"Question. When did they break again? Answer. Those and a great many others were broken again during the night." The first officer, in answer to the question whether the cattle were lost by being thrown overboard could have been saved, even if the sea had moderated, says: "Answer. I don't know; they might have lived or they might not have lived. One of them that remained injured and wounded on board, died in two or three days, and the same might have happened with the others. "Question. What is your judgment about it? Answer. My opinion is that after having suffered so much, I do not think they could have lived." The evidence shows that within a few hours after the cattle were driven overboard on Sunday morning, the wind abated, and afterwards, the seas. The log does not say that the seas carried away the false flooring, and the cleats thereon, by which the cattle were supported. I do not credit the officers' testimony in that regard; both because Joyce and Edwards testify that it was purposely torn up, and because the moving about of the unhurt oxen on Sunday morning, even those hampered by being fastened together, shows that the cleats still remained. During a considerable portion of the storm the steamer was hove to, i. e., as applied to a steamer, taking the heaviest seas upon her quarter-in this case upon her port quarter. In the translation of the log and of the first officer's testimony. this situation is described as "lying crosswise to the wind and sea.' The words in Spanish are "Atravesados al viento y mares." Considerable controversy has arisen as to the meaning of this phrase. There is high authority that the phrase has been used at times as a nautical phrase meaning "lying to;" that is, with the wind and sea not abeam, but at a less angle. In ordinary use the word "atravesados" would mean at right angles, or abeam. On the whole testimony I am persuaded that in this case the expression was in fact used in that sense, which is the only sense which an experienced naval officer testifies it could have in the connection in which it appears. This conclusion is confirmed by the fact that the boy who was swept off the gangway with the cattle, and who remained for some 15 minutes in the water, was pulled up the same gangway, showing that the vessel did not move much either forward or aft, as she must have done had she not at that time had the wind very nearly abeam. This agrees also with the ship's heading E. S. E., as given by the master, while the wind was from N. to N. N. E. at that time. The seas accompanying that wind would come athwartships or crosswise as stated in the log; while the seas coming from the former wind-from the northwestwould be six points aft. Upon the whole testimony in this pitiful case, I am not disposed to pronounce any unfavorable judgment upon the handling of the ship by the master. His record as a master appears to have been good, and on any doubtful question of navigation, he is entitled to the benefit of his record. He had some, though not large, experience in the transportation of cattle; and the experts called by each party place so much stress upon the special circumstances of the situation, the quality of the ship, and the necessary determination of the master's own judgment at the time, that in the circumstances testified to, I do not find any conclusive proof adverse to the master's judgment as to the navigation of the ship. The evidence leaves not the least doubt in my mind, however, that the sacrifice of a considerable number of live cattle that were not maimed or substantially hurt, was made on the morning of Sunday, the 1st of November; not from any pressing necessity, but solely from mere apprehension; and I am further persuaded that there was no reasonable or apparent necessity for this sacrifice. It was morning. The night was past. No one testifies to any pressing peril to the ship. The log does not hint of it. No reason appears why such cattle as could go about, and were actually going about, should not have been cared for and preserved. There was plainly no effort made to separate the sound from the unsound. Even the master says in answer to the question-"Were these cattle standing up that went overboard? Answer. They were down. Some may have been up. I don't know." His object plainly was to clear the deck of all the cattle from No. 3 aft, with no attempt to discriminate, or to save any. His state of mind is shown by his concluding words "We breathed happy when we saw it open." (No. 3 hatch.) 