satisfied that it cannot be so held. I see no consideration moving to the shippers of the under-deck cargo which could furnish an equitable ground for the imposition of increased liability on them. Where a custom exists, as in this case, to carry a particular kind of goods on deck under particular circumstances I think the shippers of under-deck cargo might be so far affected as that they could not maintain any claim for the in.. 'Creased risk resulting from such shipment. But I can' see no reason why their rights and liabilities should be otherwise affected. There will bea decree dismissing the libel, with costs.
THE BENBRACX. J POWER 11. THE BENBRACX.
D. Virginia. :tanuary 12, 1888.)
SJlIPPING-'-LUlULITY Oil' VESSEL BOR TORT-INJURY TO STEVEDORE-LATENT DlllFEC',r. " , ' . , , , i,
Qn" 01 a, of men engaged In loading ,a s)1ip was injured by falling upon !iim. The aCcident was caused by the breakage of, the hook which was used in raising the cotton and lowering it into the hold.'I;'he hook was, furnished by the ship, and on account ,of a latent Held, that the ship was not liable.
a balil of
In .Admiralty. ,Libel for damages. Nu),y for . .Harma,nsqn '&: 'Heath, for ,respondent. ,
J. The leading facts of this case are as follows: The steame,r Benbrapk came from Liverpool to Norfolk for a' cargo of cotton. She llad, as partpfher outfit, the engine,winch, tackle, and appliances to the convenient loading of bales of cotton. The tackle consisted the usualropes, puIlies, and hooks which constitute what is called, a " On arriving att.he port of Norfolk, the steam-ship contracte<;l \'Vith asteYEldore here for the- :proper loading of the cotton and stowing it on, board. , It was part of the contract that the ship should allow hl¥' l"inch, fall, etc., to be used for this work, including the hook,on which' tl;1e of. were suspended when theywere lifted from the deck 'of thestelitl1ler. The work of loading the cotton cOinmen.ced on the seventh December last, and went on withoutaceident ' day of that month, when two of the bales suspende<ito hqok, oBhe tackle, in being passed to the deck from the wharf, throughlitnopen one of them striking the lilJelant, breaking his nose, and seriously and bruising him inother respects, from he was d.isabled, and has been laid up to the. present day, (ninth 1888.) He is stiUunable to go to work, and is likely to're·
lReported by Robert M. Hughes, Esq., of the Norfolk bar.
main So for a month or more yet to come. The cause of the accident was, ,the ;breaking of the hook in the tackle on which the two bales of ,cotton were suspended while passing over the hatchway. The injured man was engaged with other laborers, at the time of the accident, in stowing away cotton on the under-deck below the hatchway. It is not in the fact of this hatchway being contended that there was uncovered. The hook which was broken as described·is brought into court,and it is plain from an inspection of it that the of breakage was a flaw which involves more than half of the fractured surface. The defect was a latent one, which was most probably such as would have eluded a close scrutiny; though we have no direct evidence on the subject. The hook had been purchased new in Liverpool; had been spliced to the tackle during the voyage to Norfolk, to be ready for use; and had been actually used by the stevedores in stowing this cargo for five days before it broke and gave way, with the unfortunate result which has been described. .c, , The diligence required of the ship in respect to this hook was that ordinary diligence which a' prudent man is bound to exercise in conducting,hrsown·business.There is no. evidence in this casetendj,ng to show the master of the was delinquent in this respect; . The accidertt,p.i!i,not frbin,',any improper;,4se of, or strain bpon,the hook, as was the case in The Mary Stewart, 5 Hughes, 314, 315. Theflaw had nat'hean dMectedbefore and was latent, and probably imperceptible. The hook had done its work for five days, and the existence of the flaw was unknown unsuspected. 