that the method of dealing with the cargo by the consignee, disclosed in that case, and which was permitted by the ship-master without notice or suggestion of an intention to enforce the lien for freight, was sufficient to warrant a decision that the lien had been abandoned. That decision cannot, however, as it seems to me, be held to cover such a case as the present. Indeed, an intention on the part of the court to prevent the decision from being held applicable to a case like the present seems to be indicated by the remarks in the opinion which had been quoted above. When closely examined, the opinion delivered permits the conclusion that the court intended to declare no more than this, namely, that the lien for freight is not lost so long as the cargo remains in the actual or constructive possession of the ship-master; that cargo may "pass into the hands" of the consignee, and still be in the constructive possession of the ship-master; and that cargo will be held to be in the constructive possession of the ship-master when the facts proved fail to show a delivery made with the intention on the part of the ship-master to abandon the lien for freight. Such seems to have been the opinion of Mr. Justice CLIFFORD, who, in the opinion delivered at the circuit shortly after the decision in the case of Bags of Linseed, said:

"The lien [for freight] is one that is favored by the courts, and will be enforced, unless clearly displaced by the acts of agreements of the parties." The Anna Kimball, 2 Cliff. 4.

It may also be noticed that Mr. Justice NELSON participated in the decision rendered in the Bags of Linseed case, without alluding to his prior decision made at the circuit in the case of One Hundred and Fifty-One Tons of Coal, 4 Blatchf. 368, where he said:

"Now, the mere manual delivery of the coal by the carrier to the consignee does not, of itself, operate, necessarily, to discharge the lien. The delivery must be made with the intent of parting with his interest in it, or under circumstances from which the law will infer such an intent. The act of the party is characterized by the intent with which it is performed, either expressly or by necessary implication."

If Mr. Justice NELSON had understood that the opinion delivered in the Bags of Linseed case declared a different law from that declared by him in the case of One Hundred and Fifty-One Tons of Coal, it may well be believed that he would not have allowed that opinion to pass without remark from him. The claimants also cite the case of Egan v. A Cargo of Spruce Lath, 41 Fed. Rep. 830, (decided by Judge BROWN, February 25, 1890, and since affirmed by the circuit court, 43 Fed. Rep. 480,) as an authority adverse to the lien in this case. But in that case no demand for freight was made as soon as the laths were delivered. Here, demand was so made. There, no demand for freight was made of the person to whom delivery was made. Here, demand was made of the person as soon as, and at the place where, the laths were discharged. There, the delivery was made in expectation that the eight would be paid, either by the consignee or by the shipper, and that shipper was at Quebec or Whitehall. And the court finds the facts proved in that case to be inconsistent with an intention to hold a lien for freight after the

delivery. Therefore, because an absence of intention to hold the lien was proved, the lien was held to have been abandoned. In the case at bar the facts proved justify a finding that the act of discharging the laths was accompanied by a present intention to hold the laths for freight. Such a finding compels a decision that the lien for freight had not been abandoned.

Thus far the question under discussion has been confined to the lien. sought to be enforced against the laths; but the libel is filed not only against the laths, but also against some lumber that formed part of the cargo, and was bought from the consignee by a different party from the party who had bought the laths. The facts attending the discharge of the lumber differ somewhat from the facts attending the discharge of the laths. But, inasmuch as a joint answer by the owner of the laths and the owner of the lumber was permitted to be filed without objection, and a single bond was given for both laths and lumber, which bond is executed by the claimant of the laths, who, as it appears, was, by arrangement with the original consignee of the cargo, to pay the freight on both the lumber and the laths, it seems unnecessary to consider whether the lien still attaches to the lumber. Justice will be done by holding the bondsmen liable for the whole freight and dismissing the libel against the lumber without costs, without destroying the question of lien.

