between the splices and this parting. The splicing done at Cleveland the night before involved such handling of the rope by the rigger who made it, and the mate and others who assisted, as to enable them to say that the rope at the place where it parted the next day presented no appearance of a defect. The rope was presented in court at the hearing, and examined by experts, who testified that it was apparently sound, smooth, pliable, and of good quality. The evidence of those who saw the rope after the accident was that the break extended for some four feet, and presented the appearance of having been pulled apart. The wires in the ends were fagged and of uneven length. These witnesses were not mechanical experts, but they say that the fagged ends presented no indications of defect. Some comment has been made by counsel that the rope has not been presented in court in its original condition. The piece presented shows that the fag ends had apparently been broken or chopped off. This is probably due to the fact that the fag ends were broken or chopped off by some person carelessly, or with a purpose to conceal defects. When it parted, the broken rope was taken out, and suffered to lie among other worthless articles. A sailor was seen on one occasion to be engaged in pulling out some wires to make fender ropes. He was stopped, and the mate ordered to put it away and keep it. That mate died, and the rope was lost sight of, a part only being found pending the trial, coiled up in a barrel in the hold of the ship. So many witnesses speak positively as to the appearance of the fag ends, now gone, that we can see no motive moving defendants to destroy evidence, and we are disposed to believe that at most they have not been duly mindful of the propriety of preserving the broken rope intact. The rule on the Olympia regarding inspection of the steering gear was that it should be examined before entering rivers or ports, and the evidence is that such examinations were ordinarily made. Two or three hours before this collision, the Olympia had entered the Detroit river, coming off Lake Erie. The master testified that the mate, who died before this suit was brought, was sent by him to make this investigation. In obedience he went, and returned in a few moments, reporting, "All right." Our conclusion is that this rope was in an apparently sound and serviceable condition at the time it parted. 2. Was it due to mismanagement of the steering wheel? The full force of the power of the steering engines suddenly thrown upon the steering gear might produce such a sudden strain as to snap the wheel rope. This full force could only be exerted by very suddenly putting the steering wheel hard over. If there was no necessity for putting the wheel hard over suddenly instead of slowly, and a parting was the result, negligence might well be imputed. But the evidence rebuts the theory that this was the prob able cause. The evidence of the wheelman does not show that the wheel was put hard over, or suddenly handled in any way. The ex pert evidence is that, if broken by a strain due to the power of the steering engines, the greatest force would have been exerted forward, and not aft, where this break occurred.

3. If the break was due to a strain from the steering engine, then the effect was not the result of any negligence in managing that engine, but was attributable to an uncontrollable caprice of steam In either event, the accident or an inherent weakness in the rope. A severe strain would be produced on the rope was unavoidable. by the contact of the rudder with an obstruction; such as a submerged log. In that case the greatest strain would be aft, just There is no evidence whatever tendwhere this parting occurred.

ing to show that such a blow was received by the rudder.

While Regarded as a

a possible cause, it was not the probable cause. possible cause, the defendants would be guilty of no fault in that respect, for the obstruction was a hidden one, against which no precaution would have availed.

There is no But if, by exclu

4. Was it due to any latent defect in the rope? affirmative proof that there was such a defect. sion, we have ascertained that it was due to no other possible cause, Under such cirwe must conclude this to be the probable cause. cumstances the doctrine "res ipsa loquitur" would have application. Whether this defect was due to the fault of the manufacturer or was the result of use, the defendants would not be in fault, unless it was of such a character as that by such examination as was in The rope was, their power to make it could have been disclosed. when bought, such as a prudent and cautious owner might safely No test, save that of the hand and eye, was put in his vessel. possible. It was bought, as the best of its kind, from reputable We do not think outfitters. The manufacturer is undisclosed. this important. The article was such as was adapted to the purpose for which it was used, and was such as was customarily used The owners of vesby prudent men engaged in the same business.

