318
l'iWERAJ, REPOHTErt.
The allowance to the intervenors for salved jettisoned cargo was {In the basis of S3t per cent. on the value of property saved, and seems just and proper.
FRY and another v. THE KRONA..
(RILEY
and others, Intervenors.)
(Circuit Oourt, E. D. Texas. 1886.) SA.LVAGE-BREACH OF CONTRA.CT BY VESSEL.
A vessel, by breach of her contract with another vessel, having contributed to put the latter vessel in danger and peril, cannot and ought not to be compensated for services, although otherwise salvage services rendered in aiding to rescue her.
Admiralty AppeaI. Wheeler &; Rhodes, for libelants. Ballinger, Mott &; Terry, for intervenors. Waul cf; Walker, for claimants. PARDEE, J. On January 2,1885, libelants' tug Continental, under contract, undertook to tow the bark Krona from the wharf at Galveston outside and over the bar, preparatory to completing the latter's (largo for the voyage. After towing her out into the harbor to Bolivar roads, inside the bar, and although there was plenty of time and tide, the tug cast off the hawser of the bark, and left her there, with direc. tions to anchor, while the tug went off to tow another ship over the bar, the Kong Sevier, which it is alleged was first at the bar, and, according to custom, first entitled to go to sea. After towing over the Kong Sevier there was no time to take out the Krona, nor any offer or effort to do so. The Krona anchored in Bolivar roads, with the starboard anchor in about five fathoms of water, and remained there that night, and until the fifteenth of January, because during that period the weather and state of water on Galveston bar was such that she could not be towed out, and during all this time she rode with but the starboard anchor. On the night of the 15th, while the master and crew were below, and the watch, if any, negligent, she dragged her anchor over a mile, and went ashore, in some unaccountable way, head on. Some time after she struck, and before she settled in the sand, the port anchor was let go. On the morning of the 16th, with a strong northwest wind, (28 miles per hour,) and the mercury below freezing point, the Krona, then drawing 13 feet forward, and 13 feet 5 inches aft, was aground in about 10 feet of water, and with 2 feet of saud all around 1 Reported
by Joseph P. Hornor, Esq., of the New Orleans bar.
THE KRONA.
319
her, on the south-east shore of Galveston harbor, near the end of the south jetty, about four miles from the quarantine station, headed b. E., with a starboard anchor out, with 45 fathoms of chain abreast and astern, at an angle of 45 deg., with the side of the ship and the port anchor out, with about 5 fathoms of chain, the same running over to starboard, and perhaps under the ship's forefoot, and she was flying a hybrid signal, which was susceptible of being taken either as a signal for a pilot, or as a signal of distress. The tug Continental, drawing eight and a half feet, and lying at Galveston wharf, took it for the latter, and steamed down to offer assistance. On coming near the Krona she thumped and bumped so, according to the master's evidence, that she could do nothing but communicate with the Krona by hallooing, and then she steamed back to the wharf for a yawl.boat. At the wharf she took libelant Heffron and three men, and, with a 20·foot yawl, went back to the Krona. Heffron and three men got aboard by using the yawl, and then, by consent of the master and aid of the Continental, run out a kedge-anchor about 80 fathoms astern of the Krona, to hold her from going further ashore, or over onto her port anchor. The chain to this anchor led to the starboard quarter of the Krona. Following this, Heffron got out a hawser from the port quarter of the Krona to the Continental, and the Continental tried to pull the bark astern, while the crew of the Krona, by means of a luff tackle and the ship's capstan, have in on the kedge-anchor. There is a dispute. under the evidence, as to whether this resulted in pulling the ship astern through the quicksand. Heffron says it did about 25 feet, and that, by such moving astern, he was able to get up the port anchor, which was endangering the ship. Anyhow, the port anchor was taken in; and, whether the chain attached to this anchor run under the forefoot or not, it was well to have it in, as the ship seemed to have the dangerous faculty of dragging her anchors, and drifting head· on, though carrying no sail. This service of the Continental and Heffron ended the day's work in the way of salvage, and the Continental returned to her wharf. The evidence shows that for the latitude the weather was extremely cold; and the services rendered were accompanied with this hardship. One man, James Willett, shows that his feet were frost-bitten. The Krona remained over night of the 16th substantially as left by the Continental, though the master of the Krona says the wind fell off, and that the kedge-anchor put out astern was of no use to hold the ship in position, and the hawser had to be slackened, as the ship was rolling a little. On the morning of the 17th, the wind had moderated, shifting to the north, and the water was smoother. About half past 7, Heffron went aboard the Krona from the Continental, which passed along, towing the lighter Reliable outside. Soon after, the steam-lighter Buckthorne, bringing a pilot, came along-side, and made fast on the starboard side. The master of the Krona, declin-
-
820
FEDERAL REPORTER.
