95· FElDERAr;REPoRTER.

such liens only continue in forcef'll1, the period of three yeal'l;pfrom the time cause of action accrued." 2 Ballinger's Ann. Codes & St. Wash! ,§ 5953 (1 ,Hill's Code, § 1678). See, also, The Willamette, 59 I<'ed. 797; Id" 18 C. C. A. 366; 70 Fed. 874. ' .'

If the facts pleaded by the widows and orphans who have appea,red as cross libelants in this case are true, the law of the land entitles them to damages, and the law of the sea is not inconsistent with the rights which they seek to, enforce. Exceptions overruled.

THE ,STYRIA.

".'

(District .Court, S. D.New York. :' ,"', .' -, "'f
l _,, ,,;

July 7, 1899.)

oF' DAMAGES.

SHIPPING....LIABIJ,ITy FOR DAMAGE 'liO

Where goods damaged in 'sh1pment,forwhich damage the ship is liable (tlie'fnvoice'value being made the basis of settlement by the bilI of lad'ing), are Sold on their art-ivaI, the freight paid thereon or due should be dedooted from the proceeds,and the remainder only credited to the carrier against the ,Invoice vallie,. detel'minethe amount of his liability., to ,.' . " . i
I ."

FM.414.'"

Libels against the steamer8tyl'ia.

For former opinion, see 93

Cowen,.Wing, Putnam & Burlingham, for libeiants. & Kirlin, '. ,', ',BY;iheeontract ofthe pm: of la'ding invoicev:aIue is, the basis of settlement on any loss: or damage; and aconstructionseems to me unreasonable and in fact absurd, that same pa)'Illept on a destructIOn of the goods. Here thespecml agreement, made pendmg theactiOn;i fllI!therlimitsrecovery. Thetle' wasnlJ 'COnversion' of these goods ; only a mistaken tMoryof the carrier's rights and' duties. It was'the carri duty to transport the' gogds lind· the 'consignee's r's to pay tbe ifreight, andthiit was done by each. . No frejght was due 'except upondeli\'ery at New York; clause 2 of the stipulation the freight as a lien,' inctlrred and charged upon the goods by the transportation jit was .Immaterial whether this lien for freight was, paid before or after the sale; if not paid before sale, it must been paid out of the: proceeds of salcjand if paid by the consignee before sale, it was paid as a lien or charge incurred upon in accordance with both clauses of the stipulation, and the hence to be deducted from the amount of proceeds of sale' to be c.reditedto the claimant against the whole damageS', i. e. the invoice value as tile bill of lading which was adopted in the stillula23 J?latchf. 335,343,25 Fed. 562.; Tlle Hadji, 18 tion.. The Fed. 459,afflqlled in 20 Fed. 87p; The Lydian Monarch, 23 Fed. 300. Presumptively the greater price received in this market lIpon the sale ofthe goods more than offsets the freight inbrin.ging tne goods here. penep,t of. this presum'ed The cari-ierunder the stipUlation gets excess in tpe allowance of the net proceeds made to him. Report confirmed.

'J;'HETAURUB.

699

THE TAURUS. (District Court, S. D. New York.
.... OF TUG

June 9, 1899.)

As a tug. was entering Boston Harbor with a tow, in a fog, which had lightened sufficiently, however, to 'enable the master to keep the channel, she suddenly came up\ln a rock-b1'ea1;.er anchored in the channel, which , had 'given no signal, though the tug had approached slowly, C(jntinually sounding her whistle. 'l'he rocIt-hreaker had been recently removed from the ea..t side o'f the channel, where it had been at work for, some time, to. near the west side, whieh fact was unknown to the master of the tug, who, as he could not see tAe shore, supposed it, to be in the old position,' and therefore changed his course, and attempted to pass to the, west of it. in doing which he grounded, and one of his tows received injury. Held, that such facts did not establish negligence in the master, Or want of ordinary nautical skill and prudence, but, at most, an error of judgment in an which did not render the tug liable for the injury.

INJVRY TO Tow-AcTION IN

In Admii'/llty. Libel against' the stearntug llaurus to ,recover for injury ,to. a tow. Dismissed.
On 'tIie 9th day of :\Iay, 1897, the barge Templar, laden with coal and drawing about 16 feet, was being towed Into Boston Harbor, from New York, by the tug Taurus;· in connection with two other vessels, the Escort and the' Ireland. Before -reaching the entrance to the harbor, the hawsers had been shortened, under directions from the tug, so that each was on a length of about 30 fathoms. : 'fhe Escort was next to th,e tug, the Tempiar followed, and the Ireland Was the last of the tow. Some .fog had prevailed during the morning, and when jthe entrance to the harbor was nearly reached, the tug gave the tow preparatory signals with a to anchoring in case the master concluded it would be necessary; bnt when the vicinity of Boston light was reaehed, the fog lightened, so that the master could see land occasionally, and he then conduded to go on. The tug went very slowly, continual soundings were made on her, fog signals were dnly sounded and a lookout was properly stationed. After paesing Boston light, the fog became more dense, but the master was able to make the buoys and keep in the channel. 'When the tug had reaclled a point opposite the narrows, or Bug light, she was in the usual channel. She then headed to the northwest to pass between LoYell's and George's Islands. The tide was about an hour and a half ebb, and set two or three points crosswi"e of the channel, to overcome which, it was necessary to head the tug a little to the westward of the channt'! course. Soon after this course had lJeen taken,a rock-breaker was suddenly discovered anchored in the channel, about :tOO feet ahead and slightly on the tng's port bow. This rock-breaker had been towed into the harbor by the master of the Taurus about two months before, allli during that time it had, to his knowledge, been continually working on a ledge in the eastern part of the channel, Iie'ar the southern end of Lovell's Island. vVhen the tug came near, there was some shouting on the rock-brealwr, but no belFhad been or was rung on her though the tug was sounding her fog whistle regularly. It appeared that since the master of the tug had last seen ihe rock-breaker, a few days before. her 'position liad been changed from the ('ast side of the chantiel to ,the westward of the center of the channel. Supposing her to be in the place where he had last seen her, and that he had been carried to tbe easterly side of the channel by the effect of the cross tide, the master starboarded· the helm of the tug and passed to the westward of the rockbreaker and a tug lying at right angles to her. No land was visible at the time, and the sounllings, which were continued, showed the regular channel depths of 5 or 6 fathoms until the tug had passed the rock-breaker, when suddenly 3% fathoms were reported. '1'he master then knew he was out of the ehannel, and ported his helm, but the tug at once took bottom on the westerly "idt, of the channel and the Escort struck about the same time. The Templar, following the collided with her and suffered some damage, for which this action was brought.