time of its payment, by the owners of the cargo, on the Leslie, the question which arises is, can the cargo owners recover, by an action in personam against the shipowner, the due average proportion of the expenses at the port of refuge, incurred for the benefit of the ship and freight? The manifest result of the obligation of the cargo owners to pay the bond before they could obtain delivery of the goods was that they were obliged to discharge the part of the debt which was due by the ship Johnson. This, in effect, gave rise in their behalf to a claim against the ship for a breach of the contract of affreightment or charter party, by virtue of which the property of the owners was received on the Andrew Johnson to be transported to Hamburg, and there delivered to the order of the consignees named in the charter party on payment of the freight therein specified. Had a portion of the cargo not been delivered, or been delivered in a damaged condition by the fault of the master, the right to proceed in admiralty to recover the damage sustained would have been clear. The Schooner Freeman, 18 How. 182; Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 462, 9 Sup. Ct. 469. Delivering the cargo charged with a lien for an indebtedness of the shipowner is no different in principle or effect from the nondelivery of a portion or the whole in a damaged condition. It is also analogous in principle to a jettison of a portion of the cargo for the benefit of the ship, and the remainder of the cargo, when a clear right to contribution would exist, enforceable in admiralty. Dupont v. Vance, 19 How. 162, 168. As said in the latter case by Mr. Justice Curtis, delivering the opinion of the court: "The right of the shipper to resort to the vessel for claims growing directly out of his contract of affreightment has very long existed in the general maritime law." And, while in the same case (page 169) the power of the master to hypothecate or sell a part of the cargo to enable him to prosecute the voyage was declared to exist, the obligation of the shipowner, under the law of the sea, to reimburse the cargo owner for the due proportion of the loss, was clearly stated.

The shipowner being liable for his average portion of the loss, the question is, was he discharged therefrom by the loss of the Johnson and her cargo, although the owner has recovered and retains the sum awarded as damages against another ship for having brought about the loss? The answer to this question involves a consideration of the proper construction to be given to the act limiting the liability of shipowners.

The original act, approved March 3, 1851 (9 Stat. 635, c. 43), was carried forward into the Revised Statutes as section 4282 et seq.

Section 4283 declares that the liability of the owner of any vessel for various acts and things mentioned "shall in no case exceed the amount or value of the interest of such

owner in such vessel and her freight then pending."

Section 4284 describes the liability as "the whole value of the vessel, and her freight for the voyage"; and section 4285 declares that it shall be a sufficient compliance with the law if the owner transfer his interest in such vessel and freight, for the benefit of the claimants, to a trustee.

Section 4283 was amended by the act approved June 26, 1884 (23 Stat. 57, c. 121), so as to do away with the restrictions upon the character of debts and liabilities against which the limitation might be asserted. This amendment, however, is not material to the question now considered.

The clear purpose of congress was to require the shipcwner, in order to be able to claim the benefit of the limited liability act, to surrender to the creditors of the ship all rights of action which were directly representative of the ship and freight. Where a vessel has been wrongfully taken from the custody of her owners, or destroyed through the fault of another, there exists in the owner a right to require the restoration of his property, either in specie or by a money payment as compensation for a failure to restore the property. Manifestly, if the option was afforded the owner of the ship to receive back his property or its value, he could not, by electing to take its value, refuse to surrender the amount as a condition to obtaining the benefit of the act.

In The City of Norwich, 118 U. S. 468, 6 Sup. Ct. 1150, where the obligation of a shipowner to account for the sum of insurance recovered on the loss of his ship was fully considered, the fact was declared to be that the provisions of the act of congress, just referred to, were in conformity with the general maritime law of Europe, page 502, 118 U. S., and page 1161, 6 Sup. Ct. The text of the Ordonnance de la Marine of 1681, and the opinions of Pardessus and other continental jurisconsuls, were referred to as the sources from which the principles embodied in the act of congress were derived. The language of Pardessus clearly shows that, under the general maritime law, the obligation of the owner was to surrender a sum awarded as damages for the loss of his ship, and, if he did not, he could not avail himself of the limitation of liability. He says (Droit, Commercial, pt. 3, tit. 2, c. 3, § 2):

"The owner is bound civilly for all delinquencies committed by the captain within the scope of his authority, but he may discharge himself therefrom by abandoning the ship and freight; and, if they are lost, it suffices for his discharge to surrender all claims in respect of the ship and its freight."