They

sels are not, as to strangers, under any liability as warrantors of the sufficiency and soundness of machinery or equipment. are bound to use that degree of care in the selection of machinery and equipments which persons of ordinary prudence are accustomed to use and employ for the same purpose.

In the case of The Lizzie Frank, reported in 31 Fed. 477, the rule was stated thus:

"When a vessel is constructed and equipped in the mode usual and customary with other vessels of like character, and in a mode approved by competent judges and previous experience, then, in case of an accident happening by reason of a latent defect in the equipment and construction, there is no negligence on the part of the owner."

In the case of The Flowergate, 31 Fed. 762, it was held that: "The use of an eye bolt, apparently sufficient for the purpose for which it was employed, but in reality insufficient, solely because of a latent defect, entails no liability for a personal injury caused by such a defect." See, also, The Litania, 19 Fed. 101; Marsd. Coll. 11-24. 33, Mr. Marsden sums up the rule thus:

At page

"A ship is not one of those things dangerous in themselves, which entails upon their owners the responsibility of insuring safety, but the law casts upon the shipowner the duty of using reasonable care to insure that his ship when she sails, and while she is under way, is in a condition in which she

may be navigated with safety to other ships. If she damages another ship in consequence of the giving away or inefficiency of her gear or equipment, a prima facie case of negligence arises. The presumption of negligence may, however, be rebutted by showing that the defect was latent, that reasonable care was in fact used to put and keep her in good condition, or that the giving way of the gear was due to stress of weather, or other unavoidable cause."

In the case of The Grace Girdler the question of what would be an inevitable accident was considered, and the rule of diligence defined in these words:

"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." 7 Wall. 196.

This states the measure of care applicable to the navigation of a ship, and we think is equally applicable to the equipment of a vessel and the use and care of that equipment. It was the rule which met the approval of the learned district judge, and fully meets our approval. Upon the whole body of the proof, we find ourselves unable, as was the district judge, to say that we are convinced that the effect was due to any one of the possible causes suggested by the evidence, or in argument. It was probably due to one or both the causes suggested by the opinion of the district court. If it was attributable to a sudden strain (about which we have much doubt), that strain was an effect consequent upon a careful and proper use of the power of the steering engine, and is ascribable to some undefinable law of steam known only by capricious manifestations. If due to an inherent and latent defect in the rope (as we think more probable), then the defendants were not in fault, for it was such a defect as was only discoverable by taking the rope to pieces, and subjecting it to expert examination. If defendants have shown, with respect to each possible cause, that the effect could not have been avoided by the use of care, caution, and skill, then the effect was in law unavoidable, and the collision, in legal phraseology, inevitable.

It is not meant by the expression "inevitable accident" one which it was physically impossible, from the nature of things, for the defendant to have prevented. We only mean that it was an occurrence which could not be avoided by that degree of prudence, foresight, care, and caution which the law requires of every one under the circumstances of the particular case. The rule in maritime law does not differ from that at common law, where there is no contractual relations between the parties. The able proctor who has appeared for libelants has himself defined an inevitable accident as an occurrence which could not possibly be prevented "by exercise of care, caution, and maritime skill." Marsd. Coll. 8-11; The Michigan, 52 Fed. 507. In the case of The Morning Light (a collision case) the court said that "inevitable accident may be regarded as an occurrence which the party charged with the collision could not possibly prevent by the exercise of ordinary care, caution, and nautical skill." 2 Wall. 560, 561. The common-law definition is

substantially the same. An accident is said to be inevitable when it is not occasioned in any degree, either remotely or directly, by the want of such care and skill as the law holds every man bound to exercise. Dygert v. Bradley, 8 Wend. 473. A distinction exists between the liability of one in contractual relations to another as to the soundness and safety of machinery or appliances, as in the case of carrier and passenger, and the liability to a stranger. That distinction is recognized and stated in the Nitro-Glycerine Case, 15 Wall. 537, 538, and Railroad Co. v. Elliott, 149 U. S.. 271, 13 Sup. Ct. 837. In the Nitro-Glycerine Case, the court held that a steamship company was not liable for damages resulting from the explosion of nitrogylcerin while in its possession as a carrier. It held that the accident, under the circumstances, was unavoidable, and that the consequence of all such accidents must be borne by the sufferer as his misfortune. In discussing the circumstances under which an accident might be regarded as inevitable, and therefore to be borne by the person upon whom its consequences fall, the court said:

