24. by the stevedores at New York which should cause damage if the olives had been in proper casks. The libellants paid drafts accompanying the bills of lading without knowledge that the containers were old and insufficient. If there is any liability here for damages it is upon the theory that by failing to note in the bills of lading any insufficiency in the containers, the steamship misled the libellants to their injury and is now estopped under the doctrine of Higgins vs. Anglo-Algerian Steamship Co., 248 Fed. 386, to claim that the containers were insufficient. In that case, however, there was in the bill of lading an express representation that the merchandise itself was in apparent good order and condition, when it was known to be injured by rain water. Here the parties believed doubtless that the olives would go through, but the ship's agents were not willing to take the risk of any liability which might arise from old casks. No case has gone so far as to hold that a bill of lading containing no words representing the condition of the containers would give rise to an estoppel. The Harter Act expressly provides that the vessel shall not be liable for any "insufficiency of package." The libels are dismissed with costs. THE TAURUS. NICHOLSON & KELLOGG, Libellants, VS. S. S. TAURUS. United States District Court, Southern District of New York, Dec. 15, 1922. CARGO DAMAGE BURDEN OF PROOF. Under Bs/L describing goods as "received in apparent good order and condition," the burden lay on claimant either to justify delivery in bad order, or to bring the cause of damage within some exception of the B/L. Damage to hides on Sept.-Oct. voyage from Buenos Aires to Boston and New York. The damage was by water, either salt or fresh, and affected small lots in 2 and 3 holds. Evidence examined, and held that claimant had neither brought the damage within the B/L exception of sweat nor sustained the burden of explanation that lies upon it. BIGHAM, ENGLAR & JONES (Mr. SINGLE, of Counsel), for Libellant. WARD, Circuit Judge: 1923 A. M. C. The libellants are holders of bills of lading for three shipments on the steamer Taurus on a voyage from Buenos Aires to Boston and New York, viz., 30 bales of tanned sheepskins opened at the ends but wrapped around the middle by burlaps held in place by iron hoops; 500 loose dry hides; and three heavy wooden cases and one bale of fur skins. The bills of lading were signed by the general agent of the steamer, which was chartered to Barber & Company of New York and had been making regular trips for them between Buenos Aires and New York for several years. The charter party, though produced when the deposition of Johannesen, the first officer, the only witness from the steamer, was taken April 4, 1918, was not offered in evidence. I therefore assume that Barber & Company had complete authority to represent the steamer. The bills of lading described the goods as shipped in apparent good order and condition and to be delivered in like good order and condition, and Johannesen testified that they were so received. The steamer has a tween-deck and four holds with a water-tight steel bulkhead aft of No. 2 hold and another forward of No. 3 hold, each running from the main deck to the top of the bottom tanks, completely separating the cargo spaces from the engine and boiler rooms. She left Buenos Aires September 22, 1914, arrived at Boston October 21 and at New York October 27. Johannesen testified that dry hides discharged at Boston from the after part of No. 3 hold, in the middle of the hold above the tank tops but near the wings, and also dry hides in the forward part of No. 2 hold halfway between the bottom tanks and the tween-decks near the wings, were damaged by water, no other dry hides around them being affected. The libellants, upon the discharge of their shipments on the pier, discovering damage, notified their insurers and one of them, Mr. Kellogg, went with Mr. Waters, the insurers' surveyor, to the pier. There is no evidence as to the part of the steamer in which these shipments were stored. Mr. Waters and Mr. Kellogg found a small number of the dry hides very wet; the burlaps covering the tanned sheepskins and the wooden cases containing the fur skins had dried out but showed stains and spots of a smoky, whitish character; the ends of the bales of tanned sheepskins were very wet to the 25. hand; one case of the fur skins was broken and its contents found to be soaking wet. Barber & Company's superintendent would not permit the cases and bales to be opened on the pier, so they were removed to a warehouse and subsequently examined. Though the libellants gave no direct notice to the steamer, Barber & Company must have been aware of facts likely to result in a claim for damage. Kellogg and Waters say that fresh water after drying would not leave these whitish stains but that salt water would. Mr. Waters, in addition, subjected the burlaps and cases to the very commonly used nitrate of silver test and found a considerable precipitation of salt. December 21, 1922, Mr. Kemp, surveyor for Barber & Company, examined seventeen bales of tanned skins in the warehouse and found they had been thoroughly wet but, in his opinion, not by sea water. He attributed the damage to sweat of the hold or rain or condensed steam. He also said that the nitrate of silver test