(106 Fed. 9$50.)

DURCHMANN v. DUNN et al.

(Circuit Court of Appeals, Second Circuit. February 27, 1901.)

No. 61.

1. SHIPPING-DEMURRAGE-CONSTRUCTION OF CHARTER.

A provision in a charter for carrying lumber that the cargo should be furnished "at the port of loading as fast as vessel can receive and properly stow same in suitable hours and weather," has reference to the hours and weather suitable for loading and stowage, and does not exclude time lost by reason of the lumber becoming wet, and unfit for loading, before it is forwarded to the ship.1

2. SAME.

A provision in a charter party that cargo shall be "discharged at port of destination at the average rate of not less than 35,000 superficial feet per running day, Sundays and holidays excepted," refers as to the rate to the discharge at the port of destination, and not to the loading.

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

This cause comes here upon appeal from a decree of the district court, Southern district of New York (101 Fed. 606), giving libelant four days' demurrage--$551.04-for delay in loading the ship Columbus at Batiscan, Canada, in August and September, 1898. The clause of the charter party providing for demurrage reads as follows: "Cargo to be furnished at PORT OF LOADING, as fast as vessel can receive and properly stow same in suitable hours and weather, and to be discharged at PORT OF DESTINATION at the average rate of not less than (35 M) thirty-five thousand superficial feet per running day, Sundays and holidays excepted." The part in capital letters is so printed in the charter, the part italicized is written.

Hamilton Wallis, for appellants.

Harrington Putnam, for appellee.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

PER CURIAM. We concur in the findings and conclusions of the district judge. Inspection of the demurrage clause shows most clearly that the average rate therein stated-"not less than 35,000," etc.-refers to discharge at the port of destination, not to the loading. So, too, it would be a most strained and unwarranted construction to hold that the phrase "in suitable hours and weather" refers to hours or weather elsewhere than at the port of loading, or that it can be availed of to excuse delay occasioned by the circumstance that the lumber got wet (and therefore unfit to ship) through a local rain at the storage yards of the shipper, 12 miles away. The testimony of the master that the payment actually made to him in the port of delivery was the "full amount of the freight money, and nothing else," stands uncontradicted, and precludes any finding that there was an accord and satisfaction. The charter provided for payment of the demurrage day by day by the party of the second part. It was his debt, and was not provided for in the bill of lading. The master, therefore, released no security when he gave up the cargo

1 Demurrage, see note to Randall v. Sprague, 21 C. C. A. 337.

to the consignees in Buenos Ayres, and is still entitled to collect his debt from the charterer, even though the latter was but the agent of the consignees, who were the real, although undisclosed, owners. The decree is affirmed, with costs.

(106 Fed. 982.)

THE CITY OF NORWALK.

(Circuit Court of Appeals, Second Circuit. January 22, 1901.)

No. 26.

COLLISION-SAILING YACHT AND PROPELLER-MUTUAL FAULT.

A collision between a sloop yacht and a propeller, crossing in the night at an obtuse angle, held to have been due to the fault of both vessels,of the yacht, in that she failed to have her lights properly screened, by reason of which they crossed and misled the propeller as to her course; and of the propeller, because she failed to take timely precaution to keep out of the way after discovering that the yacht did not keep the course she was at first supposed to be on.

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

The following is the opinion of the court below (BROWN, District Judge):

"The above libel was filed to recover damages to the sloop yacht Nirvana through collision at about 10 p. m. of August 16, 1897, in Long Island Sound off Greenwich Point with the propeller City of Norwalk. The yacht was about 60 feet long, sailing closehauled on the starboard tack, with the wind westerly and heading about W. S. W., making about six miles an hour. The propeller was bound eastward, heading about N. E. by E. 1⁄2 E. Shortly before collision each vessel turned to the southward, so that the propeller at the time of collision headed about E. S. E. and the yacht about S. E. by E., the boats sagging together and the yacht being injured on her starboard side. "The yacht, when first seen from the propeller, bore 3 or 4 points to port, estimated to be one-half or three-quarters of a mile distant, and according to the testimony for the propeller, both the red and green lights of the yacht were seen. In that situation the propeller would naturally and rightly keep on her course, as she would naturally cross the apparent course of the yacht sometime before the yacht would reach her, and the latter would pass well astern of the propeller. As the boats came nearer together, however, it was observed that the yacht did not fall astern as she would naturally do, but still exhibited both colored lights; and when within 200 or 300 feet of each other, according to the propeller's testimony, the propeller sounded danger signals, and ported and soon backed. When the alarm was sounded the captain testifies that he thought the yacht was keeping off to the southward.

