observing the treatment of the cattle. Notwithstanding which, no attempt was made to furnish more air to the cattle until after the steamer had left the pier and was proceeding down the bay. It has been attempted to be shown by the mate that wind-sails would have been of no avail to throw air into the between-decks while the steamer lay at the pier, but it is quite manifest, from his testimony, that this was not the reason for his omission sooner to get up the wind-sails. He gave no such reason to the agent of the society when told that wind-sails were needed at once, and the evidence in regard to the breeze then blowing, and the ́ position of the ship, disproves the assertion that wind-sails. would have been of no use while the vessel was at the pier.

It has been contended that the detention of the steamer at the pier during Sunday was caused by the failure of the cattle to arrive at the hour designated, and so compelled the steamer to lose the morning tide and to lie at the pier during Sunday; it having been sworn, without contradiction, that it was not possible for the steamer to get away from the pier except upon a slack tide. But the evidence fails to show that the failure of the steamer to get out on the morning tide was caused by a failure of the cattle to arrive at the appointed time; and, if such had been the fact, it is not seen how it could excuse any subsequent omission to use reasonable care in regard to the animals after they were on board.

Furthermore, if it was impossible for the steamer to leave the pier except on slack water, it was known to those in charge of the steamer when the cattle came that the steamer was to lie at the pier until after 3 o'clock in the afternoon; and if it were true, as the mate says, that it was impossible to use windsails with success while the steamer lay at the pier, it became his duty to inform the owner of the cattle of the fact that the steamer was to lie at the pier during the day, and to keep the cattle under the shed upon the pier until the vessel was about to move, instead of putting them in the between-decks of an iron vessel intending to lie still in a place where windsails would be of no avail, in a broiling sun, during the whole of a July day.

The next question to be considered is whether the condition of the between-decks during Sunday was the cause of the sickness and mortality among the cattle in the between-decks. The mortality commenced on Sunday night and continued until Wednesday, and it has been proved on the part of the ship that the effects of overheating in cattle often appear some days after the heating. Therefore, inasmuch as there is no evidence tending to show the presence of disease among the cattle in question, and no claim on the part of the steamer that there was any other cause of the sickness and mortality except the heated condition of the cattle on Sunday morning, the case in its present aspect must turn upon the question of fact, whether the cattle that were put in the between-decks were in an overheated and exhausted condition when shipped. If such was their condition, the fair inference would be that the subsequent sickness and mortality arose from that condition. If such was not their condition, the subsequent sickness and mortality must be attributed to the heat and suffocation of the between-decks during Sunday, there being no evidence of any other sufficient cause. Upon the question. of fact thus presented I am of the opinion that there was no heat or exhaustion of the cattle, when shipped, to cause sickness or account for the deaths in the between-decks. The cattle had been in the yard for a week or so while waiting for the steamer, and were well rested. They were driven. only a mile and a half on the day of shipment, and that early in the morning. They came to the steamer in two divisions. As to the first division, all agree that the cattle composing it were in proper condition for shipment. As to the second division there is direct evidence that the cattle comprising it had become overheated and exhausted, and equally positive evidence that they were not in such condition. But the weight of evidence is with libellant. In the first place, the bill of lading, which was signed after all the cattle were on board, makes no mention of anything wrong in the appearance of the cattle. If the cattle had been in the overheated and exhausted condition described by the witnesses for the steamer, it would seem probable that some mention of the fact would have been

made in the bill of lading. But the bill of lading is clean, and there is no evidence of any complaint whatever from the ship at the time, as to the condition of the cattle when going on board, In the next place, it is improbable that the owner of the cattle, who was shipping them to be sold abroad on his own account, and who was personally present attending to their shipment, would have brought them to the pier or permitted them to go on board the vessel in an overheated and exhausted condition. Inquiry would have informed him that the steamer was not to leave on the morning tide, and, if his cattle had become overheated, is there any doubt that he would have endeavored to delay their going on board until the last moment? Furthermore, the short distance which the cattle had come, the time taken in the driving, the early hour of the day, do not acccount for such a condition of the cattle as is described by the claimant's witnesses. That there was some heat is not doubted, and that from two to five of the cattle fell down and had water poured on them is proved, out of which circumstance the witnesses have made as much as possible; but the weight of the direct evidence in regard to the condition of the cattle,-one of the witnesses who proves the absence of exhaustion or undue heat being an agent for the Society for the Prevention of Cruelty to Animals, without interest in the controversy, and present for the purpose of observing the condition of the cattle,-together with the undisputed facts, forbid the conclusion that the condition of the cattle when put into the between-decks had anything to do with the subsequent sickness and mortality.