was a good negative test, i. e. if no salt were shown, damage could not be by sea water, but some salt might be shown because there is salt in all animal matter. However, he admitted that a large precipitation of salt would indicate damage by sea water. Under these bills of lading the burden lay upon the claimant either to justify its delivery in bad order or to bring the cause of the damage within some exception in the bill of lading, Nelson vs. Woodruff, 1 Black 156; Andean Co. vs. Pacific Co., 263 Fed. Rep. 559. The controversy is as to whether the damage was caused by sea water as the libellants contend, or by sweat, as the claimant contends. If by the latter, the burden of proving negligence lies upon the libellants because of an exception of damage by sweat in the bill of lading. Sweat, as the condensation of the air under deck, constantly forms on the sides and upper deck of steamers coming from South America to North America. It is less likely to happen to steamers leaving South America in the cold or winter climate and arriving in the warmer or summer climate of North America, as was the case here. Precautions have to be taken and, we may presume in favor of the steamer, were taken for the protection of the cargo from sweat, such as keeping it away from the sides of the vessel by dunnage and battens and by opening the hatches from time to time to ventilate the holds. 1923 A. M. C. Johannesen admits that no extraordinary weather was experienced on the voyage but says a fire did break out September 26 in the tween-deck bunker situated between the two steel bulkheads above mentioned and separated from them. A copy of entries in the log offered in evidence by the claimant states that September 26 steam was injected for about three hours, which extinguished the fire. September 29 the fire broke out again and sea water was pumped into the bunker. On the 30th at 9 a. m. it broke out again and water was poured into the bunker, when necessary, and the fire extinguished at 7 p. m. "The water poured over the burning coals drained into the engine room bilges and stoke hole and was immediately pumped out, never rising above the tank tops. It was moreover impossible for water which had been applied to the coals to come in contact with any cargo as there were water-tight steel bulkheads both fore and aft of the engineroom compartments in which were the tween-deck bunkers." The claimant contends that the damage was caused by sweat or by the sea water poured into the coal bunker. If the damage to the hides discovered at Boston was caused by sweat, I should attribute it, in view of the very small part of similar cargo so affected, to defective protection at these two points against sweat. But I do not believe the considerable damage to the New York shipments, especially to the fur skins enclosed in heavy wooden cases, could have been so caused, considering the time of the year and that sweat damage is very rare in lower holds and that so small a part of the whole cargo was affected. Nor do I see how sea water in the coal bunkers could get through the steel bulkheads and leave all the rest of the cargo unharmed, especially if it did not rise above the tank tops. The claimant can hardly contend that the damage was so caused, in view of the extract from the steamer's log above quoted which it has offered in evidence. Therefore, I see no ground for saying that the damage is a general average loss. Johannesen, the first witness, was examined by deposition more. than two years after the event and the trial took place some eight years after. The absence of the steamer's deck and engine room logs is very regrettable. Nor do we know where the damaged shipments were stowed or what precautions in the way of battens, dunnage, or ventilation against sweat were taken. In my opinion the 25. claimant has not brought the damage within the bill of lading exception of sweat. Therefore it has not sustained the burden of explanation that lies upon it. The libellants may take the usual interlocutory decree. MCWILLIAMS BROTHERS, INC., Libellant-Appellee, vs. DIRECTOR GENERAL OF RAILROADS (PENNSYLVANIA RAILROAD), AGENT, Respondent-Appellant. JAMES C. McWILLIAMS BLUE LINE, Libellant-Appellee, VS. DIRECTOR GENERAL OF RAILROADS (PENNSYLVANIA RAILROAD), AGENT, Respondent-Appellant. United States Circuit Court of Appeals, 2nd Circuit, Nov. 13, 1922. TOWAGE CONTRACTS-EXEMPTION FROM NEGLIGENCE. Where a letter was written by tug owner to barge owners that all towing was at risk of barge owner, and answered by barge owners to the effect that they would not agree to such condition, but would report barges to be towed and would hold tug owner for any negligence, the tug owner under these circumstances was liable for negligence of tug in damaging barge. Before: ROGERS, MANTON and MAYER, Circuit Judges. BURLINGHAM, VEEDER, MASTEN & FEAREY, Proctors for Appellant; LEO J. CURREN, Proctor for Appellees; LEO J. CURREN, ELI J. BLAIR, PIERRE M. BROWN, Proctor for New York Boat Owners' Asso. Amicus Curiae. Appeals from the United States District Court for the Eastern District of New York. Libels filed by McWilliams Brothers, Inc., and James McWilliams Blue Line, Libellants, against James C. Davis, Director General of Railroads, Respondent. Decrees for libellants. The appellant (Pennsylvania Railroad) in the suit of McWil |