2. R. 4 C. P. 117; The Southgate [1894] P. | juries to a cargo of sugar owned by the libel329; The Xantho, L. R. 12 App. Cas. 503; lant, which had been shipped on or about Hamilton v. Pandorf, L. R. 12 App. Cas. February 15, 1894, upon the Silvia at Matanzas, Cuba, for Philadelphia, under a bill of lading by which the sugar was "to be delivered in the like good order and condition at the port of Philadelphia (the dangers of the seas only excepted)," upon payment of agreed freight, "and all other conditions as per charter party dated New York 31st January, 1894."

518.

The loss being prima facie by a danger of the sea, and hence within the exception, the burden of proof was upon the libellant to defeat its operation.

The Hindoustan, 35 U. S. App. 173, 67 Fed. Rep. 794, 14 C. C. A. 650; The Victory and The Plymothian, 168 U. S. 410, 423, 42 L. ed. 519, 528; Western Transp. Co. v. Downer, 11 Wall. 129, 20 L. ed. 160; Memphis & C. R. Co. v. Reeves, 10 Wall. 176, 189, 190, 19 L. ed. 909, 913.

The charter party, which had been made and concluded at New York January 31, 1894, provided that the Silvia, then at Tucacas, Venezuela, should proceed as soon as possible in ballast to Matanzas for a voyage thence to Philadelphia, New York, or Boston, and contained these provisions: "The vessel shall be tight, staunch, strong, and in every way fitted for such a voyage, and receive on board, during the aforesaid voyage, the merchandise hereinafter mentioned (the act of God, adverse winds, restraint of princes and

If the vessel be deemed to have been un-rulers, the Queen's enemies, fire, pirates, acseaworthy when she broke ground on the cidents to machinery or boilers, collisions, voyage, nevertheless the shipowner "exercised errors of navigation, and all other dangers due diligence to make the said vessel in all and accidents of the seas, rivers, and navigarespects seaworthy and properly manned, tion, of whatever nature and kind soever equipped, and supplied." during the said voyage, always excepted). *The said party of the second part doth en-[464] gage to provide and furnish to the said vessel a full cargo, under deck, of sugar in bags. The bills of lading to be signed without prejudice to this charter."

If the loss may as well have occurred by a peril of the sea as by negligence, the libellant cannot recover.

Clark v. Barnwell, 12 How. 272, 280, 13 L. ed. 985, 988; Muddle v. Stride, L. R. 9 C. & P. 380; The R. D. Bibber, 8 U. S. App. 42, 50 Fed. Rep. 841, 2 C. C. A. 50: Searles v. Manhattan R. Co. 101 N. Y. 661.

A presumption of competency arises under the circumstances.

Butler v. Boston & 8. 8. Co. 130 U. S. 527, 554, 32 L. ed. 1017, 1023; Pickup v. Thames Marine Ins. Co. L. R. 3 Q. B. Div. 594.

The Harter act exempts shipowners from The Silvia, with the sugar in her lower responsibility for faults in the management hold, sailed from Matanzas for Philadelphia of the ship's appliances, the ordinary use on the morning of February 16, 1894. The and control of which are committed to the compartment between decks next the forecasofficers and crew, even though such misman-tle had been fitted up to carry steerage pasagement may occur prior to sailing, and may sengers, but on this voyage contained only leave the ship unseaworthy. spare sails and ropes and a small quantity of stores. This compartment had four round ports on each side, which were about eight or nine feet above the water line when the vessel was deep laden. Each port was eight inches in diameter, furnished with a cover of glass five eighths of an inch thick, set in a brass frame, as well as with an inner cover or duminy of iron. When the ship sailed, the weather was fair, and the glas covers were tightly closed, but the iron cov

The Delaware, 161 U. S. 459, 471, 40 L. ed. 771; The Colima, 82 Fed. Rep. 665; The Mary L. Peters, 68 Fed. Rep. 919; The Flamborough, 69 Fed. Rep. 470; The Alvena, 74 Fed. Rep. 252; The Carron Park, L. R. 15 Prob. Div. 203; The Mexican Prince 82 Fed. Rep. 484; The Glenochil [1896] P. 10. The proper closing of the ports was an act belonging to the management or navigation of the ship.

Carmichael v. Liverpool Sailing Shipowners were left open in order to light the comers' Mut. Indemnity Asso. L. R. 19 Q. B. partment should it become necessary to get Div. 242; The Warkworth, L. R. 9 Prob. Div. anything from it, and the hatches were bat20, and 145; The Sandfield, 79 Fed. Rep. tened down, but could have been opened in 371; The Castleventry, 69 Fed. Rep. 475, two minutes by knocking out the wedges. note. In the afternoon of the day of sailing, the ship encountered rough weather, and the glass cover of one of the ports was broken,— whether by the force of the seas or by floating timber or wreckage was wholly a marter of conjecture, and the water came in through the port and damaged the sugar.

