to by the captain, his marine surveyor, the stevedore and a representative of Andrew Weir & Co. This evidence certainly leaves the responsibility for stowage upon the captain of the ship where it usually rests." The Dana [D. C.] 190 F. 650.

In the case before me, under the rules of maritime law, I find nothing in the proofs which excuses the captain for putting to sea in an overloaded vessel; and it is clear that no ship is seaworthy unless her deck cargo is properly stowed, and unless the stanchions supporting it are of sufficient strength and properly placed, and the cargo properly secured. The captain is presumed to be responsible for the ship without any express provision in the charter; and here there is an express provision in the charter giving him the supervision of the loading.

The proofs show that the master and mate saw the stanchions and found no fault with them; that the lashings were furnished by the ship and put on by the ship's crew. It appears in evidence that the superintendent in charge of the plant at Murray recommended to the master that he put an athwartship lashing at the foremast, the same to go around the foremast and be made fast on the stanchions opposite the foremast. This lashing the captain refused to use on his first trip. It appears that the suggestion was renewed by. the libelant's superintendent on the second trip, and the captain again refused to put it on; and it was on this trip that the loss occurred. It appears that on the third trip the lashing was put on.

It appears that the same stanchions, used at the time of the loss, were used on the trip previous, without trouble; that the stanchions were in place when the ship returned from Portland to Murray at the end of the first trip; that during all this time the master and mate had a chance to examine, and did examine, the stanchions; and the master says, "If I had seen that there was anything untoward in the loading of the ship, I would have protested."

The proofs are clearly persuasive that the captain exercised his duty of supervision. During the night the stevedore, McAulay, was left in charge, with instructions to call the captain at 4 in the morning; but, in loading, the list had become so great that the stevedore called the captain before 4 o'clock. The master came on the bridge in his nightclothes and gave orders with reference to the loading, conferred with and directed the chief engineer, and, at the request of the stevedore, the master stayed on deck until the loading was completed. There is evidence tending

to show that the captain might have been encouraged by the fact that, on the first voyage, the ship had proceeded in safety with almost as much tonnage on deck as she had on the second trip, and that, although she listed very heavily, she came to Portland in safety. He says that he ordered the cargo trimmed, and when she left the dock she was drawing 19 feet 4 inches forward and 21 feet 5 inches aft. She was 21/2 inches below her load marks. Without going into more details of loading, it appears from the captain's testimony that the ship in calm weather and smooth water, while still within the harbor limits, was listed to her maximum angle of safety, and according to Carmichael, a disinterested witness, she was exceeding her angle of safety by 3 or 4 degrees. At every movement of the helm after the vessel left the dock up to the time of the loss her list changed materially, and, immediately following a sharp movement of the helm, the cargo went off the port forward deck, abreast the foremast, at the place where the athwartship lashing proposed by the libelant should have been. It seems clear to me, even if the breaking of the stanchions and the lashing was the immediate cause of the cargo going over the rail, that the list of the vessel was caused by her overloaded condition, over which the captain must be held by law and in fact to have been responsible. The captain seems to have been unduly encouraged by the fact that he had got safely to Portland on another trip when the ship had listed even more than on this trip; but he admits that the cargo on this trip was somewhat heavier than on the previous trip.

From the action of the ship in smooth water, I cannot escape the conclusion that she was unfit to face the perils of the sea along the exposed area of the Atlantic Coast from Murray to Portland. One of the ship's disinterested witnesses testified that the ship's actions indicated "crankiness," and that by crankiness he meant being "topheavy," and the pilot testified:

"Q. 71. Now, whether or not in your opinion, based on your observations on the morning that you piloted the Nidarholm down when this loss occurred, in your judgment that ship would have reached Portland harbor with that deck load on her? A. Well, I don't think she would.

"Q. 72. You don't think she would? A. No.

"Q. 73. And why not? A. On account of the list she had.

"Q. 74. Have you, in your experience in piloting vessels over these same waters, with this same kind of cargo, seen vessels act the same as the Nidarholm did at that time? A. No, sir.

