theservicerel)dered, and reward granted for the promptness, energy; and daring in saving, the property imperiled,-and that the courts should be liberal, but not extravagant, in salvage. 'Tlle particular 'vage service was not, in my attended With any; great danger or peril to ,the tug, nor did it incur ;anyextraordinary labor or skill, no great ,risk of life or property,and no deviation from her ordinary pursuits.The tug ,was actually employed about an hour :in getting near enough to the schooner to pass a line to her. It does, not appear how many hands she had on boardfnrtheD than the master pilot; engineer, and carpenter. ' But it does appear that the master consulted his crew, before undertakingthe:servioe, as to the wisdom and feasibility of it and their willingness tbundertake it. The value of the vessel and cargo was not large, not exceeding $1,300. The tug was doubtless subjected to some increase of peril in case ofaccident or unskillful handling in approaching the schooner in a heavy wind and:sea so near to Sand island shore; but aside from thil;J she irictirredno additional burdens or responsibilities, and, as I have said, no great ri:sk oflife and property. ,She was prosecuting on her own part the business for which she was in part designed, and was in the ordinary pursuit of her employment when called by the schooner, and she suffered no loss or injury in rendering the service. In view of all the circumstances I think $150 would be a just reward. And it is so decreed.
KENNY 'D. THE' DAGO.
Oou1't.,E. D. Louisiana. March 18, 1887.)
,BBIP·OWNERS-LI:A.BILITY OF-DEFECTIVE TACKLE-EMPLOYJll OJ' STEVEDOBB.
The Qwners of a vessel are not liable to the emplore of a stevedore, who has full charge of the unloading of the vessel, for mjury to the employe caused by defective tackle furnished by the vessel, when it is shown that the tackle had no apparent defect, and that the stevedore Wll>8 an experienced and competent one, who had the exclusive appointment of the laborers and COntrol of the work. '
Admiralty Appeal. JV. S. and Emmet D. Oraig, for libelant. E. W. Huntinrfl,on, for claimant. '
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PARDEE,J. ''rhe vessel was under charter, and, according to the general custom,'fnrnished the· rope, aJ;ld appliances for hoisting in "cil.rgo. ThechaJ,'terers employed .the' stevedore, 'and the stevedore employed the libelilIlt. There was no privity of contract between the owners of the Dago and the libelant, and at the time of the accident the
by Joseph P. Hornor, Esq., of the New Orleans bar.
hoisting· apparatus was not under the control of the officers of the ship, but was under the control of the stevedore and his men. The rope furnished by the Dago for the hoisting tackle was new, sound, and strong, large enough, and apparently fit for the, purpose intended. In this state of the case it is difficult to see how the owners of the Dago can be held liable for the injuries received by the libelant, resulting from the breaking of the rope. The master is not bound to provide the safest and best machinery. He does not warrant to his servants the sufficiency of his machinery. 2 Thomp. Neg. 982, 983. And if in this case the master was not bound, still less is. the ship which furnished the machinery to the master. "The owners of a vessel are not liable for damages occasioned by the negligence of stevedores employed for a gross sum by the consignees of the charterers in unloading the cargo." Linton v. Smith, 8 Gray,147. In that case the question is said to be whether the relation existing between the owners of the vessel and the stevedores was that of master and servant, or contractor and' contractee. The relation was held to be that of contractor and contractee, and the owners, therefore, not liable. See, also, Hilliard v. Richardson, 3 Gray, 349, in whichcaae, and in Li1tWn v. Smith, supra, the common law authorities are fully consi<lered. "The owners of a vessel are not liable to the employe of a stevedore who has full charge of the unloading of the vessel, for injnry to the employe caused by defective tackle furnished by the vessel, when it is shown that the hadI;lo apparent defect, and that the stevedore was an experienced and competent one, who had the exclusive employment of the laborers, and control of the work. The owners are not liable for any injury caused by a defe(lt:in the tackle arising from the ordinary wear and tear, unless a knowledge of such defect is brought home to them." Riley State-Line S. S. Co., 29 La. Ann. 791. This case is approved in Sweenyv. Murphy, 32 La. Ann. 628. These authorities oughlto control this case, but if we go further, and concede, as libelant contends. that the obligations of the ship to him were the same as if the actual relation had been that of master andservant, thEm ,the rule is that"itis the duty of an employer, inviting employes to use his structures and machinery, to use proper care and diliglmce to make such structures and machinery fit for use," (Whart. Neg. § 211,) and if he knows, or by the use of due care might have known, that they 'were insufficient, he fails in his duty; and still, under the evidence in this case, I am of the opinion that the libelant ought not to recover. The ship furnished, so far as foresight and inspection could determine. a good, sound, suitable rope. After several days' use. through a sudden jerk, it parted, and libelant was injured. The owners could not have foreseen nor prevented the accident; and if they are not to be held liable as insurers of their employes, nor as warrantors of the absolute safety of their machinery and appliances, then they ought not to be liable in thi8case, even if the relation between the parties was that of master and servant. I have not lost sight of the evidence of Burns, one of libelant's fellow-servants, that ,he complained to the second ,mate of the Dago that
the rope was worn out, and would break, and asked for another; but I am satisfied, from the other evidence in the case, that, if this statement at all, it was after libelant's injury, and before the second parting is of the rope, that the complaint was made. Besides, the' second mate was charged with no duty in respect of the loading of the ship. The fact that the second mate,' although examined asa witness, was not asked as to any such communioatitm, is very significant, and corroborates the view that Burns was mistaken as to the time, if not as to the conversation. The libel in this case will be dismissed, with costs.
THE ETHEL.! KIMBALL'll·. THE ETHEL.
D. Texal. January, 1887.)
ADMlRALTy-PRACTICE-ApPEAL-MoTION TO DISMISS.
On motion to dismiss.
PARDEE,J. This case has been submitted to me by the proctors for the libelant and appellee on a motion to dismiss the appeal and affir!Jl the judgment of the district court, on the gro1;1nds that the transcript shows no evid.ence nor agreed statement of facts nor assignment of errors. That there was no evidence to warrant the judgment of the district court may be the reason underlying the. appeal. Admiralty cases, on appeal to the circuit court, are. tried de novo, on the original or amended pleadings, and on such evidence as may be properly offered, whether the same was offered in the district court or not. The causes assigned are good, but the transcript is not properly made up and certified, and the appeal might be dismissed for that reason; but as the record of the cpse shows a general confusion in the minds of all parties, and as I cannot say the defective transcript is imputable solely to.the appellant, I think it will accord mOre with justice if an order is entered denying the motion to dismiss the appeal, and to direct the appellant to procure and file in the circuit court by the first day of the next term a proper transcript, duly made up and certified according to the. fifty-second admiralty rule, as adopted by the supreme court of the United States: otherwise his appeal to stand dismissed. The clerk will enter such order, and notify proctors.
by Joseph P. Hornor, Esq., of the New Orleans