The citizens are stirring on both sides of the Atlantic in defence of democracy. In the US an eminent group, including Michael Rattner, Gore Vidal, Ramsey Clark and many others has just set up the International Endowment for Democracy -- an appeal for international help that
"asks the people of the world to contribute towards helping to save (and institute for the first time) democracy in the United States."
It only hurts when you laugh. Meanwhile, in Europe, where electorates appear to be equally turned off by the kind of representative democracy they have to live under, direct democracy is flourishing, according to a new report in Accountancy Business and the Public Interest, a journal that may not, hitherto, have been everybody's favourite beach read. This issue, though, is worth checking out for the substantial report on direct democracy in five countries in Europe, downloadable free here.
fendants. The question depends upon the construction to be put by the court upon section 828 of the Revised Statutes. The clause of the section in controversy reads:
.. Clerk's Fees. * * * For receiving, keeping, and paying out money, in pursuance of any statute or order of court, one per centum on the amount so received, kept, and paid."
There is no question but that the clerk received, kept, and paid out the sum upon which he claims his 1 per cent. It is, however, contended by the defendants that he did not do so "in pursuance of any statute or order of the court." The controversy depends upon whether or not the clerk received the money under an order of this court. This seems too plain for discussion. The order of the court was its judgment. That was, that the defendants pay to the plaintiffs the amount to which they were entitled. It was under that order that the defendants paid the sum recovered to the clerk. They might have awaited an execution, or, if the money were in the hands of a trustee or officer who would be controlled by the order of the court, an order directing such officer or trustee to pay as should be ordered. But it was safe for them to pay the clerk. The judgment and his official bond, one or both, were their protection. Had there been no "order of the court," they could not have safely paid him. He would have been only their agent, or the agent of the plaintiffs. The judgment under which, and under which alone, they paid the money, made him the agent of the law, and threw around the payment the security of the bond which the statute requires. If the clerk had failed to pay the amount of the judgment to the plaintiffs, it could not have been again collected from the defendants. The question, then, becomes simply one of who shall pay the costs. That has been already determined; the costs, which include those of the execution, Or whatever means ·6f collecting the amount of the judgment take its place, must be paid by the defendants. This opinion has the support of that of Judge DILLON in the eighth circuit, (In'1'e Goodrich, 4: Dill. 230,) and of Judge DICK in the fourth circuit, (Kitchen v. Woodfin, 1 Hughes, 340.) If the amount paid is not sufficient to satisfy the decree and the commissions of the clerk, the ,judgment opens to include such commissions. Pel/tonv. Bt'ooke, 3 Oranch, 92; Kitchen v. Woodfin, 8Up'1'a.
Letters patent No. 208,G41, grante<tto William Roemer, October 1,181.8, tor .. imprQvement in locks for satchels," held valid, and infringed by the 10ok-cBse ," sold by defendant.