费 * * If the readiness of the master to make this indiscriminate sacrifice was hastened by the provisions of the bill of lading, which provided that the cattle "were to be at owners' risk; steamer not to be held accountable for accident to or mortality of the animals from whatever cause arising or negligence of the master or other servants of the shipowner,"-this sacrifice and the consequent pecuniary loss, furnish but another illustration of the impolicy of all such stipulations. They are invalid by the law of this country; and the further stipulation which would substitute in such matters the British law for our own, is but another form of the previous stipulation against liability for negligence, and equally invalid. The Brantford City, 29 Fed. Rep. 373, 396; The Iowa, 50 Fed. Rep. 561; Liverpool & G. W. Steam. Co. v. Phenix Ins. Co., 129 U. S. 397, 461, 9 Sup. Ct. Rep. 469. The libelants are entitled to a decree for damages for such of the oxen voluntarily sacrificed as were either in a sound condition, or not fatally wounded or maimed at the time they were cast overboard, or negligently or designedly suffered to go overboard through the open gangways on the morning of November 1st, and on the evening and night previous; this must be determined, if not agreed upon, on a reference; with costs. THE CENTURION. BREGARO v. THE CENTURION et al. (District Court, S. D. New York. June 27, 1893.) SHIPPING-DAMAGE TO CARGO CHARTERED VESSEL-NEGLIGENT STOWAGECARGO STOWED BY CHARTERER-LIABILITY. A steamship which had sugar stowed in the hold, with hogsheads of molasses in the between decks above it, delivered her cargo damaged, certain of the hogsheads having been broken during the voyage, and the molasses having drained down and damaged the sugar. The cargo was stowed in that manner by the charterer, contrary to the advice of the officers of the ship. On the evidence the court found that the stowage was not reasonably sufficient to meet ordinarily rough weather. After the molasses had flooded the hold, the sluiceway became so choked that the molasses could not be pumped up. The charterer claimed that the ship was liable, because the choking of the sluiceways was due to certain sweepings of soda, etc., left over from the ship's previous voyage, and not sufficiently cleaned out when the ship was delivered to the charterer at New York; and that such sweepings, combining with the molasses, produced a hard cement, which choked up the passages. The vessel, when tendered to the charterer, was in generally fair condition, and was inspected by charterer, and thereupon accepted without objection. The bill of lading was signed by the agent of the charterer, and the charter contained the provision that "no claim is to be made against owners for loss of cargo." Held, that the charterer was primarily liable for the bad stowage, and the fact that, after inspection, no objection had been made as to the condition of the ship on accepting her under the charter, prevented charterer from holding the ship liable for the choking of her sluiceways and inability to use her pumps. But, held, that the ship is generally liable for bad stowage, whether done by owner or charterer. Hence, the fact that charterer's agent signed the bills of lading was immaterial, and, the clause in the charter exempting the ship from liability for loss of cargo not covering a loss by negligence, held, that the cargo owner was entitled to a decree for his damage against both ship and charterer, the damage to be collected in the first instance from the charterer, who was bound to indemnify the ship, and any deficit to be paid by the ship. In Admiralty. Libels by Jose Bregaro and by the American Sugar Refining Company against the Steamship Centurion and the New York & Porto Rico Steamship Company to recover for damage to cargo. Decrees for libelants. McFarland & Parkin, for libelants. BROWN, District Judge. The first of the above libels was filed to recover for the loss, through alleged bad stowage, of a portion of 250 casks of molasses, stowed in the between decks of the steamship Centurion on her voyage from Ponce, Porto Rico, to New York in February, 1893. The second libel was to recover for damages caused to some sugar stowed in the hold beneath the molasses, and damaged by the leaking of molasses through the between decks above. The shipowners denied negligence, and alleged rough weather and peril of the seas as the cause of the loss. After the arrest of the Centurion, the New York & Porto Rico Steamship Company was brought in as defendant in the second libel upon the petition of the owners of the Centurion, upon the analogy of the fifty-ninth rule, showing that the steamship was at the time under a charter to the last-named company, under whose servants and agents exclusively her cargo was stowed, and alleging that there was no fault or negligence in the owners, but, if any, in the charterers only, and that the latter were personally bound to pay any damages arising therefrom and to indemnify the shipowners against it. Various exceptions in the bill of lading were also set up. The charterers in answer to the petition alleged that the damage arose through the defective condition of the ship's decks, bilges, scuppers, sluiceways, and bulkhead, and a neglect of the pumps. The evidence shows that the vessel was let to the charterers for a term of six months, at the rate of £740 per month; that the owners should provide and pay for provisions and wages of the captain, officers and crew, for insurance of the vessel, and some other charges; for coal, etc.; and that the captain was to be "under the orders and direction of the charterers," who were "to indemnify the owners from all consequences or liabilities that may arise from the captain in signing bills of lading;" that the charterers