (D. C.) 10 Fed. 556; Kimberley (D. C.) 40 Fed. 289; St. Charles (D. C.) 254 Fed. 509; Teresa Accama (IX 0.) 254 Fed. 0;',7; Kia Ora, 252 Fed. 507, 164 C. C. A. 423. s Camanehe, 8 Wall. 448, 19 L. Ed. 397 ; Eads v. II. D. Bacon, 1 Newb. 274, Fed. Cas. No. 4,232; Isaac Allcrton, Fed. Cas. No. 7,088; Silver Star (1). C.) 207 Fed. 600. § 63) "salvage" defined — ELEMENTS of service 135 (6) Saving a derelict or wreck. 9 (7) Taking aid to a distressed ship or information for her to port. 10 (8) Saving people in boats of distressed ship. 11 ' (9) Protecting ship, cargo, or persons aboard from pi- rates or wreckers. 12 (10) Furnishing men or necessary supplies or appurte- nances to a ship which is short of them. 13 (11) Saving a ship, cargo, or persons aboard from fire either aboard or in dangerous proximity. 14 (12) Standing by a distressed ship. 15 (13) Removing a ship from an ice floe or any impending danger. 1 ' 6 "To> Marine Property" It is difficult to understand why the motives of public policy on which the law of salvage is based do not apply to the rescue of any property in danger on navigable waters, whether such property ever formed part of a vessel or cargo or not. If, for instance, a passenger on a train crossing a 9 Janet Court, [1897] P. 59; Thomas W. Haven (D. O.) 48 Fed. 842 ; Fisher v. Sybil, 5 Hughes, 61, Fed. Cas. No. 4,824 ; Sprague v. 140 Barrels of Flour, 2 Story, 195, Fed. Cas. No. 13,253. io Undaunted, Lush. 90; Marguerite Molinas (1903) P. 160; Flott- bek, US Fed. 954, 55 C. C. A. 448. ii Cairo, L. E. 4 A. & E. 184. 12 Porter v. Friendship, Fed. Cas. No. 10,783. is Butterworth v. Washington, Fed. Cas. No. 2,253; Lamar v. Penelope, Fed. Cas. No. 8,007; F. I. Merryman (D. C.) 27 Fed. 313; .F:olus, L. R. 4 A. & E. 29. i* BLACKWALL, 10 Wall. 1, 19 L. Ed. 870; Lydia (D. C.) 49 Fed. 666; Boyne (D. C.) 98 Fed. 444; Connemara, 10S U. S. 352, 2 Sup. Ct. 754, 27 L. Ed. 751 ; J. M. Guffey Petroleum Co. v. Borison, 211 Fed. 594, 128 C. C. A. 194; Alice, 244 Fed. 415, 157 C. C. A. 41. is Maude, 3 Asp. 338; Allen v. Canada, 1 Bee, 90, Fed. Cas. No. 219. is Adams v. Island City, 1 Cliff. 210, Fed. Cas. No. 55; Staten Island & N. Y. Ferry Co. v. Thomas Hunt, Fed. Cas. No. 13,326; In re 50,000 Feet of Timber, 2 Low. 64, Fed. Cas. No. 4,783. 136 SALVAGE (Ch. 6 bridge should drop a bag of gold or a valuable jewel case into a navigable stream, the salvor should be as much en- titled to a reward as if it had been dropped from the deck of a steamer. But in view of the decision of the Supreme Court in COPE v. VALLETTE DRY-DOCK CO. OF NEW ORLEANS, 17 and the decision of the House of Lords in the Gas Float Whitton Case, 1 ' 8 it is a matter of great doubt whether salvage can be claimed against anything not con- nected in some way with a vessel of some character. 19 But if the subject of the salvage service is a ship or something connected therewith, its maritime character is not affected by the fact that it is not rendered on the wa- ter. Hence such service rendered to a vessel in a dry dock, whether the dock at the time has been pumped dry or not, comes under this doctrine. 20 "At Risk or in Distress" This does not imply actual, imminent danger. It is a sal- vage service if the vessel is in such a condition as to be in need of assistance, though no immediate danger threatens. The test is thus defined by Dr. Lushington : "All services rendered at sea to a vessel in distress are salvage services. It is not necessary, I conceive, that the distress should be immediate and absolute ; it will be sufficient if, at the time the service is rendered, the vessel has encountered any dam- 17 119 U. S. 625, 7 Sup. Ct. 336, 30 L. Ed. 501. is [1897] A. C. 337. i» See the discussion of this subject ante. p. 14. Among the sub- jects considered at the inquisitions of the Cinque Ports Admiralty as far back as the loth century was: "That A. B. found floating upon the sea 'unam marinam piscem vocatam whale or purpeys. * * * ' That A. B. found floating upon the sea a dead man, and on him some money." 2 Select Pleas in Admiralty, xxviii. 20 Jefferson, 215 U. S. 130, 30 Sup. Ct. 54, 54 L. Ed. 125, 17 Ann. Cas. 907; Neshamlny (D. C.) 220 Fed. 182; Id.. 228 Fed. 285, 1 12 C. C. A. 577; Gulfport (D. C.) 243 Fed. 676; Id., 250 Fed. 577, 162 G C. A. 593. § 63) "salvage" defined — ELEMENTS of service 137 age or misfortune which might possibly expose her to de- struction if the services were not rendered." 21 Accordingly, in the Albion, 22 a tug was allowed a salvage reward for bringing in a ship which had inadequate ground tackle, though no immediate storm threatened. And in the Ellora, 23 under similar weather conditions, salvage was al- lowed for bringing in a steamer which had lost her crew, though she was fully rigged with sails. The hoisting of a signal for help is evidence that help is needed. 24 "By Those under No Obligation to the Vessel to Render It" This is usually briefly expressed in the books by speaking of salvage as a service "voluntarily rendered," and is meant to exclude services rendered by those under some contrac- tual or binding obligation. 25 Hence, as a rule, the crew of the distressed vessel cannot claim salvage, for that is a part of their duty. Nor can her pilot, for the same reason. Nor can the tug towing her, under ordinary circumstances, for that is a part of the contract of towage. Nor can a passen- ger, for he is working as much to save himself as to save the vessel. Nor can the life-saving crews, for they are paid to do that very work. Independent of statute, there was no obligation beyond a moral one upon any other vessel to render aid to vessels in distress. But on August 1, 1912, an act was passed, the second section of which made it obligatory to render aid as far as necessary to protect human life, and as far as can 2i Charlotte, 3 W. Rob. 68. See, also, Calyx, 27 T. L. R. 166; Rambler, [1917] 2 Ir. 406; Hekla (D. C.) 62 Fed. 941; Urko Mendi (D. C.) 216 Fed. 427. 22 Lush. 2S2. 2 3 Lush. 550. 24 m. B. Stetson, Fed. Cas. No. 9,363; Mira A. Pratt (D. C.) 31 Fed. 572. 25 Fannie Brown (D. C.) 30 Fed. 215. 138 SALVAGE (Ch. 6 be done without serious danger to the salving vessel, her crew or passengers. 26 Hence the old expression in the books "by those under no legal obligation to render it," is to that extent modified. There are circumstances under which these different classes may claim salvage, but an examination will show that, so far from weakening the general rule above stated, these circumstances emphasize and confirm it. Same — The Crew The reason why they cannot ask salvage is that they are but fulfilling their contract of hiring when they work to save their ship. Hence, after the dissolution of such con- tract, they are free to claim it. Accordingly, in the War- rior, 27 where a ship had gone aground and her master took his crew ashore and discharged them, some of the crew who came back subsequently, and saved much of her stores and cargo, were allowed to claim salvage. In the Florence, 28 the master abandoned his vessel at sea and took the crew ashore. Some of them returned to the wreck in another vessel, and assisted in saving the Flor- ence. They were held entitled to salvage. In the Le Jonet, 29 all the crew but the mate left the ves- sel, which had been injured in collision. He remained aboard, hoisted signals of distress, and secured thereby the aid of a steamer, which took her into port. He was awarded salvage. 26 37 Stat. 242 (U. S. Comp. St. § 7091), Appx. 425. 27 Lush. 476. 2 8 16 Jur. 572. 2» L. R. 3 A. & E. 556. See, on the general subject, C. F. Biel- inan (D. C.) 108 Fed. 878; Gilbraith v. Stewart Transp. Co.. 121 Fed. 540, 57 C. C. A. 602, til L. R. A. 193; Comet (D. C.) 205 Fed. 991 ; Zapora (D. C.) 205 Fed. 1004; Georgiana, 245 Fed. 321, 157 C. C. A. 513. § 63) "salvage" defined — ELEMENTS op service 139 Same — The Pilot A pilot cannot claim salvage for ordinary pilotage serv- ices, as they are covered by his pilot's fee. If, however, he does work outside the duties of a pilot, like working at the pumps or laying anchors and cables, he may claim as salvor. Perhaps the best expression of the principle is Dr. Lush- ington's remarks in the Saratoga : 30 "In order to entitle a pilot to salvage reward, he must not only show that the ship is in some sense in distress, but that she was in such dis- tress as to be in danger of being lost, and such as to call upon him to run such unusual danger, or incur such unusual responsibility, or exercise such unusual skill, or perform such an unusual kind of service, as to make it unfair and unjust that he should be paid otherwise than upon the terms of salvage reward." An important case on the subject is Akerblom v. Price. 31 The awards to state pilots, however, are moderate from motives of public policy, and the temptation which high awards might offer. 32 Same — The Tug Under the head of towage, the circumstances under which a towage contract may be turned into a salvage service not contemplated by the original contract have already been discussed. Ante, p. 124, c. 5, § 57. Same — Passengers Services rendered by a passenger in common with others can give no claim to salvage, as he is working for that self- preservation which is the first law of nature. But when he has an opportunity of saving himself, and stays by the ship instead of embracing such opportunity, his situation is an- 30 Lush. 31S. 317 Q. B. D. 129. See, also, Monarch, 12 P. D. 5 ; Bedeburn, [1914] P. 146, 30 T. L. R. 513. 32 Relief (D. C.) 51 Fed. 252. 140 SALVAGE (Ch. 6 alogous to the crew after the dissolution of their relation to the ship, and he may earn salvage. 33 So, too, a passenger who renders special services differ- ent from the rest of those aboard, as one who rigged up an ingenious steering apparatus for a disabled vessel, was awarded salvage in Towle v. Great Eastern, 34 though this is nearer the border line, and is hard to reconcile with the decision of Lord Stowell in the leading case of the BRAN- STON. 35 Same — Government Employes These cannot claim salvage for acts done as part of their public duties, as when the life-savers remove a crew or their property from a wreck, or a vessel of the navy suppresses a mutiny on a merchant vessel. But the better opinion is that they may claim for services outside their regular duties. For instance, in the Cargo of the Ulysses, 38 men from a vessel of the royal navy were refused salvage for protecting a wreck from plunderers, but allowed it for work in remov- ing cargo. Parties Responsible for the Peril Those identified with a vessel which has caused the dan- ger by a careless collision can not claim salvage. 37 "Which Results m Benefit to the Property if Eventually Saved" It is usually said that success is essential to constitute a salvage service ; for unless the property is saved it is not as Newman v. Walters, 3 Bos. & P. 612. 34 Fed. Cas. No. 14.110. In Connemara, 108 U. S. 352, 2 Sup. Ct. 754, 27 L. Ed. 751, a passenger was allowed salvage for first dis- covering a fire and then for extraordinary services in the handling of the steam pump and hose. 30 2 Hagg. Ad. 3, note; Candee v. 68 Bales of Cotton (D. C.) 4S Fed. 47'.). 36 13 p. D. 205. See, also, Cayo Bonito, [1904] P. 310; Sarpen, [1916] P. 306; Carrie, [1917] P. 224. BTClarita, 23 Wall. 1, 23 L. Ed. 14G; Noreuga (D. C.) 211 Fed. 355; Due d'Aumale, [1904] P. GO. § 63) "salvage" defined — ELEMENTS op service 141 a service, as a benefit actually conferred is thevery founda- tion. A salvor may find a ship a thousand miles at sea, but if he loses her at the very harbor bar he forfeits his claim ; for he has conferred no benefit upon her or her owners. 38 Hence salvage awards are made sufficiently liberal to pay not only for the special service, but to encourage salvors to undertake other enterprises not so promising. And there- fore salvors who do not complete their job can claim noth- ing if the vessel is subsequently rescued by other salvors, unless their efforts result in placing the vessel in a better position, and thereby facilitating the work of subsequent salvors. For instance, in the KILLEENA, 39 a vessel put five of her crew aboard the Killeena, which was a derelict, to bring her into port. After a few days, they had enough of it, and were taken aboard another vessel at their own request. The second vessel then put some of her crew aboard, and took her in tow until the rope broke. The second crew secured the assistance of a steamer, stuck by the derelict, and brought her in. The first set were refused salvage, but the others were allowed it. In the Camellia, 40 a steamer towed the Camellia for half a day, and then had to leave her. But she had towed her 85 miles nearer to port, and about 12 miles nearer her course, thus giving her a better position. The Camellia reached port, and the Victoria was allowed a small sum as salvage. An indirect service to a second vessel by towing away from her vicinity a vessel in peril and to which the direct service is being rendered does not give any claim against the second vessel. 41 38 Sabine, 101 U. S. 384, 25 L. Ed. 982; Connemara, 108 U. S. 352, 2 Sup. Ct. 754, 27 L. Ed. 751. so 6 P. D. 193. 409 P. D. 27. See, also, August Korff, [1903] P. 166; I. W. Nich- olas (D. C.) 147 Fed. 793 ; City of Puebla (D. C.) 153 Fed. 925. 41 Thomas Hilyard (D. C.) 55 Fed. 1015; City of Columbia (D. C.) 56 Fed. 252 ; San Cristobal, 230 Fed. 599, 144 C. C. A. 653. 142 SALVAGE (Ch. 6 THE AWARD— AMOUNT IN GENERAL 64. The amount of a salvage award varies according to the character and skill of the salvors, the locality, the inducements necessary to encourage the serv- ice, the value of the property saved or of the salvor's property at risk, the danger to salvors and saved, the skill and labor involved, and the degree of suc- cess achieved. Having discussed the general nature of salvage, the ques- tion of degree must now be considered, and the circum- stances which swell or reduce the award. From a simple service that is salvage only in name, to those acts of heroism whose bare recital quickens the pulse, the range is immense. Hence no rule can be laid down by which a salvage service can be measured accurately. Each case has its peculiar circumstances, and the amount of a salvage award is largely a matter of judicial discretion, varying with the idiosyncrasies of the judge, and regulated only by certain general rules. These are largely corollaries from the fundamental doctrine that salvage is the out- growth of an enlightened public policy, and is awarded, not merely on a niggardly calculation pro opere et labore in the special case, but as an encouragement to induce the salvor and future salvors to incur risk in saving life and property. SAME— ELEMENTS OF COMPENSATION AND BOUNTY 65. A salvage award consists of two elements: (a) Compensation for actual outlay and expenses made in the enterprise. (b) The reward as bounty, allowed from motives of pub- lic policy as a means of encouraging extraordinary exertions in the saving of life and property. § 65) THE AWARD 143 The first of these items is practically a constant quantity ; as a salvor, if his service is important, is always entitled, at least, to be repaid his expenses and to be paid for his labor. The second element of salvage, or the bounty element, is the variable quantity in salvage awards. Being given on motives of public policy, it is more or less according to the merits of the service and the ability of the owners to con- tribute out of the funds saved. 42 The element of expense is always considered by the court, and usually allowed specifically, but not necessarily so. On this subject the House of Lords, in the DE BAY, 43 says : "It was contended that some of these items ought not to be taken into consideration at all, as, for instance, the loss on charter; and it was further contended that in no case ought the items of loss or damage to the salving vessel be allowed as 'moneys numbered,' but that they should only be gener- ally taken into account when estimating the amount to be awarded for salvage remuneration. Their lordships are of opinion that this objection is not well founded. It was ar- gued that by allowing the several items of the account, and then a further sum for salvage, the salvors would receive payment for their losses twice over; but this is only on the supposition that the court below, after giving the amount of the alleged losses specifically, has considered them again generally in awarding £5,000 for simple salvage services. It is not to be presumed that the learned judge has fallen into such an error, and, indeed, it appears that he has not done so, but that he considered the £5,000 a reasonable amount for salvage reward, wholly irrespective of damage and expenses. Their lordships are of opinion that it is al- ways justifiable, and sometimes important, when it can § 65. 42 Egypt (D. C) 17 Fed. 359: Pleasure Bay (D. C.) 226 Fed. 55. 43 8 A. C. 559. See, also, Fairport, [1912] P. 168 ; Angele, [1901] A. C. 549; Pelican (D. C.) 15S Fed. 183. 144 SALVAGE (Ch. 6 be done, to ascertain what damages and losses the salv- ing vessel has sustained in rendering the salvage service. It is frequently difficult and expensive, and sometimes im- possible, to ascertain with exactness the amount of such loss, and in such case the amount of salvage must be as- sessed in a general manner, upon so liberal a scale as to cover the losses, and to afford also an adequate reward for the services rendered. In the assessment of salvage regard must always be had to the question whether the property saved is of sufficient value to supply a fund for the due reward of the salvors, without depriving the own- er of that benefit which it is the object of the salvage services to secure him. If, as in the present case, the fund is ample, it is but just that the losses voluntarily incurred by the salvor should be transferred to the owner of the prop- erty saved, for whose advantage the sacrifice has been made, and, in addition to this, the salvor should receive a compen- sation for this exertion and for the risk he runs of not re- ceiving any compensation in the event of his services prov- ing ineffectual ; for, if no more than a restitutio in integrum were awarded, there would be no inducement to shipowners to allow their vessels to engage in salvage services. If there be a sufficient fund, and the losses sustained by the salvor are ascertained, it would be unreasonable to reject the assistance to be derived from that knowledge when fixing the amount of salvage reward, and their lordships are unable to appreciate the argument that that which is known may be taken into account generally, but not spe- cifically." Professional Sakors It follows from these considerations that the greatest en- couragement should be extended to those most competent to render the service. Hence the courts look with special favor on the efforts of steamers, and will not diminish their award on account of the rapidity of their service, but rather § 65) THE AWARD 145 incline to enhance it, as promptness is specially commend- able. 44 Special favor is shown to steamers equipped for salvage work and to professional salvors, in view of the large ex- pense of being always ready, even when no wrecks are re- ported, the rapid deterioration of such property, the diffi- culty in protecting it by insurance, and the importance of having the business in the hands of reputable men. 45 Locality as Affecting the Azvard The awards may vary with the locality. The courts of the South Atlantic Coast have felt called upon to be liberal to salvors, on account of the special dangers of that coast, including Hatteras, the turning point of the winds, and a long and desolate seaboard devoid of harbors and populous cities. From these causes and the comparative fewness of craft, the dangers of distressed vessels are multiplied, and hence the same service is better paid than if rendered on the Northern Coast, where harbors are abundant and pass- ers-by are frequent. 46 Increase or Diminution of Previous Rate of Alloiuance Salvage awards, being made on grounds of public policy, may vary at different times. If the courts find that the in- ducements held out are not sufficiently liberal to secure the service, if they find that distress signals are unheeded and valuable property abandoned, they will increase their awards, and, vice versa, if smaller awards will secure such efforts, they will diminish them. 47 44 London Merchant, 3 Hagg. Ad. 394 ; Swiftsure (D. C.) 4 Fed. 463; Colon (C. C) 4 Fed. 469. 45GLENGYLE [1898] P. 97; Id., [1S9S] A. C. 519; Susan. 1 Spr. 499, Fed. Cas. Xo. 13.&30 ; Camanehe, 8 Wall. 448, 19 L. Ed. 397 ; St. Paul (D. C.) 82 Fed. 104 ; Id.. 86 Fed. 340, 30 C. C. A. 70. 46 Mary E. Dana, 5 Hughes, 362, 17 Fed. 35S ; Fannie Brown (D. C.) 30 Fed. 222, 223 ; Cohen, Adm. 131. 47 Daniel Steinman (D. C) 19 Fed. 921, 922; Edam (D. C.) 13 Fed. 140. 141. HuGHES,ADiT.(2D Ed.)— 10 146 SALVAGE (Ch. 6 SAME— INCIDENTS OF THE SERVICE 66. In addition to the above general considerations, the fol- lowing elements in each special case enhance or diminish the amount of the award, according to their relative degree. (a) The degree of danger from which the lives or prop- erty are rescued. (b) The value of the property saved. (c) The value of the salvor's property employed and the danger to which it is exposed. (d) The risk incurred by the salvors. (e) The skill shown in the service. (f) The time and labor occupied. (g) The degree of success achieved, and the proportions of value lost and saved. 48 The Danger The largest awards have usually been given where life was at stake. Courts have differed as to whether the risk which the salvor himself incurs, or that from which the oth- ers are delivered, ought first to be considered, but they do not differ as to the paramount merit of a service into which either of these ingredients enters. 49 So, too, as to risk incurred by the property itself, primari- ly of the salved, secondarily of the salvor. The greater the risk, the greater the merit of the service and the greater the award. Under this head, the awards in derelict cases may be con- sidered. Derelicts are necessarily in greatest danger. They become derelicts because their crews abandon them as sink- § 66. 4 8 Sandringham (D. C.) 5 Hughes, 316, 10 Fed. 556. 49 William Beckford, 3 C. Rob. 356; Traveller, 3 Ilagg. 371; Cargo e.v Sarpedon, 3 P. D. 28; Akaba, 54 Fed. 197, 4 C. C. A. 281; Edith L. Allen (I). C.) 139 Fed. 888. § 66) THE AWARD 147 ing vessels, and, even if they do not at once go down, the chance of finding them is small. Hence it was long the practice of the admiralty courts to award half in such cases. But the later decisions, looking at the reason rather than the rule, consider all the circumstances, and give less than half, if a lesser amount will handsomely reward the sal- vor. 50 As expressed by Dr. Lushington in the TRUE BLUE 51 : "The fact of derelict is, as it were, an ingredient in the de- gree of danger in which the property is." The Values and Risk Incurred The value of the property saved is an important element. For a long time the courts were in the habit of giving fixed proportions. In fact, originally the salvors were probably paid in kind. In modern times the rule of proportion has been discarded. On small values saved the proportion is necessarily great- er than on large. Hence, when values are very great, the awards do not proportionately increase. The court will give a sufficient sum to compensate the salvors handsomely for their labor and risk, and encourage them to go and do likewise, but then its object is accomplished. In an ordi- nary case of towage salvage, for instance, its award for saving $500,000 would not be as great in proportion as its award for saving $300,000. 52 In many cases there may be risk to the salvors and their property, where there is but little risk to the salved. If so, it is a material fact in fixing the award. 53 so Sandringham (D. C.) 5 Hughes, 316, 10 Fed. 556; TRUE BLUE. L. R. 1 P. C. 250 ; Amerique, L. R. 6 P. C. 468 ; Janet Court, [1897] P. 59; Gardner v. Ninety-Nine Gold Coins (D. C.) Ill Fed. 552; Flora Rodgers (D. C.) 152 Fed. 286. si L. R. 1 P. C. 250. 52 CITY OF CHESTER, 9 P. D. 202-204. saEreza (D. C.) 124 Fed. 659; Launch B. B„ 15 Can. Ex. 389; 17 D. L. R. (Can.) 757. 148 SALVAGE (Ch. 6 The Skill The skill shown by the salvors is an important element, to which the court pays great attention. It is on this ac- count that professional salvors are especially encouraged and most liberally rewarded, for they usually possess spe- cial skill and experience. Volunteer salvors are only ex- pected to show the skill incident to their calling, and are only paid for such. Unskillfulness causing damage will diminish a salvage award, though the court makes all al- lowances for salvors. 54 A salvor may be legally chargeable with negligence as to third parties, and yet not be negligent as to the property saved. For instance, where two tugs in New York Harbor were towing a vessel away from a burning dock, and owing to their insufficient power brought her into collision with other vessels, they were held liable to these vessels, but entitled to have the damages for which they are liable con- sidered in fixing the salvage award. 55 Misconduct or bad faith will cause a diminution or even an entire forfeiture of salvage ; for, as public policy is the foundation of the doctrine, good faith and fair dealing are essential. 56 The Time and Labor As to the time and labor occupied, if the service involves a long time and great labor, it will, be taken into account. In the case of steamers, however, the shortness of time does 54 Magdalen, 31 L. J. Ad. 22; Cheerful, 11 P. D. 3; Baker Stand- ard, [1901] A. C. 549; U. S. v. Taylor, 188 U. S. 283, 23 Sup. Ct. 412, 47 L. Ed. 477; Dorrington v. Detroit. 223 Fed. 232, 138 C. C. A. 471 ; Haley. mi. 239 Fed. 840, 152 C. C. A. 626; George W. Elzey, 250 Fed. 602, 102 C. C. A. 618. 56 Ashbourne (D. C.) 99 Fed. Ill ; No. 92, 252 Fed. 117, 1G4 C. C. A. 229. Be CLANDEBOYE, 70 Fed. 631, 17 C. C. A. 300; North Carolina, 15 Pet. 40, 10 L. Ed. 653 ; Boston, 1 Sumn. 341, Fed. Cas. No. 1,673 : Bello Corrunes, 6 Wheat L52, 5 L. Ed. 229; (iov. Ames, 108 Fed. 969, 4s C. C. A. 170; Celtic Chief, 230 Fed. 753, 1 15 C. C. A. 63. § 67) SALVAGE CONTRACTS 149 not detract from the service. Dr. Lushington put this very well when he said that he could not understand why the patient should complain of the shortness of an operation. 57 The Result Achieved As to the degree of success achieved, and the propor- tion of values lost and saved, the principle is that, if the en- tire property is saved, the owner, having suffered less, can better afford to pay handsomely than if only a portion is saved, and the salvor is to be paid out of a mere rem- nant. For instance, other things being equal, the court will de- cree a larger award if an entire cargo of $100,000 is saved than it would if out of an entire cargo of $300,000 only $100,- 000 were saved. 58 SALVAGE CONTRACTS 67. A salvage contract is binding if free from circumstances of imposition and the negotiations are on equal terms ; but not if the salvor takes advantage of his position, or if either is guilty of fraud or misrepre- sentation. In modern times salvage generally springs from contract. The courts at one time went far in doing away with the binding effect of such contracts, saying that the amount agreed on is only presumptive evidence, and may be in- quired into. As to the general principle there should not be any dif- ference between a salvage contract and any other. Circum- stances of fraud, oppression, or inequality will affect any 57 General Palmer, 5 Notes of Cas. 159; Thomas Flelden, 32 L. J. Ad. 61; Andalusia, 12 L. T. (N. S.) 584; B. C. Terry (D. C.) 9 Fed. 920, 927 ; Connemara, 10S U. S. 352, 2 Sup. Ct. 754, 27 L. Ed. 751. 58 Sandringham (D. O.) 5 Hughes, 316, 10 Fed. 556; Isaac Aller- ton, Fed. Cas. No. 7,0S8. 150 SALVAGE (Ch. 6 contract. Hence it is easy to understand why a contract made at sea between a helpless wreck and an approaching rescuer should be inquired into, like a contract made on land under the persuasive muzzle of a revolver. But when the circumstances show no inequality of negotiation, as when the owner of a sunken vessel, after ample deliberation, con- tracts to have his vessel raised, there is no reason on prin- ciple, why he should not be held to his bargain, though it should turn out to be a bad one. And so the Supreme Court has decided. 59 SALVAGE APPORTIONMENT 68. A salvage award is apportioned among those who con- tribute directly or indirectly to the service, in- cluding the owners of the salving property at risk ; and admiralty has jurisdiction of a suit to compel an apportionment. Having discussed the doctrines governing the assessment of a salvage award, it is now necessary to consider to whom the amount so fixed should be paid. As a rule, it goes only to those who participated, directly or indirectly, in the serv- ice. All the salving crew share, those immediately engaged most largely ; but those whose work on the salving vessel is increased also share in less proportion. The owners of the salving vessel, though not present, participate on account of the risk to which their property is exposed. If the salv- ing vessel is a steamer, her owners receive much the great- er portion, on account of the efficiency of such vessels. In such cases it is the rule to award the owners three-fourths. 60 1 Ifrida, 172 U. S. 186, 10 Sup. Ct. 146, 43 L. Ed. 413 (reversing 77 Fed. 754, 23 C. C. A. 527). See, also, sir William Armstrong (D. C.) 53 Fed. 145; Kennebec, 2.31 Fed. 423, 145 C. C. A. 117; Ilum- aroek (D. C.) 234 Fed. 71G; Akerblom v. Price, 7 Q. B. D. 129; Port Caledonia, [1903] P. 1S4. g 68. ,; "<'ity of Paris, Kenn. Civ. Salv. 154; Cape Fear Towing § 68) SALVAGE APPORTIONMENT 151 Independent of statute, the fact that salvor and salved vessels belonged to the same owner did not prevent the owner of the salving vessel from claiming salvage against the cargo of the salved vessel, where there was no breach of the contract of carriage. 61 Nor did it prevent the crew of the salving vessel from claiming salvage for their work, both to the salved vessel and her cargo. 62 And now it is provided by statute that "the right to re- muneration for assistance or salvage services shall not be affected by common ownership of the vessels rendering and receiving such assistance or salvage services." 63 Of the amount set aside for the crew, the master, on ac- count of his responsibilities, receives a larger proportionate share, 64 and the remainder is divided among the crew in proportion to their wages, unless special circumstances call for special allowances. Passengers or other persons aboard the salving ship may share if they render aid. It is frequently necessary to make a salvage award as a whole, and then opportion it among different sets of salvors. The apportionment is made according to their relative mer- its, though the first set of salvors usually receive special consideration. 65 Admiralty has jurisdiction of a suit by co-salvors to com- pel a refunding by a salvor to whom the entire award has been paid. 66 & Transp. Co. v. Pearsall, 90 Fed. 435, 33 C. C. A. 161; City of Puebla (D. C.) 153 Fed. 925 ; Gibson (D. C.) 160 Fed. 230. 6i Gilchrist Transp. Co. v. 110,000 Bushels of No. 1 Northern Wheat (D. C.) 120 Fed. 432. 62 Rees v. U. S. (D. C.) 134 Fed. 146; Glenfruin. 10 P. D. 103. 63 Act Aug. 1, 1912, § 1, 37 Stat. 242 (U. S. Comp. St. § 7990) ; Appx. 425; Roanoke, 214 Fed. 63, 130 C. C. A. 503. e* Tijuca (D. C.) 247 Fed. 358. es Santipore, 1 Spinks, 231; Livietta, 8 P. D. 24; Strathnevis (D. C.) 76 Fed. 855 ; Annie Lord (D. C.) 251 Fed. 157. ee McMullin v. Blackburn (D. C.) 59 Fed. 177. 152 SALVAGE (Ch. 6 SALVAGE CHARGEABLE AS BETWEEN SHIP AND CARGO 69. A salvage award is charged against vessel and cargo in proportion to their values at the port of rescue, each being severally liable for its share alone. Freight contributes pro rata itineris. The salvor has a remedy in rem against the property saved. The principle is that vessel, cargo, and freight money saved are to contribute according to their relative values at the port of rescue. The same percentage is charged against all, though portions were saved more easily and were at less risk ; the reason being that differences in this respect would produce endless confusion, and tempt the salvors to save portions of the cargo without attempting to rescue other portions. Specie is subject to the same rule. 67 If the voyage has not been completed, the court will pro- rate the freight money from the initial point to the port of rescue, and make only that proportion of the freight con- tribute. For instance, if the voyage is one-third completed at the time of the accident, the value of one third of the freight will be taken, on which salvage will be assessed. 68 As between ship and cargo, each is liable severally only for its own proportion. The salvor who neglects to pro- ceed against both cannot recover his entire salvage from one. 69 § G9. c? St. Paul, S6 Fed. 340, 30 C. C. A. 70 ; Longford, 6 P. D. GO. But where one series of operations saved the vessel and an- other the cargo, there may be separate proceedings against each, and different percentages assessed. St. Paul, supra. • - NORMA, Lush. 124; Sandringham (D. C.) 5 Hughes, 316, 10 Fed. 556; Kaffir Prince, 31 T. L. K. 296. 68 Raisby, 10 P. D. 114; Jewell (D. C.) 41 Fed. 103; Alaska (D. C) 23 Fed. 597. Bui the court may charge the entire amounl against the ship, if the disaster was caused by any act for which the ship § 69) CHARGEABLE AS BETWEEN SHIP AND CARGO 153 The Lamington 70 contains an interesting compilation of salvage precedents. A salvage service gives a maritime lien upon the proper- ty saved, enforceable by a proceeding in rem, and not de- pendent upon the salvor's retention of possession. 71 It may be asserted against government property, if the possession of the government is not disturbed. 72 Under Supreme Court admiralty rule No. 19, suit may also be brought in personam against the party at whose request and for whose benefit the salvage service has been performed. But such proceedings, whether in rem or in personam, must now be brought within two years from the rendition of the service, unless there has been no reasonable oppor- tunity to proceed within that time. 73 would be responsible to the cargo. Lackawanna (D. C.) 220 Fed. 1000. 70 S6 Fed. 675, 30 C. C. A. 271. 7i Sabine, 101 U. S. 384, 25 L. Ed. 982; Byrne v. Johnson, 53 Fed. 840, 4 C. C. A. 47 ; Barnett & Record Co. v. Wineinan, 202 Fed. 110, 122 C. C. A. 222 ; Alcazar (D. C.) 227 Fed. 633. 72 Davis, 10 Wall. 15, 19 L. Ed. 875; Johnson Lighterage Co. No. 24 (D. C.) 231 Fed. 365. 7 3 Act Aug. 1, 1912, § 4, 37 Stat 242 (U. S. Conip. St. § 7993), Appx. 425. 154 CONTRACTS OF AFFREIGHTMENT (Ch. 7 CHAPTER VII OF CONTRACTS OF AFFREIGHTMENT AND CHARTER PARTIES 70-72. "Contracts of Affreightment" Defined, and Distinguished from Charter Parties. 73. Warranties Implied in Contracts of Affreightment against Unseaworthiness and Deviation. 74. Mutual Remedies of Ship and Cargo on Contracts of Af- freightment. 75. Entirety of Affreightment Contract 7C-. Apportionment of Freight. 77-78. Ship as Common Carrier. 79. Bill of Lading— Making and Form in General. SO. Negotiability. 81. Exceptions in General. 82. Exception of Perils of the Sea. 83. "Charter Parties" Defined. 84. Construction of Charter Parties. S"». Conditions Implied in Charter Parties of Seaworthiness and against Deviation. 86. Cancellation Clause in Charter Parties. 87. Loading Under Charter Parties. 88. Execution of Necessary Documents under Charter Parties. 89. Cesser Clause in Charter Parties. "CONTRACTS OF AFFREIGHTMENT" DEFINED, AND DISTINGUISHED FROM CHARTER PARTIES 70. A vessel may be operated by her owners on their own account, or she may be hired by her owners to others. 71. The hiring of a vessel to others is usually done by char- ter parties. 72. When a vessel is operated by her owners on their own account, or contracts direct with her shippers, such contracts are called "contracts of affreightment." § 73) DEPLIED WARRANTIES 155 The contracts of vessels heretofore discussed have been those incidental transactions tending- to facilitate the object of her creation. The class of contracts with which we are now to deal spring directly out of her use as a business enterprise. A vessel is made to plow the seas, not to rot at the piers. But., with the exception of those which are used as toys by the rich, they do not plow the seas for amusement. The reward earned for transporting cargo is called "freight." In BRITTAN v. BARNABY, 1 Mr. Justice Wayne defines "freight" as the hire agreed upon between the owner or master for the carriage of goods from one port or place to another. WARRANTIES IMPLIED IN CONTRACTS OF AF- FREIGHTMENT AGAINST UNSEAWORTHI- NESS AND DEVIATION 73. In contracts of affreightment there is an implied war- ranty of seaworthiness and against deviation. The warranty of seaworthiness in the relations between vessel and shipper is one of the most severe known to the law. It is that, at the commencement of the voyage, the vessel shall be thoroughly fitted for the same, both as re- gards structure and equipment. It is not merely that the vessel owner will exercise reasonable care to have her in this condition, or that he will repair such things as are dis- coverable, but it is an absolute warranty of fitness for the voyage against even such defects as are latent. 2 §§ 70-72. * 21 How. 527. 16 L. Ed. 177. Under the limited lia- bility act, the word "freight"' includes prepaid fare of passengers, but not a government subsidy. Bourgogne, 210 U. S. 95. 28 Sup. Ct 664, 52 L. Ed. 973 ; post, p. 371. § 73. 2 Northern Belle, 154 U. S. 571, 14 Sup. Ct. 1166, 19 L. Ed. 748; CALEDONIA, 137 U. S. 124, 15 Sup. Ct. 537, 39 L. Ed. 644. 156 CONTRACTS OF AFFREIGHTMENT (Cll. 7 The warranty against deviation is that the vessel will pur- sue her voyage by the accustomed route without unneces- sary delay; though going to a port a little out of the straight course, when it is shown to be the usage of that navigation for vessels to stop by such a port, would not be considered a deviation. 3 These two warranties apply also to charter parties, and will be treated more fully in that connection. 4 MUTUAL REMEDIES OF SHIP AND CARGO ON CONTRACTS OF AFFREIGHTMENT 74. It is a fundamental principle that the ship is pledged to the cargo and the cargo to the ship for the ful- fillment of the conditions of the contract of car- riage. This reciprocal right of procedure is one of the most an- cient doctrines of the admiralty. Under it, the vessel has a lien upon the cargo for its freight money. 5 This lien or right of the vessel to hold the cargo for its freight money differs from the admiralty liens heretofore discussed in the fact that it is dependent upon actual or constructive possession. The vessel owner who delivers the cargo unconditionally into the possession of the consignee loses his right to hold the cargo itself for his freight. 6 But one of the principles of the law of freight is that freight is not due until the cargo is unloaded and the con- signee has an opportunity to inspect the goods and ascer- 3 HOSTETTER v. PARK, 137 U. S. 30, 11 Sup. Ct. 1, 34 L. Ed. 568; Prussia (D. C.) 100 Fed. 484. 4 Post, p. 171. g 71. & Certain Logs <>f Mahogany, 2 Snmn. 589, Fed. Cas. No. 2,559; Seaboard (D. C.) 119 Fed. 375; Jebsen v. A Cargo of Hemp <1>. C.) 228 Fed. 1 i::. e Pioneer Fuel Co. v. McBrler, 28 C. C. A. 466, 84 Fed. 495; Cargo of Fertilizer (D. C.) 88 Fed. 984; Appam (D. C.) 243 Fed. 230. § 74) MUTUAL REMEDIES 157 tain their condition. Hence the master of a vessel cannot demand his freight as a condition precedent to unloading; nor, on the other hand, can the consignee demand the goods as a condition precedent to paying the freight. The mas- ter, in other words, must discharge his goods, but not de- liver them. If he and the consignee are dealing at arm's length, his proper procedure would be to discharge them in a pile by themselves, notifying the consignee that he does not give up his lien for freight; or, if necessary for their protection, discharge them into a warehouse, or into the hands of a third person. Then if the consignee, after a reasonable time allowed for inspection, does not pay the freight, the master can proceed in rem against the goods to enforce its payment. 7 Conversely, the cargo has a right of procedure against the ship for any violation of the contract of affreightment. 8 Transactions more thoroughly marine in nature than the relations of ship and cargo could hardly be imagined. Yet one result of the common-law warfare upon the admiralty in England, and the contention that contracts made on land, no matter what their subject-matter, were without the ad- miralty, was that in England the admiralty courts lost ju- risdiction over such controversies. 9 It was partially restored by Act 24 Vict. c. 10, § 6, but only to the extent of giving a power to arrest, not a lien, and giving that only against vessels no owner or part own- er of which resided in England or Wales. 1 ' 7 BRITTAN v. BARNABY, 21 How. 527, 16 L. Ed. 177 ; BAGS OF LINSEED, 1 Black, 108, 17 L. Ed. 35 ; Nathaniel Hooper, Fed. Cas. No. 10,032; Cassius, 2 Story, 81, Fed. Cas. No. 564; Treasurer, 1 Spr. 473, Fed. Cas. No. 14.159. s Rebecca, 1 Ware, 187, Fed. Cas. No. 11,619 ; Bulkley v. Naumkeag Steam Cotton Co., 24 How. 386, 16 L. Ed. 599 ; Humarock (D. C.) 234 Fed. 716. 9 Cargo ex Argos, L. R. 5 P. C. 146-14S. iopieve Superiore, L. R. 5 P. C. 4S2 ; Scrutton on Charter Par- ties and Bills of Lading, 376-380, 406. 158 CONTRACTS OF AFFREIGHTMENT (Ch. 7 ENTIRETY OF AFFREIGHTMENT CONTRACT 75. The contract of affreightment is an entire contract, so that freight is not earned until the contract is com- pleted. On this subject Mr. Justice Story says in the Nathaniel Hooper, above cited : "The general principle of the mari- time law certainly is that the contract for the conveyance of merchandise on a voyage is in its nature an entire con- tract, and, unless it be completely performed by the deliv- ery of the goods at the place of destination, no freight what- soever is due ; for a partial conveyance is not within the terms or the intent of the contract, and, unless it be com- pletely performed by the delivery of the goods at the place of destination, no freight whatsoever is due, and the mer- chant may well say 'Non in hsec fcedera veni.' " Under this principle, in case of a marine disaster, the master has the right to repair and complete the voyage, al- though this action on his part involves delay; or he may transship the goods into another vessel and so save the freight. If the delay or the condition of the goods is such as to render either of these expedients unprofitable, he may sell the goods at an intermediate port, and terminate the venture, but in the latter case he would not be entitled to his freight. 11 But if the voyage is broken up before completion, though from a cause beyond his control, he loses his freight. 12 § 75. " Jordan v. Warren Ins. Co., Fed. Cas. No. 7,524; Hugg v. Augusta Ins. & Banking Co., 7 How. 595, 12 L. Ed. 834. If he car- ries part of the cargo contracted for, he can recover freight for the part so carried less damages for his failure to carry the rest. Ed- ward Hines Lumber Co. v. Chamberlain, 118 Fed. 716, 55 C. C. A. 236. 12 Appam (D. C.) 243 Fed. 230. The voyage was not broken up when the crew left a ship under orders of a hostile submarine, with- § 76) APPORTIONMENT OF FREIGHT 159 APPORTIONMENT OF FREIGHT 76. Freight is payable pro rata at an intermediate port, if the voyage is broken up, only by the consent of the consignee, either actual, or implied from his volun- tarily receiving his goods at such intermediate port. This is not an exception to the general rule based upon the principle of entirety of contracts, that freight is only due when the voyage is completed. It is tantamount to saying that the parties, by mutual agreement, may rescind the contract at an intermediate port. Hence the accept- ance of the goods at an intermediate port, not voluntarily, but in pursuance of a practical necessity on the part of the consignee to receive them, does not entitle the vessel to pro rata freight, and if the vessel incurs expenses before leav- ing the initial port at all, or "breaking ground," as it is tech- nically called, no pro rata freight could be equitably claimed. 13 A provision requiring the shipper to prepay the freight on delivery of the goods to the carrier, and authorizing the carrier to retain it if prevented from proceeding by causes beyond his control (for instance, an embargo), will be en- forced, though the vessel never broke ground. 14 .The delivery of the cargo on a wharf with notice to the out the intent to abandon permanently; the ship having been sub- sequently brought into port. Bradley v. Newsuin, 34 T. L. R. 613. § 76. is Saropayo v. Salter, 1 Mason, 43, Fed. Cas. No. 12,277; Tornado, 10S U. S. 342, 2 Sup. Ct. 746, 27 L. Ed. 747 ; Mitsui v. St. Paul Fire & Marine Ins. Co., 202 Fed. 26, 120 C. C. A. 2S0. As to the meaning of "breaking ground," see ante, p. 72, note 82. i4AUanwilde Transport Corporation v. Vacuum Oil Co., 248 TJ. S. 377, 39 Sup. Ct. 147. 63 L. Ed. 312, 3 A. L. R. 15 ; Grade D. Cham- bers, 248 TJ. S. 387, 39 Sup. Ct. 149, 63 L. Ed. ; Bris, 248 U. S. 392, 39 Sup. Ct. 150, 63 L. Ed. 321. 1G0 CONTRACTS OF AFFREIGHTMENT (Ch. 7 consignee, or without notice, if that is the usage of the port, is a termination of the ship's liability as carrier. 1 ' 3 The vessel owner is entitled to his freight if the goods arrive in specie, though they have been so injured as to be practically valueless, provided the injury is not caused by such acts as would render the carrier liable. 16 In a suit by the vessel owner for freight, the consignee may in the same suit plead in recoupment any damage done to the goods for which the carrier is liable. 17 The receipt of the goods by the consignee is an implied promise on his part to pay the freight (though such impli- cation may be rebutted), and he may be sued for it person- ally. 1 ' 8 SHIP AS COMMON CARRIER 77. A ship may or may not be a common carrier, according to the manner in which she is being used. 78. A general ship is a common carrier. When is a ship a common carrier, and when not? The test is well laid down in the case of the Niagara, 19 where the court says: "A common carrier is one who undertakes for hire to transport the goods of those who may choose to employ him from place to place. He is in general bound to take the goods of all who offer." Story thus defines a "common carrier": "To bring a person within the descrip- 15 Constable v. National Steamship Co., 134 U. S. 51, 14 Sup. Ct. 1062, 38 L. Ed. 903. i«Hugg v. Augusta Ins. & Banking Co., 7 How. o95, 12 L. Ed. 834; Seaman v. Adler (C. C.) 37 Fed. 268. i 1 Snow v. Carruth, 1 Spr. 324, Fed. Cas. No. 13,144 ; Bearse v. Ropes, 1 Spr. 331. Fed. Cas. No. 1,192. isTrask v. Duvall, 4 Wash. C. C. 181, Fed. Cas. No. 14.144; Vane v. A. M. Wood & Co. (D. C.) 231 Fed. 353; Froutier S. S. Co. v. Central Coal Co., 234 Fed. 30, 148 C. C. A. 46. || 77, 7S. i»21 How. 22, 1G L. Ed. 41. See, also, .Taininet v. American Storage & Moving Co., 109 Mo. App. 257, Si S. W. 128. § 79) BILL OP LADING 161 tion of a common carrier, he must exercise it as a public employment ; he must undertake to carry goods for persons generally; and he must hold himself out as ready to engage in the transportation of goods for hire as a business, not as a casual occupation pro hac vice." 20 From this definition it is clear that regular liners are common carriers, as is any ship that carries on business for all, and by advertisement or habit carries goods for all alike. A general ship is a common carrier. 21 On the other hand, a ship chartered for a special cargo, or to a special person, is not a common carrier, but an ordi- nary bailee for hire. 22 BILL OF LADING— MAKING AND. FORM IN GENERAL 79. The document evidencing the contract of shipment is known as a "bill of lading." Even in the case of chartered vessels, and of course in the case of ves- sels trading on owner's account, the bill of lading is usually given by the master to the shipper di- rect, and binds the vessel or her owners to the shipper. Originally it was a simple paper. Here is an old form: "Shipped by the grace of God, in good order, by A. B., merchant, in and upon the good ship called the John and Jane, whereof C. D. is master, now riding at anchor in the river Thames, and bound for Barcelona, in Spain, 20 bales of broadcloth, marked and numbered as per margin; and 20 Story, Bailni. § 495. 2i Liverpool & G. W. S. Co. v. Phenix Ins. Co. (The Montana) 129 U. S. 437, 9 Sup. Ct. 469, 32 L. Ed. 7S8. 22 Lamb v. Parkman, 1 Spr. 343, Fed. Cas. No. 8,020; Dan (D. C.) 40 Fed. 691; Nugent v. Smith, 1 C. P. D. 423; C. R. Sheffer, 249 Fed. 600, 161 C. C. A. 526. Httgties,Adm. (2d Ed.) — 11 102 CONTKACTS OF AFFBEIGHTMENT (Ch. 7 are to be delivered in the like good order and condition at Barcelona aforesaid (the dangers of the sea excepted), unto E. F., merchant there, or to his assigns, he or they paying for such goods, per piece freight, with primage and average accustomed. In witness whereof the master of said ship hath affirmed to three bills of lading of this tenor and date, one of which bills being accomplished, the other two to stand void. And so God send the good ship to her destined port in safety. "Dated at London the day of ." This form is substantially the same as that used to-day by the coastwise schooners. But under modern business methods a shipper of produce for export, like cotton, tobacco, or grain, can go to his railway station far inland, and procure a through bill of lading to England or the Continent. This is a very elab- orate document, amphibious in nature, as half its stipula- tions apply to land carriage and half to water carriage. A sample may be seen in a footnote to the Montana. 23 SAME— NEGOTIABILITY 80. A bill of lading is negotiable only in a qualified sense. It does transfer the title, but it is not so far nego- tiable as to shut out all defenses which could be made between the carrier and the original holder. For instance, in the Treasurer, 24 the assignee of a bill of lading illegally refused to pay the freight. The consignee treated this as rescinding the contract of sale between him and the assignee for the cargo represented by the bill of lading, and sold it to a third party. The assignee thereupon proceeded against the ship. Judge Sprague held that, as he had illegally refused to pay the freight, the master could § 79. = ■" 129 U. S. 401, Sup. Ct. 409, 32 L. Ed. 788. § so. -■» l Spr. 47.".. Fed. Cas. No. 14,159. § 81) BILL OF LADING 163 have sold the cargo, and that the indorsing of the bill of lading to him gave him no greater rights than any other delivery by symbol could have given ; that such a delivery had no greater efficacy than a manual delivery of the prop- erty itself, and therefore his action could not be maintained. It is well settled that the master may prove a short de- livery of cargo in cases where he is not responsible even against an assignee of a bill of lading. 25 A master cannot bind the vessel or owners by receipting for goods not actually in his custody, and such defense can be set up even against a bona fide holder of the bill of lad- ing, though it is sometimes a nice question as to the exact point at which the goods passed into the custody of the master. 26 A recital in the bill of lading that goods are received in good condition puts upon the carrier the burden of proving a loss by excepted perils in case the goods when delivered are in a damaged condition. 27 SAME— EXCEPTIONS IN GENERAL 81. Independent of statute, a carrier cannot stipulate for exemption from negligence in a bill of lading, as such a stipulation contravenes public policy. 28 2 5 Seefahrer (D. C.) 133 Fed. 793; John Twohv (D. C.) 243 Fed. 720. 2 6 American Sugar Refining Co. v. Maddock, 93 Fed. 980, 36 0. C. A. 42; Bulkley v. Naumkeag Steam Cotton Co.. 24 How. 386, 16 L. Ed. 599; Missouri Pac. R. Co. v. McFadden, 154. U. S. 155, 14 Sup. Ct. 990, 3S L. Ed. 944 ; Atchison, T. '& S. F. R. Co. v. Harold, 241 U. S. 371, 36 Sup. Ct. 665. 60 L. Ed. 1050. 2 7BRITTAN v. BARNABY, 21 How. 527, 16 L. Ed. 177; Nelson v. Woodruff, 1 Black, 156, 17 L. Ed. 97 ; Jahn v. Folmina, 212 U. S. 354, 29 Sup. Ct. 363, 53 L. Ed. 546, 15 Ann. Cas. 748. § 81. 2 8 new YORK C. R. CO. v. LOCK WOOD, 17 Wall. 357, 21 L. Ed. 627; Kensington, 1S3 U. S. 263, 22 Sup. Ct. 102, 46 L. Ed. 190. 164 CONTRACTS OP AFFREIGHTMENT (Ch. 7 But he may independent of statute, require the shipper to value the goods in the bill of lading, and limit his liability to that valuation. 29 And he may limit his liability for a passenger's baggage. 30 He may require claims to be made against him in a limited time. 31 Under the decisions of the English courts, a carrier may stipulate for exemption from negligence. As much of the foreign carrying trade is done in English bottoms, some smart Englishman inserted in their bills of lading a clause known as the "flag clause," which stipulated that the con- tract of carriage should be governed by the law of the ves- sel's flag. The object was to protect the English carrier against the American shipper. The American courts as a rule have refused to enforce this clause, looking upon it as an indirect attempt to stipulate against negligence. 32 It is beyond the limits of this treatise to discuss the con- struction of the various exceptions contained in bills of lading, or the acts of Congress passed in recent years in regulation of common carriers, and primarily directed at land carriage, though often affecting sea carriage. 29 Hart v. Pennsylvania R. Co., 112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717 ; Reid v. Fargo, 241 U. S. 541, 36 Sup. Ct. 712, 60 D. Ed. 1156. so Humphreys v. Perry, 148 U. S. 627, 13 Sup. Ct. 711, 37 L. Ed. 587. 3i Southern Express Co. v. Caldwell, 21 Wall. 264, 22 L. Ed. 556; Jamison v. New York & P. S. S. Co. (D. C.) 241 Fed. 3S9 ; San Gug- lielnio, 249 Fed. 5S9, 161 C. C. A. 514. 32 Guildhall (D. C.) 58 Fed. 79G ; Id., 64 Fed. 867, 12 C. C. A. 445; Glenmavis (D. C.) 69 Fed. 472 ; Victory (D. C.) 63 Fed. 640 ; Kensing- ton, 183 U. S. 263, 22 Sup. Ct. 102, 46 L. Ed. 190. § 82) BILL OF LADING 165 SAME— EXCEPTION OF PERILS OF THE SEA 82. The term "perils of the sea" in a bill of lading means ac- cidents incident to navigation which are unavoid- able by the use of ordinary care. There is a mass of learning and refinement of distinction as to the proper construction of that universal clause, "per- ils of the sea." It means such accidents incident to navi- gation as are unavoidable and are the sole proximate cause of the loss. Mr. Justice Woods rather broadly defines the expression as "all unavoidable accidents from which com- mon carriers by the general law are not excused, unless they arise from act of God." 33 The accident from which a carrier is exempted under this clause must arise independently of his acts. If his negli- gence co-operates, the carrier is responsible. 34 Hence there are a great many decided cases on the question whether the proximate cause of the loss was his act or a peril of the sea. The G. R. BOOTH 35 is instructive on this point, as it reviews the American decisions. In it the Supreme Court held that a loss caused by an explosion of detonators which blew a hole in the ship, and let the water rush in, was not a peril of the sea; that the phrase alluded to some action of wind or wave, or to injury from some external object, and did not cover an explosion arising from the nature of the cargo ; and that the proximate cause was the explosion, and not the inrush of the water. To show how narrow is the line of demarkation, the court § 82. ss Dibble v. Morgan, 1 Woods, 406, Fed. Cas. No. 3.SS1. See, also, Southerland-Innes Co. v. Thynas, 12S Fed. 42, 64 C. C. A. 116. 34 Jeanie, 236 Fed. 463, 149 C. C. A. 515. Compare the meaning of the clause in a marine insurance policy, ante, PP- 75, SO. 3 5 171 U. S. 450, 19 Sup. Ct. 9, 43 L. Ed. 234. 166 CONTRACTS OF AFFREIGHTMENT (Ch. 7 distinguishes this from Hamilton v. Pandorf, 36 in which rats had gnawed a lead pipe, which permitted water to escape and cause damage. The House of Lords held that this was a peril of the sea. The Supreme Court distinguished it on the ground that the water escaped gradually, and therefore was the proximate cause. At first it was thought that a collision caused by the neg- ligence of either of the two vessels was not a peril of the sea, as a human agency intervened. But it is the better opinion that, if the carrying ship is blameless, a collision is a peril of the sea as to her and her cargo, though the other ship was to blame. 37 Although the measure of care as to deck cargoes may not be as rigid as to others, yet even there a stipulation against perils of the sea does not protect from a loss caused by negligence. 38 "CHARTER PARTIES" DEFINED 83. When the owners of a vessel hire her out, the contract of hire is called a "charter party," and the hirer is called a "charterer." There are many different kinds of charter party in use. The owner hires his ship out for a definite time, as for a month or a year. This is called a "time charter." 39 A voyage charter is one in which lie hires her out for a definite trip, as, for instance, a single trip between two points, or a round trip from one port by one or more others back to the initial port. 3 6 12 A. C. 518. Compare Citta di Palermo, 226 Fed. 529, 141 C. C. A. 285. 37 Xantho, 12 A. C. 503; ante, p. 70. as Compania de Navigacioo La Flecha v. Brauer, 108 U. S. 104, 18 Sup. Ct. 12, 42 L. Ed. 398. g 83. :: " Mary Adelaide Randall, .".9 O. C. A. 335, 9S Fed. 895. § 83) 'charter parties" defined 167 Charters vary also according to the manner in which the hire is payable. A "lump sum" charter, for instance, is one in which the charterer pays a fixed price for the ship. The owner gets his money whether the charterer puts any cargo aboard or not. If he can sublet room to shippers at good rates, the charterer makes a profit; otherwise, a loss. It is much the same transaction as renting a house and trying to sublet the rooms. A tonnage charter is where the charterer pays a certain rate per registered ton, or per ton of dead weight carrying capacity. 40 Charters vary also with the cargo to be carried. There are grain charters, cotton charters, petroleum charters, coal charters, charters for general cargo, and many others. Though similar in the main, each has its own peculiar pro- visions growing out of the needs and customs of the par- ticular business. Again, an owner may charter his bare ship, leaving the charterer to furnish a crew, or he may merely charter the use of the ship, furnishing the crew himself. This distinc- tion is important if a question should arise whether the owner or the charterer is responsible for any tort of the crew. If the crew is employed by the owner, then they are his agents, and he is responsible for their acts within the scope of their employment. If they are employed by the charterer, the latter is responsible. 41 Charter parties are usually made by shipbrokers, who keep on hand printed blanks of the various kinds, and exe- cute them by telegraphic or cable authority. 40 "Dead weight," in its usual acceptation, means the abstract lift- ing capacity, not deducting dunnage. Thomson v. Brocklebank, 34 T. L. R. 284. « Nicaragua (D. C.) 71 Fed. 723; Bramble v. Culmer, 24 C. C. A. 1S2, 78 Fed. 497 ; Clyde Commercial S. S. Co. v. West India S. S. Co., 169 Fed. 275, 94 C. C. A. 551; North Atlantic Dredging Co. v. Mc- Allister Steamboat Co., 202 Fed. 181, 120 C. C. A. 395; Willie, 231 Fed. 865, 146 C. C. A. 61. 168 CONTRACTS OF AFFREIGHTMENT (Cll. 7 They are usually in writing, but may be by parol. 42 They have grown to be elaborate in their provisions, be- ing an evolution from experience, as suggested by difficulties actually arising. On the other hand, the additions have frequently been made by laymen, who do not always stop to notice how the condition harmonizes with what is al- ready there. Hence, to the lawyers and judges, they appear informal and inartistic; and in RAYMOND v. TYSON, 43 the Supreme Court so characterizes them, and says that they are to be liberally construed on that account, placing them in the category of legal instruments which are supposed to be drawn by that constant friend of the legal profession — the man who is inops consilii. CONSTRUCTION OF CHARTER PARTIES 84. A charter party is governed by the ordinary principles of contract law. Provisions which, when violated, defeat the venture, absolve the injured party from the contract. Others, not so vital, give, if violated, a claim for damages. A charter party is, after all but an ordinary contract, and is governed by the rules that apply in the construction of ordinary contracts. Special Provisions in An agreement by the charterer to return the vessel in as good order as received, reasonable wear and tear excepted, or similar language, imposes on him the absolute obligation to return her, independent of any question of due care on his part, unless the failure to return is due to some act or default of the vessel owner. 44 42 James v. Bropliy, 18 C. C. A. 49, 71 Fed. 310; Gormloy v. Thomp- son-Lockhnrt Co. (D. C.) 234 Fed. 478, 479. 43 17 How. 53, 15 L. Ed. 47. See, also, Disney v. Furncss, Withy & Co. (D. (".i 7! i Fed. 810, 810. § 84. 4* Sun Printing & Tub. Ass'n v. Moore, 183 U. S. 042, 22 § 84) CONSTRUCTION OF CHARTER PARTIES 169 In LOWBER v. BANGS, 45 the instrument contained a provision that the vessel (which, as is often the case, was not at the loading port when the charter was effected), should proceed to the loading port "with all possible dis- patch." She did not do so. The court held that, on account of the necessity of promptness in commercial enterprises, this provision was not a collateral clause, whose breach would give rise merely to an action for damages, but that it was a warranty, whose breach avoided the contract and re- leased the charterers. It would also give a right of action for damages against the owners. 46 And a delay in arriving, which made it so late in the season as to prevent the char- terer from obtaining insurance, the vessel's agent having represented that she would arrive in time, absolves the charterer. 47 Quite similar to this was Davison v. Von Lingen. 48 Here the charter party contained a provision that the vessel had "now sailed or about to sail from Benizaf." In fact, she was only one-third loaded, and did not sail for some time. The court held that the charterer could refuse to load her on arrival, and could recover the extra cost of chartering an- other vessel to carry his cargo. The charter party is given in the opinion. The statement of a vessel's registered tonnage near the beginning of the usual form of charter party is not neces- sarily a warranty, but may be mere description. In Watts v. Camors, 49 the description was, "The steamship Highbury, Sup. Ct. 240, 46 L. Ed. 366; Hills v. Leeds (D. C.) 149 Fed. 878; Leeds v. Hills, 158 Fed. 1020, 85 C. C. A. 489; Hahlo v. Benedict, 216 Fed. 303, 132 C. C. A. 447. 452 Wall. 728, 17 L. Ed. 768. See, also, Giuseppe v. Manufac- turers' Export Co. (D. C.) 124 Fed. 663. -to Sanders v. Munson, 20 C. C. A. 5S1, 74 Fed. 649; Prussia (D. C.) 100 Fed. 4S4. 4 7 Oades v. Pfohl (D. C.) 104 Fed. 998. 4 8 113 U. S. 40, 5 Sup. Ct. 346, 28 L. Ed. 885. 4 » 115 TJ. S. 353, 6 Sup. Ct 91, 29 L. Ed. 406. 170 CONTRACTS OF AFFREIGHTMENT (Cll. 7 of the burden of 1,100 tons or thereabouts registered meas- urement," and there was a provision that she should carry "a full and complete cargo, say about 11,500 quarters of wheat in bulk." The registered tonnage was really 1203, a fact unknown to either party. The court held that the des- ignation of the ship by name and the stipulation as to the cargo negatived the idea that the statement as to tonnage was a warranty, and that the charterers were not justified in refusing to load her. The John H. Pearson 50 was a fruit charter, in which a vessel from Gibralter to Boston engaged to "take the North- ern passage." The court held that this was a term of art, and, if none such was known, she should go through the coolest waters to her destination. Culliford v. Gomila 51 contains a grain charter party in the report. In it the vessel guarantied to take 10,000 quarters of grain. The charterers, however, did not stipulate any definite day on which she was to enter upon the charter par- ty, or any definite day when she was to commence loading. When loaded she contained only 9,635 quarters, and the parties to whom the charters had sold the full cargo of 10,000 quarters refused to take it, the market having fallen. Afterwards, the ship, by removing more coal and water bal- last, took the full amount. The court held that she had fulfilled her contract, and was not liable to the charterers for their loss. • In the Gazelle, 52 the charter party contained a clause that the vessel should be ordered to a "safe * * * port, or as near thereto as she can safely get, and always lay and discharge afloat." The charterers ordered her to a port hav- ing a bar at its mouth, which she could not cross, the only 60 121 U. S. 469, 7 Sup. Ct. 1008, 30 L. Ed. 979. oi 128 U. S. 135, 9 Sup. Ct. 50, 32 L. Ed. 381. " 128 U. S. 474, 9 Sup. Ct. 139, 32 L. Ed. 496. See, also, Carbon Slate Co.'v. Ennis, 11 I Fed. 260, 52 C. C. A. 146; Manchester Liners v. Virginia-Carolina Chemical Co., 204 Fed. 564, 123 C. C. A. 90. § 85) CONDITIONS IMPLIED IN CHARTER PARTIES 171 anchorage outside the bar being in the open sea. The mas- ter refused to go. The court upheld him, and ruled also that evidence of a custom to anchor and discharge outside the bar was inadmissible against the express provisions of the contract. But such an agreement means that a ship must be able to reach her loading dock without mutilation. A ship with steel masts, which cannot be temporarily lowered in order to enable her to pass under a bridge, is not required to take them down ; but the cost of the lightering entailed falls on the charterer. 63 CONDITIONS IMPLIED IN CHARTER PARTIES OF SEAWORTHINESS AND AGAINST DEVIATION 85. In contracts of charter party there is an implied condi- tion of seaworthiness and against deviation. Although the language in the forms now in use frequent- ly covers it, yet there are certain conditions implied in a charter party, in the absence of express provisions to the contrary. They are : 1. That the ship is seaworthy. # Charter parties usually contain a provision that the vessel is "tight, stanch, and strong, and in every way fitted for the voyage." This warranty of seaworthiness is a rigid one, and means that the vessel is actually seaworthy, not merely that her owner has done his best to make her so. It applies not only to the beginning of loading, but to the time of sailing as well, and the vessel will be liable for damages caused by unseaworthiness at starting, or by unseaworthi- ness developing on the voyage from prior causes not cov- ered by exceptions, or from causes which he could repair. ss Mencke v. Cargo of Java Sugar, 187 U. S. 248. 23 Sup. Ct. 86, 47 L. Ed. 163. 172 CONTRACTS OF AFFREIGHTMENT (Ch. 7 In the CALEDONIA, 54 a vessel with a cattle cargo broke her shaft at sea, thereby greatly lengthening the voyage, and causing much loss in their quality. The court held the vessel responsible, though the breakage arose from a latent defect. In STEEL v. STATE LINE S. S. CO., 55 a lower port- hole was left insufficiently fastened. Sea water came through and injured the cargo. The court held that if this was the condition at sailing it was a violation of the warran- ty of seaworthiness. This case is specially instructive. In Cohn v. Davidson, 56 the vessel was seaworthy when she commenced to load, but unseaworthy when she sailed. The court held that this was a breach of the warranty. In Worms v. Storey, 57 a vessel which was seaworthy at starting became unseaworthy during the voyage from causes excepted in the contract. But she put into port, where she could have repaired, and did not. She was held liable for a breach of the warranty. This doctrine applies not only to structural defects, but to deficiencies of equipment, as, for instance, an insufficient supply of coal for the voyage, or insufficient ballast. 58 But if the charterers examine the vessel before chartering her, and accept her, they cannot complain of such defects as they coald reasonably have discovered, though they still may complain of latent defects. 59 The obligation of seaworthiness and fitness for the voy- age requires that the vessel is reasonably fit to carry safely § So. 6 4 157 U. S. 124, 15 Sup. Ct. 537, 39 L. Ed. 644. en 3 A. C. 72. sc 2 Q. B. D. 455. 57 ii Exeh. 427. 5J Yortigern, [1809] P. 140; Weir v. Steamship Co., [1900] A. C. 525 ; Mclver v. Tate Steamers, Ltd., [1903] 1 K. B. 362. 59 Waterhouse v. Rock Island Alaska Min. Co., 38 C. C. A. 2S1, 97 Fed. 466 ; Sanford & Brooks Co. v. Columbia Dredging Co., 177 Fed. 878, 101 C. C. A. 92. § 85) CONDITIONS IMPLIED IN CHARTER PARTIES 173 and without damage the particular cargo which she under- takes to transport. 60 This applies, not only to defects which might render the voyage dangerous, but to unfitness to receive or properly care for cargo. 61 Defects in the refrigerating apparatus are a common ex- ample of this. 62 2. That the vessel will commence and prosecute the voy- age with reasonable diligence and without unnecessary de- viation. Charter parties cover this by a stipulation that the vessel, if not at the loading port., shall "at once sail and proceed" thereto, and shall when loaded "proceed with all practicable dispatch." If she fails to do so in the first instance, the charterer may, as decided in the cases of Lowber v. Bangs and Davison v. Von Lingen, above cited, refuse to load her, and have his action for damages. If by excepted perils she is so delayed that the commercial enterprise is frustrated, the charterer may refuse to load her, but in such case he would have no action for damages. 63 If by deviation the charterer suffers loss, he can sue for damages. 64 The vessel is not obligated to proceed, if, after she starts, conditions arose which would render it probable in the judgment of a prudent master or owner that she would be captured; war being imminent. 65 eo Jeanie, 236 Fed. 463, 149 O. C. A. 515. ei Church Cooperage Co. v. Pinkney, 170 Fed. 266, 95 C. C. A. 462. 6 2 Southwark, 191 U. S. 1, 24 Sup. Ct. 1, 48 L. Ed. 65. 6 3 Jackson v. Insurance Co., L. R. 10 C. P. 125. 6 4 Scaranianga v. Stamp, 5 C. P. D. 295. es Kronprinzessin Cecilie, 244 U. S. 12, 37 Sup. Ct. 490, 61 L. Ed. 960. 174 CONTRACTS OF AFFREIGHTMENT (Ch. 7 CANCELLATION CLAUSE IN CHARTER PARTIES 86. If the vessel does not arrive by the date specified, the charterer may refuse to load, though the delay was due to excepted perils. If she does not arrive with- in a reasonable time, she is liable for damages, though she arrives before the canceling date. The ship's first duty is to proceed to the loading port with reasonable diligence. To enforce this obligation, a clause called the "cancellation clause" is inserted. It pro- vides that, if the vessel does not arrive at the loading port ready to load by a given date, all her holds being clear, the charterers may cancel. Under this the charterers may can- cel, though the delay was caused by excepted perils. 66 If the canceling clause is worded as above, she must not only arrive by the canceling date, but she must also be ready for cargo by that date. Her ballast and dunnage must be out, and all the spaces to which the charterer is entitled must be cleared from the effects of former cargoes and ready for use. She must be in such condition as to satisfy the underwriter's inspector and all reasonable requirements for avoiding injury to cargo. 67 As this clause is for the benefit of the charterer, it does not exempt the ship from her obligation to proceed to the loading port with reasonable dispatch. If she loiters by the § 86. 66 Smith v. Dart, 14 Q. R. D. 105. 67 Gn-ves v. Volkart, 1 C. & E. 309; Crow v. Myers (D. C.) 41 Fed. 806; Stanton v. Richardson, 45 L. J. Ex. 78; Disney v. Furness, Withy & Co. (D. C.) 79 Fed. 810: In re 2,098 Tons of Coal, 135 Fed. 317, 67 C. C. A. 671; L. N. Dantzler Lumber Co. v. Churchill, 136 Fed. 560, 69 C. C. A. 270. But the charterer cannot claim the right to cancel on accounl of a failure to be ready caused by his obstruc- tive tactics. Bonanno v. Tweedie Trading Co. (D. C.) 117 Fed. 991; Id., 130 Fed. 448, 64 C. C. A. 650. § 87) LOADING UNDER CHARTER PARTIES 175 wayside, she is responsible to the charterer in damages, though she should arrive before the canceling date. 68 The clause does not cancel the charter proprio vigore, but merely gives the charterer an option. He must exercise it within the time allowed, or he waives his right. 69 The charter party usually provides that the vessel can only be ordered to a safe port, where she can lie always afloat. This provision is common both to loading and dis- charging. It means safely afloat when loaded. Under it a ship is not required to lighter her cargo, or lie at a danger- ous anchorage. 70 LOADING UNDER CHARTER PARTIES 87. Delay beyond the time allowed entitles the ship to de- murrage. Sundays and legal holidays axe then counted under the ordinary form of charter party. The charter party provides that the charterers have a cer- tain number of days for loading, Sundays and legal holidays excepted, and must pay demurrage at a certain rate per ton per day if vessel is longer detained. If the clause is worded in this manner, demurrage is payable for Sundays and legal holidays. 71 Sundays and holidays are excluded in counting the lay days, but included in estimating the demurrage, because in c s March (D. C.) 25 Fed. 106; McAndrcw v. Adams, 1 Bing. N. C. 29. 27 E. C. L. 297 ; Heller v. Pendleton (D. C.) 148 Fed. 1014. es W. & C. T. Jones S. S. Co. v. Barnes-Ames Co., 244 Fed. 116, 156 C. C. A. 544. to Gazelle, 12S U. S. 474, 9 Sup. Ct. 139, 32 L. Ed. 496; Shield v. Wilkin, 5 Exch. 304 ; Alhambra, 6 P. D. 68. n Brown v. Johnson, 10 M. & W. 331; Red "R" S. S. Co. v. North American Transport Co., 91 Fed. 168, 33 C. C. A. 432; Wallace v. Cargo of 292,000 Feet of Pine Boards (D. C.) 224 Fed. 993. But, if the excepted days are actually used, they count in the absence of a contrary agreement. Whittall v. Rathken's Shipping Co. Ltd., [1907] 1 K. B. 783; Branchelow S. S. Co. v. Lamport, [1907] 1 K. B. 787. 176 CONTRACTS OP AFFREIGHTMENT (Ch. 7 such port work they cannot be used. But demurrage is an allowance for the time during which the ship would other- wise be on a voyage, and, as she does not stop her voyage for Sundays, every day should count. The same reasoning applies to dispatch money, which is an allowance made the charterer for loading in less time than that permitted by the charter. 72 The term "working days" means a calendar day on which the law permits work to be done. It excludes Sundays and legal holidays, but does not credit the charterer with days when the weather is too bad to work. 73 In these latter days, a stipulation against strikes has been found quite convenient. 74 Under lump-sum charters, a fruitful source of controversy is as to the spaces on the ship which the charterer may fill. He is entitled to all spaces where cargo can be put, except the spaces necessary for the crew, coal, tackle, apparel, pro- visions, and furniture. The variety in the build of vessels renders it impossible to lay down any general rule. A good example of such controversies is Crow v. Myers. 75 The loading is largely governed by the custom of the port, except where inconsistent with the written contract. 70 ~ 2 Muirfield (D. C.) 174 Fed. 75 ; Fargrove Nav. Co. v. Laviuo & Co. (D. C.) 191 Fed. 523 ; Pool Shipping Co. v. Samuel, 200 Fed. 36, 118 C. C. A. 264. 7 3 Sorensen v. Keyser, 52 Fed. 163, 2 C. C. A. 650; Wood v. Keyser (D. C.) 84 Fed. 6S8; Id., 87 Fed. 1007, 31 C. C. A. 35S. The proper language for the charterer to use in order to get the benefit of hud weather is "weather working days." Bennetts v. Brown, [1908] 1 K. B. 490. 74 Marshall v. McNear (D. C.) 121 Fed. 42S; Pyman S. S. Co. v. Mexican Central R. Co., 1C9 Fed. 2S1, 91 C. C. A. 557; Hulthen v. Stewart, [1902] 2 K. B. 199; [1903] A. C. 389. 78 (D. C.) 41 Fed. 806. See, also, Kaupanger (D. C.) 241 Fed. 702. But tlif vessel may carry only so much coal as is reasonably nec- iry for the voyage. Darling v. Raeburn, [1906] 1 K. B. 572; [1907] 1 K. b. s;»;. :<: Moore v. F. S., 196 U. S. 157. 25 Sup. Ct. 202, 49 L. Ed. 428. § 88) CHARTER PARTY DOCUMENTS 177 EXECUTION OF NECESSARY DOCUMENTS UNDER CHARTER PARTIES 88. The master must sign the bills of lading and other nec- essary documents. Most charter parties require the master to sign bills of lading as presented by the charterer for the different parts of the cargo as received on board, and drafts for the dis- bursements made by the charterers to pay the vessel's bills when in port, and for the difference between the char- ter party freight and the freight as per bills of lading. All these are important documents. The amount necessary to clear a single large ship runs up into the tens of thousands. As charterers with a large business may have several on the berth loading at once, the capital necessary for their use would be enormous. Hence these documents are needed by him and his shippers for obtaining discounts from his banker. Thus, a man who sees an opportunity to ship a thousand bales of cotton to Liverpool, where he can sell it at an advance, can buy it on this side, engage freight room from some charterer who has a ship in port or expected, get a bill of lading for it to order, draw on his Liverpool con- signee, attaching the bill of lading to the draft, and get his draft at once discounted at his bank. Under the usage of trade, the freight is payable at the port of discharge, and is collected by the vessel owner. If the charterer has sublet the room to different shippers for more than he has agreed to pay the owner for the use of his ship, the owner will owe him the difference. This is calculated at the loading port on the completion of the loading, and the master gives the charterer a draft on his owners for the amount. If the cargo has started from in- land points, and the charterer has to pay accrued charges of previous carriers (for the last carrier pays the charges Hughes,Adm.(2d Ed.)— 12 178 CONTRACTS OP AFFREIGHTMENT (Ch. 7 of the previous carriers), the draft may be very great; but, if it all starts from the loading port, so narrow are the margins of profit in modern trade that the draft is small. A recalcitrant captain may be compelled to sign these im- portant papers. 77 CESSER CLAUSE IN CHARTER PARTIES 89. Under the cesser clause, the settlement between ship and charterer must be made at the loading port, and the shipper looks to the ship alone, and not to the charterer. A common provision in charter parties is the clause known as the "cesser" clause. Its usual language is "owner to have a lien on the cargo for freight, dead freight, and de- murrage, charterer's liability to cease when cargo shipped.' It is strictly construed. It does not operate to release the ship, and it releases the charterer from liability for future occurrences alone, not for past occurrences. 78 The object is to end the charterer's liability at the loading port and save him from a lawsuit at a distant point. To that end the bills of lading are given direct by the ship to the shipper, and all disputes as to demurrage, dead freight, etc., at the loading port, are settled before the vessel sails, while the lien given to the owner protects his freight or § 88. 7 7 Reynolds v. The Joseph, 2 Hughe?, 58, Fed. Cas. No. 11,730. See, in general, as to these documents. Kruger v. Moel Tryvan S. S. Co., [1007] A. C. 272 ; London Transport Co. v. Trech- man, [1904] 1 K. B. 635. § 80. 78KISH v. CORY, L. R. 10 Q. B. 553; Iona, SO Fed. 933, 26 C. C. A. 261 ; Schmidt v. Keyser, S8 Fed. 700, 32 C. C. A. 121 : nan v. Burrill, 170 U. S. 100. 21 Sup. Ct. 3S, 45 I.. Ed. 106; Steamship Rutherglen Co. v. Boward Houlder & Partners, 203 Fed. 848, 122 C. C. A. 166; Elvers v. W. R. Grace & Co., 211 Fed. 705, 157 C. C. A. 153; Seguranca. 250 Fed. 10, 162 C. C. A. 191. § 89) CESSER CLAUSE IN CHARTER PARTIES 179 demurrage at the port of discharge. Hence, if the owner gives the shipper a clean bill of lading at the loading port, he cannot hold the goods for demurrage ; for the shipper is not bound by the charter party. He must collect his de- murrage, or reserve a lien for it, by proper language, in his bill of lading. 79 7 9 Turner v. Haji, [1004] A. C. S26. 180 THE HARTEK ACT (Ch. 8 CHAPTER VIII OF WATER CARRIAGE AS AFFECTED BY THE HARTER ACT OF FEBRUARY 13, 1893 (27 Stat. 415 [U. S. Conip. St §§ 8029-8035]) 90-91. • Policy of Act 92. Act Applicable Only between Vessel Owner and Shipper. 93. Vessels and Voyages to which Act is Applicable. 94. Relative Measure of Obligation as to Handling the Cargo and Handling the Ship. 95. [Necessity of Stipulation to Reduce Liability for Unseaworthi- ness. POLICY OF ACT 90. The act materially modifies the law relating to the car- riage of goods. 91. It forbids any stipulation against negligence in prep- aration for the voyage or in delivery, or unsea- worthiness below the measure of due diligence. The discussion in the preceding chapter has been as to the liability of carriers under the general decisions of 'the courts, independent of statute. As has been seen, stipu- lations against negligence are forbidden by the preponder- ance of American decisions, but allowed by the English de- cisions. As a large proportion of the foreign carrying trade is conducted in English vessels, the effect of the English decisions is to allow vessel owners to fritter away their liability by stipulation, and this placed American vessel owners at a disadvantage in the close competition between them. The Harter Act was a compromise between the shipping and carrying interests, and though it exempts car- rying vessels from liability for many acts of negligence for which they were responsible formerly, and against which they could not stipulate, it at the same time works in favor of the shipper by forbidding many stipulations which under §§ 90-91) POLICY OF ACT 181 the English law were valid. The general policy of the law is that the vessel owner must take the care required of experts in that business in all matters relating to the load- ing, stowage, custody, care, and proper delivery of the goods intrusted to it, and must exercise due diligence to make the vessel seaworthy in all the particulars which have been held to constitute seaworthiness; and that, if these requirements are met entirely, neither the vessel nor her owners shall be responsible even for faults or errors in nav- igation, nor for many such grounds of liability as have been held by the American decisions to be validly stipulated against in bills of lading. The full text of the act is as follows : "Chapter 105. An act relating to navigation of vessels, bills of lading, and to certain obligations, duties, and rights in connection with the carriage of property. "Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that it shall not be lawful for the manager, agent, master or owner of any vessel transporting merchandise or prop- erty from or between ports of the United States and for- eign ports to insert in any bill of lading or shipping docu- ment any clause, covenant, or agreement whereby it, he, or they shall be relieved from liability for loss or damage arising from negligence, fault, or failure in proper loading, stowage, custody, care, or proper delivery of any and all lawful merchandise or property committed to its or their charge. Any and all words and clauses of such import inserted in bills of lading or shipping receipts shall be null and void and of no effect. "Sec. 2. That it shall not be lawful for any vessel trans- porting merchandise or property from or between ports of the United States of America and foreign ports, her own- er, master, agent, or manager, to insert in any bill of lading or shipping document any covenant or agreement whereby the obligation of the owner or owners of said vessel to ex- 182 THE HARTER ACT (Ch. 8 ercise due diligence, properly equip, man, provision, and outfit said vessel, and to make said vessel seaworthy and capable of performing' her intended voyage, or whereby the obligations of the master, officers, agents, or servants to carefully handle and stow her cargo and to care for and properly deliver the same, shall in any wise be lessened, weakened or avoided. "Sec. 3. That if the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped and supplied, neither the vessel, her owner or owners, agent or charterers, shall become or be held re- sponsible for damages or loss resulting from faults or er- rors in navigation or in the management of said vessel, nor shall the vessel, her owner or owners, charterers, agent, or master be held liable for losses arising from dangers of the sea or other navigable waters, acts of God, or public ene- mies, or the inherent defect, quality or vice of the thing carried, or from insufficiency of package, or seizure under legal process, or for loss resulting from any act or omission of the shipper or owner of the goods, his agent or repre- sentative, or from saving or attempting to save life or prop- erty at sea, or from any deviation in rendering such service. "Sec. 4. That it shall be the duty of the owner or owners, masters, or agent of any vessel transporting merchandise or property from or between ports of the United States and foreign ports, to issue to shippers of any lawful mer- chandise a bill of lading or shipping document, stating, among other things, the marks necessary for identification, number of packages or quantity, stating whether it be car- rier's or shipper's weight, and apparent order or condition of such merchandise or property delivered to and received by the owner, master, or agent of the vessel for transporta- tion, and such document shall be prima facie evidence of the receipt of the merchandise therein described. § 92) APPLICABLE ONLY BETWEEN OWNER AND SHIPPER 183 "Sec. 5. That for a violation of any of the provisions of this act the agent, owner, or master of the vessel guilty of such violation, and who refuses to issue on demand the bill of lading herein provided for, shall be liable to a fine not exceeding two thousand dollars. The amount of the fine and costs for such violation shall be a lien upon the vessel whose agent, owner, or master is guilty of such violation, and such vessel may be libeled therefor in any district court of the United States within whose jurisdiction the vessel may be found. One-half of such penalty shall go to the party injured by such violation and the remainder to the government of the United States. "Sec. 6. That this act shall not be held to modify or re- peal sections forty-two hundred and eighty-one, forty-two hundred and eighty-two, and forty-two hundred and eighty- three of the Revised Statutes of the United States, or any other statutes defining the liability of vessels, their owners or representatives. "Sec. 7. Sections one and four of this act shall not apply to the transportation of live animals. "Sec. 8. This act shall take effect from and after the first dav of July, eighteen hundred and ninety-three. Approved February 13, 1893." x ACT APPLICABLE ONLY BETWEEN VESSEL OWNER AND SHIPPER 92. The act is intended only to regulate the relations be- tween vessel and shipper, and not to affect the re- lations of either to third parties. In referring to the act generally, it is first to be observed, when the title and all of its provisions are taken together, that it is only intended to affect the relations between ves- i 27 Stat. 445 (U. S. Comp. St. §§ 8029-S035). 184 THE HARTER ACT (Ch. 8 sel owner and shipper. Accordingly in the DELAWARE 2 which was a case of a collision between two vessels, in which the wrongdoing vessel claimed that the general lan- guage of the third section of the act exempted it from lia- bility to the other vessel, the court held that such was not its intention ; that it was not intended to affect the rela- tions of any other parties than shipper and carrier. Under the principle of this decision, the owner of a tug cannot claim exemption under the third section of the act for negligent towage by which cargo on a barge in its tow was injured, though the owner of the tug was pro hac vice owner of the barge and it was his contract of carriage, the act applying only to the cargo and the vessel on which it was laden. 3 As to the policy of the act, the Supreme Court in its opin- ion used the following language : "It is entirely clear, however, that the whole object of the act is to modify the relations previously existing between the vessel and her cargo. This is apparent not only from the title of the act, but from its general tenor and provisions, which are evi- dently designed to fix the relations between the cargo and the vessel, and to prohibit contracts restricting the liabili- ty of the vessel and owners in certain particulars connected with the construction, repair, and outfit of the vessel, and the care and delivery of the cargo. The act was an out- growth of attempts, made in recent years, to limit, as far as possible, the liability of the vessel and her owners, by inserting in bills of lading stipulations against losses aris- ing from unseaworthiness, bad stowage, and negligence in navigation, and other forms of liability, which had been held by the courts of England, if not of this country, to be valid as contracts, and to be respected even when they ex- empt the ship from the consequences of her own negli- § 92. 2 1C1 U. S. 450, 16 Sup. Ct. 51G, 40 L. Ed. 771. b Mfarrell (D. C.) 200 Fed. 826, affirmed 195 Fed. 4S3, 113 C. C. A. 393. § 92) APPLICABLB ONLY BETWEEN OWNER AND SHIPPER 185 gence. As decisions were made by the courts from time to time, holding the vessel for nonexcepted liabilities, new clauses were inserted in the bills of lading to meet these de- cisions, until the common-law responsibility of carriers by sea had been frittered away to such an extent that several of the leading commercial associations, both in this country and in England, had taken the subject in hand, and sug- gested amendments to the maritime law in line with those embodied in the Harter act. The exigencies which led to the passage of the act are graphically set forth in a peti- tion addressed by the Glasgow Corn Trade Association to the Marquis of Salisbury, and embodied in a report of the committee on interstate and foreign commerce of the house of representatives." In the Irrawaddy, 4 the court uses the following language in reference to the purpose of the act: "Plainly, the main purposes of the act were to relieve the shipowner from liability for latent defects, not discoverable by the utmost care and diligence, and, in the event that he has exercised due diligence to make his vessel seaworthy, to exempt him and the ship from responsibility for damage or loss result- ing from faults or errors in navigation or in the manage- ment of the vessel. But can we go further, and say that it was the intention of the act to allow the owner to share in the benefits of a general average contribution to meet loss- es occasioned by faults in the navigation and management of the ship? Doubtless, as the law stood before the pass- age of the act, the owner could not contract against his lia- bility and that of his vessel for loss occasioned by negli- gence or fault in the officers and crew, because such a contract was held by the federal courts to be contrary to public policy, and, in this particular, the owners of Ameri- can vessels were at a disadvantage, as compared with the owners of foreign vessels, who can contract with shippers 4 171 U. S. 187, 18 Sup. Ct. 831, 43 L. Ed. 130. 1S6 THE HARTER ACT (Ch. 8 against any liability for negligence or fault on the part of the officers and crew. This inequality, of course, operated unfavorably on the American shipowner, and Congress thought fit to remove the disadvantage, not by declaring that it should be competent for the owners of vessels to ex- empt themselves from liability for the faults of the master and crew by stipulations to that effect contained in bills of lading, but by enacting that, if the owners exercised due diligence in making their ships seaworthy and in duly man- ning and equipping them, there should be no liability for the navigation and management of the ships, however faulty. Although the foundation of the rule that forbade shipown- ers to contract for exemption from liability for negligence in their agents and employes was in the decisions of the courts that such contracts were against public policy, it was nevertheless competent for Congress to make a change in the standard of duty, and it is plainly the duty of the courts to conform in their decisions to the policy so de- clared." This case also illustrates the doctrine that the act was not intended to affect the rights of the vessel to third par- ties. The vessel had met with a disaster from some fault in navigation of her crew, and the vessel owner contended that, as he was no longer liable under the act for the negli- gence of his crew in this respect, he ought to be entitled to recover against the cargo owner in general average for such loss. The Supreme Court, however, held that it did not give him the right to assert a claim for general aver- age against the cargo arising out of the negligence of his own crew. But, though he cannot assert such claim in the absence of special agreement, the act shows such a change of pol- icy that he is allowed by special agreement to stipulate that he shall have a right to make such a claim. 5 » Jason. 225 U. S. 32, 32 Sup. Ct. 500, 50 L. Ed. 909. The material sections of the art are printed in a note to this case. The opinion § 93) VESSELS TO WHICH ACT IS APPLICABLE 1ST The tendency is to construe the statute strictly. 6 Hence it does not apply to stipulations in a charter party regulat- ing the rights of owner and charterer and not connected with the relation between shipper and carrier. 7 Nor was the act intended to apply to any but carriers of goods. Passenger carriers are not affected by it. 8 VESSELS AND VOYAGES TO WHICH ACT IS AP- PLICABLE 93. The test as to vessels which come under this act is not based upon their nationality, but upon their voy- ages. In the first two sections, the voyages covered by the act are those between ports of the United States and foreign countries, and, if the voyage in question is between these ports, the act applies both to American and foreign ves- sels. 9 by Mr. Justice Pitney gives a clear analysis and explanation of the act. s Benner Line v. Pendleton, 217 Fed. 497, 505, 133 C. C. A. 349 : Compagnie Maritime Francaise v. Meyer, 248 Fed. 881, 8S5, 160 C. C. A. 639. 