THE DEVON9HIRE. '
the bills of lading referred to therein were signed ahd the flour received for shipment. G. M. Stewart and Paul Bakewell, for plaintiff. Garland et Pollard, for defendants. TREAT, D. J. The purpose of these demurrers is to call for an interpretation of the bills of lading, and the liabilities of the respective parties thereunder. Possibly the question presented may not, for technical reasons, fully arise on the demurrers, yet as the defend· ants stand on the contracts exhibited and count thereon" the court states that the contract as executed, despite some inconsistent terms therein printed, and, despite the designation by the agent that he signed the same, "agent severally, but not jointly," bind eaeb and all of the parties for the safe delivery at the place of destination of the property shipped. Such it is held is· the true construction, in the light of the better authorities, now put on contracts like these here presented. See Railroad Co. v. Mills, 22 Wall. 594; Hutch. Carr. §§ 146, 152; Bank, etc., v. Adams Ex. Co. 98 U. S. 174; Myrick v. Michigan Cent. R. Co. 7 Rep. 229; Ry. 00. v. Pratt, 22 Wall. 128, 130; Lawson, Cont. Carr. 848. See, also, note to Snider v. Expreu Co. 4 Cent. Law. J. 179, 180, 181; Hooper v. Wells, 5 Am. Law Reg. (N. S.) 16, with notes by Judge Redfield; 2 Am. Law Rev. 426. Reference is made by defendants to Citizens' Ins. 00. v. Kountz, 10 FED. REP. 768, which it is supposed presents a different view. So far as the statute of Missouri (Rev. St. 1879, p. 95) mayor may not affect the rights of parties under circumstances like these here presented, it must suffice to state that it is in aC'Cord with the general doctrine here announced. The demurrers are sustained.
(Oircuit Oourl, D. Oregon. July 28, 1882.,
BERTHS ON STEAM-VESSELS.
The provisions of section 2 of the act of March 8, 1855, (10 St. 716; section 4255, Rev. St. ,) relating to the construction and occupation of berths on vessels carrying passengers from .foreign ports to the United States, are not deemed applicable to steam-vessels. 2.
RE-ENACTMENT 01' STATUTE-FORMER CONSTRUCTION 01' IT.
Where a statute has received a ju!licial construction and is afterwards re-.en. acted by the legislature of the same or another country, it is presumed to han been passed as construed.
In Admiralty. Jame' F. Watson, for the United States. John W. Whalley, .for elaimants. DEADY, D. J. This is a suit in rem brought by the United States to enforce a lien against the British steam-ship Devonshire for $4,. ] 30 of penalties alleged to have been incurred by the master and owners by violation of section 2 of the act of March 3, 1855, (10 St. ,716; section 4255 of the Rev. St.,) entitled "An act to regulate the carriage of passengers in steam-ships and other vessels." The libel alleges that on June 12, 1882, the said steam-ship, at the port of Hong Kong, China, took on board 826 passengers, and on July 7, 1882, brought the same to the port of Astoria, and WIthin the j<urisdiction of the United States and this court; that the berths used by the passengers on said voyage were not constructed parallel with the sides of the vessel or separated by partitions, or two feet in width, as required by said section 4255 of the Revised Statutes, and were occupied by more than one passenger, contrary thereto, whereby said master and owner of said steam-ship, severally, became liable to pay to the United States a penalty of nve dollars for each of, said passengers, and that the libelant has a lien upon said steam-ship for the amount thereof. The claimants except to the libel, and allege that the Devonshire is a steam-ship, and the passengers in question were steerage passengers, and therefore said section 4255 of the Revised Statutes upon which the libel is founded, does not apply to her, and pray that the libel may be dismissed. The first section of this act (sections 4252-3-4 of the Rev. St.) provides that "no master of any vessel," foreign or domestic, shall take on at any foreign port in a territory not contiguous to the United States, with intent to bring thereto, a greater number of passengers than in the proportion of one to every two tons of said vessel, and that "the spaces appropriated for the use of said passengers, and which shall not be occupied by stores or other goods, not the personal baggage of such passengers," shall be in a certain specified proportion to the whole number of passengers allotted to such space. The second section (section 4255 of the Revised Statntes) provides that "no such vessel shall have mote than two tiers of berths;" and prescribes "the interval between the lowest part thereof and the deck or platform;" and that "the berths shall be well constructed, parallel with the sides of the vessel, and separated from each other by partiHons;" and be of a certain length and width, and each only occn-
