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place and mode of stowage, and that the stowage was not reasonably sufficient to meet ordinary rough weather, such as to be reasonably anticipated and provided for”; and was further of opinion that “the weather was not extraordinary, and that, before any rough weather was encountered, the movement of the casks in No. 2 between decks was observed, which the supercargo sought to check." The conclusion was that the damage was the result of bad stowage, and, inasmuch as between cargo owners and the ship, the latter is liable for pecuniary loss from that cause, the decree in each libel ran against the ship owners; but inasmuch as, between charterer and ship owners, the charterer was liable to the owners, the decrees provided that the charterer should pay the amounts therein named. The ship owners and also the steamship company appealed from each decree, but upon different grounds. Our examination of the record has led us to conclusions of fact which differ from those of the district judge.

In the original depositions which were given by the officers of the Centurion, the good character of the stowage was unanimously supported, and there was no attack or outspoken criticism upon the place of the stowage. It was not until the supercargo had testified that the place was selected by him after making inquiries of the captain and the mates as to the tightness of the between decks that any fault was found with his selection. The officers denied that this conversation took place, and the captain, after testifying that he did not give the supercargo to understand that the between decks were slack or likely to injure molasses, said that after and before the stowage he told the supercargo that, if he (the captain) had been stowing the cargo, he should not have put molasses in the between decks, and gave him to understand that between decks was not the proper way, by which he evidently meant place, to stow cargo. The captain's narrative of this conversation is so vague and general that the ut. terance of his objections to the place of the stowage, at the time when utterance was important, must have been feeble, and the tardiness with which these conversations were brought into the case shows that they were not deemed of importance in its early preparation. We cannot concur in the full extent of the finding of the district judge that the supercargo insisted upon stowing the molasses in the between decks, contrary to the advice of the officers, for the preferences of the officers could not have been outspoken or positive. Furthermore, the positive testimony on the trial adverse to the suitableness of the place was also feeble. If the between decks are tight, and in this vessel they were both tight and strong, the character of this part of the ship was not condemned by sailors or stevedores as a place for the stowage of liquids. A day or two after the vessel left Ponce, and was on its way to another port, and before the cargo was all taken on board, the molasses casks moved, and were examined and secured. This fact does not seem of especial significance, for there was no more trouble until the heavy storm of Febru

This storm appears both from the account given at the time, before the extent of damage to the cargo was known, and from

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the effect upon the vessel itself, to have been sufficiently severe and violent to create the injury to cargo, although sufficiently chocked and fastened to resist storms which might reasonably be anticipated. If this case had been between the shipowners and charterer alone, and founded upon the liability of the charterer to indemnify the owners against loss to cargo resulting from its negligence, the testimony on the part of the ship would be most convincing against the theory of the charterer's negligence. It must be recollected that the case against the charterer derives no additional strength from the fact that the controversy is tripartite. The burden of proof is still upon the cargo owner or the shipowner to establish the fact that the injury was caused by improper stowage, and this burden has been, in our opinion, imperfectly borne. If the ship owners presented, in reply to the charterer, testimony of importance showing that the injury happened by reason of negligent stowage, their witnesses had been, in their testimony in chief, so unanimous and harmonious in favor of the charterer, and had been so silent in regard to the impropriety of the location of the stowage, as to prevent a finding upon their testimony that there was a defect in either. The case then rests upon the conclusion to which the trier may come as to the extent of the peril. The district court was of opinion that it was insufficient to cause properly stowed cargo to break loose, and therefore the stowage must have been insufficient. We are constrained to the opinion that the stowage was affirmatively proved to have been proper, that the peril was sufficient to create and did create the damage to a properly stowed cargo, and that, therefore, the liability of the ship and her owners was within an exception in the bill of lading. The decrees of the district court are reversed, with costs of this court to be equally divided between the two appellants.

THE PETERSBURG.

WEYANT Y. THE PETERSBURG.

(District Court, E. D. Virginia. May 15, 1895.) SHIPPING-LIABILITY OF VESSEL FOR TORT-ARREST OF VESSEL WITHOUT PRO

CESS.

A vessel employed and used, with malicious intent, for the purpose of arresting, without process, another vessel, and bringing her forcibly into port, is responsible for the act, and a participant, whether wittingly or not, in the malice which incited it, and she is therefore liable to the owner of the vessel so arrested for the damages and expenses occasioned thereby. This was a libel by Charles Weyant against the steam tug Petersburg to recover damages for the alleged unlawful arrest of the schooner Coral by the aid of the said tug.