In Equity. On bill, etc. ' F. C. Lowth01:P, for GOD;lplamant. A. Q. Keasbey ci: Sons, for defendant. . NIXON, J. '1'he bill is filed against the defendant for infringing letters patent No. 208,541, granted to complainant, October 1, 1878, for "improvement in locks for satchels." The answer denies (1) the infringement, and (2) that the complainant was the original and first inventor of the improvements claimed in said letters patent. The patentee, in his specification, states that the principal obj ect of the invention is to reduce the expense of the lock-case, and to render the same more practical inform and construction, and that it consists principally informing the body of the lock-case into open ends, and in combining the same with cast blocks or end-pieces, which are separately made. (1) A satchel marked Exhibit D, for complainant, was produced, and also a witness who swore that he pnrchased the same ant's store in Broadway, New York; The slightest inspection shows that the lock-case thereon infringes the claims of the complainant's patent. (2) A number of exhibits are put in by the.,defendant to prove'that the claims of the complainant's patent. were anticipated. After a eareful examination of these I deem it necessary to advert to only two of them, to-wit, Exhibit D 1 and Exhibit D 3. There is nothing in thepMent sued on which is not fairly embraced in these, and if the defendant has shown that they were in public use before the date of the complainant's invention, the patent must be: held void for .want of novelty. The testimony is very meager. The defendant offered only one witness to prove their prior use. Charles Kupper testified that ,be .was a manufacturer of bag frames and locks; that he had made locks like Exhibit D 3, and had sold them to defendant; that the first he sold to' him was on March 31, 1878, and that the first he ever made was a month or two before Christmas, in tbe year 1877.· .Wben4sked about locks like D 1, he replied': "I made them a long time. after Exhibit D but I cannot say when." , There was no other testimony on the subject of public prior use. Thecompl(1ljnant's patent was issued October 1,1878.· He was called to prove the date of his inventioDjand was asked':
Question. .. When did you first conceive this lock in its present practical form?" Answer." I made the invention in the early part of 1876, but made the first model in JanuaQ', 1878, after which loonstrllcted the lock. My idea was to make a lock that would, when finished, resemble a lock I invented a few months before, and which I would be, able to make of cheaper material." Q. "Was that model of which you speak similar to the lock patented by you?" A. "It was ,
of the witness, and astbe defendant seems willing to accept th-e itc!'" count of this date. without question, the court will do the same. : It must be held tbat .the complainant was the first and original inventor of the in this patent. Lilt jherebe entered a decree for an injunction and an aCCOLlQ.t.
The pilot commissioners of Oregon, under the pilot of 1882; are 8nthorbJild and required to declare 1>1 rule what shall constitute a valid offer. of pilot!setV'ice on the Columbia river bar RiM grounds, by a signal addressed to ,the eye, and in so doin'g may prescribe the distance within which such signal must be ! made from the vessel signaled. .
The statute of the United Sta.tes does not, Any sigllal to, be used, On a pilot boat in making an offer of pilot ,service; &l).,d tlle light required by section 4233 of the Revised Stlltutes,to be carried bya sailing pilot vessel at night, is only used to prevent collision and hiddentally to give notice 'of ·the character of such craft ; but the by which an offer of, pilo,tservice is made, is the jack set at,the mam,truck lD the day-time, and" Bare-ups" at night, and this jack is usually the enSign of the country in which the service' is .offered. ,In the United States it.is ,,a , blue l1a,gchargedwitha star for every state then in the Union, and called the "Union Jack." , ·S. THE TERM" STATE" CoNSTRUED TO INOLUDE A ,,'TERRr,rORV/,J , The term" state" in the act of March 2,1837, (5 St. 153; section 4236, Rev. St. ,J the taking of' pilots.on a water forming thl!' bOlllldary between two states, to include au oJ:ganized "territorr" of the United
DEADY, J. The libelant, G-eorge, W. Wood, of the ,pilQtschooner .J. C. suit to a claim Jor pilotage the British bark Ullock of $76, out of an o1.fer ,to .pilotsaid ,bark.in and over the Columbia river bar on Maa'ch 2;4, arid a refusal to receive the same by the master and .8wietoslawski. It appears tl;J.e alleged offer was ,4 and 5 o'clqck in the afternooJl;, at a ;thebar, and consisted the schooner's, setting her jack truck until dark, when she set her mast headlight and ups" over the side. '1,'he bark was.. app,rqaching the u()m·the south-,,:est. The ,noJ.;th,.west,of ,·on her, ran. down the the bark. ,The, bark. paid no sehopner, b,utckElpt. ,op. E, N. ,E., 7 ,(fcloek, .Cape
