aware of the fact that the action of the alcalde had never been approved by the gov

ernor.

From the fact of Baca's omission to name this land as his property we must infer that such actual possession as he had taken of a small portion of this land never led him to suppose that he was the owner of it, or that he had any title to it.

It was, in fact, an occupation of a comparatively small piece of the land in question, for the purpose of pasturage, but in no way exclusive in its nature, and under no claim of right or title. Hence the omission of Baca to mention the land as his property, or to refer to it in any way.

The action of the Mexican government in

I

terest in the sitio of Las Enlames, which I purchased of the late Antonio José Baca. I also declare as my property that which I have in a room in my house set apart as a store, and in which there are forty-five pieces of calico, domestic, and muslin. I also declare as my property two houses I have in La Joya de Sevilleta, together with their share of lands in the sitio. also declare as my property a house I have in the village of El Paso del Rio del Norte, with its vineyard and corresponding land, as appears from the document executed for me, and which is in my possession. I also declare as my property the land I have in the sitio of Sansal, which Juan Antonio Baca paid me, and which was received by Tomas Sanchez. I also declare as my property the broken lands I have in the sitio of Mansano, and my interest therein, together with the will under the management of José Antonio Torres. I also declare as my property a mill I have in this place of San Fernando. I also declare as my property four hundred and fifty head of cattle from the brand up, seven thousand head of small stock, eight hundred ewes of mine which Don Francisco Ortiz has on shares, one thousand ewes which Gonzales, who resides at Seboyeta, has on shares. I also declare as my property forty broken mules, a little more or less; twenty-four aparejos, with accessories; one hundred horses between unbroken and broken; twentyfour young mules one and two years old; two asses. I also declare th't Don Mateo Sandoval

owes me

[Good for seal third for the years 1833

and '34. Rubric.]

four hundred and thirty dollars in money, which I order collected. I also declare that, according to the cash book in my use, and the obligations that have been made to me, collections be made of all the individuals who owe me, and are not credited on their accounts and obligations. I also declare that I owe the house of the late Francisco Chaves four thousand and odd dollars in money and five thousand ewes I had from said house on shares. I order that it be paid. I also declare that I owe as tithes at El Paso del Norte four thousand dollars. This is being paid, and what is found not to have been paid, I order that it be paid. I also declare that I owe to Don Santiago Arichavala for one thousand two hundred sheep. I order that they be paid for. also declare that I owe Don Rafael Ortiz for six hundred sheep for the year eighteen hundred and thirty-four. I order that they be paid for. also declare that I owe my stepson, José Luna, for five hundred sheep. I also declare that Don Ricardo Ester owes me four thousand five hundred dollars. I order that it be collected. I also declare that Don Ignacio De La Campa, who lives in Sonora, owes me one thousand five hundred and fifty-six dollars, two reals. I order that it be collected. I also declare that Don Alexandro Legren owes me four hundred dollars, two hun

I

I

making grants to third parties of certain portions of these lands as vacant and unoccupied lands is also of some importance. The grants were made at times which were long subsequent to the petition of Baca and the making of the return of the alcalde, and were made after an official examination of the lands then granted, and a certificate that they were vacant.

We express no opinion as to the validity of these grants, and we allude to the subject only for the purpose of pointing out how the facts appeared to the Mexican officials, who, at that time, were engaged in an investigation of the question of occupancy, and who reported the lands mentioned in the respective grants as vacant and unoccupied, which

dred of which appear in an obligation he executed for me, and for the other two hundred he made no obligation. I order that it be collected. I also declare as my property a tract of land in the sitio of Lunas, which Antonio José Padilla paid me. I also declare that Ruybali De Savinal owes me for three hundred ewes. I order that it be collected. I also declare that Vicente Provencio, who resides at Oposura, in the state of Sonora, owes me five hundred dollars in money. I order that it be collected. I also declare that all the servants of my house, according to their accounts, are obligated to earn them in the house, even to the last real, and he who does not wish to serve shall pay in full. I also declare as my property forty she goats, which are in the possession of Gertrudis Montoya, who resides in Belen. I also declare as my property one iron cot and two bells.

[Good for seal third for the years 1833

and '34. Rubric.]

