The testimony is quite contradictory in the case, in respect to the management and course of the respective vessels; the persons on the steamboat maintaining that as she rounded Magazine Point, and was in her usual course for Cold Spring, one of her stopping places, and on the eastern shore of the river, the scow, in descending the river on a course off her larboard bow, suddenly changed it more easterly, and persevered in the same until the collision occurred, while those on board the scow insist that she pursued her course down the river, giving a wide berth to the steamboat to pass on her larboard side; but that as the two vessels approached each other, the steamboat took a sheer to the west, and persevered in it till a collision was unavoidable. The night was very dark, and the wind fresh from the northwest, the scow moving from five to six knots an hour, and the steamboat about eight. There were four hands on board the scow-the captain, first and second pilots and steward, all of whom saw the steamboat at a considerable distance, and were on the look-out from the time she was first discovered until the collision, who concur in maintaining the position and course of scow and fault of the steamboat. While on the other side, the pilot was the only person on board who saw the scow, until the moment of the collision. In this conflict of evidence, whatever may be the real truth of the course and management of the vessels preceding, and at the time of the accident it is impossible for us to say, as the case stands, that the scow was in fault, so as to hold her responsible for the consequences. The misfortune of the steamboat is, that under the circumstances of the night and weather, she had no proper look-out on board, and, hence, in addition to this neglect of prudence and of the established nautical rule, she is deprived of the usual and most important witness on these occasions, as to the position and course of the two vessels. Although the pilot may be a witness deserving great consideration in respect to the course of his own vessel, he is not, from the necessity he is under, of attending specially to his own peculiar duties, the best witness in respect to the position and course of the approaching vessel, in a dark and cloudy night. A competent look-out, at a station the most favorable to discharge his duty, is much more reliable under such circumstances. The scow has decidedly the advantage in this respect. Her master, in consequence of the darkness of the night, gave his helm to the pilot, and took the post of lookout himself; and, as a consequence, is enabled to give us a clear and intelligible account of the circumstances that led to the unfortunate accident; and he is confirmed by the other hands on board; and, also, as far as they go, by hands on board the sloop " Index," in the vicinity at the time.

The gravamen of the libel is, that while the steamboat was on her course N. E. to Cold Spring, and passing in a direction as near the Twin Brothers as was safe, the scow changed her course from her direction down the river to the eastward, which compelled the former to slow and stop, to avoid running upon the rocks, which had the effect to change her position, by swinging her stem somewhat more up the river, or westerly; and, while in this crippled condition, she was run into by the scow, which at the time had the wind free, and might have borne further towards the middle of the river. But the difficulty is, the weight of the proofs is against this theory.

No persons having been stationed on board the steamboat to look out, the night being dark, and none of the hands but the pilot having seen the scow till in the midst of the alarm upon the ringing of the bells to slow and stop, we have no intelligible or reliable account of the transaction from her; and the persons on the dock at Cold Spring knew nothing about it as the night was too dark for them to see it.

It has also been urged that the scow made a wrong manuever at the time of the collision, by ordering the man at the helm to keep hard away, thereby bearing more to the eastward; but the hands on the scow all agree that this order was given from the steamboat, and was followed at the moment of the peril, in deference to the supposed superior opportunity and skill of those on board of her.

Without pursuing the examination of the case further, I am satisfied the decree of the Court below is right, and should be affirmed with costs. In the Court below Judge Betts dismissed the libel.

LIBEL TO RECOVER DAMAGES FOR MERCHANDISE SHIPPED FROM HAMBURGH TO NEW YORK.

United States Circuit Court. Before Judge Nelson. Decision on appeal from the Judge at Admiralty. Sept. 15, 1856. The Bark Colombo vs. Otto Dill et al.