ing all offers of assistance until he could have a contract, took a pilotboat, and, from that, the tug Estelle, about 8: 30 4. M., to go to town, leaving the mate in charge, with instructions not to allow anyone to touch ship or cargo until he came back. The morning was passed aboard the Krona in talking and waiting. About noon the Continental arrived, and made fast to the Buckthorne. The flood-tide commenced running about the same hour. As the tide rose the chances of getting the ship off improved, and the officers and men of the Buckthorne and Continental importuned the mate to give them leave to pull the ship off. The mate refused, because of the captain's orders, and then Pilot Dronet assumed command, and, under his directions, in about one IJOur and a. half, the Buckthorne and Continental succeeded in getting the Krona off, and into deep water. In the mean time the master of the Krona had made a bargain with the owners or agents of the Buckthorne to take the Krona off, if it could be done without lightering, for $250; and, if lightering should be required, an additional charge of $2 per ton for ligbtered cargo. The Krona was apparently uninjured; but in fact her biller was broken off close to the rudder head, the false keel was partly torn away, and the copper was also partly torn off. 'fhe ship and cargo of oil-cake were worth $14,000. The Continental suffered some injury from the thumping received on the 16th. Her steam-pipe was sprung, and the joint started so that steam leaked, and the condenser pipe was broken loose, causing a water leak. The owner, Heffron, swears to an estimate of this damage at $450, and to the value of the tug at $15,000. Fry & Heffron, owners of the Continental, libeled the Krona on behalf of themselves and the crew, demanding compensation for salvage services. In their libel they exaggerate the services of the Continental and crew, and also the d'1nger and peril of the Krona, and 8'1Y nothing of the towage contract, nor how the Krona came to be "in Bolivar roads, then waiting to be towed outside," and they are equally silent as to the assistance rendered by the Buckthorne. Irvine & Beissner, owners of the lighter Buckthorne and the Estelle, also libel the Krona for salvage. They claim $2,500 for the Buckthorne and $25 for the Estelle; the latter for carrying the master of the Krona to town. In their libel they exaggerate the danger and peril of the Krona; magnify the services of the Buckthorne; barely admit that the Continental was there, but insist that she rendered no services; and are silent as to the now admitted contract to take the Krona off for $250, and $2 per ton for lighterage. John Fry, master, Pat Riley, engineer, John Riley, fireman, George Nelson and Tom Green, seamen, of the crew of the Continental, and James Willett, Joe Robinson, and Thomas Brown, seamen and volunteers, intervene in the case, and, alleging their services on board the Continental, reiterate and indorse the averments in the libel of Fry & Heffron, owners, and ask compensation.
· THE KRONA.
821
I have read the voluminous evidence in the record, and have carefully considered it. The position of the Krona on the morning of January 16, 1885, was undoubtedly one of danger and peril. She was helpless, so far as her own resources were concerned, and, in the most disagreeable and boisterous month in the year in Galveston bay, was entirely dependent upon outside help or moderate weather for safety. It is true that, wind and weather permitting, she might have lightered cargo, and tpen in time have been worked off with her own crew and appliances. But at that time and place no prudent master would have been justified in taking the risk to both ship and cargo. The services rendered by the Continental and her crew, with Heffron and the volunteers, on the 16th, in running a stern anchor, and in getting in the port anchor, were valuable services, and, it would seem, secured the Krona from working further ashore, and diminished the risk of her riding her own anchor. In the rendition of these services, the crew of the Krona undoubtedly aided; but I think it clear that they could not, unaided, have got out the stern anchor. In the light of the evidence the services were successful and useful. The services rendered on the next day (the 17th) by the Buckthorne and the Continental were undoubtedly beneficial and success· ful in relieving the Krona and her cargo from their perilous posi-· tion, and I conclude they are entitled to rank as salvage services of a low grade. The services rendered were in the usual line of service of both tugs, and were not accompanied with risk or peril; in fact, the owners of the Buckthorne had contracted, as in their usual line, to render the service. But it must be remembered that the Krona was a sailing vessel only, two feet in the sand, head on, wind astern, master ashore, mate incompetent, and that these services were largely the continuance of the services of the previous day. Pilot Dronet, however, who has been mentioned herein, seems to me to be as much entitled to credit as either of the tugs. The allowance of salvage to the Continental and her owners is strenuously resisted on the ground that it was through the violation of the towing contract, and the bad faith of the master and owners of the Continental, that the Krona was placed in peril. Under the evidence, it seems clear that the master of the Continental had contracted to tow the Krona outside; that he entered upon the towage, towed the vessel down to Bolivar roads, and there left her; that he could have carried out his contract, but chose to abandon the Krona, to take out another ship to which he thought he ought to give preference under an alleged custom. It is not denied that Heffron, one of the owners of the Continental, told the master of the Krona that his should be the first vessel taken out, and Pilot Luth says that the master told him so in the presence of Heffron & Fry, and there is no pretense that either told the master that there was another ship to go out first. The alleged custom to take across the bar the first vessel arriving in the roads is not proved; the evidence is against it. v.28.F.no.5-21
322
FEDERAL REPORTEU.
