1888.] Opinion of the Court- Sawyer, C. J. 1. SHIPPING THE DIRECTOR. BALFOUR ET AL. v. THE DIRECTOR. CIRCUIT COURT, DISTRICT of Oregon. CHARTER-PARTY-BREACH OF WARRANTY-ACTIONS-JOINDER OF CAUSES. In case of a breach of warranty of seaworthiness of a charter-party, an action for the recovery of the goods shipped and for damages for the breach of warranty may be joined. 2. SAME-BREACH OF WARRANTY RECOVERY OF POSSESSION OF CARGO.-The libellants charted a ship to carry a cargo of wheat from Portland to Europe, and, when she was loaded, she commenced, from inherent weakness, to leak, so that her cargo had to be discharged. Held, that the vessel not being seaworthy at the date of the charter and the delivery of the cargo, there was a failure on the part of the ship-owner to perform the condition precedent to the contract, and the shipper was absolved therefrom, and was entitled to recover possession of his wheat, and such damages as he may have sustained by reason of such failure. Before SAWYER, Circuit Judge. In Admiralty. On appeal from district court. (Ante, 172; 34 Fed. Rep. 57.) This case was heard on an appeal from the district court. The suit was brought to recover damages for the breach of a warranty of seaworthiness of the bark Director, and to recover the possession of 18,868 bags of wheat theretofore delivered to the same for transportation to Liverpool under said warranty. An exception to the libel for misjoinder of causes of action was overruled by the district court (11 Sawy. 493; 26 Fed. Rep. 708), and on the final hearing the court found that the bark was unseaworthy, and that the libellants might maintain the suit to recover possession of the wheat, and to recover damages for the non-performance of the contract of affreightment, which were a lien on the vessel. Mr. C. E. S. Wood, for libellants. Mr. Frederick R. Strong, for claimants. SAWYER, Circuit Judge. Three points are made by counsel for the claimants and appellants against the findings and decree of the lower court: (1) That the possession of the wheat and Opinion of the Court-Sawyer, C. J. [October, damages for the breach of warranty of seaworthiness cannot be recovered in one suit; (2) that the libellants, having sold the cargo of wheat to arrive in Liverpool, cannot maintain a suit to recover possession of the same, notwithstanding the repudiation of the sale and the return to the libellants of the bill of lading by the purchaser; and (3) the vessel was seaworthy at the date of the charter-party, or was made so before the expiration of the lay days. The first two of these points involve questions of law. Upon both reason and authority, I think the libellants are entitled to join the cause of suit for possession of the wheat with that for damages in the one libel. They are also entitled, as against the claimants, to maintain the suit for the possession of the wheat. The sale in Liverpool has been repudiated by the purchaser, and the bills of lading returned to the libellants. The fact that the libellants may also intend to hold the purchaser liable in damages for such repudiation, if the law will permit, does not affect their right to the possession of the wheat, as against the claimants. On the question of seaworthiness, I have read the testimony carefully, and am satisfied that at the date of the charter party the Director, contrary to the implied, as well as the express, warranty therein, was altogether unseaworthy; and the subsequent repairs did not make her seaworthy for such a voyage and cargo. The mere fact that she only brought three thousand dollars at the marshal's sale, after near five thousand dollars of repairs had been made upon her, is itself satisfactory evidence of her inherent weakness, and that nothing short of rebuilding her would make her seaworthy. In conclusion, I adopt the findings of the district judge, both of fact and law, and for the reasons given in his opinion, to which I can add nothing. There must be a decree for the libellants accordingly. 1. SHIPPING-STOWAGE-SALT OVER IRON NEAR MAST.—It is bad stowage to place salt over iron and anvils, though crates of crockery be placed between them, and to place the salt, iron, and crates within an inch or so of the mast. 2. SAME LIABILITY OF CARRIER - PERILS OF THE SEA. Where the cargo is thus stored, even though a rent in the mast-coat, by which water went into the hold, causing the iron and anvils to rust, was a peril of the sea, the carrier is liable for the injury. Before SAWYER, Circuit Judge. In admiralty. On appeal from district court, ante, 368; 36 Fed. Rep. 86. This case was heard on an appeal from the district court. The suit was brought to recover damages for the non-performance of a contract of affreightment concerning a lot of Swedish iron and anvils brought on the bark Nith from Liverpool to Portland. When the goods were discharged at this port they were found to be badly rusted from contact with salt water, and the libellants refused to receive them, and brought this suit for damages. The district court found for the libellants, and gave them a decree for $3,996.18, the value of the goods at this port,. with legal interest thereon from the date of arrival, with costs and disbursements. From this decree the claimant appealed. Mr. Edward N. Deady, for libellants. Mr. C. E. S. Wood, for claimant. SAWYER, Circuit Judge. Three points are made here by counsel for the claimant and appellant against the findings and decree of the district court: (1) The iron was damaged with rust from contact with sea water when it was received on board the Nith; (2) the iron and anvils were properly stowed under the salt, with the crates of earthenware between them; and (3) the break in the mast-coat by which the sea water went into the hold,. XIII, SAWY.