"Did he have a cause of action for the shooting? But for his fault, theconductor would not have been brought into a stat(\ of excitement, from danger and insult, which unfitted him for discharging his proper duties, either to the company or to the passenger. Whether the conductor was more -or less in fault than the plaintiff was, in shooting, certainly the plaintiff was more in fault than the company, because the plaintiff was there upon the ground, stirring up exCitement, and bringing on danger both to the conductor and himself. He unfitted the conductor for exercising the care and prudence that were essential to guarding Lhe interest of the company, and essential ,to performing in a proper manner; his duty to the company or to the plaintiff. The plainti:l'f spoiled the instrument" and then sued the manager because the performer did not make good music. It was the plaintiff's fault that the conductor was out of tune; and, though the conductor might not be altogether exeusable for the shooting, (according to his own evidence, however, he was excusable,) the company was not in fault for it; and it would be unjust fOl' the plaintiff to rpcover of the company, when he boarded its train, violatjng the law, as we can well infer, by carrying upon his person a concealed w.eapon; violating the law again by swearing and using obscene violating the law again by committing an assault upon the conductor with a pistol, drawing the pistol, and presenting it at him; and violating the law by general disorder and misconduct throughout the transaction, up to the mo· ment he was shot. " This quotation expresses very clearly,in our opihion, the correct rule on this subject. Our conclusion is, therefore, that the plaintiff is not entitled to recover, under the most favorable view of the facts of this case, fur his;expulsion from the train; or for the manner of his removal; and consequently the direction ofa verdict for the defendant was right, arid the motion for a new trifil will be overruled·
. PWElil, J., concurs.
HARRY"'. THE AM.
(DImict Ooo1't, S. D. New York.
One who is engaged and ships as pilot of a vessel, whereon another stands'8sreg. istered master, has a lien on' the boat for his wages, although· he may be in entire oharKe of her navigation.
In Admiralty. Wifi.g, Slunuly & Putnam and Mr. Burlingham, for libelant , Alexander A8h, for claimant.
BROWN, J. The libelant daims a lien upon the proceeds of the vessel for his wages as It pilot. The defense is that he was mastet, and,asS\1ch,
bl' Edward G.· Benediot, Esq., of the New Y
FEDERAL REFORTER t
The evidencES shows that tbe libelant was engaged l'llldshipped in the quality of pilot, and not in the character of . Mr. Moquin was registered as master of the tug, and his name so in the papers on board, Although Moql,1in did not at this time .Elan on, the tug, he. and his ag.ent performed all the'duties of master, except the duties of navigation,which the plaintifl',aspilot on board, performed. The libelant did not ,engage or discharge any of the men. He made no <lOntract for the tug, determined none of her trips, and colexcept such as were paid. on the spot. ; In the case of Thelttr:Y:andercook, 24 Fed. Rep. 472, the hbelant's name appeared on the of the vessel as master, and he made the usual, ma!lter's oath. In .Willard v. Dorr, 3 Mason, 92, Mr. Justice STORY says that the reason generaUy:ascribed for denying to the master a privilege for bis wages is that; when he contracts, he trusts to the personal credit of the owner; or, as8ir "\VIU.JAM SCOT,r says, he is supposed to stand on the security of contract: rfthis be so, it is plain that whelihe contracts explie&l'l1yfQr the position of master, and so enrolls himself on tbe ship's papers; prii1lw,jacie, at least, tbere can be no lien, as in the case of The M. Vandercook, above cited; but that when he expressly contracts as pilot only, and person. stands as registered master, Wbether the latter sails on the tug or not, th,ere can pe,no such prima facie assumption that he contracts on the personal credit oUhe owners., The presnmption is plainly the .other way,vi1;., that, hlloving expressly engaged in the capacpih>tonly. botbJ>arties underst90d that he should be entitled to a. pilot's privilege on the ship, Notwithl:!tandingthe circumstances adduced by the defense, such, I think, was the intention, as it was plainly the form. of this contract. The lien should therefol'ehealIowed. Deoree for libelant, with costs. . .
ndt entitled' to a lien.
(Dl.8trlct Oourt, B. D.New York. July 22,18l1O.}
L GBl!IB1l.u:. AVERAGE-PERIL-DELAy-No DANGER
The primary requisite for a general average charge ia 1I0me perU common to ship or·!I0meexpeDse voIUntari}.V,lnIlUrr(ld .by one part that Chal'geable .to .it by law, for the safety of the whole. The nature of tile requisite pelon is some threatened physicl10l injllry, not mere delay or loss of expected profits, nor the mere prosecution of the voyage, where no danger to ship or cargo has arisen.
TO SHIP OR CARGO.
t:lAME-WARRANTY OJ!' SEAWORTHINESS WIlEN SHIP SAILS.
A carrier I:IY, sea; 1\is implied wan:apty of seaw:oz:t!r1ness, is bound to have bis ship seaworthy at tbe tilme she sails.' He, and not theshillper of the goods, takes the risk of accident to the ship while loading. and' is legally ohargeable with the whole burden of repairing.
S.Q4:E"7AoOIDENT WIlILllLQADING-REPAlBs-ExpENSE OJ!' DOqJq:NG·
.The sbip T., while loading at New York, 810ng-sidethe Wharf, after returning to was ·found When ne!U'ly loadedwitll 1;I,er fOrward compartment full of water, arising from a hole in one of the plates, from some cause unknown. A tight bulk-head protected the cargo from injury. or danger of injury. For the purpose of repair, she was docked witb her cargo on :boaJ'9, to 8voidthe