I also declare as my property a cross with its iron weather vane, which is used on the belfry. I also declare that I leave to my wife, Dona Maria De La Luz Chaves, my dwelling and all the household furniture within the doors thereof, it being observed that I have given houses to all my children; to Manuelita the house I have in Santa Fé, with its corresponding land; and to all the others I have also given houses in this place of San Fernando, with their respective lands. I also declare that I leave to my wife, Maria De La Luz Chaves, the land inclosed by a wall I have in this place and orchard.

In order to carry out all the wishes this will contains, and which the codicil will contain, in case I leave one, I appoint as my executor, in the first place, my wife, Maria De La Luz Chaves; in the second, Don Jacinto Sanches; and, in the third, Don Enrique Luna,-and each one in solidum; and I give them ample power to take possession of my property as soon as I die, and to pay all I owe, and that their collection be lawful and real, and that they make it with the legality their good conscience may indicate to them, which charge shall continue for the legal year and as much more time as they may need, since I extend it. And after it is completed, and everything is paid, in the sale of my property, furniture, real property, rights and shares, present and future, I constitute as my sole and universal heirs my wife, Dona Maria De La Luz Chaves, and my said children, Maria Rita, Manuela Antonio, Maria Manuela, Juan Clemente, Manuel, and Maria Lugarda, who, after paying all I owe (except what I have given them), shall make lump of what is left, the half for my said wife and the other half to be shared in equal parts by my children, that they may enjoy it with the blessing of God and my own. And by these presents I revoke and cancel the wills and other testamentary provisions I may have made hereto fore.

we may assume they would scarcely have done had Baca or his heirs then been in the actual possession and occupation of those very lands.

We have now referred to the substance of all the evidence contained in this record, and we are compelled to conclude that the petitioner has failed to make out a title of any kind to the land in question. While the court below failed to give judgment to the petitioner for the full amount of her claim, yet it did give her judgment for the amount already stated of 11 square leagues of land. The court found that the grant was an imperfect grant at the time of the cession of the territory to the United States.

In our view of the case, no grant, perfect or imperfect, was in existence at that time, and hence the finding of the court that the petitioner was entitled to a confirmation of 11 square leagues within the limits of the outboundaries of the tract cannot be sustained.

The act creating the court of private land claims (above cited) provides in the first subdivision of section 13 for the confirmation of imperfect grants.

This court has construed the language there used to mean, "not only that the title was lawfully and regularly derived, but that, if the grant were not complete and perfect, the claimant could, by right, and not by grace, have demanded that it should be made perfect by the former government, had the territory not been acquired by the United States." Ainsa v. U. S., 161 U. S. 208, 223, 16 Sup. Ct. 544, 549.

The same construction was upheld in U. S. v. City of Santa Fé, 165 U. S. 675, 714, 17 Sup. Ct. 472, and it is again approved in U. S. v. Sandoval, 167 U. S. 278, 293, 17 Sup. Ct. 868. After a full consideration of the case, we must hold there is not sufficient evidence to show that at the time of the cession of the territory of New Mexico to the United States the predecessors or grantors of the petitioner had any title of any kind whatever, perfect or imperfect, to the land described in the petition herein, and, consequently, there could be no confirmation of any alleged imperfect title or grant.

The judgment of the court of private land claims must, therefore, be reversed on the appeal of the United States, and the record remanded to that court, with directions to enter judgment in conformity with this opinion.

fit, are to be construed most strongly against him.

2. By the law of both England and America the ordinary contract of a common carrier by sea involves an obligation to use due care and skill in navigating the vessel and carrying the goods; and an exception, in the bill of lading, of perils of the sea, or other specified peril, does not excuse him from that obligation, nor exempt him from liability for loss or damage from one of those perils to which the negligence of himself or his servants has contributed.

3. The concurring decisions of the district court and the circuit court of appeals upon a question of fact in an admiralty cause are to be followed by the supreme court, unless clearly shown to be

erroneous.

4. An exception, in a bill of lading of cattle, as follows: "On deck, at owner's risk; steamer not to be held accountable for accident to or mortality of the animals, from whatever cause_arising," does not cover a jettison of uninjured cattle, in rough weather, by order of the master, from unfounded apprehension, in the absence of any pressing perils of the ship, and without any attempt to separate them from cattle previously injured.

