The Steamship Santiago de Cuba.

of any effort on the part of the Santiago to avoid her. The truth undoubtedly is, that the Brunette's lights were not discovered at all until close at hand. This is not only shown by the evidence already referred to in regard to the green light, but by the conceded fact that the red light of the Brunette was not seen until she was near by. This port light was burning brightly, and capable of being seen at a long distance. The course of the Brunette was such as to display it to the Santiago, and yet it was not seen until the last moment. An attempt has been made to account for this circumstance by the suggestion that the light was hid by the jib, until opened by the sharp sheer of the propeller at the last moment. No witness states that the jib hid the light, which was upon the outside of the fore-rigging, and I am not able to determine from any evidence in the case that, with the wind northwest, and course south half west, the jib would hide the port light from the observation of a vessel approaching three points on the port bow. In this connection, it is worthy of remark that the pleadings of the Santiago aver that the red light was never seen, and so the officer of the deck testified when first upon the stand, but when recalled by the Court, he said very positively that the red light was seen, after he saw the green light, and that it was when he saw the green light that he gave the order to hard a-starboard. The wheelsman, who does not agree with the officer as to the number of orders given, says that seeing the red light was the occasion of the order hard a-starboard.

These observations respecting the testimony of the witnesses produced by the Santiago indicate the view which I take of this case. I consider it beyond reasonable doubt that the cause of the collision was the failure of those in charge of the Santiago to discover in time the course of the Brunette.

The position and course of the Santiago made it in

The Steamship Santiago de Cuba.

cumbent on her to keep the most careful watch for vessels, across whose courses she was known to be running. The Brunette might have been seen at a long distance, and if she had been, and due attention had been paid to her, the impression stated in the pleadings, that she was running south-southeast, would have been at once corrected. For no matter what lights she showed, being seen about north-three points on the starboard bow, her bearing, as she came on, would in a very short distance, indicate that she was not running to east of south, but to west of south, as she was in fact. In that locality a steamer approaching from the starboard, would naturally be supposed to be upon a course south by west, and I cannot suppose that any officer seeing a steamer two miles off his starboard bow, showing a green light, and which he supposed was running southsoutheast, would see her draw in ahead, and close to him, and yet keep up his speed.

The evidence shows why the Santiago neither slackened speed, nor changed her course. The Brunette was not noticed until the vessels were close together, and there was no time to stop, to hail or to do anything with proper consideration. I do not therefore take time to discuss other features of this case, which have presented themselves in my study of the evidence, for I consider its controlling feature to be, the failure of those in charge of the Santiago, to discover the course of the Brunette in time to avoid her; and I cannot doubt that if as vigilant a watch for approaching vessels, had been kept by the officer in charge of the Santiago, as was kept by the master of the Brunette, and as the position of the Santiago demanded, the course of the Brunette would have been discovered, and she would have been easily avoided. For this neglect she must be held to be solely responsible for the damages which resulted.

In the action of Edward C. Murphy, libellant, there

The Steamboat City of Norwich,

fore let the libel against the owners of the Brunette be dismissed, and a decree entered against the Santiago de Cuba.

In the actions of Henry Lyles, and of Jacob Lorillard, let the decrees be for the libellant, and, in the action of the North American Steamship Company, let the libel be dismissed.

JUNE, 1870.

THE STEAMBOAT CITY OF NORWICH.

COLLISION.-CARRIER.-LIMITATION OF LIABILITY BY NOTICE

NEGLIGENCE.

Where a receipt given by a common carrier for property entrusted to him, stated that no package, if lost, damaged or stolen, should be deemed of greater value than $100, unless specifically receipted for, and it appeared that the property in question was lost by negligence of the carrier.

Held, That the limitation of liability was ineffective, against a loss arising from negligence, as being against public policy.

THIS case came up on exceptions to the report of a commissioner, to whom it was referred to ascertain the libellant's damages. The action was by a shipper of cargo on board the steamer, which was sunk in a collision with a schooner, occasioned by negligence on the part of the steamer.