tug Brenham and took therefrom a pilot. The schooner, in her run down the coast, passed astern of the bark, and then jibed sails and followed her. Between 9 and 10 o'clock the bark tacked and stood off shore, and soon after met the schooner with the libelant on board, who offered his services as pilot, which were declined by the pilot on board, the master below. In the testimony of the crews of the bark and schooner there is the usual amount of flat contradiction concerning the disputed circumstances of the case. The libelant swears that when the fog lifted and he first sighted the bark she was in plain sight, and not more than two or three miles' distant, when he put the schooner before the wind and mad.e sail to cut her off, and that when he came within a mile of her he expected the bark to lie to until he could go aboard, but that she kept on her course, and the schooner had to jibe her sails to follow, whereby the latter fell astern, and that thereafter he kept within from one to three-quarters of a mile of the ,bark until they met. The master of the bark swears that when he first sighted the schooner she was seven or eight miles away, and when night set in she was still four or five miles distant, and he did not see her afterwards until they met as above stated. But the master admits that he saw the schooner, and that he knew she was a pilot-boat from the flag at her mainmast, and that he did not lie to or signal for a pilot because he did not know certainly how far he was from the bar, and he did not want to take a pilot so far out as to incur the payment of "distance" or "off-shore" pilotage. It is admitted that the master of the Ullock had been in the river four times; that the Cozzens is the only pilot-schooner that had been on the bar for about two years before this time; and that she put a pilot on the Ullock under the same master in 1882; that the libelant was a duly-qualified bar-pilot under the laws of Oregon; and that the pilot from the tug who brought in the bark was a duly-qualified one under the laws of Washington territory. . By section 30 of the Oregon "pilot act of 1882" (Sess. Laws 20) it is pz:ovided that "the pilot who first speaks a vessel ... · ... or duly offers his services thereto, as a pilot, on or without the bar pilot is entitled to pilot such vessel over the same;" but the master may decline the offer, in which case he shall pay, if inward-bound, full pilotage. And section 84 provides that the pilot commissioners "must declare by rure what constitues a speaking of a vessel or an offer of pilot service on the bar pilot grounds," within the meaning of the act. By rule 9, adopted by the commissioners in pursuance of this auth<;>rity, on November 17, 1882, it is provided that "the term, 'speak. ing a vessel for pilot service: shall be construed to mean either by the usual form of hailing, or, if out of hailing distance, and within one·half mile, then the usual code of signal shall be made use of," This rule preserves the distinction that is made in the pilot act be-
tween "speaking" or "hailing" a vessel and a mere "offer" of pilot . service. The former implies that the parties are within speaking dis.tance, and can only be done by word of month, supplemented, it may be, by some such device for projecting the sonnd of the voice 8S a speaking trumpet, or even personal gesticulation. Com. v. Ricketson, 5 Mete. 412; 2 Pars. Shipp. & Adm. 109. But an "offer" of pilot service may also be made by some arbitrary but established sign or demonstration, made from beyond ear-shot and addressed exclusively to the eye. And this offer, according to the rule, must be made with "the usual code of signal," whatever that is. It is unfortunate that the commissioners did not declare definitely what signal oonstitutes an offer of pilotage, as required by the act. Declaring that the offer should be made by "the usual code of signal" has thrown no light on the subject, and may be darkened it. The expert witnesses, including one of the commissioners, do not seem to be very olear as to what this "usual oode of signal" is; though the apparent confusion in their testimony may arise from the want of knowledge on the part of counsel who examined them. For instance, the commissioner having testified that an offer .of service was customarily made by the pilot-boat putting her "head down toward the ship and showing her blue flag," her numberbeiug on her mainsail, "and Itt night by burning It flare," oounsel for the liabelant said: "Then I understand you to mean the use of the usual signals prescribed by the Revised Statutes of the United States to be used on board pilot-boats?" to whioh the witness answered, "Yes." N/?w, there are no signals prescribed by the statutes of the United States for the use of pilot-boats in making an offer of pilot servioes, nor had the witness in any way indicated that that was what he meant when he said that the pilot-boat must "show her blue flag." The question was based upon an erroneous assumption, both as to the statute and the previous statement of the witness, while the answer was ently made upon a total misapprehension of both. The rule assumes that there is a usual and well-understood signal by which a pilot-boat can make an offer of pilot service to a vessel not within hailing distance and be understood. But whet,her that signal is known throughout the civilized world, or whether its use is confined to this ooast, or even this port, does not clearlyappear from the evidenoe, or at all from the rule. But this is a subject COncerning which I think the court may supplement the evidence by its judicial knowledge. And, first, the use of the word "code" in the rules is misleading. I think there is no "code" of pilot signals; although there may be, and doubtless is, a signal for "8. pilot wanted" in the international code of signals, or that of any country. The usual signal by which an offer of pilot service is made in the day-time is a flag at the masthead. This, of course, will be the flag of the country in which the offer is made, or that modification or portion of it called the "Jack," In the United States it is a blue flag charged v.19,no.8-14