'rhe laborers who were using it, and those who were near by, Itnd who had oQserved its hOok had been use for five days, did not detect or lluspect the flaw. . purchased at Liverpool in good faith, and with confidence in its freedom frqJP",4eJect. I think, therefore, that the ship is not responsible for the so injured the libelant. The makers and manof tools and mechanical implements are responsible for their so.pndn.ess; but those who purchase them in good faith, and use them in ignoran.ce of latent defects, cannot be held to guaranty allO,WElrs, equally compete'nt with themselves to judge of their quality, from them.. , I will sign a decree for the defendant ship. ,;It necessary in thisdecision to consider the question of liapilitylfthe flaw in the hook which broke had been patent and obthat case, the would have been just as apparent to thesteveaore whoeniployed the libelant as to the master of the ship. ,Thesteved,ore would have been under no necessity to use'the hook. It woulp. have been his duty discard it, and to have obtained a proper 'on,e:,His using itwastheimmediate'cause ofthe accident. A part of hiscontract with libehint'was to 'see that the latter should be safe :frofDaJI 'on his own part.'.. The privity of contract iii the case was between the stevedore arid the libelant, and the 'remedy 'qf :t1:le 'lib6.Iant was immediately against the stevedore, and not rEmiotelyagainst the ship." The Case wbtild then have been governed by what I said in the case. of The Mary
OMAHA HORSE-BY. CO. V. CABLE TRAM-WAY CO.
OMAHA HORSE-Ry. CO. V. CABLE TRAM-WAY CO. OF OMAHA.·
COURTS-FEDERAL JURISDICTION-SUPPLEMENTAL BILL.
While the federal courts have jurisdiction of actions between citizens of the same state when federal question)! are involved, and may, in such actions, determine issues otherwise triable by the state courts, their jurisdiction cannot be el[tended to other questions and issues raised by supplemental bill filed the determination of the original cause.
On demurrer to supplemental bill.
BREWElt, J. This ease is now submitted on demurrers to supplemental bill' ahd amendments thereto. A brief review of the past litigation is
important. The original bill was filed by the complainant, a corporationchai'tered 'by the legislature of the territory of Nebraska, and given ftn exclusive franchise for the building and operating of a horse-railroa<J irr'thecity' 'of Omaha for the terUl of 50 yearS. The defendant is also a corporation, organized under the laws of the state qf Nebraska, and bavhlg received,as was claimed,', pepnission from the city of Omaha, was proceeding to construct a cablE! tram-way in its The bill sought t'oenjointhe defendant from prosecuting its work, on the ground that ll1uch cable tram-way was ahihfrin,gement of the exclusive franchise given to coJhphihiant, which exchislve franchise the state of Nebraska was reby the federal constitution from interfering with in any way, directly or indirectly. Upon the hearing of the case I ruled that the complainant's exclusive ftanchise",as liinited to a mere horse-railway, and did not inclu'deall manne'rofsti'eet-railway travel, and therefore that the cable was no invasion ofits exclusive franchise. It was strenuously insisted by the defendant that, having ruled on the federalquestion against the complainant, the only proper decree was one dismissing the bill; but, under the authority of Railroad 00. v. Mississippi, 102 U. S. 135, and cases cited therein, I ruled that the existence of a federitlquestion gave to this 'court jurisdiction of the entire cause, and that it was its duty to hear' and determine all other questions existing in the case between the parties. The constitution of the state of Nebraska prohibits both the damagihg and the taking of private properly for public uses WitllOut compensation, and it seemed to me, under the facts as disclosed by the testimony, that while the complainant's exclusive franchise was not invaded, .its property rights were damaged by the building of the proposed caMe tram-way. I therefore directed that the matter of the damages to its properly be referred to a commission.. That ·commission eXllmined the 'question, and reported in favor of the compl:1iri(\,nt a certain: amount. . On exceptions to their report, and a motion to' confirm it; a second lengthyhearing was After reducing the amount allowed by the commissioners, I sustained their report, and di,. i ' . -. ,
lSee former reports of this cti8e, SO Fed. Rep. 824, and 52