burg, that navigation below was obstructed to some extent, but the information they had on this subject did not indicate that there was serious danger to vessels as large and strong as the steamship and the barge. Near Washington Park, however, two or three miles down the river, ice of unusual thickness and in large quantity was encountered, and in the effort to force a passage the steamship stuck fast; and the barge, being unable to stop her way, came down with the ebb tide and collided with the steamship, doing her some damage, and injuring herself so severely that it became necessary to interrupt the voyage until the indispensable repairs should be made. The barge was partially unloaded, and was taken without delay to a shipyard, where the work of repairing the injury was prosecuted with diligence; but it was not until January 31st that the work was finished, and, as no power could then be had, it was not until February 5th that the voyage could be resumed. The barge reached Boston Harbor on the evening of February 10th, and the cargo was tendered to the consignee the next morning, but he refused to receive it because of the delay. The respondents were immediately notified of his refusal, and were asked for instructions; but they gave none until February 20th, when they directed the libelant to deliver the cargo at Portland, Me., and agreed to pay the extra charges for towing. The barge finally discharged at Portland on February 26th and was taken back to Boston; the service of towing to and from Portland being done by the Commercial Towboat Company at a charge of $205, as the libelant had no power of its own available at Boston when the direction to deliver at Portland was received.

When the voyage began, on January 18th, the current rate of freight was $2 per ton, but this was changed on January 27th to $1.50 per ton; and the principal subject of dispute is which of these sums furnishes the measure of respondents' liability for freight. There seems to be no controversy over the amount of demurrage that is due, $157.50. The towing charges between Boston and Portland are also objected to, apparently on the ground that libelant charged the same rate on cargoes of coal from Philadelphia to Portland as from Philadelphia to Boston; but, aside from the fact that this rate applied only to cargoes that were originally destined for Portland, the respondents' liability for the extra towage charges rests upon their express promise to pay them. This is found in the following letter, dated February 20th, and addressed to libelant's shipping and freight agent in Philadelphia:

"Dear Sir: In accordance with instructions from our Boston office, please deliver barge Kohinoor to Messrs. Sargent, Dennison & Co., Portland, Me. We will be responsible for towing bill in making this delivery.

"Yours truly,

E. E. Walling, "General Sales Agent."

The real contention, I think, must be over the libelant's alleged negligence in undertaking the voyage under the circumstances surrounding the navigation. It seems to me to be certain that the voyage had actually begun. I had occasion to consider this question recently in The Buckingham (D. C.) 129 Fed. 975, and some authorities on the subject will be found collected in the report of that case, to which may be added Wood v. Hubbard (C. C. A., 3d Circuit) 62 Fed. 757, 10

C. C. A. 623. This being so, the rate of freight then currrent, $2 per ton, applied to the venture, and must be paid, unless a sufficient excuse can be shown for the respondents' failure to comply with these terms. The bill of lading expressly protects the libelant from liability caused by dangers of the sea, river, or steam navigation, of whatsoever nature or kind; and, as the interruption of the voyage was unquestionably occasioned by a danger of river navigation, the contract relieves the libelant, unless its negligence has been shown. There was no fault in the work of repairing the barge; and the single question is, therefore, whether the presence of ice in the river made it negligent to begin the voyage at all. This is, of course, a question of fact, to be decided according to the evidence; and I need only state my conclusion after having considered all the testimony on this subject. In my opinion, the danger was not so great as to require the voyage to be postponed. Vessels as large and powerful as the Harrisburg are intended to encounter dangers, and I see nothing in the evidence to indicate that anything more than the ordinary peril from ice in the winter season was to be expected. When ice of unusual thickness was met, it was not practicable to turn around; and it was not negligence, I think, to attempt to break through. Indeed, the Harrisburg did break through in a second attempt the same day, and went on to Boston alone. The libelant's duty was to make every reasonable effort to take the cargo to Boston as speedily as possible, and, if the respondents had lost a market while the barge was waiting for the ice to move out, they would have been entitled to complain that no attempt had been made to open a channel by force. That the first attempt failed is true, but it was not negligence to make it, for the libelant must be judged, not by the result, but by the conditions that then existed. As was said in Holland v. 725 Tons of Coal (D. C.) 36 Fed., on page 790:

"The vessel owed diligence and promptitude in delivering. She was bound to diligent effort, and was obligated to deliver during that season of navigation, unless prevented by stress of weather, endangering the safety of the cargo, or preventing further progress. Exposure to inclement weather, or fear of encountering ice or cold, constitutes no excuse. The Maggie Hammond, 9 Wall. 435, 19 L. Ed. 772."

A decree may be entered in favor of the libelant, with costs.

GRAHAM v. OREGON R. & NAVIGATION CO.

