gressed to that point where a master's apprehension of danger to cargo, if well founded, should be lightly set aside for the convenience of trade.

One of the most cogent evidences of the impression heretofore mentioned is the fact, that no underwriter could be found in London or New York to indemnify the parties against the risk. This question of insurance now enters largely into mercantile transactions and the absence of willingness on the part of underwriters to undertake the full hazard, at any rate of premium, is a strong argument in favor of the master's position. It has even been held that inability to secure insurance is sufficient to condemn a vessel as to her seaworthiness, where there was some doubt about the sufficiency of the hull, even when she afterwards safely makes the voyage, sought to be insured. Premuda v. Goepel (D. C.) 23 Fed. 410; Svendsen v. Stursberg (D. C.) 31 Fed. 86; Card v. Hine (D. C.) 39 Fed. 818.

Notwithstanding the provisions of the charter party for the loading of all such lawful goods as the charterer might think proper to ship, some discretion was left in the master, upon whom the responsibility for stowage and safe carriage rested, and it was his duty to exercise it for the benefit of all concerned.

Boyd v. Moses, 7 Wall. 316, 19 L. Ed. 192, was a case where the charter party provided for a cargo of lawful merchandise, which the charterers were to provide. A question arose as to the receipt by the ship of certain lard, the master being apprehensive, as it was to some extent in a liquid state, that it would penetrate the decks and damage some wheat stowed in the hold. A letter of indemnity was given the master by the charterers. The wheat was damaged by the lard, also the ship, and a question arose as to who was responsible for the damage. The court held that the charterers were, saying (pages 318, 319, 7 Wall., pages 193, 194, 19 L. Ed.):

"The stipulation of the charter-party to take a cargo of lawful merchandise necessarily implied that the articles composing the cargo should be in such condition, and be put up in such form, that they could be stowed and carried without one part damaging the other. Whether in any case articles offered can be taken with safety to other articles, will depend upon a variety of considerations; the nature of the articles, the state of the weather, the voyage contemplated, the amount of cargo already received, and other particulars. Lard, for example, can be carried in winter to a northern port in loose casks with little damage to other articles, whilst injury may be reasonably apprehended if the voyage is to be made through the tropics, and the casks are not perfectly tight. Very different care must necessarily be given by the master in receiving and stowing goods perishable in their nature from heat or moisture, and such as are unaffected by either. All that is required of him in such case he being a competent officer-in determining whether particular goods are at the time in shipping order and condition, or can be received in the state and stowage of cargo already aboard, is that he shall not act capriciously or without due consideration, but shall exercise an honest and reasonable judgment in the matter.

In Weston v. Foster, 2 Curt. 119, Fed. Cas. No. 17,452, the whole of the vessel, except the cabin and room for the crew, sails, cables, and provisions, was let, and the owners covenanted to receive all such lawful merchandise as the charterers should choose to put on board. The master, who was a competent officer, took on board all the cargo he thought his vessel could safely carry, which, however, did not fill it, but left a space capable of holding fifty tons more, and the charterers insisted that there should be deducted

from the freight-money the amount they would have received if fifty tons more had been brought. But the court held that the whole charter-money was earned, and that the honest opinion of the master, though not absolutely binding on the charterers, could only be controlled by decisive evidence of a mistake on his part.

The master was here sustained in refusing to take all the cargo the hold of the vessel could receive, because, in the exercise of his honest judgment, he thought it would endanger her safety, notwithstanding the terms of the charter-party. Upon the same principle he may refuse to take goods offered, if in his bonest judgment they are in such a condition or of such character that they cannot be carried without injury to the rest of the cargo."

Another authority to substantially the same effect is: The Styria, 186 U. S. 1, 22 Sup. Ct. 731, 46 L. Ed. 1027, where the master's duties are defined. Other cases where the judgment of the master has been deemed controlling, are: Phelps, James & Co. v. Hill, 1 Q. B. Div. 1891, p. 605, and Nobel's Explosives Co. v. Jenkins, 2 Q. B. Div. 1896, p. 326.

