THE LIZZIE WILLIAHB.
tell whether the steamers were end on, or nearly end on, or whether they were passing or crossing, or at what rate of speed the Rona was going. '" * * If the Ava, when she first saw the white light of the Rona, almost immediately before she saw the green light, had known what were the real position and bearing of that vessel, it certainly would have been a wrong maneuver to put her helm hard a-port. If it be said, on the part of the Ava, that at the time the Rona was nearly enveloped in her own smoke. the answer is that if, from the first, the Ava had slacked her course until she knew what the real position of the Rona was, she need not have been in a pmlition , of having to make any maneuver in ignorance of the real state of things. '" * * After considering the whole of the evidence attentively, their lordships have arrived at the conclusion that the Ava was in fault in not slackening her speed, and waiting to ascertain, before she ported her helm, what was the real position of the Rona."
See The Oontinental, 14 Wall. 845; The Louisiana, 21 How. 1, 5.6. 3. If. the Ping-On was in fault in porting her helm before ascertaining the position of the Condor. she was still more in fault in continuing to port after the Condor had announced that she was starhoarding, and especially as she did not know what lights she presented to the Condor. and whether the latter might not be right in starboarding her helm.
SEAMEl'i"B WAGES-FISHING VOYAGE-ATTACHMENT.
The wages of a seaman cannot be attached by trustee process before the voyage on which they are earned is terminated.
Libel In Rem for Wages.
J. M. Browne, for libellant. Brown ft Swett. for claimant.
NELSON, D. J. The libellant. Lawrence Deloroy, alleReB that on the eighth of June. 1881. at Wellfleet, in this district, he shipped in the schooner Lizzie Williams, on her then destined fishing voyage to such waters as might be determined upon by her master. at a lay of one-half line; that the schooner proceeded upon her fishing voyage; that he continued on board as a seaman and fisherman. agreeably to hiB fishing contract, until about the twentieth day of October, 1881; that on the voyage a large quantity of fish was taken and has since been sold, and his share of the proceeds of the sale is $75; arid tl,at he has demanded payment of his share and it has been refused.
Albert H. Harding, of Wellfleet, master and part owner of the schooner, appeared as claimant, and filed an answer in which he admitted that the libellant shipped on board the Lizzie Williams at the time and place set out in the libel, and thereafter sailed in the schooner on a fishing voyage until he left her, on the twentieth of October, 1881; that the libellant shipped upon the half-line lay, whereby his compensation depended upon the profits or result of the voyage; and that at the time the libellant left the schooner his share of the profits of the voyage remaining unpaid was $84. The answer further set forth that before the voyage was finished, and before the libellant had made demand upon the claimant, and before the filing of the libel, to-wit, on the seventeenth day of October, 1881, the funds of the libellant in the hands of the claimant were attached by the service upon him of a trustee writ in the suit of one Washington F. Pierce against the libellant in an action of contract, returnable before a trial justice of the county of Barnstable; that service of the writ was also made upon the libellant; that the suit had been entered in court, and was pending, and both the libellant and the claimant had appeared and filed answers; and that the libellant, before filing his libel, knew that the claimant had been served with the trustee writ. A copy of the trustee writ is annexed to the answer. The claimant relied upon the pendency of the trustee suit as a defence to the libel. It is not necessary for the decision of this case to consider whether a seaman's lien on the vessel for wages earned on a fishing voyage, or his right to sus for them in the admiralty, is lost or suspended by an attachment of his wages by trustee process in a court of common law; for, assuming that wages SQ earned are not exempt from attach· ment, it is still very clear that the libellant's wages cannot be held by the trustee process set up in the answer. It is the settled law of Massachusetts that the wages of a seaman cannot be attached by trustee process before the voyage on which they are earned is termi· nated. ' Until then th(lY remain uncertain and contingent, and it is only .a that is ,due absolutely and without depending on any contingency, that by the law of Massachusetts is attachable in this form.,· M.ass. Pub. St. c. 183, § 34; Wentworth v. Whittemore, 1 Mass. 471; Taber v. Nye, 12 Pick. 105; 2 Dane, Abr. 463 ; Cushing, Trustee Process, 38. As-the. trustee writ .was served before the voyage was finished, the wages du,e the libell.ant when the libel was filed .werev.ot covered by the attachment in the trustee suit.. for the. libellant for $84 and costs.
NOTES OF CURRENT DECISIONS
UNITED STATES SUPREME COURT.
Negligence-Exemption of Master for Injuries by Servant. HOUGH 'V. TEXAS & PACIFIC It. CO. 9 Amer. L. Rec. 93. This was an action brought by the widow of deceased on her own behalf and as next friend of the son of deceased, to recover damages, compensatory and ex" emplary, on account of the death of the and father of plaintiffs; through the negligence of the servants and employes of the defendant. The case was taken up on error to the circuit court of the United States for the western district of Texas, and was, decided in August, 1880. Mr. Justice Harlan delivered the opinion of the coprt reversing the judgment. 'To the rule exempting the master from liability to ona servant for injury caused by a fellow-servant, there are numerous well-defined exceptions; one of which arises from the obligation of the master, whether a natural person or a corporation, not to expose the servant, when conducting the master's business,'to perils or hazards against which he may be guarded by proper diligence upon the part of the master. To that end the master, whether a natural person or a corporation, although not to be held as gUarantying, the absolute safety or perfection of machinery or other apparatus provided for the servant, is bound to observe all the care which the exigencies of the situation reasonably rlr quire, in furnishing instrumentalities adeqnatelysafe for use; Those, at least, in the organization of a railroadcorporatiou'who are invested with controltheir'negliling or Iluperior duty in that regard, represent its gence, from which injury results, is the negligence of ,the corporation. if a thereof to servant, haVing a knowledge of a defect in machinery, gives the proper officer, and is promised that such defect shalibe remedied, hissurr, sequent use of the machinery, in the belief, well grounded, that it' wmbe put in proper condition within a reasonable time, does not necessarily, or as a matter of law. make him guilty of cQutribntory negligence. It is forthejury to say whether he was in the exercise of !iue care in relying upousuch promise,and in using the machinery after knowledge of its defectiveor condition. The burden of proof in such a case is upon the company to ;1'i'Ow' contributory negligence. ' , 'fhe cases cited in the opinion were: :Farwellv. Boston '& Worces.ter R. Co. 4 Mete. 49; Railroad Co. v. Fort, 17 Wall. 557; Ford v. Fitchburg R. Co.