the American Bonding & Trust Company became liable to the charterer as a surety, and obligated to defend the vessel against the enforcement of liens created while she was in the service of the charterer, and by reason of its interest in the litigation the bonding company was the real defendant in the case, and executed the stipulation for costs and the delivery bond, because it was necessary to do so for its own protection. A counter affidavit has been filed which is, in effect, an admission that the amount included in the cost bill is merely the usual and reasonable charge for bonds furnished by corporations, but that nothing was actually paid for bonds in this case. But it is contended that the libelant was benefited to the same extent that it would have been if the usual fees had been actually paid.

The benefit or advantage to the parties in having a vessel speedily released from custody is not, of itself, a sufficient basis for allowing premiums paid for surety company bonds to be taxed as costs, although it is worthy of consideration, in connection with the rule of reason and the spirit of justice which should animate courts in adjudicating the rights of parties. The benefits would be just the same in this case if the bonds had been executed by a wealthy friend of the claimant without compensation or hope of reward, but no practicing lawyer would seriously propose to make a charge for such bonds to be included in the taxable costs, and I hold that the mere circumstance that the surety is a corporation organized for the purpose of furnishing security affords no additional legal right to claim reimbursement where there has been no disbursement.

The costs which are taxable and recoverable by the prevailing party in a cause are prescribed by statute, but in addition thereto the courts allow the prevailing party to recover the amount of actual disbursements which are necessary or reasonable to be incurred in the preparation or conduct of a cause. But only statutory costs and actual disbursements can be recovered.

The motion to retax is granted, and the items objected to are disallowed.

THE NELLIE FLOYD.

(District Court, E. D. North Carolina. May 27, 1902.)

1. SHIPPING-Carriage OF GOODS-IMPLIED WARRANTY OF FITNESS OF SHIP. In the absence of express contract, there is an implied warranty on the part of the shipowner, in every contract for the carriage of goods by sea, not only that the ship is seaworthy in a general sense at the beginning of the voyage, but that she is seaworthy for the particular voyage and cargo.

2. SAME-EXEMPTIONS IN BILL OF LADING.

Stipulations in a bill of lading against liability for loss or damage to cargo through dangers of the sea or leakage do not exempt the shipowner from liability for damage caused by seawater which enters through the deck by reason of its defective condition, which renders the vessel unseaworthy for the particular voyage and cargo.

& SAME-DAMAGE TO CARGO-UNSEAWORTHINESS.

A schooner contracted to carry a cargo of cement from New York to Wilmington. On the voyage she encountered some weather in which seas washed over her deck, but no worse than was to be anticipated

on such voyage at that season. She was properly and carefully navigated. On arrival at Wilmington a portion of the cement stowed between-decks was found to have been rendered worthless by water, either seawater or rainwater, which entered through the upper deck, the seams in which had not been calked for some eight or nine years, and were in such condition as to permit any water falling on the deck to leak through. Held, that the damage was due to unseaworthiness at the beginning of the voyage, for which the owner was liable.

In Admiralty. Action to recover damages for injury to cargo.
Geo. Rountree and Carr, Empie & Empie, for libelants.
Thos. Evans, for respondents.

PURNELL, District Judge. On the 10th day of March, 1902, the schooner Nellie Floyd cleared from New York laden with 8,000 bags and 1,000 barrels of cement, consigned to the Coal & Cement Supply Company, Wilmington, N. C., at which last port the said schooner arrived on or about the 20th day of March, 1902, and discharged her cargo, on which the freight was paid. After the landing of the cement on the wharf, and before it was checked up, it was discovered to have been damaged,-62 barrels and 1,881 bags found to be worthless; and for this damage the libel was filed against the schooner for $936.65. Demand was made and payment refused.

The vessel was originally a three-masted schooner with a centerboard. The centerboard had been removed, and the schooner converted into a keel vessel. The cargo below the decks was sound and uninjured, but the cargo between-decks was wet by water, whether from the sea or otherwise does not appear, by which it had been set, and rendered worthless. It appears from the testimony, and is found as a fact, that as to the hull, rigging, and equipment of the ship she was stanch and seaworthy, though she had not been calked since 1893,-eight or nine years. The calking in the seams of the upper deck was rotten and soft, and a pocketknife could with ease be run in the seam. Water (rain) was dripping through the seams of the upper deck of the schooner the day she arrived in Wilmington and was surveyed, and the water was leaking into the cabin and through the upper deck, where the cargo between-decks was stowed. On her voyage the schooner encountered two storms or blows, during which she shipped seas freely. By the first she was required to return to Delaware Breakwater, and remain for two days. The other was off Cape Hatteras.