"Q. 75. You never did? A. No, sir." Upon the proofs I think the master cannot escape liability from the fact that the loading was done by the charterers. It was done under the supervision of the captain; and the cases make no different rule where the charterers are also the owners, as in the instant case.

In the Olsen Case, supra, the Circuit Court of Appeals for the Second Circuit went so far as to hold an implied warranty of seaworthiness of the ship in a case where the charterers did the loading and insisted upon the master's taking the deck load which afterwards had to be thrown over on account of its not having been secured properly before the ship sailed. And in that case one of the surveyors had certified that the ship could take the deck load in safety. The court held that these facts did not lessen the master's duty even if the master himself had thought that the deck load was not sufficiently secure, but had yielded to the charterers.

The learned proctor for the ship cites two cases which he contends to be decisive that the charterers, not the ship, should be held liable for bad stowage in the instant

case.

In The Thomas P. Beal, 11 F. (2d) 49, 52, the court had before it an action to recover for the loss and damage to barrels of oil, a part of a mixed cargo. The loss occurred by reason of the charterer loading the barrels of oil in a part of the ship that was too warm for the cargo. Speaking for the Circuit Court of Appeals in the Third Circuit, Judge Woolley said:

"On the issue of liability for bad stowage, as between the time charterer and the shipowner, the time charterer relies mainly on cases which hold generally, and very properly, that responsibility for the seaworthiness of a chartered ship is on the shipowner" citing many cases.

"But that, generally, means responsibility for seaworthiness of the ship as against perils of the sea; it does not, in every instance, mean responsibility for her seaworthiness in respect to stowing cargo."

The court then discusses at some length the facts in the case, and shows that the charterer booked the freight, designated places of stowage, did the stowing itself through its own stevedores, and "assumed all responsibility therefor." In that case the stowage of the cargo had nothing to do with the ship's seaworthiness, as it did in the instant case. 26 F. (2d)-7

In the case before me, the charter affirmatively makes it the duty of the master to supervise the loading and stowing, and the proofs show that he did actually attend to such supervision.

In The Santona (C. C.) 152 F. 517, 518, Judge Hough, then District Judge in the New York District, had before him a case where action was brought by the shipowners to recover for charter hire. The charterer attempted to offset the claim for hire by claiming a short delivery on some of the cargoes. The question was whether the mate was the agent of the ship or of the charterer. Judge Hough said:

"Nor is there any difficulty in formulating the consequences flowing from a letting of the ship, as distinguished from a contract for her services. In the former case, the relation between owner and charterer becomes that of bailor and bailee; whereas, in the latter, the relation is that of shipper and carrier. Carver (4th Ed.) § 112; The Barnstable, 181 U. S. 469, 21 S. Ct. 684, 45 L. Ed. 954. The difficulty lies, not in the statement of the rule or the recognition of the consequences thereof, but in its application to the infinitely varying circumstances of contract between shipowners and charterers. It appears to me that the best test of the applicability of the rule to any given state of facts is to inquire whose were the agents who wrought the injury out of which the controversy in hand arose. It is the same inquiry put by Lord Esher, in 1 Q. B. 258: 'When is the captain the owner's captain?' That question, as applied to this case, is: Was the mate, when tallying cargo, the owner's mate? And the answer to that question must be ascertained by considering the provisions of the charter party affecting the receipt, carriage, and delivery of cargo as between owner and charterer.

"Under the very ordinary form of time charter involved in this cause, it shocks knowledge common to all men acquainted with maritime business to say that the owner has surrendered the possession or control or command or navigation of his ship. But he has surrendered control of her freight and passenger capacity and handed the same over to the charterers for all lawful purposes. The ship is the owner's ship, and the master and crew his servants for all details of navigation and care of the vessel; but for all matters relating to the receipt and delivery of cargo, and to those earnings of the vessel which flow into the pockets of the charterers, the master and crew are the servants of the charterers. There is, in fact (to borrow a simile from another branch of the law), an estate carved out of the ship and handed over for a specified term to the charterer, and that estate consists of the capacity of the vessel for carrying freight and earning freight moneys, and the use of the vessel, master, and crew, for the advancement of the charterers' gains. It follows that, when the mate was tallying cargo, he was the charterers' mate, and the set-offs for shortage claimed by the respondent are disallowed."