with a. star for every state in the Union, and called £he "Union Jack:' By section 4:233, subd.H, Rev. St., a sailing pilot-vessel is reo quired to carry a white light at her mast-head during the night, and "exhibit a. flare.up light every fifteen minutes." But neither of these lights, thus required to be carried, are signals that indicate an offer of pilot service, for they must be carried although all the pilots on the boat have been distributed. Evidently the statute requires these lights to be burned for the purpose of making known the whereabouts and character ·of the boat in order to prevent collision, and in· cidentally to advise anyone in need of or desiring the service of a pilot where to apply·. But the burning of "flare-ups," or a flashing light, over the side of the boat, a.t short intervals, is also the customary method of making an offer of pilot service at night. It follows that the libelant made a proper tender of hisservioe as a pilot to the Ullock, both in the day-time and after night, provided he did so within the distance prescribed by the ninth pilot rule. Without saying so directly, the neccessary effect of this rule seems to be to require that an offer of pilot service made otherwise than by hailing, as by signal, shaU be made within a of the vessel signaled. Counsel for the libelant contends, however, that the power of the commissioners does not extend to prescribing the distance within which such offer must be made. But in my judgment it does; and for maniiest reasons. They are expressly authorized and required to declare w4at shall oonstitute a valid offer of pilot service;' and when this may be done by a signal, as by setting Ji blue flag at the main-truck, the distance at which the pilot.boat; is from the vessel signaled isa rial element in the transaction. And, first, it ought not to be sofar away as to leave any room for dispute as to whether the signal was made or seen; and, second, It vessel ought not to be compelled to wait for a pilot from a boat that signals her a great way off, when, in all probability, she can get one much sooner and nearer in shore if she is allowed. to proceed on her way. And whitt distance is suitable and convenient for both the party making and receiving the signal is a matter committed by the pilot aot to the judgment of the commis· sioners. It is urged that a half .mile is a very short limit, and that it might well be a mile or two. But the commissioners are prooably better judges of this matter than counsel; and if it is thought they have erred in this respect they must be asked to correct it. It is not in the power of the court to disregard or modify their action thereabout. As to whether the offer of the libelant was made within a half tuile of the Ullock, the "testimony of the two crews widely divergent. The reason given by the master ·of the Ullockfol' declining the offer is evidently not ingenuous, and ought to have 8()meeffect upon his general credibility. He says that he preferred: to take a pilot from the sohooner, because he knew the charges were less than those of the tug pilots; and at the same time, as a reatson for not takingthia
cheaper one him, he says that he did not want to take a pilot so far from the bar and thereby incur. the additional expense of "distance" or "off-shore" pilotage. But he knew very well that there is no such thing as "distance"or "off-shore" pilotage at the mouth of the Columbia river, and that the charge for piloting a vessel in and over the bar is all one, whether the pilotboards her at the outermost buoy or at any distance beyond. He had run his reckoning for Columbia river, and been unable to take an observation for some days on account of the fog, and would naturally be glad to avail himself of the services of the first pilot that offered, unless thera wa.s some special and cogent rea.son to the.contrary. It is certain that the reasona8signed was not the true- one. And probably the fact is tha.t the master really desired to take a pilot from the tug so as to facilitate a .deal for towage, which is.a muc!). weightier matter than the cost of pilotage. But I doubt, even on the evidence of the libelant and others of the crew of the schooner, if she was ever within Ii half mile of the Ullock on that occasion before the pilot of the tug boarded her. The burden of proof in this respect is on the libelant; and he cannot prevail it appears from the eviderice .that his offer was made to the Ullock-within the legal distance. The strongest statement which the libelapt is. willing to make OD this point is that he was within from one to three-qua.rters of a mile of the Ullock; and this being taken as it should be most strongly against himself, amounts to no more than that he was within threequarters of a mile of said vessel. But