The decree of the district court dismissed the libel, and was affirmed by the circuit court of appeals. 64 Fed. Rep. 607, and 35 U.S. App. 395. The libellant applied for and obtained a writ of certiorari from this court.

It was adjudged by this court at the last term that the act of Congress of February 13, 1893, chap. 105, known as the Harter act, has not released the owner of a ship from the 'duty of making her seaworthy at the begin

The libellant is not in privity with the charter party between the owner and J. H. Winchester & Co.

Russell v. Niemann, 17 C. B. 163; Serraino v. Campbell [1890] 1 Q. B. 283.

[463] *Mr. Justice Gray delivered the opinion of the court:

This was a libel in admiralty, filed June 14, 1894, in the district court of the United States for the southern district of New York, by the Franklin Sugar Refining Company, a corporation organized under the laws of the state of Pennsylvania, against the steamship Silvia, of Liverpool, owned by the Red Cross Line of Steamers, to recover damages for in

ning of her voyage. The Carib Prince, 170
U. Š. 655 [42: 1181].

closing the iron covers of the ports, it was a fault or error in the navigation or in the management of the ship. This view accords with the result of the English decisions upon the meaning of these words. Good v. Lon

But the contention that the Silvia was unseaworthy when she sailed from Matanzas is unsupported by the facts. The test of seaworthiness is whether the vessel is reasona-don Steamship Owners' Mut. Protecting Asbly fit to carry the cargo which she has un- sociation, L. R. 6 C. P. 563; The Warkworth, [465]dertaken to transport. The portholes of the L. R. 9 Prob. Div. 20, 145; Carmichael v. compartment in question were furnished| Liverpool Sailing Shipowners' Mut. Indemboth with the usual glass covers and with the nity Association, L. R. 19 Q. B. Div. 242; usual iron shutters or deadlights; and there Canada Shipping Co. v. British Shipowners' is nothing in the case to justify an inference Mut. Protection Association, L. R. 23 Q. B. that there was any defect in the construction Div. 342; The Ferro [1893] P. 38; The Glenof either. When she began her voyage, the ochil [1896] P. 10. weather being fair, the glass covers only were shut, and the iron ones were left open for the purpose of lighting the compartment. Although the hatches were battened down, they could have been taken off in two minutes, and no cargo was stowed against the ports so as to prevent or embarrass access to them in case a change of weather should make it necessary or proper to close the iron shutters. Had the cargo been so stowed as to require much time and labor to shift or remove it in order to get at the ports, the fact that the iron shutters were left open at the beginning of the voyage might have rendered the ship unseaworthy. But as no cargo was so stowed, and the ports were in a place where these shutters would usually be left open for the admission of light, and could be speedily got at and closed if occasion should require, there is no ground for holding that the ship was unseaworthy at the time of sailing. Steel v. State Line Steamship Co. L. R. 3 App. Cas. 72, 82, 90, 91; Hedley v. Pinkney & Sons Steamship Co. [1892] 1 Q. B. 58, 65, and [1894] A. C. 222, 227, 228; Gilroy v. Price [1893] A. C. 56, 64.

In the case, cited by the appellant, of Dobell v. The Steamship Rossmore Co. [1895] 2 Q. B. 408, 414, the ship was unseaworthy at the time of sailing, by reason of the cargo having been so stowed against an open port that the port could not be closed without removing a considerable part of the cargo; and Lord Esher, M. R., upon that ground, distinguished that case from the decision of the circuit court of appeals in the present case. Judgment affirmed.

JAMES A. BRIGGS, Executor of Charles
M. Briggs, Deceased, Plff. in Err.,

v.

AMANDA M. WALKER, and Ohio Valley Banking & Trust Company, Administra tor of the Estate of A. L. Shotwell, Deceased.

(See S. C. Reporter's ed. 466-474.) Federal question-act of Congress for the relief of an estate.

The third section of the Harter act provides that "if the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped, and supplied, neither the vessel, her owner or owners, agent or charterers, shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel." 27 Stat. at L. 445.

2.

An act of Congress for the relief of the estate of a person, and referring to the court of claims a claim of his "legal representatives," makes the recovery on such claim assets of his estate and subject to his debts and liabilities.

[No. 260.]

1.

A Federal question is presented by the determination of a state court as to whether the right given by act of Congress to the "legal representatives" of a person is for the benefit of his next of kin, to the exclusion of his creditors, or not.