Nor is it shown that the master of the Krona consented to be left in the roads; nor that the pilot, Luth, ordered that the Krona should be left in the roads. The fact is, under the evidence, that the Continental undertook more business that day than she could do, and it therefore suited her purposes to break her contract with the Krona, and leave her in the roads until a more convenient season. This breach of contract contributed, with the incapacity or overconfidence and negligence of the officers and crew of the Krona, to send her ashore, beyond her own power to help herself off. The Continental having, by her breach of contract, contributed to place the Krona in danger and peril, cannot and ought not to be compensated for services, albeit otherwise salvage services, in aiding to rescue her. The contract made with the owners of the Buckthorne for the services rendered by her in relieving the Krona was fair and reasonable, and without fraud or mistake, and was therefore a binding contract. See The Delambre, 9 Fed. Rep. 775. The evidence shows that James Willett, one of the volunteers, had his feet frost-bitten, and that circumstaUlJe give him an extra allowance as salvage. See The Cyclone. 16 Fed. Rep. 486. The district judge allowed him $100. This amount, under the circumstances of the case, is rather liberal; but, as it is on a basis of $50 to each volunteer, (which basis, and allowances thereunder, this court, on this appeal, cannot reduce,) I am indisposed to reduce it. The claimant only has appealed from the judgment of the district court. and, as the allowances for salvage were not made in a bulk sum, to be distributed, but were made on the individual libels, in a specific sum to each libelant, I have doubt as to whether there is any appeal from the judgments in favor of Capt. Fry, master of the Continental, $25; Isaac Heffron, $50; Joseph Robinson, $50; Thomas Brown, $50; Pat Riley, $25 ; John Riley, $25; George Nelson, $25 ; and Thomas Green, $25. The gross amount of these judgments is $275', but no one of them, by itself, is for an appealable amount. Ordinarily, in adjudging salvage compensation, the claimants are required to pay costs. I make an exception in this case, because one libel is dismissed entirely, and in another the amount allowed by the district court is reduced, but principally because in both the libels of Fry & Heffron and of Irvine & Beissner facts material to their cases, and fully within their knowledge. and most essential for the court to know, were suppressed. Suppressio veri, suggestio falsi.
THE JASON.
823
THE JASON. OLIVER & RoBERTS WIRE CO., Limited, and another v. THE JASON. (.Diatlrict Oourt,.D. Maryland.
April 14. 1886.)
1.
SHIPS AND SHIPPING-DISABLED STEAMER RETURNING TO PORT FOR REPAIRS -RESPONSIBILITY FOR DETENTION.
The Jason, a Dutch steam-ship, sailed from Amsterdam for Baltimore on seventeenth November, 1883. Being disabled by accident to her machinery, . she put back, and was detained at Amsterdam until eighteenth March, 1884. During the repairs the cargo was not discharged. One shipper had on board 200 bales of beans, a perishable article, which by the detention were damaged. Upon return of the steam-ship to Amsterdam the shipper of the beans notified the agents of the steamer that the)' ought to be forwarded at once. The reply was misleading, both as to the tIme the ship would be detained for repairs, and as to the difficulty of discharging the beans. Held that, the beans being known to be perishable, the ship was liable for loss by the deterioration and decay resulting from their having been kept so long in the hold of the ship.
2.
SAME-CARE OF CARGO.