there is another point ma,de in the case by the claimant, upon Which, I think, the decision must be against the libelant. By the act of March 2, 1837, (5. St. 153; section 4236, Rev. St.,) it is provided that "the master of any vessel coming in or going out of any port situate upon waters which. are the boundary between two states, may employ any pilot duly licensed or authorized by the laws of either of the states bounded: on such waters to pilot the vessel to or from such port." This act was passed, as 'is well known, on account of the conflicting legislation and the 8trifebetweenNew York and New Jersey and their pilots, for the pilotage of vessels entering the Hudson river and bound to. New York01'-other. ports therMn. It may be admitted that the Columbia river is not a boundary between two "states" iIi the sense in which' the word isuBed in the constitution, but it is the boundary between one such state and an organized territory of the United States. The case is within the mischief intended to be remedied by the act of 1837. The subject is WOolly within the power of congres!'l, and it may apply the 'rule in the .a.ct-.to the ca.se of a w.ater forming the boundary between a state and ,territory, as weHas between two states of this Union. The territoryfYfWashington is' an organized political body,-a state in the general and unqualified sense of the word,-with power to legislate on all:l'ightfnl s.ubjecta of .legislation."except as .otherwiae
tion, one of which is pilots and pilotage on the Columbia river bar. The Panama, 1 Deady, 31. True, this power is derived for the time being from congress. But the power of a state of the Union to legis. late on this subject only exists until congress sees proper to exercise it. There being no constitutional limitation upon the power of congress in this respect, and it having the same right to regulate the taking of a pilot on a water that forms the boundary between a state and territory as it has between two states proper, I think the word "state" in the act of 1837 ought to be construed to include any organized body politic or community within the territorial jurisdiction of the United States, having the power to legislate on the subject of pi. lots and pilotage on a water forming a boundary between itself and a state of this Union. In the case of The Panama, Bupra, in speaking of this act in 1861, I said:
"Whether the word · state' as used in this act should be construed so as to include a territory, is a question not free from doubt. The case is within the mischief intended to be remedied by the act, and, it seems to me, might be held to come within its spirit and purview, without any violation of principle. I do not think it comes within the reasoning or considerations that controlled the court in Hepburn v. Ellzey, 2 Ci.'anch, 445, in which it was held that under the judiciary act, giving the national courts jurisdiction of controversies between citizens of different states, that a citizen of the District of Columbia could not sue in such courts as a citizen of a state, because such District was not a member of the Union."
it was said that although the district and the territory are both states, -political sooieties,-in the larger and primary sense of the word, neither of them is such in the sense in which the term is used in the constitution, in the grant of judicial power to the national government on account of the citizenship or residence of the parties to a controversy, when it is understood to comprehend only "members of the American confederacy." In Barney v. Baltimore, 6 Wall. 287, these rulings were followed without question, upon the principle of said even of this oonstruotion:
"It is very doubtful if this ruling would now be made if the question was one of first impression; and it is to be hoped it may yet be reviewed and overthrown. By it, and, upon a narrow and technical construction of the word ·state,' unsupportedby any argument worthy of the able and dis,tinguished judge who announced the opinion of the court, the large and growing population of American citizens resident in the District of Columbia and the eigllt territories of the United States are deprived of privileges accorded to all other American citizens, as well' as aliens, of going into the national courts when obliged to &Ssert or defend their legal rights away from home."
The ruling in Hepburn v. Ellzey, supra, was afterwards applied in New OrleanB v. Winter, 1 Wheat. 91, to the case of a territory, when
But the special reason for this narrow construction of the word "!ltste" does not apply in this Ollose. Congress had the power to ex.
tend the act of 1837 over a water constituting the boundary between the state of Oregon and the territory of Washington. The language actually used in the act may reasonably be construed so as to accomplish this object; and the case is within the mischief intended to be remedied thereby. The master of the Ullock being then entitled, upon this construction of the law, to take a pilot from either Oregon or Washington, without reference to which made the first offer of his services, the libelant is not entitled to recover as for an offer and refusal of pilot services, even though such offer was duly made. There must be a decree dismissing the libel, and for costs to the claimant.