-31. and caused the iron and anvils to rust, was a peril of the sea, for which the vessel is not liable. On a careful examination of the evidence in the case, I am satisfied that the iron and anvils were in good condition when shipped on the Nith; that it was not good stowage to place salt over the iron and anvils, as was done in this case, even with the crates of crockery between them, and that it was clearly bad stowage to place the salt, crates, and iron within an inch or so of the mast. Admitting that the rent in the mast-coat was a peril of the sea, had it not been for this bad stowage, no harm would have resulted to the cargo, as the water would have run down the side of the mast to the bottom of the vessel. A peril of the sea does not excuse the carrier from a loss or injury to the goods committed to his care, if his own negligence or want of skill has contributed to the result. The cargo, and particularly the salt, should have been dunnaged away from the mast, so the water flowing down the same would not have affected it. In conclusion, I adopt the findings of the district judge, both of fact and law, for the reasons given in his opinion, to which I can add nothing. There must be a decree for the libellants accordingly. IN RE YUNG SING HEE ON HABEAS CORPUS. CIRCUIT COURT, DISTRICT OF OREGON. OCTOBER 10, 1888. 1. CITIZENS OF CHINESE DESCENT. —A person born in the United States of Chinese parents is, by the rule of the common law and by force of the fourteenth amendment, a citizen of the United States, and when restrained of his or her liberty of locomotion therein, may be delivered therefrom, on habeas corpus, by the proper national court. (Er parte Chin King, ante, 334; 35 Fed. Rep. 354, affirmed.) 2. EXCLUSION ACTS CONFINED TO SUBJECTS OF FOREIGN POWER.-Neither of the exclusion acts of 1882, 1884, nor 1888, purport to exclude from the United States the descendants of Chinese, born within the jurisdiction thereof. 3. BANISHMENT BY LEGISLATIVE ACT. —A legislative act which undertakes to inflict the punishment of banishment or exile from the United States, on a citizen thereof, for any cause or no cause, or because of his race or color, is à bill of attainder within the prohibition of the constitution and therefore void. Before DEADY, District Judge. 1888.] Opinion of the Court-Deady, J. Mr. Paul R. Deady, for the petitioner. Mr. Lewis L. McArthur, for the United States. DEADY, J. The writ was allowed in this case on October 8, 1888, and the hearing took place on the 10th of the same month. The petition of Yung Sing Hee states that she was born in San Francisco, on January 15, 1866, and is a citizen of the United States; that she is restained of her liberty by John R. Hill, the master of the steamship Danube, on which she took passage from Vancouver, British Columbia, for Portland, Oregon, on October 6, 1888; that the collector of customs of this port refuses to allow her to be landed from said vessel on the ground that she is a Chinese woman without a return certificate, and that under the recent exclusion act, her landing is prohibited under any circumstances. The return of the master to the writ admits the facts stated in the petition, as to the custody of the petitioner. On the hearing the United States district attorney intervened on behalf of the United States, and contested the allegation that the petitioner is a citizen of the same and entitled to land therein. On the hearing it was satisfactorily shown that Yong Soy Yat is a Chinese merchant of this city, where he has resided seven or eight years as a member of the firm of Tay Chung Lung; that for the nineteen years prior to coming here he lived in San Francisco, where he kept a store, and about 1863 was married to Ka Ho, a Chinese woman, at 729 Sacramento Street, by whom he had two children, a boy and a girl, the former being born in 1864 and the latter in 1865; that about eight years ago the mother and the two children went to China on the steamer Oceanic, where the former died not long since, and the boy remains with his parental grandfather, at school. The petitioner is this girl. She came from China on the Canadian Pacific steamship to Victoria a short time since, and from there here on the Danube, as stated in the petition. The testimony on which these facts are found, although given by Chinese persons, is consistent, reasonable, and convincing. It is probably much more entitled to credit than that on which |