charter-party in which the owner contracted that the vessel should proceed without delay to Baltimore to enter upon an engagement to carry grain, she was engaged in an employment, of which no intimation was given to the charterers, which could not be reasonably expected to terminate for 30 days; and before she could be freed from that employment and be made ready for sea there would in all probability be a delay of from 30 to 40 days.

I am unable to see, in the instrument itself, or in the situation of the parties, anything to lead me to think that such a delay was within the intention of the parties, or is within the terms of the contract. The stipulation for the right to load a cargo of coals as ballast rather favors the idea that the vessel was ready to take ballast aboard and enter upon the voyage; and as it is well known that coals could hardly, under any circumstances, be a profitable cargo to bring from Genoa to Baltimore, it may well be that when the charterers consented to that stipulation they counted upon no more coals being put aboard than would suffice for ballast, or that she had then on board from her previous voyage. The permission to take a cargo of coal as ballast was, therefore, by no means equivalent to permission to discharge a cargo of coal. It would be, I think, unwarrantably enlarging the terms of the contract to so construe it as to allow the vessel permission to consume all the time necessary to discharge one cargo of coals and to take on board another,-operations requiring at that port not less than two months. It is a matter of general knowledge that, in charter-parties to carry grain, time is a more essential element in the calculation of the charterer than in other contracts for the use of vessels, and it would seem only fair dealing that such an obstacle as existed in this case to the possibility of the vessel proceeding without delay should have been made known to the charterers.

I have been unable to satisfy myself that the vessel did proceed without delay, as stipulated, and I will sign a decree dismissing the libel.

NOTE. See Von Lingen v. Davidson, 1 FED. REP. 178, and 4 Fed. Rep. 346.

RUGER V. RECK.

(Circuit Court, E. D. Pennsylvania. October 28, 1880.)

1. CHARTER PARTY-CONSTRUCTION GUARANTIED TONNAGE-DEFICIENCY-NO ALLOWANCE WHERE STIPULATED CARGO IS LESS THAN ACTUAL TONNAGE. — A vessel guarantied to have a capacity of 1,250 tons was chartered to carry a cargo of petroleum, etc., to Leghorn, and to bring home marble in blocks, "the latter, if any shipped, not to be more than 600 tons," with sufficient rags for dunnage. The vessel proved to have a capacity of only 1,085 tons, and an allowance was made upon the sum paid for the outward voyage. On the return voyage the charterer furnished only a cargo of 600 tons of marble and 120 tons of light cargo. Ield, that as the stipulated return cargo was only 600 tons of marble, no allowance could be claimed by the charterer for the deficiency in the vessel's tonnage, and that this provision as to the size of the return cargo could not be overcome by proof that vessels loaded with marble always carried light cargo also, and that the quantity of marble was named because insurers objected to vessels carrying more than three-fourths of the cargo in marble.

In Admiralty.

Appeal from a decree of the district court dismissing a libel filed by Ruger Bros. & Co. against F. Reck, owner of the bark Sebastian Bach. The facts were as follows:

Libellants chartered the bark for a voyage from Philadel phia to Leghorn and return, with the privilege of rechartering her.

The charter contained a guaranty that the vessel would carry 1,250 tons, and also contained the following stipulations:

or

or

or

or

"The said party of the second part doth engage to provide. and furnish to the said vessel a full and convenient cargo of such lawful merchandise, as the charterers may require, for the voyage out, refined petroleum and rosin and pitch and tallow and tobacco and home, marble in blocks, the latter, if any shipped, not to be more than 600, say, six hundred tons of twenty-five cubic Genoese palms each, customary mercantile Carrara measurement. If any piece of marble exceeds five tons, all extra expense for loading and discharging same to be paid by the party of the second *Reported by Frank P. Prichard, Esq., of the Philadelphia bar.

part. Sufficient rags to be shipped to dunnage cargo; and to pay to the said party of the first part, or agent, for the use of the said vessel during the voyage aforesaid the sum of £1,925, say, nineteen hundred and twenty-five pounds sterling, in full for the round voyage, both out and home, of which £1,250, say, twelve hundred and fifty pounds sterling, or its equivalent, is payable upon correct delivery of the outward cargo at port of discharge in the Mediterranean, and the balance of amount of this charter, or its equivalent, to be paid upon correct delivery of the homeward cargo at the port of discharge."

Libellants furnished a full outward cargo, but the vessel was found to have a capacity of only 1,085 tons, and her owners repaid to the libellant a proportionate amount of the £1,250 paid for the outward voyage. On her return voyage libellant furnished only a cargo of 600 tons of marble and about 120 tons of light cargo. Upon the completion of the homeward voyage the master retained out of freight collected from the consignees of the cargo the whole £675 stipulated to be paid for the return voyage. Libellants thereupon filed this libel, claiming a portion of this sum proportionate to the difference between the guarantied capacity and the actual capacity. Respondents claimed that, as libellants had not furnished a full cargo, the fact that the vessel could not have carried 1,250 tons was immaterial, and further alleged an agreement on the part of libellants not to make any claim for the deficiency in tonnage.