7 Lake Steam Shipping Co. v. Bacon (D. O.) 137 Fed. 961 : Id., 145 Fed. 1022, 74 C. C. A. 476; Golcar S. S. Co. v. Tweedie Trading Co. (D. C.) 146 Fed. 563. s Moses v. Hamburg-American Packet Co. (D. C.) 88 Fed. 329 ; Id., 92 Fed. 1021, 34 C. C. A. 687; New England (D. C.) 110 Fed. 415, 418 ; California Nav. & Imp. Co., In re (D. C.) 110 Fed. .67S. These cases exclude from the scope of the statute personal injuries to passengers and injuries to baggage carried as such. In Kensington, 183 U. S. 263, 22 Sup. Ct. 102, 46 L. Ed. 190, the question was in- cidentally involved. The court, while holding that the statute did not cover the specific case, decided that the statute would apply if the passenger was compelled to send his baggage as freight by rea- son of a regulation of the carrier as to valuation. § 93. s Chattahoochee, 173 U. S. 540, 19 Sup. Ct. 491, 43 L. Ed. 801; Knott v. Botany Worsted Mills, 179 U. S. 69, 21 Sup. Ct. 30, 45 L. Ed. 90; Tampico (D. C.) 151 Fed. 689. 188 THE HARTER ACT (Ch. 8 These sections, therefore, in the cases to which they ap- plied, put American and foreign vessels on an equality ; but it was necessary to go further than this. Had the law- stopped at that point, American vessels in foreign ports would have had an advantage over American vessels in the coasting trade, as the latter could not have stipulated against liability. Hence the third section, which exempts vessels from negligence in navigation and from liability, ir- respective of negligence, for perils of the sea and other par- ticulars which common carriers could stipulate against, ap- plies not only to voyages between American and foreign ports, but to all voyages from American ports, even though to other American ports. 10 RELATIVE MEASURE OF OBLIGATION AS TO HANDLING THE CARGO AND HANDLING THE SHIP 94. The carrier is liable for negligence in connection with the handling of the cargo, whether during loading, during the voyage, or during unloading, and can- not protect himself against such negligence by stipulation. On the other hand, the statute proprio vigore exempts him from the consequences of negligent naviga- tion (against which he could not have contracted under American law), and from other grounds of liability (against which he could have contracted under American law), if he exercises due diligence to furnish a seaworthy vessel. Stipulations not falling under the prohibitions of the act which were valid before are stifl permissible. io E. A. Shores. Jr. (D. C.) 70 Fed. 342; In re Piper Aden Good- all Co. (D. C.) 86 Fed. 670; Nettie Quill (D. C.) 124 Fed. 6G7. § 94) IMPROPER LOADING AND NEGLIGENT NAVIGATION 189 The main questions under the act have arisen in connec- tion with the first three sections. Its general scheme is to make the vessel liable for faults in connection with the ordinary shipment and stowage of the cargo, but to ex- empt her from liability for negligence in navigation after the voyage commences. The distinction between acts connected with handling the cargo and those connected with handling the ship is a close one, and has given rise to many decisions. In Calderon v. Steamship Co., 11 a vessel on a voyage from New York to certain West India ports put some goods designed for one port in a compartment beneath goods de- signed for a second port. Hence, when she reached the first port, the goods could not be found, and were carried past their destination. At the second port they were found, but the vessel came back on her trip to New York, and the goods were lost. The court held that this was not a fault of navigation, but a fault in proper delivery, and that, there- fore, the vessel was liable, and the bill of lading could not stipulate against such an act. In the Frey, 12 some glycerine was so loosely stowed that it rolled around in rough weather, and injured the other cargo. The vessel was held liable. In the Kate, 13 the crew, while loading in port, left out several stanchions, intended to support part of one of the decks, and piled up on the remaining stanchion an unusual load, and the vessel was in this condition when she sailed. The court held that this was not a fault in navigation, and that the vessel was liable. In the Colima, 14 the vessel was so loaded that she was § 94. ii 170 U. S. 272, 18 Sup. Ct. 588, 42 L. Ed. 1033. See, also, Gulden v. Hijos, 252 Fed. 577, 164 C. C. A. 493. 12 (D. C.) 92 Fed. 667. See, also, Dunbritton, 73 Fed. 352, 19 C. C. A. 449. is (D. C.) 91 Fed. 679. i* (D. C.) 82 Fed. 665. Cases of this character are numerous. Germanic, 196 U. S. 589, 25 Sup. Ct. 317, 49 L. Ed. 610; Oneida. 128 190 THE HARTER ACT (Ch. 8 crank in bad, though not extraordinary, weather. She was held liable. In the Whitlieburn, 15 it was held that properly ballasting the ship was connected with the loading, and not the navi- gation, and that the vessel was liable for any injury caused by failing to attend to this. In the Niagara, 16 a vessel which went to sea with a de- fective mechanical horn was held not properly equipped (or seaworthy in the technical sense), and therefore that she was liable to the cargo for any damage caused thereby. A competent master and sufficient crew are parts of the requirement of seaworthiness, but a negligent act of the master is not of itself proof of incompetency. 17 Some narrow distinctions have been drawn in reference to the refrigerating apparatus of modern vessels. If the apparatus is defective, the carrier is not protected by the Statute. 18 If, on the other hand, the apparatus is sufficient, but is carelessly used, that is a fault in navigation, and the car- rier is protected. 19 The statutory exemption from faults of navigation does not come into effect until the voyage has actually begun. 2 ' 1 As the exemption from liability for faults of navigation Fed. 6S7, 63 C. C. A. 2.30; Steamship Wellesley Co. v.. Hooper, 185 Fed. 733, 108 C. C. A. 71 ; Ingram & Royle, Ltd., v. Services Man- times, [1013] 1 K. B. 53S. is (D. C.) 80 Fed. 526. So as to dunnage. Earnwood (D. C.) 83 Fed. 315. io 2S C. C. A. 528, 84 Fed. 002. it Cygnet, 126 Fed. 742, Gl C. C. A. 348; Hanson v. Haywood, 152 Fed. 401, 81 C. C. A. 527. is Southwark, 101 U. S. 1, 24 Sup. Ct. 1, 48 L. Ed. 65; Nelson v. Nelson Line, [1007] 1 K. B. 760; [1008] A. C. 16. isRowson v. Transport Co. [1003] 1 K. B. 114; 2 K. B. 666. 20 steamship Wellesley Co. v. Hooper, L85 Fed. 733, 10S C. C. A. 71 ; Gilchrist Transp. Co. v. Boston Ins. Co., 223 Fed. 716, 130 C. C. A. 2i';. § 94) IMPROPER LOADING AND NEGLIGENT NAVIGATION 191 is given on condition that the carrier will exercise due dili- gence to make his vessel seaworthy, the burden to prove compliance with this condition is on the carrier. 21 Some of the nicest questions in connection with the act have arisen in reference to the proper management of her portholes. The question as to responsibility for leaving a porthole open or insecurely fastened at sailing depends largely upon its location, and upon the question whether harm could reasonably be expeeted to come from leaving it open. In the Silvia, 22 a porthole was knowingly left open by the crew at the time of the vessel's sailing, and care was taken not to block it by cargo, so that in case of necessity, when the vessel went to sea, it could have been easily closed. The porthole itself was without defect. At sea the crew forgot to close it, and some of the goods were injured. The court held that this was a fault of navigation, and did not render the vessel unseaworthy. On the other hand, in the Manitoba, 23 a porthole was un- intentionally left insecure at the time of sailing. Judge Brown held that this was a fault connected with the ordi- nary loading, and was not an act of navigation, and that the ship was liable. It is commended as an interesting dis- cussion of the difference between the two cases. In the English case of Dobell v. Steamship Rossmoxe Co., 24 the porthole was not only left open, but cargo was packed against it, so that it could not have been closed at sea. The court held that under these circumstances it was a fault in loading, and not in navigation, and that the vessel was liable. 21 Wildcroft, 201 U. S. 378, 26 Sup. Ct. 467, 50 L. Ed. 794; R. P. Fitzgerald, 212 Fed. G7S. 129 C. C. A. 214. 22 171 u. S. 462, 19 Sup. Ct. 7, 43 L. Ed. 241. See, also, Tenedos (D. C.) 137 Fed. 443 ; 151 Fed. 1022, S2 C. C. A. 671. 23 (D. C.) 104 Fed. 145. See. also, International Navigation Co. v. Farr & Bailey Mfg. Co., 181 U. S. 218, 21 Sup. Ct. 591, 45 L. Ed. 830. 2 4 [1895] 2 Q. B. 408. 192 THE HARTER ACT (Ch. 8 The vessel which is so stowed that she is down by the head, causing the cargo to run forward, is liable for the consequences. 25 On the other hand, where water ballast in being pumped out injured the cargo, owing to the fact that the crew in pumping negligently left a valve open, the machinery it- self being in perfect order, this was held a fault in naviga- tion, and the vessel was not liable. 20 And lack of attention to the vessel's pumps while on a voyage, by which cargo was injured, the pumps themselves being in good order, is a fault in navigation, for which the vessel is not liable under the act. 27 Breaking adrift and causing damage to cargo, because the pilot anchored the vessel in a bad place, was a fault of navigation, for which the ship was not liable. 28 So a vessel which was injured on a voyage, and taken to an intermediate port for repairs, was not liable for subse- quent damage from the failure to make the repairs suffi- ciently extensive, owing to a lack of judgment of the mas- ter. 29 ' 25 Botany Worsted Mills v. Knott (D. C.) 76 Fed. 5S2 ; Id., 82 Fed. 471, 27 C. C. A. 326 ; Knott v. Botany Worsted Mills, 179 TJ. S. 09, 21 Sup. Ct. 30, 45 L. Ed. 90. But tipping the ship by the master, not in connection with the discharge of the cargo, but in order to examine the propeller is a fault in navigation. Indrani, 177 Fed. 914, 101 C. C. A. 194. ze Mexican Prince (I). C.) 82 Fed. 484; Id., 91 Fed. 1003, 34 C. C. A. 168. See, also, Wildcroft, 201 U. S. 37S, 26 Sup. Ct. 467, 50 L. Ed. 794; American Sugar Refining Co. v. Rickinson, 124 Fed. 188, 59 C. C. A. 604. 27 British King (D. C.) 89 Fed. 872; Id., 92 Fed. 1018, 35 C. O. A. 159. 2 8 Etona, 71 Fed. 895, 18 C. C. A. 380. 29 The Guadeloupe (D. C.) 92 Fed. 670; Corsar v. Spreckels. 141 Fed. 260, 72 C. C. A. 378 ; U. S. v. New York & O. S. S. Co., 216 Fed. 01, 132 C. C. A. 305. § 95) REDUCTION OF LIABILITY FOR UNSEAWORTHINESS 193 Validity of Stipulations Not Mentioned in the Act Stipulations not covered by the terms of the statute, which were valid under American law before the act, are unaffected by it. A stipulation against thieves is valid. 30 So as to a stipulation against strikes. 31 So a stipulation as to a substituted delivery at the quay or into hired lighters. 32 So a stipulation limiting the value, provided the shipper is left free to declare the true value. 33 NECESSITY OF STIPULATION TO REDUCE LIA- BILITY FOR UNSEAWORTHINESS 95. The act permits the shipowner to reduce his warranty of seaworthiness to the measure of reasonable dil- igence by proper stipulations, but does not have this effect proprio vigore. Probably the most interesting case that has been decided so far upon the act is the CARIB PRINCE. 34 There, a defective rivet which had existed from the very construc- tion of the ship, and was not discoverable by the utmost care, caused by leakage a damage to the cargo. Under the decisions relating to seaworthiness independent of the act, this was a latent defect, and the owner was solely responsi- ble under his implied warranty of seaworthiness. The vessel owner asserted exemption, first, on the ground that 30 Cuiiard S. S. Co. v. Kelley, 115 Fed. 678, 53 C. C. A. 310. si Toronto (D. C.) 168 Fed. 386. 32 Portuguese Prince (D. C.) 209 Fed. 995. 3 3Hohl v. Norddeutscher Lloyd, 175 Fed. 544, 99 C. C. A. 1G6 ; Kuhnhold v. Compagnie Generate Transatlantique (D. C.) 251 Fed. 3S7. § 95. 3 4 170 U. S. 655, 18 Sup. Ct. 753, 42 L. Ed. 1181. See, also, Indrapura, 190 Fed. 711, 112 C. C. A. 351. Hughes, Adm. (2d Ed.)— 13 194 THE BARTER ACT (Ch. 8 his bill of lading contained a clause against such unsea- worthiness, by which he was released from liability; and, second, he contended that the language of the Harter act itself, even if the bill of lading did not mean what he said, exempted him from every defect in the vessel not discover- able by due diligence. The Supreme Court, however, held, as to the first point, that his bill of lading, properly con- strued, was not intended to cover defects in the vessel ex- isting at the time of sailing, but only those subsequently arising. In reference to his second defense, it held that the act did not, by force of its own language, reduce the liabil- ity for unseaworthiness to the measure of due diligence, when no contract was made, but merely gave the vessel owner the right, by contract properly worded, to so reduce his liability. Hence it held the vessel liable under his im- plied warranty of seaworthiness, independent of the stat- ute, as he had not by contract protected himself against it. Recapitulation The act is a compromise between the interests of shipper and carrier, and was intended, in the interests of American shipping, to put the American carrier on an equality with the foreign carrier. The first section forbade any stipulation against negli- gence in connection generally with the handling of the cargo. The second section allowed the carrier to reduce his for- mer absolute warranty of seaworthiness to the measure of due diligence, provided he so stipulated, but did not do this proprio vigore for him. It allowed a similar stipulation as to the handling of the cargo. The third section of its own force exempted the carrier from liability for faults in navigation, sea perils, acts of God or public enemies, inherent vice in thing carried, insuf- ficiency of package, legal process, and deviation, provided the carrier showed due diligence as to seaworthiness in case he wished t<> set up any <>f these defensi §§96-97) ADMIRALTY JURISDICTION IN MATTERS OF TORT 195 CHAPTER IX OF ADMIRALTY JURISDICTION IN MATTERS OF TORT 96-97. The Waters Included, and Wharves, Piers, and Bridges. 98. Torts, to be Marine, must be Consummate on Water. 99. Torts may be Marine though Primal Cause on Land. 100. Detached Structures in Navigable Waters. 101. Torts Arising from Relation of Crew to Vessel or Owner. 102. Personal Torts Arising from Relation of Passengers to Vessel. 103. Obligations to Persons Rightfully on Vessel, but Bearing no Relation to It. 104. Liability as between Vessel and Independent Contractor. 105. Doctrine of Imputed Negligence. 106. Miscellaneous Marine Torts. 107. Doctrine of Contributory Negligence. THE WATERS INCLUDED, AND WHARVES, PIERS, AND BRIDGES 96. The test of jurisdiction in matters of tort is the lo- cality. 97. This includes navigable waters, natural and artificial, in their average state, but does not include wharves, piers, or bridges attached to the shore. We have already seen that the test of jurisdiction in mat- ters of tort is the locality, and therefore we must first con- sider what is meant by this test, and what waters it in- cludes ; and we must then take up the various torts cog- nizable in admiralty. They may be subdivided into torts to the person and torts to property ; and torts to the person may be further subdivided, for convenience of discussion, into torts not resulting in death and those resulting in death. The admiralty jurisdiction in matters of tort exists over all navigable waters, as explained in a previous connec- 196 ADMIRALTY JURISDICTION IN MATTERS OF TORT (Ch. 9 tion. 1 This includes canals. 2 But it includes only naviga- ble waters in their usual state. For instance, a stream that is navigable at ordinary tides is none the less within the ju- risdiction because it happens to be bare at an unusually low tide ; and, conversely, when a navigable river is widened by freshets far beyond its usual banks, and overspreads the ad- joining country on either side, it does not carry admiralty jurisdiction with it. Hence, in the Arkansas, 3 a steamer which, during a flood, was far out of the regular channel, and collided with a house, which was usually inland, was held to have committed no marine tort. There is a conflict of authority on the question whether an injury received in a dry dock while the water is pumped out comes under the cognizance of the admiralty. In the Warfield 4 Judge Thomas held that a workman who fell through the open hatch of a ship while in a dry dock had no remedy in admiralty. On the other hand, in the Anglo-Patagonian it was held that there was such remedy in the case of injury to work- men who were injured by the falling of the anchor from a ship while in dry dock, though they were not even aboard the ship, but were on a staging erected for the purpose of enabling them to work outside the ship. They were em- ployed by the dry dock company which had a contract for repairing the ship. 5 §§ 90-97. i Ante, P. 10. 2 Ex parte Boyer, 109 U. S. 629, 3 Sup. Ct. 434, 27 L. Ed. 1056. s (D. C.) 17 Fe7 Sup. Ct. 524, 61 L. Ed. 1086, L. It. A. 1918C, 451, Ann. Cas. L917E, 900. § 102) PERSONAL TORTS 209 Congress amended section 24(3) and section 256 of the Ju- dicial Code go as to make the first part read: "Of all civil causes of admiralty and maritime jurisdic- tion, saving- to suitors in all cases the right of a common- law remedy where the common law is competent to give it, and to claimants tlie rights and remedies under the work- men's compensation law of any state." The italicized part is the addition. 4,9 Since this amendment it has been held in Maryland that giving notice of claim under the Maryland statute was not a waiver of any right in admiralty. The case however was influenced if not entirely controlled by the fact that the claimant at the time of the notice was not in a condition to appreciate what he was doing. 50 PERSONAL TORTS ARISING FROM RELATION OF PASSENGERS TO VESSEL 102. The relation between the passengers and the ship or her owners is governed by the general law of pas- senger carriers, except in so far as it is modified by statute. The federal statutes contain many provisions looking to the safety of passengers and their accommodations. Chap- ter 6, tit. 48, of the Revised Statutes (sections 4252^1-289), and chapter 2, tit. 52, of the Revised Statutes (sections 4463-4500), contain these provisions in detail.* They con- 49 40 Stat. 395 (U. S. Comp. St. 1918, §§ 991, 1233). Amendment held unconstitutional by Supreme Court May 17, 1920. Knicker- bocker Ice Co. v. Stewart. 252 U. S. , 40 Sup. Ct. 438, 64 L. Ed. . so Siebert v. Patapsco Ship Ceiling & Stevedore Co. (D. C.) 253 Fed. 685. * These sections, as they stood in the Revised Statutes, have been much modified by subsequent legislation, some having been repealed and many amended. But their provisions have been carried into the more recent acts in amplified form, and in the direction of more rigid requirements. They cannot be discussed for lack of space. Hughes, Adm. (2d Ed.) — 14 210 ADMIRALTY JURISDICTION IN MATTERS OF TORT (Ch. 9 tain, in general, regulations to insure a skillful crew, limita- tion of the number of passengers carried, many provisions against fire, requirements for boats, life preservers, and oth- er appliances necessary in wrecks, and they prescribe heavy penalties for a violation of any of these provisions. But, outside of these statutes, any improper treatment of a pas- senger by any of the crew inflicted within the line of his duty is the subject of an action. For instance, in the Wil- lamette Valley, 51 a passenger was allowed to recover dam- ages for refusal to accept a first-class ticket and for giving him second-class accommodations. In the Yankee, 52 a vigilance committee escorted an ob- noxious citizen to a ship in the harbor, and recommended him to take a sea voyage, and the ship carried him away. He sued the owners of the ship in personam, and the court sustained the jurisdiction. A passenger may proceed in rem for any actionable in- jury received aboard a ship, except assaults. 53 OBLIGATIONS TO PERSONS RIGHTFULLY ON VESSEL, BUT BEARING NO RELATION TO IT 103. Persons rightfully on a vessel are entitled to demand the exercise of ordinary care towards them on the part of the vessel, under the doctrine of implied in- vitation. Tn LEATHERS v. BLESSING, 54 a patron of a steamer, who was expecting some cargo by her, went aboard to make They will be found in U. S. Comp. St. 1916, §§ 7997, 7999-800G, 8011- 803 I. 8225 8276. § 102. ei (D. C.) 71 Fed. 712. B2 Fed. Cas. No. 18,124, 1 McAll. 467. 5s City of Panama, 101 U. S. 4G2, 25 L. Ed. 1081; Vueltabajo (D. C.) 163 Fed. 594. Also at common law. Austro-Amorican S. S. Co. v. Thomas, 248 Fed. 231, 160 C. C. A. 309, L. K. A. 1918D, 873. § 103. b*105 U. S. 626, 26 L. Ed. 1192, § 103) OBLIGATIONS TO STRANGERS RIGHTFULLY ABOARD 211 inquiries about it, and was injured by a bale of cotton fall- ing on him. He libeled in personam, and the court allow- ed a recovery. The most frequent cases of this sort are those of labor- ers employed in and about a vessel in port. For instance, suppose that stevedores are employed as independent con- tractors to load or discharge a vessel, whether by the vessel herself or her charterers. In such case the vessel is not responsible for the acts of the stevedores' men causing dam- age. 55 The vessel would be responsible for the act of a member of its crew if acting at the time in its service, though not if acting at the time in the stevedore's service. 56 If the vessel is properly fitted up and constructed as usu- al, she is not responsible to any one who falls into one of her ordinary openings. These questions have frequently arisen in the case of men falling into open hatchways. The duties and obligation of the vessel in reference to open hatchways have been the subject of much litigation. It has frequently been held that, so far as the crew of a vessel is concerned, and as regards workmen upon the ves- sel, like stevedores or their employes, it is not negligence to leave a hatchway open. Such men are supposed to be fa- miliar with the construction of a ship, and to know that hatchways are necessary structures, and are made to be left open for the purpose of loading. If, therefore, the con- struction of the ship and its hatchways is proper, and there is no such defect about them as could be discoverable by the exercise of ordinary care, the fact that they are left open would not give a right of action against the ship, un- less they were left open at a point where the laborers up- on a ship would not naturally expect to find them open, and 55ITSTDRANI, 41 C. C. A. 511, 101 Fed. 596; Elleric (D. C.) 134 Fed. 146. ^Joseph John, S6 Fed. 471. 30 C. C. A. 199; Joseph B. Thomas, 86 Fed. 658, 30 C. C. A. 333, 46 L. R. A. 58. 212 ADMIRALTY JURISDICTION IN MATTERS OF TORT (Ch. 9 had no rail or guard rope around them, or light to indicate their existence. As the cases well say, the doctrine of holes in highways or places where people are accustomed to re- sort has no application to such places, for the deck of a ship is not a highway, and men experienced in loading ships are assumed to take the risk of such ordinary openings as would be expected to exist upon a ship. If the hatchway was in every respect proper as far as the construction goes, and there was no negligence in uncovering it, and not prop- erly guarding it, and this was done by the stevedore as an independent contractor, the ship would not be liable for his act. 57 A hatchway left open by some one connected with the ship may, however, cause injuries to a passenger which would entitle him to sue where the crew or stevedores could not, because a passenger is not supposed to be as familiar with the construction of a ship as such men, and the measure of duty of a carrier towards a passenger is a much higher one. If there is an unguarded opening in parts of the ship where passengers are permitted to go, and an in- jury is received in consequence, the passenger could pro- ceed against the ship. 58 67 Jersey City (D. C.) 46 Fed. 134; Home v. George H. Ham- mond Co., 71 Fed. 314, 18 C. C. A. 54; Glaus v. Steamship Co., 89 Fed. 646, 32 C. C. A. 282; Dwyer v. National S. S. Co. (C. C.) 4 Fed. 493 ; Saratoga (D. C.) 87 Fed. 349 ; Id., 91 Fed. 221, 36 C. C. A. 208 ; Auchenarden (D. C.) 100 Fed. S95; Roymann v. Brown, 105 Fed. 250, 44 C. C. A. 464; INDRANI, 101 Fed. 596, 41 C. C. A. 511; Consolidation Coastwise Co. v. Conley, 250 Fed. 679, 163 C. C. A. 25, ss Furnessia (D. C.) 35 Fed. 798. But, if he goes where he has no business to go, he cannot recover. Elder Dempster Shipping Co. v. Pouppirt, 125 Fed. 732, 60 C. C. A. 500. §104) LIABILITY AS BETWEEN VESSEL AND CONTRACTOR 213 LIABILITY AS BETWEEN VESSEL AND INDE- PENDENT CONTRACTOR 104. The vessel is not liable for injuries caused by independ- ent contractors, but would be for injuries caused by its lack of ordinary care in furnishing proper tackle, if the contract of loading or discharging re- quires it to allow the use of its tackle. Frequently, when charterers are loading a ship, the char- ter party provides that the steamer is to furnish use ot tackle and engines. In such case, if the stevedore is an em- ploye, and not an independent contractor, the ship is re- sponsible for injuries caused by lack of reasonable care in selecting suitable appliances. 59 But suppose that the ship makes such a contract with the charterer to allow the use of its tackle, and the steve- dore is an independent contractor, selecting his own men. Suppose that in such case, while the stevedore is working with the ship's tackle, one of his men is injured by a defect in that tackle. The ship would not then be responsible if reasonable care had been used in the selection and upkeep of its appliances, and if they were reasonably sufficient for the work for which they were designed ; but the responsi- bility, if any, would be upon the stevedore for subjecting it to an unusual strain or for other improper use. But the ship would be responsible for an injury due to de- fects arising from lack of ordinary care in the above partic- ulars. 60 The English decisions are much narrower than the Amer- ican. In Heaven v. Pender, 61 a dock company erected a § 104. 59 Elton, 83 Fed. 519, 31 C. C. A. 496. eo Beechdene (D. C.) 121 Fed. 593 ; Student, 243 Fed. S07, 156 C C. A. 319; Frazier v. Luckenbach (D. C.) 248 Fed. 1011; McDon- ough v. International Navigation Co. (D. C.) 249 Fed. 248; Colon, 249 Fed. 460, 161 C. C. A. 418. 6i9 Q. B. D. 302. See, also, Earl v. Lubbock, [1905] 1 K. B. 253. -14 ADMIRALTY JURISDICTION IN MATTERS OF TORT (Ch. 9 staging around a ship under a contract with the shipowner. A man employed by the shipowner to paint the ship fell, in consequence of the giving way of this staging. He sued the dock company. Justices Field and Cave, of the Queen's Bench, held that there was no privity between him and the dock company, and that he could not recover. The case was taken to the Court of Appeals, where this decision was reversed, and he was allowed to recover. But later in CALEDONIAN RY. CO. v. MULHOL- LAND 62 this case was much limited, and placed on the ground that the party was impliedly invited to come on its premises by the dry dock company, and to use this stag- ing, and that it was in its condition a. trap, thus bringing the case under another well-known principle of the law of torts. CALEDONIAN RY. CO. v. MULHOLLAND is inter- esting as bearing out this distinction. There a railway com- pany contracted with a gas company to deliver coal at a certain point. Two coal cars were delivered at that point to another company, which received them for the gas com- pany. While in charge of the second company, one of its servants was killed, owing to the fact that the brakes were out of order, and could not stop the cars. His administra- tor sued the first company on account of this defect in their cars, but the House of Lords held that the first company owed him no duty, and that he could not recover. DOCTRINE OF IMPUTED NEGLIGENCE 105. Negligence on the part of a vessel is not now imputa- ble to a person injured while on board the vessel, but who is not connected with its management or navigation. The doctrine <>f imputed negligence, by which a person on one ship or vehicle, though not identified with its man- [1898] A. C. 216. § 106) MISCELLANEOUS MARINE TORTS 215 agement or navigation, is chargeable with the negligence of his own vehicle, and cannot, in case of such negligence, proceed against the other vessel if also negligent, has been repudiated by the modern authorities. As the law now stands, a person injured on a vessel in collision can proceed against either or both as either or both are negligent. 83 MISCELLANEOUS MARINE TORTS 106. Admiralty has jurisdiction of any tort on navigable waters which creates a cause of action. A common instance of this is assault. Under admiralty rule 16 there is no remedy in rem against the ship for such assaults, but there would be against the owner if the as- sault was made by any of the crew within the course of his employment, and there certainly would be against the man who makes the assault. 64 § 105. 6 3 New York, P. & N. R. Co. v. Cooper, 85 Va. 939, 9 S. E. 321; LITTLE v. HACKETT, 116 U. S. 366, 6 Sup. Ct. 391, 29 L. Ed. 652 ; Bemina, 13 A. C. 1 ; Contino v. Wilmington Steamboat Co. (D. C.) 226 Fed. 991. § 106. 6 4 Chamberlain v. Chandler, 3 Mason, 242, Fed. Cas. No, 2,575; Plummer v. Webb, 1 Ware, 69, Fed. Cas. No. 11,234; Steele v. Thaeher, 1 Ware, 85, Fed. Cas. No. 13,34S; Turbett v. Dunlevy, Fed. Cas. No. 14,241 ; Miami (D. C.) 78 Fed. 818 ; Id., 93 Fed. 218, 35 C. C. A. 281. Whether the master, in assaulting a person aboard ship, is acting in the course of his employment — or, in other words, whether the vessel or her owner is responsible for a willful or in- tentional assault — depends on the ordinary principles of the law of torts. As is well known, it was for a long time the doctrine of the courts that such an act was not within the course of the serv- ant's employment, and that the master was not liable therefor, ex- cept in cases of carriers and innkeepers. Recent decisions have much modified this doctrine, but it is hardly within the purview of this treatise to discuss it elaborately. In the last-cited case the court held that such an assault of the master upon a stowaway aboard a ship was not within his employment, and did not render the vessel or owner liable. See, on the general subject, the recent 216 ADMIRALTY JURISDICTION IN MATTERS OP TORT (Ch. 9" But, though a physical wrong done by the master of the ship is an assault, in the sense of admiralty rule 16, for which the injured party cannot proceed in rem, this princi- ple does not apply to his dog. Accordingly, where a pilot who was rightfully on board was bitten by a dog in the cabin where he had been assigned, the court allowed him to proceed in rem against the vessel. 65 The right of a parent to sue for an abduction of his son is an instance of such a marine tort. 66 So the right of a husband to sue for injuries sustained by his wife on navigable waters. 67 So a suit for the illegal seizure of a vessel. 68 Until quite recently locality has been assumed by the American decisions as the sole criterion in passing upon the question whether a tort is maritime or not. But in Camp- bell v. H. Hackfeld & Co. 69 the Circuit Court of Appeals for the Ninth Circuit attempted to add another qualification. It was a suit for personal injuries by an employe of a stevedoring company against his employer for negligence during the unloading of a vessel in the port of Honolulu. No negligence of the ship or any of its crew was involved. It was decided that in order to constitute a maritime tort, it must not only occur on navigable waters, but must also English cases of Hanson v. Waller, [1901] 1 Q. B. 390, and Sander- son v. Collins, [1904] 1 K. B. G28. en Lord Derby (C. C.) 17 Fed. ^(i.">. In 2 Seld. Select Pleas in Adm. (Introduction, lxxxii), in 1G42, "the master of the Success sues the master of the Sunflower for injuries to Richard Child, one of his crew, by a 'certaine wilde beaste called a munkey, ape, or baboone' which he kept for his pleasure, 'or some other respect' but unchained, so that it escaped, and 'without any provocation or cause given him by the said Richard Child' seized upon and bit him severely." eo Tillmore v. Moore (D. C.) 4 Fed. 231. 87 New York & Long Branch Steamboat Co. v. Johnson, 195 Fed. 740, 115 C C. A. 540, 42 L. R. A. i.V S.) 640. s parte Fassett, 1 IL! r. S. 479, 12 Sup. Ct. 295, 35 L. Ed. 10S7; Carolina (D. C.) 66 Fed, mi::. so 125 Fed. 696, <;l> C. C, A. 274. § 106) MISCELLANEOUS MARINE TORTS 217 have some relation to a vessel or its owners, and that the sole fact that it occurred on the vessel did not make it mar- itime where the parties involved in the controversy were not parties for whom the vessel was not responsible. This was followed in the St. David 70 without discussion of the principle involved. But in Imbrovek v. Hamburg-American Steam Packet Co. 71 Judge Rose, sitting in the District Court of Mary- land, in a case precisely similar, sustained the jurisdiction of the court as based on locality, regardless of relationship to the vessel, and also because stevedoring was essentially maritime in character. His decision was affirmed, both by the Circuit Court of Appeals and the Supreme Court, though the latter court, while holding that stevedoring was estentially maritime, did not absolutely commit itself to the proposition that locality alone, whether connected with a ship or not, is sufficient to make a tort maritime. The American authorities are reviewed in the different opinions in this case. But the main authority on which the judges relied in Campbell v. H. Hackfeld & Co. was the English case of Queen v. Judge. 72 It was an application to a common-law court for a man- damus to compel an admiralty court to take jurisdiction of a suit against a compulsory pilot for damages due to his negligence in a collision. (In England neither vessel nor owner was then liable for the negligence of a compulsory pilot.) The court denied the writ, partly on the ground that no precedent could be found for such a suit, and partly on the ground that there were several precedents against it, saying that it made no difference whether it was a case of to (D. C.) 209 Fed. 985. 7i (D. C.) 190 Fed. 229; Atlantic Transport Co. v. Imbrovek, 193 Fed. 1019, 113 ,C. C. A. 39S (affirmed without opinion) ; 234 U. S. 52, 31 Sup. Ct. 733, 58 L, Ed. 1208, 51 L. R. A. (X. S.) 1157 (under name of Atlantic Transport Co. of West Virginia v. Imbrovek). t- [1S92] 1 Q. B. 273. 218 ADMIRALTY JURISDICTION IN MATTERS OF TORT (Ch. 9 compulsory or voluntary pilotage. One opinion ends: "I for one will not reopen the floodgates of admiralty jurisdic- tion upon the people of this country." It has been pointed out more than once that the Ameri- can jurisdiction in admiralty is not shackled by the chains riveted upon the English jurisdiction in consequence of the warfare of the common-law courts. The opinion recogniz- es this fact and dismisses the American decisions sum- marily from consideration, mentioning the fact that con- tracts of marine insurance are not cognizable by the Eng- lish admiralty, though a recognized subject of jurisdiction in America. English cases on questions of jurisdiction must therefore be used in America with great caution. In fact, much of the reasoning in this case has been ex- plained away in later cases. 73 In considering the special question whether a suit would lie in admiralty against a pilot, several decisions to the contrary are cited. An examination of them will show that they turned largely in the first place on the fact that the liability of an English pilot is limited by statute and is cov- ered by a bond ; and the English courts denied the admiral- ty jurisdiction over a sealed instrument. These decisions also hold that jurisdiction of suits against a pilot is not con- ferred by the statutes extending the jurisdiction of the ad- miralty ; for they speak of "damage done by any ship.'' which docs not cover negligent acts of a pilot. After discussing these decisions, the opinion goes on to assert that, "from beginning to end, not a single case is to be found in the books which shows that the admiralty court ever entertained such a case as this against a pilot." But in the later case of the Germanic, 74 which was a libc! in rem for a collision between two ships, an application was made to bring in a compulsory pilot as codefendant. The 78Theta, [1893] A. C. 46& r* [1896] P. 84. § 106) MISCELLANEOUS MARINE TORTS 219 court, not doubting its jurisdiction, refused the application solely on grounds of inconvenience. The main case under discussion was published in 1892. In 1894 and 1897 the Selden Society published its "Select Pleas in Admiralty," constituting volumes VI and XI of its publications. They were edited by Mr. R. G. Marsden, and each volume contains an introduction which casts a flood of new light upon the early history of the English admiralty, which long had criminal as well as civil jurisdic- tion. They show many precedents of suits against pilots. 75 The opinion in the main case questions the jurisdiction of the admiralty over a suit against the master personally for a collision. But there are certainly precedents in England for suits against a master. In the Ruckers 76 Lord Stowell sustained a libel against a master by a passenger for an assault. He had the old records searched, and sustained jurisdiction "in causes of damage between persons who were not con- nected by any relation arising from official situations on board the ship." This decision is cited with approval in the Zeta. 77 If such a question is an open one in England, it certainly is not in America, as Supreme Court admiralty rules 15 and 16 recognize the right. In the main case under discussion Kay, J. (at page 310), states as an argument against the jurisdiction that the lo- cality test, if applied literally, would include a slander on the high seas, and the same illustration was used in At- lantic Transport Co. v. Imbrovek, heretofore cited. The Selden Society publication shows precedents for just such suits. 78 75 1 Select PI. Adm. (Introduction) lxvii, lxx [14]; Id. 102, 213. 64 ; 197. 2 Id. (Introduction) xxviii, xxix. See, also, the essay by Mears on the admiralty jurisdiction first published as the introduc- tory chapter to Roscoe's Admiralty Jurisdiction. 1903, and republish- ed in 2 Anglo-American History, 312, especially 327. 76 4 C. Rob. 73. Tt [1S93] A. C. at p. 483. 78 1 Select PI. Adm. (Introduction) lxix, lxxxiii, 100, 212. The 220 ADMIRALTY JURISDICTION IN MATTERS OF TORT (Ch. 9 And there are many precedents of suits for assaults. 79 In fact it is obvious that originally the admiralty had jurisdiction, not over torts alone, but over contracts made out of the realm (including the space between high and low water mark when the tide is in), for the reason, as ex- pressed by Littleton, "Que chose fait hors del Royalme n'aient poet estre trie diens le Royalme per le secrement de 12" — that things done out of the realm may not be tried within the realm by the oath of twelve men ; in other words, by a jury of the vicinage. 80 And so the reductio ad absurdum of the common-law warfare on the admiralty was the conclusion that in case of a murder committed between high and low water mark neither had jurisdiction if the party died on shore. 81 And there is abundant authority for the proposition that admiralty has jurisdiction over torts committed on naviga- ble waters, regardless of the presence or absence of a ship in the matter. 82 last reference, it is true, was a suit against the master, but if he is sued individually and not for any act connected with the manage- ment of his ship, what is the difference? ™1 Select PI. Adm. (Introduction) lxix, lxxxiii, 111, 217; 2 Id. [Introduction] xxviii-xxix, lxxii (153). so Godolphin, View of the Admiral Jurisdiction (Ed. 16S5) pp. 92, 94, 103. si Lacy's Case, 2 Co. Rep. 93 ; 76 Eng. Rep. 616: also 1 Leon. 270 : 74 Eng. Rep. 246. See, also, case of the admiralty, 13 Co. Rep. 51 ; 77 Eng. Rep. 1461. Sir Henry Constable's Case, 5 Co. Rep. 107; 77 Eng. Rep. 218. 82 See the charge of Sir Leoline Jenkins to his grand jury, 2 Browne Civil & Admiralty Law 463 et seq., especially 474, 4S3, and xxxxx 484. See, also, many instances In 2 Select PI. Adm. such as obstructing the admiralty coroner (lxxii, No. 75), trespass on the foreshore "taking gould stones and sulphur stones" (lxxiv, No. 30), concealing valuables taken from a corpse ashore at Cuckmere Haven (lxxv, No. 47), damage to river wall at Blackwall whereby plaintiff's land was flooded Hxvi, No. 99), trespass to a muscle bed (lxvii, No. 60), and taking a sturgeon (lxxii, No. 118). S se, nlso, 1 Laws Ad- miralty (Miliar, London, 171<;i for many Instances (pp. 113-110), § 107) DOCTRINE OF CONTRIBUTORY NEGLIGENCE 221 DOCTRINE OF CONTRIBUTORY NEGLIGENCE 107. In awarding damages for personal injuries in admiral- ty, the common-law doctrine that contributory neg- ligence bars recovery does not apply. It will be seen, in connection with the law of collision, that, where both vessels are in fault, the damages are equal- ly divided, regardless of the degree of fault of each ves- sel. In assessing damages for injuries to the person, the courts do not feel bound, as in collision cases, to divide them equally, but, where the party hurt is more negligent than the vessel, they may award him damages. The matter is largely in the discretion of the court. 83 such as converting salt water to private use, obstructions to navi- gation, injuries to banks, docks, or wharves, "prejudices done to or by passengers on shipboard," and showing false lights, whether afloat or ashore. § 107. ssDaylesford (D. C) 30 Fed. 633; MAX MORRIS, 137 U. S. 1, 11 Sup. Ct. 29, 34 L. Ed. 586 ; Carter v. Brown, 212 Fed. 393, 129 O. C. A. 69. 222 ACTION FOR INJURIES RESULTING FATALLY (Ch. 10 CHAPTER X OF THE RIGHT OF ACTION IN ADMIRALTY FOR INJURIES RESULTING FATALLY 108. Survival of Action for Injuries Resulting in Death — The Gen- eral Common-Law Doctrine. 109. The Civil-Law Doctrine. 110. The Continental Doctrine. 111. The English Doctrine as to Survival in Admiralty. 112. The American Doctrine as to Survival in Admiralty — Inde- pendent of Statute. 113. Under State Statutes. 114. Under Congressional Statutes. 115. The Law Governing. 116. Effect of Contributory Negligence. 117. Construction of Particular Statutes. SURVIVAL OF ACTION FOR INJURIES RESULT- ING IN DEATH— COMMON-LAW DOCTRINE 108. By the common law there was no right of action for injuries resulting in death. 109. CIVIL-LAW DOCTRINE— Neither was there any- such right by the civil law in case of the death of a freeman. 110. CONTINENTAL DOCTRINE— The Continental na- tions, however, recognize such a right, both on land and water, and have recognized it for probably two centuries. The Common-haw Doctrine At common law there was no survival of a right of action for injuries inflicted by another causing death ; the reasons assigned being that such an action was personal to the party §§ 108-110) SURVIVAL OP ACTION FOR INJURIES 223 injured, and that the civil injury was merged in the greater injury to the state. 1 As to the action being personal to the party injured, it is easily seen why such actions should not survive. In such cases the party may not elect to proceed, and so the avoid- ance of litigation is accomplished. But, even as to the in- jured party, this power of election does not exist when death ensues. And the reason ignores the fact that the party killed is not the only one injured. There are many cases where suit is brought, not for a right of action derived from the party injured, but for damages caused directly to the suitor. As a result, the common law finds itself in the absurd position of giving a right of action to the parent for the loss of the services of his son if some one beats him so severely as to disable him, but not if the beating is carried so far as to kill him. A parent may sue at common law for loss of the services of his daughter if some libertine seduces her, but not if some brute outrages and murders her. It seems to be one case where the part is greater than the whole. When aged and indigent parents are deprived by death of the son who is supporting them, or a wife with a family of helpless children is left to feed and rear them unaided by the strong arm which has theretofore done all the labor, it is a mockery to say that only the dead was the party af- fected. The empty larder teaches the contrary, and the case is not analagous to those wrongs like slander or libel, which are, in nature, strictly personal. On natural principles of equity, such wrongs should have a remedy. The Civil-Law Doctrine The doctrine of the civil law on the subject is not entirely clear. In Hubgh v. New Orleans & C. R. Co., 2 the Supreme §§ 10S-110. i Baker v. Bolton, 1 Camp. 493. a 6 La. Ann. 490. 224 ACTION FOR INJURIES RESULTING FATALLY (Ch. 10 Court of Louisiana decided that by the civil law there was no right of action for damages resulting in the death of a freeman, as the value of a freeman's body could not be esti- mated in damages ; but that there was such a right of action in case of a slave. In the course of the opinion it is also said that the well-known passage of Grotius 3 was intended to enunciate merely a duty of imperfect obligation arising from natural law, and not any requirement of municipal law. On the other hand, Judge Deady, in Holmes v. Oregon & C. R. Co., 4 states that the Roman law did give such a remedy, though he cites no authority for the statement. It is prob- able, however, and certainly the opinion of the leading com- mentators, that the provisions in the ancient civil law in relation to the killing of freemen were penal, rather than civil. The Continental Doctrine However this may be, the leading Continental nations, which have drawn from the civil law their principles of right and remedy, have adopted in their system of laws, a rem- edy for such cases. The above-cited decision from Louisiana states that the law of France allows such a remedy, though it did not feel bound to adopt the French law on the subject for Lou- isiana. In Holland (long the maritime rival of England) the right of action is firmly established, and has been for centuries. It is an equitable development of the penal provisions of the civil law relating to the death of freemen. Grotius, in his Introduction to the Jurisprudence of Hol- land, 5 says: « "Homicida injustus tenetur solvere linpensas, si qua? facta? sunt in medicos, et iis quos occisus alere ex officio solebat, puta parentibus, uxoribus, liberis dare tantum quantum ilia spes alimentorum, ratione habita tetatia ocrisi, valebat" 2 Grot, de J. B. c. 17. ' 1 1 ». C.) 5 Fed. 75. b Book 3, c. 33 (Herbert Ed. London, isr>). §§ 108-110) SURVIVAL OF ACTIOX FOR INJURIES 225 "Sec. 2. But the slayer is properly bound to make com- pensation to the widow, children; and others, if any there be, who were usually supported by the labor of the deceased, for losses and loss of profits calculated upon the principal of annuity." "Sec. 5. And it is to be observed that in the punishment, as well as the reconciliation, a great distinction is made be- tween cases where homicide has been effected by assassi- nation — that is, secretly and treacherously, or where the criminal was aware of what he was doing — and cases where the party was slain unawares ; or where the homicide took place in a personal conflict with unlawful or forbidden, or with equal or unequal, weapons, and which has given oc- casion to the combat; or where, in short, the homicide did not occur from passion, but from neglect. But, as far as regards compensation, these circumstances are not taken into consideration, as it is sufficient for that purpose that it has been occasioned by the fault of some one, in which is included the neglect or unskillfulness of a physician or mid- wife, and the neglect or ignorance of a waggoner or skipper, or the incapacity of either in managing a ship or horses." Vinnius, in his Commentaries on the Institutes (3d Ed., Amsterdam, 1659), in discussing the title of the Aquilian law, says that there was no right of action under that law for the death of a freeman ; but that there was under the Cor- nelian law if the killing was intentional (dolo), but, if neg- ligent (culpa), a fine was imposed; but that, if there is a question of civil remedy, the unjust slayer is required to pay the funeral and medical expenses, and such a sum to those whom the deceased was bound to support — as, for instance, children, wife, and parents — as their expectation of sup- port was worth, considering his age. J. Voet, in his Commentary on the Pandects, after refer- ring to various texts of the Roman law on the subject of rights of action for personal injuries, states that in modern times this right has been extended to the case of injuries Hugues.Adm. (2d Ed.) — 15 226 ACTION FOR INJURIES RESULTING FATALLY (Ch. 10 resulting in death, and gives a right of action to the chil- dren or other relations, in which each should sue for the loss personally caused to him, not for any loss inherited from the deceased. In Germany, also, the right exists. In a decision of the German Reichsgericht, rendered in 1882, 7 it was held that this right of action existed in favor of parents for the neg- ligent killing of a son. The opinion cites many commenta- tors, and traces the doctrine back for two centuries. The law of Scotland also allows actions to the wife or family of the deceased as a development of the unwritten law of that country. 8 As these countries administer the law substantially the same in all their courts, and do not have common-law courts with one system and other courts with another system, the doctrine with them applies on land and sea alike. This prevalence of the doctrine among the leading Conti- nental nations would seem to settle that it is at least suf- ficiently recognized to entitle it, in so far as it may be mari- time in nature, to be considered a part of the general body of maritime law as administered by maritime nations. In other words, any other nation that may choose to adopt it into its jurisprudence is not making something maritime « "Nee dubiuni, quin ex usu hodierno, la this ilia agendi potestas extensa sit ; in quantum ob hominem liberum culpa occisuni uxori et Uberis actio datur in id, quod religioni judicantis jequuni videbitur, habita ratione victus, quern occisus uxori libevisque suis aut aliis pro- pinquis ex operis potuisset ac solitus esset subministrare. * * * Qua in re si concurrat forte uxor, parentes, liberi, alter alter! pnefer- endus noil est; sed niagis unicuique in id. quanti sna interesse docet, actio danda ; tuin quia singuli non de poena, sed dainno sibi illato rep- arando eontendunt ; turn quia htec actio uxori, liberis, similibusque, non qua oecisi heredibus adeoque jure hereditario, sed (pin lsesis ex facto Occident is datur; sic ut et illis accommodanda veniat, qui de- functo heredes oss<> ab intestato non potuerunt, vel. oecisi heredita- tem. ntpote suspectam noluerent adire." Volume 1 (Ed. 1723') p. 542. i Entscheidungen dea R. G. in Civilsachen, vol. 7, p. 139. b Bell, Comm. g 2029; Clarke v. Coal Co., [1891] A. 0. 412. § 111) THE ENGLISH DOCTRINE AS TO SURVIVAL 227 that was not maritime before, is not extending the limits of the general maritime law, but is merely drawing from that fountain something that was there already. I THE ENGLISH DOCTRINE AS TO SURVIVAL IN ADMIRALTY 111. In England there is no right of action in rem in ad- miralty for injuries resulting in death. The English courts recognized no such right in the ad- miralty equally as at law. Lord Campbell's Act 9 did away with this doctrine of the common law, and gave a right of action to the personal representative for the benefit of the wife, husband, parent, or child for the injury done to them, not for any injury to the deceased inherited by them. The act expressly excepted Scotland, for the reason, above ex- plained, that the right already existed there. It was long a question in England whether this statute was intended to apply to the admiralty courts. After much fluctuation, it was finally settled by the House of Lords in the VERA CRUZ, 10 decided in 1884, that the language of the English act contemplated only suits in the common-law courts, as was evident from the provisions in relation to juries, and that neither that act, nor the other acts giving the admiralty courts jurisdiction in case of "claims for dam- age done by a ship,'' gave the latter courts cognizance in rem over death claims. This is still the law of England. § 111. 9 9 & 10 Vict. c. 93. io 10 App. Gas. 59. In the Bernina, L. R. 12 P. D. 58, 13 A. C. 1, an action in personam in the Probate, Divorce, and Admiralty Division was sustained, but it was on the ground that such court was a divi- sion of the High Court of Justice under the English Judicature Act, and not by virtue of the jurisdiction possessed by it as an admiralty court. See, also, Albert Dumois, 177 U. S. 240, 20 Sup. Ct. 595, 44 D. Ed. 751. 22S ACTION FOR INJURIES RESULTING FATALLY (Ch. 10 THE AMERICAN DOCTRINE AS TO SURVIVAL IN ADMIRALTY— INDEPENDENT OF STATUTE ft 112. In America there is, independent of statute, no right of action in the admiralty for death injuries. In the United States the decisions have been far from harmonious. In our dual system of laws, we must consider the question independent of state statute, and also as affect- ed by such statutes. Some of the District Judges, when the question came be- fore them, decided that the common-law doctrine did not govern the admiralty courts ; that it was not consonant with natural justice ; and that the widow and children had a natural right to damages. Hence they sustained suits by the widow and children, not by the administrator, even in states that had enacted Lord Campbell's Act. 1 ' 1 The question first came before the Supreme Court in Ex parte Gordon, 12 decided in 1881. A libel had been filed in a District Court against a vessel for a death caused by a marine collision. A writ of prohibition was asked to re- strain the court from entertaining the case as one beyond its cognizance. The Supreme Court decided that, as collision was a marine tort, the District Court had jurisdiction over the subject-matter; that whether to consider this special claim was a question of the exercise, not of the existence, of jurisdiction; that the lower court could pass upon such a question ; and that the proper way to raise it was by appeal. This, therefore, settled nothing. One branch of the question was presented squarely inthe HARRISBURG, 13 decided in 1886. That was a collision § 112. 11 Sea Gull, Chase, 145, Fed. Cas. No. 11V37S ; Highland Light, Chase, 150, Fed. ('as. No. (1,477. 12 104 r. s. 515, 26 L. Ed- 81 I. is 11!) U. S. 199, 7 Sup. ( t. I 10, 30 L. Ed. 358. § 112) AMERICAN DOCTRINE AS TO SURVIVAL 229 between the schooner Tilton and the steamer Harrisburg, a Pennsylvania steamer, in Massachusetts waters, in which the mate of the Tilton, a citizen of Delaware, was killed. His widow and child libeled the steamer in the United States District Court at Philadelphia. Both Massachusetts and Pennsylvania had statutes giving suits to the administrator, but these were held inapplicable, as the libel had not been brought within the time required by those statutes. Chief Justice Waite reviewed the American decisions, and held that the rule of the common law against the right was well established, and that there was nothing to show that the rule of the admiralty law was different ; and he held that, independent of statute, the right of action did not exist, reserving the question whether a statute could give it. This and the subsequent case of the Alaska 14 settle that the right of action does not exist independent of statute. Then came the CORSAIR, 1 ' 3 decided in 1892. It was a libel in rem against a Louisiana steamer by the parents of a passenger killed by the negligence of the steamer in Louisi- ana waters. The claim was based upon the sections of the Louisiana Code providing for the bringing of actions for in- juries resulting in death. The court held that the statute was evidently not intended to give a remedy in rem, and that, therefore, the court had no jurisdiction of the case. The opinion, however, seems to consider that an action in personam could have been sustained, though this was not necessary to the decision. In the Hamilton 1G the Supreme Court entertained juris- diction of claims for loss of life filed in a limited liability pro- ceeding, and intimated again that a proceeding in personam could be resorted to, though it was not necessary to the decision. As a limited liability proceeding stops any other, whether in a state or federal court, and compels all cred- it 130 U. S. 201, 9 Sup. Ct. 461, 32 L. Ed. 923. is 145 U. S. 335. 12 Sup. Ct. 949. 36 L. Ed. 727. 16 207 U. S. 39S, 2S Sup. Ct. 133, 52 L. Ed. 2G4. 230 ACTION FOR INJURIES RESULTING FATALLY (Ch. 10 itors, whether lien creditors or not, to come in, this settles nothing as to the power to establish such a right of action in admiralty by statute. Hence the question must next be considered, first, in ref- erence to state power of legislation ; and, second, in refer- ence to congressional power of legislation. SAME— UNDER STATE STATUTES 113. A state statute may give a remedy for death injuries, enforceable by proceedings in rem or in personam in the admiralty courts, or by ordinary suit in the common-law courts. The mere fact that a state statute may affect a ship or subjects over which admiralty has jurisdiction does not in- validate it. There are many cases where there are concur- rent remedies in the state and admiralty courts. Hence there can be no question of the right of a state to give the remedy by common-law action, even for a cause of action maritime by nature. In American S. B. Co. v. Chase, 17 decided in 1872, which was a suit at common law for a death in the waters of Rhode Island caused by a marine collision, the Rhode Island statute giving the right of action at com- mon law was held valid, notwithstanding the point made by defense that the cause of action was maritime by na- ture, and that the statute was an infringement of the ex- clusive admiralty jurisdiction of the federal courts. The court forbore to decide whether it was maritime or not. but held that the state could authorize a common-law action in either case. In Sherlock v. Ailing, 1 ' 8 decided in 1876, an Indiana stat- ute to the same effect was attacked on another ground. It was claimed to violate the commerce clause of the federal § 113. " 16 Wall. H22, 21 L. Ed. 309. '- ;•:: r. s. <>t>. -j:: l. i-m. sio. § 113) AMERICAN DOCTRINE AS TO SURVIVAL 231 Constitution, as imposing a new burden on commerce. But the court held that it affected commerce only indirectly, and that in such matters the states could legislate as long as Congress failed to legislate on the subject. Hence, as far as this special subject is concerned, the pow- er of a state to legislate, in the absence of legislation by Con- gress, is clear, subject to certain restrictions. This is, subject to the qualification, explained in a former connection, 19 that a state cannot give to its courts an action in rem pure and simple to enforce a maritime cause of ac- tion. The power of a state to legislate in matters of admiralty cognizance has been frequently considered. In Ex parte McNiel, 20 the court says that, though a state statute cannot confer jurisdiction on a federal court, it may give a sub- stantial right, which is enforceable in the proper federal court, Avhether equity, admiralty, or common law, accord- ing to the character of the right given. In other connec- tions the court has decided that, if the subject-matter is maritime a state statute may annex a right in rem, enforce- able in the admiralty court. It may give its courts juris- diction even of admiralty matters, provided it does not give them an admiralty procedure in rem. Hence a state stat- ute giving a right of action in rem for supplies and repairs on domestic vessels is valid as long as it leaves the power of enforcing the same by pure proceedings in rem to the fed- eral courts. 21 But a state statute giving a right of action in rem for building a ship does not confer such a power of enforce- ment on the federal courts, as such a transaction is not maritime by nature, and the states cannot change the na- ture of an action from nonmaritime to maritime. 22 i9 Ante, pp. 29, 110. 20 13 Wall. 236, 20 L. Ed. 624. 2i Glide, 1G7 U. S. 606, 17 Sup. Ct. 930, 42 L. Ed. 296. 22 Roach v. Chapman, 22 How. 129, 16 L. Ed. 291. 232 ACTION FOR INJURIES RESULTING FATALLY (Ch. 10 For the very reason that it is not maritime they can give a remedy in rem to their own courts to enforce a ship- building contract, as the power of the states over matters not maritime is not restricted by the constitutional pro- visions giving the federal courts exclusive cognizance of cases of admiralty and maritime jurisdiction. 23 A further limit on the state power of legislation over ad- miralty subjects has been added by recent decisions of the Supreme Court. Heretofore it has been the usual, if not universal, understanding as to the Supreme Court decisions that, if a state statute creates a right of action in connection with subjects maritime by nature, an admiralty court would recognize it and enforce it by its own peculiar procedure, and that, if the subject is maritime by nature, the limit as to state legislation was simply on its power to interfere with the exclusive jurisdiction of an admiralty court in rem. But in Southern Pacific Co. v. Jensen 24 the court went far beyond this. It held that a state law could not "work material prejudice to the characteristic features of the gen- eral maritime law, or interfere with the proper harmony and uniformity of that law in its international and inter- state relations," and it held that a common-law court in the trial of a case was required to apply the doctrines of ad- miralty law, if the case was of a maritime nature, regard- less of a state statute purporting to affect it. It repeated the ruling in two later cases. 25 As there was in ordinary cases no established admiralty rule as to inju- ries resulting in death, this additional qualification would not affect the state power of legislation over such cases, as as Edwards v. Elliott, 21 Wall. 532, 22 L. Ed. 187; North Pacific S. S. Co. v. Hall Bros. Marine Ky. & Shipbuilding Co., 249 U. S. 110, 39 Sup. Ct. 221, 63 L. Ed. 510. 24 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. L918C, 151, Ann. Cas. lOITE, 000. -•• Chelentls v. Duckenbach S. S. Co., 247 U. S. 372, 38 Sup. Ct. 501, 02 L. Ed. 1171: Union Fish Co. v. Erickson, 248 V. S. 308, 39 Sup. Ct. 112, 03 L. Ed. 261. § 113) AMERICAN DOCTRINE AS TO SURVIVAL 233 its effect would be rather to supplement than to "work ma- terial prejudice." But there is one class of cases in which its effect would be far-reaching; that is, in case of the representatives of a seaman suing for a death caused by negligence of the ship- owner, the basis of the suit being a state statute giving such a right of action. Under the old admiralty authorities, the only responsibil- ity of a shipowner to a seaman, in the absence of personal negligence, is for maintenance and cure, and does not extend beyond the seaman's life. Hence it ought to follow as a corollary from these decisions that a state can not create a right of action for negligent injuries resulting in the death of a seaman. Prior to those decisions such suits were com- mon. 26 But, with these qualifications, if the subject-matter dis- cussed in this chapter is by nature maritime, the power of a state to give an action enforceable in an admiralty court, in the absence of congressional legislation, seems to fol- low. Restrictions of State Statute Binding As the right to sue depends on the state statute, it follows that the state, in giving the right, may name the conditions on which it is given. Hence the restriction of the right to sue to one year, contained in Lord Campbell's Act and em- bodied in nearly all the state statutes based upon it, is bind- ing on suits in the admiralty court. This is not a statute of limitations, but a condition on which the right is given, and performance must be shown by the plaintiff as part of his case. 27 2 6 Transfer No. 12, 221 Fed. 409, 137 C. C. A. 207. 27 Harrisburg, 110 U. S. 199, 7 Sup. Ct. 140, 30 L. Ed. 35S ; Stem v. La Compagnie Generate Transatlantique (D. C.) 110 Fed. 996; International Nav. Co. v. Lindstrom, 123 Fed. 475, GO C. C. A. 649. Unless the California statute differs from the usual form of these statutes, Western Fuel Co. v. Garcia, 255 Fed. 817, 167 C. C. A. 145, 234 ACTION FOR INJURIES RESULTING FATALLY (Ch. 10 In this connection it is material to consider how far the workmen's compensation laws enacted in many states af- fect the right to sue in the admiralty for damages resulting in death. This is largely a question of construing the state legisla- tion on the subject. The usual type of compensation law restricts those who come under its terms to the remedies provided by the law itself. The right of action for damages resulting in the death of an employe is to that extent abol- ished. Logically it should follow that, where the right of action depends on a state statute, it would fall in the admiralty court wherever it would fall in the state court. The power which makes can unmake, in whole or in part. It can re- peal such a right entirely, or modify it as seems best. So far this question has not been directly presented, and it remains to be seen whether the judges will follow their heads or their hearts. 28 Fatal Injury on Water — Death Ashore In discussing the bounds of admiralty jurisdiction in tort, it has been seen that where the cause of action is consum- mate on the water, admiralty has jurisdiction, though addi- deciding the contrary, cannot be sustained. It is true, as the court says, that the recognized principles of the maritime law are un- affected by local legislation, at least since the recent decisions of the Supreme Court. But the right to sue for damages resulting in death is not "a recognized principle of the maritime law," but a new right depending so far on state statutes and subject to the conditions of those statutes. Besides, there are many instances where the "recognized principles of maritime law" have been affected by local legislation, such as pilotage, materialmen's liens, local regulations of navigation, and a number of others. 28Bjolstad v. Pacific Coast S. S. Co. (D. C.) 244 Fed. Got, is some- what analogous. There the Workman's Compensation Act of New was held to modify the New Jersey death statute as to one class of employes. Judge Dooling aptly said: "If one has to relj on a state law to support a claimed right, he must take the law as he finds it, hardships and all." But on May 27. 1020, the Supreme § 113) AMERICAN DOCTRINE AS TO SURVIVAL 235 tional injuries immediately following on land may aggra- vate the damages, and that on the other hand, where the cause of action is consummate only on land, admiralty has no jurisdiction, although the injury originated on water. 29 The application of this doctrine to the case of a person injured fatally on a ship, but not dying till after he has been carried ashore, depends — or ought to depend — on the char- acter of the state statute giving the right. It is well known that state statutes giving this right of action fall under two classes. One class recognizes the right of the deceased to sue for the injury inflicted, and provides that such right of action, vesting independent of statute in the deceased, shall survive, thus simply abol- ishing the common-law rule that a personal right of action dies with the person. The Massachusetts and Louisiana statutes may be taken as types of this class, and these are called "survival acts." Another type gives an entirely new right of action to the parties injured by the death, such as dependents, for the loss to them by reason of the death, independent of any right of action to the deceased. Lord Campbell's Act in England, which was the prototype of these statutes, and the Virginia statute, are good illustrations of this type. These are usually designated as "death acts." It is obvious that under a survival act the right of action is consummate when the fatal injury is inflicted, and that the subsequent suffering and death are only cumulative. It is equally obvious that under a death act the right of action is not consummate till death occurs. 30 Court decided such acts invalid as affecting admiralty. Knicker- bocker Ice Co. v. Stewart, 252 U. S. , 40 Sup. Ct. 43S, til L. Ed. . 2 6 Ante, p. 199. so in Carolina. C. & O. R. R. v. Shewaller, 128 Tenn. 363, 161 S. W. 1136, Ann. Cas. 1915C, 605, L. R. A. 1916C, 964 (affirmed without opinion Shewalter v. Carolina, C. & O. Ry., 239 U. S. 630, 36 Sup. Ct. 166, 60 L. Ed. 476). is an admirable discussion of these two classes. See, a?so, Michigan Cent. R. Co. v. Vreeland, 227 U. S. 59, 33 Sup. Ct. 193, 57 L. Ed. 417, Ann. Cas. 1914C, 176. 236 ACTION FOR INJURIES RESULTING FATALLY (Ch. 10 Hence, in a case arising under a survival act, admiralty ought to have jurisdiction, though the death occurred on land. And in a case arising under a death act, admiralty ought not to have jurisdiction, where the death occurred on land. Accordingly, in Ryley v. Philadelphia & R. R. Co., 31 Judge Adams held that admiralty had no jurisdiction in a case turning on the Pennsylvania statute (a death statute) where the injured party died on shore. And in Hamburg-Amerikanische Packetfahrt Aktien Ge- sellschaft v. Gye, 32 the Circuit Court of Appeals for the Fifth Circuit held, in a case arising under the Louisiana statute (a survival statute), that there was jurisdiction. This case was followed in the Anglo-Patagonian 33 by the Circuit Court of Appeals for the Fourth Circuit, in a case arising under the Virginia statute (a death statute), over- looking the radical difference between the Louisiana and Virginia statutes. SAME— UNDER CONGRESSIONAL STATUTES 114. Congress, under its general power to regulate mari- time subjects, can give a right of action in admiral- ty for death injuries ; and a congressional statute would supersede any state statutes in so far as they conflict with it. It is now necessary to consider how far Congress may legislate on the subject. si (D. C.) 173 Fed. 839. 32 207 Fed. 247, 124 C. C. A. 517. Thai the Louisiana act is a survival act, see Carolina C. & O. It. R. v. Shewalter, 128 Tenn. 303, 161 S. W. 1136, Ann. Cas. 1915C, 605, L. R. A. 1916C, 964, affirmed Shewalter v. Carolina, C. & 0. Ry., 239 D. S. 630, 36 Sup. CI. L66, 60 L. Ed. 47(i. ante, note 30, and the Corsair. 145 U. S. 3.':.", 12 Sup. Ct. 949, 36 L. Ed. 727. sa 235 Fed. 92, 148 C. C. A. 586. § 114) AMERICAN DOCTRINE AS TO SURVIVAL 237 The federal courts as a class derive their admiralty ju- risdiction direct from the Constitution, and not from con- gressional statutes. How far may federal statutes affect the admiralty jurisdiction? There are many statutes which do affect it — like the statutes regulating the rules of the road at sea, requiring inspection of steamers, regulating the rights of merchant seamen, etc. It was at one time sup- posed that similar legislation rested upon the power to regu- late commerce, which reasoning, if sound, would have de- feated the power of regulating vessels engaged solely in in- ternal commerce. And so it was held as far back as the GENESEE CHIEF, 34 decided in 1851, that Congress de- rives some powers of legislation from the admiralty clause of the Constitution, and is not limited to the commerce clause. This has been reiterated in many later cases, nota- bly in EX PARTE GARNETT, 35 decided in 1891. This power of Congress to regulate admiralty jurisdiction must now be defined more accurately. As the grant is by the Constitution itself, Congress cannot change the general limits or bounds of the admiralty. But within those bounds, as understood by the common consent of enlightened mari- time nations, it may regulate procedure, and even rights. It may adopt into our law doctrines of marine law found in other maritime codes, though our admiralty courts had never before administered such a doctrine. It cannot make that marine which is not marine by nature, but, if it is ma- rine by nature, and so recognized in maritime circles, Con- gress may give it a place in our admiralty law which it had never had before. To illustrate, Congress could pass a statute regulating the manner in which approaching vessels should act to prevent collision, though both were enrolled in Virginia, and never left the boundaries of Virginia; but Congress could hardly pass a statute regulating the pre- § 114. 3 4 12 how. 443, 13 L. Ed. 1058. ss 141 U. S. 1, 11 Sup. Ct. 840, 35 L. Ed. 631. 238 ACTION FOR INJURIES RESULTING FATALLY (Ch. 10 cautions which approaching railroad trains "should take to avoid collision, and relegate their enforcement to the ad- miralty courts. " 'It is true, we have held that the boundaries and limits of the admiralty and maritime jurisdiction are matters of judicial cognizance, and cannot be affected or controlled by legislation, whether state or national.' Chief Justice Taney in the St. Lawrence, 1 Black, 522, 526, 527 [17 L. Ed. 180] ; The Lottawanna, 21 Wall. 558, 575, 576 [22 L. Ed. 654]. But within these boundaries and limits the law itself is that which has always been received as maritime law in this country, with such amendments and modifications as Con- gress may from time to time have adopted." 36 This subject has been considered by the Supreme Court in connection with the statute limiting the liability of a ves- sel owner for torts of his ship or crew to the value of the -hip. This act was passed on March 3, 1851, 9 Stat. 635 (U. S. Comp. St. §§ 8020-8027). In Norwich & N. Y. Transp. Co. v. Wright, 37 it is said to have originated in the maritime law of modern Europe. In the SCOTLAND, 38 ihe court, repeating what it had said in the LOTTA- WANNA, 39 says that the foreign maritime codes and com- pilations were operative in any country only so far as that country chose to adopt them, and not as authority per se ; but that Congress could adopt such a principle into our law from the general body of maritime law. In EX PARTE PHENIX INS. CO., 40 an application was made for the benefit of this limitation against a fire on land started by a passing steamer. The court held, however, that the lim- itation was only intended to protect against such causes ■■i 6 Butler v. Boston & S. S. S. Co., 130 U. S. 527, 9 Sup. Ct. G12, 32 \, Ed. 1017. a 7 13 Wall. 104, 20 L. Ed. 585. - L05 0. S. 24, 2G L. Ed. 1001. •-•»21 Wall. 558, 22 L. Ed. 654. 40 118 r. S. 610, 7 sup. Ct. 25, 30 L. Ed. 274. § 114) AMERICAN DOCTRINE AS TO SURVIVAL 239 of action as the district court could have heard on libel in rem or in personam, and a loss consummate on land was not one of these. In other words, this case settled that the limitation could only be pleaded against such causes of ac- tion as were in their nature maritime, no matter in what forum, state or federal, they were asserted. Then came BUTLER v. BOSTON & S. S. S. CO." There the act was invoked as a protection against a suit on account of the death of a passenger on Massachusetts wa- ters, brought in a Massachusetts court under a Massachu- setts statute. If this cause of action was not maritime by nature, and the Massachusetts act could not have given a remedy enforceable in the admiralty, it would have been the duty of the court, under the principles of EX PARTE PHENIX INS. CO., to have refused the benefit of the lim- ited liability act against the suit as one of which a District Court would not have had original jurisdiction in admiralty. But the court decided that Congress had power to adopt the act from the Continental maritime codes, and to extend its protection to death cases, and that this power came from the admiralty and maritime clause of the Constitution, not from the commerce clause. 42 This would settle the question that such a cause of action is maritime by nature, if it were not clear enough already. In the first part of this chapter it has been shown that the leading Continental maritime nations recognized such a right of action. If Congress can ingraft on our maritime law their limited liability act, it can, on the same principle, borrow their action for death injuries. This reasoning is not affected by the later case of Rich- ardson v. Harmon/ 3 which held that nonmaritime causes of 4i 130 U. S. 527, 9 Sup. Ct 612, 32 L. Ed. 1017. 42 See, also, Albert Duiuois, 177 U. S. 240, 20 Sup. Ct. 595, 44 L. Ed. 751. 43 222 U. S. 96, 32 Sup. Ct. 27, 56 L. Ed. 110. 240 ACTION FOR INJURIES RESULTING FATALLY (Ch. 10 action could also be proved in a limited liability proceeding. It turned not upon the original limited liability act con- strued in ex parte Phenix Ins. Co., but on the amendment of June 26, 1884. 44 If this reasoning and the above authorities establish that such a cause of action is maritime, two results follow: (1) A state statute can be made to regulate the right, and can give it in personam or in rem, enforceable in the admiralty, or by an ordinary personal action in its own courts. (2) An act of Congress may also regulate the subject, and in such case it would supersede the state statute, at least so far as foreign vessels are concerned, or as far as it would regulate the remedy in admiralty.* 44 23 Stat. 57 (U. S. Comp. St. § S028) ; Appendix, post, p. 497. * When this work was nearly through the press, Congress passed the following: [Public— No. 165— 66th Congress.] [S. 2085.] An Act Relating to the maintenance of actions for death on the high seas and other navigable waters. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever the death of a person shall be caused by wrongful act, neglect, or de- fault occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative dnsl the vessel, person, or corporation which would have been liable if death had not ensued. See. 2. That the recovery in such suit shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is broughl and shall be apportioned among them by the COUrl III proportion to the loss they may severally have suffered by reason of the death of the person by whose representa- tive the suit is brought. See. :;. That such suit shall be begun within two years from the § 114) AMERICAN DOCTRINE AS TO SURVIVAL 241 In the concluding paragraph of the opinion in BUTLER v. BOSTON & S. S. S. CO., supra, the court reserves the question whether a state statute can have this effect. This was probably a mere cautious reservation of a question not directly involved, but the conclusion would seem to follow from the above authorities. date of such wrongful act, neglect, or default, unless during that period there has not been reasonable opportunity for securing ju- risdiction of the vessel, person, or corporation sought to be charged; but after the expiration of such period of two years the right of action hereby given shall not be deemed to have lapsed until ninety days after a reasonable opportunity to secure jurisdiction has of- fered. Sec. 4. That whenever a right of action is granted by the law of any foreign State on account of death by wrongful act, neglect, or default occurring upon the high seas, such right may be maintained in an appropriate action in admiralty in the courts of the United States without abatement in respect to the amount for which re- covery is authorized, any statute of the United States to the con- trary notwithstanding. .See. 3. That it ;i person die as the result of such wrongful act, neglect, or default as is mentioned in section 1 during the pendency in a court of admiralty of the United States of a suit to recover damages for personal injuries in respect of such act, neglect, or de- fault, the personal representative of the decedent may be substituted as a party and the suit may proceed as a suit under this Act for the recovery of the compensation provided in section 2. Sec. 6. That in suits under this Act the fact that the decedent has been guilty of contributory negligence shall not bar recovery, but the court shall take into consideration the degree of negligence attributable to the decedent and reduce the recovery accordingly. Sec. 7. That the provisions of any State statute giving or regulat- ing rights of action or remedies for death shall not be affected by this Act. Nor shall this Act apply to the Great Lakes or to any waters within the territorial limits of any State, or to any navigable waters in the Panama Canal Zone. Sec. S. That this Act shall not affect any pending suit, action, or proceeding. Approved, March P>0, 1920. Hughes,Adm.(2d Ed.) — 16 242 ACTION FOR INJURIES RESULTING FATALLY (Ch. 10 THE LAW GOVERNING 115. The right of action is governed by the law of the place where it arose ; or by the law of the flag if it arose on the high seas ; in so far as the relations of the parties under the flag are concerned. If the death occurs from a collision between two vessels of different flags, there is no right of action by those fatally injured on one vessel against the oth- er vessel, where the collision occurs on the high seas. It is an important question what law governs in such cases. A state statute would regulate any such occurrence on the waters within its jurisdiction, and any negligent kill- ing on the high seas of any one on a vessel would be gov- erned by the laws of the vessel's hailing port as far as those aboard are concerned. 4 "' It is a favorite principle of admiralty that its rights of action follow a ship around the world, and may be enforced in any port. This is true as to personal injuries, and in such cases the court enforces the law of the place where *5 McDonald v. Mallear, 77 N. Y. 546, 33 Am. Ron. 064; Hamil- ton, 207 T\ S. 398, 28 Sup. Ct. 133, 52 L. Ed. 204 (a collision between two ships of the same flag, where the law common to both was ap- plied): La Bourgogne, 210 U. S. 95, 28 Sup. Ct. 004. 52 L. Eld. 973 (a French ship, where the French law was applied in favor of those aboard); Bjolstad v. Pacific Coast S. S. Co. (D. C.) 244 Fed. 634; International Nav. Co. v. Lindstrom, 12:5 Fed. 475, 00 C. C. A. 049. In Davidson v. Hull, [1901] 2 K. B. 000, which was a collision on the high seas between a Norwegian and an English vessel, causing the death by drowning of one of the Norwegian's crew, it was held that a suit would lie against the English vessel. The question turn- eel, however, mainly on the construction put on the English act of Parliament as a question of intent, and not on any application of the principles of Conflict of Laws. § 116) EFFECT OF CONTRIBUTORY NEGLIGENCE 243 the cause of action arose, or the law of the flag if it arose on the high seas, and if shown what that law is. 4IJ But cases often arise where vessels of different flags col- lide. In such case the rights of injured parties against their own ship are governed by their flag; but there is no rem- edy against the other ship, under the doctrine of Conflict of Laws that, if the laws are different, neither law would be applied. 47 EFFECT OF CONTRIBUTORY NEGLIGENCE 116. Contributory negligence bars recovery. There is one anomaly in the decisions on the subject. Although the doctrine finds its place in the admiralty law only from the fact that it is maritime by nature, it is held that, even in the admiralty courts in suits for such causes of action contributory negligence bars recovery. 48 Admiralty courts have their own doctrine on the sub- ject of contributory negligence. In collision cases, where both are negligent, the damages are equally divided. In personal injury cases, not fatal, the damages are di- vided, not equally, but much as the judge may think equi- table, considering the circumstances and the relative fault of the parties. 49 4 6 Lainington (D. C.) 87 Fed. 752; Panama R. Co. v. Napier Ship- ping Co., 166 U. S. 2S0, 17 Sup. Ct. 572, 41 L. Ed. 1004; Northern Pac. R. Co. v. Biihcock, 154 U. S. 190, 14 Sup. Ct. 978, 38 L. Ed. 958 ; Manning v. International Mercantile Marine Co., 212 Fed. 933, 129 C. C. A. 453. 47 Middlesex (D. C.) 253 Fed. 143; Sagamore, 247 Fed. 743, 159 C. C. A. 601. § 116. 4 8 Robinson v. Detroit & C. Steam Nav. Co., 73 Fed. 883, 20 C. C. A. S6; Quinette v. Bisso, 136 Fed. 825, 69 C. C. A. 503, 5 L. R. A. (N. S.) 303. 49 Max Morris, 137 U. S. 1, 11 Sup. Ct. 29, 34 L. Ed. 5S6, and cases cited. 244 ACTION FOR INJURIES RESULTING FATALLY (Ch. 10 In other words, in all other admiralty cases contribu- tory negligence reduces recovery, but does not defeat it. But in this case the rigid doctrine of the common law as to contributory negligence is applied. CONSTRUCTION OF PARTICULAR STATUTES 117. Assuming the power of legislation over the subject, state or federal, as defined in the above discus- sion, the question whether any given statute gives a remedy in rem is a matter of construction. Statutes worded substantially as Lord Campbell's Act are usually construed as not so intended. It has been seen that the House of Lords so construed it in the VERA CRUZ, 50 and that the Supreme Court so construed the Louisiana statute in the CORSAIR. 51 Judge Benedict placed a similar construction on the New York statute in the Sylvan Glen. 52 And Judge Hughes so construed the Virginia statute in the Manhasset. 53 Since that decision the Virginia statute has been amended, and the Circuit Court of Appeals for this circuit has held that in its present form, as found in sec- tion 2902 of the Virginia Code of 1887, it gives the right of procedure in rem. 54 The Washington statute is held to give no right in rem. 55 § 117. 5° 10 A. C. 50. si 145 U. S. 335, 12 Sup. Ct. 940, 36 L. Ed. 727. 52 (D. C.) Fed. 335. 5 3 (D. C.) 18 Fed. 918. a Glendale (D. C.) 77 Fed. 006; Id., 81 Fed. 033. 26 C. C. A. 500. ss Alaska (D. C.) 225 Fed. 645. § 118) TORTS TO THE PROPERTY 245 CHAPTER XI OF TORTS TO THE PROPERTY, AND HEREIN OF COLLISION US. Rules for Preventing Collisions, the Different Systems, and the Localities where They Apply. 119. Preliminary Definitions. 120. Distinctive Lights Prescribed for Different Vessels. 121. Sound Signals in Obscured Weather. *122. Speed in Obscured Weather. 123. Precautions when Approaching Fog Bank. 124. Steering and Sailing Rules in Obscured Weather. RULES FOR PREVENTING COLLISIONS, THE DIF- FERENT SYSTEMS, AND THE LOCALITIES WHERE THEY APPLY 118. There are four different sets of navigation rules which American courts may have to administer, namely, the International Rules, the Inland Rules for Coast Waters, the Lake Rules, and the Mississippi Val- ley Rules. The torts most prolific of litigation in the admiralty are collisions between vessels. To that cause is due the loss of many lives, with untold valuable property. Until the nineteenth century had more than half elapsed, there were no rules regulating the duties of approaching vessels, and navigation was a happy-go-lucky experiment, in which the unfortunate seafaring man was at the mercy not only of his own captain, but of the commanders of approaching ves- sels as well. The common acceptation of the word "collision" in ma- rine law is the impact of two or more vessels. 1 § US. i Burnham v. China Mutual Ins. Co., 189 Mass. 100, 75 N. E. 71, 109 Am. St. Rep. 627 ; Newtown Creek Towing Co. v. Mtna Ins. 24G TORTS TO THE PROPERTY (Ch. 11 The earlier statutes contented themselves with requiring vessels to carry lights at night, for until 1838, even in this country, that was not a matter obligatory, though the courts had held that under the circumstances of particular cases it was required of a moving vessel to show a light on approaching another vessel as a precaution demanded of a prudent navigator. 2 In England, though special statutes had prescribed rules for special cases, no code of rules intended to regulate the navigation of vessels in relation to each other was promul- gated until under the statute of 25 & 26 Vict., the regu- lations prescribed by the orders in council were put in force as of June 1, 1863. These were intended to prescribe not only the lights which vessels must carry at night, but all possible contingencies, including their duties in a fog, the relative duties of steamer to steamer, sail to sail, and steamer to sail. They were enacted in substantially the same form by Congress on April 29, 1864, and constitute section 4233, Rev. St. U. S. 3 These rules, however, though regulating lights, and the proper methods of steering and sailing, prescribed no sig- nals except during fog. This defect in our country was remedied by the board of supervising inspectors, who, by virtue of authority conferred on them by section 4412, Rev. St., U. S. Comp. St. § 8166 (to establish regulations to be observed by steam vessels in passing each other, copies Co., 163 N. T. 114, 57 N. E. 302 ; Cline v. Western Assur. Co., 101 Va. 496, 44 S. E. 700; Chandler v. Blogg, [1898] 1 Q. B. 32; Margette & Ocean Aceident & Guarantee Ass'n, In re, [1901] 2 K. B. 792. But if we take the Corsair, 145 U. S. 335, 12 Sup. Ct. 949, 36 L. Ed, 7127. literally, if looks as if the Supreme Court included in the term the striking of a Mississippi mud hank! 20sprey, l Spr. L'l.". Fed. Cas. No. 10.606. Louisiana, 21 How, 1, 16 I,. Ed. i".): l Parsons, S. & A. 550. 8 They are now in the main the Mississippi Valley rules, though amended in many particulars since lsh'4. U. S. Comp. St. §§ 7942- 7!>7>. § 118) RULES FOR PRE VENTING COLLISIONS 247 of such regulations to be posted in conspicuous places on such steamers), provided signals by whistle, # which en- abled masters of approaching vessels to indicate to each other their exact intentions. These rules governed all ves- sels in American waters — even foreign vessels. 4 Though admirable in their general scope, they were yet far from perfect, and the next advance was the enactment of the International Rules of 1885. They went into force in this country on March '3, 1885, but they were expressly lim- ited to the high seas and coast waters. And so we had two sets of rules in force — the rules of 1864, embodied in section 4233, Rev. St., supplemented by the Supervising In- spectors' Rules, all applying only to inland waters, and the International Rules of 1885, applying to the high seas and coast waters. In the DELAWARE, 5 the Supreme Court decided that the line between the two was the place of taking a local pilot; that everything on regular pilotage ground was in- land, and everything outside was high seas or coast wa- ters. In 1889 representatives from the leading maritime na- tions met in Washington by invitation of our government, still further elaborated the code of navigation, and recom- mended to their respective principals to adopt the result of their deliberations. On August 19, 1890 (26 Stat. 320), Congress enacted it into law, to go into effect, however, at a time to be fixed by presidential proclamation. In some particulars these rules were unsatisfactory, and they remained in a state of suspended animation till July 1, 1897. They were further amended by Act May 28, 1894, 6 and Act June 10, 1896, 7 and on December 31, 1896, 8 the proc- 4 Sarmatian (C. C.) 2 Fed. 911. 5 101 U. S. 459, 16 Sup. Ot. 516, 40 L. Ed. 771. e 28 Stat. 82. » 29 Stat. 381. 8 29 Stat. 8S5. 248 TORTS TO THE PROPERTY (Ch. 11 lamation of the President formally put them in force as of July 1, 1897. These rules purported to apply to "the high seas and all waters connected therewith navigable by seagoing vessels." But its thirtieth article provided that nothing in them should interfere with the operation of a special rule, duly made by local authority, relative to the navigation of any harbor, river, or inland waters. By Act Feb. 19, 1895, 9 Congress, acting under this saving clause, kept in force the rules found in section 4233, Rev. St., and the Inspectors' Rules supplementing them, for har- bors, rivers and inland waters (not including the Great Lakes and their tributaries), declared them rules made by local authority, and directed the Secretary of the Treasury to define the lines between such waters and the high seas, which was done. But by Act June 7, 1897, 10 Congress codi- fied the inland rules also, making them apply on all har- bors, rivers, and inland waters, except the Great Lakes, the Red River of the North, and the waters emptying into the Gulf of Mexico. This act repealed sections 1 and 3 of Act Feb. 19, 1895, but left section 2 of that act (by which the Secretary of the Treasury was directed to define the lines between the high seas and inland waters) still in force. These rules went into effect on October 1, 1897. Both these rules and the International Rules were slightly amended by Act Feb. 19, 1900, ir prescribing the lights required of steam pilot vessels. Navigation on the Great Lakes is regulated by Act Feb. 8, 1895, 12 which applies to the Great Lakes and their con- necting and tributary waters as far east as Montreal. Navigation on the Mississippi river as far down as New < >i leans, also on its tributaries and on the Red River of the »28 Stat. 672 (U. S. Oomp. St. §§ 7971 -7974). 1030 Stat. 96 (U. S. Comp. St. SS 7872 7!>09). ii31 Stat. 30 (U. s. Comp. St. §§ 7845, 7846). 1228 smt. 645 (U. S. Comp. St. SS 7910 7941). § 118) RULES FOR PREVENTING COLLISIONS 249 North, is governed still by the old rules found in section 4233, Rev. St., and amendments and the pilot rules for West- ern rivers supplementing them. Hence the courts may be required to administer any one of four sets cf rules : (1) The International Rules for collisions on the high seas. (2) The Inland Rules for collisions on coast waters or waters connecting therewith, inside of the dividing lines fixed by the Secretary of the Treasury. (3) The Lake Rules for the Great Lakes and their ad- jacent streams. (4) The Mississippi Valley Rules. 13 And, besides all these, the courts have held that vessels navigating any given waters are bound to observe rules made by municipal or state authority for that locality. 14 For instance, a New York statute requiring boats navigat- ing the East river to keep in mid-stream, away from the docks, so as to allow unimpeded ingress to them, has been held obligatory on vessels. 1-5 Many ports abroad have their local rules, and these are enforced by the courts. 16 Even local customs not emanating from legislative au- thority are binding. 17 Though there are striking differences between these four is In the Albert Dumois, 177 U. S. 240, 20 Sup. Ct. 595, 44 L. Ed. 7-">1. Mr. Justice Brown gives a brief history of the adoption of the different rules. For the Order in Council putting the rules in effect as to English vessels, see [1S96] P. 307. « U. S. v. St. Louis & M. V. Transp. Co., 154 U. S. 247, 22 Sup. Ct. 350, 46 L. Ed. 520. is Ivanhoe, 7 Ben. 213, Fed. Cas. No. 7.113; Bay State, 3 Blatchf. 