City to go ahead confidently and without stopping. Had such assenting response been given and the Garden City allowed to continue going ahead, instead of backing, the Republic stopping meantime, as her pilot says she was then stopped, the collision could not have happened. I have much doubt, however, as to this part of the account given by the pilot of the Republic. The story of the pilot of the Garden City seems the more natural and probable. This part of the case shows evident embarrassment and confusion, occasioned by the failure to respond to the signals, as required; and such failure has been repeatedly held to be a fault. a The Clifton, 14 FED. REP. 586; The Grand Republic, 16 FED. REP. 424, 427; The Beaman, 18 FED. REP. 334; The B. B. Saunders, supra.

The Garden City ran in connection with railroad trains, and it was a natural and lawful purpose to make good time and as few stops in navigation as possible. Her pilot had a right, also, to take into consideration the usual practice of ferry-boats to swing to the northward on coming out of their slip at that time of the tide. While neither of these considerations, nor both combined, could furnish any justification for any disobedience or neglect of any rule of navigation, general or local, nor authorize the Garden City to cross the bows of the Republic without the consent of the latter, unless she could do so without compelling the Republic to stop, they did furnish good and sufficient reasons for proposing to pass to the left, which her pilot evidently supposed would accommodate both, and required the Republic to answer promptly under the inspectors' rules.

Nor can I find any justification for the Republic's going ahead in the manner stated by her pilot, if his account in that particular be correct, after he had once stopped, on hearing the Garden City's first two whistles. For the Republic must then have been to the westward of the Garden City's course; under her six revolutions ahead the Republic must have made a considerable distance to the eastward, so that whether the Garden City went ahead or backed, it was the last movement ahead by the Republic which immediately contributed to the collision, and it could not have happened without that. The Garden City was, doubtless, already in fault, for the reasons I have stated above; and her fault was apparent, at least, to the pilot of the Republic; but this did not dispense with the use of all reasonable means and nautical skill on the part of the Republic to avoid a collision, notwithstanding the existing faults of the Garden City; and the danger of collision was then so evident that both alike were bound to keep away from each other. The C. C. Vanderbilt, 1 Abb. Adın. 361, 364; The Vim, 12 FED. REP. 906, 914, and cases cited.

For these reasons the Republic must also be held in fault, and the damages to her, less the damages to the Garden City must be apportioned between the two. The libelants are entitled to a decree accordingly, with costs, with an order of reference to ascertain the amount, if the parties do not agree.

ASTSRUP v. LEWY and others.

LEWY and others v. THE EXCELLENZEN SIBBERN, etc.

(District Court, S. D. New York. February 7, 1884.)

1. SHIPPING-IMPROPER STOWAGE-DAMAGE TO CARGO.

Where in a short but violent gale the bottom of a bark gave way in the middle from four to five inches, through overloading with iron rails amidships, causing a bad leak, whereby a cargo of rags was damaged, held, that the negligence of the vessel in improper stowage was the proximate cause of the leak, for which the ship was responsible, and that the consequent damage was not through perils of the seas, within the exception of the bill of lading.

2. SAME-MASTER'S AUTHORITY TO SELL-NOTICE.

The master has no authority to sell damaged cargo in a foreign port without notice to the owner or shipper, when there is abundant time and means for communication with him.

3. SAME-CASE STATED-BILL OF LADING-QUALITY UNKNOWN.

Where the bark E. S., laden with rags and railroad iron, in å voyage from Libau to New York, sprung a leak in a gale in the North sea through overloading amidships, whereby some of the rags were wet; and being obliged to put in at Cowes for repairs, the cargo was all unloaded, and a considerable portion of the rags was found to be hot, steaming, and rotten, and not capable of being put into condition to be brought to New York; and communication being practicable with the shipper at Libau by mail within three days, and by telegraph daily; and that portion of the cargo not capable of being brought to New York having been sold after repeated surveys, and under the advice of the consul, after notice sent by him to the shipper at Libau without answer or direction received in reply, and the sale being fairly made, held, that the sale was justifiable, but that the vessel was responsible for all loss occasioned by the leak through overloading amidships. Held, also, that under the terms of the bill of lading, “quality unknown," the vessel might show bad condition of the rags when shipped; that the steaming condition of the rags on the morning following the gale was an indication that part were probably shipped in bad condition; and there being no direct evidence of their condition when shipped; held, that that question should be submitted for further evidence before the commissioner in connection with proof of damage occasioned by the ship's leak.