(District Court, S. D. New York. March 1, 1905.)

ADMIRALTY JURISDICTION-MARITIME CONTRACT.

A contract on the part of respondent, a railroad company operating a line of road having a seaport terminus, to furnish to libelant all the cargoes which it then had or might thereafter have at such port during the term of the contract for shipment over sea, and on the part of libelant to furnish steamships to carry such cargoes, is maritime, and an action for its breach is within the admiralty jurisdiction.

[Ed. Note. For cases in point, see vol. 1, Cent. Dig. Admiralty, § 156. Admiralty jurisdiction as to matters of contract, see notes to The Richard Winslow, 18 C. C. A. 347; Boutin v. Rudd, 27 C. C. A. 530.]

In Admiralty. On exceptions to amended libel.

Thomas D. Rambaut and J. Parker Kirlin, for libellant.
Maxwell Evarts and Robert D. Benedict, for respondent.

ADAMS, District Judge. The original libel herein was filed on the 11th day of August, 1904. Exceptions thereto were duly filed by the respondent, alleging in substance that a maritime cause of action was not set forth and the court consequently had no jurisdiction. These exceptions were brought on for argument and sustained in an opinion, dated the 16th day of December, 1904. A decree was subsequently entered thereupon, granting leave to the libellant to amend within twenty days. This leave was availed of and an amended libel filed the 22nd day of December, 1904.

The amended libel substitutes new allegations for the first three paragraphs of the original libel. The libel in such respect now reads as follows:

"First: The libelant, Robert A. Graham, is a resident of the City of New York, and the respondent, the Oregon Railroad & Navigation Company, at all the times hereinafter mentioned, was, and it still is a corporation duly organized and existing under and by virtue of the laws of the State of Oregon and has an office and property in this District. At the times mentioned, the respondent was engaged in operating a system of railway of more than one thousand miles in extent in the northern portion of the United States, and had a terminus at Portland, Oregon, with wharves suitable for the use of Ocean going steamships. It was also at such times engaged in obtaining from various places in the United States, and forwarding from its terminus in Portland, cargoes of merchandise destined for points in China and Japan, and it was likewise engaged in receiving at its terminus in Portland, cargoes which had been brought by steamships from ports in China and Japan to the port of Portland.

Second: Prior to, and on October 1, 1900, the libelant, Robert A. Graham, and the respondent, the Oregon Railroad & Navigation Company, acting through its duly authorized agents, were engaged in negotiations for the purpose of forming a contract for the furnishing of vessels by the libelant to carry cargoes which the respondent represented to the libelant that it had, and would have regularly, from time to time, for shipment from Portland to points in China and Japan. The respondent then and there represented to the libelant that the above mentioned cargoes would amount to four thousand tons, or more, per month, all which it promised that it would ship on the vessels to be furnished by the libelant. On October 1st, 1900, these negotiations culminated in a contract between the libelant and the respondent, under and in pursuance of which it was agreed between the parties that the libelant should furnish five steam vessels, each capable of carrying four thousand tons of measurement cargo, to be operated in a monthly service between Portland, Oregon, and ports in China and Japan, to carry cargoes to be furnished by the respondent for shipment at Portland on the west bound voyages. It was further agreed that the respondent should furnish exclusively to the vessels so to be provided by the libelant, the cargo or cargoes that it then had, and all the cargo or cargoes that it might thereafter have at Portland for shipment to China and Japan, which it was represented would amount to four thousand tons or more per month, to be carried by the libelant's vessels, and that the respondent should also receive at Portland any and all cargo destined for inland points of the United States, which the vessels of the libelant might bring from ports in China and Japan to the port of Portland, and there deliver to the respondent on its terminal wharves. The duration of the contract, it was agreed, should be three years from October 1st, 1900. It was further agreed that the libelant's vessels should receive as compensation for the carriage over sea of the cargoes taken from or brought to 135 F.-39

Portland one-half of the through freight on all goods shipped under through bills of lading from interior points in the United States to China and Japan, and one-half of the through freight on all cargo which the libelant or its agents might obtain for shipment in China and Japan, to interior points in the United States, and that the vessels should receive the entire freight on all westbound cargo that originated in Portland, and on all eastbound cargo which was not destined for points beyond Portland.

Certain stipulations and regulations for the establishment and operation of the steamship service contemplated by the foregoing agreement and for the government of certain incidental matters in connection therewith, were, on that day, drawn up and embodied in a memorandum, a copy of which is hereto annexed, marked Appendix A, and made a part of this amended libel; but the terms and stipulations of this memorandum were conditioned and based on the undertaking of the respondent, which constituted an essential part of the agreement between the parties, that the respondent should furnish to the libelant's vessels, for shipment at Portland, all the cargo or cargoes which it then had, or might thereafter have, during the life of the contract, for shipment from Portland to points in China and Japan, and should receive at Portland all through cargoes which the vessels might bring to that port.

