cess, with interest from December 24, 1887, the date of payment. The disbursements for the arrest and sale of the ore amount to $409.87. From this znust be deducted, however, $24 for six days at the rate of $4 per day, part of the item of $120 paid out of the fund for the use of the canal-boat. The libelants having discharged the are into the lighter at the claimants' request, the charge for the use of the boat until the freight was tendered on the 10th was a legal charge against the are; and, if paid by the libelants, it would be added to their lien for freight. Brittan v. Barnaby, supra. Being paid from the fund, it is paid by Mr. Marvel, to whom it is properly chargeable. This, with $2.40 interest included in that payment, leaves $383.47 to be taxed for these items in favor of the claimant in the original libel, besides any other taxable disbursements. . :path libels are dismissed, with costs. Decrees may be entered all above.
. ANDERSON fl. THE
OourtS. 1J.Louiaiana. February 15; 1889.)
SmpPING-Lu.BILITYOF VESSEL FOR
Where.a;steam-ship is given the key-berth in a Wharf previously occupied by another, and the latter is moored outside, with no means of communication . with the what! other than across the deck of the innervessel, negligence in permitting the deck of the inner vessel to be:in a condition unsafe for passing over it to the outside vessel is a marin"! tort, within thejurilldiction of the admiralty courts. . The hatchway of a fruit vessel occupying the key-berth a wharf, and havJDganother !vessel moored outside, was open in the night. according to custom. but had a coaming of about 12 inches, and was ligllted by a lamp from theniast at one end. The deck was well lighted by electric lights on shore, and had across it from the gangway a clear passage way of I) feet, over which was a lamp. Libelant. While intoxicated. and attempting to cross the deck to the outside vllssel, to which he belonged. fell thehllotchway. and was injured. Held, that he was g'uilty of contributory negligence.
Admiralty. Libel f(ir damages. On appealfroln district court. Libel by Peter Andersori against the steam-ship R Ward, Jr., for for tiegligence.' Decree for claimant, and libelant appeals. H. 1I. Brj/anand A. C. LeWis, for appellant. J; W.Giirtey, Jr.., for ..
·. . On the 16th day of Mav, 1887, the steam-ship E. B. Ward" Jr.,'loaded with the port of New Orleans; and theJrui,t whar(li,t tl1efoqtof Calliope street. before, Qccppied by Marmion, also engaged inthe being moved out, the Ward was given the and the Marmion moored just outside and to the Ward.
ANJ)ERSON ". THE E.B. WARD,.m.
Under these circumstances, the only method of passing from the steamship Marmion to the wbarf was across the deck of the steam-ship Ward. The unloading of the Ward was commenced, and it was followed up until about half after 10 o'clock at night, when three-quarters of the cargo were unloaded, and the workmen quit for the day. The libelant, a mariner on board the Marmion, with five companions, left the Marmion about 6 or 7 o'clock, and went ashore, across the Ward. He returned with one Carperson, about 11 o'clock at night. Carperson climbed up on the Ward, went across in safety, and without. trouble. The libelant, following him, fell into an open hatchway, and received serious injuries. He was taken up unconscious, and carried to the Charity hospital, where, after treatment about eight days, he was discharged. He brings a libel against the steam-ship Ward to recover damages for his injuries, which he charges were solely due to the gross and culpable negligence, and want of care, on the part of the officers and crew of said steam-ship Ward, in that they left open the hatchway, and had no guard-light, or any sign or indication that the said hatchway was open; and he alleges the night was dark, and it was impossible for any one)o know that the hatchway was open. To this libel the claimants filed. 3,n exception to. the jurisdiction of the court, on the ground that the libel setforth no admiralty or maritime cause of action; that libelant had no COl,ltract or connection with the said vessel of any nature whatever.; that the alleged accidentocourred in port, and not at any place, time, or in any fIllinner which cOllld give jurisdiction in admiralty to hear and detenuineany claim made in <;onsequence 'or growing out of the alleged accident. This exception was overruled by the, district court,and thereupon the claimant answered, denying allnegligence,-alleging that the proper and sufficientlighfs were kept on the Ward, showing this open hatch; .that the hatchway was 'plainly visible, and there was ample room tp pass over the vessel withOl:\t obstruction; and that all usual and necessary precautions were taJi:en by the officers and crew of the said steamer ;E. B.. Ward, Jr. The answer also alleged carelessness and reckless behavior on the part of tbeJibelant, and reiterated the same plea to the jurisdiction as contained in the '. '. ' ,overruled exception, The claimant's argument on the exception is that, as the Ward was moored to the wharf, and the Marmion moored to theWard ol:\tside, alld that, as there were no bl:\siness relations between the Marmion and the Ward, that, as to the officers and crew of the Marmion, the Ward ,was a mere extension of the wharf, and that no maritime obligations existed on the part of the Ward to furnish safe passage to the crew of the Marmion between that ship and the shore. The case is very similar to that of Leather8 v. Bleasing, 105 U. S. 626, where it was held: "Jurisdiction in admiralty is. not ousted by the fact that when the wrong was done on thE.l vessel by the of her master she had completed her voyage. and was securely moored at the wharf where her ('argo was about to be discharged.. The fact that she was securely moored to the wharf, and had communication with the shore by a gang-plank, did not make her a part of the land, or deprive her of the character of a water-borne vessel."
