Sixth. Could it be known, in advance, to those on board either vessel, what the position of the one bound upward, would be when she straightened up? Ans. Exactly what her position will be when she straightens, as before indicated, cannot be known until she accomplishes it. The downwardbound vessel will also encounter the tendency towards the Jersey flats from the effect of the tide, but being light and drawing seven and a half feet less water than the other, and having the tide towards her head, her command over her course is perfect, enabling her to stop or go where she will. If the upward-bound vessel should keep to the western side of the channel in rounding, the other could safely pass to the eastward, but the danger of attempting so to pass arises from the uncertainty of the former vessel being able to keep her

course.

Seventh. If the downward-bound vessel should stop until the other rounded, should she start again before the latter straightened up? Ans. To guard against danger, therefore, when two vessels of such size are likely to meet at the buoy, or very near it, under the circumstances stated, the downward-bound vessel should stop a few hundred yards above, until the other has rounded and straightened up, when their position would be known to each other, and the course of the downward-bound vessel made plain.

cannot, by any form of contract, relieve himself from the consequences of his own negligence.

2. SAME-CATTLE-WIND-SAILS.-It is negligence for the owners of a vessel to permit the same to lie at a pier with the between-decks full of cattle, during a hot July day, without having any wind-sails up.

3. SAME-SAME-SAME.-If it was necessary for the vessel to lay at the pier during the day, and if it was impossible to use wind-sails with success while the vessel remained at the pier, then it was the duty of those in charge of the vessel to inform the owner of the cattle of those facts, and to keep the cattle in a proper place upon the pier until the vessel was about to move.-[ED.

BENEDICT, D. J. This action is brought to recover for damage done to a shipment of cattle while being transported on the steam-ship Powhatan from New York to Bristol, England, in July, 1878.

The cattle came to the steam-ship at pier 40, East river, on the morning of Sunday, the seventh of July, in two divisions. The first division were all on board the steamer by about 9 o'clock A. M.; the second division arrived soon after and went on board at once, so that all the cattle were on board before 10 o'clock a. M. One hundred and twentynine were put in the between-decks and the rest on deck. The day was hot, the thermometer at the signal office registering 75 deg. at midday. After the cattle were on board, the steam-ship lay at the pier until 3:30 P. M., when she proceeded to sea. On Monday morning following, two of the cattle in the between-decks were found dead. On Tuesday morning six more of the cattle in the between-decks were dead, and nearly all in the between-decks were sick. On Wednesday morning eight more were dead in the same place, and two more died during that day in the same place, making 18 in all. Then the mortality ceased and the health of the cattle improved. All the rest of the cattle, except one of those on deck, which died later from cramps, arrived in safety. The condition of the cattle landed from deck was about as good as when shipped. Those that survived in the between-decks, when landed, had lost condition, and were diminished in value. The libellant now seeks to recover of the steam-ship for the value of the cattle that died in the between-decks, and for the diminution in value of those in the between-decks that survived.

The law applicable to the case is not in dispute. Under the terms of the contract, the libellant, in order to recover,

must show that the loss complained of was caused by negli gence on the part of the ship.

The evidence shows that this steam-ship was built for the fruit trade, and its construction intended to render the between-decks uncommonly well ventilated. The hatches were unusually large, and they were continually open during the voyage in question, the weather having been fine from the time of sailing until arrival in Bristol. There is no room, therefore, to contend on the one side that the loss in question was occasioned by any defective construction of the steamer, nor, on the other, that the sickness and mortality in the betweendecks arose from a confinement caused by stress of weather, and was therefore a necssary result of the attempt to transport the cattle in the between-decks. But it is claimed on the part of the libellant that the sickness and mortality were caused by the omission to furnish a sufficient supply of air to the cattle in the between-decks by the use of wind-sails in the hatches; while on the part of the ship it is insisted that the sole cause of the loss was the overheated condition of the cattle when shipped. In support of the libellant's claim, evidence has been given whereby it sufficiently appears that the use of wind-sails to convey air to cattle when carried between-decks, is a precaution commonly resorted to for that purpose, the omission of which, when practicable and available for the purpose intended, is negligence. The libellant has also produced two witnesses, cattle men, employed by the libellant, who had charge of the cattle during the voyage, and who swear positively, and with detail, that no wind-sails were put up until the Wednesday morning after leaving New York. It will be recollected that the cattle went on board the steamer early Sunday morning. On Sunday night the mortality commenced, continued on Monday and Tuesday, and ceased suddenly on Wednesday. The sickness was confined to the animals in the between-decks, and there is no evidence to justify a supposition that it was the result of any disease that broke out among the cattle, nor has such a supposition been made. It is also certain that the loss was not the result of the ordinary fatigue of the voyage, for the sickness was