I have quoted quite fully from Judge Hough because he shows the difficulty of applying the rule between charterers and owners "to the infinitely varying circumstances of a contract between shipowners and charterers."

In the case before me, there was "an estate carved out of the ship and handed over for a specified term to the charterer." The ship was placed at the disposal of the charterers; and the captain was under the direction of the charterers for certain purposes. But the charterers were to load "under the supervision of the captain, who is to sign bills of lading for cargo as presented in conformity with mate's or tally clerk's receipts," and, as has already been found, the captain did affirmatively superintend the stowage and decided as to the details of the loading. In view of the language of the charter in the instant case, and of all the testimony, I am constrained to find that it was the duty of the shipowner to have the ship seaworthy at the commencement of the trip, in hull, equipment, and also in the preparation for and stowage of the cargo; that this duty rested on the master; that, under the doctrine of the leading maritime cases, the master cannot excuse himself by the provision of the charter that the loading should be done by the charterers "under the supervision of the captain." The proofs show that the master did not intend, or attempt, to delegate his duties with respect to the loading; he personally supervised and "bossed" the loading, trimming, and securing of the cargo. Even if the charterers furnished the stanchions

which broke under the strain, clearly the charterers were obliged to furnish only such stanchions as would withstand a seaworthy ship, and not a ship unseaworthy by reason of being overloaded. The stanchions furnished were used on previous trips without trouble, and, from the proofs, I see no reason to find that they would not have resisted any strain brought upon them in a properly loaded ship. I think the loss was occasioned solely by reason of the ship being overloaded, with a deck cargo improperly stowed, under the supervision of the master.

The cross-libel is dismissed, with costs. decree may be entered for the libelant in No. 1132, with costs.

The case is referred to George F. Gould, Esq., and Albert B. Hall, Esq., assessors, to determine damages.

FLOWERS v. MAGOR CAR CORPORATION. District Court, D. New Jersey. May 17, 1928. 1. Courts 347(6)-That proposed counter

claim did not arise out of transaction constituting subject-matter of suit held not to prevent amendment of answer (Equity Rule 30).

Under Equity Rule 30, permitting defendant to set up counterclaim which might be subject of independent suit in equity against plaintiff, it was no objection to permitting amendment of answer that proposed counterclaim sought to be interposed did not arise out of the

transaction which was the subject-matter of the suit.

2. Courts 347 (6) Granting or denying permission to amend answer by inserting counterclaim not arising out of transaction sued on Is within court's discretion (Equity Rule 30).

Under Equity Rule 30, making it optional with defendant whether to set up in answer counterclaim arising independently of transaction constituting subject-matter of suit or to make it subject of independent equity suit, granting or denying of defendant's motion to permit amendment of answer to set up counterclaim founded on cause of action not arising out of transaction involved in plaintiff's suit, but arising subsequent to the filing of the answer, is within court's sound discretion, though rule does not expressly vest court with power to refuse permission to file counterclaim.

3. Patents 310(10)-Application to amend answer by setting up counterclaim alleging plaintiff's infringement of defendant's patent granted five months after issue joined, will be denied (Equity Rule 30).

Where defendant's patent, alleged to have been infringed by plaintiff, was not granted until five months after issue was joined on plaintiff's bill alleging infringement of plaintiff's pat

ent, and defendant's application for leave to amend its answer by inserting counterclaim alleging infringement of its patent was not made until after original suit was listed for trial by the court, following the taking and filing of depositions of nonresident witnesses, defendant's application will be denied under Equity Rule 30 as unduly delaying the suit.

In Equity. Patent infringement suit by Henry Fort Flowers against the Magor Car Corporation. On defendant's motion to amend answer and insert counterclaim. Motion denied.

Chas. L. Sturtevant, of Washington, D. C., for plaintiff.

Warren S. Orton, of New York City, for defendant.

RELLSTAB, District Judge. The plaintiff alleged infringement of its patent by the defendant. Issue was joined October 11, 1927. Depositions taken pursuant to stipulation and the statutes were filed January 12, 1928.