Another shipper had on board 800 tons of steel-wire rods. Upon arrival they were found to be rusted to an extent which caused the owner an increased expense of three dollars per ton in manufacturing them into wire. No notice was given to the owner of the iron with regard to the detention. Held, upon the proof, that it was impossible to have transhipped and for· warded the wire rods to Baltimore. except at an expense for freight which, under the circumstances, would have been unreasonable; and that the cost of discharging them from the ship, and storing on shore during the repairs, would have been so great that a prudent owner would have risked the rusting on board, rather than have incurred the expense of discharging, storing, and reshipping. Held, that the delay was not the fault of the ship-owners. and that the owner of the wire rods had not been prejudiced by the want of notice, nor by the manner in which the rods had been cared for during the detention.
In Libel for damage to cargo. Cowen « Gross, for libelant. T. W. Hall, for petitioner. T. R. Clendenin, for respondent. MORRIS, J. These suits are instituted by the owners of two shipments of goods shipped on the steam-ship Jason, to be transported from Amsterdam to Baltimore. '11he Jason, sailiug under the Dutch flag, and owned in the port of Amsterdam, had been running at regular in tervals to the port of Baltimore under the control of the Netherlands American Steam Navigation Company, a Dutch corporation. She sailed on this voyage on the seventeenth November, 1883. Three days afterwards, in the English channel, she broke the slidevalve of her low-pressure engine, and went into Dartmouth, where she had it repaired, and sailed on the 22d. She continued on her voyage until the 27th, when, being about 1,000 miles from Amsterdam, and having accomplished only about one·third of her voyager and while laboring in a heavy sea, the crank-shaft of the engine broke, in consequence of which, before the engine could be stopped, the high-pressure cylinder cover was broken in pieces, tbs
/
324
engine foundation was shattered, and the high-pressure piston was broken and bent. The steamer was then disabled from proceeding on her voyage, and the engine having been constructed at Amsterdam; about two years before, and that being her home port, the master determined to return there for repairs. Using her low-pressure engine, and assisted by favoring winds, she arrived back in Amsterdam about December 4th, without further mishap. Upon examination it was found that the high-pressure engine would have to be almost entirely reconstructed. The work was pushed with energy, but it required in all three months before the steamer was again ready for sea; so that she was detained at Amsterdam until the eighteenth March, when she sailed again for Baltimore, and arrived on the twelfth April, 1884. The libelant, the Oliver & Roberts Wire Company, had on board 10,347 bundles of steel-wire rods, weighing about 321j- tons, and the petitioner, Stellman, had on board 200 bales of beans; and for these two shipments bills of lading had been issued, at Amsterdam, in usual form. The iron r.ods were to pay six shillings per ton freight, and the beans fifteen shillings per ton. The iron was worth, in Baltimore, about $30 per ton, and the beans $700 per ton. Upon arrival in Baltimore the iron rods were found to be damaged by rust, beyond the rust of an ordinary voyage, to an extent which caused the wire company an increased expense in manufacturing them into wire, which they estimate at three dollars per ton. The beans were landed in other bags than those in which they had been shipped, and had cell,sed to be merchantable. They emitted an offensive s1]1ell, were all more or less discolored and mouldy, and in considerable part· rotted. The owner of the beans paid the freight, and had them properly cared for; but about one-fourth proved worthless for any purpose, and the remainder were disposed of with difficulty. The owners of these two shipments are now proceeding to recover from the ship the losses they have sustained by reason of the deterioration of their goods, and the delay in delivering them. There is nothing in the testimony that tends in any way to show that the Jason was unseaworthy when she first sailed, nor that the master was not justified in putting back to Amsterdam as a proper port in which to repair the accident to the steamer's engine. It was not the nearest port, but it was the place in wl.ich the engine had been recently constructed, and where, presumably, it could be speedily and properly repaired, nnder the direct supervision of the own· ers. Nothing that happened to the date of the steamer's return to the port of Amsterdam appears to have been the result of anything but perils of the sea, excepted in the bills of lading, and the right of the shippers to recover in this action must be based upon some neglect of duty on the part of the owners of the steamer after her return to Amsterdam for repairs. During the repairs the cargo was noi discharged, but all remained on board, except a portion which was removed from the after-hold to get to the tunnel shaft.
