[j] (N. Y. 1899) Not only the existence of a usage or custom, but whether a knowledge of it exists in any particular case, is a question of fact for the jury. Scott v. Brown, 29 Misc. Rep. 320, 60 N. Y. Supp. 511.

[k] (Ohio, 1845) Until a custom is settled by adjudication or so established as to become a part of the law without proof, its existence is a question of fact for the jury.-Boyce v. The Empress, 1 Ohio Dec. 173, 3 West. Law J. 174.

II. USAGES IN TRADE OR AFFECTING CONTRACTS.

[a] (U. S. 1889) In weighing the testimony of witnesses as to trade usage, the jury should consider the extent to which any of the witnesses may have an interest in the result of the litigation which might color their evidence.— Dodge v. Hedden (C. C.) 42 Fed. 446.

[b] (U. S. 1843) A master and his vessel were employed near Canton, in China, in a service not strictly within their ordinary offices, and not, originally, in any way contemplated, the ship being used, by an arrangement with the agent of the owner at Canton, for 22 months, as an opium store ship, and. according to usage, a sum of $5 on each box was paid on the delivery of the opium, which was called a "kumshaw," and which was exclusive of the price paid for storage, and the "kumshaws" were paid to the master, with the acquiescence of the agent, there having been no express agreement made with respect to the same. Held, in a suit by the owner of the vessel against the master to recover the "kumshaws" as a part of the earnings of the vessel, that it should be left to the jury to say whether, by the usage of the trade, the "kumshaws" belonged to the master.-Wilcocks v. Phillips, Fed. Cas. No. 17,639 [1 Wall. Jr. 47].

[c] (Ala. 1887) Defendants contracted orally to deliver certain bacon to plaintiffs. On arrival, a portion was spoiled. On suit for breach of contract, they pleaded that they had offered to take back the spoiled bacon, and pay defendants its invoice value at the place of shipment; that, under the custom of the trade, the market value at the place of shipment, and not at that of receipt, was the measure of damages. Held, that the question whether there was such a custom should be left to the jury, under proper instructions.— Haas v. Hudmon, 83 Ala. 174, 3 South. 302.

[d] (Ala. 1906) A railroad contractor, who had contracted to do certain work, sought to recover for extra items of work he had done, and testified that all the extra items were necessary, and that with items of this kind it is the custom of railroad contractors to charge on the force account, which is actual cost, plus 10 per cent. Held, that the evidence was at least some proof conducing to show the custom, and that whether it was sufficient or not was a question for the jury, under proper instructions.-Henderson-Boyd Lumber Co. v. Cook, 42 South. 838.

[e] (Ind. 1861) The construction of a contract with reference to the intention of the parties, as derived from a usage or custom with reference to the meaning of particular words used therein, is for the jury.-Prather v. Ross, 17 Ind. 495.

[f] (Iowa, 1859) Where a merchant proved that it was his custom to consider all accounts due at the end of the year and to charge interest thereon from that time, and that such custom was known to defendant, whether such facts amount to an implied contract between the parties to pay interest was a question for the jury.-Veiths v. Hagge, 8 Iowa (8 Clarke) 163.

[g] (Me. 1843) Where a usage, regulating the compensation for a particular description of personal services, has been proved, the true question for the consideration of the jury is whether the usage was so generally known and acted on that the parties, from that and the other facts and circumstances proved, must be presumed to have had reference to it for the compensation to be paid; as, in such case, it would become, as it were, a part of their agreement, and binding upon them.-Bodfish v. Fox, 23 Me. (10 Shep.) 90, 39 Am. Dec. 611.

[h] (Md. 1856) Whether a usage or custom exists, and whether the parties contracted with reference to it, is a question for the jury, notwithstanding the fact that all the evidence as to the prevalence of the custom was introduced on one side.-Burroughs v. Langley, 10 Md. 248.

