Seller v. Steamship Pacific.

about, not to sign for "looking-glasses," unless the words, "not responsible for contents" were in the receipt; as a matter of fact, it appears to have depended upon the whim or caprice of the person receiving goods at the time. But if it were otherwise, it makes no difference. The law, and not such a custom, ascertains and determines the rights and liabilities of shippers and common carriers. Such pretences of custom as this appears to be, if allowed to modify the law of the land, would place it in the power of common carriers to make and unmake the law as they choose.

I conclude, therefore, that these words, "not responsible for contents," amount to nothing, and in no way affect the rights of the shipper or the liability of the carrier. This being the case, and it appearing that the goods were “received in good order," the burden of proof lies on the carrier to show that the injury to the goods arose from the only exceptions to his liability-that is, the act of God or the public enemiesneither of which is pretended or attempted. This view of the case makes it unnecessary to determine, as a matter of fact, how the glasses were broken. If the truth is ever known, it is not unlikely that it will be found that either by accident or wantonly, some iron instrument, as a crow-bar, was thrust through the board produced in court; that it passed through some of the openings in the top-mounting of the glass next to that side, without harming them, and then struck the plate of the other glass near to the base or bottom, and broke it. The glasses were packed in the case in a reverse position, and that this happened during the twenty-four hours that the case was lying on the ship's wharf at San Francisco. The case has remained in the possession of the agents of the ship and the claimant, and if they thought it would tend to establish the fact, that the package was not in good order when received, they might have opened it, and had an examination made of its condition.

A point was made in the agreement for the claimant, that the libel did not charge that the steamship was employed as

Seller v. Steamship Pacific.

a common carrier, and that therefore the ship was only liable as a private carrier. Upon the examination of the authorities and precedents within my reach, I find the practice to be, that when the suit is in personam, against the master or owners of the vessel, it is necessary to charge them in the libel as common carriers, or they will only be held to the liability of private carriers. (Story on Bail. § 504.) But when the suit is in rem, as in this instance, the rule seems to be otherwise. Because, I suppose it would, to say the least, be inaccurate to charge an inanimate thing, as a ship, which is only the vehicle of carriage, as a common carrier.

The suit proceeds against the ship, as a ship; but, I think, to hold her to the responsibility of a common carrier, it must appear in the proof that she was employed by her owners, or those having charge of her, for that purpose at the time. No testimony appears to have been taken for this direct purpose, but incidentally it appears all through the evidence sufficiently to make the fact undoubted.

The only remaining question is the amount of the damages. Without determining at what port the value of the goods should be estimated, I have concluded to take the testimony of Leopold Greenbury as to the value of the glasses. He is the only person that speaks of their value, who saw them. He was the salesman of Swain, the house where the glasses were packed. Selling looking-glasses is his business. All the rest of the testimony to this point is mere guess-work of parties, without any special knowledge of the trade, or the particular articles in question. Besides, the burden of proof lies on the libellant to show the value of the goods. The carrier is not presumed to have any special knowledge or means of information on the subject. It is no hardship for the libellant to make his proof. He knows what he gave for the glasses. It would have been easy to have taken the deposition of some member of the house in San Francisco, where the glasses were purchased, or of his agent, Mr. Adler, who purchased them for him. The omission on the part of the libellant to do this, is well-calculated to make the impression VOL. I.

27

Edwards v. Steamship Panama.

that the testimony would not support his claim for damages to the amount of $450. Greenbury swears that the glasses were worth $150 apiece at wholesale, and $200 at retail, somewhat owing to the customer. Take the mean difference between the two sums-$175 apiece-making $350 for the two, and add interest at the rate of ten per cent. per annum for six months, $17, making, in all, the sum of $367, for which a decree will be entered for the libellant and for costs.

Williams & Nugent, for libellant.

Shattuck, for claimant.

CHARLES EDWARDS V. STEAMSHIP PANAMA.

United States District Court, Oregon.-In Admiralty.Cause, Civil and Maritime, for Pilotage.

SEPTEMBER TERM, A. D. 1861.

1. In a suit between third persons, the validity of a branch warrant to act as pilot cannot be inquired into, where the same appears upon its face to have been regularly issued.

2. The possession and exhibition of the warrant authorize the master of a ship to treat the holder as a regularly constituted pilot, and, between third persons, is conclusive evidence that the conditions which the law attached to the appointment have been complied with.

