steam-boat subsequently listed over, so that one of her guards took water, but this was occasioned by the people crowding to that side of the boat; and Mr. Neeld, one of the United States local inspectors of steam-boats and an experienced river man, testifies that less than 200 persons might so list the boat. A careful consideration of the proofs leads me to the conclusion that they justify the finding that the number of persons aboard the Geneva, exclusive of officers and crew, was 500. Higher, it would not be safe, in my judgment, to put the number. Whether the master or owners of the Geneva were legally responsible for this overcrowding of the steam-boat is now to be considered.

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About the time the gang-plank of the Geneva was taken in, Capt. Clark, then on his way down to the other excursion boats, stopped at the Parkersburgh wharf-boat, and requested Peter Walter, the man there in charge, not to permit any person to pass over the wharf-boat to the Geneva; and it is abundantly shown that Peter and his assistants did put forth every possible effort to prevent the people from going over the wharf-boat, but in vain. They pressed on and over it to the Geneva in spite of all opposition. The situation is thus described by Peter: Had I had two cannon with grape and canister I could have kept the people off, but not otherwise." Finally, to stop the crowd, the staging of the wharf-boat was thrown into the river. Doubtless many of the people who got on the Geneva by way of the wharf-boat and over the coal-flat had tickets for the excursion; but I am satisfied they bought them at points lower down the wharf, and for the excursion barges Alice and Edna. John Armstrong, the engineer of the Geneva, testifies that he saw other persons, besides those already mentioned, coming from the Alice, along the outside. guard of the wharf-boat, and getting on the Geneva. His estimate is that 200 persons got on the Geneva by way of the wharf-boat, and at least 50 out of skiffs. His position on the lower deck gave him excellent opportunities for seeing. His testimony as to persons getting on the steam-boat by these irregular methods is well sustained by much other evidence. Thus, Richard Jones, the keeper of a boat store at No. 111 Water street, who himself got on the Geneva by way of the wharf-boat without paying, testifies that he thinks he saw 200 persons do the same thing.

The libelant contends that he has shown that the persons who came aboard the Geneva by way of the wharf-boat and by skiffs did so by permission of the officers of the Geneva, and that tickets or fares were collected from them by authorized parties. No doubt the libelant's witnesses who testify to this effect are honest enough, but I am entirely satisfied that they are mistaken. The clear weight of the evidence here is with the defense. At this particular time Capt. Clark was out on shore, and Thomas Boland, the mate of the Geneva, was the officer in command. He strikes me as a very candid and truthful witness. According to his statement,-and he is fully corrobo

rated by disinterested witnesses, he and his subordinates exerted themselves to the utmost to prevent persons getting on the steam-boat after the gang-plank was pulled in. Save in the case of three or four ladies, all who entered the Geneva otherwise than by the gang-plank did so against the remonstrances and despite opposition of the mate and crew of the boat; and under all the proofs I have no hesitation in finding that all the persons beyond the authorized number of passengers who came on board the Geneva did so without the consent and against the will of her master, officers, and owners, and despite all reasonable efforts then possible on their part to prevent it.

That it may not be thought that I have overlooked the fact, it is proper just here to state that there is evidence that a few passengers (estimated by libelant's witness Louis Garber at from 15 to 20) were already scattered about the Geneva when Brenneman went out to the foot of the gang-plank to sell tickets; but, as an offset to this, it appears that some two dozen persons who there bought tickets from Brenneman did not at the time go aboard the Geneva, and it does not appear they went, on her at all. Moreover, a few persons left the boat about that time.

