the other pilot to what he was doing on the Shiras. He then testified that Mr. Douds did stop the Pierpont, and sounded several short whistles, to call attention of those on the Shiras to their position; but the Shiras did not stop, and never did stop until her head struck the rock. Capt. Hamilton, also in the pilot house of the Pierpont, testified as follows: "Q. Tell us what occurred after you saw the Shiras. A. Well, what made us notice her was, when they were coming out at the head of the island, they started ahead on her, and Captain McDonald made the remark, something about her going ahead, and I think I said to him, 'I suppose they have flanked too much, and maybe they are going ahead to counteract their flanking.' Captain McDonald remarked something about them going ahead, and going to kill her. Q. Well, what happened? A. Well, we came on, and stopped our boat, or ran slow, to see where she would go, so that we would know where to go to get out of the road. The Shiras kept on going ahead, and McDonald told the pilot to toot his whistle, to call his attention to what he was doing. He did so, but the Shiras kept on going ahead until about the time she struck. Could not say positively whether she stopped before she struck, but stopped about that time. I think she was backing before the tow went out on the bank." And again, on cross-examination: "Q. She was going ahead? A. Yes, sir. Q. At any considerable head of speed, or slowly? A. Going ahead as hard as she could," And Mr. Douds, the pilot of the Pierpont, gave the following evidence: "I first noticed the Shiras. I was on watch, and, as I have stated,-about it being a narrow place in the river,-I wanted to pass the Shiras, and for that reason was watching her movements. She was stopped, and then started ahead; and I thought perhaps she had stopped her headway too much, and was perhaps drifting on the bar. But she continued to go ahead. The boat did not stop; boat did not stop; boat going ahead, and the boat was crossways of the river. Then she came ahead stronger, and full head; and then I seen something was wrong, and began to sound the whistle,-sounded the whistle two different times, to draw their attention, as I thought they were likely mistaken, and that the boat was going into the bank. She continued to go ahead until the coal boat struck the bank, without stopping." And again: "Q. When you first noticed the Shiras, what was her position in the river? A. Well, she was what we would say 'crosswise.' Q. Quartering? A. Yes, sir. Coming down such a current, you come with the current, straight in, with your head right towards the shore,-coming right in, straight, of course, with the current, but the turn to make; and that requires that a tow should be flanked, because we cannot steer around fast enough to make the turn, as a general thing. We do, on some occasions, steer; but it is much safer to flank. Q. State whether or not the Shiras did flank. A. She commenced to flank, in the first place, but, instead of continuing on to back, they came ahead on the boats. Q. Could you tell what bell they were under when they struck the bank? A. No, sir; was not in hearing distance of the bells. Q. And why did you give those whistles that you spoke of? A. Because I thought that it was a mistake. We talked of it in the pilot house,-Captain McDonald, and the captain on the boat,-and seen that it could not be anything else but a mistake, and that they thought they were backing." The statements of these witnesses are more or less corroborated by certain of the deck hands of the Shiras; but, as their evidence was given under objection, it will be disregarded. A much stronger (and, as it seems, conclusive) corroboration is to be found in the unv.61f.no.3-20 contradicted and, in fact, admitted statements of the captain of This is testified the Shiras, made immediately after the accident. to by Mr. Theis, who is a member of the firm of C. Jutte & Co. He says: A. On "Q. Did you have any telephonic communication with Captain Morris after A. I did. Q. On what day? A. In C. Jutte & Co.'s this contract or agreement was made? the 7th of February, 1890. Q. And where were you? A. Mr. Morris told me he was at office. Q. And where was Captain Morris? Q. Economy when I talked to him. Q. Did you talk to him through the teleQ. Did you recognize Mr. Morris? A. Yes, sir. phone? A. Yes, sir. A. The conversation was: He asked if Bill or August were What was said? I inquired from him in the office, and I told they were, and he asked me to tell one of them to go down as soon as possible; that he had struck his tow. how it came about, and he said the engineer had made a mistake in the bells, and went ahead, instead of back." A similar account of the cause of the accident was given by Capt. Morris to James Slade, the pilot of the steamboat Dave Woods, which was immediately sent down to the scene of the accident, to Mr. Slade testified as folrender such assistance as she could. lows: "Q. Did you ever talk with Captain Morris about the accident while you were there? A. Why, down on the barge, after we landed alongside the stuff, I asked Mr. Morris how it happened; and he made the statement that, if the boat had been backing, it would not have happened." And again, when Mr. C. Jutte inquired of Capt. Morris the cause Mr. Jutte testiof the accident, Capt. Morris gave the same reason. fied as follows: "Q. Did you have any conversation with Mr. Morris? A. Yes, sir. Q. Just tell us where it was, and when. A. It was after I got down to the boat on the Dave Wood. Mr. Morris told me that he noticed the boat going through the water, ahead, and he went downstairs, and asked the engineer why he didn't give