to see if they could discover anything upon the outside of the ship, and could not. Q. Why did you not try to discover it from the inside if the cargo did not prevent you? A. My instructions have been and were- Q. Never mind your instructions. Why did you not do it? A. Because the United States inspectors told me to close those doors, and keep them closed, and never open them,-the United States inspectors of hulls and boilers. The Court: At sea? A. At sea, in case of an accident. Q. No matter what danger the ship was in? A. No matter what danger the ship was in. Q. Did you understand, by that instruction, that you were not to take any proper precaution to ascertain whether there was a leak or not, and stop it? A. How did I know there might not have been a plate off the side of the ship, or we had collided with something? To use good judgment, i considered it proper to keep those doors closed in all compartments, when we find the ship making water, and I should do the same thing to-morrow:"

On redirect examination, the witness was asked:

"Q. Did you ascertain where the water came from into the after between-deck,— whether it came into the side of the vessel directly from that point, or whether it came in out there from the alleyway, as you term it? A. It came from the alleyway. Q. As I understand you, you did not consider it prudent, at that time, to open either of the doors that closed the alleyway? A. I did not, sir. * Q. There are two doors to each alleyway? A. Yes, sir; on the forward end and the after end. Q. The same on both sides? A. Yes, sir; on the port and starboard side."

The captain further testified that there was a guard, also known as a "stringer," or "fender," on the vessel. It was a piece of oak, 14 inches thick, upon the ship's side, put on between the deck frames, probably 10 inches down, and about 14 inches out from the ship's side. It extended to within 20 or 30 feet of the bow, and the same aft. The sea would wash over the guard four or five times a minute. When the vessel was on an even keel, in still water, the guard was a foot and a half above water, as the vessel was then loaded. This guard served for a fender, and was used, also, for landings. Nothing was afterwards discovered which indicated that this guard had anything to do with the leak, and the captain was not aware that, at any time during the voyage, the ship collided with or struck anything, until she was beached at Port Harford. Had anything serious of that character occurred, it would have been the duty of the officer of the deck, if he knew of it, to report it. No such report was, however, made. In closing the testimony of this witness, he testified as follows, in answer to questions propounded by counsel for libelants:

"Q. When you raised the steamer at Port Harford, in order to do that, did you pump her out? A. Yes, sir. Q. Was it necessary, in order to pump her out and float her, to ascertain where the leak was? I don't ask you what it was. A. I understand. Not necessarily so. Q. Did you understand where it was? Mr. Towle: Personally, yourself. Mr. Andros: No. Q. Did you know, as master of that ship, where it was? A. No, sir; I did not know where it was.' Q. Did you send down a diver? A. Yes, sir. Q. How many times did the diver go down? A. I think some three or four times,-five, maybe. I don't remember exactly. That I could not say. Q. When he went down the first time, for what purpose did he go? A. He went to see if he could find anything wrong with the ship, or a hole in her, the condition of her bottom as far as he could see. Q. Did he go down at any time for the purpose of stopping any leak that he might have found? A. I think he did; yes, sir. Q. So far as you know, he did stop it? A. As far as I know, he did. Q. After he had gone down for the purpose of stopping

the leak, and returned, did you then commence pumping her out for the purpose of floating her? A. After all the bulkhead doors were secured from the inside, we built a cofferdam around the forward hatch, and we pumped her out. Q. You had to build a cofferdam around her in order to free her hold from the water? A. Yes, sir. Q. When she was pumped out she would float, of course? A. Yes, sir. Q. How long after she was floated was it before she started to come to San Francisco? A. I think we were here in about forty-eight hours after she was floated. I think about forty-eight. Q. Did she leak coming up, to your knowledge? A. She made no water to my knowledge. * * Q. You testified, the other day, that an attempt was made to discover where the leak was by looking along the outside of the ship? A. Yes, sir. Q. Was that done by sending a man down in a bowline? I think you so testified. A. Yes, sir. Q. Did he go below the stringer of which you have spoken? A. No, sir. Q. Whereabouts is that stringer located with reference to the deadlights of the ship,-above them? A. Just above the deadlights. The deadlight is close up under the guard. It may be six or eight inches,-something like that, but not far from that."

*

Frank Mallow was called by the claimant, and testified that he was on the steamer on the voyage in question; that he was captain of the after hold; that his duty was to look after the freight, clean up the hold, clean the deadlights, and close them; that he performed that duty on this particular trip; that he saw that the deadlights were all properly closed upon that trip before the steamer sailed from San Francisco. He also explained how the glass and iron backs of the deadlights were fastened by means of a screw, and this screw set in place by a wrench or key.