The district court dismissed the libel on the ground that, by the terms of the charter-party, the £675 was to be paid for a cargo of only 600 tons of marble, with sufficient rags for dunnage, which cargo had been carried.

Libellants appealed, and took depositions in the circuit court of witnesses who testified that vessels laden with marble always brought home light cargo in addition, and that the reason for specifying in the charter-party the quantity of marble to be carried was because the insurance companies objected to a vessel carrying over three-fourths of her registered tonnage in marble.

Edward F. Pugh, for libellants.

Henry Flanders, for respondent.

MCKENNAN, C. J. It is very difficult to put any other construction upon the disputed clause of the charter-party here than that adopted by the learned judge of the district court, I, therefore, adopt his opinion.

Nor do I think that the evidence taken in this court changes the construction of the charter as given to it in the court below. To prove that it is usual for vessels carrying marble to carry also light cargo, and that insurance companies require a specification in the charter-party of the number of tons of marble which a vessel may take, which is not to be exceeded, will not change the meaning of an unambiguous contract, such as we have here.

The decree of the district court is therefore affirmed, and the libel is dismissed, with costs.

POLLOCK V. STEAM-BOAT LAURA, etc.

(District Court, S. D. New York. December, 1880.)

L PENALTY FOR CARRYING EXCESS OF PASSENGERS-REV. ST. 4465-REMISSION-REV. ST. 5294-INFORMERS-PRACTICE-THIRTY-FIRST ADMIRALTY RULE-U. S. CONSTITUTION-FIFTH AMENDMENT-PERMISSION NOT IN WRITING-REV. ST. 4466.

The power conferred on the secretary of the treasury by Rev. St. § 5294, to mitigate or remit penalties incurred under Rev. St. 4465, relating to steam-vessels, for carrying a greater number of passengers than the certificate of inspection permits, is not a power to pardon. It is a condition annexed to the grant of the penalty, and the statute must be construed not with reference to the limitations on the pardoning power, but with reference to the principle of public policy which led to the enactment of the statute.

His power to remit or mitigate penalties extends as well to those given to the person suing for the same as to those given to the United States, or partly to the United States and partly to the informer, and can in all cases be exercised after as well as before suit brought, provided the informer's claim has not been actually determined by the

court.

The term "informer," as used in Rev. St. § 5294, includes the

plaintiff in a popular action, or a person suing for a penalty given by statute to any person suing for the same.

Where a libel was filed against the steam-boat L. to recover penalties under Rev. St. § 4465, and the claimant,-a corporation,—as owner of the boat, defended and filed an answer, which neither admitted nor denied the allegations of the libel as to the number of passengers taken on board in excess of the number allowed in the certificate of inspection, but left the libellant to prove his allegation in that behalf, giving as a reason for not answering further that its answer might subject the claimant to a forfeiture or penalty:

Held, on- exception to this part of the answer, that admiralty rule 31 applied to such a case, and protected the defendant from answering further; that that rule is to be interpreted as carrying into effect the fifth amendment to the constitution of the United States, which forbids that "any person shall be compelled in a criminal case to give evidence against himself," and the corresponding rule of the common law, which forbids the compulsory admission of liability to a pecuniary forfeiture or penalty.

That a corporation is protected under the rule equally with a natural person, and that the rule applies as well to admissions that may involve a liability for a penalty in the case in which the answer is made, as to admissions that may be used in another case or prosecution against the party answering.

Where the claimant pleaded, in his answer to a libel filed under the Rev. St. § 4465 an oral permission to carry additional passengers on excursions, under Rev. St. § 4466, which requires that the permission should be in writing:

Held, that this defence could not avail the claimant, and that part of the answer must be stricken out upon exception as immaterial.

In Admiralty.

Henry G. Atwater, for libellant.

D. McMahon, for claimant.

CHOATE, D. J. This is a libel to recover penalties under Rev. St. § 4465, for carrying a greater number of passengers than the certificate of inspection permitted. By Rev. St. § 4469, penalties so incurred are made a lien on the vessel. After the filing of the libel the claimants, who are owners of the steam-boat, applied to the secretary of the treasury for a remission of the penalty, and after they had served their answer a warrant of remission was issued, wherein the secretary, by the authority given him by Rev. St. 5294, remits to the petitioners, claimants herein, "all the right, claim, and demand of the United States, and of all others whatsoever, to the forfeiture of passage money and penalties, on payment of