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Opinion of the Court.

relieved from all liability except that arising from the wilful misconduct of its servants, delivered goods to be carried at the lower rate under a contract in which the only words defining the carrier's liability were "owner's risk." Lewis v. Great Western Railway, 3 Q. B. D. 195.

Upon consideration of the conflicting testimony, with the aid of the careful arguments of counsel, no ground is shown for reversing or modifying the conclusions of fact reached by both courts below. Their concurrent decisions upon a question of fact are to be followed, unless clearly shown to be erroneous. Morewood v. Enequist, 23 How. 491; The Richmond, 103 U. S. 540, and cases cited; The Conqueror, 166 U. S. 110, 136.

By the facts so found, it appears that the cattle, for the loss of which a recovery has been permitted, were sound and uninjured animals, forcibly thrown or driven overboard, in rough weather, by order of the master, from unfounded apprehension on his part, in the absence of any pressing peril to the ship, and with no apparent or reasonable necessity for a jettison of the sound cattle, and no attempt to separate them from those which had already been injured by perils of the

sea.

The clauses of the bill of lading, (other than the reference to British law,) on which the respondent relies, are those in the first paragraph, "on deck at owner's risk; steamer not to be held accountable for accident to, or mortality of the animals, from whatever cause arising;" and those in the third paragraph, by which "it is also mutually agreed that the carrier shall not be liable for loss or damage occasioned by causes beyond his control, by the perils of the sea, or other waters;" "by barratry of the master or crew;" or "by collisions, stranding, or other accidents of navigation, of whatsoever kind, even when occasioned by the negligence, default, or error in judgment of the pilot, master, mariners or other servants of the shipowner."

The bill of lading itself shows that all the cattle to be carried under this contract were to be on deck. The words "on deck at owner's risk" cannot have been intended by the

Syllabus.

parties to cover risks from all causes whatsoever, including negligent or wilful acts of the master and crew. To give so broad an interpretation to words of exception, inserted by the carrier and for his benefit, would be contrary to settled rules of construction, and would render nugatory many of the subsequent stipulations of the bill of lading.

The wrongful jettison of the sound cattle by the act of the carrier's servants cannot reasonably, or consistently with the line of English authorities already cited, or with our own decisions, be considered either as an "accident to, or mortality of the animals," or as a "loss or damage occasioned by causes beyond his control, by the perils of the sea, or other waters," or yet as a loss or damage "by collisions, stranding, or other accidents of navigation." There having been no collision, stranding, or other accident of navigation, there was nothing to which the only stipulation in the bill of lading against the consequences of negligence, default, or error in judgment of the master and crew, could apply.

There was no barratry, because there was neither intentional fraud or breach of trust, nor wilful violation of law, one of which, at least, is necessary to constitute barratry. Patapsco Ins. Co. v. Coulter, 3 Pet. 222; Lawton v. Sun Ins. Co., 2 Cush. 500; Grill v. General Iron Screw Colliery Co., above cited.

The facts of the case, therefore, do not bring it within any of the exceptions of the bill of lading, assuming them to be valid.

Decree affirmed.

CRAEMER v. WASHINGTON STATE.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF WASHINGTON.

No. 466. Submitted October 12, 1897.

Decided October 25, 1897.

In the case of a petition for habeas corpus for relief from a detention under process alleged to be illegal, by reason of the invalidity of the process or proceedings under which the petitioner is held in custody, copies of

Statement of the Case.

such process or proceedings must be annexed to, or the essential parts thereof set out in the petition, mere averments of conclusions of law being necessarily inadequate.

In this case, which was an indictment for murder, the verdict being "guilty as charged"; and judgment of condemnation to death thereon being affirmed by the Supreme Court of the State; and this court having determined, on a former petition by the petitioner, that it had no jurisdiction to review that judgment, Craemer v. Washington State, 164 U. S. 704; and the time appointed for execution having passed, pending all these proceedings, it was within the power of the state court to make a subsequent appointment of another day therefor, and to issue a death warrant accordingly, and a judgment to that effect involved no violation of the Constitution of the United States.