him steam sooner. The engineer told him he had given him steam as soon as the bell rang, and he went forward, and noticed the boat going ahead, and he went back, and looked at the wheel, and he was satisfied that the boat was a-going ahead, and he ran downstairs, and went to the engineer." And finally, to Mr. W. C. Jutte, Capt. Morris reiterates the same explanation. Mr. Jutte testified as follows: "Q. Did you have any conversation with Captain Morris? A. Yes, sir. Q. Q. Tell us, in detail, what When? A. The evening, right there, on the boat. it was. A. I asked Mr. Morris how they come to sink the boats, and Mr. you have any other conversation? A. I don't know. We had other conversations with him. He asked me if we would give him enough tow to go down. Q. Did you have conversations with the engineer about the accident? A. Yes, sir; I had a conversation with him the same evening, and I got him to repeat the same thing the next day. Q. What was it? A. I asked Mr. Lozier how they come to make the mistake to cause them to sink the boats at Deadman's, and here is what Mr. Lozier told me; I took it down in pencil. Q. Look over it, and tell us what he did tell you, taking that as a memorandum. A. I saw Mr. Lozier, and asked him how he came to make the mistake that caused him to sink the boat; and Mr. Lozier said the engines were reversed for backing, and he said the going-ahead bell rang, and he said he reversed the engines, and set them in motion for going ahead. And he said the engines had been going ahead for about a minute, when Mr. Morris went into the engine room, and asked him what he was doing, and he said the boat was going ahead until she hit the bank. Q. Did you make a memorandum of this conversation? A. Yes, sir. Q. When? A. On the 8th,-the day of the accident. I asked him the same day of the accident the same thing, when we were there, and I asked him the next day, to get him to repeat it again. Then I made a memorandum of it again, and repeated it, right in his presence. Q. Did you refresh your recollection of this conversation from this memorandum you made at this time? A. Yes, sir. Q. Did you see the pilot, George W. Moore, there? A. Yes, sir; I saw Mr. Moore the evening of the accident, and asked him the same thing; and Mr. Moore told me that, if the engineer hadn't made a mistake, they would not have sunk the coal." That these statements were made by the men upon the Shiras is not contradicted. Capt. Morris alone seeks to explain his admission by asserting it was simply based upon his opinion, and he had become satisfied at the time he testified that he had made a mistake. No explanation is offered at all by the others. In their testimony, it is true, they now deny that the Shiras was going ahead, and insist that she was backing as strongly as she could continuously from the time she should have commenced to flank. But clearly they are mistaken, for Capt. Morris, noticing that the engine was not backing when the tow was in a critical position ran down from the pilot house to the engine room (to quote his own words) "to see what was the matter. I wanted to know why he was not backing. There we was, in a very critical position." So it was evident that for some space of time, when the situation was very critical, the engine was not backing, notwithstanding the confident assertions of the pilot and engineer to the contrary. It is very significant that the revised explanations of the accident are given fully two years after it occurred. The damaging admissions were made on the very day it happened, when all the incidents were fresh, and the causes which operated to produce it would have been perfectly well known and understood. It is impossible to resist the conclusion that this accident must be laid to the mistake or negligence of the Shiras. The attempt to show a vis major has failed to convince, while the preponderance of testimony is that the Shiras was not backing as she should have been at the critical point of her flanking maneuver, but that her engines were going ahead. In reviewing the testimony in this cause, the fact has not been overlooked that shortly before the Shiras arrived at Deadman's island the steamboat Hornet, which preceded her about an hour, in flanking this part of the river, had the misfortune to lose a part of her tow by having it cast upon the shore by the force of the storm then prevailing. This fact was strongly pressed upon this court at the argument, as it seems to have been upon the court below. But it has failed to impress. It is quite certain that the Hornet was in her difficulty fully an hour, if not a longer period, previous to the arrival of the Shiras. The wind storm which affected her came from Sewickley side of the river. Sewickley is on the right bank of the Ohio. The wind which is claimed to have cast the Shiras on the bar came up and from and through Stoop's hollow. Stoop's hollow is upon the left side of the river. If the cause of the accident to the Hornet is to be relied upon in the attempt to establish a vis major in the case of the Shiras, it must be the same cause, operating at the same time, in the same way, and with the same effect; otherwise, it is wholly unimportant and irrelevant. There is no evidence whatever that the gale which wrecked the Hornet continued for an hour thereafter, or that its power for injury remained constant. On the contrary, such evidence as bore upon this matter tended to prove that after 1 o'clock, when the Hornet was wrecked, the storm lessened. There can be, therefore, no analogy between the cases, and no logical deduction as to the similarity of the cause which produced the accident in the respective cases. The result reached is that the decree below must be reversed, and the cause remitted to the lower court to be proceeded with in accordance with this opinion. THE ELIZA LINES (four cases). CARGO ex THE ELIZA LINES. ANDREASEN v. TWO HUNDRED AND NINETY-FIVE THOUSAND FEET OF LUMBER et al. (Circuit Court, D. Massachusetts. April 3, 1894.) Nos. 3,545-3,550. 