325
The libelants put their claim upon two grounds: (1) That the owners were bound to tranship and forward the goods to their destination in another vessel, as soon as the Jason returned, and it was found that she would be three months detained for repairs; (2) that, even if the owners were at liberty to retain the goods for such a period in order to earn freight by completing the voyage, it was their duty to take such reasonable precautions as would prevent the goods being injured by the delay. On behalf of the ship-owners it is contended that their rights and duties are to be determined by the law of Holland, and, for the purpose of proving the law of that country, it has been agreed that certain sections of a printed publication called the "Commercial Code of the Netherlands" shall be taken as proof of the law, which is as follows: "Sec. 478. When, during the voyage, the master is compelled to have the ship repaired. the freighter or shipper must await the completion of the repairs; or, if he prefers it, unload the cargo, and take charge thereof, against payment of the full freight and the general average due, and subject to the stipulations contained in the five hundred and eleventh article. No freight is due by him during the repairs, if the ship is chartered by the month, nor any augmentation of freight, if she bas been by the voyage. If the ship cannot be repaired. the master is bound to hire another vessel, or other vessels, for his account, to can vey the cargo to the place of destination, without being entitled to claim any augmentation of freight. If he has not been able to procure any other vessel at the place, 01' neighboring places, the freight is only due to Ilim in proportion to the part of the voyage already performed. In this latter case, the care of transporting the cargo further devolves on the shippers, respectively, witllont prejudice to the obligation of the master, not only to ar-quaint them with the state of things, but also to take in The mean time the requisite measures for the preservation of the cargo. All, un L:ss otherwise agreed upon by the parties."
It is claimed on ·behalf of the ship that under this provision of the Netherlands Commercial Code her owners had a right to retain the cargo until the ship was repaired, in order to earn the freight. The libelants contend that, as the port of Baltimore was the place of the performance of the contract of carriage, the American law is to be" applied, and that by it the duty of the ship-owner was to send the goods forward if he could not repair his own vessel in a reasonable time, provided another vessel could be had in Amsterdam, or any contiguous port; in which event he would be entitled to charge the goods with any increased freight. The Maggie Hammond, 9 Wall. 458. With respect to the shipment of beans, I think facts are proven which affect the liability of the ship quite independently of either the law of the United States or of the Netherlands with regard to the duty of transhipment. The beans were perishable, and were also an article of merchandise which depended for value very much upon their arriving at their destination within the season of the year when there is demand for them. Being perishable, by every maritime code it
326
was the duty of the ship-owner or master to take proper and reasonable precautions for their preservation; and, being an article dependent for value upon seasons of the year, it was their especial duty not to mislead the shipper with regard to their probable arrival at their destination. I think that facts about which there is no controversy in their duty, show that in both these respects the ship-owners to the detriment of the owner of the beans. The master of the Jason states in his testimony that when the steam-ship arrived back at Amsterdam, and a fnll survey was made, it was then ascertained and known to the owners how long the repairs would take. About this time the ship-owners wrote a letter, dated December 10, 1883, to the shipper of the beans, at Buda-Pesth, notifying him that the Jason had been disabled at sea, and had returned to port for repairs, and informing him that the repairs would delay the steamer at Amsterdam until Jam£ary, and that probably the voyage would be resumed about the middle of January. The answer of the shipper was dated December 12th, in which he complains of the hardship of having the beans remain in Amsterdam three or four weeks longer, calls attention to the fact that the beans might be out of season on arrival at their destination, and claims that they ought to be at once transhipped, and sent forward by another vessel. The reply of the ship-owners on December 18th states that they would be glad to discharge the beans, and forward them, but that they were so stowed, in the lowest part of the ship, that they could not be taken out without discharging almost all of the cargo. In making this statement with regard to the location of the !;Jeans the writer of the letter appears to have been mIstaken. The testimony of the stevedore, taken by the ship-owners in Amsterdam, and also the testimonyof the master, shows that the beans were stowed in the forward part of the after between-decks, where it could not have been difficult to get at them: It appears, therefore, that there was misleading information given, both with regard to the length of time the vessel would be detained at Amsterdam, and with regard to the difficulty of relanding the beans. If the owner of the beans had received correct information, he could have insisted upon having his goods by tendering payment of whatever sum by law he was chargeable with, and could either have sold them in Holland, or have had them forwarded to Baltimore, as he thought best. It is not reasonable to suppose that he would have allowed the beans to have remained for three months stowed in the ship, subject to the great risk of decay, and with the certainty that the season fodhe sale of them would be nearly over when they finally reached their destination. Then, looking to the duty resting upon the ship-owners to take proper care for the preservation of the cargo of which they retained possession, it was not proper care of a perishable article to keep it for such a length of time confined in an iron ship. It could hardly escape the very result which did happen,