W here, in a narrow, dangerous channel, a light steamer stemming the tide, having her movements oomt>Jetely under command, observed a steamer of greater draught, deeplv laden, coining with the tide, it was the duty of the light steamer to slow down or stop until the positions and courses of each should become known. The light steamer having failed to do either, but having ported her helm and attempted to run across the track. of the heavy vessel, when the vessels were in dangerous proximity and the heavy vessel near a shoal, in consequence of which maneuver a collision occU{l'ed. the light vessel was in fault.
In Admiralty. Appeal from the decree of the district court sustaining the libel of the Scots Greys, and disniissing the libel of the Santiago de Cuba. The facts are set forth in the foll0'Ying opinion, and -also in the report of the same case in the district court, 5 FED. REP. 869. Curtis Tilton and Henry Flanders, for the Scots Greys. John G. Johnson, for the Santiago de Cuba. MoKENNAN. J. These are in which the district court adjudged the Santiago de Cuba In fault, in a collision between her and the Scots Greys, and decreed damages against her accordingly. The evidence touching the position, course. and government of the vessels hefore and about the time of the collision is of unusual volof ume. and 'consists chiefly of the testimony of the -officers and the respective vessels. Hence, as is almost always the ease undeJ,' such circumstances, it is conflicting and contradictory, and any attempt. to
reconcile it would not advance the decision of the case. It can only be dealt with by adopting such conclusions of fact of material import as may seem to be supported by a preponderance of the probabilities of their truth.
(1) About midday on the nineteenth of Juty, 1879, a collision occurred between the steamer Scots Greys and the steamer Santiago de Cuba, in the Delaware river, a short distance above the Horseshoe buoy, on the western side of the channel, by which considerable injury was caused to both vessels. (2) The Scots Gl"eys was an iron steamer, about 800 feet in length, was loaded, and drew 21 feet of water, and was ascending the river towards the port of Philadelphia. (8) The Santiago de Cuba was a wooden steamer, was light, and drew 13t feet of water, and was descending the river. (4) The tide was flood, and the current, deflected by the Horseshoe shoal, tended strongly to the eastern or New Jersey shore of the river. (5) This shoal was somewhat in the shapedf a horseshoe, with its base on the Pennsylvania or western shore and its apex in the river, leaving a channel about 400 yards in width between it and the New Jersey shore. Near this apex, -on the tlastern edge of the shoal, a buoy is anchored to indicate the turn of channel. (6) Both vessels were in sight of each other for such a distance before they met as to involve no danger of collision, if they had been carefully and skillfully navigated. (7) The Scots Greys first reached the buoy, and put her helm to starboard to make the turn of the channel, and when she rounded the buoy straightened up to proC'eed on the western side of the channel. (8) At this time the SantIago de Cuba was several hundred yards above the Scots Greys, on the western side of the channel, but her coUrse was eastward of that of the Scots Greys, and to her starboard; (9) At the Horseshoe shoal the narrowness and shape of the channel and the tendency of the tide impose upon vessels sailing in opposite directions the duty of observing special caution as a necessary condition of their safety in passing each other. (10) In starboarding her wheel to carry her past the buoy, and in straightening up after she rounded it that she might pursue the western line of the channel; the Scots Greys did what was proper for her under the circumstances:' . (11) When 'the vessels were several hundred yards apart,the Santiago de Cuba sounded a signal with her whistle and put ber helm hard a-port, indicating an. intention to pass the Scots Greys on her port bow, and which gave her a direction across the track of the Scots Greys.