"On behalf of the yacht it is contended that her red light could not have been seen at any time by the propeller because hidden by the fore staysail; that she heard the danger signals of the propeller when the vessels were about 50 or 60 feet apart, and that the yacht then paid off, when collision was unavoidable, in order to ease the blow.

"One of the lights and a screen board of the yacht were exhibited in evidence. The board was constructed wholly different from the requirements. No actual trial was made of the angle to which the light would extend; but from the situation of the light and the short and low screen, I should judge it impossible that the red light should not have crossed and been visible a good deal to starboard of directly ahead, so that both colored lights would be seen though the yacht was not headed for the observer.

"I do not feel warranted, therefore, in discrediting the testimony of the

master and pilot of the Norwalk, to the effect that they saw both lights for a considerable period before the collision, when from the undoubted situations and courses of the two boats the yacht's red light alone should have been seen. Considering also, that there was a whole sail breeze, and that the fore staysail would naturally belly out a good deal, I ought not to accept the theoretical contention of the yacht that the staysail would necessarily hide the red light, against the positive testimony of the propeller's officers. Accepting their statement on this point, the yacht must be held in fault, because her lights were misleading, and undoubtedly did mislead the officers of the Norwalk for a time in the belief that the yacht's direction was such that she would naturally go well astern of the propeller, without any maneuvering on the propeller's part. The direction of the yacht, however, was at least two points more to the southward than her exhibition of her two colored lights would indicate, and this different actual heading prevented the yacht from falling astern. I cannot hold that this defect in the lights was immaterial. Though the night was clear in a general sense, the evidence on both sides leaves no doubt that it was somewhat hazy upon the water, so that boats could not be well distinguished at a distance. They were not distinguished by either until much nearer than they would have been in a clear atmosphere; and the yacht evidently would not be clearly seen as soon as the propeller.

"Notwithstanding this fault in the yacht in regard to the crossing of her lights, I cannot exempt the propeller, as it is plain from the officers' testimony that they ought to have maneuvered earlier than they did to avoid the yacht, when it became evident that the yacht was not pursuing the course which was at first supposed, but continued on the same bearing instead of falling astern. I do not think it possible, however, that the vessels were so near as the yacht's witnesses state, namely, within 50 or 60 feet, at the time when the propeller gave danger signals. They were then probably from 200 to 300 feet apart, as the propeller's witnesses stated. The changes of course by the two boats before collision strongly confirm this. The yacht changed by paying off from 6 to 7 points up to the time of collision, which she could not have done in going less than 200 feet; the propeller changed from 4 to 5 points, which would have required her to traverse about 300 feet. If the curves of the courses of the two vessels are drawn upon that basis backward from their positions at collision, the two boats at the time they began to change to the southward will be found to be about 300 feet apart. The position of the boats would also be shown by such a sketch to be such that a very little porting would have been required to allow the boats to pass clear of each other, even if they would not have cleared if the yacht had strictly maintained her course. The danger at that moment, however, at a distance of only 300 feet apart each having a speed of 6 or 7 knots, was so imminent that an error at that moment cannot be treated as a legal fault. The fault was in bringing the two boats into such a position; and for doing this both, as I have said, were to blame; the yacht, by reason of her misleading lights, and the Norwalk by her delay of any maneuvers to avoid the yacht, which she was bound to do, for some time after the yacht's course ought to have been perceived to be threatening by her failure to fall astern. "Decree for the libelants for one-half of the damages and costs."

Le Roy S. Gove, for appellant.

N. D. Lawton, for appellee.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

PER CURIAM. Decree affirmed on opinion of court below, with

costs.

(106 Fed. 985.)

THE ARCHIE CROSSMAN and THE GRACIE.

(Circuit Court of Appeals, Second Circuit. March 11, 1901.)

No. 107.

COLLISION-SMOKE-FAILURE TO SIGNAL.

Before daylight a tug came into collision with a boat in tow of a tug in a dense smoke coming from copper works on the shore. The lights of neither tug could be seen by the other until about 50 feet apart. No signals had been given, for the alleged reason that the smoke was not seen until the boats got into it, but the prevalence of such smoke in a north wind, such as was blowing at the time, was a well-known fact to all navigators. The boats were moving at the rate of about five miles an hour. Held, that the omission to give timely signals on both sides with the rate of speed was the cause of the collision, rendering both tugs liable.