So, also, Kaltenborn, in a treatise published at Berlin in 1851, as translated and quoted in the dissenting opinion in The City of Norwich, supra, says:

"The Roman law, which held the owner absolutely liable with all his property, is no.

where put in practice, and was not current as early as the Middle Ages. Indeed, the Consulate of the Sea, cc. 183, 224, 236; the law of Wisby, reasoning from articles 13 and 68; that of the Hanse Towns, reasoning from article 2, tit. 10,-render the owners, as a rule, answerable only to the extent of the ship's value; and the modern maritime laws free the owners, by the abandon of the ship and their several shares in the vessel, from all further liability for the ship enterprise, particularly for the acts and contracts of the captain. In the ship are included all gains arising during the voyage, as well as the insurance. Should the ship and the freight have perished, it is sufficient for exoneration of the owners if all claims and causes of action having reference to the vessel and freight are abandonded by them."

The same doctrine is clearly recognized in the provisions of the general German commercial code, where, in article 778, it is provided as follows:

"Art. 778. In cases of general average, the compensation for sacrifice or damage takes, as against the ship's creditor, the place of that which the compensation is to make good.

"The same rule applies to the indemnity, which in case of loss or damage to the vessel or of nonpayment of freight when goods have been lost or damaged, is due to the shipowner by the party who has caused the damage by his illegal conduct.

"When the compensation or indemnity has been received by the shipowner, he is personally responsible to the ship's creditors to the extent of the amount received in the same manner as to the creditors of a voyage in case of encashment of the freight."

Indeed, that a right of action for the value of the owner's interest in a ship and freight is to be considered as a substitute for the ship itself was decided in this court in the case of Sheppard v. Taylor, 5 Pet. 675. That was a case where a vessel had been seized, condemned, and sold by the Spanish authorities because of a violation of the trade regulations of the kingdom of Spain. The king of Spain subsequently ordered the proceeds of the vessel and cargo to be repaid to the owners, but this was not done. Afterwards the owners, having become insolvent, assigned their claims for the restoration of the proceeds and for indemnity from Spain to their separate creditors, and the commissioners under the Florida treaty awarded to be paid to the assignees a sum of money, part for the cargo, part for the freight, and part for the ship. The officers and seamen having proceeded against the owners of the ship by a libel in personam for their wages, and having afterwards, by an amended libel in personam, claimed payment out of the money paid to the assignees of the owners under the treaty, it was held that they were entitled, towards the satisfaction of the same, to the sum awarded by the commissioners for the loss of the ship and her freight, with certain deductions for

the expenses of prosecuting the claim before the commissioners.

* Mr. Justice Story, delivering the opinion of the court, said (page 710):

"If the ship had been specifically restored, there is no doubt that the seamen might have proceeded against it in the admiralty in a suit in rem for the whole compensation due to them. They have, by the maritime law, an indisputable lien to this extent. This lien is so sacred and indelible that it has, on more than one occasion, been expressly said that it adheres to the last plank of the ship. Relf v. The Maria, 1 Pet. Adm. notes 186, 195, Fed. Cas. No. 11,692; 2 Dod. 13; The Neptune, 1 Hagg. Adm. 227, 239.

"And, in our opinion, there is no difference between the case of a restitution in specie of the ship itself and a restitution in value. The lien reattaches to the thing, and to whatever is substituted for it. This is no peculiar principle of the admiralty. It is found incorporated into the doctrines of courts of common law and equity. The owner and the lienholder, whose claims have been wrongfully displaced, may follow the proceeds wherever they can distinctly trace them. In respect, therefore, to the proceeds of the ship, we have no difficulty in affirming that the lien in this case attaches to them."