When Capt. Clark was informed that the people were forcing themselves on the Geneva, he at once returned to the boat and took command. At this juncture, the steamer James G. Blaine came to the wharf, landing immediately above the Geneva. The crowd on the wharf at once made a rush for the Blaine, and many boarded her, some of whom jumped from her to the Geneva. There was an immense mass of people on the wharf in front of the Geneva, and there was danger of their forcing their way upon her. Capt. Clark therefore backed his boat out into the river,-grazing the Blaine as he did so, and took the Geneva a few hundred yards-the space of about two squares-down the wharf, landing at or near the mouth of Ferry street. There Boyton gave his exhibition. Many people, by persua sion of the officers of the boat or because of their own apprehensions, here left the Geneva. After Boyton's exhibition was over the Geneva made her excursion to Davis Island dam and back, but her passengèrs on the trip, it is shown by actual count, numbered less than 200. Mr. Neeld, when asked what, in his judgment, was the proper course for Capt. Clark to pursue under the circumstances just detailed, when the Geneva lay at the foot of Wood street, answered: "To do just as he did do,-back out from the crowd. That's what I would have done had I been captain of the boat." I have no doubt that this judgment is sound. If Capt. Clark had remained there, it would have been at the risk of sinking or capsizing his boat, to the great loss of, human life. It was impossible for him to disembark his passengers at that time and place; nor had he the force to expel intruders. Indeed, had he attempted such a thing it must have brought on a seri ous riot. There were many rough characters in that crowd, both on and off the Geneva. Capt. Clark, therefore, was in the strict line of.

his duty when he moved the Geneva from the mouth of Wood street down to Ferry street; and, as the persons aboard the boat in excess of the excursion permit were intruders, whom he carried against his will and under a species of compulsion, the penalties prescribed by the act of congress were not incurred.

The libel, therefore, must be dismissed, but without any costs to the respondent. Moreover, besides paying the commissioner's fees for his own testimony, the respondent must be adjudged to pay the expenses of the watchman employed by the marshal to take charge of the boat. Several reasons justify such order. There was apparently good ground for instituting this suit. Indeed, judicial investigation seemed to be demanded. Besides, had the respondent's answer been more explicit, and set forth the real ground of defense, the time occupied by this investigation might have been shortened very much. Let a decree be drawn in accordance with the foregoing opinion.

LAW v. BOTSFORD and others.

(District Court, E. D. Michigan. February 8, 1886.)

1. CARRIAGE of Goods BY VESSEL--DUTY OF VESSEL-DELIVERY.

A vessel discharges her whole duty to her cargo by delivering in good order all that she has received.

2. SAME-CUSTOM-DEDUCTION FROM FREIGHT.

A custom to deduct from the freight earned the value of any deficiency between the quantity delivered and that stated in the bill of lading, and that the carrier shall not be permitted to show that he delivered all he received, is unreasonable and invalid.

3. SAME-BILL OF LADING-POWER OF MASTER.

The master has no power to bind the vessel by an agreement in the bill of lading that the same shall be conclusive as between the shippers and carrier as to the quantity of cargo to be delivered to the consignees.

In Admiralty.

F. H. Canfield, for libelant.

S. S. Babcock, for respondents.

BROWN, J. This is a libel in personam for freight. The facts of the case are substantially as follows: In November, 1884, the schooner Lizzie A. Law took on board at Port Huron a cargo of wheat for Buffalo, and received two bills of lading, amounting to the sum of 46,047 bushels. The second mate attended to the loading in of the wheat from the elevator at Port Huron, and, with the weighman of the elevator, tallied the separate bins as they went on board the schooner, and upon completing the lading the master received two bills of lading, signed by the defendants, for this amount. The bills of lading contained the following somewhat extraordinary stipulation:

"It is agreed between the carriers and shippers and assigns that, in consideration especially of the freight hereon named, the said carriers, having su

pervised the weighing of said cargo inboard, hereby agree that this bill of lading shall be conclusive, as between shippers and assigns and carriers, as to the quantity of cargo to be delivered to consignees at the port of destination, (except when grain is heated or heats in transit,) and that they will deliver the full quantity hereon named, or pay for any part of the cargo not delivered at the current market price; the value hereof to be deducted from the freight money by consignees, if they shall so elect, and thereupon the carrier shall be subrogated to the shippers' and owners' rights of property, and action therefor."

The address on the margin was as follows: "Order of J. E. & W. F. Botsford, New York. Notify David Dows & Co., care E. B. Wilbur & Co., Buffalo, for transhipment only, identity to be preserved."

The vessel proceeded to Buffalo with her cargo, where it was weighed out at the elevators, and, as is not unusual, there was an apparent shortage of some 496 bushels. The elevator at Buffalo, conforming to a usage which is said to be well known, and indeed universal, deducted the value of these 496 bushels from the freight, and paid the residue to the master of the vessel. This action is brought to recover the amount of this unpaid balance of freight.