The libel was filed in this case by Dill and others, to recover damages for an injury to one of the casks of bristles in a cargo shipped from Hamburgh to this port. The libel avers that the goods were shipped under a bill of lading, in which the master acknowledged the receipt of the goods on board the vessel in good order and condition, and engaged to deliver them in like good order and condition to the consignees. The answer denies the allegations in the libel. The cask in question was one in thirteen shipped to the libelants, each containing some eight hundred pounds of bristles, and worth about two hundred dollars. The casks are slightly made in the form of barrels or hogsheads, covered by matting, and well secured with cords around the body and ends. The carman who carried the goods from the ship went into the hold of the vessel to assist in taking them out; when he pressed his foot upon the cask he discovered it was broken. It did not appear injured till he put his foot on it, and it could have been raised from the ship without discovering the break. The cask was found broken at the bilge, when the matting was removed, after delivered at the store. The bill of lading was not proved either in the court below or in this court, and I entertain strong doubts if it should be regarded as a part of the case. The clerk who testifies it was received from the shippers at Hamburgh by the consignees at this port, in a letter, speaks only from hearsay, not of his own knowledge; and even if he did, his evidence can hardly be regarded as a proof of its execution by the masters. The delivery of the goods by the masters to the consignees named in it, may raise an implication in favor of the genuineness of the instrument. But the evidence is very loose, and might be abused if allowed as generally satisfactory. I do not mean, however, to put my opinion upon this point of the case. The bill of lading produced contains the clause "weight and contents unknown." When the matting and ropes were removed, the bristles in the cask were found to be very much deranged and the bunches broken and in confusion, so that it would be difficult to assort them. Now, as I understand the effect of this clause in the bill of lading, there is no admission by the masters as to the goods beyond that visible to the eye, or from handling the casks or boxes, or outside protection, whatever it may be. If it does not mean this I am not aware that any effect can be given to it. (12 How., 272.) It is observed by Mr. Abbot, (Abbot on ship, p. 339,) "that if there is any dispute about the quantity or condition of the goods, of if the contents of the casks or bales are unknown, the words of the bill of lading should be varied accordingly." As far as my experience goes, I think this effect of the clause is in accordance with the general understanding of those concerned in the carrying of goods, shippers and owners. When, therefore, a question arises as to the condition of the contents of casks or bales, or cases, where this clause is inserted in the bill of lading, the burden rests upon the shippers, in the first instance, to prove the condition of the goods at the time of shipment; and I remember several cases before me in which commissions were executed abroad, and an elaborate inquiry made on his behalf for the purpose of establishing the fact. If the external covering of the goods is damaged, accounting for the injury to the contents, then the evidence may be dispensed with. The admission in the bill of lading would be prima facie sufficient. It was said on the argument, that the external covering or protection, in this case, was damaged, and that, if in this condition at the time the goods were shipped, the master must have known it, or at least is chargeable with knowledge. But I am not satisfied that this is a just or reasonable conclusion from the evidence. The carman states that the cask, apparently, was externally uninjured, and that it might have been raised from the hold without discovering the break, and if so, it might have been stored there without discovering the fact. Indeed, it appears from the evidence, that the covering of this cask with the mat, well secured with cords both around the body and end, would prevent any discovery of the break, unless there was some special

examination. It seems to me, therefore, that the case is one in which effect should be given to the clause in question, and in which the burden lay upon the libelants to prove the condition of the contents at the time the goods were delivered on board the ship; and that, in the absence of such proof, the carrier is not properly chargeable for the condition of the contents. It would be very unjust to charge him, if they were delivered to the consignee in the condition received on the ship, and for aught stipulated on the bill of lading we think they have been. Decree reversed with costs.

SEAMENS' WAGES-SERVANTS FOR HIRE.

In the United States Circuit Court, (New York, Sept., 1856,) before Judge Nelson. The Ship Buena Vista agt. Thomas Bolton. Appeal in Admiralty, September 9, 1856.

NELSON, C. J. This was a libel filed against the ship for seaman's wages. Bolton shipped at the port of Callao, in Peru, as steward of the vessel, on her voyage from that port to the port of New York, at the rate of fifty dollars per month, and signed the usual shipping articles. Some two months wages were advanced, and the libel is filed to recover the balance, which would be eighty dollars, at the agreed rate.