327
namely, that the want of ventilation and the dampness of the hold during so long a time set up a fermentation which was very injurious. It was a misleading notification to inform the shipper that the vessel would probably resume her voyage about the middle of January, when in fact the owners had reason to know that she could not get away for a much longer period. This erroneous notification naturally prevented the owner from attempting to preserve the beans from the decay which was going on from month to month, and also from attempting to forward the beans during the selling season. I hold, therefore, that the ship-owners are liable for the injury to the beans, under the general maritime law governing the duty of masters and ship-owners in respect to the care and protection of perishable cargo while in their possession, and that nothing to the contrary appears in those rules of the Commercial Code of Holland which have been proved. It is suggested that the libelant must fail because there is no evidence to show that the beans were sound when shipped, they being then packed in bags, anci not examined, and being described in the bill of lading simply as in apparent good order. But the bill of la'd· ing itself makes a prima facie case, and there has been no testimony offered on behalf of the ship-owners sufficient to shift the burden of proof. Indeed, all the evidence offered on their behalf goes to establish the existence of those very conditions which would cause the injury to the beans which they exhibited when they arrived. No explanation is offered of the circumstance that they had been rebagged in American bags, and the inference is very strong that the old bags had rotted off, and the beans had been shoveled up and rebagged after arrival at Baltimore. The dirt and other substances found mixed with them confirm the witnesses who testified to their belief that this had happened. The beans had been sold. to arrive. for $1.564 55 The damaged beans sold for $981 67 Less the expenses of and handling and rebagging, 63 96 917 71 Amount of loss, Interest.for two years to be added. $646 84
With regard to the iron rods, the case is in essential respects different. The iron was not perishable, and was a shipment of great bulk and weight, which was to be carried at the very low freight of six shillings per ton, being only about $500 for the whole 10,347 bundles, weighing over 321 tons. It does not appear whether or not notice of any kind was attempted to be given by the agents of the vessel to the owners of the iron. The bill of lading states the iron to have been received from the agents of the vessel, and to be deliverable to order. The Oliver & Roberts Wire Company paid for it in Pittsburgh by paying a draft attached to the bill of lading. The manager of that corporation states that the only informat,ion he ever
328
received with regard to the delay was from seeing an item in the neWBpapers reporting that the Jason had been disabled at sea, and had put back to Amsterdam. It would seem that ordinary rules of commercial dealing would require some notice to be given when goods, under a contract of immediate shipment, are detained in the port of departure such a length of time; but, conceding this to be so, the neglect to give such a notice cannot entail liability for damage other than is shown to have actually resulted from the neglect. 'fhe evidence adduced on behalf of the ship-owners shows that the Jason was the only vessel employed by them between Amsterdam anti Baltimore, and that, during the 104 days she was being repaired, there was no steamer sailed from Amsterdam to Baltimore, and that they could obtain no other stearner upon reasonable terms. It is testified that they made efforts to procure such a steamer, but could obtain none, either at Amsterdam or elsewhere, except by guarantying a much higher rate of freight upon a full cargo to Baltimore, and also on the return voyage back to the continent. There is no testimony to controvert this, and the court must accept it as the fact. If, then, there was no opportunity of transhipping the iron from Amsterdam, what could the owner have done if he had been notified of the actual state of affairs? I have held with respect to the beans, which were perishable, that if the owner had not been misled as to the possibility of discharging his perishable goods, and also as to the probable duration of the detention, it must be presumed that, as a prudent owner, he would have reclaimed them, and sent them by some conveyance to Baltimore from Rotterdam, Antwerp, or elsewhere, or that he would have them sold in some other market, or, at any rate, he would have stored them in some suitable place, because, to keep them stowed three months in an iron ship was to risk their destruction, and to lose the season; but this is by no means true with respect to a heavy imperishable a.rticle, such as steelwire rods, intended to be used only for manufacture. There is no that the owners evidence to prove, and no inference fairly to be of the iron would have acted differently if they had known all the facts as they existed. Even if they could have obtained the iron from the Jason without payment of any freight, they would have been at the expense of discharging it, and at the expense of transporting it to some other port, putting it aboard another vessel, and paying freight on it to the United States. With regard to the rusting of the iron, if the OWnel" had thought that to keep it under hatches, on board the ship, was not the best place for it, he would have had to consider whether the probability of some increase of expense in removing the rust was not to be preferred to the expense of unloading and reloading, and the expense of storing it in some drier place, if, indeed, protected storage for such a weight of iron could have been f<lund convenient to the ship. There is no proof that any of these things could