tion of the shipper's ordinary rights and remedies; it respects losses over which the shipper can exercise no control, but which are to a certain extent within the control of the carrier by the exercise of the requisite care and diligence in inspection. In the case of The Edwin I. Morrison, 153 U. S. 199, 215, 14 Sup. Ct. 823, 38 L. Ed. 688, it was held to be the duty of the owner to make such necessary and proper inspection from time to time as might give assurance of the seaworthiness of the vessel; and in The Phoenicia (D. C.) 90 Fed. 116, affirmed in 40 C. C. A. 221, 99 Fed. 1005, the absence of a thorough and careful inspection, it was held, made the ship chargeable with the loss. See, also, The Majestic (D. C.) 56 Fed. 244, affirmed in 166 U. S. 375, 17 Sup. Ct. 597, 41 L. Ed. 1039; Dobell v. Steamship Rossmore Co. [1895] 2 Q. B. Div. 408, 413, 415.

The stipulation in the bill of lading releases the shipowner from responsibility for absolute seaworthiness, provided due diligence is exercised; but it does not release him, nor does it profess to release him in the least from his previous obligation to make such careful inspection as the circumstances require.

In the present case the evidence seems to me not to show such reasonably careful inspection of the interior of the valve chest as was incumbent upon the respondent under his obligation to exercise "due diligence," and to afford a corresponding reasonable protection of the shipper's goods. The special liability of iron to the effects of corrosion in the circumstances of this chest and valve was well known. On account of this liability, the employment of iron chests in British usage had been for many years discarded, and brass required instead. It is evident that the corrosion and wear in this case, in order to have gone through the bottom of the chest threeeighths of an inch in thickness, must have been in gradual progress for a very considerable time. There was no unusual occurrence on this voyage, no heavy weather or strain, which could have produced any sudden rupture in the bottom of the chest; nor was the hole of that description. The corrosion went on with the lapse of years until the bottom was worn and rusted out. It is evident that this is not consistent with any actual careful inspection of the interior of the chest for some years preceding. The evidence taken by commission as respects the kind of inspection made is brief and unsatisfactory. It does not appear that the chest was ever taken out for examination from the time it was put in some nine years previous to this damage, or that the valve itself was taken out for the purpose of seeing better how great was the wear at the bottom. The removal of the cap alone was sufficient to make visible the very considerable dropping of the pintles in the pockets that supported the valve; and if the difference in the construction of the different chests and valves was such as to make the great depth of the pintles in the pockets no certain indication of unusual wear or dropping from the original position, the necessity of an occasional removal of the chest from the side of the vessel for careful examination is the more evident.

On the whole I cannot resist the conviction that there had long been a failure to make any such real and careful examination of the

interior of these chests as their known liability to corrosion reasonably required, and that consequently there was not such "due diligence" exercised as the condition of the bill of lading required. Decree for the libelants, with costs.

H. G. Ward, for appellant.

Wilhelmus Mynderse, for appellees.

Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

PER CURIAM. We concur in the conclusion reached by the court below that the claimant failed to exercise the due diligence required by the condition of the bill of lading. Although the peculiar susceptibility of cast iron chests thus used in connection with closets was so well known that brass valve chests are now generally substituted therefor in steamers of this class, the claimant had elected to retain and continue the use of these cast iron chests in the Friesland during a period of nine years. The usual examination was made previous to this voyage, but it was not sufficient to determine whether the defect which caused the damage existed. Claimant's chief excuse for such inadequate inspection, that the valve chest was so situated that examination of the interior was difficult, only serves to emphasize the fault. The cause of the difficulty was the adjustment of two pipes in one space between two frames, whereby the opening in the top of the valve chest was so crowded as to prevent exterior visual examination. There were, however, other practicable methods of examination, as pointed out by the district judge in his opinion, none of which were followed. The decree is affirmed.

(113 Fed. 1019.)

MCALLISTER et al. v. SOUTHERN PAC. CO.

(Circuit Court of Appeals, Second Circuit. March 10, 1902.)

No. 133.

SHIPPING-LOSS OF CARGO-Negligent UNLOADING OF LIGHTER.