Nor does the ruling in The City of Norwich, supra, that the proceeds of an insurance policy need not be surrendered by the shipowner, conflict with the decision in Sheppard v. Taylor. The decision as to insurance was placed on the ground that the insurance was a distinct and collateral contract which the shipowner was at liberty to make or not. On such question there was division of opinion among the writers on maritime law and in the various maritime codes. But, as shown by the full review of the authorities found in the opinion of the court, and in the dissent in The City of Norwich, all the maritime writers and codes accord in the conclusion that a surrender, under the right to limit liability, must be made of a sum received by the owner, as the direct result of the loss of the ship, and which is the legal equivalent and substitute for the ship.

We conclude that the owner who retains the sum of the damages which have been awarded him for the loss of his ship and freight has, not surrendered "the amount or value" (section *4283) of his interest in the ship; that he has not given up the "whole value of the vessel" (section 4284); that he has not transferred "his interest in such vessel and freight" (section 4285). It follows that the shipowner, therefore, in the case before us, to the extent of the damages paid on account of the collision, was liable to the creditors of the ship; and the libelants, as such creditors, were entitled to collect their claim, it being less in amount than the sum of such proceeds.

The remaining questions are free from diffi culty. It was urged below, and is pressed at bar, that the amended libels disclosed no cause of action, because it was not specifically al

leged that the master of the Johnson communicated with the cargo owners before consenting to the bond.

It was said in The Julia Blake, 107 U. S. 418, 425, 2 Sup. Ct. 692, "it is now the settled law of the English courts that a master cannot bottomry a ship without communication with his owner, if communication be practicable, and, a fortiori, cannot hypothecate the cargo without communicating with the owner of it, if communication with such owner be practicable." A particular review of the doctrine laid down by the English courts was, however, rendered unnecessary in the case of The Julia Blake, as the circumstances in that case clearly established that the hypothecation of the cargo was unwarranted, irrespective of the failure to communicate with the owner of the cargo. In the case of Glascott v. Lang, 2 Phil. Ch. 321, decided in 1847, Lord Chancellor Cottenham declared that no authority existed to support the claim that a bottomry bond executed upon a vessel might be avoided because the captain, though having opportunity to do so, failed to communicate with the owners before giving the bond. In The Karnak, L. R. 2 Adm. & Ecc. 254, Sir Robert Phillimore thus referred to the subject:

"I think it will be found upon examination of the foreign maritime law that the bottomry bond, under the various titles of contrat á la grosse aventure, hypotheca, bodmer, or cambio maritimo, was always considered as binding the cargo, and that the necessity of a special communication, if possible, of the master with the owner of the cargo, according to the *doctrine of recent cases, however just in principle, is peculiar to the English law."

The rule declared to be settled in Great Brit- | ain by the cases of The Bonaparte, 8 Moore, P. C. 459; The Hamburg, Brown. & L. 253, 273; Id., 2 Moore, P. C. (N. S.) 289, 320; Navigation Co. v. Morse, L. R. 4 P. C. 222,-was in 1877, thus stated by the privy council in Kleinwort v. Cassa Marittima, 2 App. Cas. 157:

"That it is a universal rule that the master, if in a state of distress or pressure, before hypothecating the cargo, must communicate, or even endeavor to communicate, with the owner of the cargo, has not been alleged, and is a position that could not be maintained; but it may safely, both on authority and on principle, be said that in general it is his duty to do so, or it is his duty in general to attempt to do so. If, according to the circumstances in which he is placed, it be reasonable that he should-if it be rational to expect that he may-obtain an answer within a time not inconvenient with reference to the circumstances of the case, then it must be taken upon authority and principle that it is the duty of the master to do so, or at least to make the attempt."