This provision, in its terms and intent, includes foreign vessels carrying goods to or Submitted April 25, 1898. Decided October from a port of the United States. The Scotland, 105 U. S. 24, 30 [26: 1001-1003]; The Carib Prince, above cited.

17, 1898.

N

ment under consideration operates as a re-admit that it is necessary for me by argu straint upon interstate trade and commerce. ment to fortify the positions taken by this The prohibition of the Anti-Trust Act, as court in that case. The anti-trust law as construed by this court, applies to all con- there construed is the law of the land. tracts in restraint of trade or commerce, and is not confined to those in unreasonable restraint.

The wisdom of Congress in prohibiting all agreements in restraint of trade among interstate railway systems is even more maniBut as a contract in restraint of com-fest now than when the Trans-Missouri case merce, the Trans-Missouri agreement is was decided. At the time of the argument crude and ineffective when compared with of the Trans-Missouri case it was still to the Joint Traffic agreement. The Trans- some extent a mooted question whether the Missouri provides a penalty for competition. Interstate Commerce Commission was emThe Joint Traffic goes further, and contains powered to determine what are fair and reaprovisions designed to deprive companies of sonable rates, and to enforce such rates. the means of competing, while removing the This question is no longer open. inducement to compete. Control of the soliciting and contracting freight and passenger agencies is placed in the managers, who are authorized to organize joint agencies. This done, the supervision of the sources of securing business being thereby given to the man- It will probably be urged that any illegalagers, they are charged with the duty of ap-ity in the agreement is cured by § 3 of arti portioning the competitive traffic equitably cle 7, which reads; among the members of the association.

Of course the purpose is to remove the inducement to compete. An agreement to apportion traffic operates the same as one to divide earnings. Railroads which pool their earnings have no inducement to compete. All the individual company earns goes into the pool, and it only gets its share after all. So where the traffic business is pooled, if a company by competing gets more than its share, it must yield the excess by permitting a diversion of the traffic from its line to lines which are short. A strict account is kept of the traffic carried by each trunk line. If the traffic of a particular line exceeds its percentage, the line is deemed "over," and must account for the excess to the lines which are "short."

In prohibiting pooling, Congress did not make it a condition that the rates established and maintained under a pooling agreement should be unreasonable. It sufficed they would be arbitrary, uninfluenced by competition. The public would be placed at the mercy of the traffic managers.

Interstate Commerce Commission v. Cincinnati, N. O. & T. P. R. Co. 167 U. S. 479, 42 L. ed. 243; Interstate Commerce Commis sion v. Alabama Midland R. Co. 168 U. S. 144, 42 L. ed. 414.

"Sec. 3. The powers conferred upon the managers shall be so construed and exercised as not to permit violation of the Interstate Commerce Act, or any other law applicable to the premises, or any provision of the charters or the laws applicable to any of the companies parties hereto; and the managers shall co-operate with the Interstate Commerce Commission to secure stability and uniformity in the rates, fares, charges, and the rules established hereunder."

An injunction to construe and exercise powers conferred so as to permit no violation of law is an admission that the powers may be so construed and exercised as to violate law. If the anti-trust law prohibited only those contracts in unreasonable restraint of trade or commerce there might be saving force in this section. But the anti-trust law prohib its all contracts in restraint of trade or commerce. Whether the rates be reasonable or unreasonable, an agreement providing for their establishment and maintenance by an association of interstate railways is prohib ited. The managers can exercise none of the So, too, in the case of a contract in re- essential powers conferred by the agreement straint of trade prohibited by the anti-trust without violating the law. In the matter law; it is enough if the agreement interferes of the essential powers it is not a question with those natural laws which ordinarily of method or degree; the powers cannot be determine rates; it is enough if it restricts exercised because they are in themselves ilcompetition; it is enough if it puts it in the legal. The association is itself illegal It power of the combined railroads arbitrarily is formed for the purpose of controlling to fix rates. We do not have to inquire certain competitive traffic. The central anwhether the rates fixed are reasonable or un-thority, the managers, is given the power to reasonable. It is the power through combination to fix rates arbitrarily, which is prohibited.

The Trans-Missouri case was elaborately argued and carefully considered. A petition for a rehearing was presented and denied. The decision has been accepted and acted upon by the departments of the government, and by the courts, both state and Federal, as definitively settling the meaning and scope of the Anti-Trust Act when applied to traffic associations among competing interstate railway systems. The decision was not only a just, but an eminently salutary one. I shall not concede that the principles it laid down remain questionable. I shall not

establish and maintain rates on that traffic. Take away from the association the power to establish and maintain rates, and it immedi ately falls to pieces. It ceases to have a raison d'etre.