48, Fed. Cas. No. 1,119; Favorita, IS Wall. 59S, 21 L. Ed. 856; Hart- ford (D. C.) 125 Fed. 559 ; Id., 135 Fed. 1021, 6S C. C. A. 230. 16 Margaret, 9 A. C. 873; Spearman, 10 A. C. 276. it Fyenoord, Swab. 374; VICTORY, 168 U. S. 410, IS Sup. Ct. 149, 42 L. Ed. 519 ; Agnella (D. C.) 198 Fed. 147. 250 TORTS TO THE PROPERTY (Ch. 11 sets of rules, their general scheme is the same, and therefore the International Rules will be made the basis in this dis- cussion, though attention will be directed to some of the more important differences. It will be found that they con- stitute a common language of the sea, by which approaching navigators, no matter what their nationality, may speak to each other in tones understood of all seafaring men. Un- der them, if followed, collisions need never occur, unless by some negligence or inattention which no rules can prevent ; for in this, as in the other affairs of life, the personal equa- tion cannot be completely eliminated. In view of the adoption of these rules by the more im- portant maritime nations, they constitute a communis jus, and govern ships of different flags as well as those of the same flag in collisions occurring out of the jurisdiction of any one nation, it being assumed in the absence of evidence to the contrary that the law is common to both ships. But if the law of the flags differs, each may obey his own law without being guilty of negligence. 18 The court takes judicial notice of these International Rules, but any variation of them by any particular nation must, like any other foreign law, be proved as a fact. 1 ' 9 PRELIMINARY DEFINITIONS 119. The first aim of the rules is to classify, for the pur- pose of the regulations, steam vessels and sailing vessels and vessels under way, etc. The relative duties of steam and sail vessels and of ves- sels under way and vessels at anchor arc so different (as will appear hereafter) that the first effort of the rules is to dis- tinguish these cases closely. Accordingly, in the prelimi- isBelgenland, 114 U. S. :\">, 5 Sup. Ct. SCO. 29 L. Ed. 152; Ham- ilton. 207 U. S. 398, 28 Sup. Ct. j:::;. 52 I.. Ed. 264. i» New York. 175 U. S. 187, 20 Sup. Ct. 67, II L. Ed. 126. § 120) DISTINCTIVE LIGHTS FOR DIFFERENT VESSELS 251 nary definition, every vessel under sail, though by build a steamer, is treated as a sail vessel, and every vessel under steam or propelled by machinery is considered a steam ves- sel. This latter definition would include electric or naphtha launches, which, indeed, as far as the local rules are con- cerned, are brought into the categor}^ of steam vessels by express act of Congress. 20 On the other hand, a broken- down steamer, slowly finding her way into port under sail, is, as to other vessels, considered a sail vessel. So, too, in order to avoid any possible misunderstanding, a vessel, though her headway is killed in the water, is considered under way, unless she is at anchor, or tied to the shore, or aground. The reason is that, unless she is thus fastened to something, a turn of her engines may put her under way, and therefore she should be avoided. 21 DISTINCTIVE LIGHTS PRESCRIBED FOR DIFFER- ENT VESSELS 120. The next aim of the rules is to indicate to other ves- sels the character and course and bearing of a neighboring vessel, and whether she is in motion. This is done by the use of distinctive lights, white and colored, in various combinations, for unin- cumbered steamers, incumbered steamers, sailing vessels, etc. The first thirteen articles regulate the subject of vessels' lights. After defining the word "visible" as meaning visible on a dark night with a clear atmosphere, it is provided that the lights prescribed shall be shown from sunset to sunrise, and § 119. 20 29 Stat. 489 (U. S. Comp. St. § 8282) ; Nirarod, 173 Fed. 520; Southern (D. C.) 224 Fed. 210. 215. 21 Burrows v. Gower (D. C.) 119 Fed. 616; George W. Elder, 249 Fed. 956, 162 C. C. A. 154: Romance, [1901] P. 15; Upton Castle, [1906] P. 147; Gladys, [1910] P. 13. 252 TORTS TO THE PROPERTY (Ch. 11 that no others which could be mistaken for them shall be shown. This requirement, however, does not exempt a vessel from taking proper measures to avoid another with- out the lights if she can be seen, as is frequently the case just after sunset, or on a clear moonlight night, but it casts on the offending vessel the burden of showing that her offense not only did not, but could not possibly, have contributed to the accident. 22 The first effort is to adopt distinctive lights for different classes of vessels, so that steamers unincumbered or with tows, sail vessels, small craft, and special kinds of vessels, like pilot boats and fishing vessels, can announce their char- acter at a glance. This is accomplished by the use of white lights, colored lights, and flare-up lights in various combina- tions. The colored lights are carried on the sides of the vessel, the white lights on the line of the keel, and at an elevation. (1) Unincumbered Steamers (Article 2) An unincumbered steamer under way carries a white light well forward, at least twenty feet above the hull, strong enough to show five miles, but with a board behind it, so arranged that it cannot be seen from behind. In the lan- guage of the rule, it shows twenty points. As there are thirty-two points in all, this makes it show two points abaft the beam on each side ; so that overtaking vessels cannot see this special light unless they are nearly up to a point abeam. This is called the "masthead light," and is the white light usually carried by seagoing vessels. This light, in the Inland Rules, need not be twenty feet above the hull. Steamers, however, instead of carrying this single white light, are allowed the option of substituting two white lights. In this case an additional white light is placed aft amidships, at least fifteen feet higher than the bow light. § 120. " B. E. Kirkland (D. C.) 5 Hughes, L09, 48 Fed. 760 ; Tillie, i:: Blatchf. 514, Fed. Cas. No. 14,049; PENNSYLVANIA, 19 Wall. L25, 22 I.. Ed. 148; Bougainville, L. R. 5 P. 0. 316. § 120) DISTINCTIVE LIGHTS FOR DIFFERENT VESSELS 253 In the International Rules, it is screened like the one for- ward ; in the Inland Rules it shows all around the horizon. These two lights possess the important advantage of giv- ing a range, and thus announcing the exact direction in which their bearer is moving. This is not important at sea, where there is plenty of room ; but it is important in narrow, crowded, or devious channels, and hence the river and bay steamers usually adopt this plan. In the Lake Rules this is obligatory on steamers over 150 feet register length. The colored lights prescribed for steamers are: On the starboard or right-hand side, a green light strong enough to be visible at least two miles, and fitted with screens, so arranged that it will not show backwards till an approach- ing vessel is within two points of abeam, and that it will not show across the ship ; in other words, it must only show from right ahead to two points abaft the beam. On the port or left-hand side there is a red light screened in the same way. Thus a vessel moving right ahead in exactly the opposite direction would' see both colored lights (or side lights as they are usually called) and the masthead light, or the two range lights in line, would know that she was meeting a steamer, and would govern herself accord- ingly. In the Mississippi Valley Rules, steamers carry simply the colored lights, attaching them to their respective smoke- stacks, and arranging them to show only forward and abeam. 23 (2) Steamers with Tows (Article 3) Let us now suppose that our steamer takes another ves- sel in tow. How does she announce the fact to her marine neighbors? She accomplishes it by additional white lights. If she uses the masthead light, she hangs another one six feet under it, and screened just like it, and still another if 23 See Pilot Rule No. 10 for Western Rivers. 254 TORTS TO THE PROPERTY (Ch. 11 her tow consists of more than one vessel, and is over 600 feet long". Here there is a slight difference between the Interna- tional Rules and the Local Rules. Under the latter she puts the additional light or lights under the after-range light, three feet apart, and uses for the purpose lights which, like it, show all around the horizon. Tugs in harbor work use this latter rig. These lights must be strictly one over the other. 24 The Lake Rules require only one towing light, no matter how long the tow, and a special light if the tow is a raft. The Mississippi Valley Rules (where unincumbered riv- er steamers have no white lights) require two vertical tow- ing lights forward, arranged to show an arc like the mast- head lights. Hence an approaching vessel, seeing these "towing" or "vertical" lights, as they are usually called, knows that it is meeting a steamer with a tow, and must regulate its naviga- tion not only in reference to the tug, but the other vessel behind it. fS) Special Lights (Article 5) Vessels not under command carry two vertical red lights at night, showing all around the horizon, or two black balls by day; and vessels laying telegraph cables have peculiar lights, warning other vessels of their mission. The Inland Rules, Lake Rules, and Mississippi Valley Rules have no corresponding lights or balls. This means not under command from some accidental cause, and would not cover the case of a vessel hove to, or not under, immediate command voluntarily. 25 Nor would it apply to a steamer partially disabled, but still moving slowly and steering. 26 2* Foster v. Merchants' & Minors' Transp. Co. (D. C.) 134 Fed. 964. 25 Burrows v. Gower (D. C.) 119 Fed. 616; Bellanoch, [1907] A. C. ■2C,>). 2B P. Caland, [1893] A. C. £07. § 120) DISTINCTIVE LIGHTS FOR DIFFERENT VESSELS 255 (4) Sail Vessels and Vessels Towed (Article 5) These carry the two colored or side lights prescribed for steamers, and no others. Hence a mariner seeing only a colored light or lights on a vessel knows that it is a sail vessel, or a vessel towed. If, at a second glance, he sees no steamer in front showing the tow lights just described, he knows it is a sail vessel. (5) Small Vessels (Article 6) These can carry movable colored lights and show them to an approaching vessel. The International Rules and the Lake Rules do not define what is meant by a small vessel ; the corresponding inland rule defines it as a vessel of less than ten gross tons. By the Act of June 9, 1910, 27 Congress made special pro- vision for "motor boats," which were defined as "every vessel propelled by machinery and not more than sixty- five feet in length, except tugboats and towboats propelled by steam." The rig of their lights varies with their size ; the smaller type having a white light aft to show all around the hori- zon, and a combined lantern for the green and red lights, and the two larger sizes having two white lights, fixed to give a range, and the colored lights on each side, as usual. (6) Small Steam and Sail Vessels and Open Boats (Article 7) Steam vessels under 40 tons and sail vessels or oar ves- sels under 20 tons gross may elect a different rig under the international rule. The steamers may have a small white light forward and a combined lantern, showing red and green on the proper sides, behind the white light, and be- low it ; the sail or oar vessel may have a similar combina- tion green and white light, to be exhibited on the approach of another vessel ; and rowboats may have a white lantern to be shown when needed. The corresponding inland rule omits this provision except for rowboats. The Lake Rules "36 Stat. 462 (U. S. Conip. St. § 8277). 256 TORTS TO THE PROPERTY (Ch. 11 permit a combined lantern on open boats, and the Missis- sippi Valley Rules permit it on boats under ten tons pro- pelled by gas, fluid, naphtha, or electric motors. (7) Pilot Vessels (Article 8) These show a white light at the masthead, visible all around, and a flare-up light every fifteen minutes, to attract attention. When not on their station, they exhibit the or- dinary lights. If it is a steam pilot boat on its station, it must, by the Act of February 19, 1900, 28 amending the In- ternational Rules and Inland Rules, show a red light im- mediately under the masthead light, and visible all around, with the colored side lights if not at anchor, and without them if at anchor. (8) Fishing Vessels (Article 9) The International Rule on this class is not of interest. The corresponding Inland Rule provides, in substance, that when not fishing they carry the ordinary lights, and when fishing they use a special rig. The International Rules make no provision for a large class of craft common in American waters, such as rafts, mud scows, etc. The Inland Rules leave this to the super- vising inspectors. By Act of March 3, 1893, 29 this power had been expressly conferred on the supervising inspectors as far as barges and canal boats were concerned. Accord- ingly, at their session in 1894, they provided a multitude of rules for such boats towing tandem, or in tiers, or alongside, which it is hardly worth while to explain in detail. The mud scows so common around dredging machinery in our harbors are required to carry a white light at each end, not less than six feet above the deck. The Inland Rules and Lake Rules also empowered the supervising inspectors to make similar regulations. •-■- ::i stiit. 30 (TJ. s. Comp. St. §§ 7845, TS46). 29 27 Stat. 557 (U. S. Comp. St. § 7S49). § 120) DISTINCTIVE LIGHTS FOR DIFFERENT VESSELS 257 (9) Overtaken Vessels (Article 10) It is obvious from the preceding explanations that a, steamer rigged with the masthead light instead of the range white lights and a- sail vessel or vessels in tow cannot be seen from behind, as all their lights are screened so as to show only forward. Hence this rule provides that the ves- sel being overtaken shall show from astern a white light or a flare-up light. They may fix this light permanently, or show it as long as the approaching vessel is an overtak- ing one ; 30 but, if fixed, it must be about on a level with the side lights, and so screened as to show right back over an arc of twelve points, or 135 degrees. The Lake Rules (No. 12) and the Mississippi Valley Rules require sail vessels, on the approach of any steamer during the night time, to show a lighted torch upon the point or quarter to which such steamer shall be approach- ing. The language of this rule is broad enough to include a steamer approaching from any direction, whether the sail is at anchor or not. And, accordingly, there were several decisions of the inferior courts holding that the torch must be exhibited under all circumstances. 31 But in the OREGON, 32 the Supreme Court held that the provision was intended to supply an obvious defect in the old rules in requiring no light shown to overtaking vessels, that this was its primary object, and that it did not apply to anchored vessels. If the side lights are good, it would not be necessary to show it to steamers approaching anv point forward of the beam. 33 so John Bossert (D. C.) 148 Fed. 903; 168 Fed. 1021, 93 C. C. A. 671; Bernicia (D. C.) 122 Fed. 8S6 ; Main, L. R. 11 P. D. 132; Es- sequibo, L. R. 13 P. D. 51. The binnacle light is not a sufficient com- pliance with the rule. Patroclus, 13 P. D. 54. si Lizzie Henderson (D. G.) 20 Fed. 524; Algiers (O. C.) 28 Fed. 240. 3 2 158 U. S. 186, 15 Sup. Ct. 804, 39 L. Ed. 943. 33 Brigham v. Luckenbach (D. C.) 140 Fed. 322. Hughes,Adm. (2d Ed.) — 17 258 TORTS TO THE PROPERTY (Ch. 11 In any event, the International and Inland Rules require it to be shown only to overtaking vessels, 34 except as an extra precaution under article 12. 35 (10) Anchor Lights (Article 11) This is an important light in roadsteads and harbors. It is a white light, placed in the rigging so as to be visible all around the horizon for a distance of at least one mile. Vessels under 150 feet long must not carry it over 20 feet above the hull ; vessels over that length carry it from 20 to f40 feet above the hull. If the vessel is over 150 feet long, then there must be an extra light astern. It need not nec- essarily be forward of the foremast, but may be in the fore- rigging, if the view is unobstructed all around. 36 A vessel must show her anchor light if in navigable water, though outside the channel as marked by the buoys. 87 SOUND SIGNALS IN OBSCURED WEATHER 121. Distinctive sound signals are prescribed for different vessels as precautions in obscured weather, to be used when the obscuration is such that signals can be heard further than lights can be seen. The Signals Required Article 15 regulates these signals in case of obscured weather. Steamers navigating as such give them on their whistle or siren. Sail vessels in motion, or vessels being towed, give them on a fog horn. a* Algiers (D. C.) 38 Fed. 526. The Oregon case was decided prior to the rules of 1897. Article 12 was added by these rules, and made the exhibition of the flare light optional, not compulsory. Martha E. Wallace (D. C.) 148 Fed. 94. SB Excelsior (D. C.) 102 Fed. 652; Robert Graham D\m, 107 Fed. 994, 47 C. C. A. 120. sePhilsidelphian, [19001 P. 262. 37 Oliver (D. C.) 22 Fed. 848. § 121) SOUND SIGNALS IN OBSCURED WEATHER 259 For a long- time the horn used on sail vessels was an or- dinary tin horn, blown by the breath. But this was too unreliable, and so since the rules of 1885 it has been re- quired to be sounded by "mechanical means." Those now in use are a box containing a bellows worked by a crank. The blast that they give is sufficient to be heard a long dis- tance. So particular are the courts to require its use that, if a mouth horn is used, and a collision occurs, the court will require the offending vessel to show not only that this negligence might not have contributed to the collision, but could not possibly have done so. 38 While a vessel is not required to carry a spare mechanical horn, and may use a mouth horn, in case of an accidental breakdown of the other, she is required to exercise reason- able care to keep her mechanical horn in order, and is liable for the use of a mouth horn in case she does not do so. 89 The Inland Rules and Lake Rules merely require an ''efficient fog horn," and do not require it to be sounded "by mechanical means." The Mississippi Valley Rules do not require a steamer to carry a fog horn, and do not require the fog horn car- ried by sailing vessels to be sounded by mechanical means. By the International Rules unincumbered steamers in mo- tion sound one blast every two minutes, by the Inland and Mississippi Valley Rules they sound one blast every minute, and by the Lake Rules three blasts every minute. By the International, Inland, and Lake Rules sail vessels blow their horns, according to the bearing of the wind, one blast for the starboard tack, two for the port, and three for the wind abaft the beam. § 121. ss MARTELLO, 153 U. S. 64, 14 Sup. Ct 723, 38 L. Ed. 637 ; Hercules, 80 Fed. 998, 26 C. C. A. 301. ss Kenilworth (D. C.) 64 Fed. S90 ; Niagara, 84 Fed. 902, 28 0. a A. 528 ; Trave, 6S Fed. 390, 15 C. O. A. 485. 260 TORTS TO THE PROPERTY (Ch. 11 The Weather in Which Signals Required As to the weather in which those signals should be given, the first law required it in "fog or thick weather." Accord- ingly, under those rules, it was held that they need not be given in snow storms. 40 The International Rules of 1885 extended the require- ments of signaling to "fog, mist, or falling snow" ; and the present rules extend it to "fog, mist, falling snow, or heavy rain storms," showing a constantly increasing vigilance. The Lake Rules are equally rigid. A mere haze in the atmosphere could hardly come under the term fog. Perhaps the best definition is given in the MONTICELLO, 41 in which Judge Lowell says: "What is a fog, such as the statute intends? Is it every haze, by day or night, of whatever density? To give the statute a rea- sonable interpretation, we must suppose that its intent is to give to approaching vessels a warning which the fog would otherwise deprive them of. By day there must be fog enough to shut out the view of the sails or hull, or by night of the lights, within the range of the horn, whistle, or bell. It means that a safeguard of practical utility under the circumstances should be provided. If it be entirely plain, under the evidence, that the ordinary signals are suf- ficient, and more efficacious than the horn could be, the horn will not be required. But a serious doubt upon that point must weigh against the vessel failing to comply with the statute. I do not consider it to be enough to aver and prove that the lights might be seen in time to avoid serious danger; but, where it is evident that the fog signal could not have been so useful as the ordinary signal, it need not 40 Rock away (O. C.) 25 Fed. 775. 4i 1 Low. 1S4, Fed. Cas. No. 9,739. For application of the rule to other obscurations of the atmosphere than fog, see Merchants' & Miners' Transp. Co. v. Hopkins, 108 Fed. S90, 48 C. C. A. 128; Balti- more Steam Packet Co. v. Coastwise Transp. Co. (D. C.) 139 Fed. 777 (a "Scotch mist"). Virginia (D. C.) 203 Fed. 351. § 121) SOUND SIGNALS IN OBSCURED WEATHER 261 be used. Thus, if the lights could be plainly and easily made out a mile, and the fog horn could not be heard at a third or a quarter of that distance, I cannot suppose that such a state of the atmosphere would amount to a fog in the sense of the law. It is to guard against some danger which the fog would or might cause, and from which the horn might possibly guard, that it is to be blown." This, in substance, means that, if the weather is such that the whistles can be heard further than the lights can be seen, the signals should be given. As modern whistles are very powerful, and the side lights are required to show two miles, the logical deduction from this is that, if the mar- iners cannot see two miles, they should give the additional warning of the signals. In practice this is not done. And yet, when we consider that two vessels, each moving fifteen miles an hour (not a fast rate for modern steamers), are, when two miles apart in distance, only four minutes apart in time, we see that but little time is left for reflection. The distance at which vessels give the passing signals (explain- ed later on) is usually taken as half a mile. At this distance, if each is moving fifteen miles an hour, they are only a minute apart in time. Vessels at anchor ring every minute (every two minutes by the Lake Rules) a bell for five seconds. Towing vessels, and vessels under way, though not under command, give every two minutes a signal of one long blast, followed by two short ones. It is optional with vessels in tow whether to give this signal or not, but they shall not give any other. Small sailing vessels or boats may give these or not, but must make some good noise. By the Lake Rules towing steamers give the same signals as free steamers, and the tow must also give signals with her bell. And steamers with rafts give frequent screech or Modoc whistles. 262 TORTS TO THE PROPERTY (Ch. 11 SPEED IN OBSCURED WEATHER 122. In obscured weather vessels must go at a moderate speed, taking all circumstances into consideration. Article 16 lays down the vital and essential rule for fogs. It provides that every vessel shall go at a moderate speed, having careful regard to the existing circumstances and con- ditions. This term "moderate speed" is elastic in its mean- ing, and has been the subject of much judicial discussion. It varies to some extent with the character of the vessel, and to a very great extent with the character of the local- ity. A speed that is moderate on the high seas out of the usual track of navigation would be highly dangerous in harbors or their approaches. A moderate speed for a steamer would be an immoderate one for a sail vessel. A speed that is moderate when you can see a mile would be excessive when you can see a hundred yards. It would be impossible to review even a small part of the decisions on this subject. We must content ourselves with elucidating a few general principles. Requirement of Moderate Speed Applies Alike to Sail and Steam Vessels The requirement applies as well to sail vessels as to steamers. In a fog they must not only give their signals properly, but they must shorten sail until their speed is just sufficient for steerage way. As they have no means of stop- ping and backing, like steamers, it is the more incumbent on them to obey this rule. In the George Bell, 42 which was a collision on the Banks, the fog was such that they could see for 300 yards. The § 122. 423 Hughes, 468, Fed. Cas. No. 5,856. Instances of im- moderate speed in sailing vessels. Chattahooehe, 173 U. S. 540, 19 Sup. Ct. 491, 43 L. Ed. 801; David Crockett (D. C.) S4 Fed. C98 ; Sif (D. C.) 157 Fed. 454; Oceania Vance, 233 Fed. 77, 147 O. C. A. 147. § 122) SPEED IN OBSCURED WEATHER 263 court held that a speed of five miles an hour was too fast, due to the fact that the ship was carrying its main sail and mizzen sail. In the well-considered English case of the ZADOK, 43 a sailing vessel was held at fault which was carrying prac- tically all her canvas ; and the true criterion was announced to be the ability to steer. "It is the duty of the ship, whether she be a sailing vessel or a steamer, to moderate her speed as much as she can, yet leaving herself with the capacity of being properly steered." Steamers must Go so Slow in Frequented Waters as to be Able to Stop on Seeing Other Vessel The rule requires the speed of steamers to be such that they can stop on seeing the approaching vessel, assuming her also to be going at a moderate speed. This seems to be the result of the recent decision of the UMBRIA, 44 which reviews the question of fog speed and fog maneuvers at length. Despite the high authority of the court, and the spe- cial respect which marine lawyers pay to the opinions of Mr. Justice Brown, this does not seem to be a satisfactory or practical test. In the first place, it makes us measure a man's conduct by the motions of the other vessel, which he could not have known at the time ; and we are, therefore, trying him on facts developed long afterwards in the court room, and not on the facts as they appeared to him. In the next place, the fog may be so thick that one can hardly see the stem of his own vessel, much less an ap- proaching vessel, even though only a few yards off. Hence the rule, carried to its logical consequences, would require the vessel to anchor, and then, as Mr. Justice Clifford says in the Colorado, 45 she is in danger from vessels astern. 43 9 P. D. at page 116. 4 4 166 U. S. 404, 17 Sup. Ct. 610, 41 L. Ed. 1053. 45 91 U. S. 692, 23 L. Ed. 379- 264 TORTS TO THE PROPERTY (Ch. 11 In the next place, it is a very uncertain test. Different steamers can stop in different distances, depending on the power of their engines. Hence this test implies that the navigator must know the handiness of the other steamer as well as his own. The rule, though expressed in broad terms in the cases, has been applied in its strictness only to collisions happen- ing in much-traveled lanes of navigation. It would be car- rying it to extremes to apply it literally to the entire ex- panse of the high seas. 46 There is another rule, simpler, dependent on knowledge of his own vessel only, and in its practical results much saf- er. It is laid down in the ZADOK CASE, above cited, and in many Supreme Court cases before the UMBRIA. It cannot be better expressed than to quote Justice Clifford's opinion in the Colorado: 47 "Very slow speed, just- suffi- cient to subject the vessel to the command of her helm." In the MARTELLO, 48 the Supreme Court says that the vessel must "reduce her speed to the lowest possible point consistent with good steerageway." As samples of what speed the courts consider immod- erate, we might cite the PENNSYLVANIA, 49 where a speed in a steamer of seven miles an hour at a point two hundred miles out at sea, but in the track of navigation, was condemned ; and the MARTELLO, 50 where a speed of six miles an hour in the lower harbor of New York was thought too fast. 4 6 Dordogne, 10 P. D. 6; Moore, Rules of the Road, 38; Marsden, Collision, 355, 357. 47 91 U. S. 692, 23 L. Ed. 379. *8 153 U. S. at page 70, 14 Sup. Ct. 723, 38 L. Ed. 637. 49 19 Wall. 125, 22 L. Ed. 148. 60 153 U. S. 64, 14 Sup. Ct. 723, 38 L. Ed. 637. See, also, La Bourgogne, 210 U. S. 95, 28 Sup. Ct. 664, 52 L. Ed. 973; Beaver, 219 Fed. 134, 135 C. C. A. 32; affirmed 243 U. S. 291, 37 Sup. Ct. 270, 61 L. Ed. 726 ; also 253 Fed. 312, 165 C. C. A. 94 ; Quinette v. Bisso, 136 Fed. 825, 69 C. C. A. 503, 5 L. R. A. (N. S.) 303; Nord- 124) STEEK1NG AND SAILING RULES LN FOG 265 PRECAUTIONS WHEN APPROACHING FOG BANK 123. Vessels approaching fog banks are bound to use the precautions of sound signals and moderate speed. As the object of fog signals and slow speed is the protec- tion of other vessels, the law requires a vessel to take these precautions as she approaches a fog bank, and even before she enters it, for she cannot know what is in the bank ahead of her. 51 The laws of acoustics are so little understood, and the fail- ure to hear signals in fog so inexplicable, that such failure is not negligence under the decisions. 52 STEERING AND SAILING RULES IN OBSCURED WEATHER 124. The rules do not apply when vessels are not and can- not be aware of each other's proximity, but they apply when they have definitely located each other, though not so rigidly, and the special precaution rule has more scope. In a fog, when vessels cannot see or locate each other, the ordinary steering and sailing rules do not apply, for they presuppose a knowledge of the other vessel's charac- ter, bearing, and course, which cannot be known in fog. 53 amerika (D. C.) 191 Fed. 997 ; Sagamore, 247 Fed. 743, 159 C. C. A. 601. § 123. si Milanese, 4 Asp. 43S ; Perkiomen (D. C.) 27 Fed. 573; Julia Luckenbach (D. C.) 219 Fed. GOO, affirmed Indra Line v. Palmet- to Phosphate Co., 239 Fed. 94, 152 C. C. A. 144; St. Paul [1909] P. 43. 52 Spencer, Marine Coll. 138, 139. Columbia (D. C.) 104 Fed. 105; Curran, [1910] P. 1S4. § 124. 53 August Korff (D. C.) 74 Fed. 974; Celtic Monarch (D. C.) 175 Fed. 1000, 100S ; Geo. F. Randolph (D. C.) 200 Fed. 96. 266 TORTS TO THE PROPERTY (Ch. 11 The passing signals under article 28 of the International Rules and article 18, rule 8, of the Inland Rules, are express- ly limited to cases when the vessels are in sight of one another. 54 "But it is urged that the Negaunee, being on the port tack, was, under the seventeenth rule of section 4233, Rev. St., required to keep out of the way of the Portch; that the Portch had the right of way, and was to hold her course, and it was the Negaunee's duty to give the way or turn out ; and this rule would be aptly invoked if the proof showed that those in charge of the Negaunee had sufficient notice of the proximity of the Portch to enable them to execute the proper movements to give the Portch the way. The proof, however, shows, as I have already said, that at the time the Negaunee's officers were apprised of the presence of the Portch they were so near together, and a collision so im- minent, that it was futile to attempt to keep out of the way ; and it seems to me that, under the circumstances, rule sev- enteen was inoperative, and rule twenty-four of the same section, which required that due regard must be had to all the dangers of navigation, and to any special circumstances which may exist in any particular case rendering a depar- ture from the general rules necessary in order to avoid im- mediate danger, became the guide of both parties ; that is, that each party, under an unexpected impending peril, must do what he can promptly to avoid it.'' 55 "But when you speak of rules which are to regulate the conduct of people, those rules can only be applied to cir- cumstances which must or ought to be known to the parties at the time. You cannot regulate the conduct of people as to unknown circumstances. When you instruct people, you instruct them as to what they ought to do under circum- stances which are, or ought to be, before them. When you siAurelia (D. C.) 183 Fed. 341; North Point (D. C.) 205 Fed. 958; Amagansett, 220 Fed. 827, 136 C. C. A. 437. 6 Negaunee (D. C.) 20 Fed. 921. § 124) STEERING AND SAILING RULES IN FOG 267 say that a man must stop and reverse, or, I will say, slacken his speed, in order to prevent risk of collision, it would be absurd to suppose that it would depend upon the mere fact of whether there was risk of collision, if the circumstances were such that he could not know there was risk of colli- sion. I put some instances during the argument to show that that was so. The rule says that a steamer approaching another vessel ought to slacken her speed if, by going on, there would be risk of collision. But, suppose the night were quite dark, and the other ship was showing no light at all, it would be wrong to say, with regard to the conduct of those on the steamer, that when they have not the means of knowing, and could not possibly know, that there was an- other ship in their way, or near, they ought to see that the other ship was in the way or approaching, and that it is no excuse that they did not see them. Take another case : If two vessels are approaching, each on a different course, which will cause them to meet on a high headland, so that, until they are absolutely close, they cannot see each other, it is quite obvious that, if both are steamers, they ought, on the suggested reading of the rule, to stop and reverse. But how can you regulate their conduct if neither can see the other until they are close together? It is absurd to sup- pose that you could regulate their conduct, not with regard to what they can see, but to what they cannot see. There- fore the consideration must always be, in these cases, not whether the rule was in fact applicable, but were the cir- cumstances such as that it ought to have been present in the mind of the person in charge that it was applicable?" 66 5 c Beryl, 9 P. D. 138, 139. 268 STEERING AND SAILING RULES (Ch. 12 CHAPTER XII THE STEERING AND SAILING RULES 125-127. Origin, Reasons on Which Based, and General Application. 128. Sail Vessels. 129. Steamers— The Port-Helm Rule. 130. The Crossing Rule. 131. Steam and Sail. 132. Privileged Vessels. 133. Crossing Ahead. 134. The Stop and Back Rule. 135. Overtaking Vessels. ORIGIN, REASONS ON WHICH BASED, AND GEN- ERAL APPLICATION 125. Rules of navigation are the outgrowth of customs. 126. They are evolved from the comparative ease of han- dling different types of vessels, the rule of turn to the right, and the question whether there is risk of collision. 127. They regulate the relations of sail to sail, steam to steam, and steam to sail. The fourth part of the navigation rules is the most im- portant of all. It contains the steering and sailing rules, and prescribes the course which approaching vessels must take to avoid each other in every conceivable situation, and the signals to be given to indicate their respective inten- tions. These rules, in the main, are not new. They are largely affirmations of previous maritime customs, crystallized at last into positive enactments. Reasons on Which Based There are three underlying principles from which they are derived, for they are based on reason, and any one §§ 125-127) ORIGIN, reasons; general application 269 fixing firmly in his mind the reasons which gave them birth can, if gifted with a moderate knowledge of navigation and ship construction, think them out for himself. (1) The first of these principles is that the less manage- able type of vessel is privileged as regards the more man- ageable, and the latter has the burden of avoiding her. For example, sailing vessels are favored as against steamers, an- chored vessels as against moving vessels, and vessels close- hauled as against vessels with a free wind. (2) Other things being equal, the rule of the road at sea is the same as on land ; and the endeavor of these naviga- tion rules is to make vessels, wherever possible, always pass to the right, like two vehicles on a public road. (3) The rules are only intended to apply when vessels are approaching each other in such directions "as to involve risk of collision." A detailed examination of the rules will show that this qualifying phrase is embodied in nearly ev- ery one of them. The mere fact that vessels are in sight of, or near, each other, navigating the same waters, does not bring these enactments into play. If their courses are par- allel, and sufficiently far apart to clear with a safe margin, or if they are divergent, there is no need for rules of nav- igation, just as there is no need for rules of construction when the language is too plain to need construction. Risk of Collision In the language of Justice Clifford in the Dexter, 1 the rules are obligatory if the vessels are approaching in such directions as involve risk of collision on account of their proximity from the time the necessity for precaution be- gins. In the Milwaukee, 2 it is said : "Risk of collision begins the very moment when the two vessels have approached §§ 125-127. i 23 Wall. 69, 23 L. Ed. 84. 2 1 Brown, Adm. 313, Fed. Cas. No. 9,626. See, also, Philadelphia (D. C.) 199 Fed. 299, affirmed 207 Fed. 936, 125 C. C. A. 384. There is no risk of collision when the vessels have reached an understand- 270 STEERING AND SAILING RULES (Ch. 12 so near each other, and upon such courses, that, by depar- ture from the rules of navigation, whether from want of good seamanship, accident, mistake, misapprehension of signals, or otherwise, a collision might be brought about. It is true that prima facie each man has a right to assume that the other will obey the law. But this does not jus- tify either in shutting his eyes to what the other may ac- tually do, or in omitting to do what he can to avoid an accident made imminent by the acts of the other. I say the right above spoken of is prima facie merely, because it is well known that departure from the law not only may, but does, take place, and often. Risk of collision may be said to begin the moment the two vessels have approached each other so near that a collision might be brought about by any such departure, and continues up to the moment when they have so far progressed that no such result can ensue." The preliminary to the steering rules gives one test by which to determine whether risk of collision exists. It is that the compass bearing of the approaching vessel does not change. If their courses are parallel, a sharp angle at a distance becomes larger as they approach, and, converse- ly, if the angle remains constant, their courses must be converging. 3 SAIL VESSELS 128. Which of two sailing vessels approaching each other so as to involve risk of collision must keep out of the way of the other is determined by their respec- tive courses and situations, with reference to the direction of the wind and their relative positions. ing by signals, or are moving on courses that would take them clear by a safe margin. Lake Erie Transp. Co. v. Gilchrist Transp. Co., 142 Fed. 89, 73 C. C. A. 313 ; Libra, 6 P. D. 139. s George W. Roby, 111 Fed. 601, 49 C. C. A. 481 ; President Lin- coln, [1911] P. 248. § 128) SAIL VESSELS 271 Sail vessels approaching each other so as to involve risk of collision regulate their movements as follows: (a) A vessel which is running free shall keep out of the way of a vessel which is closehauled. This is because she is more manageable. The wind is free when the vessel could shape her course still further to windward. Thus : c A A must keep out of the way of B. 4 (b) A vessel which is closehauled on the port tack shall keep out of the way of a vessel which is closehauled on the starboard tack. When a vessel is on the port tack, her sails swing over the starboard side, the wind being on her port side, and vice versa. Hence this rule is based on the prin- ciple of turn to the right. The vessel closehauled on the starboard tack cannot turn to the right, as the wind is on that side; therefore the other one must. Thus: § 12S. •* William Churchill (D. C.) 103 Fed. 690 ; Metamora, 144 Fed. 936, 75 C. C. A. 576; Martha E. Wallace (D. C.) 148 Fed. 94. 272 STEERING AND SAILING RULES (Ch. 12 A must keep out of the way. 5 (c) When both are running free, with the wind on differ- ent sides, the vessel which has the wind on the port side shall keep out of the way of the other. This also springs from the rule of turn to the right. Thus: w A must keep out of the way, because the wind facilitates her porting or turning to the right, and interferes with the other's doing it. 6 We will see later on that, with two steamers as in the dia- gram, the rule is the opposite. B then keeps out of the way, which she can do by porting, and passing astern, as a steamer is independent of the wind. (d) When both are running free with the wind on the same side, the vessel which is to the windward shall keep out of the way of the vessel which is to the leeward. Thus : J> c Ada A. Kennedy (D. C.) 33 Fed. 623 ; Margaret B. Roper (D. C.) 103 Fed. 8S6; Id., Ill Fed. 623, 49 C. C. A. 503; Mary Buhne, 118 Fed. 1000, 55 C. C. A. 404. oRolf, 47 Fed. 220; Id., 50 Fed. 478, 1 C. C. A. 534; Grace Sey- mour (D. C.) 63 Fed. 163. § 129) STEAMERS 273 A keeps out of the way. He has the weather gauge, about which we read so much in naval warfare before the innovation of steamers. This rule is based on the fact that the vessel to wind- ward is the more manageable of the two. 7 (e) A vessel which has the wind aft shall keep out of the way of the other vessel : Thus : ^D A keeps out of the way of B. The reason is that she is more manageable. 8 STEAMERS— THE PORT-HELM RULE 129. Steamers, meeting end on, port their helms, and pass to the right, indicating their intention by one whis- tle each. But, if they are approaching well on each other's starboard bow, they starboard, and pass to the left, each blowing two whistles. The use of sail vessels is becoming more restricted every year, and a vast proportion of the world's commerce is now carried in steamers. For this reason, collisions between steamers constitute the bulk of the cases which now find their way into the courts. 7 Nahor (D. C.) 9 Fed. 213. s Mary Augusta (D. C.) 55 Fed. 343 ; Gov. Ames, 1S7 Fed. 40, 109 C. C. A. 94. Hughes, Adm. (2d Ed.) — 18 274 STEERING AND SAILING RULES (Ch. 12 Article 18 embodies the first and most important rule of those governing steamers. It says that, when two steam vessels are meeting end on, or nearly end on, so as to in- volve risk of collision, each shall alter her course to star- board, so that each may pass on the port side of the other. This is called the "port-helm rule," as it takes a port helm to make a ship move to starboard. Under article 28, the steamer indicates her intention by blowing one short blast of about one second's duration, which is answered by the other steamer, and thus an under- standing is established. Under the old rules 'it was a matter of some doubt how near the steamers must be meeting end on in order to bring this rule into play. The present article in the explanatory paragraph following the navigation rule itself expresses the result of the decisions. If they are moving on courses that, if held, would pass clear, then there is no risk of col- lision, and no rule is necessary. 9 If, however, by day each sees the other's masts in a line with his own, or nearly so, or if by night each sees both side lights of the other, then they are moving right at each other, and each must port, and signify by his one blast that he is porting. 10 If, on the other hand, it is a case of red light to red light, or green light to green light, the rule does not apply. 11 The Lake Rule is the same, except that it has no explana- tory note as to the cases to which the rule applies. But, as that note is a mere affirmation of the decisions, the courts would probably apply it. Both the Lake Rules and the Mississippi Valley Rules, as supplemented by the Supervising Inspectors' Regula- tions, are much influenced by the necessity of allowing for § 129. o City of Macon, 92 Fed. 207, 34 C. C. A. 302 ; Rend, In re (D. C) 126 Fed. 564 ; Esparta, 160 Fed. 289, S7 C. C. A. 413. io Thingvalla, 48 Fed. 764, 1 C. C. A. 87. « Manitoba, 122 U/ S. 97, 7 Sup. Ct. 115S, 30 L. Ed. 1095; Wrest- ler (D. C.) 198 Fed. 583. § 129) STEAMERS 275 the effect of the current on ease of navigation. It is a gen- eral principle that a boat moving against the current is more manageable than one moving with it, and that the latter should have the greater rights. 12 The Inland Rules, so far as they apply to steamers, go into much more detail than the International Rules. The one corresponding to the port-helm rule expressly provides that vessels meeting so far on each other's starboard side as not to be considered head and head may give two blasts, and starboard. The port-helm rule may be illustrated thus : s v C A V --^ ^ — < B *) \ The starboard-helm rule may be illustrated thus : 13 c A The Inland Rules contain other provisions under this ar- ticle not found in the International Rules. For instance, rule 3, under this article, provides that, if either of two ap- proaching vessels fails to understand the course or inten- 12 Galatea, 92 U. S. 439, 23 L. Ed. 727; Jamestown (D. O.) 114 Fed. 593 ; Lake Shore (D. C.) 201 Fed. 449; Diana, [1894] A. O. 625. is James Bowen, 10 Ben. 430, Fed. Cas. No. 7,192; Ogdensburgh, 5 McLean, 622, Fed. Cas. No. 17,158. 276 STEERING AND SAILING RULES (Ch. 12 tion of the other, he shall signify it by giving several short and rapid blasts, not less than four, of his steam whistle. 14 These are called the "danger signals," and are usually the last despairing wail before the crash. No such provision is contained in the International Rules, though it is a well- established practice among mariners. Lake Rule 26 pre- scribes substantially the same rules as to signaling as the above. Rule 5 of the Inland Rules, in the same article, requires steamers, before rounding bends in a river or channel where the view is cut off, to blow one long whistle as a warning, and requires the same signal from vessels leaving a dock. In crowded harbors, or much frequented channels of navi- gation, this is an important precaution, and many cases have arisen under it. 15 Rule 8 regulates overtaking vessels. It corresponds to International Rule 24, and will be discussed in that connec- tion. Rule 9 of the same article provides that the passing sig- nals must only be used by vessels in sight of each other, and able to ascertain each other's course or position. When this is impossible from fog or other cause, then fog signals are used. International Rule 28 also provides that these signals are only to be used by vessels in sight of each other. But Lake Rule 23 requires them to be given "in all weath- ers," which makes it strikingly different from the other rules. The language of International article 18 and of the cor- responding article, rule 1 of the Inland Rules is quite dif- ferent. i*Mahar & Burns (D. C.) 106 Fed. 86; Virginian, 238 Fed. 156, 151 C. C. A. 232. isPekin, [1897] A. C. 532; Gamma (D. C.) 103 Fed. 703; Chicago (D. C.) 101 Fed. 143; Mourne, [1901] P. 68. Winnie, 161 Fed. 10k 88 C. C. A. 265; Bouker No. 2, 254 Fed. 579, 166 C. C. A. 137; M. Moran, 254 Fed. 766, 166 C. C. A. 212. § 130) STEAMERS 277 The International Rule requires that each steamer "shall alter her course to starboard," while the Inland Rule only requires each one to "pass on the port side of the other." Article 28 of the International Rules requires one blast of the whistle when she Ts "directing her course to star- board" ; that is, when she ports. On the other hand, article 18, rule 1, of the Inland Rules, requires one blast as an indication of the intent of each vessel to "pass on the port side of the other," which may, but does not necessarily, involve porting the helm. Hence the whistles do not mean the same thing in the two sets of rules. 16 SAME— THE CROSSING RULE 130. Of two crossing steamers, the one having the other on her own starboard side must keep out of the way. Article 19 covers the case when two steamers are cross- ing so as to involve risk of collision. In such case the ves- sel which has the other on her starboard side must keep out of the way. Vessels are crossing when they show opposite sides to each other, and are so nearly even that one cannot be con- sidered an overtaking vessel. Thus : A keeps out of the way. This is a modification of the port-helm rule, as the vessels ordinarily pass to the right of each other. The cases under this rule have been numerous. 17 is Lisbonense, 53 Fed. 293, 3 C. C. A. 539. § 130. " Cayuga, 14 Wall. 275, 20 L. Ed. 828; E. A. Packer, 140 U. S. 360, 11 Sup. Ct. 794, 35 L. Ed. 453 ; BREAKWATER, 155 U. S. 278 STEERING AND SAILING RULES (Ch. 12 The difficulty in applying- this rule has usually arisen in drawing the line between a crossing vessel and an overtak- ing vessel. In the above-cited case of the Cayuga, the Su- preme Court made it a crossing case where one vessel was abaft the beam of the other. This would hardly seem to be correct. The line between an overtaking vessel and a cross- ing vessel is the range of the side lights ; that is, any vessel two points or less abaft the beam is a crossing vessel, any vessel more than two points abaft the beam is an overtaking vessel. 18 This is adopted as the test in article 24, and therefore the decision in the Cayuga Case is not law now, if it ever was. In a winding river it is frequently difficult to say whether two ships are crossing or not. In such case the question is determined, not by the accidental bearing, but by the gen- eral channel course. 10 Any regulation made by the inspectors contrary to this rule is invalid. 20 STEAM AND SAIL 131. A steamer must keep out of the way of a sail vessel. In doing so she must allow the sail vessel a wide berth. Article 20 regulates their relations, and provides that, when a steam vessel and a sail vessel are proceeding in such directions as to involve risk of collision, the steam vessel shall keep out of the way of the sailing vessel. 252, 15 Sup. Ct. 99, 39 L. Ed. 139 ; Senator Rice, 223 Fed. 524, 139 C. C. A. 72 ; Albano, [1907] A. C. 193 ; Fancy, [1917] P. 13. is Auranla (D. C.) 20 Fed. 99. is Velocity, L. R. 3 P. C. 44; Pekin, [1S07J A. C. 532; L. C. Waldo, 100 Fed. 502, 40 C. C. A. 517. 20 Pawnee (D. C.) 168 Fed. 371; James A. Walsh (D. C.) 194 Fed. 549. § 131) STEAM AND SAIL 279 This rule is based upon the greater handiness of steam- ers, which are independent of wind and tide, and can move backwards, if necessary. It often looks like a hard rule, as the smallest oyster pungy can block the narrow channel available to an ocean steamer. As it is based upon the greater mobility of the steamer, the courts have not always enforced it rigidly when such mobility did not exist. For instance, a tug and tow, though, .in the eye of the law, one vessel, and that a steamer, are often less manageable than a sail vessel. The tug cannot back, and, if her tow is large or unwieldy, cannot turn around except slowly. She is less manageable in fact than a sail vessel with a free wind, and hence the courts have more than once held the sail vessel in exceptional circumstances is required to do something. 21 The question would turn on the degree of her embar- rassment, with the presumptions against the tug, for ex- ceptions to the rules must be introduced with great cau- tion. 22 A steamer may take her own method of passing a sail vessel. The mere approach of the two vessels does not bring about risk of collision. The steamer may assume that the sail vessel will do her duty, and do nothing to em- barrass her. Hence the steamer may shape her course so as to avoid the sail vessel, and then go along at her ordinary speed under the assumption that the sail vessel will not in- terfere with her. If the steamer's course is such that it does not converge, she can go along without making any change. 23 § 131. 2i Marion W. Page (D. C) 36 Fed. 329; Minnie C. Taylor (D. C.) 52 Fed. 323 ; Rose Culkin (D. C.) 52 Fed. 328. 22 Marguerite (D. C.) 87 Fed. 953; Mary A. Bird (D. C.) 102 Fed. 648 ; Julia A. Trubee (D. G.) 136 Fed. 486 ; Id., 144 Fed. 1021, 74 C. C. A. 680; Warrior, L. R. 3 A. & E. 553; American, L. R. 6 P. C. 127. 2s Scotia, 14 Wall. 181, 182, 20 L. Ed. 822; Free State, 91 U. S. 200, 23 L. Ed. 299 ; Illinois, 103 U. S. 298, 26 L. Ed. 562 ; Donnell v. Boston Towboat Co., 89 Fed. 757, 32 C. C. A. 331. 280 STEERING AND SAILING RULES (Ch. 12 This rule that vessels may each assume that the other will obey the law is one of the most important in the law of collision. Were it otherwise, and were vessels required to take all sorts of measures to keep out of the way when they are not in each other's way, navigation would be impossible. It is like the land negligence rule that an engineer need not stop his train on seeing some one on the track, but may assume that he will have intelligence enough to get off. Rules more rigid would break up traffic by land or sea. There is, however, one important qualification which must be borne in mind. It is that a steamer must not ap- proach so near a sailing vessel, and on such a course, as to alarm a man of ordinary skill and prudence. If the man on the sailing vessel makes an improper maneuver, he is not responsible. It is what is called an "error in extremis." It is difficult to lay down any rule defining how close a steamer may run to a sail vessel without infringing this rule, as it depends on the width of the channel and many other special circumstances. It depends largely on the course she is steering. If that course is parallel, and so far off that she is showing only one side light to the schooner, then she is all right; for any mariner of average intelli- gence knows that in such case the vessels will not strike if each keeps his course, and therefore has no right to lose his head. The leading case on the subject is the LU- CILLE. 24 In that case a steamer and schooner were ap- proaching on converging courses only half a point apart, so that they would have come within thirty yards of each other, and that in Chesapeake Bay. The court held that this was too close, and condemned the steamer. The re- port does not tell how the lights showed, but, if their cours- es were only half a point apart, this would make each see both side lights of the other, and indicate that they were coming end on. 25 24 15 Wall. G79, 21 L. Ed. 247. 26 Fannie, 11 Wall. 238, 20 L. Ed. 114. § 132) PRIVILEGED VESSELS 281 Another interesting case on this subject is the Chatham. 26 There a schooner going down the Elizabeth river saw an ocean steamer approaching, which showed only her red light (indicating a parallel course) until 50 or 75 yards off, when she showed both, indicating a course straight for the schooner. This alarmed the men on the schooner, and they starboarded, and thereupon the vessels struck. The court held that the steamer, having plenty of room, was in fault for running so close, and that the act of the schooner, if wrong, was an error in extremis. 27 The test laid down in this case is that the proximity of the steamer, and her course and speed, must be such that a mariner of ordinary firmness and competent knowledge and skill would deem it necessary to alter his course to make the vessels pass in safety. If, therefore, the steamer, though running close, shows by her lights that her course is not converging, she is with- in the law, and the other vessel must assume that she will stay within the law and navigate accordingly. 28 PRIVILEGED VESSELS 132. A vessel having the right of way must keep her course and speed, and the other vessel may assume that she will do so. By article 21, when by any of these rules one of two ves- sels is to keep out of the way, the other must keep her course and speed. This renders it obligatory on the vessel which has the right of way to pursue her course at the speed which she had been keeping up previously. She must 2 6 52 Fed. 396, 3 C. C. A. 161. 27 See, as further illustrations, E. Luckenbach, 93 Fed. S41, 35 C. C. A. 628 ; Paoli, 92 Fed. 944, 35 C. C. A. 97 ; Delmar (D. C.) 125 Fed. 130 ; Bonnah v. Lakeside S. S. Co., 221 Fed. 40, 136 C. C. A. 566. 2 8 Gate City (D. C.) 90 Fed. 314. See, also, Merchants' & Miners' Transp. Co. v. Hopkins, 108 Fed. 890, 48 C. C. A. 128. STEERING AND SAILING RULES (Ch. 12 rely on the other vessel to avoid the collision, and not embarrass her by any maneuver. All she need do is to do nothing. Then the other vessel knows what to expect, and navigates accordingly. This rule applies to all the other steering and sailing rules. Under it, when the sail vessel running free keeps out of the way, the closehauled vessel keeps her course. Be- tween two crossing steamers, when the one on the left keeps out of the way, the other keeps her course. Between a steamer and a sail vessel, when the steamer keeps out of the way, the sail vessel keeps its course. The principle is the same in all these different contingen- cies. It may be illustrated by one or two decisions. In the BRITANNIA, 29 which was a collision in New York harbor, the steamer Beaconsfield had the right of way over the Britannia, under the crossing rule. The Britan- nia failed to keep out of the way, and thereupon the Bea- consfield stopped and reversed. The Supreme Court held that she should have kept her course, and was in fault for stopping and reversing. 30 In the BREAKWATER, 31 which also was a crossing case, the privileged vessel did keep on, and the court held that she did right. In collisions between steam and sail vessels the steamer's defense is usually that the sail vessel changed her course. 32 Beating out a tack and then coming about where neces- § 132. 29 153 u. S. 130, 14 Sup. Ct. 795, 38 L. Ed. 660. See, also, Northfield, 154 U. S. 629, 14 Sup. Ct. 1184, 24 L. Ed. 680; Texas, 19S Fed. 482, 117 C. C. A. 566; Howard v. The City of New York, 211 Fed. 882, 128 G. C. A. 260; Yang-Tsze Ins. Ass'n v. Fumess, Withy & Co., 215 Fed. 859, 132 C. C. A. 201. 30 New York, 175 U. S. 187, 20 Sup. Ct. 67, 44 L. Ed. 126; Mexico, 84 Fed. 504, 28 C. C. A. 472. 3i 155 U. S. 252, 15 Sup. Ct. 99, 39 L. Ed. 139. 32 Adriatic, 107 U. S. 512, 2 Sup. Ct. 355, 27 L. Ed. 497 ; Marguerite (D. C.) 87 Fed. 953 ; Gate City (D. C.) 90 Fed. 314. § 133) CROSSING AHEAD 283 sary is not a change of course. 33 Nor are slight fluctua- tions in the general course of the sailing vessel. 34 A vessel which has the right of way under any of these rules is usually designated the "privileged vessel." But keeping the course is an obligation as well as a privilege; and such vessel cannot change her course on a mere appre- hension of danger. 35 The corresponding Mississippi Valley Rule is rule 23 (Rev. St. § 4233), which says that the privileged vessel must keep her course, and says nothing as to speed. It is likely, however, that the courts will hold it to mean sub- stantially what the others mean. In fact, under the strong intimation of the Supreme Court in the BRITANNIA, su- pra, it certainly means that she must keep some speed, even if it does not mean that she must keep her previous speed. 88 CROSSING AHEAD 133. The burdened vessel must avoid crossing ahead of the other, if practicable. Rule 22 requires every vessel which is directed to keep out of the way to avoid crossing ahead, if circumstances admit. This was long a practice of seamen, "Never cross the bow when you can go astern," but was for the first time made a rule in the rules of 1890. The Inland Rules have the same provision, but not the Lake Rules or Mississippi Valley Rules. 37 S3 Empire State, 1 Ben. 57, Fed. Cas. No. 17,586; Coe F. Young, 49 Fed. 167, 1 C. C. A. 219. 34 Emily B. Maxwell, 96 Fed. 999, 37 C. C. A. 658; Columbian, 100 Fed. 991, 41 C. C. A. 150. 35 General U. S. Grant, 6 Ben. 465, Fed. Cas. No. 5,320; Europa (D. C.) 116 Fed. 696. se Delaware, 161 U. S. 459, 16 Sup. Ct. 516, 40 L. Ed. 771. 3T As illustrations of this rule, see Zouave, 98 Fed. 747, 39 C. C. A. 258 ; Excelsior (D. C.) 102 Fed. 652 ; Robert Graham Dun, 107 Fed. 284 STEERING AND SAILING RULES (Ch. 12 THE STOP AND BACK RULE 134. The burdened steamer must slacken, stop, or reverse, if necessary, to avoid collision. Article 23 provides that every steam vessel which is di- rected by those rules to keep out of the way of another vessel, shall, on approaching her, if necessary, slacken her speed, or stop or reverse. This rule is radically changed from its old form. Until the revision of 1890, it required every steam vessel, when approaching another vessel so as to involve risk of colli- sion, whether the other had the right of way or not, to re- sort to these maneuvers. The courts, however, had settled that this was not necessary as long as the vessels were mov- ing on such courses that, if each one did his duty, as could be assumed by each, no collision would happen. These au- thorities have been cited in another connection. The pres- ent rules require this maneuver only of the burdened ves- sel, and require the privileged vessel not only to keep her course, but her speed as well. The Mississippi Valley Rules still have the rule in its old form, applying to all steamers, and not simply those re- quired to keep out of the way. This great change in the rule renders it necessary to be circumspect in citing cases arising before the change, as many vessels might have been obliged to stop and back then which would not be required to do so now. A privileged vessel, which stops and backs now, unless at the last moment as a desperate effort to avert certain collision, would commit a fault, instead of obeying the law. 38 994, 47 C. C. A. 120 ; Thomas B. Garland (D. C.) 110 Fed. 6S7 ; Ash- ton, [1905] P. 21. § 134. 3 8 Mary Powell, 92 Fed. 40S, 34 G. C. A. 421. § 134) THE STOP AND BACK RULE 285 Under article 28 of the International Rules and Inland Rules, the signal of three short blasts is required to be giv- en as a notification of this action. They mean, "My en- gines are at full speed astern." In the other rules three blasts do not necessarily mean this. 39 The rule has not been carried so far as to require stop- ping or reversing on the mere approach of two steamers, unless there is a continuous converging of their courses and increasing possibility of collision. If they can clear without difficulty by the use of their helms, that is suffi- cient. 40 But where the best chance of avoiding collision is to keep on, it will not be a fault to do so. 41 And it is not required the moment danger arises. A mariner is not supposed to be a lightning calculator, and is allowed a brief space for reflection. 42 The expression "if necessary" does not mean essential, but prudent or expedient, to the mind of a mariner of skill. 43 The effect of the screw on the direction of a ship's move- ment should be thoroughly understood. The screws of most ships are right-handed; that is, they turn when going forward in the direction of the hands of a clock. The effect of this is a tendency to pull the ship's stern to the right, which swings her bow to the left. Hence, independent of wind, tide, or rudder, a propeller ship mov- ing forward would gradually describe a circle to the left. When a vessel backs, her screw turns in the contrary direction, arid that tends to pull her stern to the left and to throw her bow to the right. Hence reversing, if there is 39 As to the application of this rule, see Oporto, [1S97] P. 249; Victory, 168 U. S. 410, 18 Sup. Ct. 149, 42 L. Ed. 519; New York, 175 U. S. 187, 20 Sup. Ct. 67, 44 L. Ed. 126 ; Mourne, [1901] P. 68. 40 Ante, p. 269; Jesniond, L. R. 4 P. C. 1; Rhondda, 8 A. C. 549. 4i Benares, 9 P. D. 16; Mourne, [1901] P. 68. 42 Emmy Haase, 9 P. D. 81 ; Ngapoota, [1S97] A. C. 391. 4 3 Ceto, 14 A. C. 670, 6S9. 286 STEERING AND SAILING RULES (Ch. 12 not sufficient space to kill her headway, may throw her towards the ship which she is trying to avoid. 4 * OVERTAKING VESSELS 135. The overtaking steamer must keep out of the way. Article 24 provides that, notwithstanding anything con- tained in these rules, any vessel overtaking any other ves- sel shall keep out of the way of the overtaken vessel. Under the crossing rule, the test between an overtaking and a crossing vessel has been shown. This rule adopts that test, and makes any vessel more than two points abaft the beam an overtaking vessel, and solves all cases of doubt by treating them as overtaking vessels. The only signals prescribed by the International Rules for this case are the general ones contained in article 28, one blast meaning that the vessel is directing her course to starboard, and two that she is directing her course to port. But the Inland Rules in article 18, rule 8, prescribe special rules for the case. They require the last vessel to blow one blast if she wishes to pass to the right, and the forward one to answer it ; two if she wishes to pass to the left, and the forward one to answer it. If the pilot of the front steamer thinks that they cannot safely pass, he an- swers the signal of the other steamer by several short blasts, whereupon the second steamer must wait until the forward steamer gives the assenting signal ; and the for- ward steamer must not crowd upon the overtaking one. The Lake Rules and Mississippi Valley Rules have sub- stantially the same provisions on the subject. The over- taking vessel must pass at a sufficient distance to avoid dan- ** For a fuller explanation of this, see Marsden on Collision, 418- 416 ; Aurania (D. C.) 29 Fed. 98, 121 ; Normandie (D. C.) 43 Fed. 151, 159. §135) OVERTAKING VESSELS 287 ger of suction. She is in fault if collision is caused by her running too close. 45 While the overtaken steamer must keep her general course, and the second steamer may so assume, yet if the first has exchanged signals with another boat which she is meeting, and is changing her course to conform thereto, the steamer overtaking her must take note of this change, and regulate her navigation accordingly. 46 The overtaking steamer may assume that the first steam- er will navigate according to the rule. 47 The overtaking steamer, as she is passing, must not try to cut across in front too quickly. If she does, and ren- ders collision inevitable, the other should back; not by virtue of the stop and back rule, as that does not apply to her, being the privileged vessel, but by virtue of the gen- eral prudential rule, 48 or the precaution rule. 49 On the other hand, the overtaken vessel must keep her course and speed, and must not crowd on the overtaking vessel or hamper her movements. 50 If she willfully obstructs the overtaking vessel, she will be held solely in fault, though there may have been some carelessness on the part of the overtaking vessel. 61 § 135. 45 City of Brockton (O. C.) 42 Fed. 928 ; Ohio, 91 Fed. 547, 33 C. C. A. 667 ; Queen City (D. C.) 189 Fed. 653 ; Cambria S. S. Co. v. Pittsburgh S. S. Co., 212 Fed. 674, 129 C. C. A. 210, 51 L. R. A. (N. S.) 966. 4 6 Whiteash (D. C.) 64 Fed. 893. 47 Long Island R. Co. v. Killien, 67 Fed. 365, 14 C. C. A. 418. 48 int. art. 27. 49 Int. art. 29 ; Willkommen (D. C.) 103 Fed. 699. bo J. G. Gilchrist, 183 Fed. 105, 105 C. C. A. 397 ; Spencer v. Dalles P. & A. Navigation Co., 188 Fed. 865, 110 C. C. A. 499; James L. Morgan, 225 Fed. 34, 140 C. C. A. 360. 6i Gaffner v. Pigott, 116 Fed. 4S6, 54 C. C. A. 641. 288 RULES AS TO NARROW CHANNELS, ETC. (Ch. 13 CHAPTER XIII RULES AS TO NARROW CHANNELS, SPECIAL CIRCUMSTANC- ES, AND GENERAL PRECAUTIONS 136. The Narrow Channel Rule. 137. The General Prudential Rule, or Special Circumstance Rule. 138. Sound Signals. 139. The General Precaution Rule. 140. Lookouts. 141. Anchored Vessels. 142. Wrecks. 143. The Stand-by Act. THE NARROW CHANNEL RULE 136. In narrow channels each steamer must keep to the right-hand side. Article 25 provides that in narrow channels every steam vessel shall, when it is safe and practicable, keep to that side of the fairway or mid-channel which lies on the star- board side of such vessel. This is really a branch of the port-helm rule. The latter rule applies when the vessels are meeting end on, no mat- ter whether they are in a harbor or a narrow channel, no matter whether they are following a channel or crossing it. The starboard-hand rule emphasizes this duty as to narrow channels. It means that each must keep along its own right-hand side, no matter how the relative bearings may be from sinuosities or other causes. 1 This rule was added to the inland rules by the act of June 7, 1897, though it had been in the International Rules § 136. i VICTORY, 168 U. S. 410, 18 Sup. Ct. 149, 42 L. Ed. 519 ; Arrow, 214 Fed. 743, 131 C. C. A. 49 ; Hokendaqua, 251 Fed. 562, 163 C. C. A. 556. § 136) THE NARROW CHANNEL RULE 289 since the revision of 1885. The courts, however, are rigid in enforcing it. The Spearman - arose on the Danube, under a local rule substantially similar. The descending vessel took the left bank, and was held in fault for a collision with an ascend- ing vessel, though the absence of lights on the latter might have contributed to the accident. The Pekin 3 was a collision case in the river Whang Poo, in China, at a point where there was a sharp bend. The Normandie, in descending, kept to the starboard side, and the Pekin was ascending. This threw the Pekin on the Normandie's starboard bow on account of the bend, and she therefore claimed that it was a crossing case, and that un- der rule 19 she had the right of way. The House of Lords, however, held that the course must be judged, not by the accidental bearing at a bend, but by the general channel course, and that the Pekin was to blame for cutting across to the Normandie's side. Another interesting English case in which the rule was applied was the Oporto. 4 In the Spiegel, 5 Judge Coxe applied the rule to a colli- sion on the Erie Canal at night, placing the responsibility on a boat which was on the wrong side. The rule applies in fogs as well as in clear weather. 6 What Constitutes a Narrow Channel This is not easy to define. In the leading case of the RHONDDA, 7 the House of Lords held that the Straits of Messina were included in the term, and in the Leverington 8 2 10 A. C. 276. s [1S97] A. C. 532. 4 [1S97] P. 249. » (D. C.) 84 Fed. 1002. e Yarmouth (D. C.) 100 Fed. 667; Newport News, 105 Fed. 3S9, 44 C. C, A. 541. 7 8 A. C. 549. s 11 P. D. 117. Other illustrations from the English decisions : Clydach, 5 Asp. M. C. 336 (Falmouth entrance) ; Whitlieburn, 9 Asp. Httgiies.Adm.(2d Ed.) — 19 290 RULES AS TO NARROW CHANNELS, ETC. (Ch. 13 it was held that the Cardiff Drain, where it joins the en- trance channel to the Roath Basin, came within the desig- nation. In Occidental & O. S. S. Co. v. Smith, 9 it was held to in- clude the entrance to San Francisco harbor. So with Prov- idence river. 10 As the only object of the rule is to avoid collision, the common sense of the matter would seem to be that, as it does not apply to all channels, but only to narrow channels, a channel is not narrow, in the sense of the term, unless vessels approaching each other in it are compelled to ap- proach on such lines as would involve "risk of collision" in the sense of the navigation rules. If it is wide enough to permit two steamers to pass at a safe distance without the necessity of exchanging signals, the rule would not apply ; and it would be idle to require two steamers to cross to the other side. But if it is so narrow by nature, or so narrowed by anchored vessels or other causes, as to bring approaching steamers on lines in dangerous proximity, and require inter- change of signals, then the rule would apply. It does not apply to harbor navigation. Steamers mov- ing about promiscuously in harbors, often from one point to another on the same side, are not expected to cross back- wards and forwards in the attempt to observe the rule. 31 It will be observed that this rule is very cautiously word- M. C. 154 (Scheldt at Antwerp); Glengariff, [1905] P. 106 (Queens- town harbor entrance) : Kaiser Wilhelm der Grosse, [1907] P. 259 (Cherbourg harbor entrance). » 74 Fed. 261, 20 C. C. A. 419. io Berkshire, 74 Fed. 906. 21 C. C. A. 169. Other illustrations from American decisions: Acilia (D. C.) 108 Fed. 97."» ; Id., 120 Fed. 135, 56 C. C. A. 605 (Brewerton channel); Maling (D. C.) 110 Fed. 227, 237 (Cherry Island channel in the Delaware); Dauntless (D. C.) 121 Fed. 420; Id., 129 Fed. 715, 64 C. C. A. 243 (Mokelumne river) ; Vera (D. C.) 224 Fed. 998 ; Id., 220 Fed. 369, 141 C. C. A. 199 (President Roads). ii Islander, 151' Fed. 385, 81 C. C. A. 511; No. 4, 161 Fed. 847, 8S C. C. A. 665; Wr< stler, 232 Fed. 448, 146 C. C. A. 442. § 137) THE GENERAL PRUDENTIAL RULE 291 ed. It only applies when it is "safe and practicable," and it only requires the "ship to keep to the right of the fair- way or mid-channel." This means the water available for navigation at the time. For instance, if half of a narrow- channel was obstructed by anchored vessels, the "fairway or mid-channel" would mean the part still unobstructed, and require the vessel to keep on her half of the channel still remaining, though that was not on the starboard side of the ordinary navigable channel. It would not be "safe and practicable" to do otherwise. 12 Neither the Lake Rules nor the Mississippi Valley Rules contain this provision, but they have their own rules for narrow channels, the substance of which is that the boat with the current has the right of way. In the Lake Rules she must give the first signal, but in the Mississippi Valley Rules the ascending steamer does so. But under the Mississippi Valley Rules the courts re- quire each boat to keep to the right side as a matter of careful navigation. 13 THE GENERAL PRUDENTIAL RULE, OR SPECIAL CIRCUMSTANCE RULE 137. The general prudential rule, or special circumstance rule, allows departure from the other rules, but only in extreme cases. Article 27 provides that in obeying and construing these rules due regard shall be had to all dangers of navigation and collision, and to any special circumstances which may 12 On the meaning of these words, see Smith v. Voss, 2 Hurl. & N. 97: RHONDDA, 8 A. C. 549; Clydach, 5 Asp. 336; Leverington, 11 P. D. 117; Oliver (D. C.) 22 Fed. 849; Blue Bell, [1895] P. 242; Glengariff , [1905] P. 106 ; Clutha Boat 147, [1909] P. 36 ; Turquoise, [1908] P. 148. is Jakobsen v. Springer, S7 Fed. 948, 31 C. C. A. 315; Albert Dumois, 177 U. S. 240. 20 Sup. Ct. 595, 44 L. Ed. 751. 292 RULES AS TO NARROW CHANNELS, ETC. (Ch. 13 render a departure from the above necessary in order to avoid immediate danger. In the multitude of possible situations in which vessels may find themselves in relation to each other, there are nec- essarily occasional cases in which obstinate adherence to the rule would cause collision, when disregard of it might prevent it. This rule is made for such cases. These excep- tional circumstances usually arise at the last moment, so that this rule has well been designated the rule of "sauve qui peut." It cannot be used to justify violations of the other rules, or to operate as a repeal of them. The certain- ty resulting from the enforcement of established rules is too important to be jeopardized by exceptional cases. Any rule of law, no matter how beneficial in its general opera- tion, may work occasional hardship. Hence the courts lean in favor of applying the regular rules, and permit departure from them only in the plainest cases. The principle which governs such cases existed and was applied long before it was enacted in the present rule. It is well expressed by Dr. Lushington in the John Buddie, 14 where he said : "All rules are framed for the benefit of ships navigating the seas, and, no doubt, circumstances will arise in which it would be perfect folly to attempt to carry into execution every rule, however wisely framed. It is at the same time of the greatest possible importance to adhere as closely as possible to established rules, and never to allow a deviation from them unless the circumstances which are alleged to have rendered such deviation necessary are most distinctly proved and established ; otherwise ves- sels would always be in doubt and doing wrong." In the Khedive, 15 two vessels were approaching each oth- er green light to green light, when suddenly one ported, thereby establishing risk of collision. The captain of the § 137. i<5 Notes of Cases, 387. 15 5 A. C. 870. For a somewhat similar rase, see the Kingston (D. C.) 1?:: Fed. 902. § 137) THE GENERAL PRUDENTIAL RULE 293 other starboarded, under the belief that this would bring the vessels parallel, and at least ease the blow. He did not reverse, as required by rule 23 as then worded. It was con- tended for him that he was justified under the special cir- cumstances, hut the House of Lords held that the stop and back rule governed, and that this rule could not be invoked to excuse noncompliance with the stop and back rule. In the Benares, 16 a vessel saw a green light a little on her port bow. When they came close together, she saw the port side, but no red light where it should have been. She thereupon starboarded, and went full speed ahead, instead of backing and reversing. The court held that it was an exceptional case, governed by the general prudential rule, and that she had done right; and that a departure is justi- fied when it is "the one chance still left of avoiding danger which otherwise was inevitable." 17 The American courts have been equally reluctant to ad- mit exceptions. In the Clara Davidson, 18 the court said : "But I do not find myself at liberty to ignore the inquiry whether a statutory rule of navigation was violated by the schooner. Those rules are the law of laws in cases of col- lision. They admit of no option or choice. No navigator is at liberty to set up his discretion against them. If these rules were subject to the caprice or election of masters and pilots, they would be not only useless, but worse than use- less. These rules are imperative. They yield to necessity, indeed, but only to actual and obvious necessity. It is not stating the principle too strongly to say that nothing but imperious necessity, or some overpowering vis major, will excuse a sail vessel in changing her course when in the presence of a steamer in motion ; that is, obeying the duty resting upon it or keeping out of the way. If the statutory rules of navigation were only optionally binding, we should ifi 9 P. D. 16. See, also, Allan & Flora, 14 L. T. (N. S.) 860. 17 See, also, Mourne, [1901] P. 68; Test, 5 Notes of Cases, 276. is (D. C.) 24 Fed. 763. 294 RULES AS TO NARROW CHANNELS, ETC. (Ctl. 13 be launched upon an unbounded sea of inquiry in every col- lision case, without rudder or compass, and be at the mercy of all the fogs and mists that would be made to envelop the plainest case, not only from conflicting evidence as to the facts, but from the hopelessly conflicting speculations and hypotheses of witnesses and experts as to what ought to or might have been done before, during, and after the event. The statutory regulations that have been wisely and char- itably devised for the governance of mariners furnish an admirable chart by which the courts may disentangle them- selves from conflicting testimony and speculation, and ar- rive at just conclusions in collision cases." In the BREAKWATER, 19 where, in a crossing case, the privileged vessel kept her course and speed, and was attacked because she did not reverse, the court said : "Where rules of this description are adopted for the guid- ance of seamen who are unlearned in the law, and unaccus- tomed to nice distinctions, exceptions should be admitted with great caution, and only when imperatively required by the special circumstances mentioned in rule 24, which mav exist in any particular case, rendering a departure from them necessary in order to avoid immediate danger. The moment the observance or nonobservance of a rule becomes a matter of doubt or discretion, there is manifest danger, for the judgment of one pilot may lead him to observe the rule, while that of the other may lead him to disregard it. The theory of the claimant that a vessel at rest has no right to start from her wharf in sight of an approaching vessel, and thereby impose upon the latter the obligation to avoid her. is manifestly untenable, and would impose a wholly unnecessary burden upon the navigation of a groat port like that of New York. In the particular case, too, the sig- nals exchanged between the steamers indicated clearly that the Breakwater accepted the situation and the obligation i»155 U. S. 252, 15 Sup. Ct. 00, 39 L. Ed. 139. § 137) THE GENERAL PRUDENTIAL RULE 295 imposed upon her by the starboard-hand rule, and was bound to take prompt measures to discharge herself of such obligation." In the Non Pareille, 20 the court said: "There is no such thing as a right of way to run into unnecessary collision. The rules of navigation are for the purpose of avoiding col- lision, not to justify either vessel incurring a collision un- necessarily. The supreme duty is to keep out of collision. The duties of each vessel are defined with reference to that object, and, in the presence of immediate danger, both, un- der rule 24, are bound to give way, and to depart from the usual rule, when adherence to that rule would inevitably bring on collision, which a departure from the rules would plainly avoid." It is plain, therefore, that he who disregards the regular rules, and appeals to this one, shoulders a heavy burden. He is like the whist player who fails to return his partner's trump lead. He may be able to justify it, but explanations are in order. 21 As vessels maneuvering around slips are not on regular >urses, their navigation is usually governed by this rule. 22 Collisions due to extinguishing the lights of vessels under governmental orders during war come under this rule. 23 20 (D. C.) 33 Fed. 524. See, also, Hercules, 51 Fed. 452 ; Mauch Chunk, 154 Fed. 182, S3 C. C. A. 276 ; John I. Clark (D. C.) 199 Fed. 981. siJakobsen v. Springer, 87 Fed. 948, 31 C. C. A. 315; Albert Dumois, 177 IT. S. 240, 20 Sup. Ct. 595, 44 L. Ed. 751; Concordia, L. R. 1 A. & E. 93. 22 Transfer No. 17, 254 Fed. 673, 166 C. C. A. 171; M. Moran, 254 Fed. 766, 166 C. C. A. 212. 23 Algol, [1918] P. 7; Hydra, [1918] P. 78. 296 RULES AS TO NARROW CHANNELS, ETC. (Ch. 13 SOUND SIGNALS 138. A steamer must indicate to other vessels in sight the course taken by her, by giving sound signals. Article 28 prescribes these, but they have been explained in a previous connection, and need not be repeated. THE GENERAL PRECAUTION RULE 139. Proper precautions, other than those required by the rules, are not to be neglected. Article 29 provides that nothing in these rules shall ex- onerate any vessel, or the owner or master or crew thereof, from the consequences of any neglect to carry lights or sig- nals, or of any neglect to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen or by the special circumstances of the case. This rule is intended as a supplement for the other rules, not as a substitute for them. It covers many cases not ex- pressly included in the other rules. SAME— LOOKOUTS 140. The law is rigid in requiring a competent lookout, charged with that sole duty. A common instance is the necessity of a lookout. Both the English and American courts have said as emphatically as language can express it that vessels must have a com- petent lookout stationed where he can best see, and that he must be detailed to that sole duty. Neither the master nor helmsman, if engaged in their regular duties, can act as such, for they have troubles enough of their own. A good English illustration is the Glannibanta. 24 § 110. 24i p. d. 283. § 140) THE GENERAL PRECAUTION RULE 297 In Clyde Nav. Co. v. Barclay, 25 the steamer, which was on her trial trip, was in charge of a pilot, but an officer also was on the bridge, and there was another man, not proper- ly qualified, on the lookout. The House of Lords held this sufficient, and that the bridge was the proper place for the lookout under the circumstances. The decisions of the American courts have been numer- ous and emphatic. In the MANHASSET, 20 the leading cases on the subject were reviewed, and the difference be- tween the duties of the master and lookout clearly put. In that case a ferryboat crossing Norfolk harbor on a stormy night was condemned for having no one on duty except the master at the wheel. In fact, circumstances may arise where more than one lookout is necessary. Large steamers have been held in fault for not having two, if it appears that objects were not seen as soon as possible. 27 Under some circumstances — as where a vessel is back- ing, or another vessel is overtaking — there should be a look- out astern as well as forward. 28 This rule as to lookouts must not be carried to a reductio ad absurdum. If the approaching vessels see each other an ample distance apart to take all proper steps, then the ob- ject of having a lookout is accomplished, and the absence of a man specially detailed and stationed is a fault not con- tributory, and therefore immaterial. 29 25 1 A. C. 790. 2c (D. C.) 34 Fed. 408. See, also, J. G. Gilchrist (D. C.) 173 Fed. G66 ; Id., 183 Fed. 105, 105 C. C. A. 397 ; Wilbert L. Smith (D. C.) 217 Fed. 981 ; Union S. S. Co. v. Latz, 223 Fed. 402, 138 C. C. A. 638. 27 BELGENLAND, 114 U. S. 355, 5 Sup. Ct. 860, 29 L. Ed. 152; Oregon, 158 U. S. 1S6, 15 Sup. Ct. 804, 39 L. Ed. 943. 2 8 Nevada, 106 U. S. 154, 1 Sup. Ct. 234, 27 L. Ed. 149; Sarmatian (C. C.) 2 Fed. 911 ; Bernicia (D. C.) 122 Fed. SS6. 29 Farragut, 10 Wall. 338, 19 L. Ed. 946 ; Blue Jacket, 144 U. S. 298 RULES AS TO NARROW CHANNELS, ETC. (Ch. 13 The proper station for a lookout is where he can have an unobstructed view. It must be a place unobstructed by the sails, and is usually on the forecastle, or near the eyes of the ship. 30 In the case of steamers, although courts discourage the practice of having the lookout in the pilot house, his proper location is a question of fact, not of law. The dissenting opinion of Chief Justice Taney in Haney v. Baltimore Steam-Packet Co., 31 ' puts the doctrine as follows: "It has been argued that the lookout ought to have been in the bow, and some passages in the opinions of this court in former cases are relied on to support this objection. But the lan- guage used by the court may always be construed with ref- erence to the facts in the particular case of which they are speaking, and the character and description of the vessel. What is the most suitable place for a lookout is obviously a question of -fact, depending upon the construction and rig of the vessel, the navigation in which she is engaged, the climate and weather to which she is exposed, and the hazards she is likely to encounter; and must, like every other question of fact, be determined by the court upon the testimony of witnesses- — that is, upon the testimony of nau- tical men of experience and judgment. It cannot, in the na- ture of things, be judicially known to the court as a mat- ter of law." The courts have ruled that this doctrine applies to all steamers, large ami small, both as to the location of the lookout and the necessity of having a man independent of the master and wheelsman. In the case of tugs it is a rule 371, 12 Sup. Ct. 711, 36 L. Ed. 4C9; HERCULES, 80 Fed. 998, 26 C. C. A. 301; Elk, 102 Fed. GOT. 4L> C. C. A. 598; Columbia (D. 0.) ioi Fed. 105; Fannie Bayden (D. C.) 137 Fed. 280. bo Java, 14 Blatchf. 524, Fed. Cas. No. 7,233; John Pridgeon, Jr. i|>. 0.) 38 Fed. 261 ; Bendo (D. C.) 44 Fed. 139, III; Fedamore, 137 Fed. 844, 70 C. C. A. 342; Prinz Oskar, 219 Fed. 183, L35 C. C. A. 195. 23 How. 292, 16 L. Ed. 5G2. § 141) THE GENERAL PRECAUTION RULE 299 more honored in the breach than in the observance. There is some excuse for it, as the pilot house of the tug is so far forward and so elevated as usually to afford the best view. And, in addition, the stem of a tug being low down in the water, unlike the lofty stems of large vessels, is so wet a place in a heavy sea that a lookout could do no good. Hence the courts, though insisting on their rule even as to tugs, especially in harbor work, and requiring strong proof to sat- isfy them that the want of a special lookout did no harm, are more lenient in such cases than in cases of large steam- ers. The instances in the books where tugs have been con- demned in this respect were cases where the accident was directly traceable to such neglect. 32 SAME— ANCHORED VESSELS 141. When a moving vessel runs into a vessel anchored in a lawful place, with proper lights showing, or a bell ringing, if such lights or bell are required by rule, and with a proper anchor watch, the presumptions are all against the moving vessel, and she is pre- sumed to be in fault, unless she exonerates her- self. The law in relation to collision with anchored vessels can best be classified under this twenty-ninth rule. The pre- sumptions against the moving vessel in such a case are very strong. Practically her only defense is vis major, or inevit- able accident, in the absence of fault on the part of the an- chored vessel. 33 32 City of Philadelphia v. Gavagnin, 62 Fed. 617, 10 C. C. A. 552; George W. Childs (D. C.) 67 Fed. 271. As instances where tugs were hold blameless on this score, see Caro (D. C.) 23 Fed. 734; Bendo (D. C.) 44 Fed. 439; R. R. Kirkland (D. G.) 4S Fed. 760; Blue Jacket, 144 TJ. S. 371. 12 Sup. Ct. 711, 36 L. Ed. 469 ; HERCULES, 80 Fed. 998, 20 C. C. A. 301. § 141. 33 Le Lion (D. C.) S4 Fed. 1011; Minnie (D. C.) 87 Fed. 300 RULES AS TO NARROW CHANNELS, ETC. (Ch. 13 If, however, there is any maneuver by which an anchored vessel, on seeing a collision imminent, can avoid or lighten it, she is required to do so. Sometimes the courts have held anchored vessels in such case required to sheer, or to let out additional chain, if they can do so. 34 Anchoring in Channels How far it is negligent in an anchored vessel to anchor in a channel of navigation is a question of fact depending up- on special circumstances. In the neighborhood of many ports there are designated anchorage grounds, and a vessel anchored in these grounds designated by proper authority is not at fault on the mere score of anchorage. In other places vessels have grounds designated not by any special authority, but by general usage, and in that case, if the ves- sel anchors where it has been customary to anchor, and an- chors in such a way that ample room is left for the passage of vessels, whether by day or night, allowing all necessary margin for the uncertainties of wind or current, it would not be negligent so to anchor. But, if a vessel anchors in a channel of navigation in such a way as to plant herself in the necessary path of passing vessels, so that moving ves- sels in such case come into collision with her, she is liable at least to be held partly in fault for the resulting collision ; and, if it was a matter of nice calculation whether the mov- ing vessel could pass or not, she would be held solely in fault. In the Worthington, 35 a vessel anchored in the St. Clair river where it was customary to anchor, but left ample room for the passage of moving vessels. It was held that she was not to blame on the mere score of her anchorage, but that 780; Id., 100 Fed. 128, 40 C. C. A. 312 ; Europe (D. C.) 175 Fed. 59G : Id., 100 Fed. 475, 111 C. C. A. 307. a* Sapphire, 11 Wall. 104, 20 L. Ed. 127; Clara, 102 U. S. 200, 26 l, Ed. 145; Oliver (D. C.) 22 Fed. 84S ; Clai'ita, 23 Wall. 1, 23 ].. Ed. 14G; Director (D. C.) ISO Fed. 606. = 5 (D. C.) 19 Fed. 836. § 141) • THE GENERAL PRECAUTION RULE 301 the situation imposed upon her increased vigilance in ref- erence to keeping an anchor watch and proper light. The cases of the Oscar Townsend 36 and the Ogemaw 8T were also cases of vessels anchored in the St. Clair river, in which the anchored vessel was held blameless. On the other hand, in the Passaic, 38 a vessel at anchor in the St. Clair river was held at fault, not so much for anchor- ing there as for anchoring herself in such a manner that she could not move or sheer either way, the other boat also be- ing held in fault for running into her. In the S. Shaw, 39 a vessel anchored in the Delaware with- in the range of the lights, which was forbidden by the local statute. She was held at fault. So, in La Bourgogne, 40 a steamer was held in fault for anchoring in New York harbor, in a fog, outside the pre- scribed anchorage grounds. In Ross v. Merchants' & Miners' Transp. Co., 41 certain barges were anchored in such a way as to obstruct the chan- nel, and there was strong evidence also that they did not have up proper lights. The court decided that they were to blame for adopting such an anchorage. This doctrine of obstructing narrow channels has the merit of great antiquity. Article 26 of the Laws of Wisbuy provides: "If a ship riding at anchor in a harbor, is struck by another ship which runs against her, driven by the wind or current, and the ship so struck receives damage, either in her hull or cargo ; the two ships shall jointly stand to the loss. But if the ship that struck against the other might have avoided it, if it was done by the master on purpose, or by his fault, he alone shall make satisfaction. The reason is, that some masters who have old crazy ships, may will- ingly lie in other ships' way, that they may be damnify'd or sunk, and so have more than they were worth for them. On 36 (D. C.) 17 Fed. 93. 39 (D. C.) 6 Fed. 93. 3 7 (D. C.) 32 Fed. 919. 40 SO Fed. 475, 30 C. O. A. 203. 3 8 (D. C.) 76 Fed. 460. 41 104 Fed. 302, 43 C. C. A. 53S. 302 RULES AS TO NARROW CHANNELS, ETC. (Ch. 13 which account this law provides, that the damage shall be divided, and paid equally by the two ships, to oblige both to take care, and keep clear of such accidents as much as they can." These decisions were all rendered independent of statu- tory provision. In the appropriation act of March 3, 1899, Congress made elaborate provisions for the protection of navigable chan- nels, not only against throwing obstructions overboard, but against illegal anchorage. Sections 15 and 16 of that act * 2 provided that it should not be lawful to tie up or anchor vessels or other craft in navigable channels in such a man- ner as to prevent or obstruct the passage of other vessels or craft, and imposed a penalty not only upon the navigator who put them there, but upon the vessel itself. It was not the intent of Congress by this act to forbid vessels absolutely from anchoring in navigable channels. If their draught of water is so great that they can only nav- igate in a channel, it is so great that they can anchor no- where else. At the same time, any great draught and the necessities of the occasion could not be used as an excuse to blockade the channel. The meaning of the act is that vessels are thereby for- bidden from completely obstructing the channel, or so ob- structing it as to render navigation difficult. The language of the act is, "prevent or obstruct." Hence, if a vessel an- chors in a navigable channel, where other vessels had been accustomed to anchor, and anchors in such a way as to leave a sufficient passageway for vessels navigating that chan- nel, she can hardly be held to violate this statute. If she was put there by local authority — as by a local pilot or har- bor master — that would be evidence in her favor to show that she was not guilty of negligence ; but even that would not excuse her for completely obstructing the channel, or so far obstructing it as to render navigation around her diffi- 4-30 Stat. 1152, 1153 (U. S. Comp. St. g§ 9920, 9921); post, p. 489. § 142) THE GENERAL PRECAUTION RULE 303 cult. Neither the vessel herself nor any local authority- can be justified in blockading or rendering it unreasonably difficult. 