As in the case of The Julia Blake, however, we find it unnecessary to determine in the case now before us whether the rule laid down by the courts of Great Britain is the doctrine of this court. Under that rule, it is only where, under all the circumstances of the case, com

munication with the owners of the cargo was feasible, that a failure to attempt to communicate will avoid the bond. Now, in the case at bar, the pleadings do not aver, nor does the evidence establish, whether communication was had by the master with the owners of the cargo before the execution of the bond, nor that such communication was feasible, or might reasonably have been had. While it may be inferred from the averment in the libel that the libelants assented to the bond, "believing that the said bond was properly and necessarily issued," that such assent was given subsequent to the execution of the bond, the language used does not imply that the master had not communicated with the cargo owners before making the hypothecation. As the bond does not import to the contrary, the master must be presumed to have lawfully executed it. The necessity for the hypothecation, and that the course pursued was for the best interests of the cargo owners, is established by the evidence. Under such circumstances, we think the duty was upon the party who questioned the pow er of the master to have executed the instrument of hypothecation to plead it as a matter of defense. The Virgin, 8 Pet. 550. Particularly is this the case when, as here, the recovery sought from the shipowner is for advances made for his benefit, which were charged upon the property of the cargo owners by the representative as well of the shipowner as of the owners of the cargo. Whether, under the circumstances, an estoppel might not arise, need not be determined.

But one matter remains to be considered, and that is as to the action of the district judge in refusing on the hearing and subsequently to permit the respondent to amend his answer by setting up the plea of laches and of res judicata as respects the allegation for the first time made in the third amended libel of the receipt by the owner of the Andrew Johnson of partial compensation from the owners of the ship Thirlmere for the loss of the Andrew Johnson and her freight. The third amended libel was filed October 28, 1890, and the exceptions and answer thereto were filed June 22, 1891. The trial took place on November 22, 1893. It appears from the papers used in support of the motion filed after the trial of the case that the claim made in the admiralty proceedings in England that the cargo owners should be credited from the ship's share of the moneys paid into court by the owners of the Thirlmere with the ship's proportion of the bottomry bond was rejected because of a supposed want of jurisdiction. Indeed, the proctor for the respondent, in an affidavit filed in support of the renewed application for leave to amend the answer, stated as a reason for not setting forth the defenses in question in the answer to the amended libel that he "was then of the opinion that his client was entitled to judgment on the defenses then set up," and that he "was then advised that the presentation and rejection

by the English admiralty court of the libelants' claim, founded on their payment of the bottomry bond, did not, according to the law of England, amount to an adjudication thereon, for the reason that the said English court of admiralty was without jurisdiction thereof."

It is also clearly inferable from the statements in the affidavit we have referred to that when the answer to the third amended libel was filed the proctor for the respondent knew of the transaction with the insurance company. Even, therefore, if the fact was, as claimed, that the respondent would have been entitled to receive from his underwriters onehalf of whatever decree the libelants might be entitled to recover had the same been secured with reasonable diligence, and that respondent had lost said recourse by reason of the bar of the statute of limitations, still there is no pretense that the respondent was misled into believing that the libelants had abandoned their claim against him, and the fact was that they promptly brought suit in this country to recover against the shipowner. Without considering the averment in the last amendment to the libel, by which the recovery by the owner of the Johnson from the Thirlmere was alleged, the first libel informed the respondent that the claim arising from the bond was pressed against him. If between the time of the filing of the first libel (July 20, 1887) and the time of the hearing (November 22, 1893) a claim against an insurance company in favor of the respondent was lost by laches, such loss was the result of his own conduct.

Under all the circumstances, particularly as the rejection of the claim in the courts of Great Britain was not upon the merits, we are of opinion that the trial court did not abuse its discretion in refusing leave to amend the answer.

The decree of the circuit court of appeals must be reversed, and that of the district court affirmed, and it is so ordered.

-(168 U. S. 410)

THE VICTORY.

THE PLYMOTHIAN.

(November 29, 1897.)

Nos. 66 and 67.

COLLISION IN CHANNEL-STEAMERS EXCESSIVE SPEED-EVIDENCE-DAMAGE TO CARGO -Burden of PROOF.