5. A wrongful jettison of sound cattle by order of the master, from unfounded apprehensions, during rough weather, is not a "loss or damage occasioned by causes beyond his [the carrier's] control, by the perils of the sea, or other waters," or "by collisions, stranding, or other accidents of navigation," in the meaning of the bill of lading.

6. A jettison of cattle by the master, from mere unfounded apprehension, during rough weather, is not barratry, there being neither intentional fraud, breach of trust, nor willful violation of law.

On a Writ of Certiorari to the United States Circuit Court of Appeals for the Second Circuit.

This was a libel in admiralty in the district court of the United States for the Southern district of New York by William W. Brauer and Frederick C. Brauer, residing and doing business as partners under the name of William W. Brauer & Co., at Richmond, in the state of Virginia, and by the Reliance Marine Insurance Company, Limited, of Liverpool, a corporation organized under the laws of Great Britain, against the Compania de Navigacion La Flecha, a corporation organized under the laws of Spain, and owner of the steamship Hugo, to recover for the loss of cattle shipped by the partnership October 24, 1891, on deck of the Hugo, at New York, for Liverpool, under a bill of lading, the material parts of which are copied in the margin, the parts there printed in ordinary type being in print, and those in italics being in writing, in the original.1

1 Received in apparent good order and condition, by the Spanish steamer Hugo, from Wm. W. Brauer & Co., to be transported by the good steamship Hugo, now lying in the port of New York, and bound for Liverpool, one hundred and sixty-five live cattle on deck. On deck at owner's risk; steamer not to be held accountable for acctdent to, or mortality of, the animals, from what ever cause arising; being marked and numbered as per margin (weight, quality, contents, and value unknown), and to be delivered in like good order and condition at the port of Liverpool (or so near thereto as she may safely get) unto shippers' order, or to his or their assigns. Freight prepaid in New York. General average payable according to York-Antwerp rules.

It is mutually agreed that the ship shall have liberty to sail without pilots; to tow and assist vessels in distress; to deviate for the purpose of

The libel alleged that the vessel, having 165 head of live cattle on board, sailed for the port of Liverpool on October 24, 1891; that "about October 31, 1891, the said vessel having encountered some rough weather, the master and crew of said vessel became panicstricken, and drove overboard 126 head of cattle; the said vessel did not incur any extraordinary or unusual stress of weather, and the act of said master and crew in driving overboard said cattle was wholly unnecessary, and the loss of said cattle was due to the incompetency and lack of skill of the master and crew"; that the vessel after

saving life or property; that the carrier shall have liberty to convey goods in lighters to and from the ship at the risk of the owners of the goods; and, in case the ship shall put into a port of refuge, or be prevented from any cause from proceeding in the ordinary course of her voyage, to transship the goods to their destination by any other steamship.

It is also mutually agreed that the carrier shall not be liable for loss or damage occasioned by causes beyond his control; by the perils of the sea, or other waters; by fire from any cause, and wheresoever occurring; by barratry of the master or crew; by enemies, pirates, or robbers; by arrest and restraint of princes, rulers, or people; riots, strikes, or stoppage of labor; by explosion, bursting of boilers, breakage of shaft, or any latent defect in hull or machinery or appurtenances; by collisions, stranding, or other accidents of navigation, of whatsoever kind (even when occasioned by the negligence, default, or error in judgment of the pilot, master, mariners, or other servants of the shipowner, not resulting, however, in any case, from want of due diligence by the owners of the ship, or any of them, or by the ship's husband or manager); nor by decay, heating, putrefaction, rust, sweat, change of character, drainage, leakage, breakage, or any loss or damage arising from the nature of the goods or the insuliciency of packages; nor for land damage; nor for the obliteration, errors, insufficiency, or absence of marks or numbers, address or description; nor for risk of craft, hulk, or transshipment; nor for any loss or damage caused by the prolongation of the voyage.

14. Also, that this contract shall be governed by British law, with reference to which law this contract is made.

And, finally, in accepting this bill of lading, the shipper, owner, and consignee of the goods and the holder of the bill of lading agree to be bound by all of its stipulations, exceptions, and conditions, whether written or printed, as fully as if they were all signed by such shipper, owner, consignee or holder.