The defence set up is, that Bolton misrepresented his fitness and qualifications as steward, and also that he was unfaithful, and grossly inattentive to his duties on board the vessel during the voyage. The proofs in the case are all one way, establishing utter incompetence and unskillfulness as steward of a vessel, and also willful negligence, and inattention to his duties after repeated warnings and admonitions by the officers of the ship.

The answer given to this evidence is, that the master, under the facts stated, should have discharged the libelant, and that, inasmuch as he was continued in employment as steward for the voyage, according to the agreement, and until its termination, the defence is unavailable. We agree, that if it had heen shown in the case that the masters, after having discovered the unfitness of the seaman for the duties for which he shipped, had an opportunity to discharge him from the vessel, or, from the condition of his crew, might have disrated him, and put another in his place, it would be unreasonable, if not unjust, to permit a defense of this description. But there is no such evidence before us. In the case of shore duty, or duty upon coasting vessels, we should be strongly disinclined to encourage a refusal to pay full wages where the period of employment had been worked out. But a voyage at sea is different. There may be no opportunity to discharge the seaman from the ship, or the complement of hands may not be such as to dispense with the service, unless a substitute could be procured, and if disrated or discharged, under circumstances in which he could not be put ashore, he must be supported the remainder of the voyage. In all such and like cases, the only protection of the master and owners against imposition, or willful negligence of the scaman, would seem to be to permit the defense set up here, namely, an abatement of wages. Hands obtaining employment of a special character on board a vessel, as steward or able-bodied seamen, are responsible for reasonable skill as such, and acquaintance with their duties, and for an honest and faithful discharge of them.

There is no difference in this respect between the condition of seamen and any other description of service for hire. Courts are more indulgent in the case of Seamen's contracts, from a consideration of their dependent condition, and we would not lightly interfere in a claim for wages after service for the period stipnlated in the articles.

The learned Judge Ingersoll, who decided this case, thought the master should have discharged the libelant, and that the defence was not available after his continuance in service during the whole period contracted for. For the reasons above stated I am unable to concur in that opinion.

Decree reversed and libel dismissed with costs.

PROVISIONS OF THE PASSENGER ACT OF MARCH 3, 1855, IN RELATION TO STEERAGE

PASSENGERS.

In the United States District Court, (California,) at the suggestion of Colonel Inge, United States District Attorney, Mr. Justice McAllister delivered a special charge to the Grand Jury on the construction of the provisions of the Passenger Act of March 3, 1853.

His Honor said, since the year 1819, about which time there was a press of European immigration to this country, Congress has passed various laws in relation to the carriage of passengers in vessels. When, in the course of circumstances, such measures became matters of great necessity, Congress followed out the legislation on the subject by an act in the year 1847, and different acts in the ensuing years-all these acts having for their object the safety and the health of passengers. The act of the 3d of March, 1855, repeals, and, as it were, codifies all the laws passed by Congress in relation to the transportation of passengers by sea. This act was passed by Congress on the last day of its session, and its provisions are somewhat obscure, and, to a certain extent, difficult of construction.

The Court proceeded to construe the law by a course of reasoning, and concluded that, under the provisions of the first section, two distinct offenses were specified :

1. The taking on board a greater number of passengers than in proportion of one to every two tons of the vessel.

2. The following portion of the section referred to appropriated certain spaces on the deck for the use of the passengers, viz., sixteen superficial feet on the main and poop deck and deck-houses, and eighteen superficial feet on the lower deck, for each passenger. The proper construction of this provision was that if the whole number of passengers exceeded the aggregate amount of space appropriated, without reference to their actual distribution on the different decks, the master of the vessel was liable to prosecution for misdemeanor, and to pay a fine of $50 for each passenger in excess.

His Honor referred to the 10th section of the law making the provisions relating to the space in vessels appropriated to the use of passengers applicable to the carriage of steerage passengers in steamers. According to the principle of a strict construction of penal statutes and the rule, expressio unius, exclusio alterius, his Honor decided that the number of steerage passengers which a steamer was entitled to transport, was to be estimated exclusively by the proportions of space, and not by the proportion referred to, of one passenger to two tons of the vessel.