It will be observed that the managers are not instructed to co-operate in securing reasonable rates. The latter part of this se tion is inserted to support, not the real, but ostensible purpose of the association, namely of aiding the Interstate Commerce Commission to enforce the law. Assuming the Commission powerless to enforce the law, the railroads ignored both the Commission and the law, and proceeded to form an associa tion outside of the law and in violation of

purpose is not to confer a bounty or gratuity upon anyone; but to provide for the ascertainment and payment of a debt due from the United States to a loyal citizen for property of his, taken by the United States, and to enable his executor to recover, as part of his estate, proceeds received by the United States from the sale of that property. *The 474] act is "for the relief of the estate" of Charles M. Briggs, and the only matter referred to the court of claims is the claim of his "legal representatives." The executor was the proper person to represent the estate of In the provision of the appropriation act Briggs, and was his legal representative; and of March 3, 1891, chap. 540, concerning the as such he brought suit in the court of French Spoliation Claims, the words "per-claims, and recovered the fund now in quessonal representative" and "legal representa- tion, and consequently held it as assets of the tive" were used to designate the executor or estate, and subject to the debts and liabili administrator of the original sufferer; and ties of his testator to the defendants in ermoney awarded by the court of claims to ror. such a representative was held by this court to belong to the next of kin, to the exclusion of assignees in bankruptcy, upon the ground that the act expressly so provided. 26 Stat. at L. 897, 908; Blagge v. Balch, 162 U. S. 439 [40: 1032].

Judgment affirmed.

E.

H. HUBBARD, Assignee of the Union
Loan & Trust Company, Petitioner,

2.

1831 (6 Stat. at L. 464, chap. 102), was held not to be assets in their hands for the payment of his creditors, the act, in its title, was expressed to be "for the relief of the heirs of William Emerson, deceased;" and it granted the money as a reward for services, meritorious indeed, but voluntarily rendered by Emerson, not under any law or contract, and imposing no obligation, legal or equitable, upon the government to compensate him therefor; and the money was therefore held to have been received by his heirs as a gift or pure donation.

The words "legal representatives" or "per[473]sonal representatives" have also been used as designating executors or administrators, and not next of kin, in acts of Congress giving actions for wrongs or injuries, causing death. Act of April 20,1871 (17 Stat.at L.15,chap.22, §6); Rev. Stat. § 1981; Act of February 17, 1885 (23 Stat. at L. 307, chap. 126); Stewart v. Baltimore & Ohio Railroad Co. 168 U. S. 445, 449 [42: 537, 539].

1.

Failure of pledgees to sustain their alleged rights as purchasers at a sale set up as a defense will not affect their rights as pledgees, when they stand on all their rights and have not been put to an election.

2.

3.

4.

A secret equity in securities pledged by a person who has been empowered to do so by a corporation cannot be set up by it as against the pledgee.

The act of June 4, 1888, chap. 348, now before the court, is entitled "An Act for the Relief of the Estate of C. M. Briggs, Deceased," and confers upon the court of claims "jurisdiction to hear and determine the claim of the legal representatives of C. M. Briggs, deceased," for the proceeds, in the treasury of the United States, of cotton owned by him. The only conditions which the act imposes upon the right of recovery are that the petition shall be filed in the court of claims within two years; that that court shall find that Briggs was in fact loyal to the United States, and that Morehead's assignment of the cotton to Briggs was made in good faith; and that if it shal! find that the assignment "was intended only as security to said Briggs for indebtedness, and against contingent liabilities assumed by him for said Morehead, judgment shall be rendered for such portion of the proceeds of said cotton as will satisfy the debts and claims of said Briggs to secure which said assignment was given." The "debts and claims," in this last clause, manifestly include both classes of debts previously mentioned, namely, the direct "indebtedness" of Argued April 22, 25, 1898. Decided October Morehead to Briggs; and the "contingent liabilities assumed by him for said More

5.

One seeking the affirmative aid of equity for relief against an alleged usurious agreement must himself do equity by tendering or offering payment of what is justly due.

6.

Usury between the parties to a contract, or defect of power of a corporation engaged in the transaction, will not prevent the purchaser of securities from being a holder in good faith as against another corporation which attempts to set up a secret equity.

J. KENNEDY TOD et al.

(See S. C. Reporter's ed. 474-504.)

Rights of pledgees-when pledge is dis charged acts of an officer of a corporation -secret equity-usurious agreementholder in good faith.

A pledge is discharged by the voluntary parting with the possession of the property.

The mere fact that a person who negotiates securities is an officer of a corporation does not call for an inference that he is acting as such in that transaction.