In the former case it was said (page 611):

"Moreover, if a master of competent skill and knowledge, and acting bona fide in the interest of all concerned, has chosen one port in preference to another, then although the court or a jury may and ought to take a different view, if they come to the conclusion that he ought to have acted differently they ought not to come to such a conclusion on light grounds. In a nicely balanced case they are fully justified in attaching considerable weight to the master's judgment and in allowing that to turn the scale in their own minds." In the latter case, it was said (page 332):

"But apart from the terms of the bill of lading, it seems to me that the conduct of the captain would be justified by reference to the duty imposed upon him to take reasonable care of the goods entrusted to him. Whether he has discharged that duty must depend upon the circumstances of each case, and here, if the goods had been carried forward, there was every reason to believe that the ship would be detained and the goods of the plaintiffs confiscated. In the words of Willes, J., in Notara v. Henderson (1), 'a fair allowance ought to be made for the difficulties in which the master may be involved. * * The place, the season-the opportunity and means at hand, the interests of other persons concerned in the adventure and whom it might be unfair to delay for the sake of the part of the cargo in peril; in short, all circumstances affecting risk, trouble, delay and inconvenience must be taken into account.' I am of opinion that the course taken by the captain in landing the goods and landing them in safe custody was a proper discharge of his duty. It was said that the master was not an agent for the shippers be cause they had protested against the discharge of the goods. But even if this information had reached the captain, it would not have divested him of his original authority and discretion as agent in any emergency for the owners of the ship and the other owners of the cargo."

These cases seem to be controlling unless the master's judgment was not honestly and prudently formed. The testimony here requires me to find that there was sufficient reason to cause a prudent master to hesitate about taking the flour, in view of the presence of oil in the vessel, and that he was justified in requiring the letter of indemnity.

Libel dismissed.

GUARANTY TRUST CO. OF NEW YORK v. ATLANTIC COAST ELECTRIC

R. CO.

(Circuit Court, D. New Jersey. August 22, 1904.).

1. MORTGAGE-FORECLOSURE-LIEN UPON AFTER-ACQUIRED PROPERTY.

The mortgage given by the defendant railroad company recited the form of the bonds secured by it, which declared that the bonds were secured by a mortgage upon "all the certain railroad and other property, real and personal, and franchises of said railroad company, whether now owned or hereafter acquired by it." The conveyance clauses of the mortgage limited its lien upon after-acquired property to such property, and to such rights acquired by lease from other railroad companies, as should be "connected with or appurtenant to" the railroad of the defendant company specifically described in the mortgage. Held: (1) That the lien of the mortgage embraces rights acquired by leases made after the date of the mortgage to the defendant company by other railroad companies owning railroads connected with the defendant's railroad, and being operated by the defendant company in connection with its own railroad and as a part of its railway system. (2) That its lien also embraces the capital stock of, and a lease acquired from, a new corporation, such new corporation having been created for the mere purpose of subserving the interests of the defendant corporation, which has paid for all the property conveyed to the new corporation, and assumed all its obligations, and the new corporation having issued to the defendant company all its capital stock and executed to the defendant company a lease upon all its property for the term of 99 years, the existence of the new corporation being limited by law to 100 years, and the railroad of the new corporation being operated by the defendant company in connection with its own railroad and as a part of its railway system. (3) That its lien also embraces a line of railroad constructed by the defendant company which is operated by the defendant company, in connection with its own railroad and the railroads on which it has secured leases, as a single railway system. (4) That its lien does not embrace a hotel property which does not appear to be in any wise connected with the operation of its railway system.

(Syllabus by the Court.)

In Equity. On bill to foreclose

Julien T. Davies, for complainant as trustee, and also individually.

Samuel Dickson, for bondholders.

Adrian H. Joline, for defendant.

LANNING, District Judge. This suit is brought to foreclose a mortgage given by the defendant, the Atlantic Coast Electric Railroad Company, to the complainant, the Guaranty Trust Company of New York, as trustee for the holders of 500 of the bonds of the defendant company for $1,000 each.

The only questions to be now considered relate to the extent of the lien of the mortgage. Admittedly, the mortgage covers all the properties specifically described in it. But does it also extend to and embrace the following properties, acquired by the defendant company after the date of the mortgage: The leasehold interest in the West End & Long Branch Railroad, the leasehold interest in the Sea Shore Electric Railroad, the leasehold interest in the hotel property at Pleasure Park Bay, the capital stock of and the leasehold interest in the Asbury Park & Sea Girt Railroad, and the line of rail

way extending through Belmar? The defendant insists that none of these last-mentioned properties are subject to the lien of the mortgage; the complainant insists that all of them, except the capital stock of the Asbury Park & Sea Girt Railroad, which the complainant claims to hold in its individual capacity as collateral security for the payment of the defendant's promissory note, are subject to its lien; and the bondholders, who are represented by special counsel, insist that all of the properties, including the stock of the Asbury Park & Sea Girt Railroad, are subject to its lien.

