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Opinion of the court.

right cheek and ear and the back of her head were cut, and severe bruises were inflicted upon her body. From the injuries received she was unable for several weeks to assist herself, and required constant attention, suffering all the time intense pain. At the trial in the District Court, more than a year after the accident occurred, she could not move without pain, and it is the opinion of the surgeon who attended her that she is permanently disabled. We do not think, therefore, that any just objection can be made to the amount found.

The principal question made in the courts below was, whether the libellant was entitled to recover against both of the vessels, or only against one of them; and if only against one of them, which one; and this question depends for its solution upon the further question, whether the collision resulted from the fault of only one of the vessels, or from the fault of both of them.

The libellant alleges that the collision was caused by the negligence, want of skill, and improper conduct of the persons navigating both of the vessels.

The claimants of the Gregory contend that the collision was caused by the attempt of the Washington to continue her course and cross the bow of the Gregory after the latter, as they allege, had ported her helm so as to head to the New York shore and pass to the right of the Washington, and had blown two blasts of her whistle, at short intervals between them, as signals to the Washington of the course she intended to take.

The claimants of the Washington, on the other hand, impute the collision to the deviation of the Gregory from her usual course, which they contend would have taken her under the stern of the Washington, and her attempt to cross the bow of the Washington after the latter had indicated, as they allege, by two blasts of her whistle, that she was going ahead of the Gregory.

We have looked into the evidence presented by the parties with much care. As in nearly all collision cases, it is, in some respects, conflicting, but, in our judgment, shows that

Opinion of the court.

both vessels were in fault. The collision occurred in open day, between the hours of ten and eleven in the morning. The weather at the time was clear, and the vessels were in full sight of each other from a distance of several hundred yards until they collided. The Washington was moving at the rate of twelve miles an hour, going down the river, about two hundred yards from the piers on the New York side. The Gregory was moving at the rate of between nine and ten miles an hour, crossing the river diagonally. Neither of the vessels paid any attention to the signals given by the other, but each continued on her course without waiting for a response, or coming to an understanding with the other vessel as to her course, and neither attempted to slacken her speed until too late to prevent the collision. We We agree with the Circuit Court that neither pilot nor master of either vessel could have been taken by surprise at the meeting of the vessels, as each must have seen that the courses adopted and pursued necessarily led to it, and also that those courses were deliberately pursued by the pilot and master of each with the purpose of compelling the other vessel to change her course.

We do not feel called upon to vindicate our conclusions by citations from the evidence, which fills over one hundred and thirty printed pages of the record. The citations would illustrate no principle, and serve no useful purpose.

Both vessels being in fault, both were liable to the libellant, and both could be proceeded against in the same libel. The damages were properly apportioned equally between the two vessels, the right being reserved to the libellant to collect the entire amount of either of them, in case of the inability of the other to respond for her portion.*

DECREE AFFIRMED.

The Steamer New Philadelphia, 1 Black, 62.

Statement of the case.

THE KEOKUK.

1. The law creates no maritime lien on a vessel as security for the performance of a contract to transport a cargo, unless some contract of affreightment has been made.

2. Such a contract cannot be implied against a transportation company from the fact that a man has loaded a barge belonging to the company, by means of his own men, without any knowledge by the company of what he has done, and then delivered bills of lading to the agent of a steamer of the line, the agent at the moment being very much engaged with other matters, just before the steamer, which it was expected by the shipper would tow the barge, sets off; no sufficient statement being made by the shipper, when so delivering the bills, what bills they are, and the agent himself having no knowledge of what has been done in the particular case, nor of the contents of the bills.

