<>pportunitybefore he sailed for the discharge of his duty to the shippers and to the ship as respects the storage of flour in the place most suitable for it with a cargo of cooperage. The ship was; I think, liable to the shippers for improper stowage, no matter by whom the stevedore was employed, or whosoever may have been liable per8onally. The master's mate evidently retained some control over the disposition of the cargo. Richardson v. Winsor, 3 Cliff. 404407; Sandeman v. Scurr. L. R. 2 Q. B. 86; The T. A. Goddard. 12 Fed. Rep. 174; 184. The master was bound, therefore, to avoid the particular risk of damage from stowing the bags in the hatch, and either to make provision for those bags in the proper plMe below, or' else give notice and obtain the assent of the shippers to their remaining there, or to reject the goods until properly stowed by the charterer's stevedore. The Star of Hope, 17 Wall. 651; Peek v. Larsen, L. R. 12 Eq. 378. Not having done so, I think the ship is answerable for any Ilamage arising to the bags stowed in the main hatch in excess of that happening to the similar bags stowed below, if there was anysuch excess. · The amendment of the libel asked upon the trial cannot be allowed. It introduces a new and somewhat inconsistent ground of claim, to which <>bjection is rightly made; since the evidence in reference to such a Claim has not been taken, and the witnesses for the defense are gone. .A reference may be taken to ascertain the excess ofdahtage, if any, as above indicated, and the question of costs will be reserved until the coming in of the report. .
CLAIMANTS OF THE MARY
In rePetition of LORD, Owners,
(Oircuit Oourt, D. Maine. March 7, 1887.)
8BIP-OWNERS-LIMITATION OF LIABILITy-ORIGINAL JURISDICTION.
The circuit court has not original jurisdiction of proceedings to limit the liability of ship-owners by virtue of· admiralty rule 58, which provides that all the rules and regulations for proceedings in cases where ship-owners desire the benefit of the limitation of liability "shall apply to the circuit courts of the United States, where such cases are or shall be pending in said courts upon appeal from the district courts," or otherwise. The proceedings must originate in the district court.
In Admiralty. On motion to dismiss the petition. in The collision, which was the subject of the original suit, November, 1883. The libel was filed in December, 1884,Jlnd the opinion of the district court, finding the Mary Lord solely in fault for the <:ollision, is reported in 26 Fed. Rep. 862. In June, 1886, the circuit <lourt, on appeal, affirmed the decree of the district court, and entered It
THE MARY LORD.
decree providing for judgment and executions against the principals and in the several stipulations which had been entered intoin the suit. Before executions issued, however, the respondents and petitioners filed in this suit a petition for limitation of their liability as owners of the schooner Mary Lord. ' And, upon application, the court, following the practice indicated in Norwich Co. v. Wright, 13 Wall. 104. 126, 128; The Benefactor, 103 U. S. 239, 243, 244,249, 250,-ordered a stay of execution upon the final decree in the original cause of colliRion. Libelant now moves to dismiss the petition, on the ground that the circuit court has no original jurisdiction of it. Almon A. Strout, for respondents and petitioners, owners of the schooner Mary Lord. . Edward S. Dodge, for libelant, Carson. COLT, J. The point taken by the libelant, that the circuit court has no jurisdiction over this, proceeding.except upon appeal, and that the petition should be filed in the district court, appears to me, on a review of the whole subject, to be ao,und.. That such was the law previous to the adoption of admiralty rule 58 cannot be doubted, and I do not think this rule was intended to give original jurisdiction in these cases to the circuit court, but only jurisdiction where, as the rule specifies, "such cases "-i. en cases of proceedings to limit liability-are pending, upon appeal froIlJ.the district court,. This rule was the outcome of the decision in The Benejactm, 103 U.S. 239. In that case the supreme court reversed the decision of the circuit court, and the question arose whether further proceedings fol' limiting the liability of the owners should be had in the district or the circuit court. The original proceeding was begun in the district court, appealed to the circuit court. and then to the supreme court, and the snpreme court decided that further proceedings might be had in the circuit court, and, in order to avoid all future objections as' to the ability of the circuit court to proceed, promulgated the fifty-eighth rule. It has been held that, under the statute (sections 4282-4287 , Rev. St.) conferring the right of limitation of liability of ship-owners, the d.istrict courts, as courts of admiralty, have jurisdiction; that the circuit court has not jurisdiction; and that, unless the district courts have jurisdiction, it must be inferred that congress passed a law incapable of execution. Norwich OJ. v. Wright, 13 Wall. 104, 123; PrO'l7idence & N. Y. S. S. OJ. v. Hill Manuf'g OJ., 109 U. S. 578,598, 599, 3 Sup. Ct. Rep. 379, 617. In the rules promulgated by the supreme court, vessel owners are directed to file in the proper district court a libel or petition. Admiralty Rules 54, 57. Neither the decision of the supreme court in The Benefactor nor rule 58 changes this. Indeed, it is difficult to see how original jurisdiction can be conferred on the circuit court except by act of congress. In no case has it been held that the circuit court has any original jurisdiction under this act. The Luckenback, 26 Fed. Rep. 870, is a recent case bearing on this question, and the reasoning of Judge v.31F.no.7-27
BROWN is to theeft'ect that rule 58 was not intended to determine the plaM where the 'original proceedings to limit liability should be commenced. These considerations render it unnecessary for me to express any opinion upon the other point taken by libl;llant, viz., that this petition cannot properly be filed in thi8 auit, and at this stage thereof, aside from the question of jurisdiction. PetitiQn dismissed.
THE WH. F. BABCOCK. WAI,SH .". THE WH. F. BABCOCK, Her Tackle, Apparel, etc.
(Diatrict OQurt, No D. Oalifornia. JUll,e 17, 1887.)
SBIPl'rNo-NEGLIGENOE-LIABILITV FOB PERSONA.L .!NJUBv-FELLOW-8EBVANTINDEPENDENT CONTRACTOR.
The libelant, an employe of the master stevedore, who was loading a vessel under contract, was injured by stepping into a snlall trimming hatch, ill the between-decks,while in storing cargo. The light in the betweendecks was dim, and libelant did not know of \he existence of the batch, or that it was uncovered. When the vessel was turned over to tbe master steve-' dore to be loaded, this trimmin'g hatch was covered. It was BUbsequentlyuncovered by the' stevedore's foreman. .Held, that the vell8el was not liable for
In Admiralty. . Walter G. Holmea and O'Brien k Morri8on, for Milton Andros, for claimant. " HOFFMAN, J. The libel in this case is filed to, recover damages for injuries sustained by the libelant while engaged as a stevedore in lading the cargo of the above vessel. The gang of men to which he belonged was employed in taking cases of salmon on board the vessel, and stowing them in the between-decks, forward of the after-hatch. In the direct course of the, men to the place where the cases' were to be stowed was a hatch known hatch," which had been partly uncovered. Into this thelibe]ant, who had just come down from the broad daylight on the Wharf, Bllepped his foot, and the case, escaping from his grasp, struck his arm, fracturing or otherwise injuring it. The hatch was perhapsin a somewhat unusual position,lleing amid-ships, instead of, as is more common with trimming hatches, midway between the mid-ships feet square, but it line andthe;wings. !twas about was ,divided in the center by 'shifting boards, which were attached to. the stanchions of the between-decks. The aperture left on either side of the shifting boards was 21 feet in length by 12 or 18 inches in width. It was into this aperture that the libelant put his foot.. The uSllalattempt is made tosq.ow that the accident was caused by