"This principle is recognized and affirmed in a great variety of cases,-in cases where fire originating in one man's building has extended to and destroyed the property of others; in cases where injuries have been caused by fire ignited by sparks from steamboats or locomotives, or caused by horses running away, or by blasting rocks, and in numerous other cases which will readily occur to every one."

Proceeding, the court said:

"The rule deducible from them is that the measure of care against accident which one must take to avoid responsibility is that which a person of ordinary prudence and caution would use if his own interests were to be affected, and the whole risk were his own. And the principle is not changed whether the injury complained of follows directly or remotely from the act or conduct of the party." 15 Wall. 538.

Tried by this rule, we think, on the evidence, that no sufficient error is shown to justify a reversal of the district court. Whether the effect was due to one or the other of the possible causes suggested on the record, it is sufficiently shown that the effect could not have been prevented by that degree of foresight, care, and caution required by law. The decree must be, therefore, affirmed.

CABOT v. MCMASTER.
MCMASTE

(Circuit Court, N. D. Illinois. April 27, 1894.)

JURISDICTIONAL AMOUNT IN FEDERAL COURTS-SUIT ON PENAL BOND. When one sues for the full amount of a penal bond which exceeds $2,000, but at the trial his own evidence shows that he actually claims less than $2,000, the case must be dismissed. Act March 3, 1875, § 5. Postmaster General v. Cross, 4 Wash. C. C. 326, Fed. Cas. No. 11,306, distinguished.

This was an action by Samuel Cabot against William I. McMaster, as surety on a penal bond. Defendant moved to dismiss the case for want of jurisdiction.

Dent & Whitman, for plaintiff.

Hand, Milchrist & Smith, for defendant.

BUNN, District Judge. This is an action brought against the surety on a penal bond given by the defendant, with one Edwin A. Mason as principal, in the sum of $6,000. The bond was given for the faithful performance of a contract with the plaintiff made by Mason, the principal in the bond, and for the payment over of all moneys coming to his hands under said contract. The declaration sets out the bond and contract in full, and charges a breach of the contract on the part of Mason, and a breach of the conditions of the bond, in the sum of $6,000 damages, for which sum the plaintiff prays a judgment against the defendant. Several pleas were pleaded by the defendant, the effect of which is to deny the indebtedness charged, and the breach of the conditions of the bond, and to put the plaintiff to prove the same. Upon the trial, which was without a jury, the plaintiff, by his own showing, proved a breach of the contract upon Mason's part, and consequent breach of the conditions of the bond in suit, in the sum of $1,496; and there was no contest on the trial as to this being the amount due the plaintiff from Mason, and which he had failed to pay over according to his contract and the terms and conditions contained in the bond. But it was insisted by the defendant that he was, in law, released from his obligation, as surety, to pay this sum, because of an extension in the time of payment given by the plaintiff to Mason. Then a motion was made on the trial by the defendant's counsel to dismiss the action for the want of jurisdiction in this court, on the ground that the amount in controversy does not exceed the sum of $2,000. On the part of the defendant, it is contended that the amount in controversy is the sum actually due by reason of the breach of the condition of the bond; and, on the plaintiff's part, it is claimed that the amount in controversy is determined by the amount named as the penalty in the bond. The defendant's contention, it seems pretty clear, is the one that must prevail. If nothing but the pleadings in the case were to be looked to, no doubt the amount in dispute should be adjudged to be $6,000; but when the proof is taken, and the plaintiff, by his own evidence, shows that he is only claiming a recovery of $1,590, it would seem preposterous to say that the sum in actual v.61F.no.2-9