account of the mills company, but of the purchasers at Hongkong; that, notwithstanding the terms of the bills of lading, the facts of the shipinent were known to the Portland & Asiatic Company; that that company knew that the shipment was not in fact being made by the Portland Flouring Mills Company, but was made by purchasers of the cargo in Hongkong, and was being shipped on their account. The president of the respondent company testifies that the flour stood as security for the drafts. Whether the interest of the respondent was that of ownership or lien, the parties for whom the flour was intended were to have it when paid for, and not before. In whatever light the transaction is viewed, this is what it comes to. The consignment in the bills of lading to the respondent's order and the insurance in its name were to this end, and the conclusion is unavoidable that the respondent was the shipper, and to it the carrier's service, whether for receiving the freight and agreeing to carry it, or for in fact carrying it, was rendered; and, as the case stands, the respondent is responsible for the freight agreed to be paid.

The respondent complains that the master of the vessel abandoned the wreck to the underwriters without endeavoring to save the cargo, and without communicating with the respondent, as he should have done, if the respondent was the owner of the cargo; that the loss of more than enough flour to pay the entire freight is due to the master's failure either to salve the flour for account of the respondent, or, at the least, to notify it, so that it could protect itself; that the insurance is a matter wholly between the owner and the insurer, and the master had no right to dispose of the insured cargo to the underwriters. But the respondent has not been prejudiced by any of the matters complained of. The insurers stood in its place. They were responsible to the latter for the price of the flour and freight charges, and for more, since the 40 per cent. insurance above the invoice price covers more than freight. They assumed to answer for the entire shipment, salved or otherwise, for the freight charges, and for such profits as were included in the 40 per cent. after paying such charges. The respondent had no interest to be served by notice of the wreck or other act on the master's part. It was assured of all its interests and responsibilities in the flour shipped. If the freight covered by the insurance has been paid to the firms upon whom the drafts were drawn, it has been done through the respondent's act, and it is the respondent who must have recourse to that fund for indemnity for the obligation it is under to the carrier, whose service it contracted for and received.

The libelant is entitled to the relief prayed for, and there must be a decree accordingly.

THE ENDSLEIGH.

(District Court, S. D. New York. June 16, 1903.)

1. SHIPPING-TIME CHARTER-LIABILITY OF SHIP TO CHARTERER FOR ACTS OF OFFICERS.

Under a time charter which provides that the owners shall provide and pay the officers and crew, and the charterer shall provide and pay for the coal, and that the captain, although appointed by the owners, shall be under the orders and direction of the charterer as regards employment, agency, or other arrangements, the charterer has no right of action against the vessel for the value of coal paid for by it as having been bought by the master, but alleged not to have been delivered to the vessel, or to have been misappropriated by the vessel's officers. In their dealings with respect to the coal, the master, engineer, and crew are to be regarded as agents of the charterer.

In Admiralty. Suit by charterer to recover the value of coal supplied for the vessel's use.

This was a libel by the charterer of the steamship Endsleigh to recover from the vessel's owners the value of certain quantities of coal supposed to have been supplied to the steamer during the pendency of the charter party, and actually paid for by the charterer, but which it claimed were either never delivered on board the vessel, or else were misappropriated by the vessel's officers after delivery on the steamer. There was an alternative claim that the steamer was able, when maintained in a fit condition, to make her maximum speed on a coal consumption of 12 tons a day, but that, notwithstanding, she actually consumed over 14 tons a day for a considerable portion of the charter, according to the reports of the vessel's officers. If all the coal paid for by the charterer was delivered to the vessel, the charterer claimed to be entitled to recover the value of the coal consumed by the vessel in excess of 12 tons per day.

The charter party was for a period of twelve months. The material provisions of the charter were:

"(1) That the owners shall provide and pay for all the provisions and wages and consular shipping and discharging fees of the captain, officers, engineers, firemen and crew, shall pay for the insurance of the vessel; also, for all engine room stores and deck stores, and maintain her in a thoroughly efficient state, in hull and machinery for the service.