43 In the City of Reading, 44 a vessel was anchored outside the regular harbor grounds by a pilot — a fact unknown to her officers, as they were strangers in the port. District Judge McPherson held that the vessel was not negligent for such an anchorage under such circumstances. He does not allude to the act of Congress above referred to, although the accident happened on September 18, 1899, six months after the act went into effect. SAME— WRECKS 142. The owner of a vessel sunk in collision is not liable for subsequent damages done by her if he abandons her, but is liable if he exercises any acts of owner- ship. In the latter case he is required to put a bea- con on her at night, and a plain buoy in the day. The reason why an owner who abandons a vessel is not liable for any further damage is that his misfortune is al- ready great enough, and, if he feels that he cannot afford to save his vessel, the courts will not add to his responsibil- ity. Under the federal statutes the government takes 43 Itasca (D. C.) 117 Fed. 885; Northern Queen (D. C.) 117 Fed. 906 ; John H. Starin, 122 Fed. 236, 5S C. C. A. 600 ; Caldy (D. C.) 123 Fed. S02 ; Id., 153 Fed. 837, 83 C, C. A. 19 : Newburgh, 130 Fed. 321, 64 O. C. A. 567; City of Birmingham, 138 Fed. 555, 71 C. C. A. 115; Job H. Jackson (D. C.) 144 Fed. 896; Ann J. Trainer. 152 Fed. 1021, 82 O. C. A. 332; Europe, 190 Fed. 475, 111 C. C. A. 307; Strathleven, 213 Fed. 975, 130 O. C. A. 3S1. i* (D. C.) 103 Fed. 696, affirmed City of Dundee, 108 Fed. 679, 47 C. C. A. 581, on another point. As to the effect of local usages or the acts of local officials, see, also, Severn (D. C.) 113 Fed. 57S; Charles E. Matthews (D. C.) 132 Fed. 143 ; Juniata (D. C.) 124 Fed. S61 : Merritt & Chapman Derrick & Wrecking Co. v. Cornell Steam- boat Co., 185 Fed. 261, 107 C. C. A. 367. 304 RULES AS TO NARROW CHANNELS, ETC. (Ch. 13 charge of abandoned wrecks, and blows them up, or other- wise destroys them ; or, if it does not care to do so, sells the wreck after a certain advertisement, and requires the purchaser to remove them as obstructions from the chan- nel. 45 The law on this subject of the duty of owners of sunken wrecks may be seen from the cases of the Utopia, 46 U. S. v. Hall, 47 and Ball v. Berwind. 48 If the owner, instead of abandoning his wreck, decides to raise her, he is then responsible for any injury done by her from the failure to take proper precaution. In fact, this is one case where there may be a liability even for the acts of an independent contractor. As a gen- eral rule, when an independent contractor is employed to undertake work which an employer can lawfully let out to contract, he alone, and not the owner, is responsible; 49 but, where the act required is a personal duty, then the owner may be responsible, even for the acts of an independent con- tractor. To obstruct a navigable channel without giving proper notice is an act unlawful in itself, just as the obstruc- tion of a highway or street would be under similar circum- stances; and therefore, when the owner of a vessel is hav- ing her raised by an independent contractor, and the con- tractor omits to put proper lights or buoys upon the wreck, the owner also is liable ; and he is liable for any lack of due diligence in raising the wreck. 50 § 142. 45 Act March 3, 1S99, §§ 19, 20, 30 Stat. 1154 (U. S. Comp. St. §§ 0024, 9925). 48 [1803] A. C. 402. 4 7 G3 Fed. 473, 11 C. C. A. 294. 4 8 (D. C.) 29 Fed. 541. 49 Ante, pp. 211, 213. BoSnark, [1899] P. 74; Id., [1000] P. 105; Drill Boat No. 4 (P. C.) 233 Fed. 589; Compare Weinman v. De Palma, 232 U. S. 571. 34 Sup. Ct. 370, 58 L. Ed. 733. But the owner, after having se- cured the services of the Lighthouse Department, is not liahle for 143) THE STAND-BY ACT 305 THE STAND-BY ACT 143. This act requires colliding steamers to stay by each other regardless of the question of fault, on pain of being presumed negligent if they disregard this duty. The act of September 4, 1890, provides as follows: "Be it enacted by the Senate and House of Representa- tives of the United States of America in Congress assem- bled, that in every case of collision between two vessels it shall be the duty of the master or person in charge of each vessel, if and so far as he can do so without serious danger to his own vessel, crew, and passengers (if any), to stay by the other vessel until he has ascertained that she has no need of further assistance, and to render to the other vessel, her master, crew, and passengers (if any) such assistance as may be practicable and as may be necessary in order to save them from any danger caused by the collision, and also to give to the master or person in charge of the other ves- sel the name of his own vessel and her port of registry, or the port or place to which she belongs, and also the name of the ports and places from which and to which she is bound. If he fails so to do, and no reasonable cause for such failure is shown, the collision shall, in the absence of proof to the contrary, be deemed to have been caused by his wrongful act, neglect or default. "Sec. 2. That every master or person in charge of a Unit- ed States vessel who fails, without reasonable cause, to ren- der such assistance or give such information as aforesaid shall be deemed guilty of a misdemeanor, and shall be lia- ble to a penalty of one thousand dollars, or imprisonment its acts or omissions. Plymouth, 225 Fed. 483, 140 C. C. A. 1; Mc- Caulley v. Philadelphia, 119 Fed. 5S0, 56 C. C. A. 100. Hughes, Adm. ( 2oEd. ) — 20 306 RULES AS TO NARROW CHANNELS, ETC. (Ch. 13 for a term not exceeding two years ; and for the above sum the vessel shall be liable and may be seized and proceeded against by process in any District Court of the United States by any person ; one-half such sum to be payable to the in- former and the other half to the United States." 51 " This is a copy of the earlier English act on the same sub- ject, and is intended to prevent a ship, even if faultless her- self, from leaving the other to her fate, and also to give the information necessary as the basis of any proceeding for damages. Presumptions against Violator of Act The act merely raises a presumption in the absence of evidence to the contrary. Hence, if the case is tried on plenary proofs, the act does not do more than shift a nicely- balanced burden of proof. The master may be punished for his inhumanity under the second section, but his innocent owners cannot be mulcted in damages on that account if their vessel was guiltless of contributing to the collision. As Dr. Lushington says in the Queen of the Orwell: 52 "Now for the penalty, or what may be called the penalty : 'In case he fails so to do, and no reasonable excuse for said failure,' it shall be attended with certain consequences which are enumerated in the enactment. The effect of that, I think, is precisely what has been stated — that, supposing such a state of things to occur, there is thrown upon the party not rendering assistance the burden of proof that the collision was not occasioned by his wrongful act, neglect, or default. It does not go further. Assuming this case to come within the provisions of the statute, the proper ques- tion I shall have to put to you is that which I should put if no such statute at all existed: whether this collision was occasioned by the wrongful act, neglect, or default of the steamer.'' § 143. ■' 26 Stat. 125 (U. S. Comp. St. §§ 7970, 79S0). 52 1 Mar. Law ('as. (O. S.) 300. § 143) THE STAND-BY ACT 307 A leading American case on the subject is the HER- CULES. 53 53 80 Fed. 998, 26 C. C. A. 301. See, also, Trader (D. C.) 129 Fed. 462; Luzerne (D. C.) 14S Fed. 133; Id., 157 Fed. 391, 85 C. C. A. 328; Lizzie Crawford (D. C.) 170 Fed. 837. Pitgaveney, [1910] P. 215. In England this presumption of negligence has been repealed by the Maritime Conventions Act 1911, § 4 (2). 308 DAMAGES IN COLLISION CASES (Ch. 14 CHAPTER XIV OF DAMAGES IN COLLISION CASES 144. Recovery Based on Negligence. 145. Inevitable Accident or Inscrutable Fault 146. One Solely in Fault. 147. Both in Fault. 148. Rights of Third Party where Both in Fault. 149. Contribution between Colliding Vessels — Enforcement In Suit against Both. 150. Enforcement by Bringing in Vessel not Party to Suit 151. Enforcement by Independent Suit 152. Measure of Damages. 153. When Loss Total. 154. When Loss Partial. 155. Remoteness of Damages — Subsequent Storm. 156. Doctrine of Error in Extremis. RECOVERY BASED ON NEGLIGENCE 144. Negligence is an essential to recovery of damages in collision cases. The mere happening of a collision does not give rise to a right of action for damages resulting therefrom, except in those cases where, under the navigation rules, one vessel is presumed to be in fault until she exonerates herself. Even in those cases the right of recovery is based, not upon the fact of collision, but upon the presumption of negligence. A collision may happen under any one of several circum- stances. It may arise without fault, it may arise by the fault of either one of the two, or it may arise by the fault of both. The law, as administered in the admiralty courts, is summarized by Lord Stowell in the WOODROP- SIMS. 1 In it he says: § 144. 12 Dod. 83. § 145) INEVITABLE ACCIDENT OR ESTSCRUTABLE FAULT 309 "In the first place, it [collision] may happen without blame being imputable to either party ; as, where the loss is occasioned by a storm, or other vis major. In that case the misfortune must be borne by the party on whom it hap- pens to light ; the other not being responsible to him in any degree. Secondly, a misfortune of this kind may arise where both parties are to blame — where there has been want of due diligence or of skill on both sides. In such a case the rule of law is that the loss must be apportioned be- tween them, as having been occasioned by the fault of both of them. Thirdly, it may happen by the misconduct of the suffering party only ; and then the rule is that the sufferer must bear his own burden. Lastly, it may have been the fault of the ship which ran the other down ; and in this case the innocent party would be entitled to an entire compen- sation from the other." The question must be considered — First, as between the two ships ; and, second, as respects third parties. As between the owners of the two ships, it must be con- sidered — First, where neither is in fault; second, where one alone is in fault : third, where both are in fault. INEVITABLE ACCIDENT OR INSCRUTABLE FAULT 145. Where neither vessel is in fault, or where the fault is inscrutable, neither can recover, and the loss rests where it falls. Meaning of "Inevitable Accidenf A collision arising by inevitable accident comes under this clause. An "inevitable accident," in the sense in which it is used in this connection, does not mean an accident unavoidable under any circumstances, but one which the party accused cannot prevent by the exercise of ordinary care, caution, •HO DAMAGES IN COLLISION CASES ( Ch. 14 and maritime skill. This definition is taken from the MAR- PESIA. 2 In the GRACE GIRDLER, 3 the court says: "Inevitable accident is where a vessel is pursuing a lawful avocation in a lawful manner, using the proper precautions against dan- ger, and an accident occurs. The highest degree of caution that can be used is not required. It is enough that it is reasonable under the circumstances; such as is usual in similar cases, and has been found by long experience to be sufficient to answer the end in view — the safety of life and property. Where there is a reasonable doubt as to which party is to blame, the loss must be sustained by the party on whom it has fallen." In the Mabey 4 the same idea is expressed thus : "Where the collision occurs exclusively from natural causes, and without any negligence or fault on the part of either party, the rule is that the loss must rest where it fell, as no one is responsible for an accident which was produced by caus- es over which human agency could exercise no control. Such a doctrine, however, can have no application to a case where negligence or fault is shown to have been committed on either side. Inevitable accident, as applied to a case of this description, must be understood to mean a collision which occurs when both parties have endeavored, by every means in their power, with due care and caution, and a proper display of nautical skill, to prevent the occurrence of the accident, and where the proofs show that it occurred in spite of everything that nautical skill, care, and precau- tion could do to keep the vessels from coming together." The reason for this is that it is unfair to hold any one re- § 145. 2L.R.4 P. C. 212; Schwan, [1S921 P. 419. 3 7 Wall. 190, 19 L. Ed. 113; Lackawanna, 210 Fed. 262, 127 C. C. A. SO. 4 14 Wall. 204, 20 L. Ed. 881 ; Coxe Bros. & Co. v. Cunard S. S. Co. (D. C.) 174 Fed. 100. § 145) INEVITABLE ACCIDENT OR INSCRUTABLE FAULT 311 sponsible for a disaster produced by causes over which hu- man skill and prudence can exercise no control. 5 Under this class may be ranged those cases where acci- dents happen from the breakdown of machinery or other appliances. In the William Lindsay, 6 a vessel was tied to a regular mooring buoy in the harbor. During a storm the buoy broke loose, and in trying to put out an anchor the cable on the windlass became jammed. The court held that it was an inevitable accident. In the Olympia, 7 a collision was caused by the breaking of a tiller rope from a latent defect, the proof showing that it had been carefully inspected. The court held that it was an inevitable accident. On the other hand, in the M. M. Caleb, 8 where a rudder chain broke from a defect which was discoverable by the exercise of reasonable care, the court held that it was neg- ligence, and not an inevitable accident. Collisions may occur from an inevitable accident, though nothing breaks, and there is no vis major. In the Java 9 a small schooner, which came from behind a large school- ship, was struck by a steamer coming from the other side, and it appeared that the steamer could not have seen the s Sunnyside, 91 U. S. 20S-210, 23 L. Ed. 302. 6L. R. 5 P. C. 33S; E. M. Peck, 22S Fed. 4S1, 143 C. C. A. 63; Hispania, 242 Fed. 265, 155 C. C. A. 105. But jamming or breaking of steering gear, caused by too sudden a change in order to avoid a danger that should have been anticipated sooner, is not an inevi- table accident. Brigham v. Luckenbach (D. C.) 140 Fed. 322; Ed- mund Moran, 180 Fed. 700, 104 C. C. A. 552. - 61 Fed. 120, 9 C. C. A. 393 ; Virgo, 3 Asp. 285. s 10 Blatchf. 467, Fed. Cas. No. 9,683 ; Acme (D. C.) 123 Fed. 814 ; J. N. Gilbert, 222 Fed. 37, 137 C. C. A. 575 ; Warkworth, 9 P. D. 20, 145 ; Merchant Prince, [1892] P. 179. a 14 Wall. 189, 20 L. Ed. S34 ; Columbus, Fed. Cas. No. 3,013 ; Luzerne (D. C.) 148 Fed. 133; Id., 157 Fed. 391, S5 C. C. A. 32S ; Merritt & Chapman Derrick & Wrecking Co. v. Cornell Steamboat Co. (D. C.) 174 Fed. 716; Id., 1S5 Fed. 261, 107 C. C. A. 307. 312 DAMAGES IN COLLISION CASES (Ch. 14 sail vessel on account of the large ship. The court held that the accident was inevitable. In the Transfer No. 3, 10 one boat was gradually over- hauling another, and, when in a position where she could not stop in time to avoid collision, the machinery of the front boat broke down. The case was held one of inevitable accident. The party defending on this ground has the burden of negativing any negligence on his part which might account for the accident. 11 In cases of inscrutable fault, also, each party bears his own loss. Cases under this head are not common, as courts are loath to admit inability to locate fault. 12 ONE SOLELY IN FAULT 146. Where one alone is in fault, that one alone is liable. This is so obvious that further discussion seems unnec- essary. BOTH IN FAULT 147. Where both are in fault, the damages are equally di- vided, irrespective of the degree of fault. This is the settled law in America, and until recently in England, and marks a sharp distinction between the com- mon-law and admiralty courts. The distinction between the two forums is summarized in CAYZER v. CARRON Co., 13 in which the court said: io (D. C.) 91 Fed. 803. i) Edmund Moran, 180 Fed. 700, 104 C. C. A. 552; Bayonne, 213 Fed. 216, 129 C. C. A. SCO; Merchant Prince, [1892] P. 179. 12 Centurion, 100 Fed. GG3, 40 C. C. A. 634; Jumna (D. C.) 140 Fed. 743; Id., 149 Fed. 171, 79 C. C. A. 119; Banner (D. C.) 225 Fed. 133. § 117. 139 a. C. S73. § 147) BOTH IN FAULT 313 "Now, upon that I think there is no difference between the rules of law and the rules of admiralty to this extent: That, where any one transgresses a navigation rule, wheth- er it is a statutory rule, or whether it is a rule that is impos- ed by common sense — what may be called the common law — and thereby an accident happens, of which that trans- gression is the cause, he is to blame, and those who are in- jured by the accident, if they themselves are not parties causing the accident, may recover both in law and in ad- miralty. If the accident is a purely inevitable accident, not occasioned by the fault of either party, then common law and admiralty equally say that the loss shall lie where it falls— each party shall bear his own loss. Where the cause of the accident is the fault of one party, and one party only, admiralty and common law both agree in saying that that one party who is to blame shall bear the whole damage of the other. When the cause of the accident is the fault of both each party being guilty of blame which causes the accident, there is a difference between the rule of admiralty and the rule of common law. The rule of common law says, as each occasioned the accident, neither shall recover at all, and it shall be just like an inevitable accident ; the loss shall lie where it falls. Admiralty says, on the contrary, if both contributed to the loss, it shall be brought into hotchpotch, and divided between the two. Until the case of Hay v. L,e Neve, 14 which has been referred to in the argument, there was a question in the admiralty court whether you were not to apportion it according to the degree in which they were to blame ; but now it is, I think, quite settled, and there is no dispute about it, that the rule of the admiralty is that, if there is blame causing the accident on both sides, they are to divide the loss equally, just as the rule of law that, if there is blame causing the accident on both sides, however small that blame may be on one side, the loss lies where it falls." 142 Shaw, 395. 314 DAMAGES IN COLLISION CASES (Ch. 14 The doctrine was adopted in America in the CATHA- RINE, 15 and has been followed in numerous subsequent cases, in all of which the Supreme Court treats the law on the subject as settled. 16 In arriving at the apportionment of damages when the injuries to the two vessels are unequal, the doctrine is not that the losses of each vessel are treated as separate causes of action asserted as cross causes, but that it is one cause of action only, and the vessel most injured is entitled to a decree for half the difference between her loss and the other. 17 If the limited liability act protects the owners of one ves- sel from having to pay their moiety, the owners of the other vessel, if a third party has held them for more than their moiety, can recoup their loss, or plead it in set-off against the claim which the other vessel would otherwise have against them. 18 In the Chattahoochee 19 the owner of the vessel lost libel- ed the other vessel for his own loss and as bailee of the car- go for its loss. Both vessels were held in fault. The vessel proceeded against was permitted to plead its liability to the shippers in reduction of its liability to the owner of the other vessel, though the shippers could not have held their own carrier in a direct proceeding on account of the Harter is 17 How. 170, 15 L. Ed. 23?,. ie See, as illustrations, Maria Martin, 12 Wall. 31, 20 L. Ed. 251; NOKTII STAR, 10G U. S. 17, 1 Sup. Ct. 41, 27 L. Ed. 91. it Sapphire, IS Wall. 51, 21 L. Ed. 814; Manitoba, 122 U. S. 97. 7 Sup. Ct. 1158, 30 L. Ed. 1095: Burke, Eed. Cas. No. 2,159; Khedive. 7 App. Cas. 795, SOS; London S. S. A.ss'n v. Grampian S. S. Co., 24 Q. B. D. 32, G03. Damages for which one of the two vessels has been held liable to a third are broughl into the estimate. Frankland, [1901] P. 1G1. is NOKTII STAR, 106 U. S. 17, 1 Sup. Ct. 41, 27 L. Ed. 91. ioi73 U. S. 540, 19, Sup. Ct. 191, 13 L. Ed. 801; Albert Dumois. 177 U. S. 240, 20 Sup. Ct. 595, 4 1 L. Ed. 751; George W. Roby, 111 Fed. 601, 49 C. C. A. 481. § 147) BOTH IN FAULT 315 Act. In other words, a balance was struck between the two sets of damage and a decree given for half the differ- ence. Origin of the Half-Damage Rule In examining the history of this half-damage rule, it is remarkable that the courts have adopted as a case for divi- sion of damages simply the case of mutual fault. This was not the origin of the rule. It may be traced at least as far back as the Laws of Oleron, article 14 of which provides: "If a Vessel being moar'd lying at Anchor, be struck or grappled with another, vessel under sail that is not very well steer'd, whereby the vessel at anchor is prejudic'd, as also wines, or other merchandize, in each of the said ships dam- nify'd. In this case the whole damage shall be in com- mon, and be equally divided and appriz'd half by half; and the Master and Mariners of the vessel that struck or grap- pled with the other, shall be bound to swear on the Holy Evangelists, that they did it not willingly or willfully. The reason why this judgment was first given, being, that an old decay'd vessel might not purposely be put in the way of a better, which will the rather be prevented when they know that the damage must be divided." Under this provision the damages were divided not only as among the vessels, but the cargoes, and that, too, wheth- er negligent or not, unless it was intentional. Article 26 of the Laws of Wisbuy apportions the loss as between the two ships, but only in cases of accident, not in case of fault. On the other hand, title 7, §§ 10, 11, of the Ordonnance of Louis XIV, provides: "X. In case of ships running aboard each other, the dam- age shall be equally sustained by those that have suffered and done it, whether during the course, in a road, or in a harbour. "XI. But if the damage be occasioned by either of the masters, it shall be repaired by him." 316 DAMAGES IN COLLISION CASES (Ch. 14 Thus it is clear that the application of the rule in modern times is much narrower than it was in its origin. An examination of these old codes reveals another im- portant fact in relation to it, and that is that it originated not in the law of torts, but in the law of average. It is un- der that head in the Ordonnance of Louis XIV, and the language of the others shows that it was treated as a con- tribution, and not as a liability on the ground of tort. The importance of this will appear in an early connection. The doctrine of an equal division, no matter how the fault may compare, is so well settled by repeated decisions that it can hardly be considered open to question. There is one case in which the court refused to apply it. In the VICTORY, 20 which was a collision between two English ships in Norfolk harbor, the District Court decided the Vic- tory alone at fault. An appeal was taken, and the case hotly contested in the Circuit Court of Appeals on the main question of fault, no question as to the apportionment of damage being raised either in the record or briefs. The Circuit Court of Appeals reversed the decision of the Dis- trict Court on the facts, and held both at fault, but the fault of the Victory to be the more flagrant of the two ; and it ap- portioned the loss by making the owners of the Victory pay the full value of their vessel, and the owners of the Plym- othian merely pay the deficit sufficient to satisfy the cargo owners in full. A certiorari was applied for and obtained, and the case was argued in the Supreme Court, but that tribunal held the Victory alone at fault, and reversed the- decision of the Circuit Court of Appeals, so that the judg- ment of the latter on that question can hardly be considered a precedent on the question of the proper method of appor- tioning the damage. 20 (D. C.) 63 Fed. 631; Td., OS Fed. 395, 15 C. C. A. 490; Id., 1G8 T". S. 419, 18 Sup. Ct. 149, 42 L. Ed. 519; C. R. Hoyt (D. C.) 136 Fed. 071. § 147) BOTH IN FAULT 317 The reason given by Dr. Lushington for an equal divi- sion, even where the fault is unequal, 21 is the impossibili- ty of apportioning accurately under such circumstances, and the uncertainty which it would introduce into litigation. No two judges might agree as to the exact proportions to be made, and it would be impossible for counsel in any col- lision case to advise with any degree of accuracy. A modification of the old rule that contributory negli- gence defeats recovery has been recently attempted in some of the common-law courts by the introduction of the doc- trine of comparative negligence, which is intended to allow a jury to apportion the damages according to the degree of fault. The uncertainties arising from it, and the increase of litigation attendant upon all uncertainty, have prevented its general adoption ; and, even as to the jurisdictions that have adopted it, the opinion of a distinguished text-writer is that it has caused more confusion than benefit. 22 This question has received a great deal of discussion in the past few years as an academic question among mari- time writers, but, so far as the decisions are concerned, it is so well settled that only statutory enactment could change it. 23 It must, however, be admitted that there is a tendency in modern legislation to extend this doctrine of comparative negligence, as is shown by the statutes regulating the rights of employes of carriers. An old English writer once re- marked that the measure of equity rights by the chancel- lor's conscience was about as certain as if it had been by the length of his foot. Whether the fancied attainment of a nearer measure of justice is worth the uncertainty in the application of such a rule by judges or juries remains to be seen. 21 Milan, Lush. 388. 22 2 Wood, R. R. (Ed. 1894) p. 1506, § 322b. 23 Atlas, 93 U. S. 302, 23 L. Ed. 863; Jacobsen v. Dalles P. & A. Nav. Co. (D. C.) 106 Fed. 428 ; Id., 114 Fed. 705, 52 C. C. A. 407. •>18 DAMAGES IN COLLISION CASES (Ch. 14 In England the equal division rule in cases of unequal fault has been abolished by the Maritime Conventions Act, 1911, which apportions the loss according to the degree of fault. Where more than two vessels are involved, the apportion- ment is made among all actually at fault. 24 In America the costs are divided like the damages, 25 in England each side pays his own costs. 26 RIGHTS OF THIRD PARTY WHERE BOTH IN FAULT 148. An innocent third party can recover against both ves- sels, but the form of his decree is not a general decree against both, but a decree for half against each with a remedy over against the other for any deficiency. In England, in such cases, he can recover only half against each, and cannot make up his deficit against the other; and in case of a collision between two English ships on the high sea, an American court will apply the English rule. 27 24 Eugene F. Moran v. New York Cent. & H. R. R. Co., 212 U. S. 466, 29 Sup. Ct. 339, 53 L. Ed. 600; Maling (D. C.) 110 Fed. 227; S. A. McCaulley (D. C.) 116 Fed. 107 (reversed on facts in Pacific, 154 Fed. 943, 83 C. C. A. 515) ; .Manhattan (D. C.) 181 Fed. 229 (re- versed on facts 1S6 Fed. 329, 108 C. C. A. 107). 25 America, 92 U. S. 432, 23 L. Ed. 724; Frank S. Hall (D. C.) 128 Fed. 816 ; Garden City (D. C.) 236 Fed. 302. 2«Marpesia, L. R. 4 P. C. 212; City of Manchester, 5 P. D. 221; Rosalia, [1912] P. 109; Cardiff Hall, [1918] P. 56. -7 Eagle Point, 142 Fed. 453, 73 C. C. A. 569; Ralll v. Societa Anonima Di Navigazlone a Vapore G. L. Premuda (D. C.) 222 Fed. 994. For the English and American rules compared, and the ef- fect of the Maritime Conventions Act, 1911, on the recovery, see Marsden on Collisions (7th Ed.) 148, 153. § 148) RIGHTS OF THIRD PARTY WHERE BOTH IN FAULT 319 The form of this decree shows that the doctrine did not find its origin in the law of torts, although many judges speak of the two vessels as joint tort-feasors. The Supreme Court has sedulously guarded the form of this decree, even correcting it in some instances where the question was not a material one, as the values were sufficient. This form of decree was announced in the Washington, 28 which was a case of a passenger on a ferryboat injured by the joint neg- ligence of his boat and another vessel. In the Alabama, 29 a vessel in tow was injured by the joint negligence of her tug and another vessel. The court gave the decree in the form above stated. But this is a rule intended to do justice as between the wrongdoers, and will not be so applied as to deprive an in- nocent party of his right of full recovery. Hence, in the ATLAS, 30 a shipper on one of two vessels, both of which were in fault, proceeded against one vessel alone, and it was held that he was entitled to do so, and to recover his full damage from that vessel. The question is thoroughly dis- cussed in the opinion delivered by Mr. Justice Clifford, who seems to treat it as much on the basis of an average contri- bution as upon the basis of a tort; that average contribu- tion, however, to be applied simply as between the two in fault. 31 289 Wall. 513, 19 L. Ed. 7S7. 29 92 U. S. 695, 23 L. Ed. 7G3. 3 93 U. S. 302, 23 L. Ed. 863. 3i See, also, Sterling, 106 U. S. 647, 1 Sup. Ct. 89, 27 L. Ed. 9S ; New York, 175 U. S. 187, 20 Sup. Ct. 67, 44 L. Ed. 126. 320 DAMAGES IN COLLISION CASES (Ch. 14 CONTRIBUTION BETWEEN COLLIDING VESSELS —ENFORCEMENT IN SUIT AGAINST BOTH 149. Where both are negligent, and have been brought be- fore the court by a joint libel against both, this con- tribution will be enforced. Under the cases cited in a previous discussion, the form of the decree by which the third party is simply given a de- cree for half, with a contingent remedy over, is itself an en- forcement of the right of contribution. At common law, in cases where no contribution existed as between wrong- doers, the decree was in solido against each, and, if the plaintiff levied his execution, and made his money out of one, that one could not compel the other to pay his part. These different forms of judgment or decree show the dif- ference in the origin of the two doctrines at common law and in admiralty. SAME— ENFORCEMENT BY BRINGING IN VESSEL NOT PARTY TO SUIT 150. Under the fifty-ninth admiralty rule, where the third party has proceeded against only one, that one can, by petition, obtain process to bring in the other vessel, if within reach of process. This fifty-ninth rule in admiralty was promulgated on March 26, 1883. 32 It was the outgrowth of the decisions in reference to the form of decree, and was intended to pre- vent the injustice of leaving to the caprice of the libelant which of two colliding vessels he should hold. Just prior § 150. a 2 112 U. S. 743, 29 Sup. Ct. xlvi, post, p. 530. § 151) CONTRIBUTION BETWEEN COLLIDING VESSELS 321 to its promulgation the HUDSON 33 had been decided by- District Judge Brown in the District Court for the South- ern District of New York. In that decision Judge Brown sustained a motion to bring in as defendant one of the two vessels that was not before the court, and in doing so ren- dered an opinion as to the advantages of the procedure and the relative rights of the two colliding vessels in such cases. His learned discussion, boHi of the English and American authorities, treats the matter rather as a matter of contri- bution or average than a matter of joint tort. Hence, where vessels are in the jurisdiction, the fifty-ninth rule per- mits a proceeding against the vessel not sued, which prac- tically makes an average adjustment, so to speak, of the loss among the parties liable. Hence the right of contribution is clear in two classes of cases : First, those in which both vessels are sued, and it can be brought about by the form of decree or by recoupment ; and, second, those in which only one vessel is sued, and the other vessel is within reach of the court's process. SAME— ENFORCEMENT BY INDEPENDENT SUIT 151. On the above principles, the right of contribution ought to exist between the two vessels by inde- pendent suit ; and this right is settled by the later authorities. The above discussion leaves open the case of suit against one vessel by the third party when the other vessel is not within the jurisdiction, and cannot be reached by process under the fifty-ninth rule. Suppose that in such a case the libelant gets a full decree against the vessel before the court, and compels payment, can that vessel institute an inde- pendent suit against the other vessel, and compel it to pay its portion? 33 (D. C.) 15 Fed. 1G2. Hughes, Adm. (2d Ed.) — 21 322 DAMAGES IN COLLISION CASES (Ch. 14 There are decisions to the effect that such a remedy does not lie. In the Argus, 34 in the District Court for the Eastern Dis- trict of Pennsylvania, a dredge in tow of a tug collided with a steamer. The tug was operating the dredge under a con- tract between the owners by which the movements of the tug were controlled entirely by the tow. The owners of the dredge proceeded in New York against the steamer and tug for damages, but the tug was not served with process, and the dredge owners recovered their full damages from the steamer. Thereupon the steamer paid the damages, and libeled the tug in the District Court of Pennsylvania to compel her to pay her share. The District Court held that there was no direct remedy by the steamer against the tug ; that, if she had any right at all, it must be by way of substi- tution to the lien which the libelant had asserted ; and that in that special case the libelant was debarred from pro- ceeding against the tug, as the management of the tug was solely in charge of his own officers. The opinion assumes, without discussion, that in the case of joint tort-feasors there is no recovery. In the Mariska, 35 in the District Court for the Northern District of Illinois, it was held that admiralty rule 59 was not intended to give a subsequent proceeding of this sort, and that, independent of that rule, it was a case of joint tort- feasors, as to which there was no contribution. This was reversed on appeal, but the ground of the opin- ion in the appellate court was given rather as a right deriv- ative by subrogation than as an independent right of ac- tion. Both these cases assume that if, at common law, a loss is caused by negligence, it is a case of joint tort, as to which there is no contribution. 8 151. a* (D. C.) 71 Fed. 891. 88 (D. C.) 100 Fed. 500, reversed 107 Fed. 9^9 47 O. 0. A. 115. § 151) CONTRIBUTION BETWEEN COLLIDING VESSELS 323 Even at common law this assumption is erroneous. The rule that there is no contribution among joint tort-feasors, according- to the better authority, in the common-law courts applies only in cases where there was some intentional or moral wrong committed. It presupposes an evil intent, and as to such cases it was certainly a wise rule. But the bet- ter authority is that this doctrine does not apply where the injury was unintentional, but arose merely from negligence, or the operation of some rule of law. 36 The subject has been considered in England in Palmer v. Wick & P. Steam Shipping Co. 37 In it the question is dis- cussed mainly with reference to the law of Scotland, but in some of the opinions the old English authorities in which the doctrine originated are reviewed and distinguished. It is considered also by Judge Brown in the HUDSON, supra, who arrived at the same conclusion with reference to the common-law doctrine as that above announced. But the weight of English authority is against contribution. 38 In Armstrong County v. Clarion County, 39 a traveler was injured by the defective condition of a bridge maintained jointly by two counties. He sued one county, and recov- ered. Thereupon this county sued the other, and the court sustained its right to contribution, holding that the com- mon-law rule gave contribution where the act that was be- ing done was not unlawful, and that contribution arises from natural principles, and not from contract. In the Gulf Stream, 40 where certain shippers had sued both vessels in a collision, one of the vessels compromised 3 6 Pol. Torts, 171; 12 Harvard Law Rev. 176 (189S) ; Law Quar- terly Rev. (July, 1901) 293. 3 7 [1894] A. C. 318. ss Frankland, [1901] P. 161, and cases cited. 39 66 Pa. 218, 5 Am. Rep. 368. On this subject of contribution at common law, see the note to the case of Kirkwood v. Miller, 5 Sneed. (Tenn.) 455, 73 Am. Dec. 147. 40 (D. C.) 5S Fed. 004. 324 DAMAGES IN COLLISION CASES (Ch. 14 a good many of the claims at a considerable discount, and attempted to set off their full value against the other ves- sel in a settlement between them. The court held that the parties occupied in the admiralty towards each other some- what the relation of cosureties, and that the other vessel was entitled to the benefit of these compromises. And in the NORTH STAR, 41 previously cited, the opinion reviews the old admiralty codes on the subject, and shows that the doctrine of division of loss in admiralty cases arose out of the principles of general average, as has been heretofore discussed. If these last three cases are right, it follows that an ac- tion for contribution ought to lie by one vessel against the other. The fact that there is no privity between them is immaterial ; for general average and contribution do not depend upon questions of privity or contract, but upon prin- ciples of natural justice. t Indeed, the fact that they were not intentionally concurring in the act complained of is the reason why there should be a contribution, and why the common-law rule does not apply. Hence the reasoning of the Pennsylvania judge 42 that the right could only be claimed derivatively through the libelant is counter to the original principles on which the doctrine was based. It arose from a desire of the admiralty courts to adjust equita- bly the relations between the two vessels themselves, and not through any consideration of the rights of a third party against them, for his rights are unaffected by the doctrine. And the other reason given in the two cases above cited, holding the adverse doctrine that there is no contribution against tort-feasors, is counter to the preponderance of au- thority, even at common law, which is to the effect that, where the act was not intentional, there may be a contribu- tion between tort-feasors. On principle such a suit should lie in the admiralty. If « 106 U. S. 17, 1 Sup. Ct. 41, 27 L. Ed. 91. <^ In the Argus (D. C.) 71 Fed. 891, supra, i>. 322. § 151) CONTRIBUTION BETWEEN COLLIDING VESSELS 325 the Supreme Court, by rule, can confer jurisdiction on an admiralty court to bring the other vessel in by petition, as is done by the fifty-ninth rule, that shows that the right is one of admiralty character, for a Supreme Court cannot, by rule, make a thing maritime which is not so by nature. It can only give a maritime remedy to a right maritime by na- ture. It has been seen in another connection that, where a salvor collects the entire salvage due, his cosalvors can sue him in admiralty to enforce an apportionment or contribu- tion, 43 and this is a similar case. Admiralty has undoubt- ed jurisdiction to compel contribution in cases of general average, and the doctrine now under discussion originated in the law of average. 44 Hence contribution may be en- forced in an admiralty proceeding, probably in rem, and certainly in personam, as between the owners of two col- liding ships where one had been compelled to pay more than his share. It is a necessary corollary from the doctrine that a decree is for half against each with a remedy over, thus making it a case where one is necessarily surety for the other in case of a deficit. The right has been definitely settled accordingly by two recent decisions of the Supreme Court. 45 Both these cases were libels in personam, but no reason is perceived why the right could not be enforced by a pro- " Ante, p. 151. 44 Ante, p. 50. 4o Erie R. Co. v. Erie & W. Transp. Co., 204 IT. S. 220, 27 Sup. Ct. 246, 51 L. Ed. 450 ; Lehigh Valley R. Co. v. Cornell Steamboat Co., 218 U. S. 264, 31 Sup. Ct. 17, 54 L. Ed. 1039, 20 Ann. Cas. 1235. In both these cases the opinions merely say that this doctrine of con- tribution is of admiralty origin, without stating whether it arose from average or tort. They could not have treated it as a case of joint liability in tort ; for it would have been inconsistent with Union Stockyards Co. v. Chicago, B. & Q. R. Co., 196 U. S. 217, 25 Sup. Ct. 226, 49 L. Ed. 453, 2 Ann. Cas. 525, in which the court adopted the rule of no contribution among negligent tort-feasors at common law. See, also, Eastern Dredging Co., In re (D. C.) 1S2 Fed. 179. 326 DAMAGES IN COLLISION CASES (Ch. 14 ceeding in rem. The liability to the party paying more than his share arises from a maritime tort of the other vessel or those responsible for her navigation. If such a remedy is available in rem under the fifty-ninth rule, it ought to lie in this analogous case. MEASURE OF DAMAGES 152. The damages assessable in collision cases are those which are the natural and proximate result of the collision. This subject must be considered — First, in reference to the cases where the loss is total; second, in reference to the cases where the loss is partial; third, what damages are proximate or remote. SAME— WHEN LOSS TOTAL 153. If the loss is total, the amount recoverable by the ves- sel owner is the market value of the vessel at the time of the collision, if that is ascertainable, and her net freight for the voyage. 40 Where a ship cannot be said to have a market value, the method of fixing her value is a question of fact, depending on the circumstances of the particular case. Her original cost, less proper deductions for depreciation, is evidence, though not conclusive or exclusive, of her value. 47 The net freight allowed in cases of total loss is the net § 153. * 6 BALTIMORE, 8 Wall. 377, 10 L. Ed. 463; Laura Lee (D. O.) 24 Fed. 483 ; Fabre v. Cunard S. S. Co., 53 Fed. 288, 3 C. C. A. 534; UMBRIA, 166 U. S. 404. 17 Sup. Ct. 610, 41 L. Ed 1053: Alaska S. S. Co. v. Inland Nav. Co., 211 Fed. 840, 12S C, C. A. 366; Philadelphia, [1017] P. 101. '• Lucille (D. C.) 169 Fed. 710: Samson, 217 Fed. :U4, 133 C. C. A. 260; Harmonldea [1903] P. 1. § 153) MEASURE OF DAMAGES 327 freight for the voyage broken up. Profits on a future char- ter, not entered upon, are too remote. 48 In the Kate, 49 the vessel was on her way to perform a charter party when she was lost. The court rather varied the general rule by permitting recovery of her value at the end of the voyage, and the profit under that charter party, as it had already been entered upon. On the other hand, in the Hamilton, 60 the value of the vessel at the beginning of the voyage was allowed, and interest from that date, but not the profits of the charter party which she then had, though she had entered upon it. In case of a total loss of cargo, the value recoverable is the value at place of shipment, with all expenses added ; but, if the loss is only partial, the net values saved must be cred- ited. 51 The fact that a vessel is sunk does not necessarily make the loss a total one. The owner must make some effort to find out whether she can be saved or not, but, if he shows an unsuccessful effort to induce salvors to raise her, it shifts to the respondent the burden to show that the loss was not total. 52 48 UMBRIA, 166 U. S. 404, 17 Sup. Ct. 610, 41 L. Ed. 1053; Kate, [1899] P. 165; George W. Roby, 111 Fed. 601, 49 O. C. A. 481; Menominee (D. C.) 125 Fed. 530. 49 [1899] P. 165. See, also, Racine, [1906] P. 273. so (D. C.) 95 Fed. 844. 6i Scotland, 105 U. S. 24, 26 L. Ed. 1001; George Bell (D. C.) 3 Fed. 5S1, 5 Hughes, 172 ; Umbria, 59 Fed. 489, 8 C. C. A. 194. 52 Normandie (D. C.) 40 Fed. 590; Id. (D. C.) 43 Fed. 151; Ernest A. Hamill (D. C.) 100 Fed. 509; Des Moines, 154 U. S. 584, 14 Sup. Ct. 1168, 20 L. Ed. 821. 328 DAMAGES IN COLLISION CASES (Ch. 14 SAME— WHEN LOSS PARTIAL 154. In case of a partial loss, the amount recoverable is the cost of saving the vessel, the repair and expense bills caused by the collision, and a reasonable al- lowance for the loss of the use of the vessel during any delay caused by the collision. There is usually but little difficulty in settling the items for actual repairs. The fight generally turns on the amount that should be allowed for the loss of the vessel's use, or demurrage, as it is frequently, though inaccurately, called. The sum to be allowed is the actual loss caused to the owner by being deprived of his vessel. This is a question of fact, and is often difficult of ascertainment. The demurrage rate specified in a bill of lading or charter party is not the measure of damages, though it may be com- petent evidence. 53 If the vessel is actually under charter, the amount pay- able per day is strong evidence of her value. 54 When, however, the vessel is being operated by her own- er, the method of fixing the rate varies greatly. In the Potomac 55 a vessel engaged in a particular busi- ness was allowed the daily average of her net profits for the season. In such cases the rate differs from that in case of total loss for under partial loss cases the future profits on a charter may be allowed. 56 Where no charter rate can be fixed, the courts hold that § 154. 03 Hermann, 4 Blatchf. 441, Fed. Cas. No. 6,40S. 04 Margaret J. Sanford (C. C.) 37 Fed. 148; Brand, 224 Fed. 391, 140 C. C. A. 77, Ann. Cas. 1917B, 99G. 05 105 U. S. G30, 26 L. Ed. 1194; Europe, 199 Fed. 475, 111 C. C. A. 307. seArgentlno, 11 A. C. 519; UMBRIA, 166 U. S. 421, 17 Sup. Ct. 610, 41 L. Ed. 1053. § 154) MEASURE OF DAMAGES 329 one good way of fixing the damage is to take the vessel's average earnings about the time of the collision. 57 A company which keeps a spare boat can still recover for the loss of use of their steamer, though the spare boat took its place. 58 As these damages are allowed simply to make up to the owner any pecuniary loss to which he may be put by being deprived of the use of his vessel, it follows that no allowance for loss of time can be recovered in case of a vessel not operated for profit, but pleasure — like a private yacht — or of vessels not in operation. 59 On the other hand, in the Greta Holme, 60 the trustees of a municipality which kept a steam dredge for their sole use were allowed to recover for the time lost by it in conse- quence of a collision damage, though they could not prove any direct pecuniary loss. They did prove, however, that the filling up during the dredge's absence from work en- tailed additional dredging afterwards. Interest on the value from the date of collision in case of 57 CONQUEROR, 166 U. S. 110, 17 Sup. Ct. 510, 41 L. Ed. 937; William H. Bailey (D. C.) 103 Fed. 799; Bulgaria (D. C.) 83 Fed. 312 ; Tremont, 161 Fed. 1, SS C. C. A. 304 ; Orion, 239 Fed. 301, 152 C. C. A. 289. s s Cayuga, 14 Wall. 270, 20 L. Ed. 82S; Mediana, [1899] P. 127; Id., [1900] A. C. 113. so CONQUEROR, 166 U. S. 110, 17 Sup. Ct. 510, 41 L. Ed. 937; Saginaw (D. C.) 95 Fed. 703; Wm, M. Hoag (D. C.) 101 Fed. 846; Fisk v. New York (D. C.) 119 Fed. 256; Loch Trool (D. C.) 150 Fed. 429. In Vanadis (D. C.) 250 Fed. 1010, demurrage was allowed for a yacht used only for pleasure; the court attempting (not very successfully) to distinguish it from the Conqueror Case. so [1897] A. C. 598. The tendency of the more recent English de- cisions has been to allow demurrage for loss of use of government ships, though no actual pecuniary loss is directly proved. Marpessa, [1907] A. C. 241; Astrakhan, [1910] P. 172. Under the American decisions the government can recover crew's wages and keep and other actual expenses, but not demurrage. A. A. Raven, 231 Fed. 3S0, 145 C. C. A. 374. 330 DAMAGES IX COLLISION CASES (Ql. 14 total loss, and on each item in case of partial loss, is usually allowed, though its allowance is a matter of judicial discre- tion. 61 In estimating the cost of repairs, the fact that new repairs make the vessel more valuable than she was before, if these new repairs were necessary to restore her, does not cause any deduction. The rule of one-third off new for old, which has been adopted by the insurance companies, does not apply in collision cases. 62 It is often a difficult question of fact how far the recovery may extend when the vessel is old, and it is necessary to put in a good deal of work on each side of the natural wound in order to make the repairs hold. As a rule, the cost of repairing adjacent parts is not recoverable, provided those adjacent parts were not' in good condition. If the vessel is in good condition, and the injury is such that repairs to ad- jacent parts are also needed, they would be recoverable. 63 REMOTENESS OF DAMAGES— SUBSEQUENT STORM 155. If a vessel partially injured is so crippled by a colli- sion as to be lost in a subsequent storm, which she could otherwise have weathered, that is, in law, considered as proximately arising from the colli- sion. «i Albert Dumois, 177 U. S. 240, 20 Sup. Ct. 595, 44 L. Ed. 751. The trend of later decisions is to a liberal policy in its allowance. Rickmers, 142 Fed. 305, 73 C. C. A. 415; J. G. Gilchrist (D. C.) 17:5 Fed. 666; Id., 183 Fed. 105, 105 C. C. A. 397; Mary B. Curtis, 250 Fed. 9, 162 C. C. A. 181; Great Lakes Dredge & Dock Co., In re (D. C.) 250 Fed. 916. 62 BALTIMORE, 8 Wall. 377, 19 L. Ed. 463. 6i John R. Penrose (D. C.) 86 Fed. 696; Providence, 98 Fed. 133, 38 O. O. A. 670. § 156) REMOTENESS OF DAMAGES 331 The damages recoverable, as in common-law cases, are only those proximately caused by the collision. This is often a difficult question, and the decisions are not always enlightening. For instance, in the common-law case of Memphis & C. R. Co. v. Reeves, 64 tobacco which did not go forward as fast as it might have done was caught in a flood, which it would otherwise have escaped. The court held that the proximate cause was the flood. In the Leland, 65 a vessel injured in collision while mak- ing her way to port was caught in a storm, and, in conse- quence of her crippled condition, was totally wrecked. It was contended that the proximate cause of her main dam- age was the storm, but the court held that it was the colli- sion, and that the vessel at fault was liable for the entire loss. In the City of Lincoln, 66 the compass, charts, log, and log glass of a bark were lost in a collision. On making her way to port, she grounded on account of the lack of these requisites to navigation. The court held that the ad- ditional damage received in grounding was due proximately to the collision, and recoverable. 67 SAME— DOCTRINE OF ERROR IN EXTREMIS 156. If a vessel, by her negligence, places the other in a per- ilous situation, and the latter, in the excitement, takes the wrong course, the negligence of the first is considered the proximate cause. This is the "doctrine of error in extremis," and applies, as is well known, to all cases of negligence. The reason is § 155. 6 4 io Wall. 176, 19 L. Ed. 909. so (D. C.) 19 Fed. 771. ee 15 P. D. 15. 67 See, also, Boutin v. Rudd, 82 Fed. 6S5, 27 C. C. A. 526; Onoko (D. C.) 100 Fed. 477; Id., 107 Fed. 984, 47 C. C. A. Ill; Mellona, 3 W. Rob. 7; Pensher, Swa. 211; Reiseher v. Borwick, [1S94] 2 Q. B. 54S; Bruxellerme, [1908] P. 312; ante, § 35, p. 80. 332 DAMAGES IN COLLISION CASES (Ch. 14 that it is not right to expect superhuman presence of mind, and therefore, if one vessel has, by wrong maneuvers, placed another ship in a position of extreme danger, that other ship will not be held to blame if she has done some- thing wrong, and has not been maneuvered with perfect skill and presence of mind. 08 This doctrine has been enunciated in many American cases. Illustrations may be found in the cases which hold that a steamer must not run so close to a sailing vessel as to cause her alarm and trepidation. 69 It applies just as well, however, to steamers. 70 But the vessel which appeals to this doctrine must show that she was not in fault herself. She cannot claim to be free from negligence at the last moment on account of ex- citement, if her previous maneuvers have brought about the critical situation. 71 § 156. 6 8 Bywell Castle, 4 P. D. 219; NICHOLS, 7 Wall. 656, 19 L. Ed. 157 ; Maggie J. Smith, 123 U. S. 349, 8 Sup. Ct. 159, 31 L. Ed. 175 ; Charles Hubbard, 229 Fed. 352, 143 C. C. A. 472. 69 Carroll, 8 Wall. 302, 19 L. Ed. 392; LUCILLE, 15 Wall. 676, 21 L. Ed. 247 ; Nacoochee, 137 U. S. 330, 11 Sup. Ct. 122, 34 L. Ed. 687; ante, p. 2S0. to Blue Jacket, 144 U. S. 371, 12 Sup. Ct. 711, 36 L. Ed. 469. 7i ELIZABETH JONES, 112 U. S. 514, 5 Sup. Ct 468, 28 L. Ed. 812; Protector, 113 Fed. S6S, 51 C. C. A. 492; Noreuga (D. C.) 211 Fed. 356; Manchioneal, 243 Fed. 801, 156 C. C. A. 313. § 157) VESSEL OWNERSHIP 333 CHAPTER XV OF VESSEL OWNERSHIP INDEPENDENT OF THE LIMITED LIABILITY ACT 157. Method by Which Title to Vessels may be Acquired or Trans- ferred. 158. Relation of Vessel Owners Inter Sese. 159. Relation of Vessel Owners as Respects Third Parties. METHOD BY WHICH TITLE TO VESSELS MAY BE ACQUIRED OR TRANSFERRED 157. Title to vessels may be acquired by construction or by purchase. A bill of sale is necessary before the vessel can be docu- mented or enjoy the privileges of an American vessel, but not for the transfer of title. A prospective vessel owner may build his own vessel, whether individually or by contract, or he may purchase it from some one else. The question when title passes in case of a ship under construction is one of intent under the contract of construc- tion. The fact that the contract price is payable in install- ments is not necessarily an indication of an intent that title shall pass pro tanto. 1 A vessel is a mere piece of personal property, and sale, accompanied by delivery, will pass the title. Such a sale mav be proved by parol, as in any other case of personalty. 2 § 157. i IT. S. v. Ansonia Brass & Copper Co., 218 U. S. 452, 31 Sup. Ct. 49, 54 L. Ed. 1107 ; Poeonoket (D. C.) 67 Fed. 262 ; Id., 70 Fed. 640. 17 C. C. A. 309 ; Id., 16S U. S. 707, 18 Sup. Ct. 939, 42 L. Ed. 1214. In England the presumption is the other way. Seath v. Moore, 11 A. C. 350, 3S0. 2 Badger v. President, etc., of Bank of Cumberland, 26 Me. 42S ; Chadbourne v. Duncan, 36 Me. 89. 334 VESSEL OWNERSHIP (Ch.15 Section 4170 of the Revised Statutes of the United States provides : "Whenever any vessel, which has been registered, is, in whole or in part, sold or transferred to a citizen of the Unit- ed States, or is altered in form or burden, by being length- ened or built upon, or from one denomination to another, by the mode or method of rigging or fitting, the vessel shall be registered anew, by her former name, according to the directions hereinbefore contained, otherwise she shall cease to be deemed a vessel of the United States. The former certificate of registry of such vessel shall be delivered up to the collector to whom application for such new registry is made, at the time that the same is made, to be by him trans- mitted to the register of the treasury, who shall cause the same to be canceled. In every such case of sale or trans- fer, there shall be some instrument of writing, in the nature of a bill of sale, which shall recite, at length, the certificate; otherwise the vessel shall be incapable of being so register- ed anew." s The only effect of not having the required bill of sale, or of having a bill of sale without the certificate set out in it, is to cause the vessel to forfeit its rights to American pa- pers. 4 In order to make this title binding as against third par- ties, it must be recorded in the custom house. Section 4192 of the United States Revised Statutes provides : "No bill of sale, mortgage, hypothecation, or conveyance of any vessel, or part of any vessel, of the United States, shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons having ac- tual notice thereof, unless such bill of sale, mortgage, hy- s U. S. Comp. St § 7751. *Amelie, 6 Wall. 18, IS L. Ed. 806; De Wolf v. Harris, 4 Ma- son, 515, Fed. Cas. No. 4,221; Orlando v. Wooten (D. C.) 214 Fed. 271. A bill of sale need not be under seal. Hunter v. Parker, 7 M. & W. 322. 331. 8 157) METHODS OF TRANSFERRING VESSELS 335 pothecation, or conveyance is recorded in the office of the collector of the customs where such vessel is registered or enrolled. The lien by bottomry on any vessel, created dur- ing her voyage, by a loan of money or materials necessary to repair or enable her to prosecute her voyage, shall not, however, lose its priority, or be in any way affected by the provisions of this section." 5 If it is recorded according to this section, it is binding as to third parties, though not indexed. 6 This statute has been held constitutional by the United States Supreme Court. 7 The place where the vessel is registered or enrolled is regulated by section 4141 of the Revised Statutes, which says: "Every vessel, except as is hereinafter provided, shall be registered by the collector of that collection district which includes the port to which such vessel shall belong at the time of her registry ; which port shall be deemed to be that at or nearest to which the owner, if there be but one, or, if more than one, the husband or acting and managing owner of such vessel, usually resides." 8 These statutes, above quoted, which in terms apply to registered vessels, are made to apply to enrolled vessels by section 4312 of the Revised Statutes, which says: "In order for the enrollment of any vessel, she shall pos- sess the same qualifications, and the same requirements in all respects shall be complied with, as are required before registering a vessel ; a^id the same powers and duties are conferred and imposed upon all officers respectively, and the same proceedings shall be had, in enrollment of vessels, as are prescribed for similar cases in registering; and ves- sels enrolled, with the masters or owners thereof, shall be s U. S. Comp. St. § 7778. e W. B. Cole (C. C.) 49 Fed. 587: Id., 59 Fed. 1S2, 8 C. C. A. 78. t WHITE'S BANK v. SMITH, 7 Wall. &46, 19 L. Ed. 211. s U. S. Comp. St. § 7719. 336 VESSEL ownership] (Ch. 15 subject to the same requirements as are prescribed for reg- istered vessels." 9 These bills of sale are required not only to be recorded, but they must set out exactly the interest of each person selling and each person purchasing. 10 A vessel engaged in foreign trade is said to be registered, one engaged in the coasting or internal trade on navigable waters of the United States is said to be enrolled, and one of the latter class under twenty tons is said to be licensed. 11 RELATION OF VESSEL OWNERS INTER SESE 158. Part owners of a vessel, in the absence of special agreement, are tenants in common, not partners. The presumption is in favor of a tenancy in common and against a partnership, though the latter may exist by spe- cial agreement. This has been settled law, both in Eng- land and America, for a long time. 12 The fact that a vessel is run on shares does not consti- tute the part owners a partnership. 13 Part owners have no lien as against each other in case one pays more than his share of the expenses or debts, o U. S. Conip. St. § S058. io Rev. St. §§ 4192-4196 (U. S. Comp. St. §§ 777S-77S2). ii Mohawk, 3 Wall. 56G, 18 L. Ed. 67; Montello, 11 Wall. 411, 20 L. Ed. 191. The vessels entitled to American papers are set out in section 4132 of the Revised Statutes (as last amended, in U. S. Comp. St. § 7709). The form of register is given in section 4155 of the Revised Statutes (U. S. Comp. St. § 7736) ; the form of enrolment in section 4319 of the Revised Statutes (U. S. Comp. St. § 8065) : and the form of license in section 4321 of the Revised Statutes (U. S. Comp. St. § S0G9). § 158. 12 Bradshaw v. Sylph, Fed. Cas. No. 1.791; Revens v. Lew- is, 2 Taine, 202, Fed. Cas. No. 11,711; SPEDDEX v. KOENIG, 78 FecL 504, 24 C. C. A. 189; Briggs & Cobb v. Barnett, 10S Va. 404, 61 S. B. 797. ia Daniel Kaine (P. C.) 35 Fed. 785. § 158) RELATION OF VESSEL OWNERS ENTER SESE 337 though the one so paying may be the ship's husband. This question was long a subject of debate in the courts, but the above may be considered as the settled doctrine now. 14 In such case, however, when he has made necessary ad- vances for the common benefit, under express or implied authority to do so, he may compel contribution from the owners for such advances ; but this is a mere matter of ac- counts, and there is no jurisdiction in admiralty to maintain such a suit. 15 The complete separation of vessel and owner in admiralty is forcibly illustrated by the decisions that a part owner, who happens to be engaged in the business of furnishing repairs or supplies to vessels, may libel his vessel for such repairs and supplies so furnished, and may assert a lien against his other part owners or their assignee, but not to the detriment of creditors of the vessel itself. This doc- trine must be carefully distinguished from the doctrine an- nounced in the last paragraph. For a mere balance of ac- counts there is no right of action in admiralty, but, if a part owner of a vessel happens to keep a machine shop, and does work upon the vessel on the credit of the vessel, there is no reason why he should not be allowed to libel the ves- sel, and to assert such a maritime cause of action against his other part owners. But, when the vessel comes to be sold, if there are other creditors, it would be inequitable to al- low the part owner, who himself may be personally bound, to assert a lien against his own creditors ; and therefore the doctrine is limited to an assertion of it in subordina- tion to the claims of the other creditors on the boat. 16 14 LARCH, 2 Curt. 427, Fed. Cas. No. 8,0S5 ; Daniel Kaine (D. C.) 35 Fed. 785. is LARCH, 2 Curt. 427. Fed. Cas. Xo. 8,085; Orleans, 11 Pet. 175, 9 L. Ed. G77. isPETTIT v. CHARLES HEMJE, 5 Hughes, 359, Fed. Cas. No. 11,047a; West Friesland, Swa. 454; Learned v. Brown, 94 Fed. 876, Hughes. Adji. (2d Ed.)— 22 338 VESSEL OWNERSHIP (Ch. 15 The decisions on this question, however, are not har- monious ; some courts confusing it with the doctrine that there is no jurisdiction in the admiralty as to accounts among part owners. But there are many cases where this question could not possibly be involved, like a personal injury claim, a claim for loss of goods shipped, or arising out of a collision. There can be no sound reason why a part owner should not be permitted to proceed against the vessel in such cas- es, always in subordination to other debts for which he is also responsible. 17 There is nothing in the relation of part owners which makes one an agent for the other any more than there is in the relation of tenants in common. Hence one part own- er, in the absence of some authority, express or implied, cannot bind the other part owner for the debts of the ves- sel. If cases exist in which the other part owner has been held bound, it will be found that there was some course of dealing or other circumstance tending to show express or implied authority. 18 Disputes often arise between part owners as to the meth- od of using their vessel. If they cannot agree, the majority owner can take the vessel, and use her, and in such case he will be entitled to the profits of the voyage, but the part owner may require him to give security for the protection of his interest in the vessel against loss, and admiralty has jurisdiction of a libel to compel the giving of such securi- ty. 19 36 C. C. A. 524; Fredericka Sehepp (D. C.) 105 Fed. 623 ; Puritan (D. C.) 258 Fed. 271. 17 See the discussion of this subject by the author in his article on Maritime Liens, 26 Cyc. 757, note 62. isBrodie v. Howard. 17 C. P». (84 E. C. L.) 109; FRAZER v. CUTHBERTSON, 6 Q. B. I>. 03. 19 Coyne v. Caples (I). C.) 8 Fed. 638; Tunno v. Betsina, Fed. Cas. No. 14,236; Scull v. Raymond (D. C.) 18 Fed. 547; post, p. 516. § 158) RELATION OF VESSEL OWNERS INTER SESB 339 In such case a minority owner who is protected by such a bond, and who has refused to join in the voyage, cannot claim a share in its profits, as he has had none of the risk. 20 In cases of disagreement the majority owner has the right to the use of the vessel, subject to the right of the minority to require bond ; but, if the majority will not use the vessel at all, then the minority can use her on giving a similar bond to the majority. The reason of this is the principle of public policy that vessels should be used, and, while the majority in case of difference as to the precise voyage or the precise method of use can control, they cannot control it so far as to require the vessel to be laid up. 21 Although admiralty does not have jurisdiction to decree a sale of a vessel for purpose of partition where the inter- ests in the vessel are unequal — for in that case the majority can rule — yet, if the interests are equal, and the equal in- terests disagree as to the method of employment of the vessel, then in that case neither can compel the other to give way, and admiralty has jurisdiction to decree a sale of the vessel. 22 In England there was no jurisdiction in admiralty to sell for partition until the Act of 24 Vict. c. 10. The eighth sec- tion of that act gives such jurisdiction, whether as between equal or unequal interests, and also of all matters of ac- count between part owners. 23 -o Marengo, 1 Low. 52, Fed. Cas. No. 9.065; Head v. Anioskeag Mfg. Co., 113 U. S. 9, 5 Sup. Ct. 447, 28 L. Ed. 889. siTuuno v. Befsina, Fed. Cas. No. 14,236; Orleans, 11 Pet. 175. f> L. Ed. 677 ; Gould v. Stanton, 16 Conn. 12 ; Southworth v. Smith, 27 Conn. 355, 71 Am. Dee. 72 ; England, 12 P. D. 32. 22 Ocean Belle, 6 Ben. 253, Fed. Cas. No. 10,402; Tunno v. Betsina. Fed. Cas. No. 14,236 ; Coyne v. Caples (D. C.) S Fed. 63S ; Head v. Amoskcag Mfg. Co., 113 U. S. 9, 23, 5 Sup. Ct. 447, 2S L. Ed. 8S9. In such case the court may take necessary incidental accounts. Emma B. (D. C.) 140 Fed. 771. 23 Apollo, 1 Hagg. Ad. 306. Smith's Admiralty Law & Practice (Ed. 1S92) 46 et seq. 340 VESSEL OWNERSHIP (Ch. 15 On the principle that the majority rules, a majority may remove the master of the vessel at any time, even without cause, and though he is part owner; but, if they remove him prior to the time for which they had agreed to keep him, or in any way break their contract with him, they are liable to an action for damages. Their power of removal, however, is clear, except when there is a written agreement to the contrary. On this subject section 4250 of the Re- vised Statutes says : "Any person or body corporate having more than one- half ownership of any vessel shall have the same power to remove a master, who is also part owner of such vessel, as such majority owners have to remove a master not an own- er. This section shall not apply where there is a valid writ- ten agreement subsisting, by virtue of which such master would be entitled to possession, nor in any case where a master has possession as part owner, obtained before the ninth day of April, eighteen hundred and seventy-two." 2i In disputes with vessel owners admiralty takes cogni- zance only of legal titles, not of equitable. 25 The admiralty procedure to obtain possession of a ship is a petitory or possessory libel. 26 24 Lizzie Merry, 10 Ben. 140, Fed. Cas. No. S.423 ; Montgomery v. Wharton, Fed. Cas. No. 9,737; Same v. Henry, 1 Dall. 49, 1 L. Ed. 32, 1 Am. Dec. 223; Eliza B. Emory (C. C.) 4 Fed. 342; Lombard S. S. Co. v. Anderson, 134 Fed. 568, 67 C. C. A. 432. Section 4250 of the Revised Statutes is contained in U. S. Comp. St. § 7995. 2 5 Eclipse, 135 U. S. 599, 10 Sup. Ct. 873, 34 L. Ed. 269; Robert R. Kirkland (D. C.) 92 Fed. 407; United Transportation & Lighterage ('o. v. New York & Baltimore Transp. Line (D. C.) 185 Fed. 386, 107 C. C. A. 442. 20 Nellie T., 235 Fed. 117, 148 C. C. A. 611. § 159) RELATION OF VESSEL OWNERS TO THIRD PARTIES 341 RELATION OF VESSEL OWNERS AS RESPECTS THIRD PARTIES 159. Vessel owners are liable in solido for the debts or torts of the vessel incurred in the natural course of busi- ness by parties holding the relation of agent to such vessel owners. This is a long-settled principle of English and Ameri- can law. 27 The parties who are usually the agents of the vessel are the master and the managing owner. These are frequently combined in the same person, and their powers are sub- stantially the same. They may bind the owners for debts in the usual and natural employment of the vessel. A clear statement of the powers of the ship's managing owner (which is practically another term for the ship's hus- band) is set out in volume 1, § 428, of Bell's Commentaries, which enumerates them as follows, and also the limitation !>n his powers : (1) To see to the proper outfit of the vessel, in the re- pairs adequate to the voyage, and in the tackle and furni- ture necessary for a seaworthy ship. (2) To have a proper master, mate, and crew for the ship, so that in this respect it shall be seaworthy. (3) To see to the due furnishing of provisions and stores, according to the necessities of the voyage. (4) To see to the regularity of all the clearance? from the custom house, and the regularity of the registry. (5) To settle the contracts, and provide for the payment of the furnishings which are requisite in the performance of those duties. (6) To enter into proper charter parties, or engage the vessel for general freight, under the usual con- § 159. 27 Thompson v. Finden, 4 Car. & P. 15S, 19 E. C. L-. 320: Nestor, 1 Sumn. 73, Fed. Cas. No. 10,126 ; Gallatin v. Pilot, 2 Wall. Jr. 592, Fed. Cas. No. 5,199. ;?42 VESSEL OWNERSHIP ( Ch. 15 ditions; and to settle for freight and adjust average with the merchant. (7) To preserve the proper certificates, sur- veys, and documents, in case of future disputes with insur- ers or freighters, and to keep regular books of the ship." In a well-considered American case his powers are enu- merated as follows : "To provide for the complete seaworthiness of the ship ; to see that she has on board all necessary and proper pa- pers ; to make contracts for freight; to collect the freight and enter into proper charter parties ; to direct the repairs, appoint the officers and mariners ; to see that the vessel is furnished with provisions and stores; and generally to conduct all the affairs and arrangements for the due em- ployment of the ship in commerce and navigation." 28 Mr. Bell in treating of the limitations of the powers of a ship's husband, says : "(1) That, without special powers, he cannot borrow money generally for the use of the ship, though he may settle the accounts of the creditors for furnishings, or grant bills for them, which will form debts against the concern, whether he has funds in his hands or not, with which he might have paid them. (2) That, although he may, in the general case, levy the freight, which is, by the bill of lading, payable on the delivery of the goods, it would seem that he will not have power to take bills for the freight, and give up the possession and lien over the cargo, unless it has been so settled by charter party, or unless he has special author- ity to give such indulgence. (3) That, under general au- thority as ship's husband, he has no power to insure, or to bind the owners for premiums; this requiring a special au- thority. (4) That, as the power of the master to enter into contracts of affreightment is superseded in the port of the 2 9 Chase v. McLean, 130 N. Y. 529, 29 N. E. 986. As to his powers as agent, see. also, Great Lakes Towing Co. v. Mills Transp. Co., 165 Fed. 11, 83 C. C. A. GOT. 22 L. R. A. (X. S.) 709; Benjamin Noble, 2 i 1 Fed. 95, 150 C. C, A. 523. § 159) RELATION OF VESSEL OWNERS TO THIRD PARTIES 343 owners, so is it by the presence of the ship's husband, or the knowledge of the contracting parties that a ship's husband has been appointed." Accordingly, it has been held that his powers do not ex- tend so far as to permit him to bind the owners for the car- go purchased for the vessel, that not being considered as a necessity in the course of business. 29 The managing owner cannot bind the others in the home port unless express authority be shown, for the basis of his power is the necessity of the vessel, and in the home port the owners can easily be consulted. 30 Nor can he bind minority owners who have dissented from the use of the vessel for that particular voyage, for, as they cannot, in such case, share in the profits, it would be inequitable to expect them to bear the costs. 31 The supplies for which part owners may be bound by their agents are simply those things included in the term "'necessaries." In another connection the question as to what constitutes "necessaries" which a captain may order for his vessel has been discussed, and the same test applies here. Reference is made to that discussion. 32 The owners are liable not only for contract debts, but also for the torts of the master in the line of his duty, not for those outside the line of his duty. For instance, in The Waldo 3S the owners were held liable for injury to goods 2»01e Oleson (C. C.) 20 Fed. 384. so SPEDDEN v. KOENIG, 7S Fed. 504, 24 C. C. A. 1S9; Woodall v. Dempsey (D. C.) 100 Fed. 653 ; Besse v. Hecht (D. C.) 85 Fed. 677 ; Heirne v. Smith, 7 Ring. 700, 20 E. C. L. 300; Briggs & Cobb v. Barnett, 108 Va. 404, 61 S. E. 797. This power to bind the owners personally in the home port must not be confused with his power to bind the ship under Act June 23, 1910; ante, chapter iv. si FRAZER v. CUTHBERTSON, 6 Q. B. D. 93; Vindobala, 13 P. D. 42; Id., 14 P. D. 50; Scull v. Raymond (D. C.) IS Fed. 547: Stedman v. Feidler, 20 N. Y. 437. 32 Ante, p. 107. 33 Waldo, "2 Ware, 165, Fed. Cas. No. 17,056. Sec. also, Tavlor 344 VESSEL OWNERSHIP ( Ch. 15 on a vessel while in transit, but not for damages received by their sale and disposition after they had been taken from the vessel; the master, as to these latter transactions, be- ing- considered the agent of the shippers, and not of the vessel owners. The fact that a person appears on the papers of the ves- sel as owner does not make him liable. As seen above, he is not liable if he has expressly dissented from the voyage. In addition, if the bill of sale or title which he holds is a mere security, as a mortgage in disguise, and he has not the possession of the vessel, he is not liable. The question reduces itself to one of agency. In such case, as he has not possession, he has not the power of appointment or con- trol, and the parties operating the vessel are not his agents. Even if the vessel is run on shares by the master, that does not constitute him their agent. 34 v. Brigham, 3 Woods, 377, Fed. Cas. No. 13,781; ante, p. 215. a* Myers v. Willis, 17 C. B. (84 E. C. L.) 77; Webb v. Peirce. 1 Curt. 104, Fed. Cas. No. 17,320; Davidson v. Baldwin, 79 Fed. 95, 24 C. C. A. 453 ; Morgan v. Sbinn, 15 Wall. 105, 21 L. Ed. 87. 1G0) RIGHTS AND LIABILITIES OF OWNERS 345 CHAPTER XVI OF THE RIGHTS AND LIABILITIES OF OWNERS AS AF- FECTED BY THE LIMITED LIABILITY ACT 160. History of Limitation of Liability in GeneraL 101. History and Policy of Federal Legislation. 162. By Whom Limitation of Liability may be Claimed. 163. Against what Liabilities Limitation may be Claimed. 164. Privity or Knowledge of Owner. 165. The Voyage as the Unit. 166. Extent of Liability of Part Owners. 167. Measure of Liability — Time of Estimating Values. 168. Prior Liens. 169. Damages Recovered from Other VesseL 170. Freight 171. Salvage and Insurance. 172. Procedure — Time for Taking Advantage of Statute. 173. Defense to Suit against Owner, or Independent Proceeding. 174. Method of Distribution, HISTORY OF LIMITATION OF LIABILITY IN GENERAL 160. The limitation of owner's liability is an outgrowth of the modern maritime law and codes. Under the ancient civil law the owners were bound in solido for the liabilities of the ship arising out of contract, and in proportion to their respective interests for liabilities arising out of tort. This, however, merely settled the ques- tion of proportion as between the owners, but not the ques- tion of the extent of their liability. There seems to have been no limit on this as respects the value of the vessel. But the importance of encouraging maritime adventures, especially in the Middle Ages, when that was almost the only method of communication among nations, led to the gradual adoption, among the maritime continental codes, of 346 RIGHTS AND LIABILITIES OF OWNERS (Ch. 16 provisions limiting the liability of the owners to their re- spective interests in the ship. The greater frequency of maritime disasters in those days of frail craft emphasized the need of such a provision. Among others, we find these carried into the famous marine Ordonnance of Louis XIV, one provision of which is that the owners of a ship shall be answerable for the deeds of the master, but shall be dis- charged, abandoning their ship and freight. 1 In the last century this policy was partially adopted in England, though their act of limited liability was then, and still is, less favorable to the vessel owner than most of the other acts. The history of the development of this principle of mod- ern maritime law is summarized by Judge Ware in the REBECCA, 2 decided long before there was any federal statute on the subject. HISTORY AND POLICY OF FEDERAL LEGISLA- TION 161. The federal statutes are sections 4282-4289, Rev. St., 8 Act June 26, 1884, 4 and Act June 19, 1885/' They are designed to encourage shipping by extending all possible protection to vessel owners. In one sense the Harter Act (U. S. Comp. St. §§ 8029- 8035) is an act limiting the liability of owners. This, how- ever, regulates not so much their liability in amount as the question whether they are responsible at all or not. But the acts immediately in view in the principal connection are rather those limiting the amount of their liability where § 160. » 30 Fed. Cas. p. 1,206. 2 1 Ware (188) 1ST, Fed. Cas. No. 11,619. s U. S. Comp. St. §§ S020-8027. 4 23 Stat. 57 (V. S. Comp. St. § 8028) ; post, p. 404. t>24 Stat. SO (U. S. < Oinp. St. § SOL'T); post, p. 407. § 161) HISTORY AND POLICY OF FEDERAL LEGISLATION 347 some liability undoubtedly exists, and not the acts defining whether or not they are liable at all. The first act above mentioned, now contained in sections 4282-4289 of the Revised Statutes, was passed on March 3, 1851, and is similar to the British statute, although in many respects the act itself and the construction placed up- on it by the courts is more liberal to the vessel owner. The statutes regulating the relation of shippers and car- riers were not intended to repeal these statutes pro tanto, or to change their policy. 6 Policy of the Act The policy of these acts is explained by Mr, Justice Brad- ley in NORWICH & N. Y. TRANSP. CO. v. WRIGHT, 7 a leading case on the subject. In it he says: "The great object of the law was to encourage shipbuild- ing, and to induce capitalists to invest money in this branch of industry. Unless they can be induced to do so, the ship- ping interests of the country must flag and decline. Those who are willing to manage and work ships are generally unable to build and fit them. They have plenty of hardi- ness and personal daring and enterprise, but they have lit- tle capital. On the other hand, those who have capital, and invest it in ships, incur a very large risk in exposing their property to the hazards of the sea, and to the management of seafaring men, without making them liable for addi- tional losses and damage to an indefinite amount. How many enterprises in mining, manufacturing, and internal s So held as to the section of the Interstate Commerce Act which defines the carriers, whether by land or by water, which are subject to its provisions, and also as to the amendment making the initial carrier primarily responsible. 24 Stat. 379 (U. S. Comp. St. § 8563). and 34 Stat. 595 (U. S. Comp. St. § 8604aa) ; Hoffmans (D. C.) 171 Fed. 455 ; Burke v. Gulf, C. & S. F. Ry. Co. (Mun. Ct. N. Y.) 147 X. Y. Supp. 794. 7 13 Wall. 104, 20 L. Ed. 585. See, also, Doslions v. La C^m- pagnie Generate Transatlantique, 210 U. S. 95, 120, 28" Sup. Ct. 664, 673, 52 Ll Ed. 973. 348 RIGHTS AND LIABILITIES OF OWNERS (Ch. 16 improvements would be utterly impracticable if capitalists were not encouraged to invest in them through corporate institutions by which they are exempt from personal lia- bility, or from liability except to a limited extent? The public interests require the investment of capital in ship- building quite as much as in any of these enterprises. And, if there exist good reasons for exempting innocent ship- owners from liability, beyond the amount of their interest, for loss or damage to goods carried in their vessels, pre- cisely the same reasons exist for exempting them to the same extent from personal liability in cases of collision. In the one case as in the other, their property is in the hands of agents whom they are obliged to employ." Liability for Fires — "Design or Neglect" The first section of this act 8 does (contrary to the re- maining portion of it) define certain circumstances under which the question of the responsibility of the vessel own- er is involved, rather than the question of its extent. It provides, in substance, that there shall be no liability at all for a fire unless the fire is caused by the design or neglect of the owner. This, therefore, furnishes a complete de- fense to any liability, and not, as the remainder of the act, a method of surrendering an interest in the vessel itself as a means of limiting the liability. The meaning of these words "design or neglect" came up in Walker v. Western Transp. Co., 9 and the construction plac- ed upon them by the courts is, in substance, that the owners are exempted, though there might be some design or neg- lect of their agents or employes, provided the vessel owner was not guilty of any personal design or neglect. In the opinion of the court Mr. Justice Miller says: "It is quite evident that the statute intended to modify the shipowner's common-law liability, for everything but s Rev. St. § 4282 (U. S. Comp. St. § S020). »3 Wall. ir,0, 18 L. Ed. 172. See. also, Ingram & Royle, Ltd., v. Servires Maritimes, [1913] 1 K. B. 538. § 161) HISTORY AND POLICY OF FEDERAL LEGISLATION 349 the act of God and the king's enemies. We think that it goes so far as to relieve the shipowner from liability for loss by fire, to which he has not contributed either by his own design or neglect. "By the language of the first section the owners are re- leased from liability for loss by fire in all cases not coming within the exception there made. The exception is of cases where the fire can be charged to the owner's design or the owner's neglect. "When we consider that the object of the act is to limit the liability of owners of vessels, and that the exception is not in terms of negligence generally, but only of negligence of the owners, it would be a strong construction of the act, in derogation of its general purpose, to hold that this ex- ception extends to the officers and crews of the vessels as representing the owners. * * * We are, therefore, of opinion that, in reference to fires occurring on that class of vessels to which the statute applies, the owner is not liable for the misconduct of the officers and mariners of the ves- sel, in which he does not participate personally." The later case of the Strathdon 10 involved an injury to the cargo from a heated flue in the ship. It appeared that the ship had been built by reputable builders. District Judge Thomas, in delivering the opinion of the court, dis- cussed these words as follows : "Hence the shipowners are not liable for injury to the cargo by fire, unless the cargo owner prove by a prepon- derance of evidence that the fire was caused by the design or neglect of the shipowners touching some duty that was imposed on them personally. A strained meaning should not be given to the words 'design or neglect.' The word 'design' contemplates a causative act or omission, done or suffered willfully or knowingly by the shipowner. It in- 10 (D. C.) 89 Fed. 374. See, also, Diamond, [1906] p. 2S2 (an over- heated stove). P.50 RIGHTS AND LIABILITIES OF OWNERS (Ch. 16 volves an intention to cause the fire, or to suffer it to be caused by another. The culpability is in the nature of a trespass. It is not understood that there is any claim that the fire in question was caused by such design of the ship- owners. The word 'neglect' has an opposite meaning. Negligence involves the absence of willful injury, and is an unintended breach of duty, resulting in injury to the prop- erty or person of another. Were the shipowners guilty of such breach of duty? The duty was to use due care (and it may be assumed that a high degree of care would be re- quired) to furnish a donkey boiler, if one were furnished at all, so related to the other parts of the ship that the cargo carried in the ship would not be fired, directly or indirectly, by the action of such a boiler, at least when properly used. What should suitably prudent proposed shipowners do to fulfill this duty? If they were not competent shipbuilders, they should engage persons of proper skill and carefulness, and delegate to them the performance of the duty. If the duty could not be delegated so as to exempt them from lia- bility, yet the care and skill of the builders would inure to the benefit of the shipowners. * * * If, now, the ship- owner has employed such reputable constructors, and if the use of the completed ship for several years justify the propriety of its arrangement and precaution against fire, and if very skilled men pronounce that the work accords with the existing knowledge of their profession, and if no man Be forthcoming to declare otherwise, why should the shipowners be held to have failed in skill or diligence? Their care and skill should be equal to the prevailing knowl- edge of the mechanism which they undertake to construct and use, and to that standard they have attained. If there was any higher skill or ability existing at any time before the fire, evidence of it should have been given. In the ab- sence of such evidence, and in view of the ample proof that what was known on the subject was employed in the con- struction of the donkey boiler and flue, the shipowners must § 161) HISTORY AND POLICY OF FEDERAL LEGISLATION 351 be considered suitably diligent. It results that they are not liable for the injury to the cargo resulting from the fire." Under this first section exempting the ship from entire liability, it has been held, in considering the peculiar phrase- ology of the section itself, that it only applied to fire on the ship, or to fires originating off the ship, and then commu- nicating to the ship, and damaging goods on the ship. If the injury was received to goods on the wharf, or a wharf- boat alongside of the ship, there would not be any exemp- tion from liability under the terms of this first section. 11 At the same time, an injury by fire, though not on the ship, can be set up in partial exemption under section 4283 ; as injuries by fire occurring without the privity or knowl- edge of owners come under the terms of that section. 12 Hence, as to injuries by fire, the question of exemption may arise in two ways : First, if it occurred on board the ship without any personal design or neglect of the ship- owner, complete exemption from liability can be pleaded ; second, if it occurs in such way as to render the ship or the shipowner liable, the owner may plead partial exemption by surrendering the vessel and freight under the terms of section 4283. 'Exemption from Contract Liability by Act June 26, 1884 The act of 1851 remained substantially as originally draft- ed, with the exception of two slight amendments (which are embodied in the text in the last edition of the Revised Stat- utes), until 1884. But section 18 of the act of June 26, 1884, greatly extend- ed its provisions. This section was not, in terms, an amend- ment of the act of 1851. This first act had only applied to cases ex delicto. By the new act the owners were allowed to limit their liability to their proportionate interests in ii Egypt (D. C.) 25 Fed. 320; City of Clarksville (D. C.) 04 Fed. 201 : Black v. Ashley, SO Mich. 90, 44 N. W. 1120. 12 PROVIDENCE & N. Y. S. S. CO. v. HILL MFG. CO., 109 U. S, 578, 3 Sup. Ct. 379. 017, 27 L. Ed. 103S. 352 RIGHTS AND LIABILITIES OP OWNERS (Ch. 16 the vessel against obligations incurred by a master or part owner, whether on contract or tort. But this was only to debts for which they would become liable on account of their ownership in the vessel, and did not apply to personal contracts of their own. 13 The difference between the two acts is explained in the Annie Faxon, 14 where the court says : "We fail to find in the language of the eighteenth section of the act of June 26, 1884, a purpose to repeal the provi- sions of any pre-existing statute. While its terms are vague, it would appear that the sole object of the act was to fix the liability of the shipowners among themselves, and extend their right to limit their liability under the provi- sions of section 4283 to all cases of debt and liability under contract obligations made on account of the ship, with the exception of wages due employes. In Chappell v. Brad- shaw (C. C.) 35 Fed. 923, the court construed it thus: 'There are no words in it which signify that it was intended to be a repealing statute. It appears to be another section, intended to take its place at the end of the act of 1851, as that act is given in the Revised Statutes. It is another sec- tion, extending the exemption of shipowners to all or any debts or liabilities of the ship, except seamen's wages and liabilities incurred before the passage of the act of 1884. Where a subsequent statute can be so construed as not to bring it in direct conflict with an antecedent law, it will not be held by the courts to repeal the former statute. Repeals by implication are seldom allowed, and to do so in this in- stance would be to do violence to the intention of Congress, which appears to have been to extend the act of 1851 to is Pendleton v. Benner Line, 24G U. S. 353, 38 Sup. Ct. 330, 02 L. Ed. 770: Luekenbaoh v. W. J. McCahan Sugar Refining Co., 24S U. S. 139, 39 Sup. Ct. 53, G3 L. Ed. 170, 1 A. L. R. 1522 ; Capitol Transp. Co. v. Cambria Steel Co., 249 TJ. S. 334, 39 Sup. Ct. 292, 63 L. Ed. 631. » * 75 Fed. 312, 21 C. C. A. 366. § 161) HISTORY AND POLICY OF FEDERAL LEGISLATION 353 exempt shipowners from liabilities not embraced in this act.' In Gokey v. Fort (D. C.) 44 Fed. 364, Brown, J., said : 'I think the act of 1884 is doubtless to be treated as in pari materia with the act of 1851 (Rev. St. §§ 4233-4285), and designed to extend the act of 1851 to cases of the master's acts or contracts, and thus to bring our law into harmony with the general maritime law on this subject." 1 Amendment of June 19, 1886 — Constitutionality The act of June 19, 1886, was, in terms, an amendment of the act of 1851. The original act had debarred from its benefits the owners of any canal boat, barge, or lighter, or any vessel used in rivers or inland navigation. There had been some discussion as to the meaning of "inland naviga- tion" under this law, and it had been held, among others, that the exception did not apply to the Great Lakes. 15 The question of the constitutionality of these acts has been considered in two notable cases. In Lord v. Goodall, N. & P. S. S. Co., 16 the constitutionality of the act was up- held under the commerce clause of the Constitution; that being a case of a vessel which navigated the high seas between ports of the same state. But afterwards the ques- tion as to the validity of the law in relation to vessels en- gaged solely in inland navigation came before the court, and the constitutionality of the law was sustained under the admiralty clause of the Constitution, independent of the commerce clause. The reasoning of the court is, in sub- stance, that the doctrine of limited liability is an established part of the general maritime law, and that, while that gen- eral law has no place in our jurisprudence until adopted, the right to adopt it at any time is clearly vested in Congress. This question has been discussed fully in the chapter re- is Craig v. Continental Ins. Co., 141 U. S. 63S, 12 Sup. Ct. 97, 35 L. Ed. 886. ig4 Sawy. 292, Fed. Cas. No. 8,506; Id., 102 U. S. 541, 26 L. Ed. 224. Hughes.Adm. (2d Ed.)— 23 354 RIGHTS AND LIABILITIES OF OWNERS (Ch. 16 lating to injuries resulting in death, to which reference is made. 17 BY WHOM LIMITATION OF LIABILITY MAY BE CLAIMED 162. The benefit of the act may be claimed by any owner or part owner who had no privity or knowledge of the fault which gave rise to the liability. Where a vessel is owned by several parties, and incurs lia- bilities, though those liabilities are incurred by the master or managing owner, the other part owners, who had no priv- ity or knowledge of it, can claim the benefit of the act, and limit their responsibility to the value of their several part interests. This applies to debts and liabilities contracted in the usual course of trade of a vessel, as well as to torts. 18 Its benefits may be claimed by the underwriter to whom a vessel has been abandoned, and against any liability in- curred while the vessel is in charge of their agent. 19 As the act is part of the general maritime law, it may be claimed by a foreigner. 20 But it can be claimed only by an owner or charterer op- erating the ship. One who hires a ship under a contract which leaves her operation to some one else cannot take advantage of the statute. 21 ' 17 Ante, p. 237; In re Garnett, 141 U. S. 1, 11 Sup. Ct. 840, 35 L. Ed. 631. § 162. is In re Leonard (D. C.) 14 Fed. 53: Warner v. Boyer (D. C.) 74 Fed. 873; S. A. McCaulley (D. C.) 09 Fed. 302: Douse v. Sargent (D. C.) 48 Fed. 695. 19 Craig v. Continental Ins. Co., 141 U. S. 638, 12 Sup. Ct. 97, 35 L. Ed. 886. 