APPEAL from the Circuit Court for the District of Wisconsin; the case being this:

The La Crosse and Minnesota Steam Packet Company. were, during the year 1865, owners of the steamer Keokuk and of several barges, including one named the Farley, which were running on the Mississippi River between La Crosse and Winona, and engaged in carrying freight. On the 23d of October, in that year, the Keokuk towed the barge Farley to Winona, and left her moored at the dock at that place, not however in any one's charge. On the 27th, at about five o'clock in the afternoon, one Robson, a shipper at Winona, getting on the barge, took her to the elevator near by, and with his own men, loaded her with wheat to be shipped to La Crosse. He did not ask permission of the master of the Keokuk to load the barge, nor inform either him or any other person of his intention to load her. He had, however, previously, at times, taken possession of barges and loaded them, and they were afterwards towed by the packet company to La Crosse; he had done this by permission of the officers of the packet company, but had never had permission to do it from the captain then in command of the Keokuk.

The Keokuk did not arrive at Winona from La Crosse

Argument for the appellant.

that night until after dark. The night was a very stormy night, and it was snowing hard. The vessel landed at what was known as the lower landing, about fifty rods from the elevator, where the barge then was, and after unloading put off again at about twelve o'clock at night for La Crosse. While the boat was laying where she was, the bookkeeper of Robson came to her second clerk, who was "very busy checking off freight," in the dark in the storm, a lantern in one hand and his book in the other, and handed to him two papers, saying, "Here are the bills of that barge." The clerk took them with some assenting remark, and put them in his pocket without opening them; "so that the rain should not spoil them." There was no explanation what bills the bills were, and nothing further took place between the parties. No book was presented to the clerk to sign and no receipts asked for. This clerk subsequently laid the bills on the first clerk's desk in the boat, the place where he usually put bills. He was not positive, but he thought that when he put them there he said to the first clerk, "Here are those bills." He did not himself know their contents. No other notice than that already mentioned was given to the officers of the boat that the barge had been loaded, and none of the officers were aware of the loading of the barge until they were one-third of the way back to La Crosse. The papers were then discovered to be memorandum bills of lading of the barge. The barge was not watched by Robson, and in the morning it was found sunk at the dock where he had left it. Thereupon Robson filed a libel in the District Court of Wisconsin against the steamer, the barge, and the packet company, charging that the barge was unseaworthy, and that the cargo was lost by carelessness of the master and officers of the steamers. There was no proof to sustain the charge of unseaworthiness.

The District Court decreed for the libellant; the Circuit Court affirmed the decree. The packet company appealed.

Mr. J. W. Cary, for the appellant :

The law creates no lien on a vessel as a security for the

Opinion of the court.

performance of a contract to transport a cargo, until a cargo is shipped under it. In Vandewater v. Mills,* this court says: "Maritime liens are stricti juris, and will not be extended by construction. The obligation between the ship and cargo is mutual and reciprocal, and does not take place till the cargo is delivered on board." Now here there was no sufficient delivery.

Mr. Emmons, contra:

The rule, as laid down by this court, in the case cited by Mr. Cary, is explained by it in Bulkley v. The Naumkeag Steam Cotton Company.† There the master receipted for a hundred bales of cotton, to be carried on his vessel, and placed it on a lighter, of which he had control, to be transferred from the warehouse in the city of Mobile, to his vessel, lying outside the bar. The cotton was lost by fire on the lighter before reaching the vessel. It was held that a delivery of the cotton to the lighterman was a delivery to the master, and bound the vessel.

Mr. Justice DAVIS delivered the opinion of the court.

It is a principle of maritime law that the owner of the cargo has a lien on the vessel for any injury he may sustain by the fault of the vessel or the master; but the law creates no lien on a vessel as a security for the performance of a contract to transport a cargo until some lawful contract of affreightment is made, and the cargo to which it relates has been delivered to the custody of the master or some one authorized to receive it. The inquiry then arises whether there was any contract to carry the wheat in question, and, if so, was the barge containing it delivered to the custody of the steamer? It is very clear, had the steamer taken the barge in tow, the lien would have attached, although the bills of lading were not executed, because the act of towing the barge would be evidence that the grain was received, and

* 19 Howard, 82.

† 24 Id. 386. Schooner Freeman v. Buckingham, 18 Howard, 188.

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