1. ADMIRALTY PRACTICE-CONSOLIDATION. Proceedings on separate libels relating to the distribution of the proceeds of a vessel, her cargo and freight, none of which can be wholly disposed of without regard to one or more of the others, may be consolidated and tried together, evidence previously given being applied only to issues with reference to which it was taken. 2. SAME-SUBSTITUTION OF CLAIMANT. The allowance of an amendment of a claim by substituting a new party as claimant is ineffectual, if such party fails to submit to the jurisdiction. 3. SAME-SUBSTITUTED SERVICE-CROSS LIBELS. In a suit for salvage against a derelict vessel, her cargo and freight, the master claimed the vessel and cargo, and prayed for delivery of both, on stipulation. The owners of the cargo intervened, and prayed for delivery of the cargo to them without payment of freight, and also filed their libel for delivery thereof, in response to which the master filed a claim to the cargo, and an answer. He afterwards filed a libel against the cargo and its owners for payment of freight and general average, setting out the proceedings on the previous libels. Held that, as this libel was a cross libel to each of the prior suits, the court had power to order the monition thereon served on the proctors of the owners of the cargo, they being nonresidents, and on such service to proceed to judgment against them per sonally in all matters covered by the cross libel; and a subsequent dismissal of their own libel, on their motion, did not affect the jurisdiction so obtained. 4 SAME-APPEAL-OBJECTIONS NOT RAISED BELOW. On a libel for freight against cargo and its owners, no exception to the joinder was made in the court below, and no warrant was issued against the cargo. Held that, on appeal, the objection must be considered as waived. 5. SHIPPING-BOTTOMRY-COMMUNICATION WITH OWNERS. Owners of a vessel having failed to supply money which they knew would be needed for ordinary disbursements at her port of loading under a charter, made by their agent, although they had ample time to do so, her master, a part owner, having no funds of his own, obtained, on bottomry, at a fair rate of maritime interest, money covering only ordinary port disbursements, to which the other owners, when informed thereof, made no objection. Held, that they could not afterwards object to the transaction for failure of the master to communicate with them in advance. 6. SAME-HYPOTHECATION OF VESSEL AND Freight. The documents on which advances were made to a master consisted of an application for a loan on freight to be earned on a proposed voyage; a note signed by him, promising payment "fifteen days after arrival at the port of destination, or other intermediate port at which shall end the voyage," and containing a hypothecation of the ship and freight, and an assignment of enough of the freight to cover; and "rules for loans on freight," also signed by the master, which provided that the freight and vessel should be liable for payment of the loan. Held, that the loan was on bottomry of ship and freight, not on the general credit of ship. 7. SAME-FORM OF BOTTOMRY BOND. Provisions of the law of the flag, prescribing minute particulars for the form of bottomry bonds, even if they could affect transactions in a foreign port, are waived by the execution in such a port of a bottomry bond in a different form by the master and part owner without objection by the other owners. 8. SAME-LIEN OF BOTTOMRY. After bottomry of a ship and freight, she became derelict, and was taken by salvors into a port distant from her destination. The cargo was unloaded and sold, by order of court, on application of its owners; and the vessel was repaired by her owners, and proceeded on another voyage. Held, that the bottomry became a lien on the net salvage of vessel and freight, but was not entitled to the benefit of the repairs. 9. SHIPPING FREIGHT-DERELICT BROUGHT IN BY SALVORS. A vessel abandoned by her officers and crew was brought by salvors into a port distant from the port of discharge under her charter. In a suit for salvage against the vessel, cargo, and freight, her master promptly claimed the vessel and cargo, praying for delivery of both on stipulation, and obtained delivery thereon of the vessel, which he proceeded with great diligence to repair for the purpose of completing the voyage; but the cargo was claimed by the charterers, as its owners, and sold on their application. Held, that the master was entitled to delivery of the cargo, on giving proper stipulation, and that the abandonment, followed by the possession of the salvors and of the court, did not deprive the vessel of freight, if prepared to earn it. The Kathleen, L. R. 4 Adm. & Ecc. 269, 2 Asp. 367, disapproved. 10. SAME. The right to freight, under such circumstances, did not depend on a quantum meruit, nor on diligence of the master and of the owners of cargo in applying for its possession; nor was it affected by the ordinary cesser clause in the charter, which does not extend beyond the liability of the charterer as such. 11. SAME-FREIGHT AND AVERAGE-SALE OF CARGO FOR INTEREST OF OWNERS. The sale of the cargo was made under an interlocutory order on application of its owners, not for necessity, but for their interest alone. Held, that it subjected them to the same liability as though they had obtained a |