The next question to be considered is whether the master's demand for freight at the rate of 55 cents per thousand was justified. The bill of lading delivered to the master at Montreal, under which the voyage was thereafter performed, fixes the rate of freight at 55 cents per thousand. The original consignee, Weed, refused to pay more than 50 cents, because he had received from D. Murphy & Co. what purported to be a bill of lading in which the rate of freight was stated to be 50 cents per thousand. This bill of lading was signed by one of the firm of D. Murphy & Co. as agent of the master, but it was never exhibited to the master or the owner until after the completion of the voyage, and its execution by the shipper as agent of the master was without authority. The bill of lading first issued by the shipper and delivered by his agent at Montreal to the owner of the boat, and under which the voyage was thereafter performed, must be deemed to be the contract binding upon the parties and the cargo. It follows that the master was right in demanding freight at the rate of 55 cents.

The next question to be considered is whether the amount paid by Christian for piling the laths in his yard can be deducted from the freight. Here the provision in the bill of lading, "the consignee to have the option of unloading cargo at the rate of 20 cents per thousand feet, "should, as it seems to me, control. Under this the master was bound to unload his cargo, unless the consignee elected to do it, for 20 cents per thousand. Christian refused to unload the laths under the provision of the bill of lading, and the only remaining duty upon the master was to unload it himself into the carts which the consignee provided. He was not bound to pile the laths in the rear of the consignee's yard, nor can he be charged the expense of such piling, never having agreed so to do. The libelant

is therefore entitled to recover his freight without any deduction for the expense of piling.

In addition to the claim for freight the libel also seeks to recover six days' demurrage at the rate named in the bill of lading. Upon the testimony, I am of the opinion that the master can charge for two days' demurrage, and no more. A decree will therefore be entered in favor of the libelant against the laths seized, in accordance with this opinion. The amount, as I figure it, is $169.74, with interest from September 27, 1888.

THE AGNES MANNING.1

THE MANHATTAN v. THE AGNES MANNING.

(District Court, E. D. Pennsylvania. October 31, 1890.)

1. COLLISION-STEAM AND SAIL-LOOKOUTS.

A steamer and a schooner were approaching in a clear night, on opposite courses. When the vessels were a few lengths apart the schooner was first seen by the steamer, though, as her lights were burning brightly, she should have been seen one and one-half miles away. The steamer had only one man on lookout and three men on deck. Held, the lookout was defective, and the steamer in fault for not keeping off.

2. SAME.

Where a vessel, whose duty it is to keep off, is known to respond tardily to her wheel, she is especially bound to maintain a vigilant lookout. 3. SAME-CHANGING COURSES.

The steamer acknowledged herself in fault, but claimed that porting her helm, when executed, would have carried the vessels clear but for the starboarding of the schooner. The schooner acknowledged starboarding, but claimed it was done some time before the collision. Held, as the evidence of the time of the schooner's starboarding was conflicting, and the probabilities were against its having been done after the steamer ported, the charge of contributory negligence was not proved.

4. SAME-CHANGE OF COURSE-IN EXTREMIS.

Where a steamer had come so close to a schooner sailing on an opposite course, without discovering her, that extreme measures were taken to port her to avoid collision, a starboarding of the schooner then made was in extremis and excusable.

In Admiralty.

Petition by Clarence Birdsall et al., owners, to limit the liability of the schooner Agnes Manning for collision with the steamer Manhattan, and libel by the Manhattan against the Manning. The admitted facts. were that the Manning, a large four-masted schooner from Baltimore to New York, and making 7 to 10 knots, and the steamer Manhattan from New York to West Point, Va., making 10 to 12 knots, collided near Fenwick light. The steamer's evidence tended to show that the schooner was seen when three-fourths of a mile off, and that the steamer ported, bringing the vessels on clearing courses, and that after the steamer ported the schooner starboarded, bringing the vessels into collision. The schooner admitted starboarding, but claimed it was done when the ves

'Reported by Mark Wilks Collet, Esq., of the Philadelphia bar.

sels were far apart, and that the changes then made were slight, and that the steamer ported only immediately before the collision. The evidence showed that there was only one lookout (three men altogether) on the steamer's deck at the time of the collision, and that the porting was done very rapidly, the pilot and the wheelman both turning the wheel.

Robinson, Bright, Biddle & Ward, for libelant.