J. W. Mallet and Whitehurst & Hughes, for libelant.
Sharp & Hughes, for respondent.

HUGHES, District Judge. Charles Weyant is the owner of the schooner Coral, of New London, Conn. The schooner had been engaged in conveying bricks from near Smithfield, Va., on the James river, to Norfolk, for several months, with Daniel Weyant, father of Charles Weyant, as master, when, on the 8th of March last, Charles Weyant came to Norfolk from New London, and, producing proper evidence, registered her in the customhouse at Norfolk as owned by himself, and took out the usual papers for the Coral, showing his ownership. He exhibited these papers to Daniel Weyant, who had been master, and who surrendered to him the possession of the schooner. He took a young man named Benjamin Burrows on board with him, and made him master of the schooner. Charles Weyant and Benjamin Burrows were young men. On the afternoon of the 8th of March they left Norfolk, under sail, and proceeded down Elizabeth river, on what they say was a return voyage of the schooner to New London, intending to go by way of the Chesapeake Bay and the canals, to New York. They anchored on the evening of the 8th between Lambert's Point and Craney Island, close in to the southern shore, behind the vessels usually anchored in those waters. The night was dark and rainy. They had up no anchor light, but were out of the channel; the Coral being of light draft, of only 34 tons, and 54 feet length. It seems from the evidence that the Coral had on board, down below decks, some half-dozen wheelbarrows, which she had brought from the brick yard to be repaired in Norfolk, buť which had not been put off when Daniel Weyant re linquished the schooner to Charles Weyant. It cannot be pretended that the two young men had any design, in leaving port with the schooner, to purloin these barrows. It is not certain that they knew the barrows were on board. After nightfall of the 8th, Daniel Weyant applied to the master of the tug Petersburg, the respondent in this case, to go in pursuit of the Coral; alleging that she had been

stolen, and that the thieves were making away with her, down towards Hampton Roads and the bay. The master of the tug, Alexander, agreed to go at once in pursuit with Daniel Weyant, and some three or four other men were taken on board to give help in the enterprise. In the search thus begun the tug and its party passed considerably beyond the Craney Island light, into the waters of the roads and bay below. But, not finding the schooner, they finally turned upon their course, and came back into Elizabeth river, where they found the Coral, anchored as has been described, about half past 1 o'clock.

The answer of the respondent says, among other things, that the tug went alongside the schooner, and Daniel Weyant and S. F. Walker went aboard of her, and fastened lines of the tug to her; that the parties on the schooner engaged in a conversation, rather disagreeable in character, with Daniel Weyant; that when the tug had proceeded about a quarter of a mile towards Norfolk, with the schooner in tow, one of the men on board came forward, and asked the master, Alexander, by what authority he was bringing the vessel back, saying that he was master, but on that occasion showing no papers, and making no claim of ownership. But this allegation as to ownership is denied, and, I think, was unfounded in fact. The tug brought the schooner up to Norfolk, took her to Roanoke dock, docked her there, and left her. The two men who had been on board left the schooner as soon as she was docked, and the tug left the schooner in the possession of Daniel Weyant, who had employed her to go after the Coral and bring her into port. Early on the morning of the 9th of March, Hudgins & Hurst, sailmakers of Norfolk, filed a libel for sails, most of which had not been furnished, against the schooner; and the respondent, a few minutes afterwards, filed a petition in the form of a libel for searching for her, and bringing her into port as described. The circumstances tend strongly to show that the libel of Hudgins & Hurst had been preconcerted on the 8th between them and Daniel Weyant.

On the hearing of the libel of Hudgins & Hurst and the petition of the respondent, just mentioned, when the cause matured for trial I refused to entertain either, on the ground that the schooner had been unlawfully arrested and brought into port. This action was based on the evidence of Daniel Weyant himself. My decree dismissing the cases was made on the 27th of March. In consequence of the libel and petition just mentioned, the schooner had been de tained in this port from the 9th to the 27th of March, or 18 days. The libel claims damages for the detention. There is no doubt of the jurisdiction of the court to entertain this libel. There is no doubt that, when a tort is committed upon a vessel by persons using another vessel for the purpose, this vessel and its owners may be libeled for the tort. In the case at bar, Daniel Weyant willfully and maliciously committed a tort upon the schooner Coral, by arresting her and bringing her forcibly into port. In committing this tort, he made use of the tug Petersburg, and she became responsible for the act, and a participant, whether wittingly or not, in the malice which

incited it. It is not permissible or tolerable to allow vessels to be pursued and arrested without authority or process of law. If it were countenanced, such a practice would speedily run into the most gross abuses. Nor is it allowable, when the foremost agent in such a proceeding is actuated by passion and malice, to hold those whom he uses and employs to commit the wrongful and malicious act to plead innocence of malicious motive on their part. It is the duty of those who lend themselves to the evil actions of tort feasors to make themselves acquainted with the character of the work which they engage in. No master of a vessel has a right to arrest another vessel without express legal authority, and thus to take her in charge and in tow, without first calling for and examining her ship’s papers. When he is acting without process, it is his duty to call for these papers, and make himself acquainted with the true ownership of the vessel, before venturing to take her in charge. If the Coral had been at anchor, without any one on board, on the occasion of her seizure, the act of taking hold of her and towing her away without a warrant of arrest, and without inquiry as to the true ownership, would have been tortious. Ignorance of ownership cannot justify a tortious act of the sort, nor can innocence of evil motive exonerate the tort-feasing vessel, if she is acting as the immediate agent of a willful and malicious tort feasor. In the interest of public policy, I must hold the tug Petersburg responsible for the acts and the motives of her employer, Daniel Weyant, in this matter, and decree accordingly. I will assess the damages for delay of the Coral in port here, and for the expenses incident to it and in this litigation, at $250. Punitive damages are not embraced in this award.

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