cided by a reference to all the sources of information which enable the jury to fix the rate correctly. What is meant by the rating of vessels in insurance policies? It means the determination of their relative state or condition in regard to their insurable qualities." Id. The insurance companies had lost faith in her, notwithstanding Lloyd's rating. Even her owners could not obtain offers less than 1 per cent., the ordinary rate being 9-16. This apprehension of the insurance companies did not arise from mere suspicion, or blind prejudice, or caprice. It had a substantial basis,—a reasonable ground of apprehension. It was not confined to the local companies. Now, the ship was chartered to be used in a mercantile adventure. It was evident by the terms of the charter that the charterer intended to offer his freight-room to shipping merchants. His charter-party called for the highest classification,-100 A 1. "This is not a warranty that the charterer could get insurance. But it is a warranty that she was insurable; that is to say, a proper subject for insurance at the ordinary rates for such a cargo and such a voyage." Premuda v. Goepel, 23 Fed. Rep. 411. When the charterer made his contract he expected, and had the right to expect, from the promised classification of the ship, that in his freight contracts he could compete on equal terms with all competitors. The accident of 9th November so changed "the relative state or condition" of the ship that her insurable quality was diminished, and he could only get 13 per cent. as against 9-16. Whatever may have been her other qualities when she was offered to the charterer, she was not "in every way fitted" for the contemplated voyage. See Stanton v Richardson, L. R. 9 C. P. 390. But this objection came from an accident arising after the date of the charter-party, and within an exception throughout the entire charter-party. Was the ship bound to remove it? Was she bound to make an inspection so thorough, and to make repairs thereon so complete, as to remove all fears of the insurance companies? Or could she stand on her contract and its exceptions? When a vessel contracts to carry a cargo, and actually receives it, and meets with an excepted accident in the inception of or during her voyage, no time being limited, she must repair, and continue and complete the voyage, if the repairs can be completed within a reasonable time. Jackson v. Insurance Co., L. R. 10 C. P. 125. So, also, a vessel under charter-party, in which no definite time is fixed, meeting a disabling accident within an excepted peril, must repair damages resulting therefrom, and perform her contract, if this can be done in a reasonable time. But here we have a charter-party requiring her to be at the loading port by a fixed date, and in every way fitted for the voyage, with option of cancellation in the charterer on default,-two conditions precedent, both to be performed. The excepted accident made one or the other impossible. If she had waited to go into dock, be surveyed, and repaired, she could not have reached the loading port in time. As it was, she was within two days only of its extreme limits. She saved her time, and the other condition precedent could not be fulfilled. Besides this, it would be unjust to require the ship to delay her voyage, and so lose her right to enforce the charter-party, and to make a minute examination for

Id.

injuries and perfect repair, if any perchance were found, and, when this is all done, to be entirely at the mercy of the charterer, who could reject her simply because she was too late. The master did all that he could reasonably be required to do. Promptly after the accident he had his ship inspected by the agent of Lloyd's, who gave him his rating. Being assured that the accident had not lost him his rating, but left his ship still seaworthy, and able to carry perishable cargo, he went on, and fulfilled the time of his charter-party, tendering his ship to his charterer. He met a condition of things he could not have anticipated. With every assurance that his ship was staunch, strong, tight, classed 100 A 1, he found that she was not fitted for the voyage because the insurance companies feared her, and required a survey which could not be held. This he could not control. He had no means in the loading port of satisfying the insurance companies. It would have been unreasonable to compel the charterer to load the ship with cotton, if, after doing so, he must go without insurance, or submit to injurious rates. It would "have been equally unreasonable to make the ship-owner responsible because she was not a proper subject for insurance at ordinary rates,' when reasonable precaution had been taken to ascertain the extent of her injuries, and when her master had come to fulfill his contract, armed with certificates of very high authority. "The circumstances excuse the ship-owner, but give him no right. The charterer has no cause of action, but is released from the charter. When I say 'he' is, I think both The condition precedent has not been performed, but by default of neither." Jackson v. Insurance Co., supra.

are.

2. During the stay in this port of the West Cumberland, libelant advanced to her master for her purposes the sum of $142.85. The items are not disputed, nor is the advance or its necessity denied. The amount certainly should have been paid. Let libelant take his decree for the amount of $142.85, with interest from the 2d December, 1887, and costs.

NIPPERT et al. v. THE WILLIAMS.