CORN MERCHANTS-ACTION FOR BREACH OF CONTRACT.

Crown Court, Liverpool, April 5th, 1856-before Mr. Baron Martin. and others vs. Schilizzi the Younger.

Smyth

This was an action for breach of contract, brought by Messrs. Moss, Thompson, Smyth & Co., corn merchants, against a Greek merchant of this town, who is the representative of a Greek house at Constantinople. The contract was between Mr. Blain, on the part of plaintiffs, and the defendant for the sale, by the former, of 2,500 sacks of flour, at 80s. per sack of 48 lbs., and, if the vessel required further cargo, an additional lot of 1,500 sacks, at 81s. per sack. It was stipulated that a first-class steamer should be employed to load the flour at Santander and deliver it at Constantinople, at £5 10s. per ton; if delivered at Liver

pool or Havre, half that rate to be charged. It was also agreed that the vessel should be ready to load on the 1st December, and that if she were not ready by the 4th, Mr. Schilizzi could, if he chose, repudiate the contract. The steamer selected was the Tamaulipas. The steamer arrived at Liverpool on the 24th of November, but in consequence of some accident she had met with on her voyage, she was compelled on her arrival to go into the graving dock, and, though the repairs were conducted without cessation day and night, she was not ready for sailing before half-past three o'clock on the 4th of December. The weather, however, looked so foul that the pilot would not take the vessel out, and she did not actually sail until ten o'clock on the morning of the 5th of December. The defendant wrote to the plaintiffs, repudiating the contract, as the vessel had not sailed punctually. This letter they received about an hour after the steamer's departure.

The steamer called at Santander, took in the cargo, and went thence to Constantinople, where the cargo was sold "for the benefit of whom it might concern," and the loss entailed by this proceeding was estimated at £6,089, which it was sought now to recover.

On the part of the defendant, it was contended that the defendant had every right to repudiate the contract, and several statements were adduced to show that the vessel was not ready for sea even late on the evening of the 4th.

The jury, after some consideration, returned a verdict for the plaintiffsdamages £6,089.

NEW YORK LIEN LAW-MORTGAGEE ALLOWED TO defend.

In the United States Circuit Court, September, 1856. Albert Van Winkle agt. the steamboat "Jenny Lind." September 9, 1856.

Before Judge Nelson.
Appeal in Admiralty,

NELSON, C. J. The libel was filed in this case to recover a running account of stores furnished the Jenny Lind, commencing on the 29th April, 1854, and ending 19th October following, amounting in the aggregate to the sum of $156 27.

Dennis Harris, the claimant, was mortgagee of the vessel, and on application to the Court was allowed to come in and defend, and obtained a discharge of her from the attachment, on giving the usual bond.

The default in payment of one of the instalments due on the mortgage occurred on the 21st October, which gave to the mortgagee the right of possession. This happened the day after the levying of the attachment under the libel, and it has been urged that, as the claimant had no present right to the possession at the time the vessel was seized, he was improperly allowed to come in and defend. The position cannot be maintained. A party becoming interested in the subject matters of the litigation, after the institution of the suit, may be admitted to come in and protect his interest, if application is made within a reasonable time. This is a common practice both in the Admiralty and Equity Courts; and it would be very unjust, besides leading to vexatious litigation were the rule otherwise. The party would necessarily be driven to a cross suit.

It was also urged that a mortgagee had not such an interest in a vessel as would authorize him to appear and defend. How this would be, in a case where the right to the possession did not exist, it is not material to determine. In this case, the right of possession existed, and not only so, the vessel was reduced to actual possession, and the mortgagee had a right to hold it for the satisfaction of his debt.

It has also been urged that, assuming the mortgagee had the right to come in and defend, for the purpose of protecting his interest, still the libelant had shown a valid lien upon the vessel, which the court should enforce.

The Jenny Lind was a domestic vessel, and a lien for the stores depends upon the local law.

The statute of New York giving the lien provides that, if the vessel shall depart from the port at which she was when the debt was contracted, to some other port within the State, the debt shall cease to be a lien at the expiration of twelve days