Opinion of the Court.

by which testimony shall be received, and does not necessarily interfere with the provision that the proof shall be satisfactory to the register and receiver, or grant to the superior officer a right to revise their determination; and such was the construction placed on the similar section prior to the legislation of 1836. Nevertheless the section contemplates that the proceedings shall not be wholly withdrawn from the control of the Secretary, and implies that they are but part and parcel of the general administrative system for the disposal of the public lands. While it is within the discretion of Congress to segregate any particular step in the proceedings for the disposal of the public lands from the scope of the general system, and place it outside of and beyond any supervising control of the higher officers, yet the courts should be satisfied that the language indicates an intention on the part of Congress so to do before any such break in the harmony of the system is adjudged. In this connection reference may be made to section 2273, which provides for a contest between two parties claiming the right of preemption. Such a contest is to be heard, in the first instance, by the local land officers, subject by express declaration to the right of appeal to the Commissioner, and subsequently to the Secretary of the Interior. In other words, when any individual contests the validity of the action of the local land officers there is confessedly the right of appeal. Can it be that if the government is the only party wronged by their action there is no review except by the slow and expensive process of a suit in the courts?

Some reliance is placed on the case of Butterworth v. Iloe, 112 U. S. 50, in which it was held that the Secretary of the Interior has no power to revise the action of the Commissioner of Patents in awarding to an applicant priority of invention and adjudging him entitled to a patent. But an examination of the opinion shows that it throws very little light upon this question. Indeed, it is said therein that "each case must be governed by its own text, upon a full view of all the statutory provisions intended to express the meaning of the legislature;" and the lack of power in the Secretary to revise

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Syllabus.

the action of the Commissioner of Patents in the particular matter was denied by reason of the various provisions of the statute applicable thereto, among others one providing for an appeal from the decision of the Commissioner to the Supreme Court of the District of Columbia, whose decision, as expressly declared, (sec. 4914, Rev. Stat.,) "shall govern the further proceedings in the case." This special provision for an appeal to a judicial tribunal, with a declaration as to the effect of the decision of such tribunal, was held to be conclusive so far as respects proceedings in the department. But the difference between the two cases is obvious. There is no special provision for an appeal from the decision of the local land officers as to the matter of settlement and improvement; nothing, therefore, to take the case out of the general grant of power to the Commissioner of the General Land Office and the Secretary of the Interior to control all matters in respect to the sale and disposal of the public lands.

It is unnecessary to pursue this discussion further. The conclusions of the Supreme Court of the State of Washington were correct, and the judgments are

Affirmed.

RALLI v. TROOP.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR

THE SOUTHERN DISTRICT OF NEW YORK.

No. 46. Submitted April 27, 1894. Decided April 1, 1895.

The scuttling of a ship by the municipal authorities of a port, without the direction of her master or other commanding officer, to extinguish a fire in her hold, is not a general average loss.

If the cargo in the hold of a ship moored in a port takes fire, and the port authorities come on board with fire-engines, take charge of her, pump steam and water into the hold, and move her and put her aground, without any objection by the master; and the master successfully removes part of the cargo, and desires, and believes it to be prudent and feasible, to remove more; but the port authorities forbid and prevent his doing so, because of the danger of increasing the fire, and themselves ex

Statement of the Case.

tinguish the fire by scuttling the ship, whereby she becomes a wreck, not worth repairing; the loss of the ship is not a subject of contribution in general average against the owners of the cargo, although the court is of opinion that the measures taken by the port authorities were the best available to save the cargo from greater loss.

THIS was a libel in admiralty, filed May 16, 1889, in the District Court of the United States for the Southern District of New York, by the charterers against the owners of the British bark J. W. Parker, of St. John, New Brunswick, alleging that pursuant to a charter-party, dated October 25, 1885, the libellants on February 16, 1886, loaded on the bark in the port of Calcutta, to be carried to the port of New York, at a certain rate of freight, a full cargo, consisting, among other things, of 7592 bales of jute butts, and received from her master bills of lading therefor, agreeing to transport the jute to the port of Boston; that on the same day "fire broke out, and said bark was thereby so badly damaged as to become unseaworthy, and her said voyage was thereupon broken up and abandoned by the respondents;" that afterwards 552 bales of the jute were delivered to the libellants at Boston from a steamship; that the respondents failed and neglected to deliver the remaining bales, and by their agent, the master of the vessel, sold and delivered them at Calcutta, and received. and held the proceeds of the sale, and refused, on demand, to pay them to the libellants, whereby the libellants were damaged to the amount of $22,000, the value of the undelivered jute.