(District Court, D. Kentucky. July 16, 1889.)

1. MARITIME LIENS-ADVANCES OF MONEY.

Where money necessary to a boat is borrowed by her master in a foreign port, where the credit of her owners alone is not sufficient to obtain such money, the lenders have a lien on the boat therefor, whether the claims against the boat paid by such money constitute liens or not.

8. SAME.

But they have no lien for money advanced directly to the owners of the boat, when they did not understand that such money was to be used in paying claims against the boat.

Knox & Reed and Brown, Humphrey & Davie, for claimant.

BARR, J. The evidence satisfied me that the sums which were borrowed of the libelants, M. Nippert & Co., by the captain of the Williams on the 11th of December, 1888, and February 12, 1889, were necessary for the boat. The wages due the crew, and the supplies which the boat had obtained on the voyages immediately preceding the 11th of December, 1888, and the 12th of February, 1889, were more than the amounts advanced by the libelants, and I think the payment of these wages and supply bills was absolutely necessary for a continuance of the business of this boat. The weight of the evidence is that, excluding the Williams herself, her owners were without sufficient credit to borrow here the necessary sums to pay off these wages and supply bills, either on the 11th of December, 1888, or February 12, 1889, and that the sums advanced by the libelants at those dates were advanced for the purpose of paying off the wages due the crew of said boat and the supply bills, and such was the understanding of both the libelants and the captain of the boat, except as to the $2,000, which was sent in a draft to the Grand Lake Coal Company. The money which was advanced by the libelants, M. Nippert & Co., was raised by them through the Masonic Savings Bank, by discounting 90-day drafts of the boat, which were drawn. on the Grand Lake Coal Company, and made payable to the order of M. Nippert & Co., and indorsed by them. Although the business of libelants is carried on in the name of M. Nippert & Co., M. Nippert is dead, and the only partners are Chris Bosche and Albert Bosche. These drafts, which were signed by John Williams, captain of boat, and one of which was accepted by the Grand Lake Coal Company, by J. B. Williams, state on their face that they were for "wages and supply account of steamer." The amount of the proceeds of these drafts discounted by . the Masonic Savings Bank was $6,364.95 for draft dated December 11, 1888, and $8,824.25 for draft dated February 12, 1889. It appears from the evidence that Chris Bosche, one of the firm of M. Nippert & Co., and Capt. John Williams, captain of the boat, went together to the bank where these drafts were discounted, and where the checks for the proceeds of the discounts were given. Mr. Bosche explains his going with Capt. Williams by saying: "I always went with him to get a bill discounted, because Captain Williams was a man of very limited education, and could just barely write his name, and I did the figuring." Mr. Bosche gave checks for the amount of the discount of these drafts to order "proceeds of St'r J. B. Williams' draft or bearer" as to the February 12th draft, and to order "proceeds of draft or bearer" as to the December draft, and neither of them are indorsed. He states, however, that, as to the check of February 12, 1889, he gave to the teller of the bank a deposit ticket for the amount of their supply bill against the boat, amounting to $1,022.50, and the balance was paid in money to the boat's officer, and taken over to the steamer across the river from this city.

As to the amount of money which was drawn out of the Masonic Bank, and taken to the boat on the check dated December 11, 1888, there is some conflict in the testimony. Mr. Bosche states generally that the

money received from the checks actually passed into the hands of Capt. Williams, and that he did not know that any of the money was appropriated to the payment of any purpose other than the necessary running expenses of the boat, and that he only got information the morning he testified, that $2,000 of it had been sent to the Grand Lake Coal Company. Ike Williams, who was the clerk of the boat, whose deposition was taken by Mr. Risher, the mortgagee, says: "I got the $6,500 in December, 1888, at the office of M. Nippert & Co., in cash, and took it down to the boat. The captain sent the $2,000 to Pittsburgh by draft. I gave him the money in cash on the same day I received it, or the next day." But, as against these statements, there is exhibited a draft by the Masonic Savings Bank on the Importers' & Traders' National Bank, New York, dated December 11, 1888, to the order of M. Nippert & Co., or $2,000, which is indorsed by M. Nippert & Co. to the order of Grand Lake Coal Company, and then by Grand Lake Coal Company, by J. B. Williams. This indorsement is in these words, viz.: "Pay to the order of the Grand Lake Coal Company. [Signed] M. NIPPERT & Co., "-and is proven to be in the handwriting of Mr. Chris Bosche. There is also produced another draft drawn by said bank on its correspondent in New York, (Importers' & Traders' National Bank,) of same date, December 11, 1888, to order of M. Nippert & Co., for $500, and by them indorsed to James Rafferty, and then by Rafferty. This indorsement is also proven to be in the handwriting of Mr. Bosche. Rafferty was a pilot on the Williams, and the books of the boat show that he was paid that sum on account of wages, December 11, 1888. The check of M. Nippert & Co. for the proceeds of the draft dated December 11, 1888, and which was exhibited by the libelants, has on the back of it pencil figures, proven to be in the handwriting of the paying teller of the bank, as follows:

$2500
200

$2700
6364.95

$3664.95

This $6,364.95 was the amount of the check, and the inquiry is, what, if anything, is meant by these figures? Capt. Williams was not a witness for either party, and was proven to have been at the time on a trip to New Orleans as captain of the boat Williams, and the paying teller of the bank was not called as a witness, but Mr. Bosche was present when these two drafts on New York were presented as evidence on behalf of the mortgagee, and was not recalled to give an explanation. In this state of the testimony I am embarrassed somewhat; but, considering all of the probabilities, I have concluded that the preponderance of the whole evidence is that this $2,000 draft on New York was bought with a part of the proceeds of the $6,500 draft, and that Mr. Bosche received it from the bank in part payment of his check, and then and there indorsed it to the Grand Lake Coal Company. This seems, under the evidence, the

probabilities, and, in the absence of any explanation by the libelants, was, I think, a loan directly to the company, and rebuts any presumption which the other facts would raise that this $2,000 was intended to pay the wages of the crew and supply bills of the boat, or that Mr. Bosche either understood or expected at the time that it would be so used. This being the fact as to this $2,000, libelants have no lien on the boat, her tackle, engine, etc., for the advance of this $2,000.

It appears from the evidence of the clerk of the boat and the boat's books that a considerable part of the money advanced by libelants was actually used in the payment of wages of the crew and other claims which were liens on the boat; but it also appears that part of these advances were paid to Thomas Patterson, who was a salaried pilot on the Williams, and a part owner, and John Williams, who was the captain of the boat, and a part owner. The question arises, have the libelants a lien for these advances, which were used in the payment of claims against the boat, which were not lien claims? There may have been other claims than that of Capt. Williams paid, which were not lien claims, but the facts as to the payments to him raise the question. It appears that Capt. Williams drew $675 on February 12, 1889, and that he left Louisville on that day for Pittsburgh, where he resides, and where the Grand Lake Coal Company did business, and that on the next day, February 13th, he, with others of the Grand Lake Coal Company, who were owners of the Williams, executed a mortgage to J. D. Risher, which mortgage has been properly registered and recorded. He then returned to this city, after having executed some kind of assignment for the benefit of his creditors in Pittsburgh, and on the 15th or 16th of February, 1889, drew from the clerk of the boat all the money remaining, $3,655.82, making, presumably, $4,330.82 of the money advanced by the libelants on the 12th of February, 1889, that he received. This was on account of salary due him as captain of the boat, and was clearly not a lien claim against the boat, tackle, etc.

The able and learned counsel for the excepting mortgagee insists that before money advanced the captain of a boat in a foreign port, such as another state from that which she is registered and owned, can be a tacit lien on the boat, etc., it must be loaned on an apparent necessity, both as to the credit of the owners of the boat and the needs of the vessel itself; and also that the money thus loaned must be used for wages, repairs, and such supplies as would, of themselves, be lien claims against the boat. In other words, being money advanced, and not such as is directly attached to the vessel, or used in its navigation, it can have only such lien by subrogation as the claimants have whose debts have been paid by the money advanced. He refers to The Wyoming, 36 Fed. Rep. 494; The Cumberland, 30 Fed. Rep. 453; The Thomas Sherlock, 22 Fed. Rep. 255; The Guiding Star, 18 Fed. Rep. 264; The J. F. Spencer, 5 Ben. 152; The Sarah Harris, 7 Ben. 28; Davis v. Child, 2 Ware, 76; Thomas v. Gittings, Taney, 472; The William Penn, 3 Wash. C. C. 484; The A. R. Dunlap, 1 Low. 350; and The Tangier, 2 Low. 7, 15,-as tending to or sustaining his contention.