The defect in the upper deck existed at the time the schooner cleared at New York, and the weather encountered both on the Delaware and North Carolina coasts was such as every mariner expects on this voyage. For a load of lumber or merchandise, not subject to injury by water, the ship may be said to be seaworthy, but she was old, having been built in 1879. The hatches were properly battened down and dry. The cargo was damaged between-decks. The vessel, after leaving Wilmington, went to Georgetown. Sixty-one barrels damaged are not included in the 100 barrels, invoiced as stained outside. The vessel had no rating for underwriters' insurance.

The gravamen of the contention of libelant is, not that the vessel was generally unseaworthy, but that she was unseaworthy for the

116 F.-6

cargo of cement. The limited liability act of 1851 does not apply, and is improperly pleaded, for there is no complaint as to the navigation of the ship. The master was skillful in managing her,—abundantly cautious. When the weather was threatening and the storm signals displayed he ran back 30 miles to Delaware Breakwater, where he remained for two days. No blame can attach to him or his management; nor does it appear the damage resulted from the dangers of the sea, it may have done so,-but from a defect in the vessel; a neglect to have the upper deck properly inspected and calked for the particular cargo about to be shipped. There is an implied warranty, if not expressed, on the part of the shipowner, in every contract for the carriage of goods by sea, not only that the ship is seaworthy when she breaks ground and ships cargo, but that she is seaworthy for the particular voyage and cargo. This means more than the bare words, i. e., she was safe for the crew to venture to sea on. As the master aptly testified, if the vessel had not been seaworthy he would not have risked his life on her down the coast, around Hatteras. But as between ship, owner, shipper, and consignee it means, as said before, she is seaworthy for that particular voyage and cargo; that she can carry the merchandise safely to its destination, excepting certain dangers of the sea, neither of which apply in the case at bar.

The charter party filed with the papers shows the vessel was chartered to carry cargoes (lumber) from Georgetown, S. C., to New York for the term of one year. Libelant was not a party to this contract. The cargo of cement was taken on the way to Georgetown on a bill of lading separate and distinct from the charter party, in which there is no stipulation or warranty of seaworthiness expressed, but "dangers of the seas, fire, and collision excepted," and the further expression, "not accountable for breakage, leakage, or rust." These stipulations do not, however, apply in the case at bar. Their meaning is well understood in admiralty, in cases where they apply. In the case at bar the damage was not, for instance, caused by the "dangers of the sea," unless it be that in shipping seas the water raised the covering of the hatches or run through the open seams and waterways of the upper deck, nor is there evidence the damage was caused by any other "leakage" than that from the upper deck. It is well known water will set and render useless cement. To store it where it will be virtually destroyed for all practical purposes, whether shipped by sea or land, is negligence for which the carrier is liable. The defect in the upper deck was patent,-visible to the naked eye. The charter party shows the shipowners recognized the fact the vessel was only seaworthy for carrying lumber. She had no rating with underwriters on account of her age and the failure to have her calked or overhauled within the customary period, and to receive a cargo on a ship in this condition is negligence for which no sophistry of reasoning or catch sentences in the bill of affreightment can exempt the carrier from liability in damages, when damages result therefrom. For the reasons stated, a decree will be drawn and entered against the ship in favor of libelants for the amount claimed as damages. There is no force in the cross libel for damage, the ship being in the custody of the court at the time.

THE FRANCESCO.

THE F. W. MUNN.

(District Court, E. D. Pennsylvania. May 20, 1902.)

MARITIME LIENS-BREACH OF TOWAGE CONTRACT.

A tug, then in Philadelphia, contracted to proceed to New York, and tow the bark Francesco from that port to Philadelphia. The tug started to New York with another tow, but abandoned it to go to the rescue of a capsized schooner, and returned with that to Philadelphia. Held, that it had not entered upon performance of the towage contract with the Francesco, which was wholly executory, and hence that a suit in rem against it could not be maintained for breach of such contract.

In Admiralty. Suit in rem for breach of towage contract.
Henry R. Edmunds, for the Francesco.

John F. Lewis and Francis C. Adler, for the F. W. Munn.