should "not be responsible for losses incurred by reason of default, etc., of the pilot, master or crew in the navigation of the ship, including damages by collision; but no claim to be made against owners for loss of cargo;" "all derelicts, salvage and towage to be for owners' and charterers' equal benefit;" "if the charterers should be dissatisfied with the conduct of the captain, officers or engineers, the owners on receiving the particulars of the complaint were to investigate and if necessary make a change in the appointment." The bills of lading were not signed by the master, but by the agent of the charterers. The stowage of the cargo was attended to by a supercargo appointed by the charterers, in accordance with the terms of the charter; and the supercargo insisted upon stowing the molasses in the between decks, contrary to the advice of the officers. Soon after starting, in moderate weather, some of the hogsheads were found to be rolling, and some additional checks were applied. On the third day out, in a moderate gale, but in a cross sea, the ship took a heavy lurch to starboard, by which the hogsheads in No. 2 'tween decks hold were so shifted and lodged in the starboard wing, that the vessel did not right, but kept a list of about three feet to starboard through the rest of the voyage. On arrival at New York after a voyage of nearly eight days, 88 casks of molasses out of the 250 were found broken and empty; and in others there was a partial loss from being adrift and more or less turned over, causing leakage through the open vent holes. The molasses ran down the pipes into the No. 2 hold beneath, along the sides of the ship, so as not to injure the upper tiers of sugar; but the lower tiers were damaged and partly dissolved through the swashing of the molasses from side to side at the bottom, where it accumulated to a depth of from one to two feet. It is clear that the loss of the molasses in the No. 2 'tween decks, as well as the damage to the sugar in the hold beneath, arose primarily from the extraordinary drainage; and that this was caused by the shifting of the molasses casks in No. 2 'tween decks, upon the lurch of the ship, by which many of the casks then and subsequently were broken to pieces. A secondary cause of the loss of the sugar was, that the sluiceways in the hold beneath became choked. The question whether the shifting of the cargo is fairly to be ascribed to sea perils, or to the defective stowage of the molasses, has been most assiduously treated by counsel. Upon a careful study of the testimony I am constrained to find that it arose from the place and mode of stowage, and that the stowage was not reasonably sufficient to meet ordinary rough weather such as was to be reasonably anticipated and provided for. The respondents' witness Butler, a stevedore, testified: "We are supposed to have everything well stowed and secure against ordinary rough weather -no hurricanes though." On the occasion when the molasses shifted, the weather did not approach a hurricane. It was rough; but no more than a gale, such as is often encountered, with cross seas. The weather was not extraordinary; and before any rough weather was encountered, the movement of the casks in No. 2 'tween decks was observed, which the supercargo sought to check. It is suggested that the shifting of the cargo may not have been caused by any lack of proper dunnage or coigns, but from the width of No. 2 hold, which was without supports where the hogsheads lay in tiers of 10 casks; and that as the ship rolled, the weight of the 9 hogsheads upon the one next to the wing was enough to break those hogsheads from the mere weight of the tiers. This hypothesis is to some extent sustained by the fact that in No. 3 'tween decks, where there was support from stanchions, there was no shifting or breakage. I do not see, however, that this hypothesis, even if correct, relieves the respondents. For it was their duty to stow properly and securely in the place selected for stowing the molasses; and if supporting stanchions to divide the weight of the casks were needed for security in ordinary rough weather, then they were bound to provide proper stanchions. The officers objected to stowing the molasses in the 'tween decks of this ship, where the width was greater than in the hold, the support less, and any rolling more heavily felt. Though molasses, as appears from the evidence, is sometimes carried in the 'tween decks, it does not appear what additional precautions in such cases are taken to prevent shifting or breakage. If the supercargo had a right to stow in the 'tween decks where the liability to shifting and breakage was greater, he was bound to provide the additional precautions to make that place secure against ordinary rough weather. The fact, however, that some rolling of the hogsheads was perceived and complained of soon after the voyage began, and before any rough weather was experienced, shows that the stowage was defective from the first, and discredits the hypothesis that the mere weight of the casks, in the rolling of the ship, was the cause of the derangement and shifting of cargo. The Bur |