20 SCOTLAND, 105 U. S. 24. 26 L. Ed. 1001; Titanic v. Melloi 233 D. S. 718, 34 Sup. Ct. 754, 58 L. Ed. 1171. -i Smith v. Booth (D. C.) 110 Fed. 6S0; Id.. 122 Fed. 626, 58 C. C. A. 479: In re Reichert Towing Line, 251 Fed. 214, 103 C. C. A. 370. § 163) AGAINST WHAT LIMITATION MAT BE CLAIMED 355 AGAINST WHAT LIABILITIES LIMITATION MAY BE CLAIMED 163. Under the original act, the only liabilities against which exemption could be pleaded were those over which an admiralty court would have jurisdiction, whether in point of fact they were being asserted in an admiralty court or in a common-law court having concurrent jurisdiction. But under the amendment of June 26, 1884, the defense was authorized against nonmaritime causes of ac- tion also. The leading decision laying this down as the test under the original act is EX PARTE PHENIX INS. CO. 22 In that case a fire had communicated from the vessel to the shore, and had done damage on the shore. It was. con- tended that the vessel owner could limit his liability against such a cause of action as this, and that it came within the language of the statute. The court, however, held that, as a cause of action originating on water, but consummate on land, could not be asserted in an admiralty court, the own- er could not claim the benefit of the act, it being a part of the general maritime law, and resting mainly on that law for its validity. 23 As examples of such causes of action, the defense has been sustained against fires on vessels, 24 and it may be pleaded not only against loss or damage to property, but also against personal injuries, including those resulting in death ; and not only against those injured on the vessel itself which is setting up the exemption, but those also injured upon § 163. 22 H8 U. S. 610, 7 Sup. Ct. 25, 30 L. Ed. 274. 23 See, also, Goodrich Trausp. Co. v. Gagnon (C. C.) 36 Fed. 123. 2* Ante, p. 348. 356 RIGHTS AND LIABILITIES OF OWNERS (Ch. 16 another vessel by the negligence of the vessel asserting the exemption. 25 This includes injuries due to collision. 26 Though the test of maritime jurisdiction was applied as to cases under the original act, the Supreme Court has held that the intent of the amendment of June 26, 1884, was to extend the exemption to nonmaritime causes of action as well, whether in contract or tort, in pursuance of the pol- icy of encouraging American shipping. 27 In this respect the policy of the act differs from that of the Harter Act. It has been seen 28 that the Harter Act is held to regulate only the relations between a shipper and his own ship, and not to affect any rights of action which parties on another ship injured by the offending ship may have. On the other hand, this act enables the owner to defend himself not only against his own shippers or passengers, but against those on the other vessel as well. The reason for the difference of policy is that the Harter Act works an entire exemption from all liability, whereas this act permits the injured party to subject the owner's interest in the ves- sel, and merely protects the owner from additional liability beyond the value of his vessel. The act may be invoked even against unseaworthiness caused by negligent loading, which is another striking dif- ference between it and the Harter Act. 29 ze BUTLER v. BOSTON & S. STEAMSHIP CO., 130 U. S. 527, 9 Sup. Ct. 612, 32 L. Ed. 1017 ; Albert Dumois, 177 U. S. 240, 20 Sup. Ct. 595, 44 L. Ed. 751; City of Columbus (D. C.) 22 Fed. 460; Am- sterdam (D. C.) 23 Fed. 112; Glaholm v. Barker, L E. 2 Eq. 598; Id., 1 Ch. App. 223. 2 6 NORWICH & N. Y. TRANSP. CO. v. WRIGHT, 13 Wall. 104, 20 L. Ed. 585 ; Great Western, US U. S. 520, 6 Sup. Ct. 1172, 30 L. Ed. 156. a? Richardson v. Harmon, 222 U. S. 96, 32 Sup. Ct. 27, 56 L. Ed. 110; Rochester (D. C.) 230 Fed. 519. 2 8 Ante, p. 183. 29 COLIMA (D. C.) S2 Fed. 665. § 164) PRIVITY OR KNOWLEDGE OF OWNER 357 It may be pleaded against any wrongful acts of the mas- ter; for example, his wrongful sale of the cargo. 30 PRIVITY OR KNOWLEDGE OF OWNER 164. In order for the owners to exonerate themselves, the negligent act must have been without their privity or knowledge. This means the personal privity or knowledge of the owners, and not the mere privity or knowledge of their agents; except that in the case of a corporation the privity or knowledge of the president or other high official above the grade of an employe is the privity or knowledge of the corporation, and would defeat the right of the cor- poration to the exemption. The question what constitutes privity or knowledge has been the subject of much discussion. It is clear, at the outset, that actual knowledge of the owners would pre- vent them from claiming the exemption. 31 Nor can it be claimed against liabilities which the own- ers have personally contracted; for instance, supplies or- dered by them personally. 32 It can be claimed only against those liabilities incurred as owner, not against contracts outside of the regular func- tions of the vessel owner. For instance, it has been held that it could not be set up against a vessel owner's contract to insure the goods shipped. 33 It may be set up even against defects which would be held to constitute unseaworthiness if those defects were not dis- coverable by the ordinary examination of an unskilled per- 30 Giles Loring (D. C.) 48 Fed. 463. § 164. si in re Meyer (D. C.) 74 Fed. 881. 32 Amos D. Carver (D. C.) 35 Fed. 665; McPhail v. Williams (D. C.) 41 Fed. 61 ; Gofcey v. Fort (D. C.) 44 Fed. 364. ssLaverty v. Clausen (D. C.) 40 Fed. 542. 358 RIGHTS AND LIABILITIES OF OWNERS (Ch. 16 son. In Quinlan v. Pew 34 the owners had chartered the vessel out to the master. There was a defect in the rig-gfins: at the time of the commencement of the voyage which the owners did not know, and which the master did know be- fore she sailed. The owners had employed him to put the vessel in order, and he did not report this defect to them. In consequence of the defect, one of the crew was injured, and the owners attempted to limit their liability by appeal- ing to this statute. This was contested on the ground that they ought to have known of this defect; that it was such a defect as affected the seaworthiness of the vessel, and that, therefore, they should be denied the exemption. The court, however, held that the knowledge of the agent em- ployed by them to make these repairs, and their joint obliga- tion to render the vessel seaworthy, did not make them privy to this defect, and therefore that they were entitled to limit their liability. In the Warkworth, 35 which arose under the English stat- ute, a collision was caused by a defect in the steering gear of the vessel. The owners had employed a man on shore to inspect the vessel ; and, if he had done his duty, the de- fect could have been discovered. It was held that this fact did not prevent the owners from limiting their liability. In Lord v. Goodall, N. & P. S. S. Co., 36 Circuit Judge Sawyer thus discusses the meaning of the words "privity or knowledge" : "As used in the statute, the meaning of the words 'privity or knowledge' evidently is a personal participation of the owner in some fault or act of negligence causing or contrib- uting to the loss, or some personal knowledge or means of 3* 56 Fed. Ill, 5 C. C. A. 438. 35 9 p. D. 20: Id.. 9 P. D. 145. 3 6 4 Sawy. 292, Fed. Cas. No. 8,506. This case was takon to the Supreme Court, and was affirmed on the question of the constitu- aonality of the statute. See 102 U. S. 541, 2<; L. Ed. 224. The merits do not sooin to have come before the Supreme Court. § 1G4) PRIVITY OR KNOWLEDGE OP OWNER 359 knowledge, of which he is bound to avail himself, of a con- templated loss, or of a condition of things likely to produce or contribute to the loss, without adopting appropriate means to prevent it. There must be some personal con- currence, or some fault or negligence on the part of the owner himself, or in which he personally participates, to constitute such privity, within the meaning of the act, as will exclude him from the benefit of its provisions. Hill Mfg. Co. v. Providence & New York S. S. Co., 113 Mass. 499, 18 Am. Rep. 527. It is the duty of the owner, how- ever, to provide the vessel with a competent master and a competent crew, and to see that the ship, when she sails, is in all respects seaworthy. He is bound to exercise the ut- most care in these particulars — such care as the most pru- dent and careful men exercise in their own matters un- der similar circumstances; and if, by reason of any fault or neglect in these particulars, a loss occurs, it is with his privity, within the meaning of the act. * * * So, also, if the owner has exercised all proper care in making his ship seaworthy, and yet some secret defect exists, which could not be discovered by the exercise of such due care, and the loss occurs in consequence thereof, without any further knowledge or participation on his part, he is in like manner exonerated, for it cannot be with his 'privity or knowledge,' within the meaning of the act, or in any just sense ; and the provision is that 'the liability of the owner * * * for any act, matter or thing, loss, etc., * * * occasioned without the privity or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner in such vessel and her freight then pending.' This language is broad, and takes away the quality of warranty implied by the common law against all losses except by the act of God and the pub- lic, enemy. When the owner is a corporation, the privity or knowledge of the managing officers of the corporation 360 RIGHTS AND LIABILITIES OP OWNERS (Ch. 16 must be regarded as the privity and knowledge of the cor- poration itself." But if the warranty of seaworthiness springs from an express contract made by the owner personally, and not as a mere implication, the owner cannot defend on the want of privity or knowledge, for he must know what contract he made personally. 37 The question of the privity or knowledge of a corpora- tion has been the subject of many interesting decisions. The result of these decisions is in substance that knowledge of some defect (even amounting to unseaworthiness) by some agent or employe is not the knowledge of the corpo- ration, so as to defeat its right to the exemption ; but the knowledge of the president or other high official of the cor- poration would be. In the COLIMA, 88 the vessel was rendered unseaworthy by the method in which her master and crew loaded her, and it was contended that this defeated the corporation own- er's right to the exemption. District Judge Brown, how- ever, held that it did not. In his opinion he says: "I think the petitioner, upon surrender of the freight ($23,846.58), is entitled to the exemption provided by sec- tion 4283 of the Revised Statutes, as not being privy to the defects in loading, or in the management of the ship at sea, nor having knowledge of them. Privity and knowledge are chargeable upon a corporation when brought home to its principal officers, or to the superintendent, who is its rep- resentative ; and, if such privity or knowledge were here brought home to Mr. Schwerin, the petitioner's superin- tendent, they would be chargeable upon the corporation. But the privity or knowledge referred to in the statute is not that which arises out of the mere relation of principal 3 7 Pendleton v. Benner Line, 246 U. S. 353, 38 Sup. Ct. 330, 62 L. Ed. 770. 38 (D. C.) 82 Fed. 665. See, also, Erie Lighter 108 (D. C.) 250 Fed. 400, 404(5). § 1G4) PRIVITY OR KNOWLEDGE OF OWNER 361 and agent by legal construction. If it were, the statute would have nothing to operate upon, since the owner does not become liable at all except for the acts of himself or his agent. The object of this statute, however, was to abridge the liability of shipowners arising out of a merely constructive privity with their agent's acts, by introduc- ing the rule of limited liability prevailing in the general maritime law, upon the terms prescribed in the statute, so far at least as respects damages for torts ; while the act of 1884 extends this limitation to contracts also, except as to seamen's wages. * * * The knowledge or privity that excludes the operation of the statute must, therefore, be in a measure actual, and not merely constructive; that is, actual through the owner's knowledge, or authorization, or immediate control of the wrongful acts or conditions, or through §ome kind of personal participation in them. If Mr. Schwerin, the superintendent, had been either charged personally with the duty of directing or managing the dis- tribution of this cargo with reference to the stability of the ship, or had assumed that function, the company would per- haps have been 'privy' to any defects in loading arising from the negligence of workmen under his immediate direction and control, whether he had actual knowledge of their de- linquencies or not; since it is the duty of the person in im- mediate charge and actual control to see and know that proper directions are carried out. However that may be, Mr. Schwerin had no such duty, and assumed no such function. That duty, as the evidence shows, was commit- ted to a competent stevedore, who acted under the imme- diate direction of the master and first mate, or in conjunc- tion with them. The master and mate were the proper persons to determine and insure the necessary trim and sta- bility of the ship, and are supposed to be specially qualified to do so. Lawrence v. Minturn, 17 How. 100, 111, 116, 15 L,. Ed. 58. Whatever mistakes or negligence may have occurred in that work, there is no evidence that Mr. Schwer- •^62 RIGHTS AND LIABILITIES OF OWNERS (Ch. 16 in knew of them ; nor would they naturally have come to his knowledge ; and I do not see the least reason to doubt his testimony that he believed that the ship was properly loaded, and perfectly seaworthy. The deck load was no in- dication to the contrary, because deck loads were custom- ary, and safe with proper loading below." In the Annie Faxon, 39 an injury happened from an ex- plosion of the boiler. It appeared that the corporation own- ing the vessel had left the duty of inspecting this boiler to a competent marine engineer, and that the defect which caused the injury would not have been apparent to an un- skilled person. It was held that the negligence of this em- ploye to inspect the boiler properly was not such privity or knowledge of the corporation as defeated its right to the exemption. In the opinion Gilbert, J., says : "We are unable to perceive how there can be imputation of privity or knowledge to a corporation of defects in one of its vessel's boilers, unless the defects were apparent, and of such a character as to be detected by the inspection of an unskilled person. The record fails to show that the de- fects were of this character. The testimony fairly sustains the finding of the court that the defects in the boiler were not patent, and that they could have been discovered only by applying the proper tests after the repairs of June, 1893. The test was not applied, and in that omission is one of the elements of the negligence of the petitioners, as found by the court. When we consider the purpose of the law which is under consideration, and the construction that has been given to it by the courts, it is obvious that the man- agers of a corporation whose business is the navigation of vessels are not required to have the skill and knowledge which are demanded of an inspector of a boiler. It is suffi- cient if the corporation employ, in good faith, a competent person to make such inspection. When it has employed ™ 75 Fed. 312, 21 C. C. A. 366. See, also, Plarry Hudson Smith, 142 Fed. 721, 74 C. C. A. 56. § 164) PRIVITY OR KNOWLEDGE OF OWNER 303 such a person in good faith, and has delegated to him that branch of its duty, its liability beyond the value of the vessel and freight ceases, so far as concerns injuries from defects of which it has no knowledge, and which are not ap- parent to the ordinary observer, but which require for their detection the skill of an expert." It was held, however, in this same case, that the require- ment of section 4493 of the Revised Statutes (U. S. Comp. St. § 8269), making exceptions in favor of passengers on vessels, was not affected by the limited liability act, it being an entirely different statute, which, when considered in pari materia with the limited liability act, might be considered an exception to it. In Craig v. Continental Ins. Co., 40 the injury arose from the negligence of an employe of the insurance company to which the vessel had been abandoned. The employe was attempting to bring her to port in a disabled condition. The court held that his negligence was not the privity or knowledge of the insurance company, which owned her by virtue of the abandonment, and that they could claim the limitation of liability. The habitual disregard of the rule against immoderate speed in a fog by the navigators of a ship does not deprive the owner of the right to a limitation unless knowledge of such practice is brought home to him. 41 The failure of the captain of a ship to follow the direc- tions of his Government in time of war does not defeat the owner's right to a limitation. 42 On the other hand, in the Republic, 43 a barge belonging to a corporation was being used for an excursion, and while 4u 141 U. S. 63S, 12 Sup. Ct. 97, 35 L, Ed. 886. 4i Peslions v. La Compagnie Generate Transatlantique. 210 U. S. 95, 28 Sup. Ct. 664, 52 L. Ed. 973 ; Boston Marine Ins. Co. v. Met- ropolitan Redwood Lumber Co., 197 Fed. 703, 117 C. C. A. 97. . 42 Lusitania (D. C.) 251 Fed. 715. 43 61 Fed. 109, 9 C. C. A. 386. 364 RIGHTS AND LIABILITIES OF OWNERS (Ch. 16 in such use, with many passengers aboard, was injured by a thunderstorm of no extraordinary severity. The barge had been inspected by the president of the corporation, and its unsafe condition was apparent. The court held that his knowledge was the knowledge of the corporation, and that they could not plead the statute in defense under such cir- cumstances. A superintendent with general control and management of a company's business is an official of such grade that his knowledge is the knowledge of the corporation. 44 THE VOYAGE AS THE UNIT 165. The end of the voyage is the time as of which the ex- emption can be claimed, the voyage being taken as the unit. If the voyage is broken up by a dis- aster — as, for example, when the vessel is totally lost — that is taken as the time. It can readily be understood that the act does not intend to permit the owners an exemption for an indefinite period prior to the accident. As the act of 1884 extended the right of exemption to debts as well as torts, the hardship of such a construction would be patent. Hence the courts have taken the voyage as the unit, and permitted the owner to protect himself simply against the liabilities of the voyage. This may be difficult to apply in many cases, and, in fact, in the case of boats which make very short voyages, may greatly curtail the benefit of the act to the owner ; but that is settled as the test. In the CITY OF NORWICH, 45 this was laid down as the rule by the United States Supreme Court. There the vessel was destroyed by an accident. 44 Erie Lighter 108 (p. C.) 250 Fed. 490; Eastern S. S. Corpora- tion v. Great Lakes Dredge & Dock Co. (C. C. A.) 25G Fed. 497. § 1G5. 4 5 us U. S. 468, 6 Sup. Ct. 1150, 30 L. Ed. 134. See, also, Americana (D. C.) 230 Fed. 853. § 167) MEASURE OF LIABILITY 365 In the Great Western, 48 the vessel had one accident, and, proceeding on her voyage, had a second accident, entirely disconnected with the first — the result of the second acci- dent being the wreck of the vessel. The court held that the termination of the voyage was the second accident, and that the owners could limit their liability for everything up to that point on that voyage. 47 This means the straight voyage, not the round trip. 48 EXTENT OF LIABILITY OF PART OWNERS 166. The part owners are liable each to the extent of their proportionate interest in the vessel, except that a part owner personally liable cannot claim the ex- emption at all. 49 MEASURE OF LIABILITY— TIME OF ESTIMATING VALUES 167. The value of the vessel and pending freight is taken just after the accident, or end of the voyage, if the voyage is not broken up by the accident. This is laid down by the Supreme Court in the case of the SCOTLAND, 50 and marks a material difference be- tween the American and English act. Our act fixes the value of the vessel just after the accident, so that, if she is totally lost, the liability of the owner is practically noth- ing. The English act, on the other hand, takes a tonnage 4 6 us TJ. S. 520, 6 Sup. Ct. 1172, 30 L. Ed. 156. 47 See, also, Gokey v. Fort (D. C.) 44 Fed. 364; Geo. L. Garlick, 107 Fed. 542, 46 C. C. A. 456. 4 8 Deslions v. La Compagnie Gengrale Transatlantique, 210 U. S. 95, 28 Sup. Ct. 664, 52 L. Ed. 973. § 166. 49 "Whitcomb v. Emerson (D. C.) 50 Fed. 128 ; Giles Loring (D. C.) 48 Fed. 463. § 167. bo 105 U. S. 24, 26 L. Ed. 1001. 366 RIGHTS AND LIABILITIES OF OWNERS (Ch. 16 valuation just before the accident, so that, in case of total loss, under the English act the owner must make up to the creditors of the vessel substantially the value of the vessel uninjured. In the CITY OF NORWICH, 51 it is settled as the law of this country that the value is taken as of the end of the voyage, if not lost, but at the accident if the vessel is totally lost, and the voyage thereby broken up. Hence, if a vessel is partially injured, and subsequently raised and repaired, the owners can have the cost of raising and repairing taken into consideration, and receive credit for them in the valua- tion of the vessel. The voyage itself may be rather an indefinite expression. For instance, it has been held in the case of a vessel used during a fishing season that the entire fishing season ought to be treated as one voyage, and that, therefore, the owners must account for the entire season's earnings in order to obtain the benefit of the limitation. 62 SAME— PRIOR LIENS 168. The res must be surrendered clear of prior liens. In fixing the value, the owner must account for the value of the res, clear of all liens or claims prior to the voyage. The res, in the sense of this statute, may consist of more than one vessel. In the Bordentown, 53 several tugs belong- ing to the same owner were towing a large tow of many barges. After the towage commenced, one of the tugs was detached, but the two remaining tugs were guilty of an act of negligence, causing great loss. The court held • r -i IIS U. S. 4GS, 6 Sup. Ct. 1150, 30 L. Ed. 134. See, also, A.bbie C. stubbs (D. C.) 28 Fob 719; Mauch Chunk (D. C.) 139 Fed. 717; 1.1.. 1.14 Fed. 182, 83 C. C. A. L'7C». 62 Whitcomb v. Emerson (D. C.) 50 Fed. 128. § 168. 53 (D. C.) H' Fed. 682. § 168) MEASURE OF LIABILITY 367 that the owner, in order to claim the benefit of the statute, must surrender the two tugs that participated in the negli- gent act, but not the one which had been detached before the act occurred. In the Columbia, 54 a barge without means of propulsion was being towed by a tug, and a large quantity of freight was on the barge. When exemption was claimed against an accident, including large claims of personal injury, it was held that the owner was required to surrender both the tug and the barge. The rule is that the vessels at fault must be surrendered, not those who are innocent instruments. For instance, in case of tug and tow, the question whether tug or tow should be surrendered would depend on the question which was liable, neither being responsible for the acts of the other. 55 As stated above, the owner must also surrender the vessel clear of prior liens. If this were not so, he might, by mort- gaging the vessel to her value, withdraw all funds from the creditors of the boat. Accordingly, in the Leonard Rich- ards, 56 the court says: "The first question suggested by counsel for the owners of the tug is as to the proper construction to be put upon the words 'value of the interest of the owner,' as used in the limited liability act. The section of the act in point, or so much of it as is necessary to quote, is as follows : 'The liability of the owner of any vessel, * * * for any loss, damage, or injury by collision, * * * done, occasioned, or incurred, without the privity or knowledge of such own- er or owners, shall in no case exceed the amount or value of 6 4 73 Fed. 226. 19 C. C. A. 436. ss Eugene F. Moran v. New York Cent. & H. R. R. Co., 212 U. S. 466, 29 Sup. Ct. 339. 53 L. Ed. GOO: Transfer No. 21, 248 Fed. 459, 160 C. C. A. 469; Erie Lighter 10S (D. C.) 250 Fed. 490; O'Brien Bros. (D. C.) 252 Fed. 185. se (D. C.) 41 Fed. 81S. See, also, Gokey v. Fort (D. C.) 44 Fed. 364. 368 RIGHTS AND LIABILITIES OF OWNERS (Ch. 16 the interest of such owner in such vessel, and her freight then pending.' Rev. St. U. S. § 4283. It appears in this case that supplies to a large amount had been furnished to this tug, which were at the time of the collision unpaid for, and which, under the law, were liens upon the vessel ; and the insistment of counsel was that although the tug had an apparent value of $8,000, and had been appraised at that sum, yet the 'interest of the owner' in her ought not to be calculated upon that basis, but that from the appraised val- ue of the vessel should be deducted the full amount of the debts and claims owed by the vessel, and the balance tak- en to be the true Value of the interest' of the owner. In other words, that, while the stipulation filed, and upon which the tug was released from the custody of the officers and returned to her owner, was for $8,000, yet when the time came for payment of the sum into court in compliance with its condition, to be distributed among libelants and claimants according to law, there should be first deducted therefrom a sum equal to the full amount of all debts due for supplies, repairs, etc., for which liens against the vessel could be enforced, and the balance only brought here as the true value of the owner's interest, to be distributed pro rata among the libelants. Without considering whether the owner is not, by his own act. estopped from raising this question now, after entering into a stipulation to pay the full amount of the appraised value of the tug if she be found in fault to the other libelants, and in consideration thereof receiving security from the law from all further or greater liability, I am clearly of opinion that the real value of the vessel in fault, without regard to liens upon her at the ter- mination of her voyage, upon which she negligently caused the injury complained of, measures justly and equitably the value of the interest of the owner therein as contemplat- ed by the limited liability act." § 169) MEASURE OP LIABILITY 369 SAME— DAMAGES RECOVERED FROM OTHER VESSEL 169. The owner must also surrender damages recovered from another vessel. If the owner has proceeded against another vessel, and recovered damages for the injury to his vessel in the acci- dent against which he is claiming liability, he must surren- der these damages also; they being considered the repre- sentative of his vessel. This was held in O'Brien v. Mill- er. 57 In delivering the opinion of the court, Mr. Justice White says: "The clear purpose of Congress was to require the ship- owner, in order to be able to claim the benefit of the lim- ited liability act, to surrender to the creditors of the ship all rights of action which were directly representative of the ship and freight. Where a vessel has been wrongfully taken from the custody of her owners, or destroyed through the fault of another, there exists in the owner a right to require the restoration of his property, either in specie or by a money payment, as compensation for a failure to re- store the property. Manifestly, if the option was afforded the owner of the ship to receive back his property or its value, he could not, by electing to take its value, refuse to surrender the amount as a condition to obtaining the bene- fit of the act. * * * Indeed, that a right of action for the value of the owner's interest in a ship and freight is to be considered as a substitute for the ship itself, was decided in this court in the case of Sheppard v. Taylor, 5 Pet. 675, 8 L. Ed. 269. * * * Mr. Justice Story, delivering the opinion of the court, said (page 710, 5 Pet., and page 282, 8 L. Ed.) : 'If the ship had been specifically restored, there is § 109. 5 7 108 U. S. 287, 18 Sup. Ct. 140, 42 L. Ed. 409. See, also, St. Johns (D. C.) 101 Fed.. 409. Hughes, Adm. (2d Ed.) — 24 370 RIGHTS AND LIABILITIES OF OWNERS (Ch. 16 no doubt that the seamen might have proceeded against it in the admiralty in a suit in rem for the whole compensation due to them. They have, by the maritime law, an indisputa- ble lien to this extent. This lien is so sacred and indelible that it has on more than one occasion been expressively said that it adheres to the last plank of the ship. Relf v. The Maria, 1 Pet. Adm. 186, 195, note, Fed. Cas. No. 11,692; The Sydney Cove, 2 Dod. 13 ; The Neptune, 1 Hagg. Ad. 227, 239. And, in our opinion, there is no difference be- tween the case of a restitution in specie of the ship itself and a restitution in value. The lien reattaches to the thing, and to whatever is substituted for it. This is no peculiar principle of the admiralty. It is found incorporated into the doctrines of courts of common law and equity. The owner and the lienholder, whose claims have been wrong- fully displaced, may follow the proceeds wherever they can distinctly trace them. In respect, therefore, to the proceeds of the ship, we have no difficulty in affirming that the lien in this case attaches to them.' Nor does the ruling in the CITY OF NORWICH, supra, that the proceeds of an in- surance policy need not be surrendered by the shipowner, conflict with the decision in Sheppard v. Taylor. The de- cision as to insurance was placed on the ground that the in- surance was a distinct and collateral contract, which the shipowner was at liberty to make or not. On such question there was division of opinion among the writers on mari- time law and in the various maritime codes. But, as shown by the full review of the authorities found in the opinion oi the court and in tin- dissent in the CITY OF NORWICH, all the maritime writers and codes accord in the conclusion that a surrender, under the right to limit liability, must be made of a sum received by the owner as the direct result of the loss of the ship, and which is the legal equivalent and substitute for the ship. We conclude that the owner who retains the sum of the damages which have been awarded him for the loss of his ship and freight has not § 170) MEASURE OF LIABILITY 371 surrendered 'the amount or value' (section 4283, Rev. St. U. S.) of his interest in the ship ; that he has not given up the 'whole value of the vessel'' (section 4284) ; that he has not transferred 'his interest in such vessel and freight' (sec- tion 4285). It follows that the shipowner, therefore, in the case before us, to the extent of the damages paid on account of the collision, was liable to the creditors of the ship, and the libelants, as such creditors, were entitled to collect their claim, it being less in amount than the sum of such proceeds." SAME— FREIGHT 170. Pending freight must be surrendered. The owner is also required to surrender pending freight. This has been held to include demurrage, and prepaid fare of passengers. 58 If any freight has been earned or prepaid during the voy- age, the owner must account for it; but, if the voyage is broken up, so that no freight is actually earned, then he cannot be made to pay it. 59 The freight to be surrendered is tjie gross freight for the voyage. 60 If the vessel owner is carrying his own goods, he must account for a fair freight for them. 61 A government subsidy is not freight, and need not be surrendered. 62 § 170. es Giles Loring (D. C.) 48 Fed. 463: Main, 152 U. S. 122, 14 Sup. Ct. 4S6, 38 L. Ed. 381. As to the meaning of freight, see ante, p. 155, § 72. 59 CITY OF NORWICH, 118 U. S. 46S, 6 Sup. Ct. 1150, 30 L. Ed. 134. eo Abbie C. Stubbs (D. C.) 2S Fed. 719. 6i Allen v. Maekay, 1 Spr. 219. Fed. Cas. No. 228. 6 2 Deslions v. La Compagnie Generate Transatlantique, 210 U. S. 95. 28 Sup. Ct. 664. 52 L. Ed. 973. 372 RIGHTS AND LIABILITIES OP OWNERS ( Ch. 16 SAME— SALVAGE AND INSURANCE 171. Salvage and insurance need not be surrendered, neither being an interest in the vessel or freight. But the owner is not required to account for salvage earn- ed during the voyage. 63 And, if he has taken out insurance, he is not required to account for the insurance money collected by him ; that being a collateral undertaking, and not an interest in the vessel. On this subject Mr. Justice Bradley says in the CITY OF NORWICH. 64 "The next question to be considered is whether the peti- tioners were bound to account for the insurance money re- ceived by them for the loss of the steamer, as a part of their interest in the same. The statute (section 4283) declares that the liability of the owner shall not exceed the amount or value of his interest in the vessel and her freight; and section 4285 declares that it shall be a sufficient compliance with the law if he shall transfer his interest in such vessel and freight, for the benefit of claimants, to a trustee. Is insurance an interest in the vessel or freight insured, within the meaning of the law? That is the precise question be- fore us. "It seems to us, at first view, that the learned justice who decided the case below was right in holding that the word 'interest' was intended to refer to the extent or amount of ownership which the party had in the vessel, such as his aliquot share, if he was only a part owner, or his contingent interest, if that was the character of his ownership. He might be absolute owner of the whole ship, or he might own but a small fractional part of her, or he might have a tem- § 171. es in re Meyer (D. C.) 74 Fed. 8S1. «4 118 U. S. 468, 6 Sup. Ct 1150, 30 L. Ed. 134. See, also, Pere Marquette 18 (D. C.) 203 Fed. 127. §172) PROCEDURE 373 porary or contingent ownership of some kind, or to some extent. Whatever the extent or character of his ownership might be — that is to say, whatever his interest in the ship might be — the amount or value of that interest was to be the measure of his liability. "This view is corroborated by reference to a rule of law which we suppose to be perfectly well settled, namely, that the insurance which a person has on property is not an in- terest in the property itself, but is a collateral contract, personal to the insured, guarantying him against loss of the property by fire or other specified casualty, but not conferring upon him any interest in the property. That in- terest he has already, by virtue of his ownership. If it were not for a rule of public policy against wagers, requiring in- surance to be for indemnity merely, he could just as well take out insurance on another's property as on his own ; and it is manifest that this would give him no interest in the property. He would have an interest in the event of its destruction or nondestruction, but no interest in the prop- erty. A man's interest in property insured is so distinct from the insurance that, unless he has such an interest in- dependent of the insurance, his policy will be void." PROCEDURE— TIME FOR TAKING ADVANTAGE OF STATUTE 172. The owner may take advantage of the statute at any time before he is actually compelled to pay the money. Under the American practice, he may contest his liability for any damages at all, fight that through all the courts, and, if finally defeated, take advantage of the statute. 65 § 172. «5 BENEFACTOR, 103 U. S. 239, 26 L. Ed. 351; S. A. Mc- Caulley (D. C.) 99 Fed. 302. 374 RIGHTS AND LIABILITIES OF OWNERS (Ch. 16 He does not lose his right by giving bond in the original suit, either in the trial court or the appellate court, or by failure to have an appraisal or otherwise follow strictly the procedure prescribed. 06 SAME— DEFENSE TO SUIT AGAINST OWNER, OP- INDEPENDENT PROCEEDING 173. The statute may be set up either by defense to a suit brought against the owner, or by an independent proceeding under the federal admiralty rules. If it is desired to defend against one claim, the simplest method is by answer or plea in the suit asserting that claim against the owner. Hence it is settled that this is a proper mode of taking advantage of the statute, and it may be in- voked either in the federal or state courts. 67 Where the claims are many, and it is desired to convene them all in one proceeding, the usual method is by petition in the federal court. The procedure on these petitions is regulated by admiralty rules 54-5S. 68 Such a petition may be filed, though but one claim is being asserted against the ship or owner. 69 It may be filed before any suit is brought at all against the owner. 70 ee Rochester (D. C.) 230 Fed. 519; T. W. Wellington (D. C.) 235 Fed. 728 ; Ethelstan (D. C.) 246 Fed. 1ST. § 173. 67 SCOTLAND, 105 U. S. 24. 26 L. Ed. 1001; Great West- ern. 118 U. S. 520, 6 Sup. Ct. 1172, 30 L. Ed. 156; Loughin v. Mc- Caulley, 186 Pa. .",17. 40 Atl. 1020, 48 L. R. A. 33, 65 Am. St. Rep. 872. es As this treatise is on admiralty jurisdiction, and can only cursorily allude to procedure, the discussion of procedure on this acl will necessarily be very brief. The reader is referred to the excellent treatise of Mr. Benedict on Admiralty for further details of procedure. 69 White v. Island Transp. Co., 233 U. S. 346, 34 Sup. Ct. 589, 58 L. Ed. 993; Strong v. lb. Inns. 238 Fed. 554, 151 C. C. A. 490. 70 Es parte Slayton, 105. U. S. 451. 26 I, Kd. 1066. § 174) METHOD OF DISTRIBUTION 375 If suits are pending against the owner in other jurisdic- tions, the proceeding in the admiralty court is exclusive; and litigants in the other courts may be enjoined from lit- igating further in those courts, and may be compelled to come into the admiralty court. This is one of the cases in which injunctions to proceedings in state courts are not for- bidden by section 720 of the Revised Statutes. 71 METHOD OF DISTRIBUTION 174. Under the express provisions of the statute, all claims filed, whether they have an admiralty lien attached or are mere personal claims against the owner, are paid pro rata. 72 This pro rata rule applies simply to the claims on the voyage, which, as seen above, is taken as the unit. Ques- tions of priority as between those claims and claims on oth- er voyages cannot well arise in the proceeding; for it has been seen that, when the owner seeks the benefit of the statute, he must surrender the res clear of all prior liens or claims against it. Hence, under this procedure, the court has in its possession an unincumbered res, and divides that pro rata among those who have suffered on that special voyage, regardless of the marshaling of other claims which would take place if no proceeding for limitation of liability was pending. 7i U. S. Comp. St. § 1242 ; PROVIDENCE & N. Y. S. S. CO. v. HILL MFG. CO., 109 U. S. 57S, 3 Sup. Ct. 379, 617. 27 L. Ed. 103S : In re Whitelaw (D. C.) 71 Fed. 733, 735 ; San Pedro, 223 U. S. 365. 32 Sup. Ct. 275, 56 L. Ed. 473, Ann. Cas. 1913D, 1221 (holding also that an injunction is not necessary, and that the proceeding itself has the effect of a statutory injunction). § 174. 7 2 Butler v. Boston & S. S. S. Co., 130 U. S. 527, 9 Sup. Ct. 612, 32 L. Ed. 1017; Maria & Elizabeth (D. C.) 12 Fed. 627; Cats- kill (D. C.) 95 Fed. 700; St Johns (D. C.) 101 Fed. 469; Glaholin v. Barker, L. R. 2 Eq. 59S ; Id., 1 Ch. App. 223; Boston Marino Ins. Co. v. Metropolitan Redwood Lumber Co., 197 Fed. 703, 117 C. C. A. 97. 376 EELATIVE PRIORITIES OF MARITIME LIENS (Ch. 17 CHAPTER XVII OF THE EELATIVE PRIORITIES OF MARITIME LIENS AS AMONG EACH OTHER AND ALSO AS BETWEEN THEM AND NONMARITIME LIENS OR TITLES* 175. Relative Rank as Affected by Nature of Claims. 176-177. Contract Liens in General. 178. Seamen's Wages. 179. Salvage. ISO. Materials, Supplies, Advances, Towage, Pilotage, and General Average. 181. Bottomry. 182. Nonmaritime Liens and Titles. 183. Tort Liens. 184. Relative Rank as Affected by Date of Vesting — Among Liens of Same Cbaracter. 185. Among Liens of Different Cbaracter. 186. Between Contract and Tort Liens. 187. As between Tort Liens. 188. Relative Rank as Affected by Suit or Decree. RELATIVE RANK AS AFFECTED BY NATURE OF CLAIMS 175. The order in which liens are paid depends upon four contingencies: (a) Their relative merit. (b) The time at which the lien vested. (c) The date at which proceedings are commenced for its enforcement. (d) The date of the decree. The relative rank of maritime liens is the subject of much conflicting decision, from which it is impossible to extract any inflexible general rule. While there are elementary •Modified by Merchant Marine Act approved June 5, 1020, passer too late for discussion. §§ 176-177) RANK AS AFFECTED BY NATURE OF CLAIMS 377 principles underlying- the doctrine, they may be affected at any time by special equities or circumstances superseding the general principles, and forming an exception to them. On this subject, Judge Brown, when District Judge of the Eastern District of Michigan, said in the CITY OF TA- WAS: 1 "The subject of marshaling liens in admiralty is one which, unfortunately, is left in great obscurity by the au- thorities. Many of the rules deduced from the English cas- es seem inapplicable here. So, also, the principles applied where the contest is between two or three libelants would result in great confusion in cases where 50 or 60 libels are filed against the same vessel. The American authorities, too, are by no means harmonious, and it is scarcely too much to say that each court is a law unto itself." This marshaling of liens, being intended to work justice among the lienors, should not be so applied as to work in- jury to third parties. 2 SAME— CONTRACT LIENS IN GENERAL i 176. These must first be considered in reference to their general nature, as there is supposed to be an in- herent merit in certain ones over others, in the ab- sence of special equities arising from the compara- tive dates of their service and other considera- tions. 177. Among contract liens in general the order of rank may be stated: (a) Seamen's wages. (b) Salvage. (c) Materials, supplies, advances, towage, pilotage, and general average. (d) Bottomry. (e) Nonmaritime liens and titles. § 175. i (D. C.) 3 Fed. 170. 2 Chioggia, [1S98] P. 1. ^78 RELATIVE PRIORITIES OF MARITIME LIENS (Ch. 17 SAME— SEAMEN'S WAGES 178. It is a favorite principle of the admiralty that seamen's wages are of the highest rank and dignity, adher- ing to the last plank of a ship, and ranking all oth- er contract liens of the same relative dates. In the Virgo, 3 District Judge Benedict, in passing upon their rank as compared to salvage and other supplies, held them to rank even supplies furnished after the vessel was brought into port and after the wages had accrued, as the supplies were of a nature that did not add anything to the value of the vessel, and as the time was so short that the seamen could hardly have been responsible for not proceed- ing more promptly. In the opinion he says : "I am of the opinion, therefore, that the wages of the seamen, which are nailed to the last plank of the ship, and which under no circumstances contributed to the general average, as well as the salvage demand, are entitled to pri- ority in payment over the demands of the other libelants, no one of whom, it will be observed, in any degree added by their services to the value of the vessel, or in the slightest degree increased the fund realized from her sale. It is a case of some hardship to the materialmen, no doubt, but no greater than in the ordinary case where the vessel proves insufficient in value to pay her bills. The hardship in this case arises, not from any fault on the part of the salvors or the seamen, but from the fact that the material- men furnished what they did to a vessel so largely incum- bered by liens superior in grade to their demands." In the Paragon, 4 Judge Ware said: "Among privileged debts against a vessel, after the ex- penses of justice necessary to procure a condemnation and § 17S. 3 (D. C.) 46 Fed. 294. 4 i Ware, 326, Fed. Cas. No. 10.708. § 178) RANK AS AFFECTED BY NATURE OF CLAIMS 370 sale, and such charges as accrue for the preservation of the vessel after she is brought into port (1 Valin, Comm. 362; Code Commer. No. 191), the wages of the crew hold the first rank, and are to be first paid. And so sacred is this privilege held that the old ordinances say that the savings of the wreck, are to the last nail, pledged for their payment. Consulat de la Mer, c. 138; Cleirac sur Jugemens d'Oleron, art. 8, note 31. And this preference is allowed the seamen for their wages independently of the commercial policy of rewarding their exertions in saving the ship, and thus giv- ing them an interest in its preservation. The priority of their privilege stands upon a general principle affecting all privileged debts; that is, among these creditors he shall be preferred who has contributed most immediately to the preservation of the thing. 2 Valin, Comm. 12, liv. 3, tit. 5, art. 10. It is upon this principle that the last bottomry bond is preferred to those of older date, and that repairs and sup- plies furnished a vessel in her last voyage take precedence of those furnished in a prior voyage, and that the wages ot the crew are preferred to all other claims, because it is by their labors that the common pledge of all these debts has been preserved, and brought to a place of safety. To all the creditors they may say, 'Salvam fecimus totius pignoris causam.' The French law (Ord. de la Mer. liv. 1, tit. 14, art. 16; Code Commer. 191) confines the priority of the seamen for their wages to those due for the last voyage, in con- formity with the general rule applicable to privileged debts ; that is, that the last services which contribute to the pres- ervation of the thing shall be first paid. But this restric- tion is inapplicable to the engagements of seamen in short coasting voyages, which are not entered into for any de- terminate voyage, but are either indefinite as to the terms of the engagement, and are determined by the pleasure of the parties, or are for some limited period of time." Wages for a voyage have been also held to rank a bottom- ry- bond executed for the necessities of that very voyage, 380 RELATIVE PRIORITIES OF MARITIME LIENS (Ch. 17 because, but for the efforts of the seamen, the vessel would not have reached port, and the bottomry bondholder would have had nothing to hold for his claim. 5 If they rank subsequent materials under the circum- stances just explained, a fortiori they rank materials and supplies practically concurrent with them. 6 They also rank salvage, and damage claims incurred on a previous voyage, under the principle, which we have seen running through the admiralty law, that the prior lienhold- ers have a jus in re or a proprietary interest in the ship it- self, and that efforts tending to the preservation of the res are incurred for their benefit. 7 SAME— SALVAGE 179. Salvage may rank any prior lien for which it saves the res. It may not be entirely accurate to put salvage behind even seamen's wages when we consider its nature. The salvor ranks seamen's wages incurred prior to the salvage services, upon this same principle that it tends to the preservation of the res, without which the seamen them- selves might lose their security. 8 In the leading case of the FORT WAYNE, 9 the court, discussing this question, and deciding that salvage was ahead of prior seamen's wages, says : "It may be remarked here that it does not admit of doubt, nor is it controverted in this case, that, if there had been a salvage service rendered by the wrecking company within o DORA (C. C.) 34 Fed. 348; Irma, 6 Ben. 1, Fed. Cas. No. 7,004. ■ Saylor v. Taylor, 23 C. C. A. 343, 77 Fed. 470. t Lillie Laurie (C. G.) 50 Fed. 219. § 179. s Selina, 2 Notes Cas. Ad. & Ec. 18 ; Athenian (D. C) 3 Fed. 24S. » 1 Bond, 470, Fed. Cas. No. 3,012. § 179) RANK AS AFFECTED BY NATURE OF CLAIMS 381 the meaning of the maritime law, it imports a lien in their favor which has priority over claims for wages earned, or supplies furnished, before the sinking of the boat. This is well-established law, and has its basis in obvious principles of justice and reason. Meritorious salvors stand in the front rank of privilege, and the rights of those having liens before the salvage service must be secondary to those having a sal- vage claim. This principle is well stated in Coote's Ad- miralty Practice. The author says (page 116) : 'The suitor in salvage is highly favored in law, on the assumption that, without his assistance, the res might have been wholly lost. The service is, therefore, beneficial to all parties having either an interest in or a claim to the ship and her freight and cargo.' And again (page 117), it is laid down that 'sal- vage is privileged before the original or prior wages of the ship's crew, on the ground that they are saved to them as much as, or eadem ratione qua, the ship is saved to the owners.' This doctrine is so well settled, both by the Eng- lish and American authorities, that it is useless to multiply citations." For the same reason salvage is superior in dignity to ma- terials and supplies. 10 It is also ahead of the cargo's claim for general average arising out of a jettison on the voyage when the vessel was subsequently wrecked, since the salvor saved the only property against which the claim for general average could be asserted. 11 Judge Longyear, in delivering the opinion, says : "It was conceded on the argument, and such is undoubt- edly the law, that the lien for salvage takes precedence of the lien for general average. The libel of the insurance companies in this case is in terms for general average, and I can see nothing in the circumstances of the case to war- io M. Vandercook (D. C.) 24 Fed. 472; Virgo (D. C.) 46 Fed. 294; Lillie Laurie (C. C.) 50 Fed. 219. n Spaulding, 1 Brown, Ad. 310, Fed. Cas. No. 13,215. 382 RELATIVE PRIORITIES OF MARITIME LIENS (Ch. 17 rant the court in holding it to be anything else, even if the libel had been otherwise. Without the salvage services, the whole was a loss. With the salvage services, the loss is reduced to a part only. In the former case there would have been nothing left upon which a lien for general aver- age could attach. In the latter case it has something upon which it may attach, solely because of the salvage services ; and it would be not only contrary to the general rule of law above stated, but unjust and inequitable, to place such lien as to the part thus saved upon the same footing, as to precedence, as the lien for the salvage services." SAME— MATERIALS, SUPPLIES, ADVANCES, TOWAGE, PILOTAGE, AND GEN- ERAL AVERAGE 180. Materials, supplies, advances, towage, pilotage, and general average are, in the absence of special cir- cumstances, equal in dignity. These may be considered as of the same relative rank, in the absence of special circumstances or equities. For some time there was quite a conflict in the decisions on the question whether the liens of materialmen arising out of a state statute were equal in dignity to those arising under the general admiralty law. On principle there is no sound reason for any such distinction. The only reason why these state statutes are given force at all is that the subject-matter is maritime in its nature, and that the stat- utes merely superadd the remedy in rem. If marine in its nature, it ought to be marine in its rights. The state stat- ute adds nothing to its dignity or to its character. It mere- ly changes a presumption of credit. Hence the later author- ities have settled that foreign and domestic liens of mate- rial men rank alike. 12 § 180. "Guiding Star (D. C.) 9 Fed. 521; Id. (C. C.) 18 Fed. 264; Wyoming (D. (\) 35 Fed. 548. This question is unimportant § 180) RANK AS AFFECTED BY NATURE OF CLAIMS 383 Claims of this nature also rank a prior bottomry. In the Jerusalem, 13 Mr. Justice Story gives the reason for this. He says : "If, then, the repairs in this case were a lien on the ship, it remains to consider whether they constitute a privileged lien, entitled to a preference over a bottomry interest; for the proceeds now in court are insufficient to answer both claims. In point of time the bottomry interest first at- tached, and the right became absolute by a completion of the voyage before the repairs were made. Upon general principles, then, the rule would seem to apply, 'Qui prior est tempore, potior est jure.' But it is to be considered that the repairs were indispensable for the security of the ship, and actually increased her value. They are, therefore, not like a dry lien by way of mortgage, or other collateral title. The case is more analogous to that of a second bottomry bond, or the lien of seamen's wages, which have always been held to have a priority of claim, although posterior in time, to the first bottomry bond. Let a decree be entered for payment of the sum claimed by the petitioner out of the proceeds of the sale." In the Felice B., 14 Judge Benedict gave preference, under similar circumstances, because the repairs went into the ship, and tended to increase her value, and to enhance to that extent the price which she brought at auction; and he therefore thought it inequitable that the bottomry bond- holder should claim this increment, which was not in ex- istence when he loaned his money. As to the relative rank of claims for unpaid towage and claims of materialmen, there is no reason for any distinc- now, as the liens both of foreign and domestic materialmen are regulated by the act of Congress of June 23, 1910 (36 Stat. 604, U. S. Comp. St. §§ 7783-7787). 13 2 Gall. 345, Fed. Cas. No. 7,294. 14 (D. C.) 40 Fed. 653. See, also, Aina (D. C.) 40 Fed. 269. 3S4 RELATIVE PRIORITIES OP MARITIME LIENS (Ch. 17 tion between them, in the absence of special equities, and the courts put them upon the same basis. 15 But in the Mystic, 16 Judge Blodgett seemed to look upon tugboat men with special favor. The case arose in the city of Chicago, where the ordinances required vessels to use tugs, and where, on account of the narrow and crowded channels, it is a physical impossibility for sail vessels to reach their destination without tugs. Under these special circumstances he held that the value of the towage service was about equal to that of the seamen, as the tug was doing seamen's work, and he placed the tow bills immediately after the seamen's wages, and ahead of domestic supply claims. In England claims for necessaries on domestic ships do not rank as maritime liens, their act of Parliament being held to give a mere right of arrest. 17 SAME— BOTTOMRY 181. Bottomry ranks low among maritime liens, as the lend- er is paid for the risk he runs by a high rate of in- terest. Among bottomry bonds on the same voyage, though the dates may be slightly different, there is no priority. 18 But the bottomry bondholder is relegated to the background when he comes in competition with seamen's wages, sal- vage, materials, or a claim for general average arising on is Saylor v. Taylor, 23 C. C. A. 343, 77 Fed. 476; Sea Witch, 3 Woods, 75, Fed. Cas. No. 11,289. is (D. C.) 30 Fed. 73. In the Olga (D. C.) 32 Fed. 329, Judge Brown, of New York, classified towage service taken necessarily and as part of a pilotage service in the same way ; but he carefully dis- tinguished this from ordinary towage. it Mayer's Admiralty Jur. & Pr. 25, 47, 51; Sara, 14 A. C. 209. § 181. is DORA (D. C.) 34 Fed. 343. § 181) BANK AS AFFECTED BY NATURE OF CLAIMS 385 the same voyage. 19 The reason is that he stands in the shoes of the owner, and has, as heretofore explained, a pro- prietary interest in the ship, which estops him from ques- tioning the priority of maritime liens to supply her, or to render her more valuable. In addition, he can charge a premium on the ship at a high rate of interest. He there- fore becomes practically an insurer against perils of the sea, and, when they arise, he cannot be heard to complain that those who labored to rescue the vessel from them should be preferred in the distribution. Accordingly, these claims for general average arising on the voyage, and the claims of the agents at the port of destination for putting the ship in better shape, are preferred to a bottomry bond. On this point Judge Billings says in the Dora: 20 "Whoever lends money upon a bottomry obligation for the ordinary transactions of her voyage has a lien upon the vessel which outranks all lien holders save the mariners for their wages. But where maritime services or sacrifices or expenditures are rendered necessary which carry with them maritime liens, the holder of the bottomry bond, like any other mortgagee or pledgee, has his conditional interest burdened precisely as if he were to that extent an owner. Indeed, the bottomry holder can be no more than absolute owner, so far as third persons are concerned. To hold any more restricted doctrine would prejudice the interests of the bottomry holder himself. It is for his interest, as well as for that of all other absolute or conditional owners, that the whole should be saved by a sacrifice of a part, and that the whole thus saved should contribute to make good the sacrifice, and that salvors and all others who render benefits which save or render available the bottom pledged to him should have a lien upon that bottom, even against him. See Williams & B. Adm. Jur. 64, 65, and Macl. Shipp. 702-705. I think that, upon reason and authority, the general average 18 id. 20 See, also, ALINE, 1 W. Rob. Ad. 112. Hughes.Adm. (2d Ed.) — 25 386 RELATIVE PRIORITIES OF MARITIME LIENS (Ch. 17 should be paid before the bottomry bonds. The transac- tions out of which the general average arose were subse- quent to these bonds, and aided in providing and making- available the bottom which these bonds contingently rep- resented." SAME— NONMARITIME LIENS AND TITLES 182. Nonmaritime liens and titles rank below maritime liens. The mortgagee is worse off than any, for his claim is not marine. He claims through the owner, from whom he is only one step removed, and accordingly all marine claims are preferred to his debt ; and recording it under section 4192 of the Revised Statutes (U. S. Comp. St. § 7778) does not affect this principle. 21 A maritime lien is not displaced by a sale to an innocent purchaser, in the absence of laches in its enforcement, nor by a common-law reservation of title. 22 The possessory lien of a shipwright will be recognized when a ship is seized under admiralty process. If the work is of a nature that would create a maritime lien, it will be treated as such. If not, it will be classified as a common- law lien, and protected in the distribution of the remnants after the satisfaction of maritime liens. 23 § 182. 21 J. E. RUMBELL, 14S U. S. 1, 13 Sup. Ct. 408, 37 L. Ed. 345. The mortgagee has the same right as the owner through whom i he claims to intervene and defend against liens asserted to be prior, and to claim the remnants after the maritime liens are satisfied. Conveyor (D. C.) 147 Fed. 5S6 ; Rupert City (D. C.) 213 Fed. 263. 22 San Raphael, 141 Fed. 270. 72 0. C. A. 3S8; Hope (D. C.) 191 F.'d. 243. 23 Ulrica (D. C.) 224 Fed. 140; John J. Freitus 1 1 >. C) 252 Fed. S7G. § 183) RANK AS AFFECTED BY NATURE OF CLAIMS 387 SAME— TORT LIENS 183. These claims, whether for pure torts or torts where there are also contract relations, rank prior con- tract liens, and probably subsequent contract liens, where the contract claimant has an additional rem- edy against the owner. These claims, as a general rule, rank prior contract claims. The leading case on this subject is the JOHN G. STEVENS. 24 Mr. Justice Gray, in delivering the opinion of the court in that case, says: "The collision, as soon as it takes place, creates, as se- curity for the damages, a maritime lien or privilege — jus in re — a proprietary interest in the offending ship, and which, when enforced by admiralty process in rem, relates back to the time of the collision. The offending ship is considered as herself the wrongdoer, and as herself bound to make compensation for the wrong done. The owner of the in- jured vessel is entitled to proceed in rem against the offend- er, without regard to the question who may be her owners, or to the division, the nature, or the extent of their interests in her. With the relations of the owners of those interests, as among themselves, the owner of the injured vessel has no concern. All the interests existing at the time of the collision in the offending vessel, whether by way of part ownership, of mortgage, of bottomry bond, or of other mar- itime lien for repairs or supplies, arising out of contract with the owners or agents of the vessel, are parts of the vessel herself, and as such are bound by and responsible for her wrongful acts. Any one who had furnished neces- sary supplies to the vessel before the collision, and had thereby acquired, under our law, a maritime lien or privi- § 1S3. 2 4 170 U. S. 113, IS Sup. Ct. 544. 42 L. Ed. 969. See, also, Escauaba (D. C.) 96 Fed. 252 ; Veritas, [1901] P. 304. 388 RELATIVE PRIORITIES OF MARITIME LIENS (Cll. 17 lege in the vessel herself, was, as was said in the Bold Buc- cleugh, before cited, of the holder of an earlier bottomry- bond, under the law of England, 'so to speak, a part owner in interest at the date of the collision, and the ship in which he and others were interested was liable to its value at that date for the injury done, without reference to his claim.' 1 Moore, P. C. 285." This reasoning is a necessary deduction from the doc- trine, that an admiralty claimant has not merely a right to arrest a vessel, but a proprietary interest in the vessel it- self — a jus in re. Consequently, any contract claimant who permits the vessel against which he has a claim to be nav- igated assumes the risks of navigation to that extent, and holds her out to the world as liable to those with whom she is brought into relations even involuntarily on their part. The only question directly decided in this case was that a claim for damages from negligent towage ranked a prior claim for materials and supplies. The questions as to all other contracts were carefully reserved by the court, but the line of reasoning which the court follows is equally ap- plicable to any other contract claim. On this question the earlier decisions in the New York circuit, which are usually of such high authority that the admiralty lawyer instinctively turns to them first, cannot now be relied on. The JOHN G. STEVENS cites a num- ber of them for the purpose of deciding adversely to the doctrine which they had promulgated. It had been the preponderance of authority in that circuit that contract claims ranked tort claims. The principal reason given for this was that these tort claims were perils of the sea, against which the owner could insure. In arriving at that decision the New York judges had discussed the English cases on which the contrary doctrine had been based, and concluded that they had not passed upon the question at all, but were governed by peculiar circumstances arising out of the fact that the vessels in the English cases had § 183) RANK AS AFFECTED BY NATURE OF CLAIMS 389 nearly always been foreign vessels. The New York judges also had attempted to draw a distinction between claims of pure tort and claims of quasi tort arising out of contract. This was to meet the suggestion of Dr. Lushington in the ALINE, 25 in which he had said that the contract creditor had his option whether to deal with the ship or not, but the tort creditor had not. Accordingly, the New York courts argued that this principle could only apply to torts like collision, in any event, and could not apply to cases arising out of negligent towage, or other such cases arising out of contract, though torts in form, where there had been such negligence. This distinction, also, is overruled by the JOHN G. STEVENS, 26 which was a case of negligent tow- age, and in which the Supreme Court, after considering the question fully, decided that cases of tort, whether arising out of contract or not, all stood on the same basis. The JOHN G. STEVENS reserves the question whether the claim for tort should be preferred to a prior claim for seamen's wages, but the reasoning of that case applies with equal force to claims of as high merit as seamen's wages, and it is believed that, when the question is fairly present- ed, a preference will be given to tort claims even over claims for prior wages. 27 The ELIN 2S decides that preference should be given even to subsequent wages on the same voyage. On this point Sir Robert Phillimore quoted approvingly from an opinion of Dr. Lushington, as follows : "I adhere to this opinion, and I do so especially for the 25 1 W. Rob. Ad. 112. 2 6 170 U. S. 113, IS Sup. Ct. 544, 42 L. Ed. 9G9. 2 7 Rusk v. Freestone, 2 Bond, 234, Fed. Cas. No. 12.143; F. H. Stanwood, 49 Fed. 577, 1 C. C. A. 379; Nettie Woodward (D. C.) 50 Fed. 224 ; Evolution (D. C.) 199 Fed. 514. But in the New York dis- trict the John G. Stevens decision is still applied strictly, and sea- men not in fault are preferred to collision liens. C. J. Saxe (D. C.) 145 Fed. 749. zs 8 P. D. 39. 390 RELATIVE PKIORITIES OF MARITIME LIENS (Ch. 17 following reasons : That by the maritime law of ail the principal maritime states the mariner has a lien on the ship for his wages against the owner of that ship. That he has also a right of suing the owner for wages due to him. That some uncertainty may exist as to the mariner's lien when in competition with other liens or claims, and amongst these I might instance the case of a ship in the yard of a ship- wright. In such a case I should have no difficulty in say- ing that the lien of the shipwright would be superior to the lien of the mariner. That, in the case of a foreign ship doing damage and proceeded against in a foreign court, the injured party has no means of obtaining relief save by pro- ceeding against the ship itself; and that, I apprehend, is one of the most cogent reasons for all our proceedings in rem. That, in a case where the proceeds of a ship are in- sufficient to compensate for damages done, to allow the mariner to take precedence of those who have suffered damage would be to exonerate so far the owner of the ship, to whom the damage is imputed, at the expense of the in- jured party — the wrongdoer at the expense of him to whom wrong has been done. Then, as to the mariner, what is the hardship to which he is exposed? It is true, he is debarred from proceeding against the ship, but his right to sue the owner remains unaffected. It is, however, not to be for- gotten that in all these cases of damage, or nearly all, the cause of the damage is the misconduct of some of the per- sons composing the crew. This is not the case of a bank- rupt owner. It will be time to consider such case when it arises." This reasoning, that the seaman has a double remedy against the owner, and that it would be inequitable to al- low the owner, to diminish the security of the party injured through his own torts by allowing the seamen to be paid out of the vessel, is certainly a strong one, and receives added strength in America by the fact that the act of June 26. 1£84, allowing the vessel owners to plead their liinita- § 184) RANK AS AFFECTED BY DATE OF LIENS 391 tion of liability against contract debts, expressly reserves the rights of seamen ; and so it would seem equitable that a party asserting a lien by tort should be preferred to sea- men's wages, though the question cannot be considered as settled. An instance of such torts is an unlawful conversion by the master. 29 RELATIVE RANK AS AFFECTED BY DATE OF VESTING AMONG LIENS OF SAME CHARACTER 184. Among contract liens of the same character, those furnished on the last voyage rank those furnished on a prior voyage ; the reason being that they are supposed to contribute more immediately to the preservation of the res, and therefore are for the benefit of the prior liens. 30 In the old days, when voyages were measured by long periods of time, this was a just rule; but now, when voy- ages are comparatively short, it has been found necessary in the interest of justice to introduce considerable modifica- tions. For instance, in litigation arising on the Lakes the relative priorities are determined not by the voyages, but by the seasons of navigation. For several months of the year navigation there is closed by ice, and the courts have settled upon the rule that claims furnished during one sea- son rank those furnished during a previous season ; and this rule is applied in New York harbor also as to boats which operate by seasons, like canal boats. 31 2» Escanaba (D. C.) 96 Fed. 252. § 184. 30OMER, 2 Hughes, 96, Fed. Cas. No. 10,510; Porter v. Sea Witch, 3 Woods, 75, Fed. Cas. No. 11,289 ; John T. Williams (D. C.) 107 Fed. 750 ; Philomena (D. C.) 200 Fed. 873. 3i CITY OF TAWAS (D. C.) 3 Fed. 170; Arctunis (D. C.) 18 392 RELATIVE PRIORITIES OF MARITIME UENS (Ch. 17 But in New York harbor work, as to boats which are be- ing used practically all the year round, the courts have set- tled upon the rule that claims furnished within forty days are preferred to those furnished prior to that date, the basis of the rule being that it is usual to sell on thirty days' time, the ten days extra being allowed for making demand or proceeding. As among claims of the same general char- acter within the forty days, there is no difference in rank. 32 In the Western district of Washington a ninety-day rule has been established as to vessels operating in local har- bors and making short trips. 33 In the Fourth circuit, where ice does not interrupt nav- igation, the rule of voyages has been applied when the voy- ages were of any length; but among harbor tugs or ves- sels the practice has been that debts of the same general character are put on the same footing if they have been furnished within a year. The question in that district has been considered mainly in reference to the doctrine of stale- ness. A claim over a year old is considered stale as against other admiralty claims, and all within a year rank alike. 34 This rule of considering claims over one year old as stale, however, has only been applied as among marine claims, and must not be confused with the doctrine of staleness as applied in relation to subsequent purchasers. In such case, claims have been held stale as against innocent purchasers in much less time than a year. On the other hand, the one- year rule as among maritime claims has frequently been re- Fed. 743 ; J. W. Tucker (D. C.) 20 Fed. 129 ; Samuel little, 221 Fed. 308, 311-312, 137 O. C. A. 136. 3 2 Gratitude (D. C.) 42 Fed. 299; Samuel Morris (D. C.) 63 Fed. 736; Samuel Little, 221 Fed. 30S, 137 C. C. A. 136; Leonard F. Richards (D. C.) 231 Fed. 1002. The rule does not apply to tugs and barges engaged, not in harbor, but in outside, work. In re New England Transp. Co. (D. C.) 220 Fed. 203. as Edith (D. C.) 217 Fed. 300; Sea Foam (D. C.) 243 Fed. 929. 34 Thomas Morgan (D. C.) 123 Fed. 7S1 ; Steam Dredge A, 204 Fed. 262, 122 C. C. A. 527. § 185) RANK AS AFFECTED BY DATE OF LIENS 393 laxed, and the time extended, where the vessel has been absent from the district for long- periods. SAME— AMONG LIENS OF DIFFERENT CHARACTER 185. A later service immediately contributing to the pres- ervation of the res may, on that account, be pre- ferred to liens which otherwise would rank it. The last may sometimes be preferred on that account though, if the dates were the same, the one so preferred would be an inferior claim. For instance, in the FORT WAYNE, 35 a claim for repairs to the vessel rendered when salvors had taken charge of her after a disaster (the re- pairs being of a character almost necessary to enable her to reach port) was preferred to prior wages, and was made to rank next to the salvage. On this point the court says : "I can have no hesitation, therefore, in holding that the claim of the Eureka Insurance Company is established by the evidence, and is a lien on the boat, ranking in privilege next to the salvage claim of the Missouri Wrecking Com- pany. This lien rests on the footing of money loaned or advanced for repairs to the boat, without which it would have been of little value, and could not possibly have pros- ecuted its business. The money so advanced and applied may be supposed, therefore, to have inured to the benefit of prior lienholders. And, according to the doctrine dis- tinctly asserted by Dr. Lushington in the case of the Aline, 1 W. Rob. Adm. 119, 120, the persons making such advances have a priority, to the extent of the repairs made, over all other lienholders. But the case before me does not call for a more extended exposition of this principle." § 185. 35 1 Bond, 476, Fed. Cas. No. 3,012. See, also, Veritas, [1901] P. 304 ; Sea Spray, [1907] P. 133. I 394 RELATIVE PRIORITIES OF MARITIME LIENS (Ch. 17 For similar reasons a materialman's claim has been pre- ferred to a prior towage claim. 36 SAME— BETWEEN CONTRACT AND TORT LIENS 186. On this account a later contract lien may rank a prior tort lien. An interesting illustration of this was the Jeremiah. 37 There salvors rescued a vessel which had been in collision, and was so hung to the other vessel that it required some force to get them apart. The court held, that the salvage claim had priority over the collision claim. So, too, in the ALINE, 38 Dr. Lushington, while prefer- ring, as we have heretofore seen, the tort claims to a prior bottomry bond, held also that a bottomry bond for supplies subsequently furnished ranked the tort claim, for the rea- son that the tort claim could only go against the vessel as it was at the time of the collision, and had no right to sub- ject a subsequent increment to the vessel like this. SAME—AS BETWEEN TORT LIENS 187. Among tort liens, the last should rank; but this is not settled. An interesting case on this subject was the FRANK G. FOWLER. 39 In that case there were two successive col- lisions so close together that no question of laches could arise between the two. Under such circumstances District Judge Choate held that the last was entitled to priority, as sc Dan Brown, 9 Bon. 309, Fed. Cas. No. 3,556. | 186. st io Bon. 338, Fed. Cas. No. 7,290. So as to subsequent Hens for necessaries. Glen Island (D. C.) 191 Fed. 74 L - 1. w. Rob. Ad. 112. § 187. a» (D. C.) 8 Fed. 331; Td. (C. C.) 17 Fed. 053. § 187) RAXK AS AFFECTED BY DATE OF LIENS 305 the first collision claim had a jus in re, or a proprietary inter- est, in the vessel, and therefore was somewhat in the posi- tion of an owner. In his opinion he says: "A party who has already suffered such a damage has such a lien or hypothecation of the vessel. He is to that extent in the position of an owner — he has a quasi propri- etary interest in the vessel. It is true, he cannot, as an own- er, control her employment, or prevent her departure on an- other voyage, except by the exercise of his right or power to arrest her for the injury to himself; and in some cases the second injury may be done before he has an opportunity to arrest her. Yet, if her continued employment is not his own voluntary act, nor with his own consent, it is his mis- fortune that the vessel in which he has an interest is used in a manner to subject herself to all the perils of naviga- tion. This use, unless he intervenes to libel and arrest her, is perfectly lawful as against him. If she is lost by ship- wreck, of course his lien becomes valueless, and I think his interest is not exempted from this other peril to which the vessel is liable, namely, that she may become bound to any party injured through the torts of the master and mariners. The principle as to marine torts is that the ship is regarded as the offending party. She is liable in solido for the wrong done. The interests of all parties in her arc equally bound by this lien or hypothecation, whether the master and mariners are their agents or not. In the case of the Aline, 1 W. Rob. Adm. 118, Dr. Lushington says: 'I am also of opinion that neither the mortgagee nor bot- tomry bondholder could be a competitor with the suc- cessful suitor in a cause of damage, and for this reason that the mortgage or bottomry bond might, and often does, ex- tend to the whole value of the ship. If, therefore, the ship was not first liable for the damage she had occasioned, the person receiving the injury might be wholly without a rem- edy ; more especially where, as in this case, the damage is done by a foreigner, and the only redress is by a proceed- 396 RELATIVE PRIORITIES OF MARITIME LIENS (Ch. 17 ing against the ship.' Commenting on this decision in the case of the Bold Buccleugh, ut supra, the court says: 'In that case there was a bottomry bond before and after the collision, and the court held that the claim for damage in a proceeding in rem must be preferred to the first bondholder, but was not entitled, against the second bondholder, to the increased value of the vessel by reason of repairs effected at his cost. The interest of the first bondholder taking effect from the period when his lien attached, he was, so to speak, a part owner in interest at the date of the collision, and the ship in which he or others were interested was liable to its value at that date for the injury done, without ref- erence to his claim.' I think the same principle is applica- ble to a prior lienholder, who, by the tort of the master and mariners, had become, so to speak, a part owner in the ves- sel. His property — the vessel — though not by his own vol- untary act, has been used in commerce. That use was not tortious as to him. It is subject in that use to all ordinary marine perils. One of those marine perils is that it may become liable to respond to another party injured by the negligence of the master and mariners. No exception to the liability of the vessel, exempting the interests of parties interested in the ship, has been established by authority." On appeal to Circuit Judge Blatchford this decision was reversed, the judge holding that the doctrine of the last be- ing paid first only applied to such liens as were for the ben- efit of the vessel, and tend to the preservation of the res, and did not apply to torts, which tend rather to destroy than to benefit. If the principles laid down by the Supreme Court in the JOHN G. STEVENS are the guide, the District Judge was the one who should be followed. When we once settle the doctrine that a maritime lien is a jus in re, or a proprietary interest in the ship, it follows necessarily that the owner of that interest, though not guilty of laches, and having no control over the master in charge, impliedly takes the risks § 188) RANK AS AFFECTED BY SUIT OR DECREE 397 of subsequent accidents, and holds the ship out to the world as a thing of life, liable to make contracts and to commit torts, and that he should not be heard to dispute the claims of others who have been brought into relations with her upon this basis. 40 RELATIVE RANK AS AFFECTED BY SUIT OR DECREE 188. The earlier decisions held that among claims of other- wise equal dignity the party first libeling was en- titled to be first paid, on the theory that an admi- ralty lien was a mere right of arrest; but the later decisions, establishing it as a proprietary right or interest in the thing itself, have deduced from that principle that a prior petens has no advan- tage, and that the institution of suit does not af- fect the relative rank of liens. 41 In fact, in many districts, obtaining a decree does not give an inferior claim a priority which it would not otherwise have, but merely entitles the claimant to assert his claim without further proof, and debars others from contesting it on its merits, leaving open simply the question of priority. 42 In England a lienor who secures an admiralty decree for his claim is held to have obtained the highest rank that the lav/ can give, and to be entitled to priority over all others. 43 This is a question largely affected by local practice and local rules. In many districts independent libels are filed 40 America (D. C.) 168 Fed. 424. § 188. 4i CITY OF TAWAS (D. C.) 3 Fed. 170; J. W. Tucker (D. C.) 20 Fed. 129 ; Saylor v. Taylor, 77 Fed. 476, 23 C. C. A. 343. ,42 CITY OF TAWAS (D. C.) 3 Fed. 170; Aina (D. C.) 40 Fed. 269. 43 Abbott's Law of Merchant Ships, pt. 6, c. 4, § 2 ; Bernard v. Hyne, 6 Moore, P. C. 56; 4 Notes of Cases, 49S; 2 W. Rob. 451; 13 Eng. Rep. 604. 398 RELATIVE PRIORITIES OF MARITIME LIENS (Ch. 17 against the vessel. In some the vessel is arrested under the first libel, and the others come in by petition. In some districts, after a certain time all the claims are referred to a commissioner, to ascertain and report their relative rank. In others, in the event of no contest, a decree is entered at the return day, or as soon thereafter as possible, giving pe- titioners a judgment against the vessel, and directing a sale. It is impossible to lay down any rule on the subject. In the Eastern district of Virginia the practice is that all claims filed up to the answer day are paid according to their relative character, it matters not which libels first. But all claims after the answer day, though otherwise prior in dignity, come in subject to those already filed. In that district the rule has been that claims coming in after a de- cree has been entered, and an order of sale made, are sub- ject to the others, the reason being that the rules of that district allow nearly three weeks between the libel day and the answer day, which therefore give ample time for com- ing in, and it being further thought that bidders at the sale ought to know their relative rights in order to enable them to decide upon their bids. Those creditors who stay out until others more diligent than themselves bring suit, secure a sale, attend the sale, and make the vessel bring a good price, are not permitted to intervene then, and dis- place those who have borne the heat and burden of the fray. In the absence of special equities, the rule of practice in the Eastern district of Virginia would certainly seem a fair one, well calculated to make vessels bring their full value, and to make marine claimants assert their claims season- ably, without allowing them to prejudice the rights of oth- ers. 44 ** See, also, Saracen, 2 W. Rob. Ad. 453; Bradley v. Corn Ex- change, Inland Navigation & Fire Ins. Co., 5 Wall. 87, LS L. Ed. 517; Dode (D. C.) 100 Fed. 178; James eyond the author's comprehen- sion. CORSAIR. 145 U. S. 335, 12 Sup, Ct. 049, 36 L. Ed. 727. a Gemma, [1899] P. 285: Dupleix, [1912] P. 8. io2 Select Anglo-American Legal Essays (Mears' Essay) 315. In .Mayer's Admiralty Law & Practice, el seq., and also 26 et seq., is a thorough discussion of the difference between the English and American doctrine, and the reason 'herefor. In the appendix to Smith's Admiralty Law and Practice is a full collection of the English forms. § 192) THE LIBEL 403 as they may be bound through their vendors or other par- ties in privity. 11 191. THE ADMIRALTY RULES OF PRACTICE In 1842 Congress passed an act directing the Supreme Court to prepare and promulgate rules to govern the proce- dure and practice in admiralty. In pursuance of this stat- ute, the court promulgated the rules to regulate the ad- miralty practice in the inferior courts now known and cited as the "Admiralty Rules." They form an admirably simple and harmonious system, and have worked so well that they are to-day practically in the form of the original draft, the only material change being the addition of a few to regulate limited liability proceedings, and one to authorize bringing in the other vessel where only one of two colliding vessels is libeled. An admiralty court is not a court of terms, but is always open for the transaction of business. 192. THE LIBEL The first step in an admiralty suit is to file the libel. This is the written statement of the cause of action, correspond- ing to the declaration at common law and the bill in equity. It must be properly entitled of the court; addressed to the judge; must state the nature of the cause; that the prop- ertv is within the district, if in rem, or the parties, their occupation and residence, if in personam ; must then state the facts of the special case in separate articles clearly and concisely, and conclude with a prayer for process and a prayer for general relief. It may propound interrogatories to the adversary. 12 ii ECLIPSE, 135 U. S. 599, 10 Sup. Ct. S73, 34 L. Ed. 269; Cush- ing v. Laird, 107 D. S. 69, 2 Sup. Ct. 196, 27 L. Ed. 391. § L92. 12 Admiralty rule 23 (29 Sup. Ct. xli). 404 SUMMARY OF PLEADING AND PRACTICE (Ch. 18 The libel should be in the name of the real party in in- terest, not in the name of one for the benefit of another. But the better opinion is that it may be amended by insert- ing the names of the real parties, or that, if they come in by supplemental libel, the proceedings will thereby be made regular. 18 This principle does not prevent suits in a representative capacity. For instance, the master has wide powers as agent of all concerned, and may sue on behalf of owners of ship and cargo, and frequently on behalf of the crew. 14 All parties entitled to similar relief on the same state of facts may join as libelants, in order to avoid multiplicity of suits. And for the same reason distinct causes of action may be joined in one libel. The practice in this respect is very liberal. 15 In stating the facts of the special case, useless verbiage and archaic terms, may safely be omitted. The narration may be made as simple as possible, provided, always, that those essentials common to any civilized system of pleading be observed — to state the case with sufficient detail to noti- fy the adversary of the grounds of attack, so that he may concert his defense. For instance, a libel in a collision case must specify the acts of negligence committed by the other vessel, though, if it does not do so, but merely charges neg- 13 Ilos, Swab. 100; Minna, D. R. 2 Ad. & Ec. 97; Fretz v. Bull, 12 How. 466, 13 L. Ed. 1068; Burke v. M. P. Rich, Fed. Cas. No. 2,161; Anchoria (D. C.) 9 Fed. S40; Beaconsfield, 158 U. S. 303, 15 Sup. Ct. 800, 39 L. Ed. 993 ; Eastfield S. S. Co. v. McKeon (D. C.) 186 Fed. 357 (reversed on another point 201 Fed. 465, 120 C. C. A. 249; the court however stating — page 470 — that it concurred with the District Court on this point). 1* Commander in Chief, 1 Wall. 51, 17 L. Ed. 609; Blackwall, 10 Wall. 1, 19 L. Ed. 870 ; Mercedes (D. C.) 108 Fed. 559. is Queen of the Pacific (D. C.) 61 Fed. 213; Pacific Coast S. S. Co. v. Bancroft-Whitney Co., 94 Fed. ISO, 36 C. C. A. 135, reversed Queen of the Pacific, 180 U. S. 49, 21 Sup. Ct. 27S, 45 L. Ed. 419, but not on this question ; Oregon, 133 Fed. 609, 68 C. C. A. 603. § 193) AMENDMENTS 405 ligence in general, and no exceptions are filed, it will not prevent the case from proceeding. 18 193. AMENDMENTS In case the libel is thought defective, great latitude is al- lowed in amendments. Formal amendments are a matter of course, and amendments in matters of substance are in the discretion of the court. They may be made even on appeal, but not to the extent of introducing a new subject of litigation. 17 But the power of the court to allow amendments is a judicial discretion, not a mere caprice. It will not be so exercised as, under the guise of liberality to one party, to do injustice to the other. Hence, after the cause is at issue, and evidence has been taken, or the witnesses scattered, a court would be chary in allowing amendments, especially of matters known to the applicant for any length of time before the application is made. "The propriety of granting this privilege in any partic- ular case will depend on the circumstances by which it is attended. The application is addressed to the sound discre- tion of the court, and this discretion is to be exercised with a just regard to the rights and interests of both parties ; care being taken that for the sake of relieving one party injustice shall not be done to the other." 18 is MARPESIA, L. R. 4 P. C. 212; Vim (D. C.) 2 Fed. 874; II. P. Baldwin, 2 Abb. U. S. 257, Fed. Cas. No. 6,S11 ; Barber v. Lockwood w. 273, Fed. Cas. No. 13,145; Illinois, 5 Blatchf. 256, Fed. Cas. No. 7,002; Northrop v. Gregory, 2 Abb. U. S. 503, Fed. Cas. No. 10,327. 2 8 NEW ENGLAND, 3 Sunin. 495, Fed. Cas. No. 10,151; North- western Car Co. v. Hopkins, 4 Biss. 51, Fed. Cas. No. 10,334 ; Dexter v. Arnold, 3 Mason, 2S4, Fed. Cas. No. 3,855; Columbia (D. C.) 100 Fed. 890; New York, 113 Fed. 810, 51 C. C. A. 482; Hall v. Chis- holm, 117 Fed. 807, 55 C. C. A. 31. § 196. 29 White v. Cynthia, Fed. Cas. No. 17,546a. so Admiralty rule 27 (29 Sup. Ct. xlii). si Cushman v. Ryan, 1 Story, 91, Fed. Cas. No. 3,515; Eads v. The H. D. Bacon, Newb. Adm. 274, Fed. Cas. No. 4,232. 410 SUMMARY OP PLEADING AND PEACTICE (Cll. 18 Things neither admitted nor denied by the answer are not taken as true, but must be proved. 32 The defendant, in his answer, may set up want of juris- diction of the subject-matter and a defense on the merits. 33 Of course, he cannot plead mere want of jurisdiction over the person, and defend on the merits, as that would be a general appearance in any system of pleading - . 84 Hence, when the facts showing lack of jurisdiction over the person or exemption from suit do not appear on the libel, such defense must be set up by exception, which cor- responds more to a dilatory plea than to a demurrer, as it sets up additional facts. 35 The answer, if sufficient, or if not excepted to, puts the case at issue. No replication is necessary. 36 197. THE TRIAL As admiralty is not a court of terms, the case goes at once on the trial calendar, and may be called up at any time convenient. It is tried before the judge (there are no juries in ad- miralty proceedings proper), who hears the witnesses ore tenus, or, if he sees fit, appoints a commissioner to take the evidence down in writing, and report it to him later. In this matter the practice varies in the different districts. In the Eastern district of Virginia the rule requires that in cases involving over $500 the evidence shall be ore tenus, and taken down in shorthand ; and the stenographer's notes, when written out, constitute the record in the event of an appeal. 82 Clarke v. Dodge Healy, 4 Wash. C. C. G51. Fed. Cas. No. 2,840. 88 Ijndrup (D. C.) G2 Fed. 851. 34 Jones v. Andrews. 10 Wall. 329, 10 L. Ed. 935. so August Belmont (D. C.) 153 Fed. 639; Koenigin Luise (D. C.) 184 Fed. 170, 172. :<« Admiralty rule 51 f'-!0 Sup. Ct. xliv). § 198) EVIDENCE 411 A similar practice is prevalent in the other jurisdictions.* 1 On account of the shifting character of marine witnesses, the cases are rare where all the evidence can be offered in court. In order to save the testimony of departing wit- nesses, or secure the testimony of nonresidents, it is usually necessary to take many depositions de bene esse. They are taken on notice, pursuant to the provisions of section 863, Rev. St. (U. S. Comp. St. § 1472), or the act of March 9, 1892. permitting them to be taken as in the state courts. 38 In practice, counsel are liberal with each other in such matters, accepting short notice, allowing the evidence to be taken in shorthand, waiving the witnesses' signatures, and even the filing of the deposition till the hearing. When the case comes on, it is heard and argued substan- tially as a chancery cause would be. If the damages are not known or agreed to, the judge, in the event of a decision for libelant, usually refers the mat- ter to a commissioner by an interlocutory decree to inquire into and assess the damages. Under admiralty rule 44 this commissioner has about the powers of a master in chan- cery. Those dissatisfied with his report may except to it, and upon it and such exceptions the court renders its final decree. 198. EVIDENCE Section 858 of the Revised Statutes, as amended June 29, 1906, provides that the competency of a witness to testify in any civil action, suit or proceeding in the courts of the United States shall be determined by the laws of the state or territory in which the court is held. 39 § 197. 3 7 Neilson v. Coal, Cement & Supply Co., 122 Fed. 617, 60 C. C. A. 175: Rogers v. Brown (D. C.) 136 Fed. 813. 38 27 Stat. 7 (U. S. Comp. St. § 1476V § 198. 39 U. S. Comp. St. § 1464. For the statutes regulating evi- dence, see post, p. 49S. See, also, Hughes on Federal Procedure, 10. 412 SUMMARY OP PLEADING AND PRACTICE (Cll. 18 199. ATTACHMENTS IN ADMIRALTY It has been settled that the common-law and chancery- courts of the United States have no jurisdiction of suits by- foreign attachment against nonresidents, for the reason that by the federal statutes no person can be sued, as a general rule except in the district where he lives. 40 Since the last-cited decision, however, the Tucker-Cul- bertson Act allows suits to be brought in the district of the plaintiff's residence, so that a process of foreign attachment could be sustained in such district if the defendant can be served with process. In admiralty, however, a libel accompanied by an attach- ment can be sustained, as these statutes do not apply to the admiralty courts. 41 200. SET-OFF Set-off cannot be pleaded in admiralty as it is the creature of statutes which were passed for the common-law and chancery courts, and were not intended to apply to the ad- miralty courts. 42 This, however, does not prevent a counterclaim arising out of the same transaction from being used to recoup the damages. 43 § 199. 40 Ex parte Des Moines & M. R. Co., 103 U. S. 794, 26 L. Ed. 461. 4i IN RE LOUISVILLE UNDERWRITERS, 134 U. S. 488, 10 Sup. Ct. 5S7, 33 L. Ed. 991 ; Reilly v. Philadelphia & R. R. Co. (D. C.) 109 Fed. 349. § 200. 42 Willard v. Dorr, 3 Mason, 91, Fed. Cas. No. 17,679; O'Brien v. 1,614 Bags of Guano (D. C.) 48 Fed. 726. 48 Bowkor v. U. S., 1S6 U. S. 135, 22 Sup. Ct. S02, 46 L. Ed. 1090; Howard v. 9,889 Bags of Malt (D. C.) 255 Fed. 917. § 202) TENDER 413 201. LIMITATIONS Admiralty is not bound by the statutes of limitation, for this same reason that they do not in terms apply to those courts. Hence, where the rights of third parties have in- tervened, an admiralty court will hold a claim stale in a much shorter period than that prescribed by the statutes, and we have seen in other connections that among admiral- ty liens of the same character the last is preferred to the first. 44 But, as between the original parties, unless special cir- cumstances have intervened, the admiralty courts adopt the statutes of limitation by analogy, the doctrine being sub- stantially the same as the chancery doctrine on the sub- ject. 45 202. TENDER In the matter of tender, admiralty is not as rigid as the other courts. A formal offer in actual cash is not de rig- ueur. Any offer to pay, followed up by a deposit of the amount admitted in the registry of the court, is sufficient. 