J. B. McPHERSON, District Judge. This action is brought to recover damages for the breach of a contract of towage. The facts are as follows: The Italian bark Francesco was lying in New York, intending to proceed to Philadelphia for a cargo. Her agent in Philadelphia made a contract with the owner of the tug F. W. Munn that he would send that vessel to New York and tow the bark to this port. Another Italian ship, the Catarina Bianchi, was lying at the Delaware Breakwater, bound for New York, and the owner of the tug agreed to tow this ship to New York, thus securing a tow both ways. Not long after leaving the breakwater a capsized schooner was discovered, whereupon the tug abandoned the Bianchi, and towed the schooner to Philadelphia. As a result of this conduct, the Francesco was delayed several days before another tug could be procured, and the present action is brought to recover damages on account of this detention.

The jurisdiction of the court to entertain the libel is questioned, and I feel bound to sustain the objection. The action is in rem, and the courts have several times decided that this form of proceeding does not lie for the breach of an executory contract of towage: The Prince Leopold (C. C.) 9 Fed. 333; The William Fletcher, 8 Ben. 537, Fed. Cas. No. 17,692. See, also, 5 Rose, Notes to U. S. Reports, 559, annotating The Freeman v. Buckingham, 18 How. 182, 15 L. Ed. 341, and the annotations in the same volume, p. 660, to Vandewater v. Mills, 19 How. 82, 15 L. Ed. 554. The respondent does not deny the applicability of these decisions, if the contract of towage had not been entered upon; but the argument is made that, because the tug had started for New York in order to tow the Francesco to Philadelphia, the execution of the contract had been begun, and the agreement was therefore no longer executory, but was partially executed. I am unable, however, to agree to the correctness of this position. It was necessary that the tug should proceed to New York in order that it might take hold of the Francesco, and the fact that the parties may have expressly agreed that the tug should proceed to that port and tow the bark thence to Philadelphia imposed no more obliga

tion upon the tug than if nothing had been said about proceeding to New York. The voyage thither would have been necessary, whether anything was said about it or not. What both parties had in mind was simply that the tug should furnish the motive power to bring the bark to the port of Philadelphia, and (except perhaps under unusual circumstances) the execution of such a contract would not be begun until the tug should be actually attached to the tow. Moreover, in the case now before the court, the tug was executing a contract of towage with the Bianchi, when it abandoned both contracts and took hold of the schooner. I think it would be an unwarranted refinement to hold that these two separate, independent contracts were being executed at the same time.

The libel must be dismissed, at the libelant's costs.

THE H. B. MOORE, JR.
DALZELL v. WATT.

(District Court, E. D. New York. May 12, 1902.)

COLLISION-INSUFFICIENT MOORING-NEGLIGENCE OF MASTER.

A waterboat made fast to the outer side of a yacht moored in a rather exposed position in North river for the purpose of supplying her with water. The vessels were headed toward the north, and the waterboat was secured by head, breast, and stern lines, which were of sufficient strength for ordinary occasions; but there was a northwest wind, the river was filled with floating ice, and an ebb tide was setting in, which made the boat's position one of more than ordinary danger. The master and steward both went on board the yacht while the water was being discharged, leaving no one in the wheel house or in proper charge of the vessel. While there a large quantity of ice came against the stem, the lines parted, and before the master could go on board and get her in forward motion she drifted astern and injured the yacht's tender, suspended outboard. Held, that under the circumstances the master was negligent in leaving the vessel, and that she was liable for the injury done.

In Admiralty. Suit for collision and cross libel for supplies furnished.

Wilcox & Green, for Watt.

James J. Macklin, for Dalzell and the H. B. Moore, Jr.

THOMAS, District Judge. The yacht America, 254 feet in length, was on January 5, 1899, lying in the North river at the bulkhead off 136th and 137th streets, with the pier at 135th street some 200 feet astern, but with no pier to the northward and ahead of her, except a small pier about 60 or 80 feet in length at 136th street. The locality was not much frequented by ships. Between 6 and 7 o'clock in the evening the waterboat H. B. Moore, some 65 feet in length, came to supply the yacht with water, and made fast alongside the outer and port side, heading up the river. The stem of the Moore was from 20 to 25 feet abaft the stem of the yacht, and was moored to the yacht by head, breast, and stern lines. Some 20 minutes after the Moore had been made fast, and while the water was being supplied to the yacht, the headline parted. This was followed by a part