The respondents, in their answer, claimed a contribution in general average. Admitting that the master sold the jute, and that they received and held the proceeds, they alleged the following facts: "In accordance with the terms and provisions of the charter-party, a cargo of jute had been laden on said bark at Calcutta, and on February 18, 1886, said vessel was ready for sea. Flames broke out in the hold of said bark about 10 A.M. from causes unknown, but presumably from spontaneous combustion of the jute in the bales, and said bark and cargo were in great danger of destruction and of becoming a total loss. Immediately upon discovery of the fire, the

Statement of the Case.

officer in charge of the J. W. Parker sent for the crews of the neighboring vessels to assist, and under his supervision and direction a quantity of water was poured down the forward ventilator and fore hatchway, after which those openings were tightly covered with a sail, and all ventilators closed. Later the engines of the port came to assist, and their hose, charged with fire-extinguishing chemicals, were let into the hold through holes cut in the deck. Other sacrifices and measures were taken against the common danger, which resulted in saving 552 bales of jute uninjured, although the residue of said cargo was so much damaged that the same was condemned and sold. The 552 bales aforesaid were forwarded by steamer to Boston, and there delivered to the libellants."

The respondents further alleged that they executed an average bond; that an adjustment of general average was made, which showed that the proceeds of the sale of cargo at Calcutta amounted to $20,752.83, and that the balance due to the owners of cargo was $7420.48, which they were ready to pay to the libellants, and had deposited in the registry; and denied any other liability to the libellants.

The District Court held that the respondents were entitled to a general average, and confirmed the adjustment, and entered a decree in favor of the libellants for said sum of $7420.48, and interest, for the reasons stated in its opinion in 37 Fed. Rep. 888.

The libellants appealed to the Circuit Court, which made the following findings of facts:

"1. Libellants, who constituted the firm of Ralli Brothers, of New York and Calcutta, on October 25, 1885, chartered the British bark J. W. Parker to load jute and saltpetre for a voyage from Calcutta to New York.

"2. The vessel accordingly proceeded to Calcutta, and, while moored in the river there, was fully laden by libellants with 7592 bales of jute butts and 1062 bags of saltpetre, for which the master signed the usual bills of lading, undertaking to deliver said cargo at Boston.

"3. On the morning of February 18, 1886, a port pilot came on board and took charge of unmooring, preparatory to

Statement of the Case.

taking the bark to sea. All the hatches had been tightly covered the night before. As the anchor chain was hove in, it was necessary for a man to go into the chain locker forward to stow the chain. To reach the locker, the fore hatch had to be opened. Thence one could go through a narrow passage, about three feet wide and three feet high, between the jute bales, to the chain locker, which was about eight feet forward of the hatch. Ernest Edwards, an able seaman, who had been several months on the bark, took a globe lantern, which did not have a lock, but in which the lamp was screwed into the body of the lantern, and, by the mate's orders, went through the fore hatch into the chain locker to stow the chain. This was between 9 and 10 o'clock A.M. A few minutes afterwards, he was heard to scream. At the same time, smoke was seen coming out of the ventilators. The men who tried to rescue him were driven back by the smoke in the fore hatch. Edwards was suffocated. His body was afterwards found in the chain locker.

"4. Thereupon the second officer of the bark caused an alarm to be sounded by ringing the vessel's bell, and from sixty to seventy men from the crews of the neighboring vessels came to his assistance. These men brought buckets with them; water was poured from the buckets into the fore hold. A force-pump on the bark, and another force-pump brought from a ship near by, were both playing large streams of water down the hold. After half an hour of this work, the hatches were covered with wet sails and tarpaulins, but the pumps were kept playing into the chain lockers.

"5. Between 11 and 12 o'clock, and while both force-pumps were still being steadily worked, the port authorities came with fire-engines, and took direction of the vessel; and on the return on board of the master he found the port authorities in charge. The port fire-engines, charged with fire-extinguishing chemicals, were placed through holes cut in the deck. During the night the fire-engines continued pumping in steam; and in the morning the fore hatchway was opened, and six hose were played on the fire in the fore hold, but, as this seemed to increase the fire, the hatches were put on