Henry R. Edmunds and Curtis Tilton, for claimant, cited—

As to the duty of an ocean-going steamer to have two lookouts: The Colorado, 91 U. S. 692. The duty of the steamer to see the schooner: The Abby Ingalls, 12 Fed. Rep. 217; The Falcon, 19 Wall. 75. As to the evidence necessary to show contributory negligence by the schooner: Haney v. Packet Co., 23 How. 291. As to a change of course of the schooner, if made after porting of the steamer, being made in extremis: The Maggie J. Smith, 123 U. S. 355, 8 Sup. Ct. Rep. 159; The Elizabeth Jones, 112 U. S. 514, 5 Sup. Ct. Rep. 468; The Cadiz, 20 Fed. Rep. 157; The Norwalk, 11 Fed. Rep. 922; The Reading, 43 Fed. Rep. 398.

BUTLER, J. The Manhattan was in fault. The proofs show this very distinctly, so distinctly that her proctor admitted it on the argument. Her duty required her to keep off, and she did not. Her lookout was defective, and the Manning's approach was not observed until the vessels were so near each other as to create danger, notwithstanding the fact that her lights were burning brightly and the night was favorable to a distant view. They should have been seen readily a mile and a half away, yet they were not observed until the vessels were but a few lengths apart. This is the more reprehensible because the Manhattan was known to respond tardily to her wheel.-While admitting her fault, (which is amply sufficient to account for the disaster,) she charges the Manning with contributory negligence. Such charges, under similar circumstances, are very common. The crew of the offending vessel usually seeks to relieve itself from censure and responsibility by charging the other with improper change of course and voluntarily running into danger. To sustain such a charge the evidence should be very clear. In this case it certainly is not. While the witnesses for the Manhattan say the schooner changed after they had ported, those from the latter declare just as positively that she did not. They say a slight change was made much further back, a considerable period before the Manhattan ported, and that this was the only change made. These witnesses are most likely to be accurate respecting the fact. If the wheel was changed, as charged, they must know it, while the others might be mistaken; and they certainly have no greater motive for falsifying than the latter. sides, they are supported by the probabilities of the case. It is improbable that she would so change after seeing the Manhattan turn in that direction and thus run into greater danger. It is quite clear, to say the least, that the charge of contributory negligence is not proved.

Be

If it were proved, however, it would not tend to relieve the steamer. The vessels were then in peril, and the change, though erroneous, would be excusable. That the situation was perilous when the steamer ported

cannot well be doubted; the conduct of the officers shows it. They resorted immediately to extreme measures, such as are only taken to escape threatened danger. It is evident they were seriously alarmed. The steamer's claim to damages cannot, therefore, be sustained, and a decree must be entered accordingly.

THE JERSEY CITY.1

CORNELL STEAM-BOAT Co. v. THE JERSEY CITY.

(District Court, E. D. New York. November 11, 1890.)

COLLISION-FERRY-BOAT AND TOW-CROSSING COURSES.

A tug, with several boats in tow along-side, came down the North river, rounded to, and lay about 350 feet from the New York piers, holding herself against the ebbtide, and waiting for the steam-boat City of N., which was coming up astern, to pass inside of her. While so waiting, a ferry-boat, bound from Jersey City to New York, attempted to pass between the tow and the City of N., and her paddle-wheel struck the outside boat on the starboard side of the tug, causing it to sink. Held, that the ferry-boat was liable for the damage.

In Admiralty. Suit against the ferry-boat Jersey City for damage by collision. See 43 Fed. Rep. 166.

R. D. Benedict, for libelant.

Robinson, Bright, Biddle & Ward, for claimants.

BENEDICT, J. Upon the merits of this case, it need only be said that the libelant is entitled to a decree, unless the defense set up by the ferryboat is maintained. That defense is that there was room enough for the ferry-boat to pass between the tow and the City of Norwich in safety, on her way to her slip, but that she was prevented from passing in safety by the action of the tug in dropping down the stream, and thereby so narrowing the space between the City of Norwich and the tow as to make it impossible for the ferry-boat to pass without striking the stern of the tow as she did. This defense, however, is not supported by the evidence. The weight of the evidence is the other way. There must therefore be a decree for the libelant, with an order of reference, to ascertain the damages.

'Reported by Edward G. Benedict, Esq., of the New York bar.