1. Under article 21 of the international regulations adopted March 3, 1885, and also under the inspectors' rules, vessels approaching each other in narrow channels are ordinarily bound to keep to port, and pass to the right, whatever the occasional effect of the sinuosity of the channel; and the rule that when two vessels are crossing, so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way, is ordinarily inapplicable to vessels coming around bends in chan

nels, which may at times bring one vessel on the starboard of the other.

2. A steamer going with the tide, 7% to 9 knots per hour, over the ground up the Elizabeth river towards Norfolk, Va., held in fault for excessive speed at a time when she must be held to have known that she was approaching another vessel so as to involve risk of collision.

3. In a collision suit, where the fault of one of the vessels is shown to be obvious and inexcusable, the evidence to establish fault on the part of the other must be clear and convincing, in order to make a case for apportionment. The burden of proof is upon each vessel to establish fault on the part of the other.

4. Cargo shipped under bills of lading containing exceptions of damage by collision was damaged as the result of a collision, wherein the other vessel was clearly shown to be guilty of inexcusable fault. In the collision suit the underwriters of the cargo sought to hold both vessels liable. Held that, in order to hold the vessel which carried the cargo, the burden was on them to defeat the operation of the exception in the bills of lading by proof of such negligence on her part as would justify a decree against her if sued alone.

5. When two steamers are approaching each other in a channel where there is nothing to relieve them from the rule requiring each to keep to the right, each is entitled to presume that the other will act lawfully, and will keep to its own side; that, if temporarily crowded out of her course, she will return to it as soon as possible; and that she will pursue the customary track of vessels in the channel, regulating her action so as to avoid danger.

6. So long as steamers approaching each other in a channel are port to port, and one of them is proceeding at moderate speed on her own side of the channel, she is not bound to stop and reverse on the chance that the other vessel may depart from the rules of navigation.

On a Writ of Certiorari to the United States Circuit Court of Appeals for the Fourth Circuit.

On the 12th day of November, 1891, the steamers Victory and Plymothian came into collision in the Elizabeth river, between Lambert's point and Craney Island light. The Plymothian, laden with a cargo of cotton, was outward bound. The Victory was inward bound, in ballast. The Plymothian and her cargo were seriously damaged. The Victory was also damaged about the bows.

On the 14th of November the master of the Victory filed a libel against the Plymothian in the district court for the Eastern district. of Virginia; and on November 27th a libely was filed in that court by the underwriters of the Plymothian's cargo against the Victory and the Plymothian, seeking to hold them both liable for damage thereto. The Port of Plymouth Steamship Company, owner of the Plymothian, filed a petition in said district court on the 3d of December, praying for a limitation of its liability for damages growing out of the collision, and giving notice of its intention to contest its liability for any part thereof. A similar petition was filed the same day by MacIntyre and others, owners of the Victory. The value of the owners' interest in the Plymothian and her pending freight was fixed at $45,221, less $5,000 salvage, or $40,221; the value of the interest of the owners of the Victory, at the sum of

$67,500. Each gave bond. The damages to the Victory were proven at $14,363.80; to the Plymothian, at $41,684.12; and to the cargo, at $71,427.97.

The cause was heard upon pleadings and evidence, and the district court held the Victory solely in fault for the collision, and decreed a recovery by the owners of the Plymothian and the underwriters of her cargo, pro rata, to the extent of the bond filed by the owners of the Victory in their limitation proceeding. 63 Fed. 631. The underwriters of the cargo and the owners of the Victory severally appealed from the decree of the district court to the circuit court of appeals for the Fourth circuit. That court concurred with the district court, so far as concerned the faults found against the Victory, but held that the Plymothian was also in fault to a slight degree, and modified the decree of the district court by awarding the whole of the Victory's bond to the cargo, and that any amount remaining unsatisfied should be paid by the owner of the Plymothian. 25 U. S. App. 271, 15 C. C. A. 490, and 68 Fed. 395.