4. EVIDENCE-COMMISSION-ANSWER TO GENERAL INTERROGATORY.

Upon commission to examine the consul at Cowes as a witness in behalf of the bark, the consul, in reply to the last general interrogatory, whether he knew anything further to the advantage of the ship, having replied that he and his firm communicated with the shipper at Libau before the sale and received no answer or direction; the subject being nowhere else alluded to in the pleadings, interrogatories, or testimony, and the commission having been returned and filed a year before the trial, held, that the answer should stand, and that it was sufficient prima facie evidence of proper communication with the shipper in the absence of any countervailing evidence, and that the motion to suppress that answer or for leave to cross-examine by further interrogatories should have been made before trial.

The above libel in personam was brought to recover the sum of $1,566.62 freight for 941 bales and 66 bags of rags shipped on the bark Excellenzen Sibbern, at Libau, April 22, 1880, to be delivered in New York. The libel in rem was brought to recover damages for the non-delivery of 524 bales and 28 bags, part of the above shipment, valued at $15,000. The rags not delivered were sold by the master at Cowes, at which port he had been obliged to put in, in distress. The cargo was there unloaded for the purpose of repairing

the ship, and a portion of the rags being found so damaged by wet, heat, and rottennes that, despite all efforts to improve their condition, they were deemed unfit to be reshipped, they were condemned on survey and sold, so far as salable, and other portions thrown away as worthless. For the vessel, it was contended that the injuries to the bark were caused solely by the severe weather which she encountered in the North sea; that the rags were in a wet and unfit condition when shipped, which in part caused their damaged condition at Cowes; and that the sale of the damaged portion was necessary; was effected in the best manner; and was made after notice sent to the shipper, (the bill of lading being to order,) to which, however, no answer was received. On behalf of the shipper, it was contended that the rags were all shipped in good condition; that the damage to the vessel, and her consequent leaking, and the injury to the rags, arose from the unseaworthiness of the vessel, through the improper stowage of the iron, too great weight being placed between the main and the after hatch, which caused the bottom of the vessel to give way and her keel to drop from three to five inches; also, that no proper communication to the shipper was proved, and that the sale of the rags at Cowes was unauthorized.

The Excellenzen Sibbern was a Swedish vessel, 359 tons register, about 500 tons burden, built in 1874, and rated in 1877 in the French Veritas as A 1; length, 130 feet; beam, 27 feet; depth, 14 feet; and single decked. Her cargo on this voyage consisted of 1,362 old iron Trails, weighing about 251 tons, and 1863 tons of rags; in all 437 tons weight. Both were shipped by H. Seelig, at Libau, to be delivered in New York to order. The vessel commenced loading on February 26th; 400 rails were put in the bottom of the ship; then rags; then above the rags, in a sort of trunk-way running fore and aft along the middle of the vessel, the remaining 963 iron rails; and then rags on top. The rags were stowed by a regular stevedore; the rails by a common laborer. The bark, according to the testimony of the master, was in perfect condition on leaving Libau, having had a new set of sails and new rigging. She sailed for New York on April 9th, touched at Copenhagen, and left the Elsinore roads on the evening of the 14th. On the afternoon of the 21st she encountered a heavy gale in the North sea, which abated on the evening of the 22d. On the morning of the 23d the vessel was found leaking heavily, and, on removing the hatches, it was discovered that the bottom of the vessel had given way in the middle, so that five of the stanchions running from the keel to the deck-beams were from two to five inches short. The mate testified that the bark sprang aleak on the night of the 21st or 22d; that they "could hardly keep it up with the pumps; it kept us pumping all the time;" that after the storm "we got down in the hold and could see that the bottom was sunk four inches, from the fore part of the main-hatch to the after-hatch; she was all the way along a little, a very little, from the fore-mast to the mizzen-mast; all the keys were