*White Star Line. Cattle Contract-Memorandum of Agreement Concluded at New York the Tenth Day of October, 1891, between H. Maitland Kersey, Agent of the Spanish Steamer Hugo, and Messrs. William W. Brauer & Co., of Richmond, Virginia.

The agent agrees to let to the said shipper suitable space, as undernoted, for the transportation of live cattle; this is to say:

On the steamer Hugo, intended to sail from New York about Oct. 24th, 1891, for Liverpool, England.

For about one hundred sixty live cattle on the upper deck.

No other cattle to be carried this voyage.

The shipper agrees to ship all the cattle, as above mentioned, at the rate of fifty shillings, British sterling, for each animal shipped on open cecks.

The shipper especially agrees to prepay freight on the above-mentioned shipments on date of

wards arrived safely at Liverpool, and delivered to the shippers or their agents 38 of the cattle in good condition, 1 having died; and that the insurance company, having insured the cattle, paid the partnership for the loss, and took an assignment of its rights of action against the steamer and her own

ers.

The answer alleged that the receipt, transportation, and delivery of the cattle were subject to the terms and conditions of a contract between the shippers and the respondents, dated October 10, 1891 (which is copied in the margin), and of the bill of lading; ad

sailing, in current funds at the rate for which prime bankers are selling sight bills on London, on the number of cattle shipped at New York, vessel lost or not lost, and irrespective of the number landed at the port of destination; and the shipper assumes all risk of mortality or accident, however caused, throughout the voyage.

Stalls to be put up at ship's expense, and to be constructed to the satisfaction of the inspector or underwriters interested, and to the satisfac tion of shipper, who will assume all responsibility for same, and for the various appliances for ventilation after shipment of cattle.

The steamer undertakes to supply sufficient good condensed or fresh water for the use of the animals during the voyage; also water casks and hose.

Steamer to provide space, free of charge, for corn and strictly compressed fodder for animals, but freight, if demanded, shall be payable on any unusual excess of fodder landed at port of destination. If fodder be supplied that is not strictly compressed, a proportionate quantity may be carried on deck.

Steamer to supply suitable gangways and elevators for loading cattle.

Steamer to give free passage over and back and to supply bedding to drovers in charge of animals (not exceeding one man to every thirty cattle), and, if not returning direct to port of sailing, to provide free intermediate passage back for foreman, and free steerage passage back for other attendants, by first available steamer of this line.

Steamer to give six running days' notice of her intended departure, and twelve hours' notice of the hour the cattle must be delivered to her, but such notices to be given or received are subject to become inoperative in case of strike or stoppage of labor.

Steamer guaranties to sail as soon after shipment of all the animals as tide and weather permit, or pay expenses of keep of animals at the rate of 50c. per head per day in full.

Steamer has privilege of exceeding her net reg ister tonnage in grain, upon paying to shippers the extra premium charged by the underwriters with whom the animals are insured.

Shippers to deliver the cattle to the vessel between sunrise and sunset, at the dock or in the stream, at their option.

Shippers guaranty to deliver animals by expiry of notice, provided vessel is ready for them, or to pay for detention of steamer at the rate of £50 per day.

In case of nonarrival of vessel in time to sail from New York on or before November 4, 1891, shipper has option of cancellation.

The line form of live-stock bill of lading to be used for cattle shipped under this contract, and its conditions to govern any questions not provided herein, subject to U. S. government inspection.

Any dispute arising under this contract to be settled by arbitration in the usual way. Dated New York, October 10th, 1891. H. Maitland Kersey. Wm. W. Brauer & Co.

mitted the sailing of the vessel with the cattle on board, and a loss of the cattle; denied the other allegations of the libel; and contained the following averments:

"Further answering the said libel, the respondent avers that, by the terms and conditions of the contract and bill of lading under which the said cattle were received for transportation and delivery, it was provided that the carrier should not be liable for loss or damage occasioned by causes beyond his control, by the perils of the seas or other waters, or by other accidents of navigation, even when occasioned by the negligence, default, or error in judgment of the master, mariners, or other servants of the shipowner; and that the cattle were carried on deck at the owner's risk, and under a special provision that the steamer should not be held accountable for accident to, or mortality of, the animals, from whatsoever cause arising. There was a further provision that the contract should be construed and governed by the law as administered in the courts of Great Britain, with reference to which law the contract was stated to be and was made.