48 § 201. 44 Ante, pp. 103, 115, 392 ; Nikita, 62 Fed. 936, 10 C. C. A. 674. 45 Sarah Ann, 2 Sumn. 206, Fed. Cas. No. 12,342 ; Queen (D. O.) 78 Fed. 155; Pacific Coast S. S. Co. v. Bancroft- Whitney Co., 94 Fed. 180, 36 C. C. A. 135 ; Queen of the Pacific, ISO U. S. 49, 21 Sup. Ct. 278, 45 L. Ed. 419; Southard v. Brady (C. C.) 36 Fed. 560; Southwark (D. C.) 128 Fed. 149; Davis v. Smokeless Fuel Co., 196 Fed. 753, 116 C. C. A. 381. § 202. 46 Dedekam v. Vose, Fed. Cas. No. 3,729; Boulton v. Moore (C. C.) 14 Fed. 922. 414: SUMMARY OF PLEADING AND PRACTICE (Ch.l Q 203. COSTS In the matter of costs admiralty courts exercise a wide discretion, and often withhold them as a punishment in case the successful litigant has been guilty of oppression, or has put his opponent, by exorbitant demands, to unnec- essary inconvenience or expense. 47 The act of July 20, 1892, as amended June 25, 1910, 4S permits suits in forma pauperis without requiring security for costs. The act, if intended to apply to the admiralty courts, frequently works great injustice by tying up large steamers in foreign ports till they give bond ; and they are remediless if the cause of action is unfounded. 204. ENFORCING DECREES If, after the trial and all its incidents are oyer, the decision is in favor of libelant, and there is no appeal, the final de- cree, in case the vessel has been released, goes against the stipulators, and under admiralty rule 21 can be enforced by a writ of fieri facias. In case the vessel has not been released, the final decree provides that she be advertised and sold by the marshal of the district, who alone, under admiralty rule 41, can per- form this duty. 49 The practice is to make the sale for cash, and the rule requires it to be deposited in the registry of the court, to await its further orders. A sale by the marshal vests a clear title against the world. 60 § 203. ** Shaw v. Thompson, Oleott, 144, Fed. Cas. No. 12,726; Lyra (C. C. A.) 255 Fed. 667. 4* 27 Stat. 252: 36 Stat. 866 (U. S. Comp. St. § 1626); post, p. 505. § 204. 49 Lambert's Point Towboat Co. v. U. S., 1S2 Fed. 3SS, 10 1 C. C. A. 598. so Trenton (D. C.) 4 Fed. 657; Evangel (D. C.) 94 Fed. 680. § 206) TI1E COURTS HAVING ADMIRALTY JURISDICTION 415 Admiralty rule 42 requires money in the registry of the court to be drawn out by checks signed by the judge. Under rule 43, parties having any interest in the vessel may come in by petition, and assert it. Under this, a party holding any sort of lien may come in, but not any party having a mere personal claim upon the owner. 51 205. THE FIFTY-NINTH RULE This rule 52 permits the owner of one of two vessels which has been libeled in a collision case by a third party to bring in the other vessel if he can find her, and have the damages assessed against either or both, according to the fact. 53 The principle of this rule has been applied to many analo- gous cases, in the effort to place the responsibility where it equitably belongs. 54 206. THE COURTS HAVING ADMIRALTY JURIS- DICTION The federal Constitution vests the judicial power in one Supreme Court and such inferior courts as Congress shall from time to time establish. Acting under this authority, Congress, by the Judiciary Act of 1789, divided the United States into districts, and established in each district two si Edith, 94 U. S. 518, 24 L. Ed. 167 ; Leland v. Medora, 2 Woodb. & M. 92. Fed. Cas. No. 8,237; Brackett v. Hercules, Gilp. 184, Fed. Cas. No. 1,762. § 205. 5 2 Admiralty rule 59 (29 Sup. Ct. xlvi). 53 Ante, p. 320; Hudson, Fed. Cas. No. 6.S28; Joiee v. Canal Boats Nos. 1,758 and 1,892 (D. C.) 32 Fed. 553 ; Greenville (D. C.) 58 Fed. 805. 6*Dailey v. New York (D. C.) 119 Fed. 1005; Crown of Castile (D. C.) 148 Fed. 1012 ; Evans v. New York & P. S. S. Co. (D. C.) 163 Fed. 405; Daylight (D. C.) 206 Fed. 864; Barnstable, 181 U. S. 461, 21 Sup. Ct. 684, 45 L. Ed. 954. 416 SUMMARY OF PLEADING AND PRACTICE (Ch. 18 courts of original jurisdiction, the District Court and the Circuit Court. To the District Court all classes of peculiar or special character were assigned, such as suits for penal- ties, admiralty, and bankruptcy cases, and minor criminal cases. On the Circuit Court was conferred the general cur- rent litigation usual between man and man, including all cases of common law and equity, and more important crim- inal cases. The Circuit Court was also given appellate ju- risdiction of most of the subjects of District Court cog- nizance, including admiralty cases. There was a District Judge appointed for each district, who was empowered to hold both the District and Circuit Courts for that district, except that he could not sit in the Circuit Court on appeals from his own decisions. To pro- vide an appellate judge for such cases, the districts were grouped into larger units, called "circuits," equal in num- ber to the justices of the Supreme Court, and each Justice, during the recess of that court, went around his circuit, holding the Circuit Court in each district. Thus appeals from the District Courts in admiralty-were tried in the Circuit Court by the Supreme Court Justice for that circuit. The appeal took up questions both of law and fact for review, the notes of evidence taken by the District Judge being the evidence on appeal ; but the trial was de novo, being rather a new trial than an appeal, and new evi- dence could be introduced in the appellate court. In the event of an adverse decision in the Circuit Court, there was a second appeal, both on law and fact, to the Supreme Court, in cases involving over $2,000. The increase of litigation consequent on the Civil War was so great that it was found necessary to increase the ju- dicial force, and lighten the labors of the Supreme Court jus- tices. Hence, in 1869, Congress enacted that there should be an additional judge appointed for each judicial circuit, to be called a "Circuit Judge." He could hold the Circuit Court in any district of his circuit. § 206) THE COURTS HAVING ADMIRALTY JURISDICTION 417 The docket of the Supreme Court became more and more congested, and further relief became imperative. And so, by the act of February 16, 1875, Congress raised the limit of appeals to the Supreme Court to $5,000, and further pro- vided that in admiralty there should no longer be an appeal to that court on questions both of law and fact, but that the Circuit Judge on an admiralty appeal from the district court should make a finding of the facts, and draw his con- clusions of law therefrom, and the case then went to the Supreme Court simply on this finding, and no longer on all questions, both of law and fact. This, however, still left the litigant one appeal on questions of fact — that from the District Court to the Circuit Court. This continued to be the law until the act of March 3, 1891, known as the "Appellate Courts Act." It created an additional Circuit Judge for each circuit, abolished the ap- pellate jurisdiction of the Circuit Court, and established a new appellate court in each circuit, composed of the Circuit Justice and the two Circuit Judges, but with the District Judges used to fill vacancies. Under this law admiralty appeals from the District Court go to this appellate court, with no restriction as to the amount involved, and on the full record of the District Court, thereby nominally giving a review of questions both of law and fact. This new appel- late court is the court of last resort in admiralty cases, ex- cept that it may certify to the Supreme Court for decision any questions as to which it may desire instruction, and except, also, that the Supreme Court may, by certiorari, bring up for review any cases that it may deem of sufficient importance. The Circuit Court, having lost its appellate jurisdiction by the Appellate Courts Act of 1891, was finally abolished, and its original jurisdiction transferred to the District Court, by the act of March 3, 1911, known by the short title of the "Judicial Code," but this is immaterial to the pres- HunnES,ADM. (2d Ed.) — 27 418 SUMMARY OF PLEADING AND PRACTICE (Ch. 18 ent subject, as the Circuit Court had no original jurisdiction in admiralty. 55 207. THE PROCESS OF APPEAL The process of appeal varies in the different circuits under their different rules. In the Fourth circuit, as soon as the final decree is entered in the District Court, a petition is filed in that court, addressed to the judges of the Circuit Court of Appeals, praying an appeal, and assigning errors. On this the District Judge (or any judge of the appellate court) indorses: "Appeal allowed. Bond required in the penalty of $ , conditioned according to law" — and signs it. He also signs the citation, which is the notice of appeal given to the other side, and cites him to appear in the appellate court at a day named to defend his decree. A certified copy of the entire transcript is then obtained from the district clerk, and filed with the clerk of the appel- late court, who dockets the case, and, when secured as to costs, has the record printed. Under the act of February 13, 1911, the appellant is al- lowed to print his own record, instead of securing a, tran- script from the clerk of the trial court and then having it printed by the clerk of the appellate court. 50 The act of March 3, 1891, provides that the appeal must be taken within six months from the decree complained of, "unless a lesser time is now allowed by law." Appeals in admiralty cases are governed by the six months limitation, and are unaffected by the clause above quoted. 57 § 200. " 36 Stat. 10S7 (U. S. Comp. St. §§ 968-1274). § 207. oe so Stat. 901 (U. S. Comp. St. §§ 1650, 1637). "New York, 44 C. C. A. 38, 104 Fed. 561; Robins Dry Dock & Repair Co. v. Chesbrough, 210 Fed. 121, 132 C. C. A. 365. § 208) QUESTIONS OF FACT ON APPEAL 419 208. QUESTIONS OF FACT ON APPEAL Although the intent of Congress to give an appeal on questions both of law and fact is clear, and it is notorious that the act of February 16, 1875, while it was in force, was far from satisfactory, this has been largely frittered away by judicial decisions. The appellate courts have gone very far in practically refusing to review questions of fact where the District Judge has had the witnesses before him, though not so far where part or all of the evidence has been by dep- osition. This doctrine is largely an abdication of the trust confided in them, and, for an admiralty court, smacks too much of the old common-law fiction as to the sacredness of the jury's verdict. Under the old law giving a review on questions of law and fact the Supreme Court has more than once spoken of a right of appeal as something more than a shadow. 58 A finding, unsupported by any evidence or ignoring ma- terial and proven facts, will be disregarded. 59 In fact, this theory about the trial judge being endowed with clairvoyance because he saw the witnesses has degenerated into a mere makeweight for that films nullius, the per curiam opinion. The judicial ermine, unlike the mantle of Elijah, con- fers no supernatural powers. The most truthful men often make the worst witnesses. If the trial judge could decide § 208. bs post v. Jones, 19 How. 150, 15 L. Ed. 61S ; ARIADNE, 13 Wall. 475, 20 D. Ed. 542 ; City of Hartford, 97 U. S. 323, 24 L. Ed. 930; Gypsum Prince, 67 Eed. 612, 14 C. C. A. 573; Glendale, 81 Fed. 633, 26 C. C. A. 500 ; Albany, 81 Fed. 906, 27 C. C. A. 28 ; Captain Weber, 89 Fed. 957, 32 C. C. A. 452; Lazarus v. Barber, 136 Fed. 534, 69 C. C. A. 310 ; Kia Ora, 252 Fed. 507, 164 C. C. A. 423. so Darlington v. Turner, 202 U. S. 195, 26 Sup. Ct. 630, 50 D. Ed. 992; Fullerton, 211 Fed. 833, 128 C. C. A. 359. 420 SUMMARY OF PLEADING AND PEACTICE (Ch. 18 cases at their close, as juries render verdicts, there would be more force in the idea. But in districts of crowded dock- ets, where numerous cases, each with numerous witnesses, are tried in rapid succession, and then taken under advise- ment for months, nothing short of a moving picture screen, with a photographic-phonographic attachment, could bring it back to the judicial mind. To give this amiable fiction the scope which it has often been given is in effect to deny an appeal on questions of fact, which the statutes are sup- posed to give. That seeing the witnesses is an advantage cannot be denied. But its importance has been grossly ex- aggerated. Surely the combined intelligence of the three appellate judges as against the one trial judge ought to overbalance it. 209. NEW EVIDENCE A peculiar feature of admiralty appeals formerly was that an admiralty appeal was a new trial. An appeal from the district to the circuit court was like one from a magistrate in the state procedure — new witnesses could be examined, and the circuit court entered its own decree, and issued its own execution, instead of remanding the case to the dis- trict court for future proceedings. Even an appeal from the Circuit to the Supreme Court Avas so far a new trial that additional witnesses could be ex- amined, but the Supreme Court restricted this right by rule to evidence which could not have been produced in the lower courts, and required it to be taken by deposition. In other words, they discouraged the practice as much as possible on account of its obvious injustice and liability to abuse. 60 The new appellate courts have adopted substantially the same doctrine. In case an appeal is taken up with a record § 209. co Mabey, 10 Wall. 419, 19 L. Ed. 903. § 209) NEW EVIDENCE 421 not containing- the evidence, they will not review the facts at all. 61 ' It is still a new trial in its effect on the decree of the trial court — so far in fact that the appellate court can consider changes in fact and law arising after the decree. 62 In the Glide, 03 a case was tried in the District Court of Maryland, the witnesses being examined ore tenus, but there was no rule in that district requiring their testimony to be taken down, and it was not taken down. The unsuc- cessful party appealed, and asked for a commission to re- take his testimony for use on appeal. The court permitted it, on the ground that it was not his fault if the district court rule did not provide for such a case. The court, after arguing out his right to retake his testimony, ended its opin- ion by saying that the case must not be taken as a precedent, and any party who omitted or neglected to have his testi- mony taken down must suffer the consequences. So it sounds very much like a verdict of "Not guilty, but don't do it again." The fact that there was no rule requiring it was not much of an excuse. In the common-law courts there is no rule or statute requiring- evidence to be preserved for the pur- pose of preparing bills of exceptions, but the lawyer who gave that as an excuse for not setting out the evidence in his bill would receive scant consideration from a judge. The well-known characteristics of sailor witnesses, and the utter lack of any check on them in case their testimony is not in black and white, especially after they have found out by hearing the arguments in the first trial how their si PMladelphian, 60 Fed. 423, 9 C. C. A. 54. 62 Hawkins, In re, 147 U. S. 4S6, 13 Sup. Ct. 512, 37 L. Ed. 251; Reid v. Fargo. 241 U. S. 544, 36 Sup. Ct. 712, 60 L. Ed. 1156; Watts, Watts & Co. v. Unione Austriaca di Nayigazione, 248 U. S. 9, 39 Sup. Ct. 1. 63 L. Ed. 100, 3 A. L. R. 323. 6 3 72 Fed. 200, IS C. C. A. 504. 422 SUMMARY OF PLEADING AND PRACTICE ( Ch. 18 case should be strengthened, render the procedure permit- ted in this case one of the gravest danger. 8 * Under the present law, the appellate court remands the case to the District Court for final action, instead of entering its own decree, as the old Circuit Court did. e* Taylor v. Harwood, Taney, 437, Fed. Cas. No. 13,794. In Neil- son v. Coal, Cement & Supply Co., 122 Fed. 617, 60 C. C. A. 175, the same court and judge emphasized the necessity of having the testi- mony taken down in the trial court. See, also, McDonald, 112 Fed. 681, 50 C. C. A. 423. APPENDIX 1. The Mariner's Compass. 2. The Salvage Act of August 1, 1912. 3. Statutes Regulating Navigation, Including: (1) The International Rules. (2) The Rules for Coast and Connecting Inland Waters. (3) Lines between International and Inland Rules. (4) The Lake Rules. (5) The Mississippi Valley Rules. (6) The Act of March 3, 1899, as to Obstructing Chan- nels. (7) The Stand-By Act of September 4, 1890. 4. The Limited Liability Acts Including: (1) The Act of March "3, 1851, as Amended. (2) The Act of June 26, 1884. 5. Section 941, Rev. St., as Amended, Regulating Release of Vessels from Arrest, on Bond or Stipulation. 6. Statutes Regulating Evidence in the Federal Courts. 7. The Handwriting Act of February 26, 1913. 8. Suits in Forma Pauperis. 9. Certain Admiralty Suits against the United States. 10. The Admiralty Rules of Practice. Htjghes.Adm. (2d Ed.) (423) 1. THE MARINER'S COMPASS ^ 2. £?" 'a -4 i 1 ® ^ N. £ Z ■£ TjC _*w_^r*iZ V W - by x •tf.™* *■ ■ ^M ■c"' £' TlTfrmiZ "i£*rrV^ £• 01 tr- (Q h S. rf ^ «?• ■o ■4 (424) Appdx.) THE SALVAGE ACT OF AUGUST 1 , 1912 425 2. THE SALVAGE ACT ACT AUGUST 1, 1912 (37 Stat. 242, U. S. Comp. St. §§ 7990-7994). An act to harmonize the national law of salvage with the provisions of the international convention for the unifica- tion of certain rules with respect to assistance and sal- vage at sea, and for other purposes. Section 1. (U. S. Comp. St. § 7990.) Salvage; remunera- tion not affected by ownership of vessel — The right to re- muneration tor assistance or salvage services shall not be affected by common ownership of the vessels rendering and receiving such assistance or salvage services. (37 Stat. 242.) Sec. 2. (U. S. Comp. St. § 7991.) Assistance to be ren- dered by master; punishment for failure — The master or person in charge of a vessel shall, so far as he can do so without serious danger to his own vessel, crew, or passen- gers, render assistance to every person who is found at sea in danger of being lost; and if he fails to do so, he shall. upon conviction, be liable to a penalty of not exceeding one thousand dollars or imprisonment for a term not ex- ceeding two years, or both. (37 Stat. 242.) Sec. 3. (U. S. Comp. St. § 7992.) Salvors of life to share in property saved — Salvors of human life, who have taken part in the services rendered on the occasion of the acci- dent giving rise to salvage, are entitled to a fair share of the remuneration awarded to the salvors of the vessel, her cargo, and accessories. (37 Stat. 242.) Sec. 4. (U. S. Comp. St. § 7993.) Time limit for salvage suits — A suit for the recovery of remuneration for render- ing assistance or salvage services shall not be maintaina- ble if brought later than two years from the date when such assistance or salvage was rendered, unless the court in which the suit is brought shall be satisfied that during: such 426 THE SALVAGE ACT OF AUGUST 1,1912 (Appdx. period there had not been any reasonable opportunity of arresting the assisted or salved vessel within the jurisdic- tion of the court or within the territorial waters of the country in which the libelant resides or has his principal place of business. (37 Stat. 242.) Sec. 5. (U. S. Comp. St. § 7994.) Act not applicable to ships of war, etc. — Nothing in this Act shall be construed as applying to ships of war or to Government ships appro- priated exclusively to a public service. (37 Stat. 242.) 3. STATUTES REGULATING NAVIGATION (I) INTERNATIONAL RULES (26 Stat. 320, as amend- ed, 28 Stat. 82, 29 Stat. 381, 885, 31 Stat. 30, and 34 Stat. 850 [U. S. Comp. St. §§ 7834-7871]). Be it enacted by the Senate and House of Representa- tives of the United States of America in Congress assem- bled : Regulations for preventing collisions — The following reg- ulations for preventing collisions at sea shall be followed by all public and private vessels of the United States upon the high seas and in all waters connected therewith, naviga- ble by seagoing vessels. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 320, U. S. Comp. St. § 7834.) Preliminary Meaning of words — In the following rules every steam- vessel which is under sail and not under steam is to be con- sidered a sailing-vessel, and every vessel under steam, whether under sail or not, is to be considered a steam-ves- sel. The word "steam-vessel" shall include any vessel pro- pelled by machinery. A vessel is "under way" within the meaning of these rules when she is not at anchor, or made fast to the shore. or aground. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 320, U. S. Comp. St. § 7^35.) Appdx.) INTERNATIONAL RULES 427 Rules Concerning Lights, and so Forth Meaning of word "visible" — The word "visible" in these rules when applied to lights shall mean visible on a dark night with a clear atmosphere. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 321, U. S. Comp. § 7836.) Article 1. Time for compliance with rules concerning lights — The rules concerning lights shall be complied with in all weathers from sunset to sunrise, and during such time no other lights which may be mistaken for the prescribed lights shall be exhibited. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 321, U. S. Comp. St. § 7837.) Art. 2. Lights of steam vessels under way — A steam- vessel when under way shall carry — (a) On or in front of the foremast, or if a vessel without a foremast, then in the fore part of the vessel, at a height above the hull of not less than twenty feet, and if the breadth of the vessel ex- ceeds twenty feet, then at a height above the hull not less than such breadth, so, however, that the light need not be carried at a greater height above the hull than forty feet, a bright white light, so constructed as to show an un- broken light over an arc of the horizon of twenty points of the compass, so fixed as to throw the light ten points on each side of the vessel, namely, from right ahead to two points abaft the beam on either side, and of such a char- acter as to be visible at a distance of at least five miles. (b) On the starboard side a green light so constructed as to show an unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the star- board side, and of such a character as to be visible at a distance of at least two miles. (c) On the port side a red light so constructed as to show an unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the port side, 428 STATUTES REGULATING NAVIGATION (Appdx. and of such a character as to be visible at a distance of at least two miles. (d) The said green and red side-lights shall be fitted with inboard screens projecting at least three feet forward from the light, so as to prevent these lights from being seen across the bow. (e) A steam-vessel when under way may carry an addi- tional white light similar in construction to the light men- tioned in subdivision (a). These two lights shall be so placed in line with the keel that one shall be at least fifteen feet higher than the other, and in such a position with ref- erence to each other that the lower light shall be forward of the upper one. The vertical distance between these lights shall be less than the horizontal distance. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 321, U. S. Comp. St. § 7838.) Art 3. Steam vessel towing another vessel or vessels — A steam-vessel when towing another vessel shall, in addi- tion to her side-lights, carry two bright white lights in a vertical line one over the other, not less than six feet apart, and when towing more than one vessel shall carry an ad- ditional bright white light six feet above or below such light, if the length of the tow measuring from the stern of the towing vessel to the stern of the last vessel towed ex- ceeds six hundred feet. Each of these lights shall be of the same construction and character, and shall be carried in the same position as the white light mentioned in arti- cle two (a), excepting the additional light, which may be carried at a height of not less than fourteen feet above the hull. Such steam-vessel may carry a small white light abaft the funnel or aftermast for the vessel towed to steer by, but such light shall not be visible forward of the beam. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 321, U. S. Comp. St. § 7839.) Art. 4. Vessel not under control, and telegraphic cable vessel — (a) A vessel which from any accident is not under Appd.X.) INTERNATIONAL RULES 429 command shall carry at the same height as a white light mentioned in article two (a), where they can best be seen, and if a steam-vessel in lieu of that light, two red lights, in a vertical line one over the other, not less than six feet apart, and of such a character as to be visible all around the horizon at a distance of at least two miles; and shall by day carry in a vertical line one over the other, not less than six feet apart, where they can best be seen, two black balls or shapes, each two feet in diameter. (b) A vessel employed in laying or in picking up a tel- egraph cable shall carry in the same position as the white light mentioned in article two (a), and if a steam-vessel in lieu of that light, three lights in a vertical line one over the other not less than six feet apart. The highest and lowest of these lights shall be red, and the middle light shall be white, and they shall be of such a character as to be visible all around the horizon, at a distance of at least two miles. By day she shall carry in a vertical line, one over the other, not less than six feet apart, where they can best be seen, three shapes not less than two feet in diam- eter, of which the highest and lowest shall be globular in shape and red in color, and the middle one diamond in shape and white. (c) The vessels referred to in this article, when not mak- ing way through the water, shall not carry the side-lights, but when making way shall carry them. (d) The lights and shapes required to be shown by this article are to be taken by other vessels as signals that the vessel showing them is not under command and can not therefore get out of the way. These signals are not signals of vessels in distress and requiring assistance. Such signals are contained in article thirty-one. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 322, U. S. Comp. St. § 7840.) Art. 5. Sailing vessel under way and vessel in tow — A sailing vessel under way and any vessel being towed shall 430 STATUTES REGULATING NAVIGATION (Appdx. carry the same lights as are prescribed by article two for a steam-vessel under way with the exception of the white lights mentioned therein, which they shall never carry. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 322, U. S. Comp. St. § 7841.) Art. 6. Small vessels under way in bad weather — When- ever, as in the case of small vessels under way during bad weather, the green and red side-lights can not be fixed, these lights shall be kept at hand, lighted and ready for use ; ♦ and shall, on the approach of or to other vessels, be ex- hibited on their respective sides in sufficient time to pre- vent collision, in such manner as to make them most visi- ble, and so that the green light shall not be seen on the port side nor the red light on the starboard side, nor, if practicable, more than two points abaft the beam on their respective sides. To make the use of these portable lights more certain and easy the lanterns containing them shall each be painted outside with the color of the light they respectively con- tain, and shall be provided with proper screens. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 322, U. S. Comp. St. § 7842.) Art. 7. Small vessels and rowing boats — Steam vessels of less than forty, and vessels under oars or sails of less than twenty tons gross tonnage, respectively, and rowing boats, when under way, shall not be required to carry the lights mentioned in article two (a), (b), and (c), but if they do not carry them they shall be provided with the follow- ing lights : First. Steam vessels of less than forty tons shall carry — (a) In the fore part of the vessel, or on or in front of the funnel, where it can best be seen, and at a height above the gunwale of not less than nine feet, a bright white light constructed and fixed as prescribed in article two (a), and of such a character as to be visible at a distance of at least two miles. Appdx.) INTERNATIONAL RULES 431 (b) Green and red side-lights constructed and fixed as prescribed in article two (b) and (c), and of such a char- acter as to be visible at a distance of at least one mile, or a combined lantern showing a green light and a red light from right ahead to two points abaft the beam on their re- spective sides. Such lanterns shall be carried not less than three feet below the white light. Second. Small steamboats, such as are carried by sea- going vessels, may carry the white light at a less height than nine feet above the gunwale, but it shall be carried above the combined lantern mentioned in subdivision one (b). Third. Vessels under oars or sails of less than twenty tons shall have ready at hand a lantern with a green glass on one side and a red glass on the other, which, on the ap- proach of or to other vessels, shall be exhibited in sufficient time to prevent collision, so that the green light shall not be seen on the port side nor the red light on the starboard side. Fourth. Rowing boats, whether under oars or sail, shall have ready at hand a lantern showing a white light which shall be temporarily exhibited in sufficient time to prevent collision. The vessels referred to in this article shall not be obliged to carry the lights prescribed by article four (a) and article eleven, last paragraph. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 322, amended Act May 28, 1894, c. 83, 28 Stat. 82, U. S. Comp. St. § 7843.) . Art. 8. Pilot-vessel on and off pilotage duty — Pilot ves- sels when engaged on their station on pilotage duty shall not show the lights required for other vessels, but shall carry a white light at the masthead, visible all around the horizon, and shall also exhibit a flare-up light or flare-up lights at short intervals, which shall never exceed fifteen minutes. On the near approach of or to other vessels they shall have their side-lights lighted, ready for use, and shall flash 432 STATUTES REGULATING NAVIGATION (Appdx. or show them at short intervals, to indicate the direction in which .they are heading-, but the green light shall not be shown on the port side, nor the red light on the starboard side. A pilot-vessel of such a class as to be obliged to go along- side of a vessel to put a pilot on board may show the white light instead of carrying it at the masthead, and may, in- stead of the colored lights above mentioned, have at hand, ready for use, a lantern with a green glass on the one side and a red glass on the other, to be used as prescribed above. Pilot-vessels when not engaged on their station on pilot- age duty shall carry lights similar to those of other vessels of their tonnage. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 323, U. S. Comp. St. § 7844.) Steam pilot vessel — A steam pilot vessel, when engaged on her station on pilotage duty and in waters of the Unit- ed States, and not at anchor, shall, in addition to the lights required for all pilot boats, carry at a distance of eight feet below her white masthead light a red light, visible all around the horizon and of such a character as to be visible on a dark night with a clear atmosphere at a distance of at least two miles, and also the colored side lights required to be carried by vessels when under way. When engaged on her station on pilotage duty and in waters of the United States, and at anchor, she shall carry in addition to the lights required for all pilot boats the red light above mentioned, but not the colored side lights. When not engaged on her station on pilotage duty, she shall carry the same lights as other steam vessels. (Act Feb. 19, 1900, c. 22, § 1, 31 Stat. 30, U. S. Comp. St. § 7845.) Construction of preceding provision — This Act shall be construed as supplementary to article eight of the Act ap- proved June seventh, eighteen hundred and ninety-seven, entitled "An Act to adopt regulations for preventing colli- sions upon certain harbors, rivers, and inland waters of the United States," and to article eight of an Act approved Appdx.) INTERNATIONAL RULES 433 August nineteenth, eighteen hundred and ninety, entitled "An Act to adopt regulations for preventing collisions at sea." (Act Feb, 19, 1900, c. 22, § 2, 31 Stat. 31, U. S. Comp. St. § 7846.) Art. 9. Fishing vessels and fishing boats — Fishing ves- sels and fishing boats, when under way and when not re- quired by this article to carry or show the lights herein- after specified, shall carry or show the lights prescribed for vessels of their tonnage under way. (a) Open boats, by which is to be understood boats not protected from the entry of sea water by means of a con- tinuous deck, when engaged in any fishing at night, with outlying tackle extending not more than one hundred and fifty feet horizontally from the boat into the seaway, shall carry one all-round white light. Open boats, when fishing at night, with outlying tackle extending more than one hundred and fifty feet horizontal- ly from the boat into the seaway, shall carry one all-around white light, and in addition, on approaching or being ap- proached by other vessels, shall show a second white light at least three feet below the first light and at a horizontal distance of at least five feet away from it in the direction in which the outlying tackle is attached. (b) Vessels and boats, except open boats as defined in subdivision (a), when fishing with drift nets, shall, so long as the nets are wholly or partly in the water, earn' two white lights where they can best be seen. Such lights shall be placed so that the vertical distance between them shall be not less than six feet and not more than fifteen feet, and so that the horizontal distance betAveen them, measured in a line with the keel, shall be not less than five feet and not more than ten feet. The lower of these two lights shall be in the direction of the nets, and both of them shall be of such a character as to show all around the horizon, and to be visible at a distance of not less than three miles. Within the Mediterranean Sea and in the seas bordering Hughes,Adm.(2d Ed.)— 2S 434 STATUTES REGULATING NAVIGATION (Appdx. the coasts of Japan and Korea sailing fishing vessels of less than twenty tons gross tonnage shall not be obliged to carry the lower of these two lights. Should they, however, not carry it, they shall show in the same position (in the direction of the net or gear) a white light, visible at a dis- tance of not less than one sea mile, on the approach of ot- to other vessels. (c) Vessels and boats, except open boats as defined in subdivision (a), when line fishing with their lines out and attached to or hauling their lines, and when not at anchor or stationary within the meaning of subdivision (h), shall carry the same lights as vessels fishing with drift nets. When shooting lines, or fishing with towing lines, they shall carry the lights prescribed for a steam or sailing ves- sel under way, respectively. Within the Mediterranean Sea and in the seas bordering the coasts of Japan and Korea sailing fishing vessels of less than twenty tons gross tonnage shall not be obliged to car- ry the lower of these two lights. Should they, however, not carry it, they shall show in the same position (in the direc- tion of the lines) a white light, visible at a distance of not less than one sea mile on the approach of or to other ves- sels. (d) Vessels when engaged in trawling, by which is meant the dragging of an apparatus along the bottom of the sea — ■ First. If steam vessels, shall carry in the same position as the white light mentioned in article two (a) a tri-col- ored lantern so constructed and fixed as to show a white light from right ahead to two points on each bow, and a green light and a red light over an arc of the horizon from two points on each bow to two points abaft the beam on the starboard and port sides, respectively; and not less than six nor more than twelve feet below the tri-colored lan- tern a white light in a lantern, so constructed as to show a clear, uniform, and unbroken light all around the horizon. Appdx.) INTERNATIONAL RULES 435 Second. If sailing vessels, shall carry a white light in a lantern, so constructed as to show a clear, uniform/ and unbroken light all around the horizon, and shall also, on the approach of or to other vessels, show where it can best be seen a white flare-up light or torch in sufficient time to prevent collision. All lights mentioned in subdivision (d) first and second shall be visible at a distance of at least two miles. (e) Oyster dredges and other vessels fishing with dredge nets shall carry and show the same lights as trawlers. (f) Fishing vessels and fishing boats may at any time use a flare-up light in addition to the lights which they are by this article required to carry and show, and they may also use working lights. (g) Every fishing vessel and every fishing boat under one hundred and fifty feet in length, when at anchor, shall exhibit a white light visible all around the horizon at a distance of at least one mile. Every fishing vessel of one hundred and fifty feet in length or upward, when at anchor, shall exhibit a white light visible all around the horizon at a distance of at least one mile, and shall exhibit a second light as provided for vessels of such length by article eleven. Should any such vessel, whether under one hundred and fifty feet in length or of one hundred and fifty feet in length or upward, be attached to a net or other fishing gear, she shall on the approach of other vessels show an additional white light at least three feet below the anchor light, and at a horizontal distance of at least five feet away from it in the direction of the net or gear. (h) If a vessel or boat when fishing becomes stationary in consequence of her gear getting fast to a rock or other obstruction, she shall in daytime haul down the day signal required by subdivision (k) ; at night show the light or lights prescribed for a vessel at anchor; and during fog. mist, falling snow, or heavy rain storms make the signal 436 STATUTES REGULATING NAVIGATION (Appdx. prescribed for a vessel at anchor. (See subdivision (d) and the 1-ast paragraph of article fifteen.) (i) In fog, mist, falling snow, or heavy rain storms, drift- net vessels attached to their nets, and vessels when trawl- ing, dredging, or fishing with any kind of drag net, and vessels line fishing with their lines out, shall, if of twenty tons gross tonnage or upward, respectively, at intervals of not more than one minute make a blast; if steam vessels, with the whistle or siren, and if sailing vessels, with the foghorn, each blast to be followed by ringing the bell. Fishing vessels and boats of less than twenty tons gross tonnage shall not be obliged to give the above-mentioned signals ; but if they do not, they shall make some other efficient sound signal at intervals of not more than one minute. (k) All vessels or boats fishing with nets *or lines or trawls, when under way, shall in daytime indicate their oc- cupation to an approaching vessel by displaying a basket or other efficient signal where it can best be seen. If ves- sels or boats at anchor have their gear out, they shall, on the approach of other vessels, show the same signal on the side on which those vessels can pass. The vessels required by this article to carry or show the lights hereinbefore specified shall not be obliged to carry the lights prescribed by article four fa) and the last para- graph of article eleven. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 323, amended Act May 28, 1894, c. 83, 28 Stat. 82, and Act Jan. 19, 1907, c. 300, § 1, 34 Stat. 850, U. S. Comp. St. § 7847.) Art. 10. Vessel overtaken by another — A vessel which is being overtaken by another shall show from her stern to such last mentioned vessel a white light or a flare-up light. The white light required to be shown by this article may be fixed and carried in a lantern, but in such case the lan- tern shall be so constructed, fitted, and screened that it shall throw an unbroken light over an arc of the horizon of Appdx.) INTERNATIONAL RULES 437 twelve points of the compass, namely, for six points from right aft on each side of the vessel, so as to be visible at a distance of at least one mile. Such light shall be carried as nearly as practicable on the same level as the side-lights. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 324, U. S. Comp. St. § 7848.) Art. 11. Vessel at anchor or aground in or near fair-way — A vessel under one hundred and fifty feet in length, when at anchor, shall carry forward, where it can best be seen, but at a height not exceeding twenty feet above the hull, a white light in a lantern so constructed as to show a clear, uniform, and unbroken light visible all around the horizon at a distance of at least one mile. A vessel of one hundred and fifty feet or upwards in length, when at anchor, shall carry in the forward part of the vessel, at a height of not less than twenty and not ex- ceeding forty feet above the hull, one such light, and at or near the stern of the vessel, and at such a height that it shall be not less than fifteen feet lower than the forward light, another such light. The length of a vessel shall be deemed to be the length appearing in her certificate of registry. A vessel aground in or near a fair-way shall carry the above light or lights and the two red lights prescribed by ar- ticle four (a). (Act Aug. 19, 1890, c. 802, § 1, 26 Stat." 324, U. S. Comp. St. § 7849.) Art. 12. Additional flare-up light or detonating signal — Every vessel may, if necessary in order to attract attention, in addition to the lights which she is by these rules requir- ed to carry, show a flare-up light or use any detonating signal that can not be mistaken for a distress signal. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 325, U. S. Comp. St. § 7850.) Art. 13. Ships of war and convoys — Nothing in these rules shall interfere with the operation of any special rules made by the Government of any nation with respect to 438 STATUTES REGULATING NAVIGATION (Appdx. additional station and signal-lights for two or more ships of war or for vessels sailing under convoy, or with the ex- hibition of recognition signals adopted by ship-owners, which have been authorized by their respective Govern- ments and duly registered and published. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat 325, U. S. Comp. St. § 7851.) Art. 14. Steam vessels under sail only — A steam-vessel proceeding under sail only but having her funnel up, shall carry in day-time, forward, where it can best be seen, one black ball or shape two feet in diameter. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 325, U. S. Comp. St. § 7852.) Sound Signals for Fog, and so Forth Art. 15. Fog signals — All signals prescribed by this ar- ticle for vessels under way shall be given : First. By "steam vessels" on the whistle or siren. Second. By "sailing vessels" and "vessels towed" on the fog horn. The w r ords "prolonged blast" used in this article shall mean a blast of from four to six seconds duration. A steam vessel shall be provided with an efficient whistle or siren, sounded by steam or by some substitute for steam, so placed that the sound may not be intercepted by any obstruction, and with an efficient fog horn, to be sounded by mechanical means, and also with an efficient bell. (In all cases where the rules require a bell to be used a drum may be substituted on board Turkish vessels, or a gong where such articles are used on board small seagoing ves- sels.) A sailing vessel of twenty tons gross tonnage or upward shall be provided with a similar fog horn and bell. In fog, mist, falling snow, or heavy rainstorms, whether by day or night, the signals described in this article shall be used as follows, namely: (a) A steam vessel having way upon her shall sound at intervals of not more than two minutes, a prolonged blast. Appdx.) INTERNATIONAL RULES 439 (b) A steam vessel under way, but stopped, and having no way upon her, shall sound, at intervals of not more than two minutes, two prolonged blasts, with an interval of about one second between. (c) A sailing vessel under way shall sound, at intervals of not more than one minute, when on the starboard tack, one blast ; when on the port tack, two blasts in succession, and when with the wind abaft the beam, three blasts in succession. (d) A' vessel when at anchor shall, at intervals of not more than one minute, ring the bell rapidly for about five seconds. (e) A vessel when towing, a vessel employed in laying or in picking up a telegraph cable, and a vessel under way, which is unable to get out of the way of an approaching vessel through being not under command or unable to ma- neuver as required by the rules, shall, instead of the sig- nals prescribed in subdivisions (a) and (c) of this article, at intervals of not more than two minutes, sound three blasts in succession, namely : One prolonged blast follow- ed by two short blasts. A vessel towed may give this sig- nal and she shall not give any other. Sailing vessels and boats of less than twenty tons gross tonnage shall not be obliged to give the above-mentioned signals, but, if they do not, they shall make some other efficient sound signal at intervals of not more than one min- ute. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 325, amended Act June 10, 1896, c. 401, § 1, 29 Stat. 381, U. S. Comp. St. § 7853.) Speed of Ships To be Moderate in Fog, and so Forth Art. 16. Speed of vessels in fog — Every vessel shall, in a fog, mist, falling snow, or heavy rainstorms, go at a mod- erate speed, having careful regard to the existing circum- stances and conditions. A steam vessel hearing, apparently forward of her beam, the fog signal of a vessel the position of which is not as- 440 STATUTES REGULATING NAVIGATION (Appdx. certained shall, so far as the circumstances of the case ad- mit, stop her engines, and then navigate with caution until danger of collision is over. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 326, U. S. Comp. St. § 7854.) Steering and Sailing Rules Preliminary — Risk of Collision Ascertainment of risk of collision — Risk of collision can, when circumstances permit, be ascertained by carefully watching the compass bearing of an approaching vessel. If the bearing does not appreciably change, such risk should be deemed to exist. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 326, U. S. Comp. St. § 7855.) Art. 17. Rules of avoidance of risk; sailing vessels ap- proaching one another — When two sailing vessels are ap- proaching one another, so as to involve risk of collision, one of them shall keep out of the way of the other, as fol- lows, namely : (a) A vessel which is running free shall keep out of the way of a vessel which is close-hauled. (b) A vessel which is close-hauled on the port tack shall keep out of the way of a vessel which is close-hauled on the starboard tack. (c) When both are running free, with the wind on dif- ferent sides, the vessel which has the wind on the port side shall keep out of the way of the other. (d) When both are running free, with the wind on the same side, the vessel which is to the windward shall keep out of the way of the vessel which is to leeward. (e) A vessel which has the wind aft shall keep out of the way of the other vessel. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 326, U. S. Comp. St. § 7856.) Art. 18. Steam vessels meeting end on — When two steam-vessels are meeting end on, or nearly end on, so as to involve risk of collision, each shall alter her course to Appdx.) INTERNATIONAL RULES 441 starboard, so that each may pass on the port side of the other. This article only applies to cases where vessels are meet- ing end on, or nearly end on, in such a manner as to in- volve risk of collision, and does not apply to two vessels which must, if both keep on their respective courses, pass clear of each other. The only cases to which it does apply are when each of the two vessels is end on, or nearly end on, to the other; in other words, to cases in which, by day, each vessel sees the masts of the other in a line, or nearly in a line, with her own ; and by night, to cases in which each vessel is in such a position as to see both the side-lights of the other. It does not apply by day to cases in which a vessel sees another ahead crossing her own course; or by night, to cases where the red light of one vessel is opposed to the red light of the other, or where the green light of one ves- sel is opposed to the green light of the other or where a red light without a green light, or a green light without a red light, is seen ahead, or where both green and red lights are seen anywhere but ahead. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 326, U. S. Comp. St. § 7857.) Art. 19. Steam vessels crossing — When two steam-ves- sels are crossing, so as to involve risk of collision, the ves- sel which has the other on her own starboard side shall keep out of the way of the other. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 327, U. S. Comp. St. § 7858.) Art. 20. Steam and sailing vessels meeting — When a steam-vessel and a sailing vessel are proceeding in such directions as to involve risk of collision, the steam-vessel shall keep out of the way of the sailing-vessel. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 327, U. S. Comp. St. § 7859.) Art. 21. What vessel shall keep her course — Where, by any of these rules, one of two vessels is to keep out of the way the other shall keep her course and speed. Note. — When, in consequence of thick weather or oth- 412 STATUTES REGULATING NAVIGATION (Appdx. er causes, such vessel finds herself so close that collision can not be avoided by the action of the giving-way vessel alone, she also shall take such action as will best aid to avert collision. (See articles twenty-seven and twenty- nine.) (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 327, amend- ed Act May 28,' 1894, c. 83, 28 Stat. 82, U. S. Comp. St. § 7860.) Art. 22. Vessel to avoid crossing ahead — Every vessel which is directed by these rules to keep out of the way of another vessel shall, if the circumstances of the case admit, avoid crossing ahead of the other. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 327, U. S. Comp. St. § 7861.) Art. 23. Steam vessel to slacken speed — Every steam- vessel which is directed by these rules to keep out of the way of another vessel shall, on approaching her, if neces- sary, slacken her speed or stop or reverse. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 327, U. S. Comp. St. § 7862.) Art. 24. Overtaking vessel to keep out of the way ; defini- tion of "overtaking vessel" — Notwithstanding anything contained in these rules every vessel, overtaking any other, shall keep out of the way of the overtaken vessel. Every vessel coming up with another vessel from any di- rection more than two points abaft her beam, that is, in such a position, with reference to the vessel which she is overtaking that at night she would be unable to see either of that vessel's side lights, shall be deemed to be an over- taking vessel ; and no subsequent alteration of the bearing between the two vessels shall make the overtaking vessel a crossing vessel within the meaning of these rules, or re- lieve her of the duty of keeping clear of the overtaken ves- sel until she is finally past and clear. As by day the overtaking vessel can not always know with certainty whether she is forward of or abaft this di- rection from the other vessel she should, if in doubt, as- sume that she is an overtaking vessel and keep out of the Appdx.) INTERNATIONAL RULES |43 way. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 327, U. S. Comp. St. § 7863.) Art. 25. Steam-vessel in narrow channel — In narrow channels every steam-vessel shall, when it is safe and prac- ticable, keep to that side of the fair-way or mid-channel which lies on the starboard side of such vessel. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 327, U. S. Comp. St. § 7864.) Art. 26. Sailing-vessels under way to avoid fishing boats; fishing boats not to obstruct fair-ways — Sailing vessels un- der way shall keep out of the way of sailing vessels or boats fishing with nets, or lines, or trawls. This rule shall not give to any vessel or boat engaged in fishing the right of obstructing a fair-way used by vessels other than fish- ing vessels or boats. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 327, U. S. Comp. St. § 7865.) Art. 27. Obedience to and construction of rules — In obey- ing and construing these rules due regard shall be had to all dangers of navigation and collision, and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate danger. (Act Aug. 19, 1890, "c. 802, § 1, 26 Stat. 327, U. S. Comp. St. § 7866.) Sound Signals for Vessels in Sight of One Another Art. 28. Meaning of "short blast"; steam-vessel under way to signal course by whistle; meaning of one, two, three "short blasts" — The words "short blast" used in this article shall mean a blast of about one second's duration. When vessels are in sight of one another, a steam-ves- sel under way, in taking any course authorized or required by these rules, shall indicate that course by the following signals on her whistle or siren, namely : One short blast to mean, "I am directing my course to starboard." Two short blasts to mean, "I am directing my course to port." 444 STATUTES REGULATING NAVIGATION (Appdx. Three short blasts to mean, "My engines are going at full speed astern." (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 328, U. S. Comp. St. § 7867.) No Vessel, Under any Circumstances, to Neglect Proper Precautions Art. 29. Vessels not to neglect precautions — Nothing in these rules shall exonerate any vessel or the owner or mas- ter or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a prop- er lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 328, U. S. Comp. St. § 7868.) Reservation oe Rules for Harbors and Inland Navi- gation Art. 30. Reservation of rules for harbors, rivers, and in- land waters — Nothing in these rules shall interfere with the operation of a special rule, duly made by local authori- ty, relative to the navigation of any harbor, river, or inland waters. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 328, U. S. Comp. St. § 7869.) Distress Signals Art. 31. Distress signals, in day time; at night — When a vessel is in distress and requires assistance from other ves- sels or from the shore the following shall be the signals to be used or displayed by her, either together or separately, namely: In the daytime — First. A gun or other explosive signal fired at intervals of about a minute. Second. The international code signal of distress indi- cated by N. C. Third. The distance signal, consisting of a square flag, having either above or below it a ball or anything resem- bling a ball. Appd-X.) COAST AND CONNECTING INLAND WATERS 445 Fourth. A continuous sounding with any fog-signal ap- paratus. At night — First. A gun or other explosive signal fired at intervals of about a minute. Second. Flames on the vessel (as from a burning tar barrel, oil barrel, and so forth.) Third. Rockets or shells throwing stars of any color or description, fired one at a time, at short intervals. Fourth. A continuous sounding with any fog-signal ap- paratus. (Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 328, amend- ed Act May 28, 1894, c. 83, 28 Stat. 82, U. S. Comp. St. § 78/0.) Repeal — All laws or parts of laws inconsistent with the foregoing regulations for preventing collisions at sea for the navigation of all public and private vessels of the Unit- ed States upon the high seas, and in all waters connected therewith navigable by sea-going vessels, are hereby re- pealed. (Act Aug. 19, 1890, c. 802, § 2, 26 Stat. 328, U. S. Comp. St. § 7871.) (2) INLAND RULES (30 Stat. 96, as amended, 38 Stat. 381 [U. S. Comp. St. §§ 7872-7909]). An act to adopt regulations for preventing collisions up- on certain harbors, rivers, and inland waters of the United States. Whereas the provisions of chapter eight hundred and two of the Laws of eighteen hundred and ninety, and the amendments thereto, adopting regulations for preventing collisions at sea [i. e. International rules supra], apply to all waters of the United States connected with the high seas navigable by sea-going vessels, except so far as the navigation of any harbor, river, or inland waters is regulat- ed by special rules duly made by local authority ; and Whereas it is desirable that the regulations relating to the navigation of all harbors, rivers, and inland waters of 446 STATUTES REGULATING NAVIGATION (Appdx. the United States, except the Great Lakes and their con- necting and tributary waters as far east as Montreal and the Red River of the North and rivers emptying into the Gulf of Mexico and their tributaries, shall be stated in one act: Therefore, Be it enacted by the senate and house of representatives of the United States of America in Congress assembled: Regulations for preventing collisions in harbors and on inland waters — The following regulations for preventing collision shall be followed by all vessels navigating all har- bors, rivers, and inland waters of the United States, ex- cept the Great Lakes and their connecting and tributary waters as far east as Montreal and the Red River of the North and rivers emptying into the Gulf of Mexico and their tributaries, and are hereby declared special rules duly made by local authority: (Act Tune 7, 1897, c. 4, § 1, 30 Stat. 96, U. S. Comp. St. § 7872.) Preliminary Meaning of words "sailing-vessel," "steam-vessel," and "under way" — In the following rules every steam-vessel which is under sail and not under steam is to be considered a sailing-vessel, and every vessel under steam, whether under sail or not, is to be considered a steam vessel. The word "steam-vessel" shall include any vessel pro- pelled by machinery. A vessel is "under way," within the meaning of these rules, when she is not at anchor, or made fast to the shore, or aground. (Act June 7, 1897, c. 4, § 1, 30 Stat. 96, U. S. Comp. St. § 7873.) Rules Concerning Lights, and so Forth Meaning of word "visible" — The word "visible" in these rules, when applied to lights, shall mean visible on a dark night with a clear atmosphere. (Act Tune 7, 1897, c. 4, § 1, 30 Stat. 96, U. S. Comp. St. § 7874.) ' Appdx.) COAST AND CONNECTING INLAND WATERS 447 Art. 1. Period of compliance with rules concerning lights — The rules concerning lights shall be complied with in all weathers from sunset to sunrise, and during such time no other lights which may be mistaken for the prescribed lights shall be exhibited! (Act June 7, 1897, c. 4, § 1, 30 Stat. 96, U. S. Comp. St. § 7875.) Art. 2. Lights of steam-vessel under way — A steam-ves- sel when under way shall carry — (a) On or in front of the foremast, or, if a vessel without a foremast, then in the fore part of the vessel, a bright white light so constructed as to show an unbroken light over an arc of the horizon of twenty points of the compass, so fixed as to throw the light ten points on each side of the vessel, namely, from right ahead to two points abaft the beam on either side, and of such a character as to be visible at a distance of at least five miles. (b) On the starboard side a green light so constructed as to show an unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the star- board side, and of such a character as to be visible at a dis- tance of at least two miles. (c) On the port side a red light so constructed as to show an unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the port side, and of such a character as to be visible at a distance of at least two miles. (d) The said green and red side-lights shall be fitted with inboard screens projecting at least three feet forward from the light, so as to prevent these lights from being seen across the bow. (e) A sea-going steam-vessel when under way may car- ry an additional white light similar in construction to the light mentioned in subdivision (a). These two lights shall be so placed in line with the keel 448 STATUTES REGULATING NAVIGATION (Appdx. that one shall be at least fifteen feet higher than the other, and in such a position with reference to each other that the lower light shall be forward of the upper one. The ver- tical distance between these lights shall be less than the horizontal distance. (f) All steam-vessels (except sea-going vessels and fer- ry-boats), shall carry in addition to green and red lights required by article two (b), (c), and screens as required by article two (d), a central range of two white lights; the after-light being carried at an elevation at least fifteen feet above the light at the head of the vessel. The head- light shall be so constructed as to show an unbroken light through twenty points of the compass, namely, from right ahead to two points abaft the beam on either side of the ves- sel, and the after-light so as to show all around the horizon. (Act June 7, 1897, c. 4, § 1, 30 Stat. 96, U. S. Comp. St. § 7876.) Art. 3. Steam-vessel when towing another vessel or ves- sels — A steam-vessel when towing another vessel shall, in addition to her side-lights, carry two bright white lights in a vertical line one over the other, not less than three feet apart, and when towing more than one vessel shall carry an additional bright white light three feet above or below such lights, if the length of the tow measuring from the stern of the towing vessel to the stern of the last vessel towed exceeds six hundred feet. Each of these lights shall be of the same construction and character, and shall be car- ried in the same position as the white light mentioned in article two (a) or the after range light mentioned in article two (f). Such steam-vessel may carry a small white light abaft the funnel or aftermast for the vessel towed to steer by, but such light shall not be visible forward of the beam. (Act June 7, 1897, c. 4, § 1, 30 Stat. 97, U. S. Comp. St. § 7877.) Art. 5. Sailing-vessel under way or in tow — A sailing- vessel under way or being towed shall carry the same lights Appdx.) COAST AND CONNECTING INLAND WATERS 449 as are prescribed by article two for a steam-vessel under way, with the exception of the white lights mentioned there- in, which they shall never carry. (Act June 7, 1897, c. 4, § 1, 30 Stat. 97, U. S. Comp. St. § 7878.) Art. 6. Small vessel under way in bad weather — When- ever, as in the case of vessels of less than ten gross tons un- der way during bad weather, the green and red side-lights can not be fixed, these lights shall be kept at hand, lighted and ready for use ; and shall, on the approach of or to oth- er vessels, be exhibited on their respective sides in sufficient time to prevent collision, in such manner as to make them most visible and so that the green light shall not be seen on the port side nor the red light on the starboard side, nor, if practicable, more than two points abaft the beam on their respective sides. To make the use of these portable lights more certain and easy the lanterns containing them shall each be painted outside with the color of the light they re- spectively contain, and shall be provided with proper screens. (Act June 7, 1897, c. 4, § 1, 30 Stat. 97, U. S. Comp St. § 7879.) Art. 7. Rowboats — Rowing boats, whether under oars or sail, shall have ready at hand a lantern showing a white light which shall be temporarily exhibited in sufficient time to prevent collision. (Act June 7, 1897, c. 4, § 1, 30 Stat. 98, U. S. Comp. St. § 7880.) Art. 8. Pilot-vessels on and off pilotage duty — Pilot-ves- sels when engaged on their station on pilotage duty shall not show the lights required for other vessels but shall car- ry a white' light at the masthead, visible all around the ho- rizon, and shall also exhibit a flare-up light or flare-up lights at short intervals, which shall never exceed fifteen min- utes. On the near approach of or to other vessels they shall have their side-lights lighted, ready for use, and shall flash or show them at short intervals, to indicate the direction in which they are heading, but the green light shall not be Hughes,Adm.(2d Ed.) — 29 450 STATUTES REGULATING NAVIGATION (Appdx. shown on the port side nor the red light on the starboard side. A pilot-vessel of such a class as to be obliged to go along- side of a vessel to put a pilot on board may show the white light instead of carrying it at the masthead, and may, in- stead of the colored lights above mentioned, have at hand, ready for use, a lantern with a green glass on the one side and a red glass on the other, to be used as prescribed above. Pilot-vessels, when not engaged on their station on pilot- age duty, shall carry lights similar to those of other vessels of their tonnage. (Act June 7, 1897, c. 4, § 1, 30 Stat. 98, U. S. Comp. St. § 78S1.) * Art. 9. Small fishing-vessels — (a) Fishing-vessels of less than ten gross tons, when under way and when not having their nets, trawls, dredges, or lines in the water, shall not be required to carry the colored side-lights ; but every such ves- sel shall, in lieu thereof, have ready at hand a lantern with a green glass on one side and a red glass on the other side, ,and on approaching to or being approached by another ves- sel such lantern shall be exhibited in sufficient time to pre- vent collision, so that the green light shall not be seen on the port side nor the red light on the starboard side. (b) All fishing-vessels and fishing-boats of ten gross tons or upward, when under way and when not having their nets, trawls, dredges, or lines in the water, shall carry and show the same lights as other vessels under way. (c) All vessels, when trawling, dredging, or fishing with any kind of drag-nets or lines, shall exhibit, from some part of the vessel where they can be best seen, two lights. One of these lights shall be red and the other shall be white. The red light shall be above the white light, and shall be at a vertical distance from it of not less than six feet and not more than twelve feet; and the horizontal distance between them, if any, shall not be more than ten feet. These two lights shall be of such a character and contained in lanterns of such construction as to be visible all round the horizon, Appdx.) COAST AND CONNECTING INLAND WATERS 451 the white light a distance of not less than three miles and the red light of not less than two miles. (d) Rafts, or other water craft not herein provided for, navigating by hand power, horse power, or by the current of the river, shall carry one or more good white lights, which shall be placed in such manner as shall be prescribed by the Board of Supervising Inspectors of Steam Vessels. (Act June 7, 1897, c. 4, § 1, 30 Stat. 98, U. S. Comp. St. § 7882.) Art. 10. Vessel overtaken by another — A vessel which is being overtaken by another, except a steam-vessel with an after range-light showing all around the horizon, shall show from her stern to such last-mentioned vessel a white light or a flare-up light. (Act June 7, 1897, c. 4, § 1, 30 Stat. 98, U. S. Comp. St. § 7883.) Art. 11. Vessel at anchor — A vessel under one hundred and fifty feet in length when at anchor shall carry forward, where it can best be seen, but at a height not exceeding twenty feet above the hull, a white light, in a lantern so constructed as to show a clear, uniform, and unbroken light visible all around the horizon at a distance of at least one mile. A vessel of one hundred and fifty feet or upwards in length when at anchor shall carry in the forward part of the vessel, at a height of not less than twenty and not exceed- ing forty feet above the hull, one such light, and at or near the stern of the vessel, and at such a height that it shall be not less than fifteen feet lower than the forward light, an- other such light. The length of a vessel shall be deemed to be the length appearing in her certificate of registry. (Act June 7, 1897, c. 4, § 1, 30 Stat. 98, U. S. Comp. St. §7884.) Art. 12. Additional lights — Every vessel may, if neces- sary, in order to attract attention, in addition to the lights which she is by these rules required to carry, show a flare- up light or use any detonating signal that can not be mis- 452 STATUTES REGULATING NAVIGATION (Appdx. taken for a distress signal. (Act June 7, 1897, c. 4, § 1, 30 Stat. 99, U. S. Comp. St. § 7885.) Art. 13. Ships of war and convoys — Nothing in these rules shall interfere with the operation of any special rules made by the Government of any nation with respect to ad- ditional station -and signal lights for two or more ships of war or for vessels sailing under convoy, or with the exhibi- tion of recognition signals adopted by shipowners, which have been authorized by their respective Governments and duly registered and published. (Act June 7, 1897, c. 4, § 1, 30 Stat. 99, U. S. Comp. St. § 7886.) Art. 14. Steam-vessel under sail only — A steam-vessel proceeding under sail only, but having her funnel up, may carry in daytime, forward, where it can best be seen, one black ball or shape two feet in diameter. (Act June 7, 1897, c. 4, § 1, 30 Stat. 99, U. S. Comp. St. § 7887.) Sound Signals for Fog, and so Forth Art. 15. Fog signals — All signals prescribed by this ar- ticle for vessels under way shall be given : 1. By "steam-vessels" on the whistle or siren. 2. By "sailing-vessels" and "vessels towed" on the fog horn. The words "prolonged blast" used in this article shall mean a blast of from four to six seconds duration. A steam-vessel shall be provided with an efficient whis- tle or siren, sounded by steam or by some substitute for steam, so placed that the sound may not be intercepted by any obstruction, and with an efficient fog horn; also with an efficient bell. A sailing-vessel of twenty tons gross tonnage or upward shall be provided with a similar fog horn and bell. In fog, mist, falling snow, or heavy rainstorms, whether by day or night, the signals described in this article shall be used as follows, namely: Appdx.) COAST AND CONNECTING INLAND WATERS 453 (a) A steam-vessel under way shall sound, at intervals of- not more than one minute, a prolonged blast. (c) A sailing-vessel under way shall sound, at intervals of not more than one minute, when on the starboard tack, one blast ; when on the port tack, two blasts in succession, and when with the wind abaft the beam, three blasts in suc- cession. (d) A vessel when at anchor shall, at intervals, of not more than one minute, ring the bell rapidly for about five seconds. (e) A steam-vessel when towing, shall, instead of the signals prescribed in subdivision (a) of this article, at in- tervals of not more than one minute, sound three blasts in succession, namely, one prolonged blast followed by two short blasts. A vessel towed may give this signal and she shall not give any other. (f) All rafts or other water craft, not herein provided for, navigating by hand power, horse power, or by the current of the river, shall sound a blast of the fog-horn, or equiv- alent signal, at intervals of not more than one minute. (Act June 7, 1897, c. 4, § 1, 30 Stat. 99, U. S. Comp. St. § 7888.) Speed oe Ships to be Moderate in Fog, and so Forth Art. 16. Speed of vessels in fog — Every vessel shall, in a fog, mist, falling snow, or heavy rainstorms, go at a mod- erate speed, having careful regard to the existing circum- stances and conditions. A steam-vessel hearing, apparently forward of her beam, the fog-signal of a vessel the position of which is not as- certained shall, so far as the circumstances of the case ad- mit, stop her engines, and then navigate with caution until danger of collision is over. (Act June 7, 1897, c. 4, § 1, 30 Stat. 99, U. S. Comp. St. § 7889.) 454 STATUTES REGULATING NAVIGATION (Appdx. Steering and Sailing Rules Preliminary — Risk of Collision Ascertainment of risk of collision — Risk of collision can, when circumstances permit, be ascertained by carefully watching the compass bearing of an approaching vessel. If the bearing does not appreciably change, such risk should be deemed to exist. (Act June 7, 1897, c. 4, § 1, 30 Stat. 100. U. S. Comp. St. § 7890.) Art. 17. Rules of avoidance of risk; sailing-vessels ap- proaching one another — When two sailing-vessels are ap- proaching one another, so as to involve risk of collision, one of them shall keep out of the way of the other as follows, namely : (a) A vessel which is running free shall keep out of the way of a vessel which is close-hauled. (b) A vessel which is close-hauled on the port tack shall keep out of the way of a vessel which is close-hauled on the starboard tack. (c) When both are running free, with the wind on dif- ferent sides, the vessel which has the wind on the port side shall keep out of the way of the other. (d) When both are running free, with the wind on the same side, the vessel which is to the windward shall keep out of the way of the vessel which is to the leeward. (e) A vessel which has the wind aft shall keep out of the way of the other vessel. (Act June 7, 1897, c. 4, § 1, 30 Stat. 100, U. S. Comp. St. § 7891.) Art. 18. Steam-vessels meeting end on — Rule I. When steam-vessels are approaching each other head and head, that is, end on, or nearly so, it shall be the duty of each to pass on the port side of the other; and either vessel shall give, as a signal of her intention, one short and distinct blast of her whistle, which the other vessel shall answer promptly by a similar blast of her whistle, and thereupon such vessels shall pass on the port side of each other. Appdx.) COAST AND CONNECTING INLAND WATERS 455 But if the courses of such vessels are so far on the star- board of each other as not to be considered as meeting head and head, either vessel shall immediately give two short and distinct blasts of her whistle, which the other vessel shall answer promptly by two similar blasts of her whistle, and they shall pass on the starboard side of each other. The foregoing only applies to cases where vessels are meeting end on or nearly end on, in such a manner as to involve risk of collision ; in other words, to cases in which, by day, each vessel sees the masts of the other in a line, or nearly in a line, with her own and by night to cases in which each vessel is in such a position as to see both the side-lights of the other. It does not apply by day to cases in which a vessel sees another ahead crossing her own course, or by night to cases where the red light of one vessel is opposed to the red light of the other, or where the green light of one vessel is opposed to the green light of the other, or where a red light without a green light or a green light without a red light, is seen ahead, or where both green and red lights are seen anywhere but ahead. Rule III. If, when steam-vessels are approaching each other, either vessel fails to understand the course or in- tention of the other, from any cause, the vessel so in doubt shall immediately signify the same by giving several short and rapid blasts, not less than four, of the steam-whistle. Rule V. Whenever a steam-vessel is nearing a short bend or curve, in the channel, where, from the height of the banks or other cause, a steam-vessel approaching from the op- posite direction can not be seen for a distance of half a mile, such steam vessel, when she shall have arrived within half a mile of such curve, or bend, shall give a signal by one long blast of the steam whistle, which signal shall be answered by a similar blast, given by any approaching steam-vessel that may be within hearing. Should such signal be so an- swered by a steam-vessel upon the farther side of such 456 STATUTES REGULATING NAVIGATION (Appdx. bend, then the usual signals for meeting and passing shall immediately be given and answered ; but, if the first alarm signal of such vessel be not answered, she is to consider the channel clear and govern herself accordingly. When steam-vessels are moved from their docks or berths, and other boats are liable to pass from any direction toward them, they shall give the same signal as in the case of vessels meeting at a bend, but immediately after clearing the berths so as to be fully in sight they shall be governed by the steering and sailing rules. Rule VIII. When steam-vessels are running in the same direction, and the vessel which is astern shall desire to pass on the right or starboard hand of the vessel ahead, she shall give one short blast of the steam-whistle, as a signal of such desire, and if the vessel ahead answers with one blast, she shall put her helm to port; or if she shall desire to pass on the left or port side of the vessel ahead, she shall give two short blasts of the steam-whistle as a signal of such desire, and if the vessel ahead answers with two blasts, shall put her helm to starboard ; or if the vessel ahead does not think it safe for the vessel astern to attempt to pass at that point, she shall immediately signify the same by giving sev- eral short and rapid blasts of the steam-whistle, not less than four, and under no circumstances shall the vessel astern attempt to pass the vessel ahead until such time as they have reached a point where it can be safely done, when said vessel ahead shall signify her willingness by blowing the proper signals. The vessel ahead shall in no case attempt to cross the bow or crowd upon the course of the passing vessel. Rule IX. The whistle signals provided in the rules under this article, for steam-vessels meeting, passing, or overtak- ing, are never to be used except when steamers are in sight of each other, and the course and position of each can be de- termined in the day time by a sight of the vessel itself, or by night by seeing its signal lights. Appdx.) COAST AND CONNECTING INLAND WATERS 457 In fog, mist, falling snow or heavy rainstorms, when ves- sels can not so see each other, fog-signals only must be given. (Act June 7, 1897, c. 4, § 1, 30 Stat. 100, U. S. Comp. St. § 7892.) Art. 19. Steam-vessels crossing — When two steam-ves- sels are crossing, so as to involve risk of collision, the ves- sel which has the other on her own starboard side shall keep out of the way of the other. (Act June 7, 1897, c. 4, § 1, 30 Stat. 101, U. S. Comp. St. § 7893.) Art. 20. Steam and sailing vessels meeting — When a steam-vessel and a sailing-vessel are proceeding in such di- rections as to involve risk of collision, the steam-vessel shall keep out of the way of the sailing-vessel. (Act June 7, 1897, c. 4, § 1, 30 Stat. 101, U. S. Comp. St. § 7894.) Art. 21. What vessel shall keep her course — Where, by any of these rules, one of the two vessels is to keep out of the way, the other shall keep her course and speed. (Act June 7, 1897, c. 4, § 1, 30 Stat. 101, U. S. Comp. St. § 7895.) Art. 22. Vessel to avoid crossing ahead — Every vessel which is directed by these rules to keep out of the way of another vessel shall, if the circumstances of the case admit, avoid crossing ahead of the other. (Act June 7, 1897, c. 4, § 1, 30 Stat. 101, U. S. Comp. St. § 7896.) Art. 23. Steam-vessels to slacken speed — Every steam- vessel which is directed by these rules to keep out of the way of another vessel shall, on approaching her, if neces- sary, slacken her speed or stop or reverse. (Act June 7, 1897, c. 4, § 1, 30 Stat. 101, U. S. Comp. St. § 7897.) Art. 24. Overtaking vessel to keep out of the way ; def- inition of "overtaking vessel" — Notwithstanding anything contained in these rules every vessel, overtaking any oth- er, shall keep out of the way of the overtaken vessel. Every vessel coming up with another vessel from any direction more than two points abaft her beam, that is, in such a position, with reference to the vessel which she is overtaking- that at night she would be unable to see either 458 STATUTES EEGULAT1NG NAVIGATION (Appdx. of that vessel's side-lights, shall be deemed to be an over- taking- vessel; and no subsequent alteration of the bearing between the two vessels shall make the overtaking vessel a crossing vessel within the meaning of these rules, or re- lieve her of the duty of keeping clear of the overtaken ves- sel until she is finally past and clear. As by day the overtaking vessel can not always know with certainty whether she is forward of or abaft this direc- tion from the other vessel she should, if in doubt, assume that she is an overtaking vessel and keep out of the way. (Act June 7, 1897, c. 4, § 1, 30 Stat. 101, U. S. Comp. St. § 7898.) Art. 25. Steam-vessel in narrow channels — In narrow channels every steam-vessel shall, when it is safe and prac- ticable, keep to that side of the fair-way or mid-channel which lies on the starboard side of such vessel. (Act June 7, 1897, c. 4, § 1, 30 Stat. 101, U. S. Comp. St. § 7899.) Art. 26. Sailing-vessels under way to avoid fishing boats ; fishing boats not to obstruct fair-ways — Sailing-ves- sels under way shall keep out of the way of sailing-vessels or boats fishing with nets, or lines, or trawls. This rule shall not give to any vessel or boat engaged in fishing the right of obstructing a fair-way used by vessels other than fishing-vessels or boats. (Act June 7, 1897, c. 4, § 1, 30 Stat. 102, U. S. Comp. St. § 7900.) Art. 27. Obedience to and construction of rules — In obeying and construing these rules due regard shall be had to all dangers of navigation and collision, and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate dan- ger. (Act June 7, 1897, c. 4, § 1, 30 Stat. 102, U. S. Comp. St. § 7901.) Sound Signals for Vessels in Sight of One Another Art. 28. Signal of steam-vessel going at full speed astern • — When vessels are in sight of one another a steam-vessel Appdx.) COAST AND CONNECTING INLAND WATERS 1~ ,< - 1 under way whose engines are going at full speed astern shall indicate that fact by three short blasts on the whistle. (Act June 7, 1897, c. 4, § 1, 30 Stat. 102, U. S. Comp. St. § 7902.) No Vessel Under any Circumstances to Neglect Proper Precautions Art. 29. Vessels not to neglect precautions — Nothing in these rules shall exonerate any vessel, or the owner or mas- ter or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the spe- cial circumstances of the case. (Act June 7, 1897, c. 4, § 1, 30 Stat. 102, U. S. Comp. St. § 7903.) Art. 30. War and revenue vessels — The exhibition of any light on board of a vessel of war of the United States or a revenue cutter may be suspended whenever, in the opin- ion of the Secretary of the Navy, the commander in chief of a squadron, or the commander of a vessel acting singly, the special character of the service may require it. (Act June 7, 1897, c. 4, § 1, 30 Stat. 102, U. S. Comp. St. § 7904.) Distress Signals Art. 31. Distress signals — When a vessel is in distress and requires assistance from other vessels or from the shore the following shall be the signals to be used or displayed by her, either together or separately, namely: In the Daytime A continuous sounding with any fog-signal apparatus, or firing a gun. At Night First. Flames on the vessel as from a burning tar barrel, oil barrel, and so forth. 460 STATUTES REGULATING NAVIGATION (Appdx. Second. A continuous sounding with any fog-signal ap- paratus, or firing a gun. (Act June 7, 1897, c. 4, § 1, 30 Stat. 102, U. S. Comp. St. § 7905.) Rules to be established for steam-vessels passing, and as to lights on ferry-boats, barges and canal boats in tow, and as to lights and day signals for vessels and dredges work- ing on wrecks — The supervising inspectors of steam vessels and the Supervising Inspector General shall establish such rules to be observed by steam vessels in passing each oth- er and as to the lights to be carried by ferry-boats and by barges and canal boats when in tow of steam vessels, and as to the lights and day signals to be carried by vessels, dredg- es of all types, and vessels working on wrecks by other obstruction to navigation or moored for submarine op- erations, or made fast to a sunken object which may drift with the tide or be towed, not inconsistent with the provi- sions of this Act, as they from time to time may deem nec- essary for safety, which rules when approved by the Sec- retary of Commerce are hereby declared special rules duly made by local authority, as provided for in article thirty of chapter eight hundred and two of the laws of eighteen hun- dred and ninety. Two printed copies of such rules shall be furnished to such ferryboats, barges, dredges, canal boats, vessels working on wrecks, and steam vessels, which rules shall be kept posted up in conspicuous places in such ves- sels, barges, dredges, and boats. (Act June 7, 1897, c. 4, § 2, 30 Stat. 102, amended Act May 25, 1914, c. 98, 38 Stat. 381, U. S. Comp. St. § 7906.) Pilots violating provisions of act; penalty; liability of vessel or owner — Every pilot, engineer, mate, or master of any steam-vessel, and every master or mate of any barge or canal-boat, who neglects or refuses to observe the provi- sions of this Act, or the regulations established in pursu- ance of the preceding section, shall be liable to a penalty of fifty dollars, and for all damages sustained by any passen- ger in his person or baggage by such neglect or refusal : Appdx.) COAST AND CONNECTING INLAND WATERS 461 Provided, That nothing herein shall relieve any vessel, own- er or corporation from any liability incurred by reason of such neglect or refusal. (Act June 7, 1897, c. 4, § 3, 30 Stat. 102, U. S. Comp. St. § 7907.) Vessels navigated without compliance with act ; penalty — Every vessel that shall be navigated without complying with the provisions of this Act shall be liable to a penalty of two hundred dollars, one-half to go to the informer, for which sum the vessel so navigated shall be liable and may be seized and proceeded against by action in any district court of the United States having jurisdiction of the offense. (Act June 7, 1897, c. 4, § 4, 30 Stat. 103, U. S. Comp. St. § 7908.) Repeal — Sections forty-two hundred and thirty-three and forty-four hundred and twelve (with the regulations made in pursuance thereof, except the rules and regulations for the government of pilots of steamers navigating the Red River of the North and rivers emptying into the Gulf of Mexico and their tributaries, and except the rules for the Great Lakes and their connecting and tributary waters as far east as Montreal), and forty-four hundred and thir- teen of the Revised Statutes of the United States, and chap- ter two hundred and two of the laws of eighteen hundred and ninety-three, and sections one and three of chapter one hundred and two of the laws of eighteen hundred and nine- ty-five, and sections five, twelve, and thirteen of the Act ap- proved March third, eighteen hundred and ninety-seven, en- titled "An Act to amend the laws relating to navigation," and all amendments thereto, are hereby repealed so far as the harbors, rivers, and inland waters aforesaid (except the Great Lakes and their connecting and tributary waters as far east as Montreal and the Red River of the North and rivers emptying into the Gulf of Mexico, and their tributa- ries) are concerned. (Act June 7, 1897, c. 4, § 5, 30 Stat. 103, U. S. Comp. St. § 7909.) 402 STATUTES REGULATING NAVIGATION (Appdx. (3) Lines Between International and Inland Rules The following lines dividing the high seas from rivers, harbors, and inland waters are hereby designated and de- fined pursuant to section 2 of the act of Congress of Feb- ruary 19, 1895. Waters inshore of the lines here laid down are "inland waters," and upon them the inland rules and pilot rules made in pursuance thereof apply. Upon the high seas, viz, waters outside of the lines here laid down, the interna- tional rules apply. Inland waters on the Atlantic, Pacific, and Gulf coasts of the United States where the Inland Rules of the Road are to be followed; and inland waters of the United States bordering on the Gulf of Mexico where the Inland Rules of the Road or Pilot Rules for Western Rivers are to be followed. (All bearings are In degrees true and points magnetic; distance in nautical miles, and are given approximately.) Cutler (Little River) Harbor, Me. — A line drawn from Long Point 226° (SW. by W. % W.) to Little River Head. Little Machias Bay, Machias Bay, Englishman Bay, Chandler Bay, Moosabec Reach, Pleasant Bay, Narragua- gus Bay, and Pigeon Hill Bay, Me. — A line drawn from Lit- tle River Head 232° (WSW. % W.) to the outer side of Old Man; thence 234° (WSW. y 2 W.) to the outer side of Double Shot Islands ; thence 244° (W. % S.) to Libby Is- lands Lighthouse; thence 23iy 2 ° (WSW. y± W.) to Moose Peak Lighthouse; thence 232y 2 ° (WSW. % W.) to Little Pond Head; from Pond Point, Great Wass Island, 239° (W. by S.) to outerside of Crumple Island; thence 249° (W. V4 S.) to Petit Manan Lighthouse. All Harbors on the Coast of Maine, New Hampshire, and Massachusetts Between Petit Manan Lighthouse, Me., and Cape Ann Lighthouses, Mass. — A line drawn from Petit Manan Lighthouse 205y 2 ° (SW. % S.), 26y 2 miles, to Appdx.) HIGH SEAS AND COAST WATERS 463 Mount Desert Lighthouse; thence 250%° (W. % S.), about 33 miles, to Matinicus Rock Lighthouses; thence 267%° (WNW. % W.), 20 miles, to Monhegan Island Lighthouse; thence 260° (\V. % N.), 19% miles, to Seguin Lighthouse; thence 233° (WSW. % W.), 18% miles, to Portland Light Vessel; thence 214%° (SW. % W.), 29% miles, to Boon Island Lighthouse: thence 210° (SW.), 11 miles, to An- derson Ledge Spindle, off Isles of Shoals Lighthouse ; thence 176%° (S. by W.), 19% miles, to Cape Ann Light- houses, Mass. Boston Harbor. — From Eastern Point Lighthouse 215° (SW. % W.), 15% miles, to The Graves Lighthouse ; thence 1391/4° (SSE. % E.), 7% miles, to Minots Ledge Light- house. All Harbors in Cape Cod Bay, Mass. — A line drawn from Plymouth (Gurnet) Lighthouses 77y 2 ° (E. % S.), 16% miles, to Race Point Lighthouse. Nantucket Sound, Vineyard Sound, Buzzards Bay, Narra- gansett Bay, Block Island Sound, and Easterly Entrance to Long Island Sound. — A line drawn from Chatham Light- houses, Mass., 146° (S. by E. % E.), 4% miles, to Pollock Rip Slue Light Vessel; thence 142° (SSE. % E.), 123,4 miles, to Great Round Shoal Entrance Gas and Whistling Buoy (PS); thence 229° (SW. by W. % W.), 14y 2 miles, to Sankaty Head Lighthouse ; from Smith Point, Nantuck- et Island, 261° (W. % N.), 27 miles, to No Mans Land Gas and Whistling Buoy, 2; thence 359° (N. by E. % E.), 8y 8 miles, to Gay Head' Lighthouse; thence 250° (W. % S.), 34% miles, to Block Island Southeast Lighthouse; thence 250%° (W. % S.), 143/4 miles, to Montauk Point Light- house, on the easterly end of Long Island, N. Y. New York Harbor. — A line drawn from Rockaway Point Coast Guard Station 159%° (S. by E.), 6% miles, to Am- brose Channel Light Vessel; thence 238%° (WSW. % W.), 8% miles, to Navesink (southerly) Lighthouse. Philadelphia Harbor and Delaware Bay. — A line drawn 464 STATUTES REGULATING NAVIGATION (Appdx. from Cape May Lighthouse 200° (SSW. % W.) 8y 2 miles, to Overfalls Light Vessel; thence 2461/4° (WSW. % W.), 3y 8 miles, to Cape Henlopen Lighthouse. Baltimore Harbor and Chesapeake Bay. — A line drawn from Cape Charles Lighthouse 179%° (S. % W.), 10y 2 miles, to Cape Henry Gas and Whistling Buoy, 2; thence 257° (W. % S.), 5 miles, to Cape Henry Lighthouse. Charleston Harbor. — A line drawn from Ferris Wheel, on Isle of Palms, 154° (SSE. % E.), 7 miles to Charleston Light Vessel; thence 259° (W. % S.), through Charleston Whistling Buoy, 6 C, 7% miles, until Charleston Light- house bears 350° (N. % W.) ; thence 270° (W.), 2% miles, to the beach of Folly Island. Savannah Harbor and Calibogue Sound. — A line drawn from Braddock Point, Hilton Head Island, 150y 2 o (SSE. % E.), 934 miles, to Tybee Gas and Whistling Buoy, T (PS) ; thence 270° (W.), to the beach of Tybee Island. St. Simon Sound (Brunswick Harbor) and St. Andrew Sound. — From hotel on beach of St. Simon Island 15 / 16 mile 60° (NE. by E. % E.) from St. Simon Lighthouse, 130° (SE. y 2 E.), 6% miles, to St. Simon Gas and Whistling Buov (PS); thence 194° (S. by W. % W.), 8% miles, to St. Andrew Sound Bar Buoy (PS) ; thence 270° (W.), 4% miles, to the shore of Little Cumberland Island. St. Johns River, Fla. — A straight line from the outer end of the northerly jetty to the outer end of the southerly jetty. Florida Reefs and Keys. — A line drawn from the easterly end of the northerly jetty, at the entrance to the dredged channel i/ 2 mile northerly of Norris Cut, 94° (E. 14 S.), 1% miles, to Florida Reefs North End Whistling Buoy, W (HS); thence 178° (S. % E.), 8 miles, to Biscayne Bay Sea Bell Buoy, 1; thence 182° (S. % W.), 2% miles, to Kowey Rocks Lighthouse; thence 188° (S. % W.), 6% miles, to Triumph Reef Beacon, O ; thence 193° (S. by W.), 4> 2 miles, to Ajax Reef Beacon, M; thence 194° (S. by W. Appdx.) HIGH SEAS AND COAST WATERS 465 Vs W.), 2 miles, to Pacific Reef Beacon, h\ thence 196y 2 ° (S. by W. 3/ s W.), 5 miles, to Turtle Harbor Sea Buoy, 2; thence 210° (SSW. y 2 W.), 4% miles, to Carysfort Reef Lighthouse; thence 209y 2 ° (SSW. y 2 W.), 5% miles, to Elbow Reef Beacon, J; thence 217y 2 ° (SW. % S.), 9% miles, to Molasses Reef Gas Buoy, 2 M ; thence 235^° (SW. % W.), 6 miles, to Conch Reef Beacon, E; thence 234y 2 ° (SW. % W.), through Crocker Reef Beacon, D, 10-% miles, to Alligator Reef Lighthouse; thence 234° (SW. % W.), 10% miles, to Tennessee Reef Buoy, 4; thence 251° (WSW. % W.), 10y 2 miles, to Coffins Patches Beacon, C; thence 247° (SW. by W. % W.), 8% miles, to Sombrero Key Lighthouse; hence 253y 2 ° (WSW. % W.), 163^ miles, to Looe Key Beacon, 6; thence 257y 2 ° (WSW. % W.), 6% miles to American Shoal Lighthouse; thence 253^° (WSW. % W.), 2% miles, to Maryland Shoal Beacon, S; thence 259° (WSW. % W.), 5% miles, to Eastern Sambo Beacon, A; thence 253° (WSW. % W.), 2% miles, to Western Sambo Beacon, R; thence 257° (WSW. % W.), through Western Sambo Buoy, 2, S 1 ^, miles, to Key West Entrance Gas Buoy (PS); thence 262° (W. % S.), 4*4 miles, to Sand Key Lighthouse; thence 261° (W. by S.), 234 miles, to Western Dry Rocks Beacon, 2; thence 268° (W. % S.), 3y 2 miles, through Satan Shoal Buoy (HS) to Vestal Shoal Buoy, 1 ; thence 274y 2 ° (W. % N.), 5*4 miles, to Coal Bin Rock Buoy, CB (HS) ; thence 324%° (NW. % N.), 714 miles, to Marquesas Keys left tangent; from northwesterly point Marquesas Keys 59° (NE. by E.), 4% miles, to Bar Buoy, 1, Boca Grande Channel; thence 83° (E. % N.), 9% miles, to Northwest Channel Entrance Bell Buoy, 1, Northwest Channel into Key West; thence 68° (NE. by E. % H.), 23V2 miles, to northerly side of Content Keys ; thence 49° (NE. % E.), 29 miles, to East Cape, Cape Sable. Charlotte Harbor and Punta Gorda, Fla. — Eastward of Charlotte Harbor Entrance Gas and Bell Buoy (PS), off HrGTtES,ADM.(2D Ed.)