After the cause was listed for trial at the present term of court, the defendant moved to amend its answer by inserting a counterclaim, alleging infringement by the plaintiff of certain letters patent owned by the defendant, which letters patent were issued on March 20, 1928. The proposed counterclaim alleges that it "might be the subject, of an independent suit in equity" against the plaintiff and his named licensees.

[1] The allowance of this amendment is opposed by the plaintiff on the grounds, first, that it does not arise "out of the transaction which is the subject-matter of the suit"; and, second, that it is based on a patent issued long after joinder of the issue tendered by the plaintiff's bill, and after taking testimony in support thereof.

The first contention is sufficiently answered by equity rule 30, which, by its terms, permits the setting up by the defendant of a counterclaim "which might be the subject of an independent suit in equity" against the plaintiff. American Mills Co. v. American Surety Co., 260 U. S. 360, 365, 43 S. Ct. 149, 67 L. Ed. 306; Moore v. New York Cotton Exchange, 270 U. S. 593, 609, 46 S. Ct. 367, 70 L. Ed. 750, 45 A. L. R. 1370; Electric Boat Co. v. Lake Torpedo Boat Co. (D. C. N. J.) 215 F. 377; Buffalo Specialty Co. v. Vancleef (D. C. III.) 217 F. 91; Paramount Hosiery Form Drying Co. v. Walter nyder Co. (D. C. Pa.) 244 F. 192; Victor Talking Mach. Co. v. Brunswick-Balke-Collender Co. (D. C. Del.) 279 F. 758.

The second contention is more formidable. Equity rule 30 requires that any counterclaim set up against the plaintiff shall be made in the defendant's answer. If its subject-matter arises "out of the transaction which is the subject-matter of the suit," it must be pleaded; if it arose independently of such transaction, it is optional with the defendant whether he sets it out in that suit or makes it the subject of an independent action.

The purpose of the mandatory provision of this rule is to end in one suit all controversies arising out of the same transaction. If the defendant fails to counterclaim such a controversy, by necessary implication he is forever barred from obtaining any affirmative relief based thereon. There is no bar, however, by virtue of this rule, if he fails to counterclaim a demand not so arising.

In order "to pronounce a final judgment in the same suit both on the original and cross-claims," purposed by rule 30, a time limit must be put on the defendant's right to interpose a counterclaim. In the case of one founded on a transaction put in suit by the plaintiff, as it is actionable at the time the plaintiff's cause of action accrues, it should be interposed at the time the defendant is required or permitted to plead to the bill.

When must a counterclaim founded on a cause of action not arising out of the transaction involved in the plaintiff's suit have accrued, to permit it to be set up? No reported federal case has decided this precise question.

It was present and noted in Parker Pen Co. v. Rex Mfg. Co. (D. C. R. I.) 11 F.(2d) 533, 535, but the decision denying the motion to amend the answer by setting up a counterclaim founded on a patent issued subsequent to the filing of the original answer rested on another ground. However, in a footnote to that case, Judge Brown cites a number of English authorities which deal with a similar rule, embodied in Order xix of the English practice, and upon which the pertinent part of equity rule 30 is based. These cases are not in accord.

In Original Hartlepool Collieries Co. v. Gibb, 5 Ch. Div. 713, it was held that the counterclaim must be limited to the date when the plaintiff issues his writ. The contrary is held in the later case of Beddall v. Maitland, 17 Ch. Div. 174, which permitted a counterclaim in respect to a cause of action which accrued subsequent to the issuing of the writ.

In Gray v. Webb, 21 Ch. Div. 802, it was held that the court has a discretion to exclude a counterclaim which may unduly delay the action.

(2) The instant case does not call for a decision of the question whether the matter sought to be counterclaimed must have arisen at the time the plaintiff filed his bill, nor even whether it must have been actionable when the answer thereto was due. The granting of the motion may be considered as one resting in the sound discretion of the court, for, while rule 30 does not expressly vest the court with power to refuse permission to file a counterclaim-differing in that respect from rule 3 of Order xix of the English practice such power, in my judgment, must be presumed to exist in our equity courts, in order to prevent undue delay in determining the issues raised in the original suit. (3) In the instant case, as noted, the defendant's patent, alleged to have been in