pied by one passenger; with a provision for double berths to be occupied by more than one person under certain circumstances and restrictions. For any violation of this section it is declared that the master of the vessel and the owners thereof shall severally be liable to a penalty of five dollars for each passenger on board of such vessel on such voyage, to be recovered by the United States in any port when such vessel may arrive or depart. The fifteenth sectIon (section 4270 of the Revised Statutes) declares that "the amount of the several penalties imposed by the' foregoing provisions regulating the carriage of passengers in merchant vessels shall be liens on the vessel violating those provisions; and such vessels shall be libeled therefor in any district or circuit court of the United States where such vessel shall arrive," Each of these sections uses the word "vessel" without in any way limiting its application to a Bail-vessel. Standing alone and without a steam as well qualification, they would include in their as a sail-vesset A vessel is none the less one on account of the manner,of her propulsion, whether by oars, sails, or steam; and the Revised Statutes (section 3) declare that the term "includes every description of water.craft, or other artificial contrivance used or capa. ble of being used as a means of transportation on water." But the tenth section of the act (section 4264, Rev. St.; Act Feb. 27, 1877; 19 St. 250) provides that "the provisions, requisitions, penalties, and liens of this act relating to the space in vessels appropriated to the use of passengers are hereby extended and made applicable to all places appropriated to the use of steerage passengers ili vessels propelled in whole or in part by steam, and navigating from, to, and between the ports, and in manner as in this act named, and to such vessels and the masters thereof;" and repeals so much of the steam-boat aet of August 30,1850, (10 St. 61,) as conflicts therewith; and further provides that "the space appropriated to the use of steerage passengers" on steam-vessels shall be "subject to the supervision and inspection of the collector of customs," as provided in section 9 of the act, in the case of other vessels. In January, 1868, this statute came before the district court for the southern district of New York for construction, in the case of The Steamship Mahattan 2 Ben. 88, which was libeled on account of alleged to have been incurred by' the master and owner in the violation of this same section 2. Judge Blatchford held that the section was not applicable to steamso construed ships, upon the familiar rule that the statute must
to give effeot' to avery siguificantolau'se, sentenoe, or word in it, (Smith, Compo § 575;) and, if the provisions of the seoond secextended to steam-vessels proprio vigore, notwithstanding the tenth section, then the provisions of the first section do also, and the tenth is altogether useless aud nugatory. This decision was affirmed on appeal to .the oirouit oourt, and the judge who made it has since been placed on the supreme benoh. No other decision upon the act has been cited or come to my knowledge. In the revision of the statutes this section 10 was omitted, and the whole act left applicable to steam-vessels. But afterwards it was reenacted as an amend.tnent to section 4264 of the Revised Statutes, by the act of February 27, 1877, (19 St. 250,) "to perfect the revision of the statutes of the United States" etc. By reason of this amendment the statute' now stands as when the second section was construed, in the case of The Manhattan not to be applioable to steam-vessels, with this additional and material circumstanoe in favor of suoh construction, namely: that congress, by the deliberate replacement of seotion 10, have not only declared it shall have effect as a part of the but presumably that it shall have such effect according to the then known oonstruction given to it in that case. Pennock V. Dialogue, 2 Pet. 18; Kirkpatrick v. GibBon'a Ex'"a, 2 Brook. 391; Com. v. Hartnett, 3 Gray, 451; Oathcart v. Robinson, 5 Pet. 279. The argument of the district attorney in favor of the libel is that the provisions in section 2 are regulations relating to the "space" appropriated to passengers, and therefore made applicable to steamvessels by the operation of section 10, because by them the "space" between each berth and that appropriated to each passenger therein is prescribed. And when we oonsider that the evils intended to be prevented by seotion 2 are 80S likely to exist in the case of' steerage passengers carried in steam-ships as those against whioh section 1 is intended to guard, it is not without force. There is quite as much need that 8 steerage passenger shall have privacy provided in section 2 when he lies down to the "space" sleep, or is prostrated with sickness, as that he shall have the general moving andqreathiug "space" between decks provided in section 1. section 2, still, that is And although the word "space" is not used the subject of it, and. its division and appropriation among the passengers. p1l,1'Pose of berths, is thereby carefully and JUinutely regulated. But, in the.light ,of the decision in the oase of The Manhattan,and particularly the unllualified re-enactment by congress of, section 10. in
1877, after the construction there given to it in 1868, I do not feel at liberty to hold otherwise. The exception is sustained and the libel dismissed. And it may not be amiss to remark that this conclusion is not in conflict with what may be called the justice of the case. These Chinese immigrants are all males, and generally adults, and there is very little need, in their case, in the division of berths as required by said section 2. This regulation was made to meet the case of European immigrant 5, consisting of both sexes, married and unmarried. It is not pretended that any particular harm or inconvenience has resulted from the want of a division of berths in this case, and the enforcement of the law, even if it were applicable, would be more for the punishment of the. shipper than for the protection of the immigrant.