The owners of the Victory and the owner of the Plymothian thereupon severally petitioned for the writ of certiorari from this court, under section 6 of the judiciary act of March 3, 1891 (26 Stat. 826, c. 517), and the writ was accordingly issued.

The facts, as stated in substance by the district court and the circuit court of appeals, were as follows:

The Victory was a British steamer of 1,774 tons, net tonnage; 338 feet in length; 381⁄2 feet in breadth; inward bound, in ballast; drawing 17 feet aft, and 13 feet forward. Her officers and crew numbered 31, all told.

The Plymothian was a British steamer of 1,016 tons net register, 260 feet long, laden with a cargo consisting 3,682 compressed bales of cotton. Her officers and crew numbered 21, all told. She was outward bound from Galveston to Liverpool, having come in through Hampton Roads to take in coal at Lambert's point. Her draft was 14 or 16 feet. Both vessels were in charge of pilots, and their masters were on their bridges, respectively; each acting as lookout, and seeing that the orders of the pilots were executed. Nefther ship had a special lookout forward of the bridge, on her bows. The collision occurred in a straight stretch of the channel of the Elizabeth river, between Craney Island lighthouse and the turn in the channel at the buoys opposite Lambert's point. There were two of these buoys,-a red one, No. 22, known as the "Merrimac Buoy," on the west side, and a black one, No. 9, on the east side. The distance from buoy No. 9 to Craney Island lighthouse was 1,967 yards on the chart, or about a mile and oneeighth.

The place of collision was at black buoy, No. 7, at the easterly edge of the 18-foot curve of the channel, 1,200 yards south of the Craney

Island lighthouse, and 767 yards north of the black buoy, No. 9. The channel is 250 yards wide at Craney Island, and 450 yards wide at buoy No. 9.

The diagram of the channel on the opposite page sufficiently indicates the situation.

The Plymothian had been taking coal at Lambert's Point pier, a short distance from buoy No. 9. She left the pier at 4 p. m., heading out off the buoy; the course from the pier to the turning point down the channel being northwesterly, at an angle of 45 degrees. The usual departing signal was given as she moved from the pier. Proceeding outward to round buoy No. 9, with the helm slightly a-port, the engines were at half speed until the buoy was close aboard on the starboard bow. The engines were then put at full speed, and the helm hard a-port; and, rounding the buoy, she set her course down the easterly side of the channel.

At this time the Victory was seen both by the captain and the pilot of the Plymothian to be coming up the channel, southward, below Craney Island light, to the westerly side of the midchannel, and on their port bow. The Plymothian thereupon blew a passing signal of one whistle, just as she passed buoy No. 9, and a minute later repeated it, without hearing any reply from the Victory. The vessels were over a mile apart at this time, with a bend of the channel between them. The wind was southwesterly, with force enough to enable sailing vessels to make 2 or 3 knots against the tide. The Victory had in the meantime been maintaining her general course so as to pass well' clear, port to port. She had ported her helm, so as to show her port quarter to those on the Plymothian, straightening up to the channel course of S. 2 W. from Craney Island light. She had been moving at the rate of 10 miles an hour, but at Craney Island she slackened her speed, and proceeded at the rate of 6 or 7 miles an hour, assisted by a flood tide running southward with a force of 2 knots. The Plymothian, in straightening out at buoy 9, had begun to move against the tide at the rate of about 4 knots an hour, keeping well to the eastern side of the channel.

As the vessels were thus proceeding, the Victory, shortly after passing Craney Island light,. apparently directed her course towards the easterly side of the channel, as if under a starboard helm. The pilot of the Plymothian blew a single blast on his whistle, and, receiving two in reply, immediately reversed his engines, sending them full speed astern, blew a danger signal of three blasts, and put the helm hard a-port. The Victory somewhat later also blew a danger signal, and then, or shortly afterwards, reversed her engines three lengths away from buoy No. 7, but not in time to stop her headway, due to high speed, and the force of the flood tide. The Victory claimed that she gave two two-blast signals, and there is a conflict of evidence as to her position when the first of them was sounded. The Plymothian,