trade-mark is open to the objection that they have adopted a name which is descriptive of natural mineral waters that others had a prior right to sell by the same name, and Il).ore especially those from the springs of Aachen, the waters of which had been introduced totha public, sold, and became well known by tl:l;e name of "Kaiserqnelle" or" Kaiserbrunnen." The municipality of Aachen has certainly the prior right to use, as a trade-mark, a name which, when applied to mineral waters, signifies the waters of its own spring,-the Kaiser spring of Aaehen. Congress & Empire Spring Co. v. High Rock Congress Spring Co., 45 N. Y. 291. To entitle the name to equitable protection as a trade-mark, the right to its use must be exclusive, and not one which others can employ with as much truth as those who adopt it. funal Co. v. Olark, 13 Wall. 311. As against the complainants, it would clearly be legitimate for the owners of any of the Kaiserquelle waters of Europe to sell them in this country, or in England. by the name of the Kaiser spring waters, or to sell them anywhere by a name which in any language would signify to tho purchaser the true name of the article, and be descriptive of its origin and ownership. Kaiser spring waters and Kaiser Water, when used to describe natural mineral waters, mean the same thing; and the essential identity between the name adopted by the complainants, and that which others had a prior right to use, is not changed by omitting the word "spring." That word would be inevitably associated by a purchaser of the article with the rest of the name. If the complainants had adopted as their trade-mark the compound word" Kaiser water, Schwalhelm," it is quite likely they would be entitled to protection. As it is, the bill must be dismissed.
THE DAYLESFORD.1 LE BARON,
(DiBtriet Oourt, B. D. Alabama. March 14,1887.)
NEGLIGENCE-PERSONAL INJUlUES-LIABILITY 01' VESSEL FOR INSECURE PROACHES-CONTRIBUTORY NEGLIGENCE.
In cases of maritime tort, courts of admiralty are not bound by rules of the common and civil law governing cases of contributory negligence, and in suits for personal injuries contributory negligence on the part of the libelant is not a bar to his recovery, and will not cause the denIal of relief to one whose negligence may have contributed to his injury.1I Where one has the right to use a ladder as a means of descent from the ship to the wharf, the vessel owes him a duty to see that it is properly secured and, if personal injuries are caused by the negligence of the ship's crew this regard. the vessel will be liable therefor.
JReported by Theodore M.Etting, Esq., oithe Philadelphia bar. suits admiralty for injuries, negligence. on the part of the hbelant IS not a bar to bls recovery. The admIralty rule, apportIOning damages! when both parties! are at fault, extends to all cases of maritime tort occasioned by con. curring negligence. The Max Morris, 28 Fed. Rep. 881, and note.
. Hannu Taylor; for libelant. Gregcrry L. tt- H. T. Smith, for respondent.
TOUUIlIN, J. This action is brought to recover damages for personal injuries caused by the falling of a ladder on which the libelant was descending from the ship to the wharf, at which the ship was lying, in the port of Mobile. The undisputed facts are as follows: The libelant, who was a custom-house officer, and on board of the ship Wylo, along-side of the Daylesford, was called by another custom-house officer, who was engaged in the inspection of the dutiable cargo of the Daylesford, (the greater part of which had already been discharged onto the wharf,) to come to. his relief, with the request that he would attend to his duties for him duringhis temporary but necessary absence. The libelant, compliance.with this request, went on board the Daylesford. The ladder of the vessel, bywhich the libelantdescehded, had one end resting on the rail on the after-end of the ship,and,the other end on the wharf. Several persons had passed up and down this ladder immediately before its use by the libelant; The ladder fell when the libelant was part way down on it, causing him injuries of a serious character. The ladder had been out for about 10 minutes before the happening of the accident, aud had· been left dUring this time unbolted and unlashed. It is conceded that it was customary to lash and bolt it whenever it was put out, and that a failure to so secure it made a descent. upon it unsafe. There isa conflict in the ev.idence as to who putout the ladder. The evidence on the part of the libelant tends to show that it was done by some of the ship's crew. One witness, a stevedore, testified that he was on the wharf. nearthe stern of the ship, and there heard the second mate order two sailors of the ship's crew to put out the ladder, and he saw them do it, and leave it unlashed. The evidence on the part of the ship tends to show that two stevedores on board of the ship put it out. One witness, the second officer bf the ship·, telltifies that hewas in the after-part ofthe ship, and in charge there; that he had two seaman with him; that neither of them put out the ladqer, bu·t that he saw