A lighter was loaded with 100 barrels of cement in the hold and a large number of rolls of bagging, weighing 253 tons, piled upon the deck. It was the duty of respondent to transfer the load to a steamer; and when a portion of the bagging had been unloaded, all of which was taken from the side next the steamer, the lighter listed to the other side, and a portion of the bagging was thrown overboard, and lost or damaged. The load was unusual in weight and height, but not to an extent to endanger it if properly handled. It was properly loaded, and the lighter had been brought with it a considerable distance in safety. Held, that the fact of its unusual height required that in unloading the removal should be distributed as evenly as possible over the whole load, which was also shown to be the usual way, and that the negligent manner of unloading was the cause of the vessel's listing, and rendered respondent liable for the damage.

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

This was a libel to recover for loss of cargo. From a decree for libelants, respondent appeals.

The opinion filed below, and here reprinted from 111 Fed. 938, was in full as follows:

THOMAS, District Judge. The steamship Winifred, with port side in shore, lay on the upper side of pier No. 12 in the North river, between 2 and 3 o'clock on January 30, 1900. Alongside her was lighter No. 12, with her bow out, so that the vessels were starboard to starboard. In the lighter's hold were stored 100 barrels of cement, while on the deck were 5,356 rolls of bagging, weighing 265 tons. It was the duty of the respondent to transship the bagging from the lighter to the steamer, but when such duty had been undertaken and continued for about 20 minutes the lighter careened to port, dumping a portion of her deck load in that direction. Straightway recovering, she dumped a portion of the load on the starboard side of the steamship; and for the loss of bagging thus sustained this action has been brought. It does not appear that the piles of bagging yet untouched by the stevedores on the port side of the lighter either were disturbed, toppled, or fell until the lighter lurched as stated. The listing of the lighter destroyed the equilibrium of the piles, disintegrating and causing the bagging to go overboard. They did not fall down, but were thrown down. But for such listing, the piles would have remained intact. What caused the vessel to list to port,-gradually, as libelant claims; suddenly, as respondent claims? The unloading, so far as it had proceeded, was all from the starboard side of the lighter, from the fore and aft corners progressing towards the waist and athwartship. The libelant contends that the 438 rolls, weighing 21 tons, had been transshipped when the accident happened, which corresponds with the statement of the respondent's agent, written May 16, 1900; but the respondent places the number of transferred rolls at 148. Whatever the number, it was sufficient to destroy the equilibrium of the lighter, and throw down the piles. The respondent urges that the libelant's negligence caused the accident, and the same consisted (1) in stowing the bagging to too great height, (2) in putting no sufficient dunnage under it, (3) and in not placing a binder on top of the bagging. The last accusation is not supported by the evidence. The second is open to discussion, but it may be that the scantling at the corners were connected with boards of less thickness amidships. But the inquiry is immaterial. It is not proven that the foundations of the piles gave way, nor that any undue outward inclination was given to the mass. On the other hand, the evidence is that the piles were drawn in one foot for each layer, converging the load towards the center, and that there were three binder rows at the top. If now the preponderance of evidence were that the piles fell to port, or sagged to port, causing the vessel to list, the importance of knowing the effectiveness of the dunnage would be apparent. But the careening of the vessel dumped the load, and it can hardly be claimed that the dunnage should have been sufficient to fortify the piles against such disturbance. But was the deck load negligently high? It was a large and high, but not an unprecedented, load. The number of tiers could have been 12; it is unlikely that it was over 14