"And the respondent avers that the loss of said cattle was due to the perils of the sea encountered upon the said voyage, which broke certain of the cattle houses, and set the cattle adrift; and that during the continuance of the perils, and by reason thereof, certain of the cattle were washed overboard, and others were thrown about the deck, bruised and with broken limbs, and reduced to a dead, dying, or hopeless condition; and that, upon such being taken to the gangways, they were washed over by the seas."

"And the respondent avers that the care given to said cattle was according to the best judgment of the master of said steamer; and that, if he erred in his judgment, or was in any degree negligent,-which the respondent denies,-that still this respondent is absolved from accountability and responsibility by reason of the terms of the bill of lading; and also that, by the law as administered in the courts of Great Britain, the respondent, being itself without fault, is validly, under the terms of the said contract and bill of lading, absolved from all responsibility for any negligent or improper act or conduct on the part of the master, mariners, or other servants of the respondent."

It was stipulated by counsel "that the English judicial decisions, as contained in the printed decisions of the law or admiralty courts, may be referred to by either party as evidence of the English common or maritime law as administered in the English courts."

The conclusions of fact of the district judge were summed up in his opinion as follows: "During three days from October 30th to November 1st. mclusive, the vessel met heavy weather, during which there was heavy rolling of the vessel. The cattle were in pens on deck, a few forward under and near the

turtle-back, which were saved; the rest were in the vicinity of Nos. 3 and 4 hatches, forward and aft of the engine room, in pens built in the wings on the port and starboard sides of the ship, all of which were lost. The storm was heaviest on the afternoon and night of Saturday, the 31st, the wind and seas coming first and heaviest from the northwest, but on Saturday hauling to the northward, and to east-northeast, with cross seas. Some slight damage was done to a few pens on the 30th; more were broken on Saturday, the 31st; but these were repaired and the cattle put in place toward nightfall. About 5 o'clock on that day the after gangways were opened on each side, and about ten or twelve cattle that had become maimed and helpless were sent overboard through those gangways. The chief loss was during that night and the following morning, when, shortly after daylight, the captain gave orders to open the forward gangways also, and the whole deck was cleared of all the cattle save the thirty-nine under the turtle-back.

"Upon the whole testimony in this pitiful case, I am not disposed to pronounce any unfavorable judgment upon the handling of the ship by the master. His record as a master appears to have been good, and on any doubtful question of navigation he is entitled to the benefit of his record. He had some, though not large, experience in the transportation of cattle; and the experts called by each party place so much stress upon the special circumstances of the situation, the quality of the ship, and the necessary determination of the master's own judgment at the time, that in the circumstances testified to I do not find any conclusive' proof adverse to the master's judgment as to the navigation of the ship.

"The evidence leaves not the least doubt in my mind, however, that the sacrifice of a considerable number of live cattle that were not maimed or substantially hurt was made on the morning of Sunday, the 1st of November, not from any pressing necessity, but solely from mere apprehension; and I am further persuaded that there was no reasonable or apparent necessity for the sacrifice. It was morning. The night was past. No one testifies to any pressing peril to the ship. The log does not hint of it. No reason appears why such cattle as could go about, and were actually going about, should not have been cared for and preserved. There was plainly no effort made to separate the sound from the maimed. Even the master says, in answer to the question: 'Were these cattle standing up that went overboard? They were down. Some may have been up. I don't know.' His object, plainly, was to clear the deck of all the cattle from No. 3 aft, with no attempt to discriminate or save any. His state of mind is shown by his concluding words, 'We all breathed happily when we saw it open' (No. 3 hatch)."

Ans.

The district judge was of opinion that the stipulations of the bill of lading, so far as they undertook to exempt the respondent from accountability for the negligence of the master or crew, though valid by the law of England, were invalid by our law; and therefore decreed "that the libelants recover damages for such of the oxen as were of any market value, and not fatally wounded or maimed at the time when the houses and cleats provided for them were designedly torn up, and which oxen were cast overboard, or negligently suffered to go overboard, through the open gangways, on the morning of November 1st and on the evening of the night previous"; and referred the case to a commissioner to ascertain and report the amount of such damage. 57 Fed. 403.