some shoremen put it out. He says he stood and looked at them, and did not stop them or interfere with them; that the crew were then engaged in attending to the ship. The evidence shows that the master was in the cabin; the first officer forward; the carpenter at the forecastle-head; one seaman. at the forward end ofthe ship; one on the wharf, at the forward end6fthe vessel, attending to the forward line, and another one of the crew on the wharf, at the after-end of the ship. The two latter were attending to make the shipfast. None of the officers or 9rew who have testified in the case saw the ladder put out, or knew anything about it until after the accident, except the second officer, who says he saw the shoremen put it out. It does not appear that the two seamen who were aft with the. second officer have testified in the case. If they have, they say nothing. about seeing the ladder put out, orknowing anything about it. The other members of the crew who have testified say they did not put it out, or see it
done. Tliemaster testifies it was contrary to orders for a stranger to put out the ladder, and that it would not be permitted. The defense in the case is, (1) that the libelant was a stranger to the ship,to w1.lom it owed no duty, and that, even if the ship's crew were negligent in putting out the ladder. and in allowing it to remain unlashed, .libelant was not in a position to, complain about it; (2) that even if the ship and her crew were negligent ill putting out the ladder, and allowing it to remain out unlashed, the libelant contributed directly to his injury, by negligently going down the ladder when he could have known its condition by the use of ordinary diligence; and (3) that the ladder was not put out by the ship's crew, but by the stevedores, and that the ship is not liable for any injury resulting therefrom. While, from the testimony, it is doubtful whether or not libelant was on board the ship in tlte performance of his duties as a custom-house officer, the evidence leaves no room to contend that he was a trespasser or intruder there. If he was a mere visitor, the ship's crew were under obligations, not only to abstain from doing him-any wanton or willful injury, but also not to put out the ladder carelessly, or allow it to be so put out, or to permit it to remain in a dangerous condition at a time when its use might reasonably be expected, and when personal injuries were likely to occur therefrom. 1 Thomp. Neg. 313, 314. Railroad companies are conceded to be liable for injuries caused by defectiva means of approach to and .departure from their depots. 2 Redf. Ry. Cas. 525. The liability of a vessel is of a like character, and is applicable to all wbo may ordinarily be called upon to trust to the sufficiency of the ways provided for ingress and egress. Whether or not the libelant was on board of the ship in the performance of his duties as a custom-house officer, or as a mere vistor, he was there by reason of the fact that he was a custom-house officer, whose duties were connected with the ship's cargo, which was being discharged onto the wharf. He was lawfully there. My opinion is therefore that the libelant was in such a position as to hold the ship liable for his injuries if caused by the negligence of the crew. Was the libelant guilty of contributory negligence? He had nothing to do with putting out the ladder, nor is there any evidence that he saw it put out. The evidence is: He saw the ladder out. He saw several persons passover it before he got on it. He had no knowledge of the fact that the ladder was unlashed and unbolted, and he knew it was customary to lash or bolt it. He had been boarding for about seven years and was familiar with the practice of securing the ship's ladder. Nothing occurred to call libelant's attention to the condition of the ladder on this occasion. Had he not a right to assume that its condition was such that he might safely walk down it? Did not the fact that the ladder was out from tlie vessel to the'wharf invite the belief that it was put out for persons to pass down on? Did not the fact that it was customary to properly secure the ladder, when it was put out for persons to pass over on, justify the belief that it was secure and safe on this occasion? He did not know it was liable to fall, for he did not know it was un-
lashed. Did he have any reason to suspect it? He knew the universal practice was to lash or bolt it, and he had no reason to anticipate it was not done at this time. Was there, then, any want of ordinary care or attention on his part, or did he act as a man of ordinary prudence would have done under the same .circumstances ? It was said in the case of Thompson v. Duncan, 76 Ala. 338: "If there be danger in standing an open side door in a car when the train is standing or in motion, it is not an unreasonable presumption that sons of ordinary prudence are aware of it." Thompson, being presumed to be a man· of ordinary prudence, was aware that it was dangerous to stand near an open side door in a car when the train is, starting, and, knowing that the door was open, he stood by it and was injured. The court held" there was some evidence of contributory negligence." 