What specific reason is there for inferring that such a load, with 100 barrels of cement in the hold, was improper? Was there danger of its falling apart during navigation? It had been brought from Greenpoint to pier 25, withstanding apparently all the disturbing influences of the two rivers. The evidence does not show there was any danger of its falling unless the vessel unduly listed. Was it so large and high that a removal of the inshore part to the extent that it was removed would cause the lighter to list? Such appears to have been the fact. If the cargo is removed, in the first instance, from the starboard side, the lighter must list to port. This is and was apparent. The stevedores knew this, even if they were not specifically warned of it. If the load was great, so much greater the reason for using care in distributing the work of unloading. It is urged by the respondent that the unloading was conducted according to its custom theretofore resulting in safety. The evidence tends to show that they had been removing the load working down towards the deck on the whole starboard side. There is evidence that the removal should be made somewhat evenly from the whole load, and that such is the general way; and the court is justified by the evidence and by the very nature of the case in holding that such is the proper way. Such manner of loading the stevedores did not employ. Had it been adopted, there is no reason for inferring that the lighter would have dumped. In other words, holding that the load was unusual in weight and height, yet the rolls were united suitably, and, had the work of unloading been properly distributed, the lighter would not have listed and dumped the load. Hence the culpable negligence was not in the weight and height of the load, but in the way such a load was handled. If the load was high, the fact was apparent; hence the necessity for even distribution of the work was necessary. The danger from the height of the load lay in improper discharge; hence the height and weight were not dangerous unless the cargo were negligently handled.

The libelants should have a decree for damages and costs.
Maxwell Evarts, for appellant.

Nelson Zabriskie, for appellee.

Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

PER CURIAM. Affirmed, on opinion below.

(113 Fed. 1020.)

METCALF v. AMERICAN SCHOOL FURNITURE CO. et al.
(Circuit Court of Appeals, Second Circuit. February 4, 1902.)

No. 90.

CORPORATIONS-SUIT BY STOCKHOLDER-MULTIFARIOUSNESS OF BILL.

A minority stockholder in a corporation may maintain a suit in equity in behalf of himself and all other stockholders similarly situated to set aside an alleged unlawful transfer of the property of the corporation in pursuance of a conspiracy between its officers and the transferee in

restraint of trade and commerce, where it is alleged that the corporation, on demand, has refused to bring such suit; but a bill for such relief which also seeks the recovery of treble damages under the anti-trust act of July 2, 1890, is multifarious, since such damages are only recoverable in an action at law by the plaintiff as an individual, and not as a stockholder, while the equitable relief prayed for is in behalf of the corporation, and, if granted, would inure to the benefit of all the stockholders.

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

This was a motion for temporary injunction and demurrers to bill. From a decree denying the injunction and sustaining the demurrers, complainant appeals.

The opinion filed below, and here reprinted from 108 Fed. 909, was in full as follows:

HAZEL, District Judge. The orator, Caroline Metcalf, holder of 569 shares of stock in the Buffalo School-Furniture Company, is a citizen of Connecticut. She brings this bill in equity in behalf of herself and all other stockholders having like interests with her, not citizens of New York, against the Buffalo School-Furniture Company, incorporated in the state of West Virginia, but transacting its business and having its property in the state of New York; Oliver S. Garretson, Henry R. Hoffeld, Frederick C. Garretson, Edward C. Shafer, Robert L. Cox, and Albert D. Garretson, directors of that corporation, owning 80 per cent. of the capital stock, all of whom are residents of the state of New York; the American SchoolFurniture Company, a corporation of the state of New Jersey; and Walter G. Oakman and George R. Turnbull, residents of the state of New York, who claim to have an interest in the property described in the complaint, as trustees for the holders of bonds of the defendant American School-Furniture Company. She alleges that the directors of the defendant Buffalo School-Furniture Company, without her consent, and the defendant American School-Furniture Company, on the 2d day of March, 1899, entered into an unlawful combination and conspiracy whereby it was agreed that there should be no competition in the United States in the purchase and sale of school furniture and similar articles, and that the defendants contracted, combined, and conspired to restrict, restrain, monopolize, and control trade and commerce among the several states in school furniture; that this was done to increase and control the price in contracts for the delivery of school furniture and the like among the several states and with foreign nations, and within the several states. The bill, at great length, alleges conspiracy, and after stating that the nominal capital of the defendant American School-Furniture Company is $10,000,000, all of which, after the formation of that corporation, was issued for property, or for options for property, held by promoters of the company, not exceeding $3,000,000 in value; that the defendant American School-Furniture Company borrowed $1,000,000, which still constitutes a liability, and which loan the promoters were able to obtain on the property acquired; that a large secret profit was made out of the transaction; that the con