[i] (Md. 1860) Where evidence of usage and practice in a trade is admissible to explain an ambiguity patent on the face of the instrument, or shown by reference to extraneous circumstances, this evidence is for the jury under instructions from the court upon a case hypothetically stated.-Williams v. Woods, 16 Md. 220.

[j] (Mass. 1853) In answer to an inquiry, in an application for insurance on a factory, as to whether there were casks in each loft constantly supplied with water, it was stated that there were in each room casks kept full constantly. Held, that the question whether the word "room," as used among manufacturers, comprehended the entire loft or story appropriated to a particular department, though it might be divided by partitions, is one for the jury.-Daniels v. Hudson River Fire Ins. Co., 66 Miss. (12 Cush.) 416, 59 Am. Dec. 192.

[k] (Mass. 1872) Where a broker shipped his principal's merchandise to his correspondent in a foreign country, and drew drafts on them therefor, payable 60 days after acceptance, which drafts were discounted by the broker after acceptance, and were by him, on default of the drawee, paid and taken up, the question of whether or not such proceeding was a loan of the principal's money by the broker making him responsible for the value of the merchandise, or whether it was in accordance with the customs and usages of the broker's business, was for the jury.—Goldsmith v. Manheim, 109 Mass. 187.

[1] (Minn. 1901) Testimony of the existence of a certain general and uniform usage and custom in the community in which the parties lived and made their contract held sufficient to make a case for the jury on the issue as to whether such a usage and custom then and there existed.-Powell v. Luders, 84 Minn. 372, 87 N. W. 940.

[m] (Mo. 1886) Where there was evidence of a general and uniform custom among brokers to collect for margins on their customers' contracts in futures, the existence of such custom was a question for the jury, though there was some difference among the witnesses as to its extent.-Hill v. Morris. 21 Mo. App. 256.

[n] (N. H. 1906) It cannot be held, as a matter of law, that the evidence of retail fur dealers that a usage exists in the fur trade to make conditional sales to retailers is not sufficient to authorize a finding that such a usage exists.-Hess, Bases & Co. v. Shurtleft, 65 Atl. 377.

[o] (N. Y. 1862) A. agreed to sell and deliver to B. a quantity of soft English lead, to arrive by a specified vessel, designating the lead as "W., P. & W. Brand," and no lead so marked was known in the market as an article of commerce; but the lead on the vessel was manufactured by a firm, two of whose members were named W. and one P., known as W., P., W. & Co., and had been branded by them "W., P. & Co." Held, it was the province of the jury to determine, upon evidence as to the usage of trade, what was the intention of the parties.-Pollen v. LeRoy, 23 N. Y. Super. Ct. (10 Bosw.) 38. [p] (N. Y. 1898) When both parties to an action have given evidence upon the trial, without objection, regarding the existence of a custom as to the meaning of the words "traveling salesman" in the written contract out of which the action arose, and also regarding conversations leading up to such contract, the questions of the existence of the custom and the meaning of the parties are properly submitted to the jury. Judgment (1894) 83 Hun, 611, 31 N. Y. Supp. 517, affirmed.-Bloom v. P. Cox Shoe Mfg. Co., 154 N. Y. 711, 49 N. E. 56.

[q] (N. C. 1878) What is the established commercial usage in respect to a certain course of dealing among merchants in a particular business is a question for the jury.-Bank of New Hanover v. Williams, 79 N. C. 129.

[r] (N. C. 1898) A contract with plaintiff mining company provided that defendant was to smelt the ore furnished, at $10 per ton, and to pay to plaintiff 95 per cent. of the silver produced. By another clause it was agreed that defendant should not be called on to pay plaintiff the 95 per cent. of silver "produced from the ore as aforesaid" until a certain time. It was contended by plaintiff that the ores were to be paid for at assay value, according to a custom among smelters, and not on the basis of the silver actually produced by the smelting process. Held, that the contract was not ambiguous, and

hence should be construed by the court, and it was error to submit to the jury the question of the existence of such a custom among smelters.-Silver Val. Min. Co. v. North Carolina Smelting Co., 122 N. C. 542, 29 S. E. 940.