THIS was an appeal from a final order of the Circuit Court of the United States for the District of Washington refusing a writ of habeas corpus on the face of the petition therefor. The petition averred that Henry Craemer, the petitioner, was a citizen of the United States, residing in the county of King in the State of Washington; that he was unlawfully held in custody by the sheriff of that county, who was about to take his life, under certain alleged process and authority, "wholly without authority of law, without the jurisdiction of any court, contrary to the law, and contrary to the rights of your petitioner as a citizen of the United States under the Constitution of the United States."

"That on or about the 23d day of August, 1894, he was charged by the State of Washington by information of three separate crimes in one count, to wit, the crime of murder in the first degree, to which the penalty of death attached upon conviction; murder in the second degree, to which a penalty of not less than ten nor more than twenty years' imprisonment in the penitentiary attached, and the offence of manslaughter, to which not less than two nor more than ten years' imprisonment in the penitentiary attached.

"That your petitioner was tried upon the said information upon issue joined in the Superior Court of King County.

"That to said issue a jury trying your petitioner did return him guilty of no greater offence than the offence of murder in the second degree, and by legal construction granting inferences and all presumptions in favor of your petitioner as

Statement of the Case.

accused, finding your petitioner guilty of no higher offence than that of manslaughter.

"That the said jury in nowise found your petitioner guilty of murder in the first degree, to which the sentence and penalty of death could be inflicted.

"That the said verdict was rendered about the 12th day of September, 1894.

"That your petitioner appealed from the decision finding your petitioner guilty of murder in the second degree or of manslaughter to the Supreme Court of the State of Washington upon errors assigned, and the said judgment was af

firmed.

"And, further, upon the validity of the process under which your petitioner was charged, to wit, as to whether or not your petitioner could be tried upon an information for his life, your petitioner appealed to the Supreme Court of the United States upon that point and that point alone, and the said Supreme Court dismissed said appeal, returning the said cause and all process to the Supreme Court of the State of Washington, to be dealt with as in manner and form of the law was both just and proper."

That no death warrant had been issued while the cause was on appeal, and that there had been no opportunity or occasion to complain in the Supreme Court of the State, or in any other court, as to the right to issue such warrant; that the cause was tried before Judge Humes, one of the judges of the Superior Court of the county of King; "that after the said cause had been disposed of in the Supreme Court of the State of Washington, and the Supreme Court of the United States, and returned to the Superior Court of the State of Washington for the execution of such process as would be legal in the premises," Judge Humes had been succeeded by Judge Jacobs; that on February 6, 1897, the State of Washington moved that petitioner be brought up for judgment and other process against him and that Judge Jacobs issue a warrant of death, and that petitioner duly objected to Judge Jacobs' passing sentence of death upon him and issuing a death warrant to the sheriff, and insisted that the court was without

Opinion of the Court.

jurisdiction to make such an order, and that such order would be in denial of due process of law and in violation of Article VI and of Article XIV of the Federal Constitution; but, notwithstanding his objections, petitioner was ordered to be executed on April 23, 1897.

That under the laws of the State of Washington, there was no time allowed further to appeal from that order to the Supreme Court of the State; that the governor of the State respited petitioner and stayed the execution of the death sentence until July 23, 1897; "that the next term of the Supreme Court of the State of Washington is not until the month of October, 1897, in which there would be any authority on the part of the court by any proceedings to review the unauthorized act of the said Judge Jacobs and of his honor the judge of the Superior Court," and the only remedy left petitioner as a citizen of the United States was application to the Circuit Court.

Petitioner prayed for the writ of habeas corpus and for the writ of certiorari to the Superior Court of the county of King ordering the record of the cause to be certified to the Circuit Court "for information, particularly the alleged information, the verdict, the judgment and the death warrant made in the premises, and all other journal entries and orders in the

cause."

The appeal came before this court on motions to dismiss or affirm.

Mr. W. C. Jones for the motion. Mr. Patrick Henry Winston and Mr. James F. McElroy were on his brief.

Mr. James Hamilton Lewis opposing. Mr. Charles A. Riddle and Mr. John W. Pratt were on his brief.

MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.

Under existing statutory provisions appeals may be taken to this court from final decisions of the Circuit Courts in

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