It should be further remarked that there is evidence from the libellant himself that only cattle composing the first division, and which the claimant's witnesses say were not overheated, went into the between-decks. This testimony, if true, disposes of the question of overheat or exhaustion, and leaves the condition of the between-decks on Sunday the only visible cause of the subsequent sickness, because the sickness was confined to cattle in the between-decks. Here, again, however, an important point, as to which many witnesses

could speak, is left in doubt by the testimony of a witness from the steamer, who contradicts the libellant, and says that some 30 of the cattle in the second division went into the between-decks. But, aside from this statement of the libellant, there is sufficient evidence to compel the conclusion that the cattle in the between-decks, when shipped, were not overheated or exhausted, and that the subsequent sickness and mortality during the first three days of the voyage can be attributed to no other cause than the detention of the cattle during Sunday in the between-decks, rendered unnecessarily hot and unhealthy by the fact that the steamer lay along-side the pier and without wind-sails up.

From this conclusion the liability of the steamer must follow, notwithstanding the provision in the contract that the vessel was not to be responsible for any mortality whatever; for it is settled that a carrier cannot by any form of agreement relieve himself from the consequences of his own negligence.

A decree must therefore be entered in favor of the libellant, with an order of reference to ascertain the amount of the loss. NOTE. See Ormsby v. U. P. R. Co. 4 FED. REP. 706.

WICKWIRE and others v. THE FERRY-BOAT MONTANA and THE TUG R. S. CONOVER.

1. COLLISION IN NORTH RIVER AT NEW YORK-TUG AND TOW-NEGLIGENCE.-A tug was taking a bark from her berth along-side a ferryslip in the Hudson river, at New York, and just as a ferry-boat that had come up was backing to avoid a sloop then in her way, the tug commenced to haul on a hawser on the starboard quarter of the bark, thereby moving her astern, the ferry-boat stopped backing, and the two came in collision. The owners of the bark libelled both the ferryboat and the tug for the damages. Held, that the ferry-boat was not in fault by backing when she did, nor for stopping, as that diminished the damage that resulted from the collision; but that the tug was in fault for moving the bark astern at that time when another course was open for her to take.

In Admiralty.

Hill, Wing & Shoudy, for the libellants.
Beebe, Wilcox & Hobbs, for the ferry-boat.
E. D. McCarthy, for the tug.

BENEDICT, D. J. I am of the opinion that the damage to the bark Kings County, sued for in this action, must, upon the evidence, be found to have been caused by the negligence of those navigating the tug R. S. Conover, which, at the time of the collision, was engaged in towing the bark. This negligence consisted in straightening up on the hawser attached to the bark's starboard bow when the situation of the tug was such that the power so applied to the bark, in her then position, and at that state of the tide, caused the bark to move astern and into the side of the ferry-boat then under her stern. The character of the blow shows that the ferry-boat was substantially still in the water, and that the bark was, by the action of the tug, backed against the ferry-boat. The ferry-boat was not in fault for stopping and reversing as she did. Such action was necessary to avoid a sloop, and she was entitled to suppose that the bark would remain where she was, or at least would not back. Nor was the ferry-boat in fault for not continuing to back. When the ferry-boat stopped backing, the bark was upon her; if she had continued backing she would not have escaped the bark, and, by stopping her engine, she diminished the damages. If the bark had been moved ahead by the tug, instead of astern, or if she had been turned without going astern, there would not have been any collision. It was entirely possible for the tug so to tow the bark as to prevent her from going astern and across the river, and her failure to do this caused the damage in question.

The libel as against the ferry-boat is, therefore, dismissed, and the libellant awarded a decree against the tug for the damage in question, with a reference to ascertain the amount.