Although the authority for the execution of the bonds and mortgage was not given until October 7, 1896, and the mortgage was not recorded until October 13, 1896, the resolution authorizing their execution required them to be antedated July 1, 1896. They were so antedated. As between mortgagor and mortgagee, therefore, the mortgage will be considered as a conveyance of property on July 1, 1896. This was the plain intention of the defendant company, and property acquired by that company between the date of the mortgage and the time of authorizing its execution, or of recording it, as well as that acquired after such authority or record, must be deemed to be future-acquired property. If, then, the mortgage covers any futureacquired property at all, the mere fact that two leasehold interestsone in the West End & Long Branch Railroad and the other in the Sea Shore Electric Railway-were acquired after the date of the mortgage, but before the authority for its execution was given, will not exclude them from the lien thereof.

The mortgage is inartistically drawn. Whether it was the intention of the defendant company to subject to the lien of its mortgage after-acquired properties like those above mentioned must be ascertained from an examination of the various clauses in the mortgage concerning after-acquired properties. On such examination it appears that the mortgagor conveyed to the mortgagee "all the right, title, and interest of the railroad company (the mortgagor) now owned or hereafter in any wise acquired by it in and to all and singular the lines of railroad and railroad tracks and routes and other property, real and personal, hereinbelow described." Then follows, first, a specific description of the lines of railroad owned by the defendant company on July 1, 1896; secondly, the description embraces "all lands and real estate, *buildings, improvements, tenements, and hereditaments now owned by the railroad company, or hereafter at any time or howsoever acquired by it, which are or may be connected with or appurtenant to the above described and hereby mortgaged railroad and routes"; thirdly, the description embraces "all and every franchise (including the franchise to be a corporation), right, privilege, and easement of whatsoever kind or nature now or hereafter at any time or howsoever owned, acquired, possessed, enjoyed, or exercised by the railroad company, either by virtue of any act of the Legislature of the state of New Jersey, or * * * of any contract or lease between the railroad company and any other railroad or other corporation * which are or may be connected with or appurtenant to the above described and hereby mortgaged railroad and routes." The description further embraces

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"all and singular the liberties, privileges, and franchises connected with or relating to the said railroad, routes, and real and personal property hereto [hereby] mortgaged, * with all and singular the * * * hereditaments, easements, and appurtenances to the above described and hereby mortgaged railroad routes and real and personal property, franchises and premises, or any part thereof, now or hereafter belonging or in any wise appertaining." The defendant insists that these clauses relating to future-acquired property are limited to the railways specifically described in the mortgage, and to properties appurtenant to such specifically described railways, and that they do not include subsequently acquired leases or stocks, or even the line of railroad constructed through Belmar. To determine the question, the meaning of the words "connected with or appurtenant to" must be ascertained. The phrases "connected with" and "appurtenant to" are not necessarily synonymous. The railroad of the West End & Long Branch Railway Company is physically connected with that of the defendant company at the northerly end of the latter company's main line, and the railroad of the Sea Shore Electric Railway Company is physically connected with that of the defendant company at the southerly end of the latter company's main line. The defendant company secured leases upon these two lines of railroad, and has been operating them in connection with its own road. In Columbia Finance & Trust Co. v. Kentucky Union Railway Co., 60 Fed. 794, 9 C. C. A. 264, it appears that the defendant company in that case executed a mortgage upon its line of railroad, which is specifically described therein, and also upon "the lands, real estate, telegraph lines, railroad tracks, side tracks, bridges, and all other things of whatever kind, belonging or in any wise appertaining, or which have been or may be acquired or provided for use upon or in connection with said railroad, and also all

*

locomotives * * * and other chattels now or hereafter belonging to or appertaining to said railroad, and all property, both real and personal, of every kind and description, which shall hereafter be acquired for use on said railroad, and all the corporate rights, privileges, franchises and immunities, and all things in action, contracts, claims, and demands of the said party of the first part, whether now owned or hereafter acquired, in connection or relating to the said railroad." Here, it will be observed, the clauses relating to afteracquired property were also limited to the preceding specifically described line of railroad. Yet it was held that the lien of the mortgage covered a leasehold interest in another connecting railroad acquired by the defendant company after the execution of the mortgage.

In the mortgage now being foreclosed every "right" of the defendant company acquired after the date of the mortgage by lease from any other railroad company was by express terms included in the lien of the mortgage, provided such "right" should be "connected with or appurtenant to" the railroad therein specifically described. As already stated, the defendant company has been operating the leased railroads in connection with its own road. It has been in possession of and has been exercising the rights acquired by the leases. These rights, if not appurtenant to, are, within