The commissioner reported that 63 of the cattle were thus voluntarily and unnecessarily sacrificed, and assessed damages for that number of cattle. The district court confirmed his report, and entered a decree accordingly for the libelants. 61 Fed. 860.

Both parties appealed to the circuit court of appeals, which adopted the conclusions of fact of the district court, and affirmed the decree upon the ground that the case was not within the exceptions in the bill of lading. 35 U. S. App. 44, 14 C. C. A. 88, and 66 Fed. 776. The respondent applied for and obtained a writ of certiorari from this court.

W. W. MacFarland, for appellants. Wilhelmus Mynderse, for appellee.

Mr. Justice GRAY, after stating the case, delivered the opinion of the court.

The contract sued on was made in October, 1891, more than a year before the passage of the Harter act, and the case is unaffected by its provisions. Act Feb. 13, 1893, c. 105 (27 Stat. 445).

By the law of this country, before that act, as declared upon much consideration by this court, common carriers by land or sea could not, by any form of contract with the owner of property carried, exempt themselves from responsibility for loss or damage arising from negligence of their own servants; and any stipulation for such exemption was contrary to public policy, and void. Railroad Co. v. Lockwood, 17 Wall. 357; Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469.

By the modern decisions in England, on the other hand, made since it has become to us a foreign country, common carriers, except so far as controlled by the provisions of the railway and canal traffic act of 1854, were permitted to exempt themselves by express contract from responsibility for losses occasioned by negligence of their servants. Peek v. Railway, 10 H. L. Cas. 473, 493, 494,*Steel v. Steamship Co., 3 App. Cas. 72; Railway v. Brown, 8 App. Cas. 703; In re Missouri Steamship Co., 42 Ch. Div. 321; The Cressington [1891] Prob. Div. 152.

In the case at bar, the decision of the district judge proceeded upon the ground that, any stipulation directly exempting the carrier from all liability for negligence of his servants being void by our law, as against public policy, the equivalent stipulation that the contract should be governed by the law of England was equally void, and could not be enforced in the courts of the United States. That decision is in accordance with the previous decision of the same judge in The Brantford City, 29 Fed. 373, and with several subsequent decisions of his. The Energia, 56 Fed. 124; The Guildhall, 58 Fed. 796; Worsted Mills v. Knott, 76 Fed. 582. The like view has been taken by Judge Nelson, in the district of Massachusetts, in The Iowa, 50 Fed. 561; by Judge Benedict, in the Eastern district of New York, in Lewisohn v. Steamship Co., 56 Fed. 602; and by Judge Butler, in the Eastern district of Pennsylvania, in The Glenmavis, 69 Fed. 472. See, also, Oscanyan v. Arms Co., 103 U. S. 261; Hamlyn v. Distillery [1894] App. Cas. 202, 209, 214; Rousillon v. Rousillon, 14 Ch. Div. 351, 369..

But it is unnecessary to express a decisive opinion upon the validity of the contract, be cause, assuming it to be valid, and to gov. ern the case, this court concurs with the circuit court of appeals in the opinion that the respondent was liable for the loss in question.

Exceptions in a bill of lading or charter party, inserted by the shipowner for his own benefit, are unquestionably to be construed most strongly against him. The Caledonia, 157 U. S. 124, 137, 15 Sup. Ct. 537; The Majestic, 166 U. S. 375, 386, 17 Sup. Ct. 597; Norman v. Binnington, 25 Q. B. Div. 475, 477: Baerselman v. Bailey [1895] 2 Q. B. 301, 305.

By the laws of both countries, the ordinary contract of a common carrier by sea involves an obligation on his part to use due care and skill in navigating the vessel and in carrying the goods; and an exception, in the bill of lading, of perils of the sea, or other specified perils, does not excuse him from that obligation, nor exempt him from liability for loss or damage from one of those perils, to which the negligence of himself or his servants has contributed.

This rule of construction was fully established in this court before it had occasion to decide the question whether it was within the power of the carrier by express stipulation to exempt himself from all responsibility for the negligence of himself or his servants.

In the leading case of New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, a crate of William F. Harnden, in which was money belonging to the bank, was shipped upon a steamboat of the navigation company under an agreement stipulating that "the said crate, with its contents, is to be at all times exclusively at the risk of the said William F. Harnden; and the New Jersey Steam Navigation Company will not, in any event,