BENEDICT, J. The only one of the questions, sought to be raised by the exceptions in this cause, which is now open in the Court, is, whether the portion of the

The Steamship Idaho.

receipt, given by the carrier upon the shipment of the goods lost, and put in evidence by the libellants, which, states "no package, if lost, damaged or stolen, to be deemed of greater value than $100, unless specifically receipted for at a greater valuation, can be effective to limit the amount of the recovery in this action.

My opinion is that the words referred to, cannot be effective to limit the recovery of the libellants, in a case like this. It has been decided, that the loss of these goods arose from actual negligence on the part of the carriers, and the reasons, which lead to the determination that the receipt is not effective to exempt from liability caused by actual negligence, apply to the portion of the receipt in question, as well as to any other part. To permit carriers to fix a limitation to the amount of their liabilities for their own negligence, is, in effect, to permit them to exempt themselves from such liability. Every consideration of public policy, which applies in the one case, seems equally applicable in the other.

The exceptions must therefore be overruled, and the report confirmed.

JULY, 1870.

THE STEAMSHIP IDAHO.

STAYING PROCEEDINGS.-INTERVENTION OF THIRD PARTY.-VEXATIOUS PROCEEDINGS.-POWER OF THE COURT.

A quantity of cotton was shipped on board the steamship Idaho, bound for Liverpool, by M., who received a bill of lading therefor, in the ordinary form, dated May 4th, 1869. On the same day an action of replevin was commenced by

The Steamship Idaho.

P., against the master of the steamship, to recover the cotton as his property. In that action, the cotton was seized by the sheriff, and was by him nominally delivered to P., the plaintiff, but was not taken from the steamship, and, by agreement between P. and the owners of the steamship, it was carried forward to Liverpool, and there delivered to the agent of P., who had agreed to indemnify the steamship against any liability by reason of such carriage and delivery to him. M. having assigned his bill of lading to H. & Co., a libel was filed in this Court, on the 9th of June, 1869, by them, against the steamship, to recover the value of the cotton not delivered according to the bill of lading. On the 19th of June an action was commenced in the Court of Exchequer, in Liverpool, by F., the agent of H. & Co., against the owners of the steamship, to recover damages for the non-delivery of the cotton under the bill of lading. After the filing of the libel in this Court, H. & Co. were made parties defendants in the replevin suit on their own application. The answer of the claimants, in the suit in this Court, set up the title of P. to the cotton as a defense against the claim of H. & Co.

In this position of affairs P. applied to this Court, on petition, praying to be admitted to defend in this action, and that the libellants be required to litigate with him their title to the cotton, or, if they would not stipulate to do so, that their further proceedings in the suit, in the English Exchequer, be enjoined. The owners of the steamship also applied for a stay of proceedings in this cause, unless the libellants should elect to stay proceedings in the two other actions, and to proceed herein.

Held, That the interest of P. in this suit arose solely from his having agreed to indemnify the claimants against the result of the litigation; and that that circumstance was not sufficient to give him the right to intervene in the action.

That his application for a stay of proceedings in this action must be rejected for the reason that he was not a party to the suit, and did not pretend that there was any collusive use by the parties of the process of the Court to deprive him of any substantial right.

That it is competent for a Court of Admiralty to stay proceedings, in any case before it, to prevent injustice: that no reason was apparent why the trouble and expense of the three litigations, each involving the title to the same property, should be cast upon the owners of the ship; and that, on the application of the claimants, proceedings in this cause should, therefore, be stayed, unless the libellants should elect to stay proceedings in the other cases.

BENEDICT J. This case comes before the Court, upon a petition filed by one W. J. Porter, and also upon a motion by The Liverpool and Great Western Steam Co., who are the claimants in this action. The action is brought by the owners and holders of a bill of lading of certain bales of cotton, to recover of the steamship

BT. VOL. IV.-18