"(2) That the charterers shall provide and pay for all the coals, fuel, port charges, pilotages, agencies, commissions and all other charges whatsoever, except those before stated, and shall accept and pay for all coal in the steamer's bunkers on delivery, and the owners shall, on expiration of this charter party, pay for all coal left in the bunkers, each, at the current market price at the respective ports when she is delivered to them.

"(8) That the captain (although appointed by the owners) shall be under the orders and direction of the charterers as regards employment, agency, or other arrangement; and the charterers hereby agree to indemnify the owners from all consequences of liabilities that may arise from the captain signing bills of lading, or in otherwise complying with the same.

"(9) That if the charterers shall have reason to be dissatisfied with the conduct of the captain, officers or engineers, the owners shall, on receiving particulars of the complaint, investigate the same, and, if necessary, make a change in the appointments.

"(10) That the master shall be furnished, from time to time, with all requisite instructions and sailing directions, and shall keep a full and correct log of the voyage or voyages which are to be patent to charterers or their agents, and to furnish the charterers, their agent or supercargo, when required, a true daily copy of log, showing the course of the steamer and distance run, and the consumption of coal, and to take every advantage of

wind by using the sails, with a view to economize the expenditure of coal." "(12) That in the event of loss of time from deficiency of men or stores, breakdown of machinery, stranding, or damage preventing the working of the vessel for more than twenty-four running hours, the payment of the hire shall cease until she be again in an efficient state to resume her service. and should she in consequence put into any other port other than that to which she is bound, the port charges and pilotages at such port shall be borne by the steamer's owners, but should the vessel be driven into port or to anchorage by stress of weather, or from any accident to the cargo, such detention or loss of time shall be at the charterers' risk and expense."

Wheeler, Cortis & Haight, for libelants.
Convers & Kirlin, for the Endsleigh.

HOLT, District Judge. I have examined the briefs submitted for the libelants in this case. I see no reason to change the opinion expressed at the conclusion of the trial. It was the charterers' duty to furnish the coal to the ship. They left that duty to the master. Therefore the master, in buying the coal, was the agent of the charterers. The coal when bought was the property of the charterers, and it was the duty of the charterers to use it in the navigation of the ship, and the master, engineer and crew, being authorized to use it, acted in respect to whatever they did or omitted to do about the coal as the agents of the charterers. If, therefore, untruthful reports were made to the charterers as to the amount purchased, or coal actually purchased was misappropriated, those were fraudulent acts perpetrated by an agent against his own principal, for which he is responsible to the principal, but which, in my opinion, imposed no liability on the owners of the ship, and no maritime lien on the ship. I think it proper to add that no inference should be drawn from this decision that, in my opinion, there is any evidence establishing that the master or engineer or any of the crew were guilty of any misappropriation of the coal, or misconduct of any kind in relation to it. I put the decision on the legal proposition that the libelants have no ground of recovery, on the evidence, against the ship.

I think that the libel should be dismissed, with costs.

DENISON v. SHAWMUT MIN. CO.

(Circuit Court, W. D. New York. August 6, 1903.)

No. 62.

1. REMOVAL OF CAUSES-PROCEEDINGS AFTER REMOVAL-REVIEW OF RULINGS OF STATE COURT.

tiff.

A federal court to which a cause has been removed will not review any interlocutory question which was determined in the state court before removal, at least unless such a showing is made as would entitle the party applying to a rehearing under the state practice.

On Motion for Rehearing of a Motion to Set Aside an Attachment. Rogers, Locke & Milburn (John G. Milburn, of counsel), for plain

Bissell, Carey & Cooke (James McCormick Mitchell, of counsel). for defendant.