A. Johansen, the carpenter, testified that it was his duty to go. below and see that everything was all right at 8 o'clock at night. He made that inspection at 8 o'clock on the night after the vessel left San Francisco, visiting the vessel below, fore and aft, including the after between-decks. Everything was all right. No indications of water in the after between-decks at 8 o'clock that night.

It does not appear, from the testimony, that the vessel, after she left the port of San Francisco, met with any known accident or injury which would have caused a leak. She does not appear to have struck or come in contact with any rocks or other objects until she was beached at Port Harford, nor did she encounter such boisterous weather as would account for an opening in her side to which the leak could be attributed. It is true the captain testified that, after they sailed from San Francisco, they had some boisterous weather, strong northwest winds,-a heavy nor'wester; but he admitted, on cross-examination, that it was the ordinary weather met with and expected at that season of the year, and no pretense is made, either by him or his counsel, that the leak could be rationally attributed to any injury produced by the weather then prevailing.

From what has been stated of the pleadings and testimony, it appears that the case has been tried upon such narrow lines that but few facts of substantial value have been disclosed to enable the court to arrive at a satisfactory conclusion as to the real and efficient cause of the disaster. Indeed, it may be said that the case did not reach that stage of proof where this particular question had been

fully developed as an issue. As the case progressed, the important question always presented was to determine the presumptions of law and fact, and on whom the burden of proof rested. The allegation of the libel is that the merchandise was returned to the port of San Francisco in a greatly damaged condition by reason of having been wet with sea water during the said voyage, which, through the negligence of said steamship company and its officers and serv ants, gained access to the interior of the said ship, where said merchandise was stowed. The burden of proving this allegation was upon the libelants; but, it being established that the merchandise had been returned to the port of shipment in a greatly damaged condition by reason of having been wet with sea water, a legal presumption of negligence arose which was attributed to the carrier because of this circumstance, and upon this presumption the libelants rested their case. But this legal presumption of negligence now placed upon the carrier was based upon a presumption of fact, that the vessel, having become unfit to prosecute her voyage without being visibly exposed to any extraordinary perils or dangers of the sea, was in an unseaworthy condition when the voyage began. Work v. Leathers, 97 U. S. 379; Cort v. Insurance Co., 2 Wash. C. C. 375, Fed. Cas. No. 3,257; Paddock v. Insurance Co., 11 Pick. 227; The Planter, 2 Woods, 490, Fed. Cas. No. 11,207a. This presumption of fact was met by proof from the claimant that the vessel, as before stated, was a well-constructed, iron-screw steamer, built in 1882; that she was submitted to regular inspections once a year from the time she was built until the date of the accident; that she was rated by the board of United States inspectors, at the last inspection, on June 21, 1887, as "A1"; that the hull of a vessel of the construction of the Queen, properly repaired and cared for, would last from 50 to 60 years; that she was kept in proper repair, and, at the time she sailed from San Francisco, just previous to the accident, she was rated by her master as first-class,-the best that is given for an iron steamship; that, upon the return of the vessel to San Francisco immediately after the accident, she was examined by James Dickie, a competent shipbuilder of long experience, and the superintendent of the shipyard at the Union Iron Works, and, aside from the apparent effects of grounding at Port Harford, he found her in a remarkably good condition, and nothing to indicate unseaworthiness.

The testimony relating to the guard or fender on the outside of the vessel incidentally disclosed the fact that just below it were the deadlights. The condition of these deadlights then became a matter of some significance. Had one of them been negligently left open when the vessel sailed, the flow of the water through such an opening into the compartment might account for the leak; but the claimant introduced testimony tending to show that the deadlights were all closed when the vessel sailed from San Francisco, removing the presumption of unseaworthiness that might attach to the unexplained condition of these openings at that time. Here we reach the difficult point in this case. Upon whom now rests the burden

of proof? Has the carrier removed the presumption of negligence cast upon it by the return of the merchandise in a damaged condition, wet with sea water? Was it sufficient, to shift the burden of proof back upon the shipper, for the carrier to show that the vessel was in a seaworthy condition at the commencement of the voyage?