[s] (Ohio, 1877) It is for the jury to decide as to what may be the usage or manner of dealing among men in cases like the one at bar; but whether such usage has the force of custom as governing the rights of the parties is for the court.-Nolte v. Hill, 2 Wkly. Law Bul. 86.

[t] (S. C. 1851) A. advanced to B. a certain sum on cotton shipped to Bremen, and brought this action to recover the amount in which the net proceeds fell short of the sum advanced. In the account rendered by A. against B. were a multitude of small charges besides commissions, such as bill brokerage and interest thereon, for mending, handling, delivering, etc. A verdict was rendered for the whole amount. Held, that the right to make such charges depended so much on commercial usage that the question was properly submitted to the jury.-Kuhtman v. Brown, 4 Rich. Law, 479.

(153 Fed. 970.)

THE W. N. BAVIER.

THE H. M. WHITNEY.

(Circuit Court of Appeals, Second Circuit. April 13, 1907).

No. 157.

COLLISION-TOW AND MEETING STEAMER-IMPROPER NAVIGATION BY TUG. A collision in East river between a canal boat, which was one of four in tow of a tug passing down on an ebb tide, and a steamer passing up on the Brooklyn side of the center of the channel, held due to the fault of the tug, which, after exchanging the proper passing signal of one whistle with the steamer and properly porting her helm for a time, starboarded it again when about the center of the channel, allowing her tow to sag to port with the tide and against the steamer. The steamer held not in fault because of her violation of the East river statute, which required her to keep in the middle of the channel, since it in no way contributed to the collision, nor because she did not go still further to starboard than she did; her change of course being sufficient for safe passage if the tug had continued to co-operate, as she had the right to assume would be done after the exchange of signals.

[Ed. Note. Signals of meeting vessels, see note to The New York, 30 C. C. A. 630.]

Appeal from the District Court of the United States for the Southern District of New York.

This cause comes here upon appeals from a decree of the District Court, Southern District of New York, which held both vessels in fault for a collision between the Whitney and libelant's canal boat Emergency, in tow of the Bavier, which happened in the East river opposite Wallabout Bay, and to the south of Corlear's Hook, August 16, 1904, at about 6 p. m.

Amos Van Etten, for the Bavier.

H. Putnam and Wing, Putnam & Burlingham, for the Whitney. J. K. Symmers and Carpenter, Park & Symmers, for appellee. Before LACOMBE, TOWNSEND, and COXE, Circuit Judges. LACOMBE, Circuit Judge. The Bavier had four boats in tow, made up in two tiers astern on a hawser of about 100 feet; the Emer

gency being the port boat on the second tier. The entire distance from the tug's bow to the last boat was about 380 feet. As we have already held in The A. W. Booth, 138 Fed. 303, 70 C. C. A. 593, no fault can be charged against the Bavier because of the length of her tow; but she was bound to navigate with a degree of care commensurate with the risk thereby incurred. All the boats in the tow were light. They had no steering apparatus of their own, but were dependent on the direction of the hawser for their steering. The tug left Rivington street, bound for Fifty-First street, North river, with this tow heading up river, and rounded to until she headed down river; the tide being ebb. The steamship was bound up the river for Boston. The collision happened to the eastward of midchannel -about two-thirds of the way over towards Brooklyn, the district judge finds, and the clear weight of evidence supports that finding. Accordingly to the story of the master of the Bavier, he was a little to the eastward of mid river when he saw the Whitney. He had brought his tug nearly into position, but his tow, under the influence of the ebb tide, which has a set towards Brooklyn, was tailing over more to the eastward. The Bavier was under a port helm. She was about off Jackson street, when he saw the Whitney coming up about off Gold street, and nearer to the Brooklyn shore than his tug was. The Whitney blew one blast, and he answered it with one. The navigation thus announced by both boats was proper. They were meeting in the first position (article 18, rule 1 [U. S. Comp. St. 1901, p. 2881]), and their courses were not on the starboard of each other. It was their duty to pass port to port. soon as whistles were exchanged the master of the Bavier put his wheel harder to port, in order to pull his tow over out of the way. The distance between the two vessels was ample when whistles were exchanged, and, had he kept his port wheel, the Whitney cooperating, there was no reason why the steamship and tow should not have passed each other with a reasonable margin of safety. The disaster is sufficiently accounted for by his admission that after he had been heading well over to the New York shore, until "he thought his tow would go clear," he starboarded and headed straight down the river, although he admits that his tow was "a little to the eastward of the middle of the river." This was apparently at the very place where the course of the river changes nearly from S. W. to W. The natural result was that the tow, relieved of pull to the westward, swung down with the tide upon the Whitney.