— 30 4G6 STATUTES REGULATING NAVIGATION (Appdx. Boca Grande, and in Charlotte Harbor, in Pine Island Sound and Matlacha Pass. Pilot Rules for Western Rivers apply in Peace and Miakka Rivers north of a 250° and 70° (WSW. and ENE.) line through Mangrove Point Light; and in Caloosahatchee River northward of the steamboat wharf at Punta Rasa. Tampa Bay and Tributaries, Fla.— From the southerly end of Long Key 245° (SW. by W. % W.), 9 miles, to Tam- pa Bay Gas and Whistling Buoy. (PS); thence 129° (SE. % E.), 6y 2 miles, to Bar Bell Buoy (PS), at the entrance to Southwest Channel ; thence 103° (E. by $.), 2% miles, to the house on the north end of Anna Maria Key. Pilot Rules for Western Rivers apply in Manatee River inside Manatee River Entrance Buoy, 2; in Hillsboro Bay and River inside Hillsboro Bay Light, 2. St. George Sound, Apalachicola Bay, Carrabelle and Apa- lachicola Rivers, and St. Vincent Sound, Fla.— North of a line from Lighthouse Point 246° (SW. by W. % W.), 13^4 miles, to southeasterly side of Dog Island; to northward of East Pass Bell Buoy, 1, at the entrance to East Pass, and inside West Pass Bell Buoy (PS) at the seaward entrance to West Pass. Pilot Rules for Western Rivers apply in Carrabelle River inside the entrance to the dredged chan- nel; in Apalachicola River northward of Apalachicola Dredged Channel Entrance Buoy, 2. Pensacola Harbor. — From Caucus Cut Entrance Gas and Whistling Buoy, 1A, 3° (N. Vs W.), tangent to easterly side of Fort Pickens, to the shore of Santa Rosa Island, and from the buoy northward in the buoyed channel through Caucus Shoal. Mobile Harbor and Bay.— From Mobile Entrance Gas and Whistling Buoy (PS) 40° (NE. % N.) to shore of Mobile Point, and from the buoy 320° (NW.) to the shore of Dauphin Island. Pilot Rules for Western Rivers apply in Mobile River above Choctaw Point. Sounds, Lakes, and Harbors on the Coasts of Alabama, Appdx.) HIGH SEAS AND COAST WATERS 4G7 Mississippi, and Louisiana, Between Mobile Bay Entrance and the Delta of the Mississippi River. — From Sand Island Lighthouse 259° (WSW. % W.), 43y 2 miles to Chandeleur Lighthouse; westward of Chandeleur and Errol Islands, and west of a line drawn from the southwesterly point of Errol Island 182° (S. *4 E.), 23 miles, to Pass a Loutre Lighthouse. Pilot Rules for Western Rivers apply in Pas- cagoula River, and in the dredged cut at the entrance to the river, above Pascagoula River Entrance Light, A, mark- ing the entrance to the dredged cut. New Orleans Harbor and the Delta of the Mississippi River. — Inshore of a line drawn from the outermost mud lump showing above low water at the entrance to Pass a Loutre to a similar lump off the entrance to Northeast Pass ; thence to a similar lump off the entrance to South- east Pass; thence to the outermost aid to navigation off the entrance to South Pass ; thence to the outermost aid to navigation off the entrance to Southwest Pass; thence northerly, about l Q1 / 2 miles, to the westerly point of the entrance to Bay Jaque. Sabine Pass, Tex. — Pilot Rules for Western Rivers ap- ply to Sabine Pass northward of Sabine Pass Gas and Whistling Buoy (PS), and in Sabine Lake and its tributa- ries. Outside of this buoy the International Rules apply. Galveston Harbor. — A line drawn from Galveston North Jetty Light 129° (SE. by E. % E.), 2 miles to Galveston Bar Gas and Whistling Buoy (PS) ; thence 276° (W. % S.), 2^4 miles, to Galveston (S.) Jetty Lighthouse. Brazos River, Tex. — Pilot Rules for Western Rivers ap- ply in the entrance and river inside of Brazos River En- trance Gas and Whistling Buoy (PS). International Rules apply outside the buoy. San Diego Harbor. — A line drawn from southerly tower of Coronado Hotel 208° (S. by W.), 5 miles, to Outside Bar Whistling Buoy, SD (PS); thence 345° (NNW. % W.), 3% miles, to Point Loma Lighthouse. 468 STATUTES REGULATING NAVIGATION (Appdx. San Francisco Harbor. — A line drawn through Mile Rocks Lighthouse 326° (NW. % W.) to Bonita Point Lighthouse. Columbia River Entrance. — A line drawn from knuckle of Columbia River south jetty 351° (NNW. % W.) to Cape Disappointment Lighthouse. Juan de Fuca Strait, Washington and Puget Sounds. — A line drawn from New Dungeness Lighthouse 13y 2 (N. by YY.), 10% miles, to Hein Bank Gas and Bell Buoy (HS) ; thence 33711.° (NW. V4 W.), 10% miles, to Lime Kiln Light, on west side of San Juan Island; from Bellevue Point, San Juan Island, 336%° (NW. % W.) to Kellett Bluff, Henry Island; thence 347° (NW. % N.) to Turn Point Light; thence 71 1 / 2 ° (NE. Vs E.), 8V4 miles, to west- erly point of Skipjack Island; thence 38*4° (N. by E. V± E.j, 4% miles, to Patos Islands Light; thence 338° (NW. Y 8 W.), 12 miles, to Point Roberts Light. General Rule. — At all buoyed entrances from seaward to bays, sounds, rivers, or other estuaries for which specific lines have not been described, inland rules shall apply in- shore of a line approximately parallel with the general trend of the shore, drawn through the outermost buoy or other aid to navigation of any system of aids. (4) LAKE RULES (28 Stat. 645 [U. S. Comp. St. §§ 7910-7941]). An act to regulate navigation on the Great Lakes and their connecting and tributary waters. Preliminary Rules for preventing collisions on the Great Lakes — The following rules for preventing collisions shall be followed in the navigation of all public and private vessels of the United States upon the Great Lakes and their connecting and tributary waters as far east as Montreal. (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 645, U. S. Comp. St. § 7910.) Appdx.) LAKE RULES 469 Steam and Sail Vessels Rule 1. Meaning of words "sail-vessel," "steam- vessel," "under way" — Every steam vessel which is under sail and not under steam, shall be considered a sail vessel; and every steam vessel which is under steam, whether under sail or not, shall be considered a steam vessel. The word steam vessel shall include any vessel propelled by machin- ery. A vessel is under way within the meaning of these rules when she is not at anchor or made fast to the shore or aground. (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 645, U. S. Comp. St. §7911.) Lights Rule 2. Period of compliance with rules concerning lights; meaning of word "visible" — The lights mentioned in the following rules and no others shall be carried in all weathers from sunset to sunrise. The word visible in these rules when applied to lights shall mean visible on a dark night with a clear atmosphere. (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 645, U. S. Comp. St. § 7912.) Rule 3. Lights of steam-vessel under way — Except in the cases hereinafter expressly provided for, a steam vessel when under way shall carry : (a) On or in front of the foremast, or if a vessel without a foremast, then in the forepart of the vessel, at a height above the hull of not less than twenty feet, and if the beam of the vessel exceeds twenty feet, then at a height above the hull not less than such beam, so, however, that such height need not exceed forty feet, a bright white light so constructed as to show an unbroken light over an arc of the horizon of twenty points of the compass, so fixed as to throw the light ten points on each side of the vessel, namely, from right ahead to two points abaft the beam on either side, and of such character as to be visible at a dis- tance of at least five miles. 470 STATUTES REGULATING NAVIGATION (Appdx. (b) On the starboard side, a green light, so constructed as to throw an unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the star- board side, and of such a character as to be visible at a dis- tance of at least two miles. (c) On the port side, a red light, so constructed as to show an unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the port side, and of such a character as to be visible at a distance of at least two miles. (d) The said green and red lights shall be fitted with in- board screens projecting at least three feet forward from the light, so as to prevent these lights from being seen across the bow. (e) A steamer of over one hundred and fifty feet register length shall also carry when under way an additional bright light similar in construction to that mentioned in subdivi- sion (a), so fixed as to throw the light all around the hori- zon and of such character as to be visible at a distance of at least three miles. Such additional light shall be placed in line with the keel at least fifteen feet higher from the deck and more than seventy-five feet abaft the light men- tioned in subdivision (a). (Act. Feb. 8, 1895, c. 64, § 1, 28 Stat. 645, U. S. Comp. St. § 7913.) Vessels Towing Rule 4. Steam-vessel having a vessel in tow — A steam vessel having a tow other than a raft shall in addition to the forward bright light mentioned in subdivision (a) of rule three carry in a vertical line not less than six feet above or below that light a second bright light of the same construction and character and fixed and carried in the same manner as the forward bright light mentioned in said subdivision (a) of rule three. Such steamer shall also car- Appdx.) LAKE RULES 471 ry a small bright light abaft the funnel or after mast for the tow to steer by, but such light shall not be visible for- ward of the beam. (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 646, U. S. Comp. St. § 7914.) Rule 5. Steam-vessel having a raft in tow — A steam ves- sel having a raft in tow shall, instead of the forward lights mentioned in rule four, carry on or in front of the foremast, or if a vessel without a foremast then in the fore part of the vessel, at a height above the hull of not less than twen- ty feet, and if the beam of the vessel exceeds twenty feet, then at a height above the hull not less than such beam, so however that such height need not exceed forty feet, two bright lights in a horizontal line athwartships and not less than eight feet apart, each so fixed as to throw the light all around the horizon and of such character as to be visible at a distance of at least five miles. Such steamer shall also carry the small bright steering light aft, of the character and fixed as required in rule four. (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 646, U. S. Comp. St. § 7915.) Rule 6. Sailing-vessel under way or vessel in tow — A sailing vessel under way and any vessel being towed shall carry the side lights mentioned in rule three. A vessel in tow shall also carry a small bright light aft, but such light shall not be visible forward of the beam. (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 646, U. S. Comp. St. § 7916.) Rule 7. Rules to be made for tugs — The lights for tugs under thirty tons register whose principal business is har- bor towing, and for boats navigating only on the River Saint Lawrence, also ferryboats, rafts, and canal boats, shall be regulated by rules which have been or may here- after be prescribed by the Board of Supervising Inspectors of Steam Vessels. (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 646, U. S. Comp. St. § 7917.) Rule 8. Small vessel may use portable lights — Whenever, as in the case of small vessels under way during bad weath- 472 STATUTES REGULATING NAVIGATION (Appdx. er, the green and red side lights can not be fixed, these lights shall be kept at hand lighted and ready for use, and shall, on the approach of or to other vessels, be exhibited on their respective sides in sufficient time to prevent col- lision, in such manner as to make them most visible, and so that the green light shall not be seen on the port side, nor the red light on the starboard side, nor, if practicable, more than two points abaft the beam on their respective sides. To make the use of these portable lights more cer- tain and easy, they shall each be painted outside with the color of the light they respectively contain, and shall be provided with suitable screens. (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 646, U. S. Comp. St. § 7918.) Rule 9. Vessel at anchor — A vessel under one hundred and fifty feet register length, when at anchor, shall car- ry forward, where it can best be seen, but at a height not exceeding twenty feet above the hull, a white light in a lantern constructed so as to show a clear, uniform, and un- broken light, visible all around the horizon, at a distance of at least one mile. A vessel of one hundred and fifty feet or upward in reg- ister length, when at anchor, shall carry in the forward part of the vessel, at a height of not less than twenty and not exceeding forty feet above the hull, one such light, and at or near the stern of the vessel, and at such a height that it shall be not less than fifteen feet lower than the forward light, another such light. (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 647, U. S. Comp. St. § 7919.) Rule 10. Produce and canal boats — Produce boats, canal boats, fishing boats, rafts, or other water craft navigating any bay, harbor, or river by hand power, horse power, sail, or by the current of the river, or which shall be anchored or moored in or near the channel or fairway of any bay, har- bor, or river, and not otherwise provided for in these rules, shall carry one or more good white lights, which shall be placed in such manner as shall be prescribed by the Board Appdx.) LAKE EULES 4.73 of Supervising Inspectors of Steam Vessels. (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 647, U. S. Comp. St. § 7920.) Rule 11. Open boats — Open boats shall not be obliged to carry the side lights required for other vessels, but shall, if they do not carry such lights, carry a lantern having a green slide on one side and a red slide on the other side ; and on the approach of or to other vessels, such lantern shall be exhibited in sufficient time to prevent collision, and in such a manner that the green light shall not be seen on the port side, nor the red light on the starboard side. Open boats, when at anchor or stationary, shall exhibit a bright white light. They shall not, however, be prevented from using a flare-up in addition if considered expedient. (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 647, U. S. Comp. St. § 7921.) Rule 12. Use of torch — Sailing vessels shall at all times, on the approach of any steamer during the nighttime, show a lighted torch upon that point or quarter to which such steamer shall be approaching. (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 647, U. S. Comp. St. § 7922.) Rule 13. War and revenue ships — The exhibition of any light on board of a vessel of war or revenue cutter of the United States may be suspended whenever, in the opinion of the Secretary of the Navy, the commander in chief of a squadron, or the commander of a vessel acting singly, the special character of the service may require it. (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 647, U. S. Comp. St. § 7923.) Fog Signals Rule 14. Fog signals of steam-vessels and sailing-vessels under way and at anchor — A steam vessel shall be provid- ed with an efficient whistle, sounded by steam or by some substitute for steam, placed before the funnel not less than eight feet from the deck, or in such other place as the local inspectors of steam vessels shall determine, and of such character as to be heard in ordinary weather at a distance 474 STATUTES REGULATING NAVIGATION (Appdx. of at least two miles, and with an efficient bell, and it is hereby made the duty of the United States local inspectors of steam vessels when inspecting the same to require each steamer to be furnished with such whistle and bell. A sail- ing vessel shall be provided with an efficient fog horn and with an efficient bell. Whenever there is thick weather by reason of fog, mist, falling snow, heavy rainstorms, or other causes, whether by day or by night, fog signals shall be used as follows : (a) A steam vessel under way, excepting only a steam vessel with a raft in tow, shall sound at intervals of not more than one minute three distinct blasts of her whistle. (b) Every vessel in tow of another vessel shall, at in- tervals of one minute, sound four bells on a good and effi- cient and properly-placed bell as follows : By striking the bell twice in quick succession, followed by a little longer interval, and then again striking twice in quick succession (in the manner in which four bells is struck in indicating time). (c) A steamer with a raft in tow shall sound at inter- vals of not more than one minute a screeching or Modoc whistle for from three to five seconds. (d) A sailing vessel under way and not in tow shall sound at intervals of not more than one minute — If on the starboard tack with wind forward of abeam, one blast of her fog horn ; If on the port tack with wind forward of the beam, two blasts of her fog horn ; If she has the wind abaft the beam on either side, three blasts of her fog horn. (e) Any vessel at anchor and any vessel aground in or near a channel or fairway shall at intervals of not more than two minutes ring the bell rapidly for three to five sec- onds. (f) Vessels of less than ten tons registered tonnage, not being steam vessels, shall not be obliged to give the above- Appdx.) LAKE RULES 475 mentioned signals, but if they do not they shall make some other efficient sound signal at intervals of not more than one minute. (g) Produce boats, fishing boats, rafts, or other water craft navigating by hand power or by the current of the river, or anchored or moored in or near the channel or fairway and not in any port, and not otherwise provided for in these rules, shall sound a fog horn or equivalent sig- nal, at intervals of not more than one minute. (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 647, U. S. Comp. St. § 7924.) Rule 15. Reduced speed in thick weather — Every vessel shall, in thick weather, by reason of fog, mist, falling snow, heavy rain storms, or other causes, go at moderate speed. A steam vessel hearing, apparently not more than four points from right ahead, the fog signal of another vessel shall at once reduce her speed to bare steerageway, and navigate with caution until the vessels shall have passed each other. (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 648, U. S. Comp. St. § 7925.) Steering and Sailing Rules Sailing- Vessels Rule 16. Avoidance of risk of collision; sailing-vessels approaching one another — When two sailing vessels are ap- proaching one another so as to involve risk of collision one of them shall keep out of the way of the other, as follows, namely : (a) A vessel which is running free shall keep out of the way of a vessel which is closehauled. (b) A vessel which is closehauled on the port tack shall keep out of the way of a vessel which is closehauled on the starboard tack. (c) When both are running free, with the wind on dif- ferent sides, the vessel which has the wind on the port side shall keep out of the way of the other. (d) When they are running free, with the wind on the 47G STATUTES REGULATING NAVIGATION (Appdx. same side, the vessel which is to windward shall keep out of the way of the vessel which is to leeward. (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 648, U. S. Comp. St. § 7926.) Steam-Vessels Rule 17. Steam- vessels meeting end on — When two steam vessels are meeting end on, or nearly end on, so as to involve risk of collision each shall alter her course to starboard, so that each shall pass on the port side of the other. (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 648, U. S. Comp. St. § 7927.) Rule 18. Steam-vessels crossing — When two steam ves- sels are crossing so as to involve risk of collision the ves- sel which has the other on her own starboard side shall keep out of the way of the other. (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 648, U. S. Comp. St. § 7928.) Rule 19. Steam and sailing vessels meeting — When a steam vessel and a sailing vessel are proceeding in such directions as to involve risk of collision the steam vessel shall keep out of the way of the sailing vessel. (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 648, U. S. Comp. St. § 7929.) Rule 20. What vessel shall keep her course — Where, bv any of the rules herein prescribed, one of two vessels shall keep out of the way, the other shall keep her course and speed. (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 649, U. S. Comp. St. § 7930.) Rule 21. What vessel to slacken speed — Every steam vessel which is directed by these rules to keep out of the way of another vessel shall, on approaching her, if neces- sary, slacken her speed or stop or reverse. (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 649, U. S. Comp. St. § 7931.) Rule 22. Overtaking vessel to keep out of the way — Not- withstanding anything contained in these rules every ves- sel overtaking any other shall keep out of the way of the overtaken vessel. (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 649, U. S. Comp. St. § 7932.) Appdx.) LAKE RULES ^" Rule 23. Whistle signals; one blast, two blasts — In all weathers every steam vessel under way in taking any course authorized or required by these rules shall indicate that course by the following signals on her whistle, to be accompanied whenever required by corresponding altera- tion of her helm ; and every steam vessel receiving a sig- nal from another shall promptly respond with the same sig- nal or, as provided in Rule Twenty-six: One blast to mean, "I am directing my course to star- board." Two blasts to mean, "I am directing my course to port." But the giving or answering signals by a vessel required to keep her course shall not vary the duties and obligations of the respective vessels. (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 649, U. S. Comp. St. § 7933.) Rule 24. Vessels in rivers Saint Mary and Saint Clair — That in all narrow channels where there is a current, and in the rivers Saint Mary, Saint Clair, Detroit, Niagara, and Saint Lawrence, when two steamers are meeting, the de- scending steamer shall have the right of way, and shall, before the vessels shall have arrived within the distance of one-half mile of each other, give the signal necessary to indicate which side she elects to take. (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 649, U. S. Comp. St. § 7934.) Rule 25. Vessels in narrow channels — In all channels less than five hundred feet in width, no steam vessel shall pass another going in the same direction unless the steam vessel ahead be disabled or signify her willingness that the steam vessel astern shall pass, when the steam vessel astern may pass, subject, however, to the other rules ap- plicable to such a situation. And when steam vessels pro- ceeding in opposite directions are about to meet in such channels, both such vessels shall be slowed down to a moderate speed, according to the circumstances. (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 649, U. S. Comp. St. § 7935.) Rule 26. Refusal to pass — If the pilot of a steam vessel 478 STATUTES REGULATING NAVIGATION (Appdx. to which a passing signal is sounded deems it unsafe to ac- cept and assent to said signal, he shall not sound a cross signal ; but in that case, and in every case where the pilot of one steamer fails to understand the course or intention of an approaching steamer, whether from signals being given or answered erroneously, or from other causes, the pilot of such steamer so receiving the first passing signal, or the pilot so in doubt, shall sound several short and rap- id blasts of the whistle ; and if the vessels shall have ap- proached within half a mile of each other both shall reduce their speed to bare steerageway, and, if necessary, stop and reverse. (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 649, U. S. Comp. St. § 7936.) Rule 27. Obedience to and construction of rules — In obeying and construing these rules due regard shall be had to all dangers of navigation and collision and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate dan- ger. (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 649, U. S. Comp. St. § 7937.) Rule 28. Vessels not to neglect precautions — Nothing in these rules shall exonerate any vessel, or the owner or mas- ter or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper lookout, or of a neglect of any precaution which may be required by the ordinary practice of seamen, or by the spe- cial circumstances of the case. (Act Feb. 8, 1895, c. 64, § \, 28 Stat. 649, U. S. Comp. St. § 7938.) Violations of provisions of act; penalty — A fine, not ex- ceeding two hundred dollars, may be imposed for the vio- lation of any of the provisions of this Act. The vessel shall be liable for the said penalty, and may be seized and pro- ceeded against, by way of libel, in the district court of the United States for any district within which such vessel may be found. (Act Feb. 8, 1895, c. 64, § 2, 28 Stat. 649, U. S., Comp. St. § 7939.) Appdx.) MISSISSIPPI VALLEY RULES 479 Regulations; steam-vessels passing; copies of rules — The Secretary of the Treasury of the United States shall have authority to establish all necessary regulations, not incon- sistent with the provisions of this Act, required to carry the same into effect. The Board of Supervising Inspectors of the United States shall have authority to establish such regulations to be ob- served by all steam vessels in passing each other, not in- consistent with the provisions of this Act, as they shall from time to time deem necessary ; and all regulations adopted by the said Board of Supervising Inspectors under the authority of this Act, when approved by the Secretary of the Treasury, shall have the force of law. Two printed copies of any such regulations for passing, signed by them, shall be furnished to each steam vessel, and shall at all times be kept posted up in conspicuous places on board. (Act Feb. 8, 1895, c. 64, § 3, 28 Stat. 649, U. S. Comp. St. § 7940.) Repeal — That all laws or parts of laws, so far as applica- ble to the navigation of the Great Lakes and their con- necting and tributary waters as far east as Montreal, incon- sistent with the foregoing rules are hereby repealed. (Act Feb. 8, 1895, c. 64, § 4, 28 Stat. 650, U. S. Comp. St. § 7941.) (5) MISSISSIPPI VALLEY RULES (Rev. St. § 4233, as amended [U. S. Comp. St. §§ 7942-7974]). Rules for preventing collisions — The following rules for preventing collisions on the water, shall be followed in the navigation of vessels of the Navy and of the mercantile ma- rine of the United States. (R. S. § 4233, U. S. Comp. St. § 7942.) Steam and Sail Vessels Rule 1. Meaning of words "sail vessel" and "steam ves- sel" — Every steam vessel which is under sail and not under steam shall be considered a sail vessel ; and every steam vessel which is under steam, whether under sail or not, shall be considered a steam vessel. The words steam ves- 480 STATUTES REGULATING NAVIGATION (Appdx. sel shall include any vessel propelled by machinery. (R. S. § 4233, amended Act March 3, 1905, c. 1457, § 10, 33 Stat. 1032, U. S. Comp. St. § 7943.) L/IGHTS Rule 2. Period of compliance with rules concerning lights — The lights mentioned in the following rules, and no oth- ers, shall be carried in all weathers, between sunset and sunrise. (R. S. § 4233, U. S. Comp. St. § 7944.) Rule 3. Lights of ocean steamers, and steamers carrying sail, under way — All ocean-going steamers, and steamers carrying sail, shall, when under way, carry — (a) At the foremast head, a bright white light, of such a character as to be visible on a dark night, with a clear at- mosphere, at a distance of at least five miles, and so con- structed as to show a uniform and unbroken light over an arc of the horizon of twenty points of the compass, and so fixed as to throw the light ten points on each side of the ves- sel, namely, from right ahead to two points abaft the beam on either side. (b) On the starboard side, a green light, of such a char- acter as to be visible on a dark night, with a clear atmos- phere, at a distance of at least two miles, and so constructed as to show a uniform and unbroken light over an arc of the horizon of ten points of the compass, and so fixed as to throw the light from right ahead to two points abaft the beam on the starboard side. (c) On the port side, a red light, of such a character as to be visible on a dark night, with a clear atmosphere, at a distance of at least two miles, and so constructed as to show a uniform and unbroken light over an arc of the horizon of ten points of the compass, and so fixed as to throw the light from right ahead to two points abaft the beam on the port side. The green and red lights shall be fitted with inboard screens, projecting at least three feet forward from the Appdx.) MISSISSIPPI VALLEY RULES 481 lights, so as to prevent them from being- seen across the bow. (R. S. § 4233, U. S. Comp. St. § 7945.) Rule 4. Steam-vessel towing other vessels — Steam-ves- sels, when towing other vessels, shall carry two bright white mast-head lights vertically, in addition to their side- lights, so as to distinguish them from other steam-vessels. Each of these mast-head lights shall be of the same char- acter and construction as the mast-head lights prescribed by Rule three. (R. S. § 4233, U. S. Comp. St. § 7946.) Rule 5. Steam-vessels other than ocean steamers, and steamers carrying sail — x\ll steam-vessels, other than ocean- going steamers and steamers carrying sail, shall, when un- der way, carry on the starboard and port sides lights of the same character and construction and in the same position as are prescribed for side-lights by Rule three, except in the case provided in Rule six. (R. S. § 4233, U. S. Comp. St. § 7947.) Rule 6. Vessels on waters flowing into Gulf of Mexico — River-steamers navigating waters flowing into the Gulf of Mexico, and their tributaries, shall carry the following lights, namely : One red light on the outboard side of the port smoke-pipe, and one green light on the outboard side of the starboard smoke-pipe. Such lights shall show both for- ward and abeam on their respective sides. (R. S. § 4233, U. S. Comp. St. § 7948.) Rule 7. Coasting and inland waters steam-vessels, ferry- boats, barges and canal-boats — All coasting steam-vessels, and steam-vessels other than ferry-boats and vessels other- wise expressly provided for, navigating the bays, lakes, riv- ers, or other inland waters of the United States, except those mentioned in Rule six, shall carry the red and green lights, as prescribed for ocean-going steamers ; and, in addition thereto, a central range of two white lights ; the after-light being carried at an elevation of at least fifteen feet above the light at the head of the vessel. The headlight shall be so constructed as to show a good light through twenty points Hughes.Adm. (2d Ed.) — 31 4S2 STATUTES REGULATING NAVIGATION (Appdx. of the compass, namely : from right ahead to two points abaft the beam on either side of the vessel ; and the after- light so as to show all around the horizon. The lights for ferry-boats, barges and canal boats when in tow of steam vessels, shall be regulated by such rules as the board of supervising inspectors of steam-vessels shall prescribe. (R. S. § 4233, amended Act March 3, 1893, c. 202, and Act March 3, 1893, c. 202, 27 Stat. 557, U. S. Comp. St. § 7949.) Rule 8. Sailing-vessels under way or in tow — Sail-ves- sels, under way or being towed, shall carry the same lights as steam-vessels under way, with the exception of the white mast-head lights, which they shall never carry. (R. S. § 4233, U. S. Comp. St. § 7950.) Rule 9. Small vessels in bad weather — Whenever, as in case of small vessels during bad weather, the green and red lights cannot be fixed, these lights shall be kept on deck, on their respective sides of the vessel, ready for instant ex- hibition, and shall, on the approach of or to other vessels, be exhibited on their respective sides in sufficient time to prevent collision, in such manner as to make them most visible, and so that the green light shall not be seen on the port side, nor the red light on the starboard side. To make the use of these portable lights more certain and easy, they shall each be painted outside with the color of the light they respectively contain, and shall be provided with suitable screens. (R. S. § 4233, U. S. Comp. St. § 7951.) Rule 10. Vessels at anchor — All vessels, whether steam- vessels or sail-vessels, when at anchor in roadsteads or fair- ways, shall, between sunset and sunrise, exhibit where it can best be seen, but at a height not exceeding twenty feet above the hull, a white light in a globular lantern of eight inches in diameter, and so constructed as to show a clear, uniform, and unbroken light, vi'sible all around the horizon, and at a distance of at least one mile. (R. S. § 4233, U. S. Comp. St. § 7952.) Appdx.) MISSISSIPPI VALLEY RULES 483 Rule 11. Sailing and steam pilot-vessels — Sailing pilot- vessels shall not carry the lights required for other sailing- vessels, but shall carry a white light at the mast-head, vis- ible all around the horizon, and shall also exhibit a flare-up light every fifteen minutes. Steam pilot boats shall, in addition to the masthead light and green and red side lights required for ocean steam ves- sels, carry a red light hung vertically from three to five feet above the foremast headlight, for the purpose of distin- guishing such steam pilot boats from other steam vessels. (R. S. § 4233, amended Act March 3, 1897, c. 389, § 5, 29 Stat. 689, U. S. Comp. St. § 7953.) Rule 12. Coal and trading boats— Coal-boats, trading- boats, produce-boats, canal-boats, oyster-boats, fishing- boats, rafts, or other water-craft, navigating any bay, har- bor, or river, by hand-power, horse-power, sail, or by the current of the river, or which shall be anchored or moored in or near the channel or fairway of any bay, harbor, or river, shall carry one or more good white lights, which shall be placed in such manner as shall be prescribed by the board of supervising inspectors of steam-vessels. (R. S. § 4233, U. S. Comp. St. § 7954.) Rule 13. Open boats — Open boats shall not be required to carry the side-lights required for other vessels, but shall, if they do not carry such lights, carry a lantern having a green slide on one side and a red slide on the other side ; and, on the approach of or to other vessels, such lantern shall be exhibited in sufficient time to prevent collision, and in such a manner that the green light shall not be seen on the port side, nor the red light on the starboard side. Open boats, when at anchor or stationary, shall exhibit a bright white light. They shall not, however, be prevented from using a flare-up, in addition, if considered expedient. (R. S. § 4233, U. S. Comp. St. § 7955.) Rule 14. Ships of war and revenue cutters — The exhibi- tion of any light on board of a vessel of war of the United 484 STATUTES REGULATING NAVIGATION (Appdx. States may be suspended whenever, in the opinion of the Secretary of the Navy, the commander in chief of a squad- ron, or the commander of a vessel acting singly, the special character of the service may require it. The exhibition of any light on board of a revenue cutter of the United States may be suspended whenever, in the opinion of the com- mander of the vessel, the special character of the service may require it. (R. S. § 4233, amended, Act March 3, 1897, c. 389, § 12, 29 Stat. 690, U. S. Comp. St. § 7956.) Fog Signals Rule 15. Fog signals— (a) Whenever there is a fog, or thick weather, whether by day or night, fog signals shall be used as follows: Steam vessels under way shall sound a steam whistle placed before the funnel, not less than eight feet from the deck, at intervals of not more than one minute. Steam vessels, when towing, shall sound three blasts of quick succession repeated at intervals of not more than one minute. (b) Sail vessels under way shall sound a fog horn at in- tervals of not more than one minute. (c) Steam vessels and sail vessels, when not under way, shall sound a bell at intervals of not more than two minutes. (d) Coal-boats, trading-boats, produce-boats, canal- boats, oyster-boats, fishing-boats, rafts, or other water-craft, navigating any bay, harbor, or river, by hand-power, horse- power, sail, or by the current of the river, or anchored or moored in or near the channel or fairway of any bay, harbor, or river, and not in any port, shall sound a fog-horn, or equivalent signal, which shall make a sound equal to a steam-whistle, at intervals of not more than two minutes. (R. S. § 4233, amended Act March 3, 1897, c. 389, § 12, 29 Stat. 690, U. S. Comp. St. § 7957.) Appdx.) MISSISSIPPI VALLEY RULES 485 Steering and Sailing Rules Rule 16. Ascertainment of risk of collision — Risk of col- lision can, when circumstances permit, be ascertained by carefully watching the compass bearing of an approaching vessel. If the bearing does not appreciably change such risk should be deemed to exist. (R. S. § 4233, amended Act March 3, 1897, c. 389, § 12, 29 Stat. 690, U. S. Comp. St. § 7958.) Rule 17. Rules of avoidance of risk ; sailing-vessels ap- proaching one another— When two sailing vessels are ap- proaching one another, so as to involve risk of collision, one of them shall keep out of the way of the other, as follows, namely : (a) A vessel which is running free shall keep out of the way of a vessel which is close-hauled. (b) A vessel which is close-hauled on the port tack shall keep out of the way of a vessel which is close-hauled on the starboard tack. (c) When both are running free, with the wind on dif- ferent sides, the vessel which has the wind on the port side shall keep out of the way of the other. (d) When both vessels are running free, with the wind on the same side, the vessel which is to the windward shall keep out of the way of the vessel which is to the leeward. (e) A vessel which has the wind aft shall keep out of the way of the other vessel. (R. S. § 4233, amended Act March 3, 1897, c. 389, § 12, 29 Stat. 690, U. S. Comp. St. § 7959.) Rule 18. Steam-vessels meeting end on — If two vessels under steam are meeting end on, or nearly end on, so as to involve risk of collision, the helms of both shall be put to port, so that each may pass on the port side of the other. (R. S. § 4233, U. S. Comp. St. § 7960.) Rule 19. Steam-vessels crossing — If two vessels under steam are crossing so as to involve risk of collision, the ves- sel which has the other on her own starboard side shall keep 486 STATUTES REGULATING NAVIGATION (Appdx. out of the way of the other. (R. S. § 4233, U. S. Comp. St. § 7961.) Rule 20. Steam and sailing vessels meeting — If two ves- sels, one of which is a sail-vessel and the other a steam- vessel, are proceeding in such directions as to involve risk of collision, the steam-vessel shall keep out of the way of the sail-vessel. (R. S. § 4233, U. S. Comp. St. § 7962.) Rule 21. Speed of steam- vessel approaching another ves- sel and in fog — Every steam-vessel, when approaching an- other vessel, so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse; and every steam-vessel shall, when in a fog, go at a moderate speed. (R. S. § 4233, U. S. Comp. St. § 7963.) Rule 22. Overtaking vessel to keep out of the way — Ev- ery vessel overtaking any other vessel shall keep out of the way of the last-mentioned vessel. (R. S. § 4233, U. S. Comp. St. § 7964.) Rule 23. What vessel shall keep her course — Where, by Rules seventeen, nineteen, twenty, and twenty-two, one of two vessels shall keep out of the way, the other shall keep her course, subject to the qualifications of Rule twenty-four. (R. S. § 4233, U. S. Comp. St. § 7965.) Rule 24. Obedience to and construction of rules — In con- struing and obeying these rules, due regard must be had to all dangers of navigation, and to any special circumstances which may exist in any particular case rendering a depar- ture from them necessary in order to avoid immediate dan- ger. (R. S. § 4233, U. S. Comp. St. § 7966.) Rule 25. Sailing-vessel overtaken — A sail vessel which is being overtaken by another vessel during the night shall show from her stern to such last-mentioned vessel a torch or a flare-up light. (R. S. § 4233, amended Act March 3, 1897, c. 389, § 13, 29 Stat. 690, U. S. Comp. St. § 7967.) Rule 26. Vessels not to neglect precautions — Nothing in these rules shall exonerate any ship, or the owner, or mas- ter, or crew thereof, from the consequences of any neg- Appdx.) MISSISSIPPI VALLEY RULES 487 lect to carry lights or signals, or of any neglect to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen or by the special circumstances of the case. (R. S. § 4233, amend- ed Act March 3, 1897, c. 389, § 13, 29 Stat. 690, U. S. Comp. St. § 7968.) Regulations of towage of seagoing barges within inland waters — The chairman of the Light-House Board, the Su- pervising Inspector-General of the Steamboat-Inspection Service, and the Commissioner of Navigation shall convene as a board at such times as the Secretary of Commerce and Labor shall prescribe to prepare regulations limiting the length of hawsers between towing vessels and seagoing barges in tow and the length of such tows within any of the inland waters of the United States designated and defined from time to time pursuant to section two of the Act ap- proved February nineteenth, eighteen hundred and ninety- five, and such regulations when approved by the Secretary of Commerce and Labor shall have the force of law. (Act May 28, 1908, c. 212, § 14, 35 Stat. 428, U. S. Comp. St. § 7969.) Violation of regulations by master of towing vessel ; pen- alty — The master of the towing vessel shall be liable to the suspension or revocation of his license for any willful vio- lation of regulations issued pursuant to section fourteen in the manner now prescribed for incompetency, misconduct, or unskillfulness. (Act May 28, 1908, c. 212, § 15, 35 Stat. 429, U. S. Comp. St. § 7970.) Rules for preventing collisions extended to harbors — On and after March first, eighteen-hundred and ninety-five, the provisions of sections forty-two hundred and thirty-three, forty-four hundred and twelve, and forty-four hundred and thirteen of the Revised Statutes and regulations pursuant thereto shall be followed on the harbors, rivers and inland waters of the United States. The provisions of said sec- tions of the Revised Statutes and regulations pursuant 488 STATUTES REGULATING NAVIGATION (Appdx. thereto are hereby declared special rules duly made by lo- cal authority relative to the navigation of harbors, rivers and inland waters as provided for in Article thirty, of the Act of August nineteenth, eighteen hundred and ninety, entitled "An Act to adopt regulations for preventing colli- sions at sea." (Act Feb. 19, 1895, c. 102, § 1, 28 Stat. 672, U. S. Comp. St. § 7971.) Secretary of Treasury to define lines dividing high seas from rivers and harbors — The Secretary of the Treasury is hereby authorized, empowered and directed from time to time to designate and define by suitable bearing or ranges with light houses, light vessels, buoys or coast objects, the lines dividing the high seas from rivers, harbors and inland waters. (Act Feb. 19, 1895, c. 102, § 2, 28 Stat. 672, U. S. Comp. St. § 7972.) Signal lights; penalty for violation — Collectors or other chief officers of the customs shall require all sail vessels to be furnished with proper signal lights. Every such vessel that shall be navigated without complying with the Stat- utes of the United States, or the regulations that may be lawfully made thereunder, shall be liable to a penalty of two hundred dollars, one-half to go to the informer; for which sum the vessel so navigated shall be liable, and may be seized and proceeded against by way of libel in any dis- trict court of the United States having jurisdiction of the offense. (Act Feb. 19, 1895, c. 102, § 3, 28 Stat. 672, U. S. Comp. St. § 7973.) Inland waters defined — The words "inland waters" used in this Act shall not be held to include the Great Lakes and their connecting and tributary waters as far east as Mon- treal; and this Act shall not in any respect modify or af- fect the provisions of the Act entitled "An Act to regulate navigation of the Great Lakes and their connecting and tributary waters," approved February eighth, eighteen hun- dred and ninety-five. (Act Feb. 19, 1895, c. 102, § 4, 28 Stat. 672, U. S. Comp. St. § 7974.) Appdx.) OBSTRUCTING CHANNELS 489 (6) ACT MARCH 3, 1899 (30 Stat. 1152 [U. S. Comp. St. §§ 9920, 9921, 9924, 9925]). Obstructions by vessels, anchored or sunk, and floating timber; marking and removal of sunken vessels — It shall not be lawful to tie up or anchor vessels or other craft in navigable channels in such a manner as to prevent or ob- struct the passage of other vessels or craft; or to volun- tarily or carelessly sink, or permit or cause to be sunk, vessels or other craft in navigable channels; or to float loose timber and logs, or to float what is known as sack rafts of timber and logs in streams or channels actually nav- igated by steamboats in such manner as to obstruct, im- pede, or endanger navigation. And whenever a vessel, raft, or other craft is wrecked and sunk in a navigable channel, accidently or otherwise, it shall be the duty of the owner of such sunken craft to immediately mark it with a buoy or beacon during the day and a lighted lantern at night, and to maintain such marks until the sunken craft is re- moved or abandoned, and the neglect or failure of the said owner so to do shall be unlawful ; and it shall be the duty of the owner of such sunken craft to commence the immediate removal of the same, and prosecute such removal diligently, and failure to do so shall be considered as an abandonment of such craft, and subject the same to removal by the Unit- ed States as hereinafter provided for. (Act March 3, 1899, c. 425, § 15, 30 Stat. 1152, U. S. Comp. St. § 9920.) Penalty for violation of provisions of act — Every person and every corporation that shall violate, or that shall know- ingly aid, abet, authorize, or instigate a violation of the pro- visions of sections thirteen, fourteen, and fifteen of this Act shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding twenty-five hun- dred dollars nor less than five hundred dollars, or by im- prisonment (in the case of a natural person) for not less than thirty days nor more than one year, or by both such 490 STATUTES REGULATING NAVIGATION (Appdx. fine and imprisonment, in the discretion of the court, one- half of said fine to be paid to the person or persons giving information which shall lead to conviction. And any and every master, pilot, and engineer, or person or persons act- ing in such capacity, respectively, on board of any boat or vessel who shall knowingly engage in towing any scow, boat, or vessel loaded with any material specified in sec- tion thirteen of this Act to any point or place of deposit or discharge in any harbor or navigable water, elsewhere than within the limits defined and permitted by the Secre- tary of War, or who shall willfully injure or destroy any work of the United States contemplated in section fourteen of this Act, or who shall willfully obstruct the channel of any waterway in the manner contemplated in section fifteen of this Act, shall be deemed guilty of a violation of this Act, and shall upon conviction be punished as hereinbefore pro- vided in this section, and shall also have his license revoked or suspended for a term to be fixed by the judge before whom tried and convicted. And any boat, vessel, scow, raft, or other craft used or employed in violating any of the provisions of sections thirteen, fourteen and fifteen of this Act shall be liable for the pecuniary penalties specified in this section, and in addition thereto for the amount of the damages done by said boat, vessel, scow, raft, or other craft, which latter sum shall be placed to the credit of the appro- priation for the improvement of the harbor or waterway in which the damage occurred, and said boat, vessel, scow, raft, or other craft may be proceeded against summarily by way of libel in any district court of the United States hav- ing jurisdiction thereof. (Act March 3, 1899, c. 425, § 16, 30 Stat. 1153, U. S. Comp. St. § 9921.) Removal of obstructions to navigation; notice; proposals to remove; bond of bidder; disposition of proceeds — When- ever the navigation of any river, lake, harbor, sound, bay, canal, or other navigable waters of the United States shall be obstructed or endangered by any sunken vessel, boat, water Appdx.) OBSTRUCTING CHANNELS ±91 craft, raft, or other similar obstruction, and such obstruction has existed for a longer period than thirty days, or whenever the abandonment of such obstruction can be legally estab- lished in a less space of time, the sunken vessel, boat, water craft, raft, or other obstruction shall be subject to be broken up, removed, sold or otherwise disposed of by the Secretary of War at his discretion, without liability for any damage to the owners of the same : Provided, That in his discretion, the Secretary of War may cause reasonable notice of such obstruction of not less than thirty days, unless the legal abandonment of the obstruction can be established in a less time, to be given by publication, addressed "To whom it may concern," in a newspaper published nearest to the lo- cality of the obstruction, requiring the removal thereof: And provided also, That the Secretary of War may, in his discretion, at or after the time of giving such notice, cause sealed proposals to be solicited by public advertisement, giving reasonable notice of not less than ten days, for the removal of such obstruction as soon as possible after the expiration of the above specified thirty days' notice, in case it has not in the meantime been so removed, these proposals and contracts, at his discretion, to be conditioned that such vessel, boat, water craft, raft, or other obstruction, and all cargo and property contained therein, shall become the property of the contractor, and the contract shall be award- ed to the bidder making the proposition most advantageous to the United States: Provided, That such bidder shall give satisfactory security to execute the work: Provided further, That any money received from the sale of any such wreck, or from any contractor for the removal of wrecks, under this paragraph shall be covered into the Treasury of the United States. (Act March 3, 1899, c. 425, § 19, 30 Stat. 1154, U. S. Comp. St. § 9924.) Destruction of certain vessels grounding ; appropriation ; repeal — Under emergency, in the case of any vessel, boat, water craft, or raft, or other similar obstruction, sinking or 492 STATUTES REGULATING NAVIGATION (Appdx. grounding, or being unnecessarily delayed in any Govern- ment canal or lock, or in any navigable waters mentioned in section nineteen, in such manner as to stop, seriously interfere with, or specially endanger navigation, in the opin- ion of the Secretary of War, or any agent of the United States to whom the Secretary may delegate proper author- ity, the Secretary of War or any such agent shall have the right to take immediate possession of such boat, vessel, or other water craft, or raft, so far as to remove or to destroy it and to clear immediately the canal, lock, or navigable waters aforesaid of the obstruction thereby caused, using his best judgment to prevent any unnecessary injury; and no one shall interfere with or prevent such removal or de- struction : Provided, That the officer or agent charged with the removal or destruction of an obstruction under this section may in his discretion give notice in writing to the owners of any such obstruction requiring them to remove it : And provided further, That the expense of removing any such obstruction as aforesaid shall be a charge against such craft and cargo ; and if the owners thereof fail or refuse to reimburse the United States for such expense within thirty days after notification, then the officer or agent aforesaid may sell the craft or cargo, or any part thereof that may not have been destroyed in removal, and the proceeds oi such sale shall be covered into the Treasury of the United States. Such sum of money as may be necessary to execute this section and the preceding section of this Act is hereby ap- propfiated out of any money in the Treasury not otherwise appropriated, to be paid out on the requisition of the Sec- retary of War. That all laws or parts of laws inconsistent with the fore- going sections nine to twenty, inclusive, of this Act are hereby repealed: Provided, That no action begun or right of action accrued prior to the passage of this Act shall be affected by this repeal : Provided further, That nothing con- Appdx.) STAND-BY ACT 493 tained in the said foregoing sections shall be construed as repealing, modifying, or in any manner affecting the pro- visions of an Act of Congress approved June twenty-ninth, eighteen hundred and eighty-eight, entitled "An Act to pre- vent obstructive and injurious deposits within the harbor and adjacent waters of New York City, by dumping or otherwise, and to punish and prevent such offense" as amended by section three of the river and harbor Act of August eighteenth, eighteen hundred and ninety-four. (Act March 3, 1899, c. 425, § 20, 30 Stat. 1154, amended Act Feb. 20, 1900, c. 23, § 3, 31 Stat. 32, and Act June 13, 1902, c. 1079, § 12, 32 Stat. 375, U. S. Comp. St. § 9925.) (7) STAND-BY ACT OF SEPTEMBER 4, 1890 (26 Stat. 425 [U. S. Comp. St. §§ 7979, 7980]). An act in regard to collision at sea. Section 1. Duties of master of vessel in case of collision ■ — In every case of collision between two vessels it shall be the duty of the master or person in charge of each vessel, if and so far as he can do so without serious danger to his own vessel, crew, and passengers (if any), to stay by the other vessel until he has ascertained that she has no need of further assistance, and to render to the other vessel, her master, crew, and passengers (if any) such assistance as may be practicable and as may be necessary in order to save them from any danger caused by the collision, and also to give to the master or person in charge of the other vessel the name of his own vessel and her port of registry, or the port or place to which she belongs, and also the name of the ports and places from which and to which she is bound. If he fails so to do, and no reasonable cause for such fail- ure is shown, the collision shall, in the absence of proof to the contrary, be deemed to have been caused by his wrong- ful act, neglect, or default. (Act Sept. 4, 1890, c. 875, § 1, 26 Stat. 425, U. S. Comp. St. § 7979.) 494 STATUTES REGULATING NAVIGATION (Appdx. Sec. 2. Failure to comply with act ; penalty — Every mas- ter or person in charge of a United States vessel who fails without reasonable cause, to render such assistance or give such information as aforesaid shall be deemed guilty of a misdemeanor, and shall be liable to a penalty of one thou- sand dollars, or imprisonment for a term not exceeding two years; and for the above sum the vessel shall be liable and may be seized and proceeded against by process in any dis- trict court of the United States by any person; one-half such sum to be payable to the informer and the other half to the United States. (Act Sept. 4, 1890, c. 875, § 2, 26 Stat. 425, U. S. Comp. St. § 7980.) 4. THE LIMITED LIABILITY ACTS (1) ACT MARCH 3, 1851 (Rev. St. §§ 4282^1289, as amended February 27, 1877, February 18, 1875, and June 19, 1886 [U. S. Comp. St. §§ 8020-8027]). Loss by fire — No owner of any vessel shall be liable to answer for or make good to any person any loss or dam- age, which may happen to any merchandise whatsoever, which shall be shipped, taken in, or put on board any such vessel, by reason or by means of any fire happening to or on board the vessel, unless such fire is caused by the de- sign or neglect of such owner. (R. S. § 4282, U. S. Comp. St. § 8020.) Liability of owner not to exceed interest — The liability of the owner of any vessel, for any embezzlement, loss, or destruction, by any person, of any property, goods, or mer- chandise, shipped or put on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, lost, damage, or forfeiture, done, occa- sioned, or incurred without the privity, or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner in such vessel, and her freight then pending. (R. S. § 4283. U. S. Comp. St. § 8021.) Appdx.) ACT OF MARCH 3, 1851 495 Apportionment of compensation — Whenever any such embezzlement, loss, or destruction is suffered by several freighters or owners of goods, wares, merchandise, or any property whatever, on the same voyage, and the whole value of the vessel, and her freight for the voyage, is not sufficient to make compensation to each of them, they shall receive compensation from the owner of the vessel in pro- portion to their respective losses; and for that purpose the freighters and owners of the property, and the owner of the vessel, or any of them, may take the appropriate pro- ceedings in any court, for the purpose of apportioning the sum for which the owner of the vessel may be liable among the parties entitled thereto. (R. S. § 4284, amended Act Feb. 27, 1877, c. 69, § 1, 19 Stat. 251, U. S. Comp. St. § 8022.) Transfer of interest of owner to trustee — It shall be deemed a sufficient compliance on the part of such owner with the requirements of this Title relating to his liability for any embezzlement, loss, or destruction of any property, goods, or merchandise, if he shall transfer his interest in such vessel and freight, for the benefit of such claimants, to a trustee, to be appointed by any court of competent juris- diction, to act as such trustee for the person who may prove to be legally entitled thereto ; from and after which transfer all claims and proceedings against the owner shall cease. (R. S. § 4285, U. S. Comp. St. § 8023.) When charterer is deemed owner — The charterer of any vessel, in case he shall man, victual, and navigate such ves- sel at his own expense, or by his own procurement, shall be deemed the owner of such vessel within the meaning of the provisions of this Title relating to the limitation of the liability of the owners of vessels; and such vessel, when so chartered, shall be liable in the same manner as if navigat- ed by the owner thereof. (R. S. § 4286, U. S. Comp. St. § 8024.) 496 LIMITED LIABILITY ACTS (Appdx. Remedies reserved — Nothing in the five preceding sec- tions shall be construed to take away or affect the remedy to which any party may be entitled, against the master, officers, or seamen, for or on account of any embezzlement, injury, loss, or destruction of merchandise, or property, put on board any vessel, or on account of any negligence, fraud, or other malversation of such master, officers, or seamen, respectively, nor to lessen or take away any responsibility to which any master or seaman of any vessel may by law be liable, notwithstanding such master or seaman may be an owner or part owner of the vessel. (R. S. § 4287, U. S. Comp. St. § 8025.) Shipping inflammable materials — Any person shipping oil of vitriol, unslaked lime, inflammable matches, or gun- powder, in a vessel taking cargo for divers persons on freight, without delivering, at the time of shipment, a note in writing, expressing the nature and character of such merchandise, to the master, mate, officer, or person in charge of the lading of the vessel, shall be liable to the United States in a penalty of one thousand dollars. But this section shall not apply to any vessel of any description whatsoever used in rivers or inland navigation. (R. S. § 4288, U. S. Comp. St. § 8026.) Limitation of liability of owners applied to all vessels — The provisions of the seven preceding sections, and of sec- tion eighteen of an act entitled "An act to remove certain burdens on the American merchant marine and encourage the American foreign carrying-trade, and for other purpos- es," approved June twenty-sixth, eighteen hundred and eighty-four, relating to the limitations of the liability of the owners of vessels, shall apply to all sea going vessels, and also to all vessels used on lakes or rivers or in inland navigation, including canalboats, barges, and lighters. (R. S. § 4289, amended Act Feb. 18, 1875, c. 80, § 1, 18 Stat. 320, and Act June 19, 1886, c. 421, § 4, 24 Stat. 80, U. S. Comp. St. § 8027.) Appdx.) BOND OR STIPULATION 497 (2) ACT JUNE 26, 1884, § 18 (U. S. Comp. St. § 8028). Liability of owners of vessels for debts limited — The indi- vidual liability of a ship-owner, shall be limited to the pro- portion of any or all debts and liabilities that his individual share of the vessel bears to the whole; and the aggregate liabilities of all the owners of a vessel on account of the same shall not exceed the value of such vessels and freight pending: Provided, That this provision shall not affect the liability of any owner incurred previous to the passage of this act, nor prevent any claimant from joining all the owners in one action; nor shall the same apply to wages due to persons employed by said ship-owners. (Act June 26, 1884, c. 121, § 18, 23 Stat. 57, U. S. Comp. St. § 8028.) 5. BONDS OR STIPULATIONS TO RELEASE VESSELS FROM ARREST REv. St. § 941, as Amended (U. S. Comp. St. § 1567). An act to amend section nine hundred and forty-one of the Revised Statutes. Delivery bond in admiralty proceedings — When a war- rant of arrest or other process in rem is issued in any cause of admiralty jurisdiction, except in cases of seizures for forfeiture under any law of the United States, the marshal shall stay the execution of such process, or discharge the property arrested if the process has been levied, on receiv- ing from the claimant of the property a bond or stipula- tion in double the amount claimed by the libelant, with sufficient surety, to be approved by the judge of the court where the cause is pending, or, in his absence, by the col- lector of the port, conditioned to answer the decree of the court in such cause. Such bond or stipulation shall be re- turned to the court, and judgment thereon, against both the principal and sureties, may be recovered at the time of ren- dering the decree in the original cause. And the owner of 1Ittghes,Adm.(2d Ed.)— 32 49S EVIDENCE IN THE FEDERAL COURTS (Appdx. any vessel may cause to be executed and delivered to the marshal a bond or stipulation, with sufficient surety, to be approved by the judge of the court in which he is marshal, conditioned to answer the decree of said court in all or any cases that shall thereafter be brought in said court against the said vessel, and thereupon the execution of all such process against said vessel shall be stayed so long as the amount secured by such bond or stipulation shall be at least double the aggregate amount claimed by the libelants in such suits which shall be begun and pending against said vessel; and like judgments and remedies may be had on said bond or stipulation as if a special bond or stipula- tion had been filed in each of said suits. The court may make such orders as may be necessary to carry this section into effect, and especially for the giving of proper notice of any such suit. Such bond or stipulation shall be in- dorsed by the clerk witli a minute of the suits wherein pro- cess is so stayed, and further security may at any time be required by the court. If a special bond or stipulation in the particular cause shall be given under this section, the liability as to said cause on the general bond or stipulation shall cease. (R. S. § 941, amended Act March 3, 1899, c. 441, 30 Stat. 1354, U. S. Comp. St. § 1567.) 6. STATUTES REGULATING EVIDENCE IN THE FEDERAL COURTS Mode of proof in equity and admiralty causes — The mode of proof in causes of equity and of admiralty and maritime, jurisdiction shall be according to rules now or hereafter prescribed by the Supreme Court, except as herein special- ly provided.' (R. S. § 862, U. S. Comp. St. § 1470.) Competency of witnesses; civil cases — The competency of a witness to testify in any civil action, suit, or proceed- ing in the courts of the United States shall be determined by the laws of the State or Territory in which the court is Appdx.) EVIDENCE IN THE FEDERAL COURTS 499 held. (R. S. § 858, amended Act June 29, 1906, c. 3608, 34 Stat. 618, U. S. Comp. St. § 1464.) Depositions de bene esse — The testimony of any witness may be taken in any civil cause depending- in a district or circuit court by deposition de bene esse, when the witness lives at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of the district in which the case is to be tried, and to a greater distance than one hundred miles from the place of trial, before the time of trial, or when he is ancient and infirm. The deposition may be taken before any judge of any court of the United States, or any commissioner of a circuit court, or any clerk of a district or circuit court, or any chancellor, jus- tice, or judge of a supreme or superior court, mayor or chief magistrate of a city, judge of a county court or court of common pleas of any of the United States, or any notary public, not being of counsel or attorney to either of the parties, nor interested in the event of the cause. Reason- able notice must first be given in writing by the party or his attorney proposing to take such deposition, to the op- posite party or his attorney of record, as either may be nearest, which notice shall state the name of the witness and the time and place of the taking of his deposition; and in all cases in rem, the person having the agency or pos- session of the property at the time of seizure shall be deem- ed the adverse party, until a claim shall have been put in ; and whenever, by reason of the absence from the district and want of an attorney of record or other reason, the giv- ing of the notice herein required shall be impracticable, it shall be lawful to take such depositions as there shall be urgent necessity for taking, upon such notice as any judge authorized to hold courts in such circuit or district shall think reasonable and direct. Any person may be compelled to appear and depose as provided by this section, in the 50° EVIDENCE IN THE FEDERAL COURTS (Appdx. same manner as witnesses may be compelled to appear and testify in court. (R. S. § 863, U. S. Comp. St. § 1472.) Mode of taking depositions de bene esse — Every person deposing- as provided in the preceding section shall be cau- tioned and sworn to testify the whole truth, and carefully examined. His testimony shall be reduced to writing or typewriting by the officer taking the deposition, or by some person under his personal supervision, or by the deponent himself in the officer's presence, and by no other person, and shall, after it has been reduced to writing or typewrit- ing, be subscribed by the deponent. (R. S. § 864, amended Act May 23, 1900, c. 541, 31 Stat. 182, U. S. Comp. St. § 1473.) Transmission to the court of depositions de bene esse — Every deposition taken under the two preceding sections shall be retained by the magistrate taking it, until he deliv- ers it with his own hand into the court for which it is tak- en ; or it shall, together with a certificate of the reasons as aforesaid of taking it and of the notice, if any, given to the adverse party, be by him sealed up and directed to such court, and remain under his seal until opened in court. But unless it appears to the satisfaction of the court that the witness is then dead, or gone out of the United States, or to a greater distance than one hundred miles from the place where the court is sitting, or that, by reason of age, sick- ness, bodily infirmity, or imprisonment, he is unable to travel and appear at court, such deposition shall not be used in the cause. (R. S. § 865, U. S. Comp. St. § 1474.) Depositions under a dedimus potestatem and in perpetu- am — In any case where it is necessary, in order to prevent a failure or delay of justice, any of the courts of the United States may grant a dedimus potestatem to take depositions according to common usage; and any circuit court, upon application to it as a court of equity, may, according to the usages of chancery, direct depositions to be taken in per- petuam rei memoriam, if they relate to any matters that Appdx.) EVIDENCE IN THE FEDERAL COURTS 501 may be cognizable in any court of the United States. And the provisions of sections eight hundred and sixty-three, eight hundred and sixty-four, and eight hundred and six- ty-five, shall not apply to any deposition to be taken under the authority of this section. (R. S. § 866, U. S. Comp. St. § 1477.) Depositions in perpetuam; admissible at discretion of court — Any court of the United States may, in its discre- tion, admit in evidence in any cause before it any deposi- tion taken in perpetuam rei memoriam, which would be so admissible in a court of the State wherein such cause is pending, according to the laws thereof. (R. S. § 867, U. S. Comp. St. § 1478.) Deposition under dedimus potestatem; how taken — When a commission is issued by any court of the United States for taking the testimony of a witness named therein at any place within any district or Territory, the clerk of any court of the United States for such district or Territory shall, on the application of either party to the suit, or of his agent, issue a subpoena for such witness, commanding him to appear and testify before the commissioner named in the commission, at a time and place stated in the sub- poena ; and if any witness, after being duly served with such subpoena, refuses or neglects to appear, or, after ap- pearing, refuses to testify, not being privileged from giving testimony, and such refusal or neglect is proven to the sat- isfaction of any judge of the court whose clerk issues such subpoena, such judge may proceed to enforce obedience to the process, or punish the disobedience, as any court of the United States may proceed in case of disobedience to pro- cess of subpoena to testify issued by such court. (R. S. § 868, U. S. Comp. St. § 1479.) Subpoena duces tecum under a dedimus potestatem — When either party in such suit applies to any judge of a United States court in such district or Territory for a sub- poena commanding the witness, therein to be named, to •~>02 EVIDENCE IN THE FEDERAL COURTS (Appdx. appear and testify before said commissioner, at the time and place to be stated in the subpoena, and to bring with him and produce to such commissioner any paper or writing or written instrument or book or other document, supposed to be in the possession or power of such witness, and to be described in the subpoena, such judge, on being satisfied by the affidavit of the person applying, or otherwise, that there is reason to believe that such paper, writing, written instru- ment, book, or other document is in the possession or pow- er of the witness, and that the same, if produced, would be competent and material evidence for the party applying therefor, may order the clerk of said court to issue such subpoena accordingly. And if the witness, after being serv- ed with such subpoena, fails to produce to the commission- er, at the time and place stated in the subpoena, any such paper, writing, written instrument, book, or other docu- ment, being in his possession or power, and described in the subpoena, and such failure is proved to the satisfaction of said judge, he may proceed to enforce obedience to said process of subpoena, or punish the disobedience in like manner as any court of the United States may proceed in case of disobedience to like process issued by such court. When any such paper, writing, written instrument, book, or other document is produced to such commissioner, he shall, at the cost of the party requiring the same, cause to be made a correct copy thereof, or of so much thereof as shall be required by either of the parties. (R. S. § 869, U. S. Comp. St. § 1480.) Witness under a dedimus potestatem, when required to attend — No witness shall be required, under the provisions of either of the two preceding sections, to attend at any place out of the county where he resides, nor more than forty miles from the place of his residence, to give his dep- osition ; nor shall any witness be deemed guilty of con- tempt for disobeying any subpoena directed to him by vir- tue of either of the said sections, unless his fee for going Appdx.) EVIDENCE IN THE FEDERAL COURTS • r > ():> ' to, returning from, and one day's attendance at, the place of examination, are paid or tendered to him at the time of the service of the subpoena. (R. S. § 870, U. S. Comp. St. § 1481.) Letters rogatory from United States courts — When any commission or letter rogatory, issued to take the testimony of any witness in a foreign country, in any suit in which the United States are parties or have an interest, is executed by the court or the commissioner to whom it is directed, it shall be returned by such court or commissioner to the minister or consul of the United Stales nearest the place where it is executed. On receiving the same, the said minister or consul shall indorse thereon a certificate, stat- ing when and where the same was received, and that the said deposition is in the same condition as when he re- ceived it ; and he shall thereupon transmit the said letter or commission, so executed and certified, by mail, to the clerk of the court from which the same issued, in the man- ner in which his official dispatches are transmitted to the Government. And the testimony of witnesses so taken and returned shall be read as evidence on the trial of the suit in which it was taken, without objection as to the method of returning the same. When letters rogatory are address- ed from any court of a foreign country to any circuit court of the United States, a commissioner of such circuit court designated by said court to make the examination of the witnesses mentioned in said letters, shall have power to compel the witnesses to appear and depose in the same manner as witnesses may be compelled to appear and tes- tify in courts. (R. S. § 875, amended Act Feb. 27, 1877, c. 69, § 1, 19 Stat. 241, U. S. Comp. St. § 1486.) Witnesses; subpoenas; may run into another district — Subpoenas for witnesses who are required to attend a court of the United States, in any district, may run into any other district: Provided, That in civil causes the witness- es living out of the district in which the court is held do not 504 EVIDENCE IN THE FEDERAL COURTS (Appdx. live at a greater distance than one hundred miles from the place of holding the same. (R. S. § 876, U. S. Comp. St. § 1487.) Witnesses; subpoena; form; attendance under — Wit- nesses who are required to attend any term of a circuit or district court on the part of the United States, shall be subpoenaed to attend to testify generally on their behalf, and not to depart the court without leave thereof, or of the district attorney; and under such process they shall ap- pear before the grand or petit jury, or both, as they may be required by the court or district attorney. (R. S. § 877, U. S. Comp. St. § 1488.) ACT MARCH 9, 1892 (27 Stat. 7 [U. S. Comp. St. § 1476]). An act to provide an additional mode of taking depositions of witnesses in causes pending in the courts of the United States. Depositions; mode of taking — In addition to the mode of taking the depositions of witnesses in causes pending at law or equity in the district and circuit courts of the United States, it shall be lawful to take the depositions or testi- mony of witnesses in the mode prescribed by the laws of the State in which the courts are held. (Act March 9, 1892, c. 14, 27 Stat. 7, U. S. Comp. St. § 1476.) 7. THE HANDWRITING ACT ACT FEB. 26, 1913 (37 Stat. 683 [U. S. Comp. St. § 1471]). An Act relating to proof of signatures and handwriting. Comparison of handwriting — In any proceeding before a court or judicial officer of the United States where the gen- uineness of the handwriting of any person may be involved, any admitted or proved handwriting of such person shall be competent evidence as a basis for comparison by wit- nesses, or by the jury, court, or officer conducting such proceeding, to prove or disprove such genuineness. (Feb. 26, 1913, c. 79, 37 Stat. 683, U. S. Comp. St. § 1471.) Appdx.) FORMA PAUPERIS 505 S. SUITS IN FORMA PAUPERIS (27 Stat. 252, amended 36 Stat. 866 [U. S. Comp. St. § 1-626]) An Act to amend section one, chapter two hundred and nine of the United States Statutes at Large, volume twenty-seven, entitled ''An Act providing when plaintiff may sue as a poor person and when counsel shall be as- signed by the court," and to provide for the prosecution of writs of error and appeals in forma pauperis, and for other purposes. Suits by poor persons; prepayment of or security for fees or costs ; affidavit of poverty — Any citizen of the Unit- ed States entitled to commence or defend any suit or action, civil or criminal, in any court of the United States, may, upon the order of the court, commence and prosecute or de- fend to conclusion any suit or action, or a writ of error, or an appeal to the circuit court of appeals, or to the Su- preme Court in such suit or action, including all appellate proceedings, unless the trial court shall certify in writing that in the opinion of the court such appeal or writ of er- ror is not taken in good faith, without being required to prepay fees or costs or for the printing of the record in the appellate court or give security therefor, before or after bringing suit or action, or upon suing out a writ of error or appealing, upon filing in said court a statement under oath in writing that because of his poverty he is unable to pay the costs of said suit or action or of such writ of error or appeal, or to give security for the same, and that he be- lieves that he is entitled to the redress he seeks by such suit or action or writ of error or appeal, and setting forth briefly the nature of his alleged cause of action, or appeal. (Act July 20, 1892, c. 209, § 1, 27 Stat. 252, amended Act June 25, 1910, c. 435, 36 Stat. 866, U. S. Comp. St. § 1626.) 506 SUITS AGAINST UNITED STATES (Appdx. 9. CERTAIN ADMIRALTY SUITS AGAINST THE UNITED STATES [Public — No. 156 — 65th Congress.] [S. 3076.] An Act Authorizing suits against the United States in ad- miralty, suits for salvage services, and providing for the release of merchant vessels belonging to the United States from arrest and attachment in foreign jurisdictions, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That no vessel owned by the United States or by any corporation in which the United States or its representatives shall own the entire outstanding capital stock or in the possession of the United States or of such corporation or operated by or for the United States or such corporation, and no cargo own- ed or possessed by the United States or by such corporation, shall hereafter, in view of the provision herein made for a libel in personam, be subject to arrest or seizure by judicial process in the United States or its possessions: Provided, That this Act shall not apply to the Panama Railroad Com- pany. Sec. 2. That in cases where if such vessel were privately owned or operated, or if such cargo were privately owned and possessed, a proceeding in admiralty could be maintain- ed at the time of the commencement of the action .herein provided for, a libel in personam may be brought against the United States or against such corporation, as the case may be, provided that such vessel is employed as a merchant vessel or is a tug boat operated by such corporation. Such suits shall be brought in the district court of the United States for the district in which the parties so suing, or any of them, reside or have their principal place of business in the United States, or in which the vessel or cargo charged with liabilitv is found. The libelant shall forthwith serve a Appdx.) SUITS AGAINST UNITED STATES 507 copy of his libel on the United States attorney for such dis- trict and mail a copy thereof by registered mail to the At- torney General of the United States, and shall file a sworn return of such service and mailing. Such service and mail- ing shall constitute valid service on the United States and such corporation. In case the United States or such corpo- ration shall file a libel in rem or in personam in any district, a cross-libel in personam may be filed or a set-off claimed against the United States or such corporation with the same force and effect as if the libel had been filed by a private party. Upon application of either party the cause may, in the discretion of the court, be transferred to any other dis- trict court of the United States. Sec. 3. That such suits shall proceed and shall be heard and determined according to the principles of law and to the rules of practice obtaining in like cases between private parties. A decree against the United States or such corpo- ration may include costs of suit, and when the decree is for a money judgment, interest at the rate of 4 per centum per annum until satisfied, or at any higher rate which shall be stipulated in any contract upon which such decree shall be based. Interest shall run as ordered by the court. Decrees shall be subject to appeal and revision as now provided in other cases of admiralty and maritime jurisdiction. If the libelant so elects in his libel the suit may proceed in accord- ance with the principles of libels in rem wherever it shall appear that had the vessel or cargo been privately owned and possessed a libel in rem might have been maintained. Elec- tion so to proceed shall not preclude the libelant in any prop- er case from seeking relief in personam in the same suit. Neither the United States nor such corporation shall be re- quired to give any hond or admiralty stipulation on any pro- ceeding brought hereunder. Any such bond or stipulation heretofore given in admiralty causes by the United States, the United States Shipping Board, or the United States Ship ping Board Emergency Fleet Corporation, shall become void 508 SUITS AGAINST UNITED STATES (Appdx. and be surrendered and canceled upon the filing of a sug- gestion by the Attorney General or other duly authorized law officer that the United States is interested in such cause, and assumes liability to satisfy any decree included within said bond or stipulation, and thereafter any such decree shall be paid as provided in section 8 of this Act. Sec. 4. That if a privately owned vessel not in the pos- session of the United States or of such corporation is ar- rested or attached upon any cause of action arising or al- leged to have arisen from previous possession, ownership, or operation of such vessel by the United States or by such cor- poration, such vessel shall be released without bond or stip- ulation therefor upon the suggestion by the United States, through its Attorney General or other duly authorized law officer, that it is interested in such cause, desires such re- lease, and assumes the liability for the satisfaction of any decree obtained by the libelant in such cause, and thereafter such cause shall proceed against the United States in ac- cordance with the provisions of this Act. Sec. 5. That suits as herein authorized may be brought only on causes of action arising since April 6, 1917, provided that suits based on causes of action arising prior to the tak- ing effect of this Act shall be brought within one year after this Act goes into effect; and all other suits hereunder shall be brought within two years after the cause of action arises. Sec. 6. That the United States or such corporation shall be entitled to the benefits of all exemptions and of all limi- tations of liability accorded by law to the owners, charterers, operators, or agents of vessels. Sec. 7. That if any vessel or cargo within the purview of sections 1 and 4 of this Act is arrested, attached, or other- wise seized by process of any court in any country other than the United States, or if any suit is brought therein against the master of any such vessel for any cause of action aris- ing from, or in connection with, the possession, operation, or ownership of any such vessel, or the possession, carriage, Appdx.) SUITS AGAINST UNITED STATES 509 or ownership of any such cargo, the Secretary of State of the United States in his discretion, upon the request of the Attorney General of the United States, or any other officer duly authorized by him, may direct the United States con- sul residing at or nearest the place at which such action may have been commenced to claim such vessel or cargo as im- mune from such arrest, attachment, or other seizure, and to execute an agreement, undertaking, bond, or stipulation for and on behalf of the United States, or the United States Shipping Board, or such corporation as by said court re- quired, for the release of such vessel or cargo, and for the prosecution of any appeal; or may, in the event of such suits against the master of any such vessel, direct said United States consul to enter the appearance of the United States, or of the United States Shipping Board, or of such corpora- tion, and to pledge the credit thereof to the payment of any judgment and cost that may be entered in such suit. The Attorney General is hereby vested with power and authority to arrange with any bank, surety company, person, firm, or corporation in the United States, its Territories and pos- sessions, or in any foreign country, to execute any such afore- said bond or stipulation as surety or stipulator thereon, and to pledge the credit of the United States to the indemnifica- tion of such surety or stipulator as may be required to secure the execution of such bond or stipulation. The presentation of a copy of the judgment roll in any such suit, certified by the clerk of the court and authenticated by the certificate and seal of the United States consul claiming such vessel or cargo, or his successor, and by the certificate of the Secre- tary of State as to the official capacity of such consul, shall be sufficient evidence to the proper accounting officers of the United States, or of the United States Shipping Board, or of such corporation, for the allowance and payment of such judgments: Provided, however, That nothing in this sec- tion shall be held to prejudice or preclude a claim of the im- jIO suits against united states (Appdx. munity of such vessel or cargo from foreign jurisdiction in a proper case. Sec. 8. That any final judgment rendered in any suit herein authorized, and any final judgment within the purview of sections 4 and 7 of this Act, and any arbitration award or settlement had and agreed to under the provisions of sec- tion 9 of this Act, shall, upon the presentation of a duly authenticated copy thereof, be paid by the proper accounting officers of the United States out of any appropriation or insurance fund or other fund especially available therefor ; otherwise there is hereby appropriated, out of any money in the Treasury of the United States not otherwise appropri- ated, a sum sufficient to pay any such judgment or award or settlement. Sec. 9. That the Secretary of any department of the Government of the United States, or the United States Ship- ping Board, or the board of trustees of such corporation, having control of the possession or operation of any merchant vessel are, and each hereby is, authorized to arbitrate, com- promise, or settle any claim in which suit will lie under the provisions of sections 2, 4, 7, and 10 of this Act. Sec. 10. That the United States, and the crew of any merchant vessel owned or operated by the United States, or such corporation, shall have the right to collect and sue for salvage services rendered by such vessel and crew, and any moneys recovered therefrom by the United States for its own benefit, and not for the benefit of the crew, shall be cov- ered into the United States Treasury to the credit of the department of the Government of the United States or of the United States Shipping Board, or of such corporation, having control of the possession or operation of such vessel. Sec. 11. That all moneys recovered in any suit brought by the United States on any cause of action arising from, or in connection with, the possession, operation, or ownership of any merchant vessel, or the possession, carriage, or owner- ship of any cargo, shall be covered into the United States Appdx.) ADMIRALTY RULES 511 Treasury to the credit of the Department of the Government of the United States, or of the United States Shipping Board, or of such aforesaid corporation, having control of the ves- sel or cargo with respect to which such cause of action arises, for reimbursement of the appropriation, or insurance fund, or other funds, from which the loss, damage, or com- pensation for which said judgment was recovered has been or will be paid. Sec. 12. That the Attorney General shall report to the Congress at each session thereof the suits under this Act in which final judgment shall have been rendered for or against the United States and such aforesaid corporation, and the Secretary of any department of the Government of the United States, and the United States Shipping Board, and the board of trustees of any such aforesaid corporation, shall likewise report the arbitration awards or settlements of claims which shall have been agreed to since the previous session, and in which the time to appeal shall have expired or have been waived. Sec. 13. That the provisions of all other Acts inconsistent herewith are hereby repealed. Approved, March 9, 1920. 10. THE ADMIRALTY RULES OF PRACTICE (29 Sup. Ct. xxxix) (The Captions are Added for Convenience of Reference.) Rules of Practice for the Courts of the United States in Admiralty and Maritime Jurisdiction, on the Instance Side of the Court, in Pursuance of the Act of the 23d of August, 1842, chapter 188. 1. [Process on filing libel.] No mesne process shall is- sue from the District Courts in any civil cause of admiralty and maritime jurisdiction until the libel, or libel of informa- tion, shall be filed in the clerk's office from which such pro- cess is to issue. All process shall be served by the marshal or by his deputy, or, where he or they are interested, by 512 ADMIRALTY RULES (Appdx. some discreet and disinterested person appointed by the court. 2. [Process in suits in personam.] In suits in personam, the mesne process may be by a simple warrant of arrest of the person of the defendant, in the nature of a capias, or by a warrant of arrest of the person of the defendant, with a clause therein, that if he cannot be found, to attach his goods and chattels to the amount sued for, or if such prop- erty cannot be found, to attach his credits and effects to the amount sued for in the hands of the garnishees named therein; or by a simple monition, in the nature of a sum- mons to appear and answer to the suit, as the libellant shall, in his libel or information, pray for or elect. 3. [Bail in suits in personam.] In all suits in personam, where a simple warrant of arrest issues and is executed, the marshal may take bail, with sufficient sureties, from the par- ty arrested, by bond or stipulation, upon condition that he will appear in the suit and abide by all orders of the court, interlocutory or final, in the cause, and pay the money awarded by the final decree rendered therein in the court to which the process is returnable, or in any appellate court. And upon such bond or stipulation summary process of execution may and shall be issued against the principal and sureties by the court to which such process is returnable, to enforce the final decree so rendered, or upon appeal by the appellate court. 4. [Bond in attachment suits in personam.] In all suits in personam, where goods and chattels, or credits and ef- fects, are attached under such warrant authorizing the same, the attachment may be dissolved by order of the court to which the same warrant is returnable, upon the defendant whose property is so attached giving a bond or stipula- tion, with sufficient sureties, to abide by all orders, inter- locutory or final, of the court, and pay the amount awarded by the final decree rendered in the court to which the process is returnable, or in any appellate court; and upon Appdx.) ADMIRALTY RULES 513 such bond or stipulation, summary process of execution shall and may be issued against the principal and sureties by the court to which such warrant is returnable, to enforce the final decree so rendered, or upon appeal by the appel- late court. 5. [Bonds — Before whom given.] Bonds or stipulations in admiralty suits may be given and taken in open court, or at chambers, or before any commissioner of the court who is authorized by the court to take affidavits of bail and depositions in cases pending before the court, or any com- missioner of the United States authorized hy law to take bail and affidavits in civil cases. 6. [Reduction of bail — New sureties.] In all suits in per- sonam, where bail is taken, the court may, upon motion, for due cause shown, reduce the amount of the sum contained in the bond or stipulation therefor ; and in all cases where a bond or stipulation is taken as bail, or upon dissolving an attachment of property as aforesaid, if either of the sure- ties shall become insolvent pending the suit, new sureties may be required by the order of the court, to be given, upon motion, and due proof thereof. 7. [When special order necessary for warrant of arrest.] In suits in personam, no warrant of arrest, either of the per- son or property of the defendant, shall issue for a sum exceeding five hundred dollars, unless by the special order of the court, upon affidavit or other proper proof showing the propriety thereof. 8. [Monition to third parties in suits in rem.] In all suits in rem against a ship, her tackle, sails, apparel, furniture, boats, or other appurtenances, if such tackle, sails, apparel, furniture, boats, or other appurtenances are in the posses- sion or custody of any third person, the court may, after a due monition to such third person, and a hearing of the cause, if any, why the same should not be delivered over, award and decree that the same be delivered into the cus- Hughes,Adm.(2d Ed.)— 33 ."14 ADMIRALTY RULES (App&X. tody of the marshal or other proper officer, if, upon the hear- ing, the same is required by law and justice. 9. [Process in suits in rem.] In all cases of seizure, and in other suits and proceedings in rem, the process, unless otherwise provided for by statute, shall be by a warrant of arrest of the ship, goods, or other thing to be arrested ; and the marshal shall thereupon arrest and take the ship, goods, or other thing into his possession for safe custody and shall cause public notice thereof and of the time assigned for the return of such process and the hearing of the cause, to be given in such newspaper within the district as the district court shall order; and if there is no newspaper published therein, then in such other public places in the district as the court shall direct. 