In the case of the Edwin I. Morrison, 153 U. S. 199, 14 Sup. Ct. 823, the libelant sought to recover for damages to a cargo caused by the vessel taking in water through a hole in her side made by the breaking away of a cap from one of the bilge-pump holes. The defense was, that such breaking was caused by a danger of the sea, within the exception in the charter party and bill of lading. The vessel was on a voyage from Weymouth, Mass., to Savannah, Ga., with a cargo of guano. She encountered some rough weather, and shipped' large quantities of water, a portion of which found its way into the cargo through the bilge-pump hole. The circuit court found, as a fact, that before the vessel sailed the cap and plate appeared to be in good order, with no indication of looseness. The examination, which was at that time made of them, consisted of such inspection as could be given by the eye, and to such an inspection they were from time to time subjected. The court said:

"Perils of the sea were excepted by the charter party, but the burden of the proof was on the respondents to show that the vessel was in good condition, and suitable for the voyage, at its inception, and the exception did not exonerate them from liability for loss or damage from one of those perils to which their negligence, or that of their servants, contributed. Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 438, 9 Sup. Ct. 469. It was for them to show affirmatively the safety of the cap and plate, and that they were carried away by extraordinary contingencies, not reasonably to have been anticipated. We do not understand, from the findings, that the severity of the weather encountered by the Morrison was anything more than was to be expected upon a voyage such as this, down that coast and in the winter season, or that she was subjected to any greater danger than a vessel so heavily loaded and with a hard cargo might have anticipated under the circumstances. The especial peril which seemed at one time to threaten her safety was directly attributable to the water taken on board through the uncovered bilge-pump hole."

The circuit court had determined that, as no one witnessed the removal of the bilge-pump hole plate, direct evidence of the cause of the mishap was not obtainable. It was to be inferred, however, from the facts proved, that it was knocked out by something striking violently against it. The supreme court, commenting upon the findings relating to this feature of the case, points out that they did not justify the conclusion reached by the circuit court, and explains why they were insufficient, in the following language:

"If, however, the vessel had been so inspected as to establish her seaworthiness when she entered upon her voyage, then, upon the presumption that that seaworthiness continued, the conclusion reached might follow; but we are of opinion that precisely here respondents fail in their case."

In the present case, the claimant has introduced testimony tending to establish the seaworthy condition of the vessel when she set out on her voyage, and this testimony has not been contradicted. Now, if the only presumption of negligence arising out of the damaged con

dition of the merchandise was that the voyage had been commenced with a vessel in an unseaworthy condition, the court would be compelled to hold that the claimant had sufficiently answered the prima facie case made out by the libelants; but this does not appear to be the full scope of the presumption of negligence attributable to the carrier under this aspect of the case. Underlying the contract is the implied warranty, on the part of the carrier, to use due care and skill in navigating the vessel and in carrying goods, and it may be that, through some carelessness or negligence on the part of the carrier during the voyage, goods laden on board the vessel may suffer damage.

This brings us to a consideration of the behavior of the vessel after she left port. The testimony does not directly indicate any negli gence on the part of the officers or crew in navigating the vessel, but it does seem to point to an open deadlight as the cause of the leak in the water-tight compartment. After the vessel had been beached at Port Harford, and while she was partially under water, a diver was sent down to examine her bottom and ascertain what was wrong with the vessel. He went down several times, and appears to have stopped the leak; for, after his final examination, all the bulkhead doors were secured from the inside, a cofferdam was built around the forward hatch, the water was pumped out, and the vessel floated. Forty-eight hours afterwards she had returned to San Francisco without any leak occurring on the return voyage, and, upon being examined on the dry dock at the Union Iron Works in San Francisco, she was found to be in a thoroughly seaworthy condition, aside from the effects of grounding. It is difficult to understand how a leak of such a serious character as to make it necessary to beach the vessel a few hours after its discovery could have been stopped so easily and quickly, if it had not been caused by some such aperture in the side of the vessel as an open deadlight, which being closed and properly fastened, and the vessel freed from water, she was again restored to a seaworthy condition.

But, even if this supposition as to the cause of the leak is correct, it does not necessarily determine the ultimate question whether the damage to the cargo from sea water was by reason of the negligence of the steamship company. The testimony is that all the deadlights of the vessel were properly closed and fastened before the vessel sailed from San Francisco. It is true that this testimony may be disregarded, if, under all the circumstances, it appears to be improbable. The witness who testified that the deadlights were closed may have been mistaken, or one or more of the deadlights may have been opened by some one after they had been closed and fastened by the person charged with this duty. Is the testimony improbable? The deadlights were located about six or eight inches under the guard or fender. As the vessel was loaded on this particular voyage, this guard or fender was a foot or a foot and a half above the water line. This would leave the deadlights from six to eight inches above the water when the vessel was in still water