confined to the first three days. If, then, it could be considered to have been proved that wind-sails were for the first time put up on Wednesday, the third day out, there would be little difficulty in arriving at the conclusion that the absence of wind-sails on Sunday, Monday, and Tuesday was the cause of the sickness and death that ensued. But while it is conceded on the part of the steamer that no wind-sails were put up until the vessel was passing down the bay, two witnesses are produced from the steamer who swear that before the steamer passed Sandy Hook twelve wind-sails were put up to convey air to the between-decks. Upon the question whether wind-sails were used during Sunday night, Monday, Tuesday, and Tuesday night, we have, then, four witnesses, all of them possessed of sufficient intelligence to observe the fact, all of them called on by the nature of their duties to know when wind-sails were up, and each of whom must of necessity know how the fact was; and yet the two cattle men swear positively that no wind-sails were up until Wednesday morning, and the master and mate of the steamer swear as positively that twelve wind-sails were up from the time of passing Sandy Hook.

In regard to this conflict of evidence, which presents a plain question of veracity, it must be remarked on the one hand that the testimony of the cattle men discloses a desire to make out a strong case against the steamer, and there is considerable improbability in their statement that the master of this steam-ship, although often requested, and when the necessity was obvious, refused to put up wind-sails until Wednesday; and this, too, when he had plenty of them on board, and, for all that appears, could have put them up at once without trouble. Such neglect would be gross indeed, and requires to be clearly proved. Moreover, some of the statements of the cattle men, such as that all permanent ventilators were closed up, have been clearly disproved. On the other hand, the master and mate of the steamer, who contradict the cattle men, testify in regard to a neglect, which, if it existed, is chargeable to them, and they cannot be considered as free from a bias in favor of the steam-ship.

I pass the testimony of the second and third mates with the remark that their statements are so general in character as to have little weight in so sharp a conflict; and with the further remark that it is not without significance that so important a fact as the time when wind-sails were put up should have been left, on the part of the steamer, to be decided upon the testimony of the master, and mate unsupported except by such general statements as are made by the second and third mates. The testimony of the Sandy Hook pilot, who says that he has no recollection in regard to wind-sails, but thinks that if no wind-sails had been up he would have remarked the circumstance, as he knew that she had cattle in the between-decks, affords but little support to the master and mate; for it would seem that it could hardly be that twelve wind-sails could have been rigged on the steamer while she was passing down the bay without attracting the attention of the pilot in charge. Still, I must say that I have not been convinced that no wind-sails were up until Wednesday. The only omission on the part of the ship that can be deemed proved is the omission to have wind-sails up during Sunday, while the steamer lay at the pier.

The case, then, presents two questions: First, whether it was negligence on the part of this ship to permit their vessel to lie at the pier with the between-decks full of cattle, during Sunday, without any wind-sails up; and, second, whether the subsequent sickness and death in the betweendecks is attributable to that omission.

The evidence hardly admits of doubt that a reasonable care for the health of the cattle in the between-decks required that wind-sails should have been put up as soon as the cattle were on board. It was a hot July day; the steamer was an iron vessel; she was lying in the slip along-side a shed; the cattle filled the between-decks very full; the heat there was extraordinary; the animals were suffering greatly, so much so that fears were expressed that all would die, and the necessity for wind-sails was called to the attention of the mate in charge by an agent of the Society for the Prevention of Cruelty to Animals, who was present for the purpose of