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

This was a suit to recover damages for injuries to libelant's tow boat in a collision between the tug and another vessel. This appeal is from a decree holding both vessels in fault.

The opinion filed below, and here reprinted from 106 Fed. 984, was in full as follows:

BROWN, District Judge. Before daylight on the morning of December 3, 1898, as the tug Gracie was coming eastward out of the Kills, she came in collision with the libelant's boat C. & T. Jefferson in tow on the starboard side of the tug Archie Crossman, going in the opposite direction. The collision was in the Kills, a little to the westward of Constable's Hook, and occurred in the dense smoke that came from the copper works on the north side of the Kills, and which in the light wind from the northward spread out thick upon the water. The lights of neither were seen by the other until the two were only from 50 to 75 feet apart. Some signals were immediately given, but as each was going at the rate of 4 or 5 miles an hour these signals were too late to be of any service. The excuse of the Gracie for not giving previous signals is that the smoke was not seen until she got into it. I do not consider this any excuse at all, as the prevalence of the copper works' smoke in a north wind is a well-known fact, and there is no reason, moreover, why it should not have been seen and the proper signals given before entering it. No signals were given by the Crossman other than those immediately before the collision, except at a distance from 500 to 800 feet before she entered the smoke from the east.

The omission on both sides to give a timely signal before getting into this dense smoke with the rate of speed at which they were going, fully explains the collision, without any attempt to resort to any other faults, if there were any; and as both were to blame in this respect, both must be held liable.

The canal boat was sunk and was not worth repairing. The evidence on the trial shows that the value of the boat and furniture lost 46 C.C.A.-5

did not exceed $440, after deducting the things that were recovered and the things taken ashore by the libelant's man and lost through his own fault. A decree may be taken against both defendants for $440, with interest from December 4, 1898, unless a reference shall be desired to take further proof as to damages, which may be taken subject to the payment of the costs of the reference unless a more favorable judgment be obtained.

James K. Symmers, for appellants.

James Forrester, for the Gracie.

Peter Alexander, for libelant.

Before LACOMBE and SHIPMAN, Circuit Judges.

PER CURIAM. Affirmed on opinion of district judge.

(106 Fed. 986.)

BOARD OF TRUSTEES OF HARDY TP., HOLMES COUNTY, OHIO, v. BRATTLEBORO SAVINGS BANK.

(Circuit Court of Appeals, Sixth Circuit. February 12, 1901.)

No. 855.

1. TOWNSHIPS-STATUS IN OHIO-CONSTITUTIONALITY OF ACT AUTHORIZING Is. SUANCE OF BONDS.

A township in Ohio is not a corporation, within the meaning of the state constitution; and article 13, § 1, of such constitution, providing that the legislature shall pass no special act conferring corporate powers, does not render invalid an act authorizing a township to issue bonds.

2. MUNICIPAL BONDS-CONSTITUTIONALITY OF ACT AUTHORIZING-BONA FIDE PURCHASER.

An act of the Ohio legislature, passed in 1893, authorizing a township to issue bonds for the purpose of refunding its then existing indebtedness, was not a law of a general nature, within the meaning of the state constitution (article 2, § 26), providing that all laws of a general nature shall have a uniform operation throughout the state, under the construction previously given such provision by the supreme court of the state; and it cannot be held invalid, as in violation of such constitutional provision, as against a bona fide purchaser of bonds issued by the township thereunder. 3. SAME-DEFENSES AGAINST ESTOPPEL BY RECITALS.

An act authorizing the trustees of a township to issue bonds for the purpose of refunding its outstanding indebtedness, which contains no reference to any record of such indebtedness, or requirement that such a record shall be kept, but provides that the bonds shall contain a recital that they are issued under and by authority of such act, must be held to confer power on the trustees, who are the officers charged with the duty of incurring the indebtedness of the township, to recite in the bonds that the valid indebtedness of the township is such as to authorize their issuance under the act, in order to refund it; and such recital is conclusive on the township, in favor of a bona fide purchaser of the bonds.

In Error to the Circuit Court of the United States for the Northern District of Ohio.

This was an action to recover the amount of a township bond and certain interest coupons. From a judgment for plaintiff, defendant brings error.