As

The master of the Bavier evidently appreciated that his change of helm brought the vessels into collision; for he undertook to explain it by the presence of another vessel, which he alleges interfered with him. This was a New York, New Haven & Hartford car float, which was coming up about abreast of the Whitney. He says he pulled under the port wheel as near the float as he could, as near as he thought safe; that he did not want to pull across the float's bow, and therefore starboarded. A majority of the court are not disposed to credit this excuse. He admits that his tow was to the Brooklyn side of mid river, and the most he claims for his own position is mid river. We are of the opinion that he had not reached mid river;

but, for the purpose of the argument, it may be assumed that his statement is correct. He says that, when he first saw this craft, a tugboat (the Dunne) was coming up with a lumber barge on each side of her, about 75 to 100 feet off the New York shore, and that the car float, with her tug, was about 30 to 50 feet outside the Dunne; that there was easily 1,000 feet between the car float and the Whitney, and that the car float and tow did not come out over towards the Whitney, but "kept in to the New York side, where they belonged." If he himself were in mid river, he was at a considerable distance from the car float. Moreover, according to his story, he kept on a considerable time heading for the tug and car float in full sight of them, until he got within 50 feet, but received no signal from them, and blew them none. Appreciating the weakness of this excuse he also said that he starboarded in order to slew his tow, an excuse quite as unsatisfactory. We are of the opinion that he was in fault for not continuing under his port wheel until he had brought his tow to mid river.

A majority of the court are also of the opinion that the Whitney was not in fault. She was coming up the river well over towards the Brooklyn side, presumably on account of the ebb tide. But, if she were in fault for not navigating nearer the center of the river, under the East river statute (section 757, c. 410, p. 211, of the New York City consolidation act of 1882), such fault in no way contributed to the accident. The boats met in the first position, end on, or nearly so, and not on each other's starboard bow, and exchanged signals. when at a sufficient distance to insure passing in safety, if both navigated in conformity thereto. As we have seen, the Bavier did not so navigate. After porting, she starboarded, and thus let her tow sag down, where it would not have been had she continued under a port wheel. The Whitney ported, and (except just before collision, when she starboarded to regain control lost by backing) kept changing her course to starboard. It is probably true that she might have gone still further to starboard without running into the Navy Yard piers, and might have passed to the eastward of the tow, even if the Bavier had not ported at all. But the vessels had exchanged signals, which indicated that the Bavier would haul to starboard, and the latter was seen to be hauling over towards New York. The master of the Whitney was entitled to suppose that she would continue to navigate accordingly, and, having himself ported sufficiently to make reasonably safe clearance, should not be held in fault because the other vessel, without giving any warning, suddenly ceased to cooperate. Vessels navigating according to the rules may fairly suppose that other vessels they meet will so navigate, unless something occurs (such as a failure to answer a signal received, or a failure to conform to a signal blown) to indicate that the contrary may be anticipated. Kennedy v. The Sarmatian (C. C.) 2 Fed. 911.

The decree of the District Court is reversed, with costs of this appeal to the Whitney against the Bavier, and cause remanded, with instructions to decree in favor of libelant against the Bavier for damages, interest, and costs.