'Let us apply this principle to the case at bar.. If there be danger in going down from the ship to the wharf on a ship's ladder; which is not lashed, it is a reasonable presumption that libelant, if he was a person of ordinary prudence, was aware of it j and if he knew that the ladder was unlashed, and then went on it, there would have been evidence of conwould have been in tributory negligence. The contributory the act of going on the ladder with the knowledge that it was unlashed. My judgment is there was no contributory negligence, or want of ary care and attention, in omitting to see if the ladder was lashed. But it has been frequently held that in cases of marine tort courts of admiralty are not bound by the commdnand civil law rules governing cases of contributory negligence; and, in suits in admiralty for personal injuries, contributory negligence on the part of the libelant is not a bar to his recovery, and will not cause the denial of relief to one whose negligence may have contributed to his injury. The Max Morris, 28 Fed. Rep. 881 j The Wandere1·, 20 Fed. Rep. 140 j The Explorer, Id. 135. I will further consider the inquiry whether the ship, which is represented by the crew, became charged with any duty towards the libelant in respect to the putting out of the ladder that caused the injury in question. It is conceded that, when the ladder is put out, it is dangerous to life, unless properly secured 'by lashing or bolting, and it is undisputed that on the occasion in question it was neither lashed nor bolted. From the moment it was put out it was a dangerous struoture, placed where men were expected to go on it; and calculated at any moment to jnfiict great bodily harm. Death 01 great bodily harm of some kind was the natural and almost inevitable consequence of the condition of the ladder as it was at the time it fell. If the libelant had the right to go on it, the ship owed him a duty to see that it was properly secured. See authorities first above cited, 4 Abb. U. S. Dig. tit. "Negligence." It cannot be denied that the libelant had a right to go on the ladder. Now, was the duty of the ship in regard to it properly performed? In any aspect of the case, as shown by the evidence, it appears to me that there was negligence on the part of the ship's crew. If, as testified to by the stevedore, Beverly, two of the crew, under the orders of the second mate, put out the ladder, and did not lash it, or otherwise properly se-
cure it, and allowed it to remain so for 10 minutes, and until the accident happened, there was· gross negligence on the part of the crew; or if, as testified to by the second officer, Roberts, two shoremen, who were on board the vessel, put out the ladder, and he stood and looked at them and did not stop them, or interfere to prevent them, (as it was his duty to do under the rules of the vessel,) or, permitting them to put the ladder out, omitted to see that it was properly secured, or to have it done, then he failed to properly perform his duty, and the ship would be responsible for any injury resulting therefrom. .He was negligent. The ship is liable for negligence of the crew. Sherlock v. AUifng, 93 U.S. 108; 1 Kinney, Dig. p. 26, § 82. I therefore conclude that this is a case where the damage sued for was caused by the negligence of the ship's crew, and I must adjudge the vessel herself liable for such damage, and she is accordingly condemned to pay the same; but, the amount of damage not being shown, a reference must be had to ascertain it.
THE DICl'ATOR. 1 .
'/I. ASHLEY PHOSPHATE
ana others, Agents,etc.,
April 2, 1887.)
A consignee cannot force upon a vessel a substituted mode of discharge, involving delay or increased cost.
If the evidence fails to disclose any consideration for the change, and if the substituted mode of discharge was wholly for the benefit of the consignee, and a detriment to the vessel, an agreement on the part of the latter to the substituted mode of discharge is not to be presumed merely from the circumstance that it was not objected to at the time. If a vessel be detained in the stream until her lay-days have begun, and if the consignee then begins her discharge by lighters. the vessel has a right to presume that the delay incident to this mode of discharge will be borne by the consignee, and a. failure to object thereto is not to be taken as a waiver of any rights secured by contract. When, by contract, the right to select a wharf is ve.sted in the consignee, "provided that the depth of water be guarantied," the wharf selected must be one to which the vessel can go without having recourse to lighterage.
BAME-FAILURE TO OBJECT-WAIVER OF RIGHTS.
SAME-SELECTION OF WHARF.
If by contract the wharf is to be selected "immediately on arrival, " the consignee is liable for any delay occurring by reason of his failure to select a suitable wharf with promptness. . .
In Admiralty. Demurrage. Libel in personam. Bryan &: Bryan, for libelants.
JReported by' Theodore M. Etting, Esq., of the Philadelphia bar.