HAZEL, District Judge. This is a motion for rehearing upon a decision of the state court setting aside an attachment prior to removal of the cause to this court. It is uniformly held that the Circuit Court of the United States to which a cause is transferred from the state court will not review any questions determined by that court before removal; nor, indeed, will it listen to a motion for rehearing of a similar motion in the state court, as such hearing is held to be merely another name for an appeal. Loomis v. Carrington (C. C.) 18 Fed. 97-99; Cleaver v. Traders' Ins. Co. (C. C.) 40 Fed. 711. All interlocutory questions decided while the cause was in the state court are res adjudicata so far as this court is concerned. Brooks v. Farwell (C. C.) 4 Fed. 166, 2 McCrary, 220; Milligan v. Lalance & Grosjean Mfg. Co. (C. C.) 17 Fed. 465, 21 Blatchf. 407; Lookout Mountain R. Co. v. Houston (C. C.) 44 Fed. 449; Allmark v. Platte S. S. Co. (C. C.) 76 Fed. 615. It is undoubtedly true that the power to entertain a motion for rehearing may be exercised by this court after a transfer of the cause from the state court (Garden City Mfg. Co. v. Smith, Fed. Cas. No. 5,217, 1 Dill. 305), but such power should only be exercised in strict conformity with prevailing practice of the state court from which the cause was removed. Now it is quite clear from the preliminary discussion had upon this motion for leave to reargue that an exhaustive hearing was had upon the merits before Judge Childs. No new facts are disclosed here. The entire claim to the right of rehearing is based upon the erroneous disposition of the motion in the state court. The prevailing practice in that court is not to allow a rehearing unless it is manifest that all the facts were not presented to the court upon the decision of the. original motion, or unless some facts were overlooked which through inadvertence or mistake led the court into error. Van Wagener v. Royce (Sup.) 21 N. Y. Supp. 191; The Matter of Crane, 81 Hun, 96, 30 N. Y. Supp. 616.

No ground is here shown which would justify this court in granting a rehearing. The motion is therefore denied.

THE JUNIATA.

THE SOVEREIGN OF THE SEAS.

(District Court, E. D. Virginia. August 1, 1903.)

1. COLLISION-VESSELS AT ANCHOR-IMPROPER ANCHORAGE.

A vessel anchoring when light in a part of the anchorage grounds allotted to loaded vessels, which fact, however, was unknown to her captain, who was new to the port, is not thereby precluded from recovering damages for a collision which occurred without other fault on her part, where the anchorage grounds were not crowded, and she was permitted to remain in the same place for 10 days without objection from any one.

2. SAME.

The duty is imposed on a vessel last anchoring to give another, previously anchored, safe anchorage room; and, if a collision results from her failure to do so, she is liable for the damages caused.

8. SAME-SAFE BERTH.

A safe berth for anchorage, which a later vessel is required to allow to one previously anchored, should be construed to mean one in which, taking into consideration all the exigencies likely to arise, either by reason of the character of the harbor, the condition of the weather, or the season of the year, there should be no danger of collision, and all doubts should be resolved with a view of securing safety, having in view the possible contingencies which might arise; and especially so where there was ample anchorage space.

4. SAME.

A vessel anchoring without necessity in too close proximity to one previously anchored is not in position to require the latter to incur extraordinary risks during a storm in order to avoid a collision.

5. SAME EVIDENCE CONSIDERED.

Evidence considered, and held to establish that a collision between two vessels at anchor, one of which was light and the other loaded, was due solely to the fault of the latter in anchoring and remaining during a high wind in too close proximity to the other, which was previously anchored, when there was ample space within the anchorage grounds.

In Admiralty. Cross-libels for collision.

Whitehurst & Hughes, for the Juniata.

Bickford & Stewart, for the Sovereign of the Seas.

WADDILL, District Judge. These are cross-libels filed by the owners of the respective vessels-Messrs. Bartlett & Shepherd for the Juniata, and Lewis Luckenbach for the Sovereign of the Seas. The Juniata and the Sovereign of the Seas are each ocean-going barges, engaged in the coal trade, from the port of Newport News, Va., and on the night of the 17th of February, 1900, while anchored in the harbor of the said port, were in collision, and sustained the injuries for which they respectively sue. The Juniata is a barge of 1,244 tons burden, gross, 260 feet long, 34 feet beam, 161⁄2 feet draft; the Sovereign of the Seas, of the burden of 1,300 tons, 200 feet long, 40 feet beam, 24 feet draft. On the night in question the Juniata, being light, was, and had been for some 10 days previously, anchored about opposite to pier No. 8 of the Chesapeake & Ohio Railway,