broken, and all the stanchions from the main-hatch to the afterhatch;" that "she had given way a little in the water-ways and seams;" the distance she had sunk down "when it was heavy seas was between four and five inches; she jumped up and down; the bottom was keeping jumping up and down on her;" and that after arrival at Cowes the bottom was still sunk some three inches or three and a half inches, and made at anchor about two or three inches of water per hour. On the 23d, when the hatches were opened, the bales of rags were in a heated and steaming condition. On discharging the cargo at Cowes, a few days after, some of the bales were so hot as to burn the hands in handling them. On the 28th the master, having instructions from the owners of the ship, ordered the requisite survey. In the report of April 29th it is stated that the vessel "had gone down very much in her center between the fore-part of the mainhatch and the fore-part of the after-hatch. In this part of the ship the hold stanchions were torn away from the beams and had sunk about two inches; the main-mast and the beams appeared to have gone down about two inches," and the main-mast and pumps the same. In the report of the survey of the cargo, May 11th, 524 bales and 28 bags of rags were reported in a very wet and damaged state; many of them so greatly heated as to be actually smouldering; they were directed to be kept separate and in the open air as long as practicable, with the view of partly drying them. Ten other bales, slightly wet, were directed to be opened, dried, and repacked. Upon a further survey directed by the consul, the surveyors, on the twelfth of June, reported that on previous surveys, particularly on the third of June, the bales and bags above referred to had been found extremely wet and damaged, a large number of them greatly heated, and many in a rotten and partially decomposed condition; that, where practicable, the bales were opened and exposed to the air with the view of improving their condition, and that no perceptible improvement was effected; and that, believing that they could not reach New York without becoming entirely worthless, they had on the third of June condemned the whole of said bales and bags as quite unfit for shipment and had recommended their sale at auction; and that on the eleventh of June they had again re-examined the rags with a rag merchant, and that they adhered to their previous conclusion, in which the merchant concurred. About May 25th notice of the intended sale of the rags for June 15th was given by advertisements put in the Shipping Gazette and in the local and London newspapers; hand-bills were also extensively posted. The sale was conducted by an auctioneer accustomed to the sale of all kinds of damaged cargoes, who testifies that the sale was attended by at least 150 persons, many of whom bid for the various lots; that the competition was brisk; and that he considered the sale satisfactory for goods in such a damaged condition, many of the bales being quite rotten, and "having to be packed in bags before they could be weighed."

The consul, who was examined upon commission, in answer to the general interrogatory if he knew of any other thing of benefit to the vessel or her owners, said:

"My firm, as agents, and the captain personally, communicated with the shipper of the cargo at Libau on the arrival of the ship at Cowes, and afterwards; but the shipper made no reply to such communication nor gave any directions; the parties claiming to be the owners of the rags were not communicated with, because neither their names nor addresses were known."

The repairs of the vessel being completed, she left Cowes June 25th and arrived at New York on the thirteenth of August. A portion of the rags delivered in New York, it is claimed, were in a damaged condition. The bill of lading of the rags contained the following clause: "Quality, weight, and marks unknown; the rags loaded under and over iron."

Sidney Chubb and Chas. M. DaCosta, for the shippers.
Hill, Wing & Shoudy, for the Sibbern and owners.

BROWN, J. Upon the evidence in this case it must be held that the sinking of the keel and bottom of the bark prior to her arrival at Cowes was an unusual and extraordinary occurrence. Cumming, a stevedore, one of the experts in behalf of the vessel, testified that with heavy cargoes on the ship's bottom, it was not unusual that there should be a sinking of from one to three inches, but that he never knew of a case of a sinking of five inches; and that, in his judgment, 150 tons, with possibly 20 additional, would have been a suitable weight over a space of from 40 to 60 feet along the center of the vessel, and that the sinking of the bottom, to which he refers, might or might not cause the ship to leak, according to circumstances. The mate says that her bottom dropped from four to five inches at sea, and from three to three and a half when lying still at Cowes. Karbek, the carpenter, testified that "the ship gave way; she sank in the middle four inches." Other witnesses make it from three to four inches. Although the bark met with a severe gale, which came on during the afternoon of April 21st, it was scarcely more than of 24 hours' duration, since the protest expressly states that it abated on the evening of the 23d. The sea is spoken of as running very high, and some water swept the deck; but, it must be noted, that nothing was carried away, nor a spar lost; and it seems to me that the testimony of the experts on behalf of the shippers, and their judgment, considering the circumstances above mentioned, are entitled to the greater weight, and that there was nothing so extraordinary in the weather encountered on the twenty-first and twenty-second of April as to account for the extraordinary result upon the ship, and for her dangerous leaks, had she been seaworthy in both hull and stowage when she sailed. Accepting the testimony of the master, that her hull was in good condition when she left Libau, and her rating A1 three years previous, the only adequate cause that can be perceived for this extraordinary result is in the mode of loading the iron rails,