3. The territory of Washington has power to pass pilot laws, pilotage being a rightful subject of legislation."

66

4. The act of Congress, August 7th, 1789,'is not a grant of power to the States to pass pilot laws, but merely a legislative recognition that the power is concurrent in the States and the United States.

5. Does the act of Congress, March 2d, 1837, include a territory? Quere? 6. Whenever Congress exercises the power of passing pilot laws, so far the power becomes exclusive in Congress. All prior laws of the States, within the purview of such enactments, are abrogated, and cease to have effect. 7. The act of Congress, August 30th, 1852, provides for the employment of

Edwards v. Steamship Panama.

pilots on vessels, propelled in whole or in part by steam, engaged in carrying passengers in any of the bays, lakes, rivers, or other navigable waters of the United States.

8. This act, as to such vessels and to that extent, supersedes all State laws as to the employment of pilots.

9. In the construction of the law of Congress, its operation is not to be restrained because of the existence of State laws regulating the employment of pilots on such bays, lakes or rivers. There is no presumption that Congress did not intend to abrogate the State law. On the contrary, the power being primarily in Congress, and only exercised by the States by the sufferance of the former in case of conflict, the presumption is rather the other way.

DEADY, J. The libel in this cause was filed on the 27th of March, 1861, and, after the formal allegations, avers that the libellant, on the 17th of March, 1861, and thereafter, was a duly licensed pilot, for the Columbia River bar, according to the laws of Oregon, and attached to the pilot-boat California, on said bar. That on the said 17th day of March, the libellant boarded the said steamship Panama "just outside" said bar, and offered his services as pilot to conduct said steamer over said bar to the port of Astoria, in Oregon. That the said steamship at the time was bound in, and the said libellant was the only duly authorized pilot on board said steamship on the said day, and the first pilot who offered his services to her that day outside the bar.

That on the 22d of March, in the year aforesaid, the said steamship being bound outward, the said libellant hailed said steamship at the port of Astoria, and offered his services to conduct said steamship as pilot, across said bar to the sea. That libellant was the first pilot who offered his services to said steamship on said "occasion," and that there was no pilot on said steamship "at the time." That said steamship, when inward bound, on said 17th of March, drew fourteen feet of water, and that libellant is entitled to full pilotage therefor, the same being twelve dollars per foot, in all, the sum of $168. That when outward bound, on the said 22d of March, she drew thirteen feet of water, and that libellant is entitled to half pilotage therefor, the same being six dollars per foot, in all, the sum of $78. That said sums of money remain due and unpaid to libellant.

Edwards v. Steamship Panama,

Upon the filing of the libel, process was issued upon which the steamship was arrested, and on the same day she was discharged, on the stipulation of John H. Couch and C. H. Lewis. Afterwards, on May the first, of the year aforesaid, Benjamin Halladay and E. Flint filed a claim and answer as owners of said steamship, and admit the allegations of the libel, except as follows: They deny that the libellant "was duly authorized according to law, that is, according to the laws of the State of Oregon and the statutes of the United States, in such case made and provided, to pilot ocean-going steamships carrying passengers. They deny that the libellant was the first pilot who offered his services to said steamship on the 17th day of March, or on the 22d day of March aforesaid, and therefore that the libellant is not entitled to receive the said sums of money for pilotage. The answer then avers, "that at the time the libellant boarded the steamship outside the bar, Moses Rogers, a pilot duly authorized and licensed, in accordance with the statutes of the United States as first pilot on steamboats, to pilot steamboats carrying passengers on the waters of the Columbia bar, coast and Puget Sound, and to San Francisco, California, was on board the said steamship Panama, and had charge and control of her as pilot," and "that said Moses Rogers did pilot said ship on the above occasion, from the high sea over the Columbia bar to the port of Astoria." That at the date aforesaid, said "Rogers was a duly licensed bar pilot, according to the laws of the territory of Washington," regulating "pilotage on the Columbia River bar and Shoalwater Bay, passed February 28th, 1854." That on the 22d of March, 1861, said "Moses Rogers was the first duly authorized and licensed pilot according to law, to take charge of and pilot an ocean-going steamboat carrying passengers, who offered his services to the master of the Panama, and that said Rogers did on that day go on board of said steamship, take charge of, and pilot her across the bar to sea." That said vessel is an ocean-going steamship, propelled, in whole or in part, by steam; and that on the said 17th and 22d of March, the said steamship was