. (12) Whether this signal was or was not heard on the Scots It was not answered, but shekpt her course up the western sIde of the channel. (13) The speed of the Santiago de Cuba was not diminished; at least, not soon enough. If she had stopped or slowed down when the Scots Greys was rounding the buoy and straightening up, the collision would not have occurred, because the Scots Greys would have passed the place of the collision before the Santiago de Cuba reached it. Nor would it have occurred if the Santiago de Cuba had not hard ported her helm and sought to pa.ss the Scots Greys on her port side. (14) If, in response to the Santiago de Cuba's movement, the Scots Greys had hard ported her helm, the vessels would probably have been brought together head on, with more disastrons consequences. But the impact of the fonner's bow was upon the stal.'board side of the latter, about 30 feet from her bow, thus indicating that if she had kept her course the vessels would hl\lve 'passed in safety.
Considering the condition of navigation at, the locality the size and depth in the water of the Scots Greys, the liirection ill which she was sailing, and the difficulty of cont,rolling her movements, she, was not in fault in adopting a cou;rse up the western side of the channel and in pursuing it withQut deviation.' ',. In view of the same considerations, of the size and draug}lt of the Santiago de Cuba, that she was lightlthat she was desoending the river with the tide towards her head, and her movements completely under command, and that the pasfiage of vessels such as the two in question at the Horseshoe buoy is attended with of collision, it was incautious in the Santiago de Cuba to pass the Scots Greys at that point, if she could avoid it. It was the duty of the Santiago de Cuba to stop or elow down when she observed the Scots Greys rounding the buoy. Failing to do either,aild in pOl'tingherhelm and attempting torun across the track of the Scots Greys,when the vessels were in such proximity to each other, she was in fault and must be held responsible for the collision. There must, therefore, be a decree dismissing the libel of the Santiago de Cuba, with costs, and a decree in favor of the Scots Greys for the amount of damages sustained by her" and costs.
A charter-party contained the following stipulations: .. The captain shall sign bills of lading at any rate of freight as presented, without prejudice to this charter-party; any difference between the amount of freight by the bi1Js of lading and this charter-party to be settled at port of loading, in cash, before sailing. 4 The owners or master of the steamer shall have an absolute charge and lien upon the cargo and goods laden on board for the recovery and payment of all freight, dead freight, demurrage, and all other charges what. soever." The master refused to sign bills of ladingunless there was stipulated or expressed therein, "other. conditions as per charter-party." Hela that the master had the right to insist upon such stipulation. Thelbi8, 8 Woods, 28, distinguished.
Admiralty Appeal. Charle8 B. Singleton and Richard H. Browne, for libelants. Jame8 McConnell, for olaimants. PARDEE, J. The libela.nts sue for a breach or a cnarter of the British steam-ship Peer of the Realm, made. in Liverpool, England, September 28, 1878. The charter-party contains among others, the following stipulations:
"The captain shall sign bills of lading at any rate of freight as presented without prejudice to this charter-party; any difference between the amount of freight by the bills of lading and this Charter-party to be settled at port of loading, in cash, before sailing. If the steamer be not sooner dispatched, twenty working days (Sundays excepted) shall be allowed the charterers for loading, etc. And it shall be at the discretion of the .said charterers or their agents to detain the steamer a further period not exceeding ten like dals, for the purposes aforesaid; the charterers or their agents paying demurrage at the rate of 50 pounds per day. The owner or master of the steamer shall have an absolute charge and lien upou the cargo and goods laden on boanl for the recovery and payment of all freight. dead freight, demurrage, and all other charges whatsoever.
The breach and violation of the charter-party alleged is that the master refused to sign bills of lading unless there was stipulated or expressed thereon, "other conditions as per charter-party." The question for decision is whether the master had the right to insist upon such stipulation. The oharter-party, so far as it speaks within the law, furnishes the rule of conduct to the parties. It provides for a lien upon the cargo and gooftsladen, for the freight, dead freight, and demurrage. This is lawful and binding between the parties and as to all shippers with notice. According to the English authorities, which are clear upon the subject, "a lien may be created by contract between the parties, not only for freight, but for dea.d freight, demurrage, and as many more of the usual claims of the Ship-owner as they choose to name." Macl. More. Shipp. (3d Ed.) 512. See