Etna. would have been entitled to compensation for such towage as she gave, if she had been compelled by either of the causes named to give up the towage, provided the Colon had reached New York safely. There is no reason to suppose she would not have reached New York safely The amount awarded by the district court for the service seems to be fully adequate, in view of the amounts awarded in the various cases cited on the part of the libellant as well as of the claimant, under the circumstances of those cases as compared with the circumstances of this case. As to the distribution made by the district court, if $10,. 000 is the proper total sum, as it is, the owners of the Etna can have no larger share of it (besides the $500) than the $4,375, as they do not appeal from the award to the master of $750, and to the master and crew of $4,375, and those sums have been paid. It was proper for the district court to refuse costs to the owners of the Etna because of the exorbitant and unfounded claims they brought forward, and the expense and trouble to which they wantonly subjected the claimant. The owners of the Etna should have a decree for the same amount as in the district court, without the costs of that court, and should pay to the claimant the costs of this court.
TONS OF COAL.
(District C01JI1't, D. New Jersey. November 9, 1880.)
L AmaRALTY .JURISDICTION-MOTJON.-A court of admiralty will ordinarily refuse to decide a jurisdictional question upon a mere motion. Uushing v. Laird, 4 Ben. 88. Dtmnistoun v. Draper, Ii Blatchf.336. The Othello, 1 Ben. 43.
2. MONITIPN-INsUFFIcmNT DESCRIPTIoN.-An objection that the moni. tion did not sufficiently describe the property to be attached, is insufficient, where the marshal has not been thereby misled, and attached the wrong property.
A CARGO OF 2l!7 TONS OF COAL.
8. ADIlmALTY JURISDICTION-MARITIME CONTRACTS.-COUrts of admiralty have jurisdiction of all maritime contracts. Stearn--boat v. Phmbus, 11 Pet. 175. 4. MABlTIME CONTRACT--C'oNTRACT OF AFFBEIGBTMENT.-A contract for the transportation of freight or merchandise upon navigable waters is maritime in its character. Oana't-boat Walsh, 5 Ben. 73. 5. NAVIGABLE WATERS-JUDICIAL NOTICE.-The· court will take judicial notice in such case that the waters on which the contract was performed were navigable, without any allegation of the fact in the 11bel. The 9 ·Wheat. 374. The Steam--boat Jefferson, 10 Wheat. 428. peyrow.r: v. Howard, 7 Pet. 342.
Libel in Rem. J. A. Hyland, for libellant. . R. Wayne Parker, for claimant. NIXON, D. J. This is a proceeding in rem against a cargo of 227 tons of coal, to recover for freight in·transporting it in the libellanf!ilboat, the E. N. Brooke, from 'E1izabethport to Newark, in this state, and for demurrage for the detention of the vessel in discharging the cargo. On the return of the monition the respondents filed two (1) That the libel did not disclose a caSfl of which the court had jurisdiction; (2) that the monitions did not s'.1fliciently doscribe the property to be attached. It is an answer to both to say that, with regard to the first exception, a jurisdictional question is raised, which a court of admiralty requires to be presented by the pleadings and proofs, and ordinarily refuses to decide upon a mere motion, (see Cushing v. Laird, 4 Ben. 88; Dennistoun v. Draper, 5 Blatchf. 336; The Othello, 1 Ben. 43;) and, with regard to the second, there is no pretence that the marshal has been misled, and attached. the wrong property for lack of a more definite description. The advocate of the libellant'has filed with his brief the affidavit of the libellant that the boat performing the service, for which the freight is alleged to be due, is a foreign vessel- both the vessel and the owner belonging to the port of New York. If he deem the fact a material one in the case, he has leave to amend his libel in this respect.
It is conceded that the jurisdiction of oourts of admiralty in matters of contract is confined to those that are maritime, but it embraces all such, (Steam-boat v. Phcebus, 11 Pet. 175;) a.nd a contract for the transportation of freight or merchandise upon navigable waters has always been reckoned maritime in its character. Canal-boat Walsh, 5 Ben. 73. The libel sets forth a oontract of affreightment, the performance of the service, and claims a. lien upon the cargo for the freight due. Whether the lien exists or not will depend upon the proofs, and cannot be determined on exceptions to the libel. The court will take judicial notice that the waters on which the contraot was performed were navigable, withou. any allegation of the fact in the libel. The Apollon, 9 Wheat. 374; The Steam-boat Jefferson, 10 Wheat. 428; Peyroux v. Howard, 7 Pet. 342. The exceptions mus' be overruled, and the respondents having answered let an order be entered referring this case to the commissioner for proofs.
8OlJ'lBEBN EXPRESS CO. U. L. & N. B. CO.
L. & N. R. CO.
(Ciffltit Oowrt, M. D. Ttmne88U.
RAn.ROADS-ExI'RE88 BU8INE88.-A railroad
cannot discriminate In its lavor in the conduct of the expl'ess business.
2. SAME-UIVAL CoMPANy-SUPERVISION.-A railroad cannot exercise a
supervision over a rival company in the conduct of the express business,
express company is entitled to some notice from a competing railroad of an intended change in rates and privileges in the conduct of the express business.
KEY, D. J. In the investigation of this case I have come to no conclusions different from those announced by the circuit judge of this district in another controversy between the same parties in respect to the relations, duties, and general course of dealing between railroads and express companies. I am content to follow his rulings, so far as they 'are relevant to this suit, and shall enter upon no reiteration of the doctrines he has asserted.· The conduct of the express business is no part of the duty of railroads. Until within a recent period there has been, in this country, no effort on part of railroads to carry it on. They have been content not only to permit this business to be done over their lines by others, but have fustered it, by the terms allowed and opportunities given, until it has grown into a distinct, separate, and organized branch of general business, different in its methods and characteristics from the natural and legitimate transactions of railroads. Expressage has grown into a public necessity. The idea cannot now be entertained that railroads directly, or by indirection, can trammel or destroy express enterprises by excluding express companies from their lines, or by fettering them with unjust regulations or unfair discriminations. Nor can
.See DinMfWre v. Louism7le, Oincinnati tIJ Lercington Ry. 00.2 FED. REp.
465. See, also, Dinsmore v. LO'll:isvme, Nuw Albany it Chicago R. 00. 3 REp. 593,