Third: Thereafter, pursuant to the terms of the aforesaid agreement between the libelant and the respondent, the libelant furnished to the respondent five steamers, each capable of carrying 4,000 tons of measurement cargo, for the establishment of a steamship service between Portland, Oregon, and ports in China and Japan, and cargoes were furnished for the said steamships by the respondent, in pursuance of said agreement, for several months thereafter, and until about the 10th of April, 1901, and in doing so delivered, under through bills of lading, cargoes and merchandise to the libelant at Portland for transportation by his said line of steamships, and received at said port cargoes from said steamships which had been brought from Asiatic ports, and paid freight on such cargoes to the libelant.

The name of the line under which the steamers were operated, in pursuance of the agreement between the parties, was the Oregon & Oriental Steamship Company."

The respondent has filed exceptions to the amended libel as follows: "I. That it appears upon the face of the libel herein that this Court is without jurisdiction of the cause of action set forth in said libel.

II. That the contract and agreement alleged in said libel is not a contract and agreement civil and maritime, and that an action for damages for the breach thereof is not within the admiralty and maritime jurisdiction of this Court.

III. The respondent further excepts to the first sentence of the Second Article as immaterial, and not stating any part of the alleged agreement, or of the alleged cause of action for the breach thereof.

IV. And the respondent further excepts to the second sentence of the second article, and also to the allegation in said second Article 'which it was represented would amount to four thousand tons or more per month', as immaterial, no cause of action in said amended libel being alleged as founded on either representations or promises of the respondent, outside of the alleged agreement."

The respondent contends that the amended libel adds nothing to the original libel as to the libellant's part of the agreement, nor as to the respondent's part of the same but simply modifies one of the former allegations and urges that Appendix A still contains all the particulars of the agreement now set forth and even if that is not so, it is certainly alleged by the libellant that Appendix A continues under the amended libel to form a part of the agreement between the parties. It is further urged that the contract now alleged is nothing but a traffic agreement covering as well the land transportation on the railroad as the

maritime transportation on the steamships; that neither can be separated from the other and that the question now presented has been practically decided in the sustainment of the former exceptions.

The allegations of the amended libel, however, are quite different from those of the original. The agreement contained in Appendix "A," instead of being a statement of the terms of the agreement as formerly alleged, is now described as merely incidental to the main contract, which is set forth in the paragraphs quoted above. The allegations of the new libel set forth a contract for the furnishing of cargoes on the respondent's part and of steamships on the libellant's part to carry the cargoes. Such a contract is essentially maritime within the authorities. Quirk v. Clinton, 20 Fed. Cas. 146; Patterson v. Baltimore Steam Packet Co. (D. C.) 101 Fed. 296; Id., 106 Fed. 736, 45 C. C. A. 575, 66 L. R. A. 193; Id. (D. C.) 106 Fed. 957.

With respect to the immateriality of certain statements in the amended libel alleged in the respondent's 3rd and 4th Exceptions, I do not deem it necessary at this time to consider the exceptions in such respect. When evidence is offered to establish the criticised parts, the question of materiality can be determined. Exceptions overruled.

GRAHAM v. BEAVER HILL COAL CO.

(Circuit Court, D. Oregon. February 24, 1905.)

No. 2,754.

1. VENDOR AND PURCHASER-RESCISSION OF CONTRACT-USE AND OCCUPATION. Complainant, while in possession of certain land under contract of purchase, erected certain buildings thereon, which were occupied by defendant, and thereafter rescinded the contract and relinquished to the vendor all rights, issues, and profits theretofore arising from the land. Complainant then recovered from the vendor all moneys paid by him on the contract of purchase, with interest, and then sued defendant for use and occupation of such building. Held, that the profits derived from such use and occupation belonged to the vendor, and, he having demanded that defendant attorn to him therefor, complainant was not entitled to recover. 2. SAME-ACTS OF AGENT-DEFENSES.

Where the improvements for the use of which suit was brought had been constructed by complainant while he was manager of defendant, and paid for with defendant's money, the buildings so constructed, so far as complainant was concerned, were the property of defendant, for the use of which defendant was not liable to complainant.

E. B. Watson, for complainant.

Williams, Wood & Linthicum and J. S. Coke, for defendant.

BELLINGER, District Judge. This is a suit for an accounting for the use and occupation by the defendant of some 30 dwelling houses, four cabins, a store, garden house, carhouse, cattle yard and pens, and garden and pasture, for a period from the 3d day of December, 1897, to the 9th of April, 1902. It is alleged that the reasonable value of the use and occupation in question is $17,464.36. The averments of the answer are to the following effect: From