That the custom of deducting shortage in this way is, in the absence of an express stipulation, unreasonable and invalid, was settled by the supreme court of this state in the case of Strong v. Grand Trunk R. Co., 15 Mich. 206, in which the court held that the usage, however convenient, could only rest for its observance upon the consent of parties. It is a custom which has repeatedly been held void by the courts, and one which has been submitted to by shipmasters because the amount of the shortage is usually too small to justify the expense of litigation. At the same time there is no doubt that the vessel is bound to deliver all that she received, and that the fact that the cargo, when weighed out, does not tally as much as it did when it was weighed in, creates a presumption that some of it has been lost in transit, and throws upon the vessel the burden of showing that there has been no loss. But if the intermediate consignee. deducts from the freight the value of the shortage, he does so at the peril of its being recovered back, if in fact there has been no loss in transit. In this case it appears very clearly, and that is one of the points in the case about which there is practically no dispute, that there was no loss in transit. The Lizzie A. Law delivered all she received. There was evidence tending to show that, at the Lime Kilns, a portion of the cargo was taken from one hatch, and wheeled over to another hatch, merely as a shift, for the purpose of decreasing the draught of the vessel forward, and increasing it aft; in other words, to trim the vessel so that she could get over the Lime Kilns. But there is no evidence that a bushel of the wheat was lost; indeed, the evidence is explicit that there was none.

It cannot be too well understood that a vessel has discharged her entire duty when she has delivered all she has received. This is not only the dictate of common sense, but is also the law as laid down

in Shepherd v. Naylor, 5 Gray, 591, and Kelley v. Bowker, 11 Gray, So that, while the fact that the vessel did not tally as much at Buffalo as at Port Huron cast upon the master the burden of proving that she delivered all that she received, he fully satisfied this requirement, and hence I think is exonerated from liability in that particular. In this view it is not necessary for me to solve the question, which in its nature is insoluble, viz., whether the cargo was correctly weighed at Port Huron or at Buffalo. It is impossible for us to tell at this time where the mistake occurred. There was a mistake in measuring this cargo either inboard or outboard. If the mistake occurred at Buffalo, then the vessel is entitled to her freight upon the whole amount of the bill of lading. If the mistake occurred at Port Huron, she is entitled to her freight upon the Buffalo weight. As this is all that is claimed in this case, I am not obliged to determine whether the mistake was at one point or the other.

That the defendants in this case, aside from the stipulation in the bill of lading, are liable for the unpaid freight is beyond question. They were the consignors of the cargo, and the rule is well settled that the consignor may be resorted to, notwithstanding the cargo has been delivered to the consignee. That the original contract of the vessel is with him, and that the master may waive his remedy against the consignee, and resort to the consignor, I believe is uniformly held by the authorities. But in this case the defendants were not only the consignors, but they were also the consignees. The bill of lading is addressed to the order of J. E. & W. F. Botsford, New York, care of E. D. Wilbur & Co., Buffalo. The rule is also well settled that where the cargo is consigned to the care of another, that person is only the agent of the final consignee, who in this case is the consignor, so that, whether the defendants be sued as consignors or consignees, the action will lie against them. Hutchinson, Carriers, § 450.

It remains only to consider the effect of the stipulation in the bill of lading that the amount stated in the bill shall be conclusive as between the shippers and the carriers. This is certainly a very singular stipulation, and was designed undoubtedly to obviate the difficulties which are thrown in the way of deducting shortage, but we think the answer to it is not a difficult one. It is well settled by the case of Grant v. Norway, 10 C. B. 665, in England, and The Freeman, 18 How. 182, in this country, that the master has no authority to sign. a bill of lading for a cargo not laden on board. Now, this is nothing more nor less than such a contract. It is an agreement that the amount named in the bill of lading shall be conclusive upon the vessel, though never a bushel may have been laden on board. The mas ter has no authority to make a stipulation of this kind. It is possible that it would be binding between the consignor and the owner of the vessel if he assented to it personally, but the power of the master to bind his ship is limited to contracts made in the usual and ordinary course of business. In the above case of The Freeman, it is said