M'DONALD 'II. PRIOLEAU.
ground that the Sessions patent showed the frame-plate and the "particular equalizer," was allowed, and the patent in suit issued. The affidavit did not say that Pullman was the first inventor, and it did not follow that, because he first reduced the invention to practice, he, and not Sessions, first perfected the invention. It did not deny that the Sessions patent showed the "particular equalizerj" on the contrary, its presentation amounted to an acquiescence in the correctness of the commissioner's ruling on tha.t point, and a claim that Pullman was entitled to a patent because he was the first inventor. We have referred to the fact that the parties to this suit were the liti· gants in the Sessions suit. In the latter suit the complainant obtained a decree, on the theory that Sessions was the first inventor of the equalizing mechanism for which a patent was finally granted to Pullman. That decree remains in force. It is chiefly on the testimony of Sessions in this suit and the Boston suit this court is now asked to hold that he was not the first inventor. That testimony cannot be reconciled with material portions of the testimony of the same witness in the Sessions suit. 'fo what extent, if at all, the decree in the Sessions suit is conclusive upon the complainant in this suit is a qUl"stion which we prefer to reserve until the final hearing. Injunction denied.
(DIstrict Court, D. South Carolina. January 14, 1891.)
The district court has jurisdiction of a libel against the consignee of a vessel for pilotage; though the consignee is made liable therefor by a state statute of the port where the services were performed.
In Admiralty· Libel in personam for pilotage fees. 1. K. Bryan, for libelant.
E. H. Prioleau, in pro. per.
SIMONTON, J. McDonald was a licensed pilot on the bar of Charleston. He boarded and brought in the Spanish steam-ship Borinquin. After the steam-Ship got into port another pilot claimed that, under the pilotage regulations of the port, he should properly have acted as her pilot, and he made a demand for the fees. Some discussion was had before the commissioners of pilotage, with what result does not appear. The matter was not adjusted before the steam-ship left the port. The respondent, being her consignee, retained in his hands a sum of money sufficient to pay the inward and outward pilotage. The libel seeks the recovery of this sum. The libelant, having brought 'the vessel in, had v.44I<'.no.l0-49
the exc1usiVerigh t t6 t.ake her out, unless some reason to thecontraryis shOwn. ,Gen., St. S. C. §, '1274. The consignee isJiable for pilotage fees, as well as the master and owners. Id. § 1280. The respondent admits, that he has the money on hand, disclaims all interest in the questioa,and has pll,id, the u'loney into the registcryof this court. Libelant' proppses an order for the payment of the money to him. No one has intarvened or objected. The liability of the consignee is created by a state statute. Has this court jurisdiction as against the consignee? Claims for pilotage services without doubt are cases ofadmiralty jurisdiction" ['he George S. Wright, DeadYt'091. Courts of admiralty enforce provisions of state statutes which fix, the amount of pilotage fees, and recognize and enforce provisions giving fees for services offered and refused; and so not performed. SteafTVoShip 00. v. Jolijfe, 2 Wall. 456; Wilson v. McNamee, 102 U. S. 572. So, also t when district courts of the United have jurisdiction of a contract as a maritime one, they may enforce a lien given for its security, created ,by a state statute, although such lien would not exist under the general maritime law. The jurisdiction in admiralty in matters of contract depends not on the character of the parties, but on the character of the, contract, whether it be maritime or not. Hen. Adm. 319. The state law makes the consignee liable upon the contract for pilotage, 8S well as the master or owner. 'll1is is a wise regulation, 8S it secures against any unexpected departure of the vessel. It, however, would not affect the jurisdiction of this court. In Ex parte McNiel, 13 Wall. 243 t the court say: II A state law may give.l&substantild right of such a character that, when there is ,no impediment arising from the residence of the parties, the right may be enfoN;!*l in a federal tribunal, whether it be a c(}urt 'of equity, admiralty, or of common law. The statute in such case does not confer jurisdiction; that exists already. It is invoked to give effect to the right, by plying tbll"appropriateremedy. · · ,41 In no cluss of cases has the appHcationof tbis principle been sustained more frequently than in those of admiralty and maritime jurisdiction." Assuming jurisdiction, the court can see no reason for refusing the order asked for. No else claims the money., Nothing has been disclosed depriving libelant of his right under the state statute. Let the proper order be entered. '
BARKER tI. THE SWALLOW.
(DI.BtrIct COUrt, N. D. lllin0i.8. October 20,1890.)
SHIPPING-Loss OF CARGO-PERILS OF THE SEA-OVERLOADING.
The propeller S. started on a voyage with a cargo of lumber, part of which was piled on deck to the height of 8 or 10 feet, which was fully equal to the depth of the ho!d. A wind. sprung up on her quartllr, raising a sea that caused her to roll. so heavily that she careened to port and hung there until the deck·load on that slde. slid ofr,when she righted and rolled to starboard until the lumber on that side went overboard, leaving only that piled amidships.. She then righted and r(ldj3 easier, and came safely to port. It was shown that the wind in qUE}stion was only a 12 or 15 mile breeze. and not a gale. Held, that the loss was not due to) str88s.of weather, but to overloading, .and the vessel is Uable therefor. .
In Admiralty. Schuyler «Kremer, for libelant. W. H. Condon, for respondents.
BLODGETT, J. The iibelant in this case seeks to recover the value Of part of a cargo of pine lumber shipped on board the propeller Swallow on or about the 31st day of July, 1888, at the port of MuskE'gon, to betrans.o ported to the port of Chicago, and which, it is averred, was not delivered to the libelant at the latter port of destination. The shipment of the lumber is admitted by the answer of respondents, but they allege aEl an excuse for the non-delivery that the portion of the cargo not delivered to the libelant at the port of destinat:on was a Plirt of the deck-load of the propeller, which was washed overboard and lost in midlake, by reason of the strong wind and heavy sea which prevailed, and that neither the vessel nor her owners are liable for such loss, the Bame having been lost by a peril of the sea, without fault of the crew of the Swallow or of her owners. It is admitted to be the usage of both sailing and steam vessels, engaged in the lumber trade on Lake Michigan, to carry part of their cargo on deck, and that the vessel and her owners are not liable for the loss of the so carried, by a peril of the sea, if the same is properly stowed, and the vessel be seaworthy and properly loaded and navigated. It is admitted that the Swallow took on board for libelant at Muskegon for the port of Chicago a cargo of 283,393 feet of pine lumber, nearly ono-half of which was stowed on deck, and that while on the passage she lost 86,227 feet from the deck-load, which was of the value of $1,822. But respondents insist that they are not liable for this loss, because, as they say, a high wind arose which caused the vessel to roll to such an ex:tent that the lumber in question was lost overboard by the rolling of the steamer, occasioned by the heavy wind and waves, and not by any fault of the steamer or those in charge of her. The proof on the part of the respondents shows that the Swallow sailed from Muskegon in the evening, her course being about south-west; that soon after 12 o'clock a strong wind arose from the north; which raised a heavy sea, which struck the Swallow on her starboard quarter, causing her to roll