When the Ward took key-berth,· previously occupied by the mion, stUd the Marmionwa.s moored outside,with no other means of with the wharf than. across tile decks of the Ward, ac'cohlingto custom, and necessarily,the master of the Ward permitted arid invited the officers and crew of the Marmion to go to and from the shore across the decks of the \Vard. Under these circumstances, the relation of the master and of hisowriers to the libelant was such as to create.a duty on them to see that the libelnnt was not injured by the negligence of the master. On the facts made by the libel there was a breach of that duty, and by the negligynce of the master such breach constituted a maritime tort. of which thed.istrict court had jurisdiction. The exception·to the jurisdiction was properly overruled. The evidence submitted in the case shows that the practice and custom on vessels loaded witbfruitare to keep the hatches open at all times when the weather will permit;in .order that no damage shall result to the fruit, and'that, in accorclancetherewith, the hatchway on the Ward was left open and uncovered at the time of the accident tolibelant. The evidence also shows that 'the hatchway had a coaming of about 12 inches, and was lighted by a lilmphanging from the mast at one end of the hatchWay; that there was a clear passage-way of 5 feet from the gangway across thedeckofthe Ward; that th'edeck of the Ward was well lighted with theelectric lights, which stood near byon the shore, (so much so that during the progress of unloading the quality of fruit, as it came from the hold of the 'Ward, could be detected;) and that immediately over the passagewiy, leading from the gangway of the Ward to the Marmion, a lamp was hung.· The weight of the Elvid('nce is to the effect that the libelant, when he went aboard the Ward to cross over to the Marmion, was intoxicated; 'so much so, tbathe had to climb the gang-plank on his hands and knees, andihat his walk, when onthe Ward,was irregular and uncertain. Under this evidence it is difficult to . find that the·· master or owners of the Ward were of any leading to the accident complained of; but it is u.rmecessary to go particularly inw the matter, because, under the evidence, the libelant contributed by his own carelessness and tathe injury he received. This was the view t ...ken oCthe case by the district court, whose decree will be affirmed. Let the decree be entered·
eRAWFORD V. THE WELLS CITY.
'(Diltrict Court, B. D. NeUJ York. February 8,1889.)
'1. MASTlllR AND SERVANT-INJURY TO STEVEDORE-NEGLIGENCE-LIABILITY 011'
Libelant was engaged in trimming grain under the hatch in the hold of a vessel, when seamen placed the hatch-cover on. Libelant stood aside while the cover was being put on, but afterwards resumed work on the mate's or· del'. Two of the seamen then attempted to spring the hatch·covers together, when one cover, which was greasy, slipped, and fell upon the libelant, caqsing injuries for which this suit was brought. Held, that.the vessel wasHable fodibelant's damage.
S.rim-FELLOW'SERVANT-GRAIN-TRIMMER AND SAILOR. VESSEL.
A grain.trimmer, employed by a contractor to assist in the grain with which a vessel is being loaded, is not the fellow-servant of a sailor on the ship.S
, In Admiralty. Action for personal injuries received by libelant, while engaged in trimming grain in the hold of the steam-ship Wells Oity, through the 'falling upon him of one of the ship's hatch-covers. . .,John I. Allen, for libelant. " E. BJ: (l.on001'8,· for the. steam-ship.
BENFlDICT, J. This action is brought to recover damages for injortes -:received by the libelant while he was engaged in trimming grain inlthe 'hold of the steam-ship Wells City, thtough the falling upon him of one 'Of the ship's hatch-covers; The libelant was a grain-trimmer, employed by'acontrMtor to work in triniming the cargo ofgrain then being . ·on' board the steam-ship. At the time ot' trimming 'was finished all but leveling off the grain under the hatch. ',;The. spaut had been removed, and,as it was raining hard, the mate bfthe ship'di. Tected three oithe crew to, put on the hatch-covers. The mate waS at the time in the hold with the libelant. 'When the placing oitha covers in position was commenced, warning seems to have been giveli to the men in the hold, and they stepped 'out from under the hatch in 'order ,:to be out of danger. While they were out of the hatch, the covers were ':allputinposition, and thereby the hold was so darkened as to indicate ·to.persons .below that the covers were' in place. Accordingly the mate , motioned the libelant that it was time for him to resume work,,'aridthe 'libelant, with others, thereupon stepped back into·the hatch; to conclude 'his work of trimming the grain in thehatchwa.y. After thenHm :had 'stepped, back· under the hatch, however, two of the sailors' undertook to "spring two of the'natch-cov6fs together; the covers ha:Ving failed to go 'home when laid down. In doing this, one oNhe mert lifted OIi'EH1f the
L · .·
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to one, for injuries caused by the negl.igence of .another, see Railway Co. v. Welch, (Tex.) 10 S. W. Rep. 529, and note; Sullivan v. RaIlroad Co., (N. Y.) 20 N. E. Rep. 569, 4I.nd note.; Wolcott v. Studebaker, 34 Fed. Rep. 8, and note.
1 Reported by Edward G. Benedict, Esq., of the New York bar. .£.ic!; "As to who are fellow-servants within the rule exempting the master from liability