10. [Perishable goods — How disposed of.] In all cases where any goods or other things are arrested, if the same are perishable, or are liable to deterioration, decay, or in- jury, by being detained in custody pending the suit, the court may, upon the application of either party, in its dis- cretion, order the same or so much thereof to be sold as shall be perishable or liable to depreciation, decay, or injury ; and the proceeds, or-so much thereof as shall be a full se- curity to satisfy in decree, to be brought into court to abide the event of the suit; or the court may, upon^the appli- cation of the claimant, order a delivery thereof to him, upon a due appraisement, to be had under its direction, either up- on the claimant's depositing in court so much money as the court shall order, or upon his giving a stipulation, with sure- ties, in such sum as the court shall direct, to abide by and pay the money awarded by the final decree rendered by the court, or the appellate court, if any appeal intervenes, as the one or the other course shall be ordered by the court. 11. [Ship — How appraised or sold.] In like manner, where any ship shall be arrested, the same may, upon the application of the claimant, be delivered to him upon a due appraisement, to be had under the direction of the court, Appdx.) ADMIRALTY RULES 515 upon the claimant's depositing in court so much money as the court shall order, or upon his giving a stipulation, with sureties, as aforesaid ; and if the claimant shall decline any such application, then the court may, in its discretion, upon the application of either party, upon due cause shown, or- der a sale of such ship, and the proceeds thereof to be brought into court or otherwise disposed of, as it may deem most for the benefit of all concerned. 12. [Material-men — Remedies.] In all suits by material- men for supplies or repairs, or other necessaries, the libel- lant may proceed against the ship and freight in rem, or against the master or owner alone in personam. 13. [Seamen's wages — Remedies.] In all suits for mar- iners' wages, the libellant may proceed against the ship, freight, and master, or against the ship and freight, or against the owner or the master alone in personam. 14. [Pilotage — Remedies.] In all suits for pilotage the libellant may proceed against the ship and master, or against the ship, or against the owner alone or the master alone in personam. 15. [Collision — Remedies.] In all suits for damage by collision, the libellant may proceed against the ship and master, or against the ship alone, or against the master or the owner alone in personam. 16. [Assault or beating — Remedies.] In all suits for an assault or beating on the high seas, or elsewhere within the admiralty and maritime jurisdiction, the suit shall be in per- sonam only. 17. [Maritime hypothecation — Remedies.] In all suits against the ship or freight, founded upon a mere maritime hypothecation, either express or implied, of the master, for moneys taken up in a foreign port for supplies or repairs or other necessaries for the voyage, without any claim of marine interest, the libellant may proceed either in rem or against the master or the owner alone in personam. 18. [Bottomry bonds— Remedies.] In all suits on bot- 516 ADMIRALTY RULES (Appdx. tomry bonds, properly so called, the suit shall be in rem only against the property hypothecated, or the proceeds of the property, in whosesoever hands the same may be found, unless the master has, without authority, given the bottom- ry bond, or by his fraud or misconduct has avoided the same, or has subtracted the property, or unless the owner has, by his own misconduct or wrong, lost or subtracted the property, in which latter cases the suit may be in per- sonam against the wrong-doer. 19. [Salvage — Remedies.] In all suits for salvage, the suit may be in rem against the property saved, or the pro- ceeds thereof, or in personam against the party at whose request and for whose benefit the salvage service has been performed. 20. [Petitory or possessory suits.] In all petitory and possessory suits between part owners or adverse proprietors, or by the owners of a ship or the majority thereof, against the master of a ship, for the ascertainment of the title and delivery of the possession, or for the possession only, or by one or more part owners against the others to obtain secu- rity for the return of the ship from any voyage undertaken without their consent, or by one or more part owners against the others to obtain possession of the ship for any voyage, upon giving security for the safe return thereof, the process shall be by an arrest of the ship, and by a moni- tion to the adverse party or parties to appear and make an- swer to the suit. 21. [Execution on decrees.] In all cases of a final decree for the payment of money, the libellant shall have a writ of execution, in the nature of a fieri facias, commanding the marshal or his deputy to levy and collect the amount there- of out of the goods and chattels, lands and tenements, or other real estate, of the defendant or stipulators. 22. [Requisites of libel of information.] All informations and libels of information upon seizures for any breach of the revenue, or navigation, or other laws of the United Appdx.) ADMIRALTY RULES 517 States, shall state the place of seizure, whether it be on land or on the high seas, or on navigable waters within the ad- miralty and maritime jurisdiction of the United States, and the district within which the property is brought and where it then is. The information or libel of information shall also propound in distinct articles the matters relied on as grounds or causes of forfeiture, and aver the same to be contrary to the form of the statute or statutes of the United States in such case provided, as the case may require, and shall conclude with a prayer of due process to enforce the forfeiture, and to give notice to all persons concerned in interest to appear and show cause at the return-day of the process why the forfeiture should not be decreed. 23. [Requisites of libel in instance causes.] All libels in instance causes, civil or maritime, shall state the nature of the cause ; as, for example, that it is a cause, civil and maritime, of contract, or of tort or damage, or of salvage, or of possession, or otherwise, as the case may be; and, if the libel be in rem, that the property is within the district ; and, if in personam, the names and occupations and places of residence of the parties. The libel shall also propound and articulate in distinct articles the various allegations of fact upon which the libellant relies in support of his suit, so that the defendant may be enabled to answer distinctly and separately the several matters contained in each ar- ticle; and it shall conclude with a prayer of due process to enforce his rights, in rem or in personam (as the case may require), and for such relief and redress as the court is competent to give in the premises. And the libellant may further require the defendant to answer on oath all inter- rogatories propounded by him touching all and singular the allegations in the libel at the close or conclusion thereof. 24. [Amendments to libels.] In all informations and li- bels in causes of admiralty and maritime jurisdiction, amendments in matters of form may be made at any time, 518 ADMIRALTY RULES (Appdx. on motion to the court, as of course. And new counts may be filed, and amendments in matters of substance may be made, upon motion, at any time before the final decree, up- on such terms as the court shall impose. And where any defect of form is set down by the defendant upon special exceptions, and is allowed, the court may, in granting leave to amend, impose terms upon the libellant. 25. [Stipulation for costs by defendant.] In all cases of libels in personam, the court may, in its discretion, upon the appearance of the defendant, where no bail has been taken, and no attachment of property has been made to answer the exigency of the suit, require the defendant to give a stipulation, with sureties, in such sum as the court shall direct, to pay all costs and expenses which shall be awarded against him in the suit, upon the final adjudica- tion thereof, or by any interlocutory order in the progress of the suit. 26. [Claim — How verified.] In suits in rem, the party claiming the property shall verify his claim on oath or solemn affirmation, stating that the claimant by whom or on whose behalf the claim is made is the true and bona fide owner, and that no other person is the owner thereof. And, where the claim is put in by an agent or consignee, he shall also make oath that he is duly authorized thereto by the owner; or, if the property be, at the time of the arrest, in the possession of the master of a ship, that he is the lawful bailee thereof for the owner. And, upon putting in such claim, the claimant shall file a stipulation, with sureties, in such sum as the court shall direct, for the payment of all costs and expenses which shall be awarded against him by the final decree of the court, or, upon an appeal, by the ap- pellate court. 27. [Answer — Requisites of.] In all libels in causes of civil and maritime jurisdiction, whether in rem or in per- sonam, the answer of the defendant to the allegations in the libel shall be on oath or solemn affirmation ; and the answer Appdx.) ADMIRALTY RULES 519 shall be full and explicit, and distinct to each separate ar- ticle and separate allegation in the libel, in the same order as numbered in the libel, and shall also answer in like man- ner each interrogatory propounded at the close of the libel. 28. [Answer — Exceptions to.] The libellant may except to the sufficiency, or fullness, or distinctness, or relevancy of the answer to the articles and interrogatories in the libel ; and, if the court shall adjudge the same exceptions, or any of them, to be good and valid, the court shall order the de- fendant forthwith, within such time as the court shall di- rect, to answer the same, and may further order the de- fendant to pay such costs as the court shall adjudge rea- sonable. 29. [Default on failure to answer.] If the defendant shall omit or refuse to make due answer to the libel upon the return-day of the process, or other day assigned by the court, the court shall pronounce him to be in contumacy and default; and thereupon the libel shall be adjudged to be taken pro confesso against him, and the court shall pro- ceed to hear the cause ex parte, and adjudge therein as to law and justice shall appertain. But the court may, in its discretion, set aside the default, and, upon the application of the defendant, admit him to make answer to the libel, at any time before the final hearing and decree, upon his pay- ment of all the costs of the suit up to the time of granting leave therefor. 30. [Effect of failure to answer fully.] In all cases where the defendant answers, but does not answer fully and ex- plicitly and distinctly to all the matters in any article of the libel, and exception is taken thereto by the libellant, and the exception is allowed, the court may, by attachment, com- pel the defendant to make further answer thereto, or may direct the matter of the exception to be taken pro confesso against the defendant, to the full purport and effect of the article to which it purports to answer, and as if no answer had been put in thereto. 520 'admiralty rules (Appdx. 31. [What defendant may object to answering.] The de- fendant may object, by his answer, to answer any allega- tion or interrogatory contained in the libel which will ex- pose him to any prosecution or punishment for crime, or for any penalty or any forfeiture of- his property for any penal offense. 32. [Interrogatories in answer.] The defendant shall have a right to require the personal answer of the libellant upon oath or solemn affirmation to any interrogatories which he may, at the close of his answer, propound to the libellant touching any matters charged in the libel, or touch- ing any matter of defense set up in the answer, subject to the like exception as to matters which shall expose the libellant to any prosecution, or punishment, or forfeiture, as is provided in the thirty-first rule. In default of due an- swer by the libellant to such interrogatories the court may adjudge the libellant to be in default, and dismiss the libel, or may compel his answer in the premises, by attachment, or take the subject-matter of the interrogatory pro con- fesso in favor of the defendant, as the court in its discretion, shall deem most fit to promote public justice. 33. [How verification of answer to interrogatory obvi- ated.] Where either the libellant or the defendant is out of the country, or unable, from sickness or other casualty, to make an answer to any interrogatory on oath or solemn affirmation at the proper time, the court may, in its discre- tion, in furtherance of the due administration of justice, dis- pense therewith, or may award a commission to take the answer of the defendant when and as soon as it may be prac- ticable. 34. [How third party may intervene.] If any third per- son shall intervene in any cause of admiralty and maritime jurisdiction in rem for his own interest, and he is entitled, according to the course of admiralty proceedings, to be heard for his own interest therein, he shall propound the matter in suitable allegations, to which, if admitted bv the Appdx.) ADMIRALTY RULES 521 court, the other party or parties in the suit may be required, by order of the court, to make due answer; and such fur- ther proceedings shall be had and decree rendered by the court therein as to law and justice shall appertain. But every such intervenor shall be required, upon filing his al- legations, to give a stipulation, with sureties, to abide by the final decree rendered in the cause, and to pay all such costs and expenses and damages as shall be awarded by the court upon the final decree, whether it is rendered in the original or appellate court. 35. [How stipulation given by intervenor.] The stipu- lations required by the last preceding rule, or on appeal, or in any other admiralty or maritime proceeding, shall be given and taken in the manner prescribed by rule fifth as amended. 36. [Exceptions to libel.] Exceptions may be taken to any libel, allegation, or answer for surplusage, irrelevancy, impertinence, or scandal ; and if, upon reference to a mas- ter, the exception shall be reported to be so objectionable, and allowed by the court, the matter shall be expunged, at the cost and expense of the party in whose libel or an- swer the same is found. 37. [Procedure against garnishee.] In cases of foreign attachment, the garnishee shall be required to answer on oath or solemn affirmation as to the debts, credits, or ef- fects of the defendant in his hands, and to such interroga- tories touching the same as may be propounded by the libel- lant; and if he shall refuse or neglect so to do, the court may award compulsory process in personam against him. If he admits any debts, credits, or effects, the same shall be held in his hands, liable to answer the exigency of the suit. 38. [Bringing funds into court.] In cases of mariners' wages, or bottomry, or salvage, or other proceeding in rem, where freight or other proceeds of property are attached to or are bound by the suit, which are in the hands or possession 522 ADMIRALTY RULES (Appdx. of any person, the court may, upon clue application, by pe- tition of the party interested, require the party charged with the possession thereof to appear and show cause why the same should not be brought into court to answer the ex- igency of the suit ; and if no sufficient cause be shown, the court may order the same to be brought into court to an- swer the exigency of the suit, and upon failure of the party to comply with the order, may award an attachment, or oth- er compulsive process, to compel obedience thereto. 39. [Dismissal for failure to prosecute.] If, in any ad- miralty suit, the libellant shall not appear and prosecute his suit, according to the course and orders of the court, he shall be deemed in default and contumacy; and the court may, upon the application of the defendant, pronounce the suit to be deserted, and the same may be dismissed with costs. 40. [Reopening default decrees.] The court may, in its discretion, upon the motion of the defendant and the pay- ment of costs, rescind the decree in any suit in which, on account of his contumacy, and default, the matter of the libel shall have been decreed against him, and grant a re- hearing thereof at any time within ten days after the decree has been entered, the defendant submitting to such fur- ther orders and terms in the premises as the court may direct. 41. [Sales in admiralty.] All sales of property under any decree of admiralty shall be made by the marshal or his deputy, or other proper officer assigned by the court, where the marshal is a party in interest, in pursuance of the or- ders of the court; and the proceeds thereof, when sold, shall be forthwith paid into the registry of the court by the officer making the sale, to be disposed of by the court ac- cording to law. 42. [Funds in court registry.] All moneys paid into the registry of the court shall be deposited in some bank des- ignated by the court, and shall be so deposited in the name Appdx.) ADMIRALTY RULES 52:'. of the court, and shall not be drawn out, except by a check or checks signed by a judge of the court and countersigned by the clerk, stating on whose account and for whose use it is drawn, and in what suit and out of what fund in par- ticular it is paid. The clerk shall keep a regular book, con- taining a memorandum and copy of all the checks so drawn and the date thereof. 43. [Claims against proceeds in registry.] Any person having an interest in any proceeds in the registry of the court shall have a right, by petition and summary proceed- ing, to intervene pro interesse suo for delivery thereof to him; and upon due notice to the adverse parties, if any, the court shall and may proceed summarily to hear and de- cide thereon, and to decree therein according to law and justice. And if such petition or claim shall be deserted, or, upon a hearing, be dismissed, the court may, in its discre- tion, award costs against the petitioner in favor of the ad- verse party. 44. [Reference to commissioners.] In cases where the court shall deem it expedient or necessary for the purposes of justice, the court may refer any matters arising in the progress of the suit to one or more commissioners, to be appointed by the court, to hear the parties and make report therein. And such commissioner or commissioners shall have and possess all the powers in the premises which arc usually given to or exercised by masters in chancery in ref- erence to them, including the power to administer oaths to and to examine the parties and witnesses touching the premises. 45. [Appeals.] All appeals from the district to the Cir- cuit Court must be made while the court is sitting, or with- in such other period as shall be designated by the District Court by its general rules, or by an order specially made in the particular suit ; or in case no such rule or order be made, then within thirty days from the rendering of the decree. 524 ADMIRALTY RULES (Appdx. 46. [Right of trial courts to make rules of practice.] In all cases not provided for by the foregoing rules, the Dis- trict and Circuit Courts are to regulate the practice of the said courts respectively, in such manner as they shall deem most expedient for the due administration of justice in suits in admiralty. 47. [Bail — Imprisonment for debt.] In all suits in per- sonam, where a simple warrant of arrest issues and is ex- ecuted, bail shall be taken by the marshal and the court in those cases only in which it is required by the laws of the state where an arrest is made upon similar or analogous process issuing from the state court. And imprisonment for debt, on process issuing out of the admiralty court, is abolished, in all cases where, by the laws of the state in which the court is held, imprisonment for debt has been, or shall be hereafter abolished, upon similar or analogous process issuing from a state court. 48. [Answer in small claims.] The twenty-seventh rule shall not apply to cases where the sum or value in dispute does not exceed fifty dollars, exclusive of costs, unless the District Court shall be of opinion that the proceedings pre- scribed by that rule are necessary for the purposes of jus- tice in the case before the court. All rules and parts of rules heretofore adopted, inconsist- ent with this order, are hereby repealed and annulled. 49. [Further proof on appeal.] Further proof, taken in a Circuit Court upon an admiralty appeal, shall be by deposi- tion, taken before some commissioner appointed by a Cir- cuit Court, pursuant to the acts of Congress in that behalf, or before some officer authorized to take depositions by the thirtieth section of the act of Congress of the 24th of Sep- tember, 1789, upon an oral examination and cross-exami- nation, unless the court in which such appeal shall be pend- ing, or one of the judges thereof, shall, upon motion, allow a commission to issue to take such depositions upon writ- ten interrogatories and cross-interrogatories. When such Appdx.) ADMIRALTY RULES 525 deposition shall be taken by oral examination, a notifica- tion from the magistrate before whom it is to be taken, or from the clerk of the court in which such appeal shall be pending-, to the adverse party, to be present at the taking of the same, and to put interrogatories, if he think fit, shall be served on the adverse party or his attorney, allowing time for their attendance after being notified not less than twenty-four hours, and, in addition thereto, one day, Sun- days exclusive, for every twenty miles' travel: Provided, that the court in which such appeal may be pending, or ei- ther of the judges thereof, may, upon motion, increase or diminish the length of notice above required. 50. [Evidence on appeal.] When oral evidence shall be taken down by the clerk of the District Court, pursuant to the above-mentioned section of the act of Congress, and shall be transmitted to the circuit court, the same may be used in evidence on the appeal, saving to each party the right to take the depositions of the same witnesses, or ei- ther of them, if he should so elect. 51. [Issue on new facts in answer.] When the defend- ant, in his answer, alleges new facts, these shall be con- sidered as denied by the libellant, and no replication, gen- eral or special, shall be filed, unless allowed or directed by the court on proper cause shown. But within such time after the answer is filed as shall be fixed by the district court, either by general rule or by special order, the libel- lant may amend his libel so as to confess and avoid, or ex- plain or add to, the new matters set forth in the answer; and within such time as may be fixed, in like manner, the defendant shall answer such amendments. 52. [Record on appeal.] The clerks of the District Courts shall make up the records to be transmitted to the Circuit Courts on appeals, so that the same shall contain 'the following: 1. The style of the court. 526 ADMIRALTY RULES (Appdx. 2. The names of the parties, setting forth the original parties, and those who have become parties before the ap- peal, if any change has taken place. 3. If bail was taken, or property was attached or arrested, the process of the arrest or attachment and the service thereof; all bail and stipulations; and, if any sale has been made, the orders, warrants, and reports relating thereto. 4. The libel, with exhibits annexed thereto. 5. The pleadings of the defendant, with the exhibits an- nexed thereto. 6. The testimony on the part of the libellant, and any ex- hibits not annexed to the libel. 7. The testimony on the part of the defendant, and any exhibits not annexed to his pleadings. 8. Any order of the court to which exception was made. 9. Any report of an assessor or assessors, if excepted to, with the orders of the court respecting the same, and the exceptions to the report. If the report was not excepted to, only the fact that a reference was made, and so much of the report as shows what results were arrived at by the as- sessor, are to be stated. 10. The final decree. 11. The prayer for an appeal, and the action of the dis- trict court thereon ; and no reasons of appeal shall be filed or inserted in the transcript. The following shall be omitted : 1. The continuances. 2. All motions, rules, and orders not excepted to which are merely preparatory for trial. 3. The commissions to take depositions, notices therefor, their captions, and certificates of their being sworn to, un- less some exception to a deposition in the district court was founded on some one or more of these; in which case, so much of either of them as may be involved in the exception shall be set out. In all other cases it shall be sufficient to give the name of the witness and to copy the interrogate- Appdx.) ADMIRALTY RULES 527 ries and answers, and to state the name of the commissioner, and the place where and the date when the deposition was sworn to; and, in copying all depositions taken on inter- rogatories, the answer shall be inserted immediately follow- ing the question. 2. The clerk of the District Court shall page the copy of the record thus made up, and shall make an index thereto, and he shall certify the entire document, at the end thereof, under the seal of the court, to be a transcript of the record of the District Court in the cause named at the beginning of the copy made up pursuant to this rule ; and no other cer- tificate of the record shall be needful or inserted. 3. Hereafter, in making up the record to be transmitted to the circuit clerk on appeal, the clerk of the District Court shall omit therefrom any of the pleading, testimony, or exhibits which the parties by their proctors shall by writ- ten stipulation agree may be omitted ; and such stipulation shall be certified up with the record. 53. [Security on cross-libel.] Whenever a cross-libel is filed upon any counter-claim, arising out of the same cause of action for which the original libel was filed, the respond- ents in the cross-libel shall give security in the usual amount and form, to respond in damages, as claimed in said cross- libel, unless the court, on cause shown, shall otherwise di- rect; and all proceedings upon the original libel shall be stayed until such security shall be given. 54. [Limitation of liability — How claimed.] When any ship or vessel shall be libeled, or the owner or owners there- of shall be sued, for any embezzlement, loss, or destruction by the master, officers, mariners, passengers, or any other person or persons, of any property, goods, or merchandise shipped or put on board of such ship or vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture done, occasioned, or in- curred, without the privity or knowledge of such owner or owners, and he or thev shall desire to claim the benefit of 528 ADMIRALTY RULES (Appdx. limitation of liability provided for in the third and fourth sections of the act of March 3, 1851, entitled "An act to limit the liability of shipowners and for other purposes," now embodied in sections 4283 to 4285 of the Revised Stat- utes, the said owner or owners shall and may file a libel or petition in the proper District Court of the United States, as hereinafter specified, setting forth the facts and circum- stances on which such limitation of liability is claimed, and praying- proper relief in that behalf; and thereupon said court, having caused due appraisement to be had of the amount or value of the interest of said owner or owners, respectively, in such ship or vessel, and her freight, for the voyage, shall make an order for the payment of the same in- to court, or for the giving of a stipulation, with sureties, for payment thereof into court whenever the same shall be ordered ; or, if the said owner or owners shall so elect, the said court shall, without such appraisement, make an order for the transfer by him or them of his or their interest in such vessel and freight, to a trustee to be appointed by the court under the fourth section of said act ; and, upon com- pliance with such order, the said court shall issue a moni- tion against all persons claiming damages for any such embezzlement, loss, destruction, damage, or injury, citing them to appear before the said court and make due proof of their respective claims at or before a certain time to be named in said writ, not less than three months from the is- suing of the same ; and public notice of such monition shall be given as in other cases, and such further notice served through the post-office, or otherwise, as the court, in its discretion may direct ; and the said court shall also, on the application of the said owner or owners, make an order to restrain the further prosecution of all and any suit or suits against said owner or owners in respect of any such claim or claims. 55. [Proof of claims in limited liability procedure.] Proof of all claims which shall be presented in pursuance Appdx.) ADMIRALTY RULES 529 of said monition shall be made before a commissioner, to be designated by the court, subject to the right of any person interested to question or controvert the same ; and upon the completion of said proofs, the commissioners shall make re- port of the claims so proven, and upon confirmation of said report, after hearing any exceptions thereto, the moneys paid or secured to be paid into court as aforesaid, or the pro- ceeds of said ship or vessel and freight (after payment of costs and expense), shall be divided pro rata amongst the several claimants in proportion to the amount of their re- spective claims, duly proved and confirmed as aforesaid, saving, however, to all parties any priority to which they may be legally entitled. 56. [Defense to claims in limited liability procedure.] In- the proceedings aforesaid, the said owner or owners shall be at liberty to contest his or their liability, or the lia- bility of said ship or vessel for said embezzlement, loss, de- struction, damage, or injury (independently of the limitation of liability claimed under said act), provided that, in his or their libel or petition, he or they shall state the facts and cir- cumstances by reason of which exemption from liability is claimed; and any person or persons claiming damages as aforesaid, and who shall have presented his or their claim to the commissioner under oath, shall and may answer such libel or petition, and contest the right of the owner or own- ers of said ship or vessel, either to an exemption from lia- bility, or to a limitation of liability under the said act of Congress, or both. 57. [Courts having cognizance of limited liability proce- dure.] The said libel or petition shall be filed and the said proceedings had in any District Court of the United States in which said ship or vessel may be libeled to answer for any such embezzlement, loss, destruction, damage, or in- jury ; or, if the said ship or vessel be not libeled, then in the district court for any district in which the said owner or owners may be sued in that behalf. When the said ship or Hugiies,Adm.(2d Ed.)— 34 530 ADMIRALTY RULES (Appdx. vessel has not been libeled to answer the matters afore- said, and suit has not been commenced against the said owner or owners, or has been commenced in a district other than that in which the said ship or vessel may be, the said proceedings may be had in the district court of the dis- trict in which the said ship or vessel may be, and where it may be subject to the control of such court for the pur- poses of the case as hereinbefore provided. If the ship have already been libeled and sold, the proceeds shall represent the same for the purposes of these rules. 58. [Appeals in.] All the preceding rules and regula- tions for proceeding in cases where the owner or owners of a ship or vessel shall desire to claim the benefit of lim- itation of liability provided for in the act of Congress in that behalf, shall apply to the Circuit Courts of the United States where such cases are or shall be pending in said courts upon appeal from the District Courts. 59. [Right to bring in party jointly liable in collision case.] In a suit for damage by collision, if the claimant of anv vessel proceeded against, or any respondent proceeded against in personam, shall, by petition, on oath, presented before or at the time of answering the libel, or within such further time as the court may allow, and containing suitable allegations showing fault or negligence in any other vessel contributing to the same collision, and the particulars there- of, and that such other vessel or any other party ought to be proceeded against in the same suit for such damage, pray that process be issued against such vessel or party to that end, such process may be issued, and, if duly served, such suit shall proceed as if such vessel or party had been origi- nally proceeded against ; the other parties in the suit shall answer the petition; the claimant of such vessel or such new party shall answer the libel ; and such further proceed- ings shall be had and decree rendered by the court in the suit as to law and justice shall appertain. But every such petitioner shall, upon filing his petition, give a stipulation, Appdx.) ADMIRALTY RULES 531 with sufficient sureties, to pay to the libellant and to any claimant or new party brought in by virtue of such process, all such costs, damages, and expenses as shall be awarded against the petitioner by the court upon the final decree, whether rendered in the original or appellate court; and any such claimant or new party shall give the same bonds or stipulations which are required in like cases from parties brought in under process issued on the prayer of a libellant. TABLE OF CASES CITED [the figures refer to pages] A. A. Raven, 329. Abbie C. Stubbs, 366, 371. Acilia, 290. Acme, 311. Ada A. Kennedy, 272. Adams v. Island City, 135. Adelaide T. Carleton, 134. Admiral Gecille, 408. Adriatic, 282. Aeolus, 135. Agnella, 249. Aina, 383, 397. Aitcheson v„ Endlesa Chain Dredge, 106. Ajum v. Insurance Co., 62. Akaba, 134, 146. Akerblom v. Price, 139, 150. Alabama, 319. Alamo, 134. Alaska, 152, 229, 244. Alaska Banking & Safe Deposit Co. v. Maritime Ins. Co., 74. Alaska Packers' Ass'n v. Dom- enico, 24. Alice, 135. Aline, 3S5, 389, 393, 394, 39o. Allanwilde Transport Corpora- tion v. Vacuum Oil Co., 159. Allan & Flora, 293. Allen v. Canada, 135. Allen v. Mackay, 371. Alvira, 116. Alzena, 39. Amagansett, 266. Amelie, 334. America, 12S, 129, 318, 397. American, 279. American S. B. Co. v. Chase, 230. American Sugar Refining Co. v. Maddock, 163. American Sugar Refining Co. v. Rickinson, 192. Americana, 364. Amerique, 147. Amos D. Carver, 357. Amstel, 120. Amsterdam, 356. Anchoria, 404. Andalusia, 149. enico, Z4. Anuaiusw, j.**. . Alaska S S. Co. v. Inland Nav. i Andrews v. Essex Fire & Marine £! qo« I Tns P,o.. 22. 51. 68, 69. Co., 326. Albani, 28. Albano, 278. Albany, 419. Albergen, 28. Albert Dum-ois, 227, 239, 249, °91, 295, 314, 330. 356. Albion, The, 137, 200. Alcalde, 408. Alcazar, 153. Alexandria, 40. Algiers, 257, 258. Algol, 295. Alharabra, 175 Ins. Co., 22, 51, 68, 69. Angele, 143. Anglo-Argentine Live Stock & Produce Agency v. Temperley Shipping Co., 45. Anglo-Patagonian, 236. Anna. 134. Anne, 103, 131. Annie Faxon, 352, 362. Annie Lord, 151. Ann J. Trainer, 303. Antilla, 134. Apollo, 339. Appam, 156, 158. Hughes, Adm. (2d ET>.) ( 533 ) 534 CASES CITED [The figures refer to pages] Areturus, 391. Aid Coasters v. King, The, Si'. A. K. Dunlap, 107. Argentino, 32X. Argus, 322, 324. Ariadne, 419. Arkansas, 196. Armstrong County v. Clarion County, 323. Arrow, 288. Ashbourne, 130, 148. Ash ton, 284. Astor Trust Co. v. E. V. White & Co., 106. Astrakhan, 329. Atalanta, 20. Atchison, T. & S. F. R. Co. v. Har- old, 163. Athenian, 380. Atkins v. Fibre Disintegrating Co., 400. Atlantic, 206. Atlantic City, 130. Atlantic Mut. Ins. Co. v. Penin- sular & O. S. S. Co., 87, Atlantic Transport Co. v. Im- brovek. 217, 219. Atlantic Transport Co. of West Virginia v. Imbrovek. 120, 197, 217. Atlas, 317, 319. Atlee v. Northwestern Union Packet Co., 34, 203. Auvhenarden, 211.'. August Belmont. 410. An -ust Korff, 141, 265. Aurania, 278. 2S6. Aurelia, 266. Austro-American S. S. Co. v. Thomas, 210. Badger v. President, etc., of Bank of Cumberland, 3:::;. Bags of Binseed, 157. Bain, 122. Bain v. Sandusky Transp., Co. 201. Baker v. Bolton, 223. Bakei Standard, 14S. Ball v. Berwind, 203, 304. Balmoral S. S. Co. v. Marten. 91. Baltimore, 326, 330. Baltimore Steam Packet Co. v. Coastwise Transp. Co., 260. Banner, 312. Barber v. Lockwood, 405. Barker v. Janson, 84, 88. Barnard v. Adams, 43. Barnett & Record Co. v. Wine- man. 153. Barnstable, 415. Baron Napier, 207. Batehelder v. Insurance Co. of North America, 62. Bayonne, 312. Bay State, 249. B. C. Terry, 149. Beaconsfield, 282, 404. Bearse v. Ropes, 160. Beaver, 264. Bedeburn, 139. Bee, 200. Beecbdene, 213. Belgenland, 28, 250, 297. Bellanoch, 254. Belle of the Coast, 109. Bello Corrunes, 148. Belmont. 410. Belvidere, 28. Benares, 2S5, 293. Bendo, 298, 299. Benefactor. .'!7.';. Benjamin Noble, 342. Benner Line v. Pendleton, 187. Bennetts v. Brown, 176. Berkshire. 290. Bernard v. Hyne, 397. Bernicia, 257, 297. Bernina. The. 215, 227. Beryl, 207. Besse v. Hecht, 343. Biays v. Chesapeake Ins. Co., 85. Big Jim, 16. Bjolstad v. Pacific Coast S. S. Co., 234, 242. Black v. Ashley, 351. Blackheath, 203. Blackwall, 135, 404. Blaireau, 133. Blake v. Baltimore & C. S. S. Co. of Baltimore City, 134. Blue Bell, 291. Blue Jacket. 297, 299, 332. Boak v. Baden, The, 199. Bob Connell, 123. CASES CITED [The figures refer to pages] 535 Bogart v. John Jay, The, 20. Bold Buccleugh, 396. Bonanno v. Tweedie Trading Co., 174. Bonnah v. Lakeside S. S. Co., 281. Borden town, 366. Boston, 148. Boston Marine Ins. Co. v. Metro- politan Redwood Lumber Co., 363, 375. Botany Worsted Mills v. Knott, 192. Bougainville, 252. Bouker No. 2, 205, 276. Boulton v. Moore, 413. Bourgogne, 155. Boutin v. Rudd, 331. Bowker v. U. S., 412. Boyer, Ex parte, 13, 196. Boyne, 135. Brackett v. Hercules, 415. Bradie v. Maryland Ins. Co., 87. Bradley v. Corn Exchange, In- land Nav. & Fire Ins. Co., 398. Bradley v. Newsum, 159. Bradshaw v. Sylph, 336. Braisted v. Denton, 22. Bramble v. Culmer, 167. Branchelow S. S. Co. v. Lamport, 175. Brand, 32S. Branston, 140. Breakwater, 277, 282, 294. Briggs & Cobb v. Barnett, 336, 343. Brigham v. Luckenbach, 257, 311. Bris, 159. Britain S. S. Co. v. King, The, 82. Britannia, 282, 283. British India Steam Nav. Co. v. Green, S2. British King, 192. British & Foreign S. S. Co. v. King, The, 81. Brittan v. Barnaby, 155, 157, 163. Broadmayne. 407. Brodie v. Howard, 338. Brooks v. Hilton-Dodge Lumber Co., 123. Brown v. Johnson, 175. Bruxelleville. 331. Bryan v. U. S., 134. Buck v. Chesapeake Ins. Co., 53, 56. Buena Ventura, 24. Bulgaria, 329. Bulkley v. Naumkeag Steam Cot- ton Co., 157, 163. Bullard v. Roger Williams Ins. Co., 61, 62. Bunker Hill, 206. Burke, 314. Burke v. Gulf, C. & S. F. R. Co., 347. Burke v. M. P. Rich, 404. Burley v. Compagnie de Naviga- tion Francaise, 36. Burnham v. China Mut. Ins. Co., 245. Burrows v. Gower, 251, 254. Butler v. Boston & S. S. S. Co., 238. 239, 241, 356, 375. Butterworth v. Washington, 135. Byrne v. Johnson, 153. Bywell Castle, 332. Cairo, 135. Caland, 254. Calbreath v. Gracy, 68. Calderon v. Steamsbip Co.. ISO. Caldy, 303. Caledonia, 49, 155, 172. Caledonian R. Co. v. Mulholland, 214. California Nav. & Imp. Co., In re, 1S7. Calyx, 137. Camanche, 134. 115. Cambria S. S. Co. v. Pittsburgh S. S. Co., 2S7. Camellia, 141. Campbell v. H. Hackfeld & Co., 216, 217. Candee v. 6S Bales of Cotton, 140. Canton Ins. Office v. Woodside, 52, 85. Cape Fear Towing & Transp. Co. v. Pearsall, 150, 408. Capitol Transp. Co. v. Cambria Steel Co., 352. Captain Weber, 419. Carbon Slate Co. v. Ennis, 170. Cardiff Hall, 318. Cargo ex Argos, 157. 536 CASES CITED [The figures refer to pages] Cargo ex Sarpedon, 146. Cargo of Fertilizer, 156. Cargo of Ulysses, 140. Carib Prince, 193. Caro, 299. Carolina, 216. Carolina, C. & O. R. R. v. She waiter, 235, 236. Carrie, 140. Carroll, 332. Carter v. Brown, 221. Cassius, 157. Catalonia, 25. Catherine, 314. Catskill, 375. Cayo Bonito, 140. Cayuga, 277, 278, 329. Cayzer v. Carron Co., 312. Celtic Chief, 148. Celtic Monarch, 265. Centurion, 3121 Certain Logs of Mahogany, 156, Ceto, 285. C. F. Bielman, 138. Chadbourne v. Duncan, 333. Chamberlain v. Chandler, 215. Chandler v. Blogg, 246. Chappell v. Bradshaw, 352. Charles B. Sandford, 130. Charles Carter, 97. Charles E. Matthews, 303. Charles F. Perry, 22. Charles Hubbard, 332. Charlotte, 137. Chase v. McLean, 342. Chatham, 281. Chattahoochee, 187, 262, 314. Cheerful, 148. Chelentis v. Luckenbach S. S. Co., 112. 207, 232. Chicago, 276. Chicklade, 122. China, 33, 37. China Mut. Ins. Co. v. Ward, 53. Chioggia, 377. Church Cooperage Co. v. Pinkney, 173. Chusan, 106, 118. Cimbria, 107. Circassian, 400. Citta di Palermo, 100. City of Birmingham, 303. City of Brockton. 287. City of Camden, 52. City of Chester, 147. City of Clarksville, 351. City of Columbia, 141. City of Columbus, 356. City of Dundee, 39, 303. City of Hartford, 419. City of Lincoln, 331. City of Macon, 274. City of Manchester, 318. City of Milford. 102, 104. City of Norwich, 364, 306, 370, 371, 372. City of Panama, 210. City of Paris, 150. City of Philadelphia v. Gavagnin, 299. City of Puebla, 141, 151. City of Reading, 39, 303. City of Tawas, 377, 391, 397. C. J. Saxe, 389. Clandeboye, 148. Clara, 300. Clara Davidson, 293. Clarita, 103, 125, 131, 140, 300. Clark v. Protection Ins. Co., 68. Clarke v. Coal Co., 226. Clarke v. Dodge Healy, 410. Claus v. Steamship Co., 212. Cleveland, 408. Cleveland, T. & V. R. Co. v. Cleve- land S. S. Co., 198. Cleveland & B. Transit Co. v. In- surance Co. of North America, 63. Clifford v. Hunter, 60. Cline v. Western Assur. Co., 246. Clutha Boat. 291. Clydach, 289, 291. Clyde Commercial S. S. Co. v. West India S. S. Co., 167. Clyde Nav. Co. v. Barclay, 297. Coast Wrecking Co. v. Phoenix Ins. Co., 51. Coburn v. Factors' & Traders' Ins. Co., 106. Cochran. 198. Coe F. Young, 2S3. Collin v. Jenkins, 406. Conn v. Davidson, 172. Coleman v. Aiken, 130. Colima, 189, 356, 360. Colon, 145, 213. CASES CITED [The figures refer to pages] 537 Colorado, 263, 264. Columbia, 265, 29S, 367, 409. Columbia Ins. Co. v. Ashby, 42. Columbia Ins. Co. v. Catlett, (j.j. Columbian, 2S3. Columbus, 311. Colusa, 207. Comet, 138. Commander in Cbief, 404. Compagnie de Navigation Fran- ca ise v. Bur ley, 36. Compagnie Maritime Francaise v. Meyer, 187. Compania de Navigation La Flecba v. Brauer, 78, 166. Concordia, 295. Coney Island, 129. Connemara, 135, 140, 141, 149. Conqueror, 329. Consolidated Coal Co. v. Knick- erbocker Steam Towage Co., 130. Consolidated Coastwise Co. v. Conley, 212. Constable, Case of, 197, 220. Constable v. National S. S. Co., 160. Contino v. Wilmington Steam- boat Co., 215. Conveyor, 386. Convoy, 108. Cooley v. Board of Wardens of Port of Philadelphia, 32, 33, 36. Cooper v. Reynolds, 401. Cope v. Vallette Dry-Dock Co. of New Orleans, 14, 136. Copelin v. Phoenix Ins. Co., 93. Cora P. White, 106. Cornfoot v. Assurance Corpora- tion, 74. Corrado v. Pedersen, 207. Corsair, 229, 236, 244, 246, 401, 402. Corsar v. Spreckels, 192. Corsica Transit Co. v. W. S. Moore Grain Co., 112, 118. Cory v. Patton, 5S. Coxe Bros. & Co. v. Cunard S. S. Co., 310. Coyne v. Caples, 338, 339. Craig v. Continental Ins. Co., 353, 354, 363. Craig v. U. S. Ins. Co., 68. Crawford Bros. No. 2, 16. C. R. Hoyt, 316. Crocker v. Jackson, 66. Cromwell, 125. Crossmau v. Burrill, 178. Crow v. Myers, 174, 176. Crown of Castile, 415. C. R. Sheffer, 161. C. S. Holmes, 205. Culliford v. Gomila, 170. Cunard S. S. Co. v. Kelley, 193. Curran, 265. Currie v. Bombay Native Ins. Co., 88. Cu suing v. Laird, 403. Cushman v. Ryan, 409. C. Vanderbilt, 22. C. W. Mills, 125, 129. Cygnet, 190. Dailey v. New York, 415. Dallington, 37. Dan, 161. Dan Brown, 394. Daniel Ball, The , 12. Daniel Kaine, 336, 337. Daniel Steinman, 145. Dantzler Lumber Co. v. Church- ill, 174. Darling v. Raebum, 176. Darlington v. Turner, 419. Dauntless, 290. David Crockett, 262. Davidson v. Baldwin, 344. Davidson v. Hull, 242. Davis 153, 401. Davis v. Smokeless Fuel Co., 413. Davison v. Von Lingen, 169, 173. Daylesford, 221. Daylight, 415. De Bay, 143. Dedekam v. Vose, 413. Degama, 12S. Delaware, 1S4, 247, 2S3. Delaware Mut. Safety Ins. Co. v. Gossler, 84, 96. Delmar, 281. De Lovio v. Boit, 19, 51. Deslions v. La Compagnie Gen- erale Transatlantiquc, 347, 363, 365, 371. 538 CASES CITED [The figures refer to pages] Des Moines, 327. Des Moines & M. R. Co., Ex parte, 412. De Vaux v. Salvador. 76. Devonshire, 128. De Wolf v. Harris, 334. Dexter, 269. Dexter v. Arnold, 409. Diamond, 349. Diana, 275. Dias v. Revenge, 103. Dibble v. Morgan, 165. Director, 300. Disney v. Furness, Withy & Co., 16S, 174. Dobell v. Steamship Rossmore Co., 191. Dode, 398. Dole v. New England Mut. Mar- ine Ins. Co., 82. Domenico v. Alaska Packers' Ass'n, 24. Donnell v. Boston Towboat Co., 279. Doolittle v. Knobeloch, 21. Dora, 380, 384, 3S5. Dora Allison, 34. Dordogne. 264. Doris, 129. Dorrington v. Detroit, 14S. 199. Doughertv v. Thompson-Lockhart Co., 205. Douse v. Sargent, 354. Drill Boat No. 4, 304. Dudgeon v. Pembroke, 63. Due d'Aumale, 140. Duff v. McKenzie, 85. Dunbritton, 189. Dupleix, 402. Dupont de Nemours v. Vance, 50. Dutton v. Express, The. 128. Dwver v. National S. S. Co., 212. E Ends v. H. D. Bacon, 134, 409. Eagle Point, 318. E. A. Packer, 277. Earl v. Lubbock, 213. Earnwood, 190. E. A. Shores. Jr.. 188. Eastern Dredging Co., In re, 325. Eastern S. S. Corporation v. Great Lakes Dredge & Dock Co., 364. Eastern Transp. Line v. Hope, 129. Eastfield S. S. Co. v. McKeon, 404. Eastland. 405. Easton, Ex parte, 11, 22. Eclipse, 340, 400, 403. Edam, 14.".. Edith, 392. 415. Edith L. Allen, 146. Edmund Moran, 311, 312. Edward Hines Lumber Co. v. Chamberlain. 158. Edward R. West. 205. Edwards v. Elliott, 117, 232. Egbert v. St. Paul Fire & Marine Ins. Co., 76. Egypt, 143, 351. Elder Dempster Shipping Co. v. Pouppirt, 212. Electron, 116, 118. Elfrida, 8, 150. El in. 389. Eliza B. Emory, 340. Eliza Jane, 106. Elizabeth Jones, 332. Elk, 298. Ella. 102. 106. Ellen Holgate, 104, 109. Elleric, 211. Ellis v. U. S., 24. Ellora, 137. Elton, 213. E. Luckenbach, 281. Elvers v. W. R. Grace & Co., 17S. Emily B. Maxwell. 283. Emily B. Souder, 105, 107, 124. Emma B., 339. Emmv Haase. 285. E. M. Peck, 311. Empire State, 283. Energy, 131. England, 339. Enterprise, 130. Erastina, 131. Ereza, 147. Erie Lighter. 860, 364. 367. Erie R. Co. v. Erie & W. Transp. Co., 325. Erinagh, 22. Finest A. Hamill, 327. CASES CITED [The figures refer to pages] 539 Escanaba, 387, 391. Esparta, 274. Essequibo, 257. Ester, 28. Ethel, 402. Ethelstan, 374. Etona, 192. Eugene, 22. Eugene F. Moran v. New York Cent. & H. R. R. Co., 125, 318, 367. Eureka, 104. Europa, 283. Europe, 300, 303, 328. Evangel, 414. Evans v. New York & P. S. S. Co., 415. Evans v. Western Timber & Log- ging Co., 203. Evolution, 389. Excelsior, 258, 283. Fort Wayne, 380, 393. Fosdick v. Schall, 109. Foster v. Merchants' & Miners' Transp. Co., 254. Francis, 104. Frank G. Fowler, 394. Frank S. Hall, 318. Frankland, 314, 323. Frazer v. Cuthbertson, 338, 343. Frazier v. Luckenbacb. 213. Fredericka Schepp, 338. Free State, 279. Fretz v. Bull, 404. Frey, 189. Frontier S. S. Co. v. Central Coal Co., 160. Fullerton, 419. Furnessia, 212. Fyenoord, 249. Fabre v. Cunard S. S. Co., 326. Fairgrieve v. Marine Ins. Co., 92 Fairport, 143. Falcke v. Insurance Co., 133. Fancy, 278. Fannie, 280. Fannie Brown, 137, 145. Fannie Hayden, 298. Fargrove Nav. Co. v. Lavino & Co., 176. Farragut. 297. Fassett, Ex parte, 216. Favorita, 249. Felice B., 3S3. Fern Holme, 53. F. H. Stanwood, 3S9. 50,000 Feet of Timber, In re, 135. F. I. Merryman, 135. Finch, 197. Fireman's Fund Ins. Co. v. Globe Nav. Co., 62, 84, 87. Fisher v. Sybil, 135. Fisk v. New York, 329. Fitzgerald, 191. Flora Rodgers, 147. Florence, 138. Flottbek, 135. Flower v. Bradley, 40. Forshaw v. Ghabut, 60. Fortuna, 22. 109. Gabrielson v. Waydell, 206. Gaffner v. Pigott, 287. G. A. Flagg, 407. Galatea, 275. Gallatin v. Pilot, 341. Gamma, 276. Garcia y Leon v. Galceran, 111. Garden City, 318. Gardner v. Ninety-Nine Gold Coins, 147. Garnett, Ex parte, 115, 117, 237. Garnett, In re, 12, 354. Gas Float Whitton Case, 136. Gas Float Whitton No. 2, 16, 17. Gate City, 281, 282. Gazelle, 170, 175. Geisha, 109. Gemma, 402. General Cass, 15. General Jackson, 106. General Mut. Ins. Co. v. Sher- wood, 76. General Palmer, 149. General Smith, 99, 110, 115. General TJ. S. Grant, 283. Genesee Chief, The, 11, 237. George Bell, 262, 327. Geo. F. Randolph, 265. Geo. L. Garlick, 365. George T. Kemp. 120. George W. Cbilds, 299. George W. Elder, 251. 540 CASES CITED [The figures refer to pages] George W. Elzey, 148. George W. Roby, 270, 314, 327. Georgia, 109. Georgiana, 13S. Germanic, 1S9, 218. G. H. Starbuck, 103. Gibson, 151. Gibson v. Small, 62. Gilbert Knapp, 120. Gilbraith v. Stewart Transp. Co., 138. Gilchrist v. Chicago Ins. Co., 87, 93. Gilchrist Transp. Co. v. Boston Ins. Co., 190. Gilchrist Transp. Co. v. 110,000 Bushels of No. 1 Northern Wheat, 151. Giles Loring, 357, 365, 371. Giuseppe v. Manufacturers' Ex- port Co., 169. Gladys, 251. Glaholm v. Barker, 356, 375. Glannibanta, 296. Glendale, 244, 419. Glenfruin, 151. Glengariff, 290, 291. Glengyle, 145. Glen Island, 394. Glenmavis, 164. Glide, 111, 231, 421. Globe S. S. Co. v. Moss, 205. Gokey v. Fort, 353, 357, 365, 367. Golcar S. S. Co. v. Tweedie Trading Co., 187. Goodrich Transp. Co. v. Gagnon, 355. Gordon, Ex parte, 228. Gordon v. Drake, 201. Gormley v. Thompson-Lockhart Co., 168. Gould v. Stanton, 339. Gould v. U. S. 134. Governor, 206. Gov. Ames, 148, 273. Grace Girdler, 310. Grace Seymour, 272. Gracie D. Chambers, 72, 159. Graham v. Oregon R. & Nav. Co., 20, 405. Grand Turk, 29. Granger v. Providence Washing- tun Ins. Co., 58. Grant v. Poillon, 400. Grapeshot, 94, 97, 108. Gratitude, 392. Gray's Harbor Tugboat Co. v. Petersen, 130. G. R. Booth, 77, 80, 165. Great Lakes Dredge & Dock Co. r In re, 330. Great Lakes Towing Co. v. Mills Transp. Co., 342. Great Pacific, 96. Great Western, 356, 365, 374. Great Western Ins. Co. v. Fo- garty, 85. Greely v. Tremont Ins. Co., 42. Greenock S. S. Co. v. Maritime Ins. Co., 60. Greenshields v. Stephens, 45, 49. Greenville, 415. Greta Holmfe, 329. Groves v. Volkart, 174. Guadeloupe, The, 192. Guffey Petroleum Co. v. Borison, 135. Guiding Star, 107, 116, 382. Guildhall, 164. Gulden v. Hijos, 189. Gulfport, 136. Gulf Stream, 323. Gulnare, 53, 75. Guy v. Donald, 34, 38, 39. Gypsum Prince, 419. H Hahlo v. Benedict, 169. Halcyon, 14S. Hall v. Chisholm, 409. Hall v. Nashville & C. R. Co., 92, Hambnrg-Amerikanische Pack- etfahrt Aktien Gesellschaft v. Gye, 236. Hamilton, 229, 242, 250, 327. Hamilton v. Pandorf, 166. Hammond v. Essex Fire & Ma- rine Ins. Co., 29. Haney v. Baltimore Steam-Pack- et Co., 298. Iiannington Court, 28. Hanson v. Haywood, 190. Hanson v. Waller, 216. Harmonides, 326. Harriot Ann, 106. CASES CITED [The figures refer to pages] 541 Co. Harrisburg, 228, 233. Harrison v. Fite, 12. Harrison v. Hughes, 34. Harry Hudson Smith, 362. Hart v. Pennsylvania B 164. Hartford, 249. Harvest Home, 125. Hathor, 38. Hatteras, 108, 131. Hattie M. Bain, 122. _ Haughton v. Empire Marine Ins. Co., 72. Havana, 111. Hawkins, In re, 421. Haxby, 198, 202. Hay v. Le Neve, 313. Hazard v. New England M. ins, Co., 55. 75. H. B. Foster, 125. H. C. Grady, 103. Head v. Amoskeag, 339. Hearne v. New England Mut. Marine Ins. Co., 64. Heaven v. Pender, 213. Hekla, 137. Heller v. Pendleton, 17o. Helme v. Smith, 343. Hendriek Hudson, The, 16. Hercules, 42, 106, 259, 29o, 298, 299, 307. Hermann, 328. Hermann v. Port Blakely Mill Co., 201. Hettie Ellis, 50. H. E. Willard, 400. Hezekiah Baldwin, 15. Highland Light, 228. Hill Mfg. Co. v. Providence & N. Y. S. S. Co., 359. Hills v. Leeds, 169. Hines Lumber Co. v. Chamber- lain, 158. Hiram B. Dixon, 109. Hispania, 311. Hobson v. Lord, 44. Hoffmans, 347. Hohl v. Norddeutscher Lloyd, 193. Hokendaqua, 288. Holmes v. Oregon & C. B. Co., 224. Holthe, 131. Homer Ramsdell Transp. Co. v. La Compagnie Generale Trans- atlantique, 37, 3S. Hooper v. Robinson, 52. Hope, 52, 386. Hoquiam, 207. Home v. George H. Hammond Co., 212. Hostetter v. Park, 156. Howard v. New York, 2S2. Howard v. 9,889 Bags of Malt, 412. Howard Fire Ins. Co. v. Norwich & N. Y. Transp. Co., 80, 82. H. P. Baldwin, 405. H. S. Pickands, 200. Hubbard v. Roach, 109. Hubgh v. New Orleans & C. R. Co., 223. Hudson, 321, 323, 415. Hugg v. Augusta Ins. & Banking Co., 84, 86, 158, 160. Hulthen v. Stewart, 176. Humarock, 150, 157. Humphreys v. Perry, 164. Hunter v. Parker, 334. Hydra, 295. I F. Chapman, 408. Illinois. 21, 279, 409. Ilos, 404. Imbrovek v. Hamburg-American Steam Packet Co., 217. Imperial, 129. Indiana Transp. Co., Ex parte, Indra Line v. Palmetto Phos- phate Co., 37, 265. Indrani, 192, 211, 212. Indrapura, 193. Ingram & Boyle, Ltd. v. Services Maritimes, 190, 348. International, 131. . International Nav. Co. v. British & Foreign Marine Ins. Co., 90, 91. International Nav. Co. v. Farr & Bailey Mfg. Co., 191. International Nav. Co. v. Insur- ance Co. of North America, 54. International Nav. Co. v. Lind- strom, 233, 242. 542 CASES CITED [The figures refer to pages! Iona, 178. lonides v. Pender, 59. Ionides v. Universal Marine Ins. Co., 81. Iredale v. China Traders' Ins. Co.. 45. Iris, 116. I rm a, 3S0. Iroquois, 206. Iroquois Transp. Co. v. Delaiiey Forge & Iron Co., 117. Irrawaddy, 49, 1S5. Isaac Allerton. 134, 149. Isaac H. Tillyer, 129. Isca, 128. Islander, 290. Itasca, 303. Ivanhoe, 249. I. W. Nicholas, 141. Jackson v. Insurance Co., 173. Jackson v. Julia Smith, 103. Jacobsen v. Dallas P. & A. Nav. Co., 317. Jahn v. Folmina, 163. Jakobsen v. Springer, 291, 295. James v. Brophy, 168. James A. Walsh. 278. James Bowen, 275. James G. Swan, 398. James II. Prentice, 106. James H. Shrigley, 24. James L. Morgan, 287. James T. Furber, 22. Jamestown, 275. Jaminet v. American Storage & Moving Co., 160. Jamison v. New York & P. S. S. Co., 164. Janet Court, 135, 147. Jansen v. Mines Co., 67. Jason. 42, 49. 1S6. Java, 209. 311. J. C. Pfluger, 124. J. Doherty, 108. 131. Joanie, 165, 173. Jebsen v. A Cargo of Hemp, 156. Jefferson, 136. Jeremiah, 394. Jersey City, 212. J. E. Rumbell, 30, 105, 115, 3S6. Jerusalem, 383. Jesmond, 285. Jewell, 152. J. G. Gilchrist, 287, 297, 330. J. L. Bowen, 134. J. M. Guffey Petroleum Co. v. Borison, 135. J. N. Gilbert, 311. Job H. Jackson, 303. John Bossert, 257. John G. Stevens, 387, 388, 389, 396. John H. Cannon, 50. John H. Pearson, 170. John H. Starin, 303. John I. Clark, 295. John J. Freitus, 386. John Pridgeon, Jr., 298. John R. Penrose, 330. John T. Williams. 391. John Twohy, 163. John Wesley, 134. Johnson v. Chicago & P. Elevator Co., 200. Johnson Lighterage Co. No. 24, 153. Joice v. Canal Boats Nos. 1,758 & 1.892, 415. Jones v. Andrews, 410. Jones v. Fell, 39. Jones v. Nicholson, 78. Jordan v. Warren Ins. Co., 86, 158. Joseph B. Thomas, 211. Joseph F. Clinton, 124. Joseph John, 211. Joseph Vaccaro, 39. J. P. Donaldson, 46. J. S. Warden, 24. Julia A. Trubee, 279. Julia Blake, 46, 98. Julia Luckenbach, 265. Jumna, 312. Juniata, 303. J. W. Tucker, 392, 397. K Kaffir Prince. 152. Kaiser Wilbelm der Grosse, 290. Kalorama, 102, 104. Karnak, 97. Kate, 103, 116, 1S9, 327. Kaupanger, 176. Kenilworth, 259. CASES CITED [The figures refer to pages] 54 :; Kennebec, 150. Kensington, 163, 164, 1ST. Kerr v. Union Marine Ins. Co., 58. Key City, 105. Keystone, 405. Khedive, 292, 314. Kia Ora, 134, 419. Kidston v. Empire Marine Ins. Co., 86. Killeena, 141. Kimberley, 134. Kingston, 292. Kirkwood v. Miller, 323. Kish v. Cory, 178. Knapp, Stout & Co. v. McCaff- rey, 131, 400. Knickerbocker Ice Co. v. Stewart, 209, 235. Knott v. Botany Worsted Mills, 1S7, 192. Koebel v. Saunders, 64. Koenigin Luise, 410. Kronprinzessin Cecilie, 173. Krnger v. Moel Tryvan S. S. Co., 178. Kuhnhold v. Conipagnie Gener- ate Transatlantique, 193. Kunkle Bros., 130. La Bourgogne, 242, 264, 301. Lackawanna, 153, 310. Lacy, Case of, 220. Lady of the Lake, 21. Lake Erie Transp. Co. v. Gil- christ Transp. Co., 270. Lake Shore, 275. Lake Steam Shipping Co. v. Ba- con, 187. Lamar v. Penelope, 135. Lamb v. Parkman, 161, 406. Lambert's Point Towboat Co. v. U. S., 414. Lamington, 153, 243. Larch, 337. Larsen, Ex parte, 27. Launch B. B., 147. Laura Lee, 326. Laurel, 21. Laverty v. Clausen, 357. Lawrence v. Platboat, 15. Lawrence v. Minturn. 50, 75, 361. Lazarus v. Barber, 419. L. C. Waldo, 278. Learned v. Brown, 337. Leathers v. Blessing, 210. Leeds v. Hills, 169. Lehigh Valley R. Co. v. Cornell Steamboat Co., 325. Le Jonet, 138. Leland, 331. Lelaud v. Medora, 415. Le Lion, 299. Leon v. Galceran, 111. Leonard, In re, 354. Leonard F. Richards, 392. Leonard Richards, 367. Leovy v. U. S., 12. Leverington, 291. Libra, 270. Lidgett v. Secretan, 74. Lillie Laurie, 380, 381. Lindrup, 410. Lindsay, William, 311. Lisbonense, 277. Liscard, 72. Little v. Hackett, 215. Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 92, 161. Livietta, 151. Livingstone, S9. Lizzie Burrill, 206, 207. Lizzie Crawford, 307. Lizzie Henderson, 257. Lizzie Merry, 340. L. N. Dantzler Lumber Co. v. Churchill, 174. Lobitos Oil Fields v. Adiniralty Com'rs, 81. Loch Trool, 329. Lombard S. S. Co. v. Anderson, 340. London Assurance v. Companhia De Moagens Do Barreiro, 72. London Merchant, 145. London S. S. Ass'n v. Grampian S. S. Co., 314. London Transport Co. v. Trech- man, 178. Long Branch, 109. Longford, 152. Long Island R. Co. v. Killien, 287. Lord Derby, 216. 544 CASES CITED [The figures refer to pages] Lord v. Goodall, N. & P. S. S. Co., 353, 35S. Lottawanna. The, 8, 11, 99, 113, 114, 115, 238. Loughin v. McCaulley, 374. Louisa, 130. Louisiana, 246. Louisville Underwriters, In re, 412. " Lowber v. Bangs, 169, 173. Lowlands, 402. Lowtber Castle. 124. Lucille, 280, 326, 332. Luckenbach v. Pearce, 120. Luckenbach v. W. J. MeCahan Sugar Refining Co., 63, 352. Ludgate Hill, 109. Lusitania. 363. Luzerne, 307, 311. Lydia, 135. Lyndhurst, 118. Lyon v. Mells, 61. • Lyra, 414. M Mabey, 310, 420. Mac, 15. Me Andrew v. Adams, 175. McCaulley v. Philadelphia, 305. McDonald, 422. McDonald v. Mallory, 242. McDonough v. International Navigation Co., 213. Mclver v. Tate Steamers, Ltd., 60, 172. Mack S. S. Co. v. Thompson, 116. McKinlay v. Morrish, 406. McLanahan v. Universal Ins. Co., 58, 63. McMullin v. Blackburn, 151. McXiel, Ex parte, 231. Macomber v. Thompson, 27. McPhail v. Williams, 357. McRae v. Bowers Dredging Co., 15, 116. Madras, 125. Magdalen, 148. Maggie Hammond, 111. Maggie J. Smith. 332. Mahar & Burns, 276. Main, 121, 257, 371. Major William H. Tantum, 43. Maling, 290, 318. Maltby v. A Steam Derrick, 15. Manchester Liners v. Virginia- Carolina Chemical Co., 170. Manchioneal, 39, 332. Manhasset, 244, 297. Manhattan, 318. Manigault v. Springs, 12. Manitoba, 191, 274, 314. Manning v. International Mer- cantile Marine Co., 243. Marcardier v. Chesapeake Ins. Co., 77, 78. Marcellus, 36. March, 175. Marengo, 339. Margaret, 130, 249. Margaret B. Roper, 272. Margaret J. Sanford, 328. Margetts & Ocean Ace. & Guar- antee Ass'n, 246. Marguerite, 279, 282. Marguerite Molinas, 135. Maria Martin, 314. Maria & Elizabeth, 375. Marine Ins. Co. of Alexandria v. Tucker, 66. Marion Chilcott, 207. Marion S. Harris, 106. Marion W. Page, 279. Mariska, 322. Maritime Ins. Co. v. M. S. Dollar S. S. Co., 70. Mark Lane, 122. Marpesia, 310, 31S, 405. Marpessa, 329. Marshall v. McXear, 176. Martello, 259, 264. Martha E. Wallace, 258, 271. Martin v. Delaware Ins. Co., 65. Martin v. West, 198. Mary, 17. Mary A. Bird. 279. Mary Adelaide Randall, 166. Mary A. Tryon, 131. Mary Augusta, 273. Mary B. Curtis, 330. Mary Bell. 102. Mary Buhne, 272. Mary E. Dana, 145. Mary Gratwick, 29. Mary Powell, 2S4. Mary Stewart, 200. Mason, 130. CASES CITED [The figures refer to pages] 545 Mason v. Ervine, 38. Maueh Chunk, 295, 366. Maude, 135. Maurice, 129. Max Morris, 221, 243. May v. Keystone Yellow Pine Co., 42. Mayflower, 109. May McGuirl, 130. M. B. Stetson, 137. Mecca, 197. Mediana, 329. Mellona, 331. Memphis & C. R. Co. v. Reeves, 331. Memphis & Newport Packet Co. v. Hill, 206. Mencke v. Cargo of Java Sugar, 171. Menominee, 327. Mercantile S. S. Co. v. Tyser, 81. Mercedes, 404. Merchant Prince, 311, 312. Merchants' Mut. Ins. Co. v. Bar- ing, 53. Merchants' Mut. Ins. Co. v. Ly- man, 58. Merchants' & Miners' Transp. Co. v. Hopkins, 260, 281. Merrimac, 37. Merritt & Chapman Derrick & Wrecking Co. v. Cornell Steam- boat Co., 303, 311. Metamora. 271. Mexican Prince, 192. Mexico. 2S2. Mever. In re, 357, 372. Miami, 215. Michigan Cent. R. Co. v. Vree- land. 235. Middlesex, 243. Milanese, 265. Miller v. Insurance Co., 75. Miller v. U. S., 408. Milwaukee, 269. Minna, 24. 404. Minneapolis. St. P. & S. S. S. Co. v. Manistee Transit Co., 46. Minnehaha, 125. Minnetonka, 402. Minnie, 299. Minnie C. Taylor, 279. Minturn v. Maynard, 21. Hucur;s.ADir.(2D Ed.)— 35 Mira A. Pratt, 137. Missouri Pac. R. Co. v. McFad- den, 163. Mitsui v. St. Paul Fire & Marine Ins. Co., 159. M. M. Caleb, 311. M. Moran, 276, 295. Mobile & M. Ry. Co. v. Jurey, 92 Mohawk. 336. Monarch, 139, 408. .Montana. 161, 162. Montapedia, 2S. Monte A, 402. Montello, 336. Montgomery v. Henry, 340. Montgomery v. Indemnity Mut. Ins. Co., 43. Montgomery v. Insurance Co., 42. Montgomery v. Wharton, 340. Monticello, 260. Moore v. American Transp. Co.. 13. Moore v. U. S., 176. Moores v. Underwriters, 62. Moran v. New York Cent. & H. R. R. Co.. 125, 318, 367. Moran v. Sturges. 407. Morgan v. Castlegate S. S. Co., 31. Morgan v. Shinn, 344. Morgan & Price v. Insurance Co. of North America, 8. Moses v. Hamburg-American Packet Co., 1S7. Mt. Desert, 104. Mount Hope, 130. Mourne, 276, 285, 293. Mudlark, 16. Mini-field. 176. Munich Assur. Co. v. Dodwell 54. Munson v. Standard Marine Ins Co., 93. Murrell, 184. Mutual, 40S. M. Vandercook. 381. My.rs v. Willis, 344. Mystic, 3S4. N Nacoochee, 332. Nahor, 273. Nantes v. Thompson, 54. Nash v. Bohlen, 22. 546 CASES CITED [The figures refer to pages] Nathaniel Hooper, 157, 15S. Nebraska, 106. Negaunee, 266. Neil Cochran, 19S. Neilson v. Coal, Cement & Sup- ply Co., 411, '22. Neilson v. Rhine .Shipping Co., 26. Nellie T., 340. Nelson v. Nelson Line, 190. Nelson v. "Woodruff, 163. Neptune, The, 98, 370. Nesbitt v. Lushington, 75. Neshaminy, 136. Nestor, 341. Nettie Quill, 18S. Nettie Woodward, 3S9. Nevada, 297. Newburgh, 303. New England, 1S7, 409. New England Marine Ins. Co. v. Dunham, 19. New England Mut. Ins. Co. v. Dunham, 51. New England Transp. Co., In re, 392. Newman v. Walters, 140. New Orleans Ins. Co. v. Albro Co., 77. Newport News, 289. Newton Creek Towing Co. v. iEtna Ins. Co., 245. New York, 250, 282, 2S5, 319, 409, 418. New York Bowery Fire Ins. Co. v. Insurance Co., 57. New York C. R. Co. v. Lockwood, 163. New York. P. & N. R. Co. v. Cooper. 215. New York Trust Co. v. Bermuda- Atlantic S. S. Co., 104. New York & Long Branch Steamboat Co. v. Johnson, 216. Ngapoota, 285. Niagara, 60, 160, 190, 250. Nicaragua. 167. Nichols, :;::^. Nikita, 41.-.. Ninirod, 251. Niobe, 12S. Niphon's Crew. 25. No. 4, 290. Nome Beach Lighterage & Transp. Co. v. Munich Assur. Co., 62. Non Pareille, 295. Nora, 402. Nordamerika, 264. Noreuga, 140, 332. Norfolk Sand «fc Cement Co. v. Owen. 105. Norma, 152. Normandie, 2S6. 327. North Alaska Salmon Co. v. Lar- sen, 24. North Atlantic Dredging Co. v. McAllister Steamboat Co., 167. North Carolina, 148. Northern Belle, 155. Northern Light, 96. Northern Pac. R. Co. v. Babcock, 243. Northern Queen, 303. Northfiekl, 282. North of England Iron S. S. Ins. Ass'n v. Armstrong, 89. North Pac. S. S. Co. v. Hall Bros. Marine Ry. & Shipbuild- ing Co.. 17, 20, 117, 232. North Point, 266. Northrop v. Gregory, 409. North Star, 314, 324. Northwestern Car Co. v. Hop- kins, 409. Northwestern S. S. Co. v. Mari- time Ins. Co., 58. Norwegian S. S. Co. v. Washing- ton, 121. Norwich & N. Y. Transp. Co. v. Insurance Co. of North Amer- ica, 43. Norwich & N. Y. Transp. Co. v. Wright, 23S, 347, 356. Nugent v. Smith, 161. o Oades v. Pfohl, 169. Oakes, T. F., 205. Oakes v. Richardson, 22. O'Brien v. Miller. 97, 369, 406. O'Brien v. 1,614 Bags of Guano, 412. O'Brien v. Stephens, 401. O'Brien Bros., 367. CASES CITED [The figures refer to pages] 547 Occidental & O. S. S. Co. v. Smith, 290. Oceana, 104. Ocean Belle, 339. Oceania Vance, 262. ( teeanie, 36. Ocean Spray, 24, 26. Ogdensburgh, 275. Ogemaw, 301. Ohio, 2S7. O. H. Vessels, 103. O'Keefe v. Staples Coal Co., 199. Ole Oleson, 343. Oler, The, 13. Olga, 384. Oliver, 258, 291, 300. Olsen v. Smith, 33. Olympia, 311. Omer, 97, 391. Oneida, 1S9. Onoko, 331. Oporto, 2S5, 2S9. Oregon, 36. 257, 297, 404. Orient Mut. Ins. Co. v. Adams, 76, 83, 88. Orion, 329. Orlando v. Wooten, 334. Orleans, 337, 339. Oscanvan v. Winchester Arms Co., 70. Oscar Townsend, 301. Osceola, 205, 206. Osprey, 246. Pacific, 318. Pacific Coast S. S. Co. v. Ban- croft-Whitney Co., 105, 404, 413. Pacific Creosoting Co. v. Thames & Mersey Marine Ins. Co., 63. Pacific Mail S. S. Co. v. New York, H. & R. Min. Co., 49. Pacific Mail S. S. Co. v. Schmidt, 24. Painter v. Wick & P. Steam Shipping Co., 323. Panama R. Co. v. Napier Ship- ping Co., 19S, 203, 243. Pandorf v. Hamilton, 79. Paoli, 2S1. Paragon, 378 Passaic, 301. Patapsco, 102. Patapsco Ins. Co. v. Coulter, 77. Patroclus, 257. Pawnee, 278. P. Caland, 254. Pederson v. Spreckles, 129. Pekin, 276, 27S. 289. Pelham v. Rose. 400. Pelican, 143. Pendleton v. Benner Line, 352. 360. Peninsular & O. S. S. Co. v. At- lantic Mut. Ins. Co.. 86. Pennsylvania. 252. 264. Pensher, 331. Peoples Ferry Co. of Boston v. Beers, 116. Pere Marquette, 372. Perkiomen, 265. Perry v. Haines. 197. Peters v. Warren Ins. Co., 76. Pettit v. Charles Hemje. 337. Peyroux v. Howard, 10. Pfluger, J. C, 124. Phenix Ins. Co.. Ex parte, 200. 238, 239. 240, 355. Philadelphia, 269, 326. Philadelphia, W. & B. R. Co. v. Philadelphia & Havre de G. Steam Towboat Co., 202. Philadelphia & Havre de Grace Steam Towboat Co. v. Philadel- phia, W. & B. R. Co., 202. Philadelphian. 25S. 406, 421. Philomena, 391. Phoenix Const. Co. v. Poughkeep- sie, 198. Pickup v. Insurance Co., 62. Pieve Superiore, 157. Pinna. 26. Pioneer Fuel Co. v. McBrier, 156. Piper Aden Goodall Co., In re, 188. Pitgaveney, 307. Pleasure Bay, 143. Pleroma, 52, 95, 401. Plummer v. Webb. 215. Plymouth, 199, 305. Plymouth Rock. 109. Poconoket, 333. Pool Shipping Co. v. Samuel, 176. Pope v. Swiss Lloyd Ins. Co., 60. Port Caledonia, 150. Porter v. Friendship, 135. Porter v. Sea Witch, 391. 548 CASES CITED [The figures refer to pages] Porto Alexandre, 407. Portuguese Prince, 193. Post v. Jones, 419. Postal Telegraph Cable Co. v. P. Sanford Koss, 19S. Potomac, 328. Potomac Steamboat Co. v. Baker Salvage Co., 134. Potter v. Ocean Ins. Co., 43. Potter v. Suffolk Ins. Co., 75. Powell v. Gudgeon, S3. President Lincoln, 270. Princess Alice, 124. Prinz Oskar, 298. Professor Morse, 197. Protector, 332. Providence, 330. Providence Washington Ins. Co. v. Bowring, 54. Providence & N. Y. S. S. Co. v. Hill Mfg. Co.. 351, 375. Prussia, 156, 169. Public Bath No. 13, The, 16. Puritan, 338. Pyman S. S. Co. v. Mexican Cent. R. Co., 176. Quarman v. Burnett, 128. Queen, 39, 105, 413. Queen v. Judge, 40, 51, 217. Queen City, 287. Queen of the Orwell. 306. Queen of the Pacific, 105, 404, 413. Quickstep, 128. Quinette v. Bisso, 243, 264. Quinlan v. Pew, 358. R Racine, 327. Raisby, 152. Raithmoor, 15, 197. 203. Raleigb, 29. Ralli v. Janson, 85. Ralli v. Societa Anonima Di Navigazione a Vapore G. L. Premuda, 49, 51, 318. Ralli v. Troop, 46, 50. Rambler, 137. Ratata, 130. Raymond v. Tyson, 168. Rebecca, 157, 346. Red "R'" S. S. Co. v. North Ameri- can Transport Co., 175. Reed Bros. Dredge No. 1, 102. Rees v. U. S., 151. Reichert Towing Line, In re, 354. Reid v. Fargo. 164, 421. Reilly v. Philadelphia & R. R. Co., 412. Reischer v. Borwick, 331. Relf v. Maria, The, 26, 27, 370. Reliance Lumber Co. v. Roths- child, 51. Relief, 139. Rence, 205. Rend, In re, 274. Resolute, 30, 407. Revens v. Lewis, 336. Reward, 124. Revnolds v. Joseph, The, 178. Rhondda, 285, 2S9, 291. Richardson v. Harmon, 239, 356. Richelieu & O. Nav. Co. v. Bos- ton Marine Ins. Co., 60, 93. Richmond v. New Bedford Cop- per Co., 399. Richmond Dredging Co. v. Stand- ard American Dredging Co., 15. Rickmers, 330. Riga, 109. Roach v. Chapman, 117. 231. Roanoke, 49, 118, 134, 151. Robert Graham Dun, 25S, 2S3. Robert R. Kirkland. 340. Robert S. Besnard, 124. Robert W. Parsons, 13. Roberts v. Huntsville, The, 408. Robertson v. Baldwin, 27. Robins Dry Dock & Repair Co. v. Chesbrough, 418. Robinson v. Detroit & C. Steam Nav. Co., 243. Robinson G. M. Co. v. Ins. Co., 75. Rochester, 356. 374. Rockaway, 13, 260. Rock Island Bridge, In re. 199. Rogers v. iEtna Ins. Co., 76. Rogers v. Brown, 411. Rolf, 272. Romance, 251. Rosalia, 318. Rose Culkin. L'79. Ross, In re, 28. CASES CITED [The figures refer to pages] 549 Ross v. Merchants' & Miners' Transp. Co., 301. Rounds v. Cloverport Foundry & Mach. Co., 111. Rowson v. Transport Co., 190. Royal, 129. Royal Kxcli. Assur. v. Graham & Morton Transp. Co., ST. Roymann v. Brown, 212. R. P. Fitzgerald, 191. R. R. Kirkland, 252, 299. Ruckers, 219. Rucknian v. Merchants' Louis- ville Ins. Co., S3. Rupert City, 31, 10S, 120, 121, 386. Rusk v. Freestone, 3S9. Ryley v. Philadelphia & R. R. Co., 236. Sabine, 141, 153. .Sagamore, 243, 265. Saginaw, 329. * St. Charles, 134. St. David, 217. St. Jago de Cuba, 98. St. Johns, 369, 375. St. Joseph, 123. St. Lawrence, 113, 115, 238. St. Paul, 145, 152, 265. St. Paul Fire & Marine Ins. Co. v. Knickerbocker Steam Tow- age Co., 54. St Paul Fire & Marine Ins. Co. v. Pacific Cold Storage Co., 63. Sallie Ion, 207. Saluda, 36. Salutation, 130. S. A. MeCaulley, 31S. 354, 373. Sampayo v. Salter, 159. Samson, 326, 401. Samuel v. Assurance Co., 74. Samuel Little, 392. Samuel Marshall, 102, 104, 116. Samuel Morris, 392. San Cristobal, 141. Sandberg v. McDonald. 26. Sanders v. Munson, 169. Sanderson v. Collins, 216. Sandringham, 134, 146, 147, 149 : 152. San Fernando, 51. Sanford & Brooks Co. v. Colum- bia Dredging Co., 172. San Guglielmo, 104. San Pedro, 375. San Raphael, 3S6. Santa Ana, 50. Santipore, 151. Sapphire, 300, 314. Sara, 3S4. Saracen, 39S. Sarah Ann, 105, 413. Saratoga, 139, 212. Sarmatian, 247, 297. Sarpen, 140. Saylor v. Taylor, 15, 24, 3S0, 384, 397. Scaramanga v. Stamp, 66, 173. Schloss v. Stevens,' 79. Schmidt v. Keyser, 17S. Schwan, 310. Schwartz v. Insurance Co. of North America, 6S. Scotia, 121, 279. Scotland, 8, 23S, 327, 354, 365, 374. Scull v. Raymond, 33S, 343. Seaboard, 156. Seabrook v. Raft of Railroad Cross-Ties, 17. Sea Foam, 392. Seagrave v. Insurance Co., 53. Sea Gull, 228. Seaman v. Adler, 160. Seaman v. Enterprise Fire & Marine Ins. Co., 75. Seamans v. Loi'ing, 73. Sea Spray, 393. Seath v. Moore, 333. Sea Witch, 3.84. Seefahrer, 163. Seguranca, 121, 178. Selina, 380. Senator Rice, 278. Severn, 303. Shaw v. Thompson, 414. Shawe v. Felton, 74. Sheppard v. Taylor, 369, 370. Shrrloek v. Ailing. 230. Shewalter v. Carolina, C. & O. Ry., 235. 236. Shield v. Wilkin, 175. Shoe v. Craig, 44, 46. 550 CASES CITED [The figures refer to pages] Shoe v. George F. Craig & Co., 44, 46. Sideracudi v. Mapes, 36, 38, 40. Siebert v. Patapsco Ship Ceiling & Stevedore Co., 209. Silver Shell, 205. Silver Star, 134. Silvia, 191. Simons v. Jefferson, 197. Siren. 407. Sir Henry Constable, Case of, 197, 220. Sir William Armstrong, 134, 150. Slayton, Ex parte, 374. Smith v. Booth, 354. Smith v. Burnett. 199. Smith v. Dart, 174. Smith v. Towbpat Co., 128. Smith v. Voss, 291. Snark, 203, 304. Snow v. CaiTutb., 160. Snow v. Edwards, 409. Snow v. Perkins, 49. Snyder v. Home Ins. Co., 59. Sorners N. Smith, 130. Sorensen v. Alaska S. S. Co., 205. Sorensen v. Keyser, 176. Southard v. Brady, 413. South Ton st. 104. Southerland-Innes Co. v. Thynas, 165. Southern, 251. Southern Express Co. v. Cald- well, 164. Southern Log Cart & Supply Co. v. Lawrence, 15. Southern Pac. Co. v. Jensen, 111, 20S, 232. Southwark. 173, 190, 413. Southworth v. Smith, 339. Spauldiug, 3S1. Spedden v. Koenig, 336, 343. Spencer, 265. Spencer v. Dalles P. & A. Nav. Co., 287. Spiegel, 289. Sprague v. 140 Barrels of Flour, 135. S. Shaw, 301. Stanton v. Richardson, 174. Stapp v. Clyde. The, 13. Stiii- of Hope, 42, 43, 44. Staten Island & N. Y. Ferry Co. v. Thomas Hunt, 135. State of Maryland v. Miller, 203. Steam Dredge A., 392. Steamship Carrisbrook Co. v. London, 43. Steamship Overdale Co. v. Turn- er, 22. Steamship Rutherglen Co. v. Howard Houlder & Partners, 178. Steamship Wellesley Co. v. Hoop- er, 190. Stedman v. Feidler, 343. Steel v. State Line S. S. Co., 61, 172. Steele v. Thacher, 215. Sterling, 109, 319. Stern v. La Compagnie Generale Transatlantique, 233. Stetson v. Insurance Co. of North America, 63. Stout v. Weedin, 27. Strabo, 201. Strathdon, 349. Strathleven, 303. Strathleven S. S. Co. v. Baulch, 40. Strathnevis, 151. Strong v. Holmes, 374. Student, 213. Sturgis v. Boyer, 125. Sultana, 24. Sun Mut. Ins. Co. v. Ocean Ins. Co., 56, 71. Sun Printing & Pub. Ass'n y. Moore, 168. Sunnyside, 311. Susan, 145. Svensen v. Wallace, 44. Swift, 203. Swiftsure, 145, Sydney Cove, The, 370. Sylvan Glenn, 244. Syracuse, 130. Tactician, 37. T. A. Goddard, 123. Tampico, 1st. Tantuin, Major William H., 43. Tarabochia \. American Sugar Refining Co., 49. CASKS CITED [The figures refer to pages] 551 Tasmania. 131. Taylor v. Brigham, 343. Taylor v. Carryl, 407. Taylor v. Harwood, 422. Taylor v. Steamship Co., 78. Tenedos. 191. Teresa Aecama, 134. Test, 293. Texas, 282. T. F. Oakes, 205. Thames & M. Marine Ins. Co. v. Hamilton, 79. Thames & Mersey Marine Ins. Co. v. Pacific Creosoting Co., 63.' Themistocles, 205. Theta, 218. Thingvalla, 274. Thomas B. Garland, 284. Thomas Fielden, 149. Thomas Ililyard, 141. Thomas Jefferson, 10. Thomas Melville, 405. Thomas Morgan, 392. Thomas P. Sheldon, 401. Thomas Sherlock, 106. Thomas W. Haven, 135. Thompsen v. Finden, 341. Thompson v. Darden, 33. Thomson v. Brocklebank, 167. Thomson v. Wooster, 408. Thurber v. Fannie, 103. Tiger, 106. Tijuea, 151. Tillie, 252. Tillmore v. Moore, 216. Titanic v. Mellor, 354. Toledo, 198. _ Toledo S. S. Co. v. Zenith Transp. Co., 399. , n _ Tonawanda Iron & Steel Co., In re, 205. Tornado, 159. Toronto, 193. Towle v. Great Eastern, 140. Trader, 307. Transfer No. 3, 312. Transfer No. 12, 233. Transfer No. 17, 295. Transfer No. 21, 367. Trask v. Duvall, 160. Trave, 259. Traveller, 146. Treasurer, 157, 162. Tremont, 329. Trenton, 414. Tribune, 22. Tropical Fruit S. S. Co. v. Towle, 205. True Blue, 147. Tucker v. Alexandroff, 17, 37. Tunno v. Betsina, 338, 339. Turbett v. Dunlevy, 215. Turner, Case of. 27. Turner v. Haji, 179. Turquoise, 291. Tweedie Trading Co. v. Western Assur. Co., 60. 2,098 Tons of Coal, In re, 174. T W. Wellington, 374. u Uhla, 199. Ulrica, 386. Umbria, 263, 204, 326, 327, 328. Undaunted, 130, 135. Underwriter, 102. Union, 408. Union Fish Co. v. Enckson, 30, 112, 232. Union Ins. Co. v. Smith, 63. Union Stockyards Co. v. Chicago, B. & Q. R. Co., 325. Union S. S. Co. v. Latz, 297. United Shores, 117. U. S. v. Alden, 27. U. S. v. Ansonia Brass & Copper Co., 333. U. S. v. Burlington & Henderson County Ferry Co., 13, 16. U. S. v. Cornell Steamboat Co., 134, 399. U. S. v. Hall, 304. U S. v. Mollie, 408. U. S. v. New York & O. S. S. Co., 192. U. S. v. North German Lloyd, 198. U. S. v. St. Louis & M. V. Transp. Co., 249. U. S. v. Taylor, 148. United Transportation & Lighter- age Co. v. New York & Balti- more Transp. Line, 340. Upton Castle, 251. Urania, 40. 552 CASES CITED [The figures refer to pages] Urko Mendi, 137. Ursula Bright S. S. Co. v. Am- sinck, 54, 86. Utopia, The, 203, 304. Valencia, 102, 103. Vallette Dry Dock Case, 15, 17. Vanadis, 329. Van Der Duyn, 20G. Vane v. A. M. Wood & Co., 160. Veazie v. Moor, 13. Vedamore. 29S. Velocity, 278. Vera, 290. Vera Cruz, 227, 244. Veritas, 387, 393. Victoria, 130. Victory, 164, 249, 285, 2SS, 316. Vim, 405. Vindobala, 343. Violetta, 125. Virgin, 97. Virginia, 260. Virginia Ehrman, 129. Virginian, 276. Virgo, 311, 378, 381. Vortigern, 172. Vueltabajo, 210. W Wager v. Providence Ins. Co., 92. Waldo, 343. Walker v. Western Transp. Co., 348. Wallace v. Cargo of 292,000 Feet of Pine Boards, 175. Walsh, In re, 128. Walter Adams, 106. Ward v. Banner, 131. Ward v. Thompson, 20. War-field, 196. Waring v. Clarke, 11. Warkworth, 311, 358. Warner v. Boyer, 354. Warrior, 279. Washburn & M. Mfg. Co. v. Re- liance M. Ins. Co., 85, 93. Washington, The, 319. Waterhouse v. Rock Island Alas- ka Mining Co., 172. Waters v. Merchants' Louisville Ins. Co., 77. Water Witch, 408. Watt v. Cargo of Lumber, 408. Watts v. Camors, 169. Watts, Watts & Co. v. Unione Aus- triaca di Navigazione, 421. W. B. Cole, 335. Weaver v. S. G. Owens, 109. Webb v. Peirce, 344. Webster v. Seekamp, 109. Weinman v. De Palma, 304. Weir v. Steamship Co., 172. Wells v. Ilopwood, 75. West v. Columbian Ins. Co., 65. . West Friesland, 337. Westerly, 130. Western Fuel Co. v. Garcia, 112, 233. Whealton Packing Co. v. iEtna Ins. Co., 60. Whitcomb v. Emerson, 365, 366. White v. Cynthia, 409. White v. Island Transp. Co., 374. White's Bank v. Smith, 335. Whiteash, 287. Wbitelaw, In re, 375. White Squall, 408. Whitlieburn, 190, 289. Whittall v. Rathken's Shipping Co., 175. Wilbert L. Smith, 297. Wildcroft, 191, 192. Wilder v. Inter-Island Steam Xav. Co., 25. Wilkinson v. Hyde, 85. Willamette Valley, 210. Willard v. Dorr, 412. Willcox Peck & Hughes v. Ameri- can Smelting & Refining Co., 46. William Beckford, 146. William Churchill, 271. Wm. F. McRae, 40S. William H. Bailey, 329. William H. Yerkes, Jr., 130. Wm. J. Quillan, 49. William Lindsay, 311. William M. Hoag, 30, 329. Williams, 131. Williams v. Canton Ins. Co., 81. Willie, 107. Willkoininon, 287. CASES CITED [The figures refer to pages] 553 Wilmington, 15. Wilson v. Charleston Pilots' Ass'n, 40. Wilson v. Pilots' Ass'n, 40. Winnie, 276. Wood v. Keyser, 176. Wood v. Phoenix Ins. Co., 50. Wood v. Pleasants, 65. Woodall v. Dempsey, 343. Woodropsims, SOS. Woodruff v. One Covered Scow, 15. Woodside v. Canton Ins. Office, 52, S4. Wope v. Hemenway, 25. Wordsworth, 45. Work v. Leathers, 62. Worms v. Storey, 172. Worthington, 102. 107, 300. Wortman v. Griffith, 20. Wrestler, 274, 290. Wyoming, 3S2. W. & C. T. Jones S. S. Co. v. Barnes-Ames Co., 175. Xantho, 166. Yang-Tsze Ins. Ass'n v. Furness, Withy & Co., 282. Yankee, 106. 210. Yarmouth, 2S9. Zadok, 263, 264. Zane v. President, The, 19. Zapora. 138. Zeta, 19S, 219. Zillah May, 21. Zouave, 283. INDEX [THE FIGURES RLFEU TO PAGES] ABANDONMENT, See Mm Lie Insurance. ABATEMENT, Survival of action for injuries resulting in death, 222. ABDUCTION, Remedies for, 216. ACCOUNTS, See Admiralty Jurisdiction. ADMIRALTY JURISDICTION, Extent of under constitution, 9. Includes navigable waters, whether tidal or not, 10, 195. Test of navigability, 11. Includes canals, 13, 195. Lakes wholly within state, 13. Includes the simplest craft, as scows, dredges, pile drivers, etc. 14. Does not include floating docks permanently fixed, 14. Nor buoys, 16. Quaere as to rafts, 17. Test of, in contract and tort respectively, 18. None over mere partnership, 20. None over mortgages on ships, 21. None over mere accounts, 21, 400. None over preliminary contracts, 22. Extent of, over wharfage, 22. Extent of, over watchmen, 22. Over contracts of seamen, 23. Over master's claim for wages, 28. Over claim's for or against pilots, 39. Over general average contract, 50. Over contracts of marine insurance, 51. Over supplies and repairs, 98. Over bottomry, 515. None over ship building contracts, 116, 231. Hugiies,Adm.(2dEd.) (555) 556 INDEX [The figures refer to pages] ADMIRA LTY JURISDICTION— Continued, Over stevedore contracts, 119. Over canal tolls, 123. Over towage. 131. Over salvage apportionment, 151. Over contracts of affreightment, 156. Over torts, 195, 234. Petitory and possessory suits and suits for partition, 339, 516. None over equitable titles, 400. Courts having jurisdiction, 415. ADMIRALTY LAW, Origin and history, 1. The English admiralty, 2. Sources, 5. Works of authority on, 7. ADMIRALTY RULES, Rules of practice, 511. Fifty-ninth rule, 320, 530. Twelfth rule, 112. ADVANCES, Giving insurable interest, 53. Bottomry bond for, 94. Priority of claims, 3S2. See Bottomry and Respondentia, Supplies and Repairs. AFFREIGHTMENT, Defined, 154. Distinguished from charter party, 154. Implied condition of seaworthiness, 155. Implied warranty against deviation, 156. Mutual remedies of ship and cargo, 156. Lien for freight, how enforced or lost, 156. Entirety of affreightment contract, 15S. Freight pro rata itineris, 159. When ship a common carrier, 160. Bill of lading, 161. Form of, 161. How far negotiable, 162. What conditions legal or illegal, 163. Exception of perils of the sea, 165. The Harter act of February 13, 1893, 181. Purpose of, 180. Applies only between vessel and shipper, 183. Applies to domestic and foreign vessels, 187. Liability for Improper loadii/g or delivery, but not for negli- gent navigation, 188. Effect of unseaworthiness under, 190. index 557 LThe figures refer to pages] AFFREIGHTMENT— Continued, Burden to prove seaworthiness, 191. Port-holes, 191. Validity of stipulations not mentioned in act, 193. Necessity of stipulating against absolute liability for sea- worthiness, 193. See Charter Parties. AMENDMENTS, See Pleading and Practice. ANSWER, See Pleading and Practice. APPEAL, Process of, 41S. Time of taking, 418. Facts, how far reviewed, 419. New evidence on, 420, 524, 525. Record on, 525. ASSAULT, Remedies for, 215, 515. See Torts. ATTACHMENTS, See Pleading and Practice. AVERAGE, Particular average, .86. See General Average Marine Insurance. B BAIL, In suits in personam, 512, 524. Reduction, 513. BARRATRY, See Marine Insurance. BILL OF LADING, See Affreightment. • BONDS, To release vessel from arrest, 407, 497. In attachment, 512. See Bottomry and Respondentia. BOTTOMRY AND RESPONDENTIA, Bottomry defined, 94. Requisites to validity of bottomry bond, 96. Respondentia, 97. Priority of claims, 384, 391. Remedies for, 515. See Maritime Liens. 558 INDEX [The figures refer to pages] BRIDGES, See Torts. BUOYS, See Admiralty Jurisdiction. CANALS, C See Admiralty Jurisdiction. CANAL TOLLS, Maritime character of, 123. Remedies for, 123. CANCELLATION CLAUSE, See Charter Parties. CAUSE, Proximate or remote, SO, 330. CESSER CLAUSE, See Charter Parties. CHARTER PARTIES, Distinguished from affreightment contracts, 154 Defined, 166. Construed as ordinary contracts, 168 Special clauses, 168. * "Return in good order," 168. "With all possible dispatch," 169. "Now sailed or about to sail," 169. "1.100 tons or thereabouts," 170. "Northern passage," 170. "Guaranty of 10,000 grain quarters." 170. "Always lie and discharge afloat," 170, 175. Conditions implied, Of seaworthiness, 171. Against deviation, 173. Cancellation clause, 174. Loading, 175. Demurrage, 175. • Documents to be signed by master, 177. « !esser clause, 17S. COLLISION, When a peril of the sea, 76, 166. History of navigation rules. 2 15. Meaning of word, 245. Different systems of navigation rules, 248. Judicial notice of. 250. Effect of local rules and customs, L'49. Classes of vessels affected by rules, 250. What craft are steam vessels, 251, 426, 446, 469. 479. INDEX 559 [The figures refer to pages] COLLISION— Continued, "Under wav," meaning of, 251, 426, 446, 469. Lights for vessels, 251, 427, 447, 469. 480. When shown, 251, 427, 447, 469, 4S0. Presumptions against dark vessel, 246, 2o2. Unincumbered steamers, 252, 427, 447, 469, 4S0. Towing steamers, 253. 428, 448, 470, 481. Special lights, 254, 42S. Sail vessels, 255, 429, 44S, 471, 4S2. Vessels towed, 255, 429, 44S, 471, 482. Small vessels, 255, 430, 449, 471, 4S2. Pilot vessels, 256, 431, 449, 483. Fishing vessels, 256, 433, 450, 472, 4S3. Rafts and nondescript craft, 256, 451, 472, 483. Overtaken vessels, 257, 436, 451, 473, 486 Flare-up or torch light, 257, 437, 451, 473, 486. Anchor lights, 25S, 437, 472, 482. Naval lights, 437, 452, 459, 473, 483. Fog navigation, 258, 438. 452, 473. 484. Signals required, 258. 43S. 452, 4S4. What constitutes fog, 260. Moderate speed required, 262, 439, 453, 475, 486. Test of speed as to steamers and sail vessels, -62. Precautions approaching fog bank, 265. Steering and sailing rules when applicable, 265. Steering and sailing rules, 26S, 440, 454, 475, 485. Origin, 26S. P,asis of, 268. Risk of collision. 269, 274, 440, 454, 485 Rules regulating sail vessels, 270, 440 454 475, 485. Rules regulating steamers 273 440 > ^ 4j 6_ 48o. The port helm rule, 273, 440, 454, 476, 485. Danger signals, 275, 455, 47S. Rounding bends, 276, 455. The crossing rule. 277, 441, 457, 4<6. 4S6 Rule regulating steam and sail, 27S, 441. 4o7, 476 486. Steam may assume sail will keep course, 279. The wide berth, 280. Error in extremis, 2S0. Rule as to vessel having right of way. 281, 441, 457, 476, 4S6. Crossing ahead, 2S3, 442, 4o7. Stop and back rule, 284, 442, 457, 476 4S6. Rule as to overtaking vessels, 2S6, 44-, 4o,. 4, »«». Narrow channel rule, 2SS, 443, 458, 47,. Narrow channel defined, 289. 500 INDEX [The figures refer to pages] COLLISION— Continued, General prudential rule. 291, 443, 45S, 478, 486. Sound signals, 296, 443, 458, 477. General precaution rule, 296, 444, 459, 478, 486. Lookouts, 296, 444, 459, 478, 487. Anchored vessels, 299. Anchoring in channels, 300, 489. Collisions with wrecks, 303. The "stand-by" act, 305, 493. Distress signals, 444, 459. The international rules, 426. The coast and inland rules, 445. Dividing lines between international and inland rules, 247,462. The lake rules, 46S. The Mississippi valley rules, 479. Remedies, 515. Bringing in joint tort-feasors. 320, 530. See Damages. CONTRACTS, Nature as test of jurisdiction. 18. CONTRIBUTION, See Damages; General Average. CONTRIBUTORY NEGLIGENCE, See Death Injuries; Torts. COSTS, In collision cases of mutual fault, 318. How far discretionary in admiralty, 414. Suits in forma pauperis, 415, 505. Stipulations for, 51S. D DAMAGES, In personal injury cases, 221, 243. In collision cases, 243, 308. Negligence essential, 308. Inevitable accident, 309. One alone in fault. 312. Both in fault, divided, 312. Origin of rule of division, 315. Rights of third parties when both in fault, 318. Contribution between colliding vessels, 320. Suit against both, 320. Bringing in vessel not party, 320, 530. fndependent suit. 321. Measure of. when loss total, 326. Measure of, when loss partial, 328. 1 demurrage, how estimated, 32S. » INDEX 5G1 [The figures refer to pages] DAMAGES— Continued. Interest discretionary, 329. Repairs. 330. Increased damages due to subsequent storm, 330. Error in extremis, 331. DEAD WEIGHT, 167. DEATH INJURIES, Common-law doctrine as to survival, 222. Civil-law doctrine. 223. Continental doctrine, 224. English doctrine. 227. Right of survival dependent on statute, in America, 22S. Under state statutes, 230. Under acts of congress, 236. Injury on water, death ashore, 234. Law governing such actions, 242. Contributory negligence bars recovery, 243. Construction of particular statutes, 244. DECREES, See Pleading and Practice. DEMURRAGE, See Charter Parties. DEVIATION, See Affreightment ; Charter Parties ; Marine Insurance. DISTRESS SIGNALS, Rules, 444, 459. DREDGES, See Admiralty Jurisdiction. DRY DOCKS, Sec Admiralty Jurisdiction. E ERROR IN EXTREMIS, See Collision : Damages. EVIDENCE, Federal statutes regulating competency, taking depositions, etc.. 49S. See Appeal; Pleading and Practice. EXECUTION, See Pleading and Practice. Hughes,Adm.(2d En.)— 30 562 INDEX * [The figures refer to pages] FIFTY PER CENT. RULE, See Marine Insurance. FOG, See Collision. FOREIGNERS, See Seamen. FREIGHT, See Affreightment. G GENERAL AVERAGE, Denned, 41. Antiquity and nature, 42. Jettison, 42. Voluntariness of, stranding, 43. Requisites of, 44. Unseaworthiness, 49. May stipulate for though loss due to negligent navigation, 49, 186. Contribution, 47. Priority of claims, 382. See Maritime Liens. H HARTER ACT, See Affreightment ; General Average. HATCHWAYS, Duty as to, 211. HUSBAND AND WIFE, Injuries to wife, 216. HYPOTHECATION, Of cargo, 97. Of vessel, 94. Remedies, 515. See Bottomry and Respondentia. ILLEGAL TRAFFIC, See Marine Insurance. INEVITABLE ACCIDENT, See Damages. INSURANCE, See Marine Insurance. INDEX 503 [The figures refer to pages] JETTISON, See General Average. L LAKES, See Admiralty Jurisdiction. LIBEL, See Pleading and Practice. LIEN, Meaning of in admiralty, 94. LIGHTS, See Collision. LIMITATION OF LIABILITY, Origin of doctrine, 345. Federal legislation on, 346, 494. Policy of, 347. Fires, liability for, 348, 494. Contract debts, 351, 497. Constitutionality of acts, 238, 353. Who may claim, 354. Liabilities against which limitation may be claimed, 355. Privity or knowledge of owner, 357. Unseaworthiness, 357. Knowledge of officer or employs, 360. Voyage as the unit, 364. Liability of part owners, 365. Measure of liability, 365. Estimating value of vessel and freight, 365. Surrender of res free from liens, 366. Res may include more than one vessel. 366. Damages from injuring vessel, 369. Pending freight, 371. Salvage and insurance, 372. Procedure, 373, 527. Time for claiming, 373. Method of claiming, 374, 527. Distribution, 375, 529. LIMITATIONS, Statutes of, in admiralty, 413. See Supplies and Repairs. 5G4 INDEX [The figures refer to pages] M MAINTENANCE AND CURE, See Torts. MARINE INSURANCE, Defined, 51. Admiralty jurisdiction over contracts of, 19, 51. Insurable interest necessary, 52. Double insurance, 54. Effect of misrepresentation or concealment, 55. Seaworthiness implied, 59. What constihites seaworthiness, 59. Burden of proof of seaworthiness, 62. Seaworthiness in time policies, 63. Implied condition against deviation, 64. Deviation defined, 64. May deviate to save life, 65. Distinction between deviation and change of voyage, 66. Implied condition against illegal traffic, 67. Effect of violating revenue laws of another country, 69. The policy, 71. Beginning and end of risk, 71. Restraint of princes, 74. Perils of the seas, 75, 79. Barratry, 77. Thefts, 78. All other perils, 79. Doctrine of proximate cause, SO. Extent of loss, S3. Actual total loss, Of vessel, 84. Of goods, 84. Of freight, 85. Constructive total loss, 83. Partial loss, 86. Particular average, 86. Abandonment, 87. Fifty per cent, rule, 87. Binding effect of agreed valuation, 88. Underwriter's right of subrogation, 91. Sue and labor clause, 92. MARINER'S COMPASS, 424. MARITIME CONTRACTS, Defined, 18. Seamen's contracts, 23. Marine insurance, 19, 51. INDEX 5G5 [The figures refer to pages] MARITIME CONTRACTS— Continued, Shipbuilding contracts, 116, 231. Stevedore's contracts, 119. Towage, 131. Salvage, 132, 149. MARITIME LIENS, Eor seamen's wages, 26. For supplies, repairs, and necessaries, 98. For services of stevedores, 119. For canal tolls, 123. The admiralty lien explained, 94. Priorities among, 376. Relative rank according to their nature, 376. Seamen's wages, 378. Salvage, 380. Materials, supplies, advances, towage, pilotage, and gen- eral average, 3S2. Bottomry, 384. Non- maritime liens or titles, 386. Torts, 387. Relative rank according to their dates, 391. Different voyages, 391. Claim more immediately contributing to preserve res, 393. Later contract to tort, 394. Two torts, 394. Relative rank as affected by suit or decree, 397. See Bottomry and Respondentia. MASTER, Right to libel in rem for wages independent of statute, 28. Under state statute. 29. Implied powers as agent, 45, 101. See Ownership of Vessels; Pilotage. MATERIAL MEN. See Supplies and Repairs. MATERIALS, Priority of claims, 3S2. MISREPRESENTATION, See Marine Insurance. MORTGAGES, See Admiralty Jurisdiction; Maritime Liens. N NAVIGABLE WATERS, Defined, 11. Obstructing same by anchoring, 299, 4S9. r»t><; . INDEX [The figures refer to pages] NAVIGABLE WATERS— Continued, Removal of obstructions, 490. Destruction of grounded vessels, 491. See Admiralty Jurisdiction. NAVIGATION, See Collision; Rules of Navigation. NECESSARIES, See Supplies and Repairs. NEGLIGENCE, See Affreightment; Collision; Damages; Death Injuries; Pi- lotage ; Torts ; Towage. o OWNERSHIP OF VESSELS, Title vesting of during construction, 'I'M. Bill of sale, how far necessary, 334. Requisites of, 334. Recording of, 334. Registered and enrolled vessels, 335. Part owners are tenants in common, '.'>.'>(}. No lien inter sese for balance of accounts, 336. When may libel vessel, 337. Power to bind each other, 33S. Right of majority to use vessel, 338. When minority may use vessel, 339. Power of admiralty court to sell for partition, 339, 516. Power to remove master, 340. How far liable for vessel's debts or torts, 341. See Limitation of Liability. PARTICULAR AVERAGE, See Marine Insurance. PARTNERSHIP, See Admiralty Jurisdiction. PART OWNERS, See Ownership of Vessels. PASSENGERS, Right to salvage, 139. Rights and remedies against ship. 209. See Torts. PERILS OF THE SEAS, See Affreightment; Marine Insurance. INDEX 5csPi s 110. Validity of state statute giving lien on domestic vessels iiu. lit story of and changes in twelfth admiralty rule, 112. Effect of owner's presence on domestic liens, 116. shinbuilding contracts, 116, 231. Effect on foreign vessels of state statutes giving lien, 118. Priority of claims, 105, 382, 393. Remedies. 515. See Maritime Liens. T TENDER. See Pleading and Practice. THEFTS, See Marine Insurance. Locality the test of jurisdiction, 18, 195, 216. Waters included, 196. Structures attached to shore not included, 197. Wharves, piers, and bridges, 198, 202. Dry-docks, 196. Submarine cables, 198. Must be consummated on water, 199, 26i. Detached structures, 202. TortfarSng from relation of ship or owner to crew, 204. "Maintenance and cure" doctrine, 204. Effect of recent legislation, 20 1. Workman's compensation acts, 208. Torts to passengers, 209. Torts to persons rightfully on ship, 210. Ship not liable for act of independent contractor, 211, 213. Imputed negligence, 214. Assaults, 215. O'- INDEX [The figures refer to pages] TORTS— Continued, Contributory negligence as affecting right of recovery and meas- ure of damages, 221. Liability of owners, 341. Priorities of claims, 387, 394. See Collision; Damages; Death Injuries; Maritime Liens. TOWAGE, "Not a necessary'' defined, 124. Distinguished from salvage, 124. Respective liability of tug and tow to third party, 125. Relative duties of tug and tow, 128. Tug not a common carrier, 129. Measure of care required of tug. 129. For whose acts tug is liable, 131. Maritime remedies for, 131. Priority of claims, 3S3. See Collision; Maritime Liens; Supplies and Repairs. TUG, See Towage. TWELFTH ADMIRALTY RULE, History and changes, 112. w WATCHMEN, See Admiralty Jurisdiction. WHARF, See Torts. WHARFAGE, See Admiralty Jurisdiction. WORKMAN'S COMPENSATION ACTS, In admiralty, 208, 234. WRECKS, See Collision. WI8T PUBLISHING CO., PRINTERS, ST. PAUL, MINN. LAW LIBRARY UNIVERSITY OF CALIFORNIA LOS ANGELES ,ir SOUTHERN REGIONAL LIBRARY FACILITY AA" 000 770 794 6 UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. NOV l 7 1968 Form L9— Series 444