D.MaI'aMU8etts. August 1,1882.)
NEGLIGENCE-PERSONAL INJURy-FAULT OIl' FELLOW-SERVANT.
Where a workman upon a vessel was injured.by falling through an open hatchway negligently left open by the stevedore having charge of the discharging and loading of the vessel, and the actual negligence that caused the accident was the removal of a lamp by a fellow-workman employed at the same job with the libelant, the common employer is not liable for the injury.
E. L. Barney and E. J. Hadley, for libelant, appellant. Ball, Storey t1;. Towers, for steam-ship. , ' LOWELL, C. J. The libelant was seriously injured by falling down the main hatchway of the third deck of the steam-Ship Victoria, on his return from supper, just after he had reached that deck by a ladder placed in a smaller hatchway or scuttle, which alleged ,to have been so dangerously near the main hatch that it was negligence to leave that hatch open. Whether it is usual to close the hatches on the third deck after the day's work is done is a disputed question in the case. The preponderance of the evidence is that it is not usual; and see Dwyer v. Nat. Steam-ship 00.17 Blatchf. 472. The libelant working during the day not far from the open main hatch, had and, had been up and down this ladder once or twice, and had no to suppose that the had been cMsed. If it was negligently left open, the negligence. wa" that of, the, stevedore having
charge of discharging and loading the ship, which cannot be attributed to the owners. DW./jer v. Nat. Steam-ship Co. 8upra; The Germania, 9 Ben. 356. The actual negligence, however, was in removing a lamp which had hung near the foot of the ladder, and not replacing it. Rose testifies that he came down through the scuttle a short time before the plaintiff came back, found that the- lamp had gone out, relighted it, and carried it aft. If that lamp had remained where it had been during the day, and had been lighted, it seems impossible that the accident should have happened; for the main hatch was forward of the scuttle, and the libelant's place of work was aft of the scuttle, and it must have been through some confusion caused by the want of light that he took the direction he did. This fault was committed byafellow-workman who was employed. on the very same job with the libelant, and the law is too well settled to be changed, ex.cepting by congress or the supreme court, that the common employer is not liable for an injury occurring to a workman under such circumstances. For these reasons I have felt bound to affirm the decree below. In consideration of the great hardship to the libelant, I suppose costs would not be asked against him from 80 court of admiralty.. Decree affirmed, without costs.
(Oif'ouit Court, E. D. PennsyZvania.
ADMIRALTY-COLLISION-BURDEN OF PROOF ON LIBELANT.
The libelant must show that the vessels were approaching in the way be describes.
Libel by the master of Cross Creek Barge No. 5 against ,the tug Dr. John Wolverton, to ;recover damages for So collision. testimony disclosed the following facts:
The Wolverton, having the barge Atlanta in tow astern by a hawser, started from Roberl's stores, Brooklyn, bound for a dock in the North river. When near the Battery she met the tug Packer, with libelant's barge lashed to her port side, coming up the East river, after rounding the Battery. The Packer blew two whistles, indicating that she wished to go inside, or on the New York side of the Wolverton. To this the Wolverton made noreply,and immediately thereafter the libelant's barge struck the Atlanta, damaging
Iflleported b:r Frank P. Prichardo Esq., or the PhUadelpb1a bar.