i,Mu any wa:yconstituw'& lien in itselrf'j,<There is no element in such Q. claim of a jits 'tW"'fr.' "r, . Under itlleetns'to be the duty of the'eourtto aWlj,rd the t,be registry o(the court (concededDQtto be sufficient to the party who holds the rig.ht,,,leaving to the contestant 'any and all rights that hemay!have to pursue his claim for damages in any court The decree will be entered .
(l'X8trictC&urt, S. D. New York. March 23,1891.) ,
I.' 1II'IIGr,TGBNOB,.,.PBltSONAL, !NroRy-MASTEl\ SERVANT-FE:r.WW'SER:VANTS. Wqere a mate of a ves9E!1, workiJilg with. a seaman and in discharging 'cargo', of the vessel 'being absent, continued to unload the cargo in a dll;Jilgel'l)llswanner, attenti()D haa .heen. called to the danger and complaints had QlJElD made, ,and, the fell and saUor, the ves!'!el was held liable for theinJil'ry;' . , . n . , ,.. '
the kllGwledge,of the proper· officer.
gers,to life and limb' by the usuw. means,
seamen . .
reasonable security against dansuch are brought bome to .' ,
Under the circumstances of this case, the mate of a vessel.and a sailor were7teld discharging the' cargo. ilotfellow-serva.nts,' in' 'respeet to waking safe the
In Admiralty. Suit tcl'recover damages for personal injuries. Hyland Je' ZrlbPiskie, for libelant. . RObert D. , Benedict, foroillimant.. .
BItOWN;J·. On the 18th of July, 1890, while'the Frank 'and Willie Was dischal'ging'a cargo of lumber at' one of the docks in (jeiwa!nu8 canal,thelibelant; an able seaman, who was unloading from ,the hdld,hlidhis1eft:leg1 broken, through the fall of lumber against and upon hIm. He' trell.ted:at the hospital at the ship's expense, and now brings this damages for the 'injury. The libelitnt was at: workwith the mttite'on the port side ofthe Schooner, and under his'dirediion; others worked on the discharging through hatch. '!'hel'uthlbercollsis'fed of pieces to 30feet'long, about 8 inches wide by 3 i'nch-es' tbick. . They-were piled in tiers, not Jastened together by ties:.' ,A'fter a spaeewas cleared down t()'the '·ft6or over the keel',. the lumber stood abouii ? ·fiJefhigh. They did not di&Hiarge from the top. aCross to the i side. of tb'e; SliIp, bu t workedup ',Tbe libelant,'and wallY witnesses
, " . .;,: J
in :his behalf, testify,thatthe :tiersbeoame shaky, aD.d 1thllt rel"l:lated expostulations were made with the mate against discharging in that way, without leaving a prQperi'lUpport at the bottom for the high iiersaoove to prevent their fallingjthaHhey1l0ld him tnlttthismethod waa danger!: ous; and that it onghtlto stairs,aathe gang were doing on the starboara<side;'i'he mateteatifiesthathe did discharge in that way; but his testimony is clearly oV'el.'borne by other witnesses, who say that he replied withos:ths, and Would not do as requested. A,list of the ship to Bt&.rboard made the lumber more lillbleto fall. The libelant was new to the handling of IUrn'b61"j and had been instructed to be care:ful:in taking off his end of the stioka,' while: the mate took the other end, So as 'not to pull down the top ()f the pile'.,: The' defendants contend that it was through' theplaintiffjs:negligence in ndt observink this precaution that the pile was pulled over when: only two or three :, When the'pile fell, the libelant had reinoved. and wag tiers holding, his end of one ofthe sticks. The mate:'hadi 'uottaken up his end,:a:mj so was able: to get out or the way.' "! It is1impossible'to tell whether the libelant did or did not cODfribute to the fall of thelll>moor.Bythecommon"law rule of tbis state, the tiff, in"ordel' :torllCOver in such a case, must lloti only show defendant's negligence, but 'prov6·lI.ffirmatively that he himself wliis not guilty of the smallestcontrlbutotyfault. ,Dobbinav,BrOion, 119';N, 195, 23 N. Eo'Rep. 537T!Reyrwi'CIs v; Railroaa('.o'.,'-68 N: Y.2J48; CardeU v. Railroad 00.,:-75 N. N. 2tN. E. Rep. 128; Stone v:. Raill·oad'Co., 115 N. Y. 111, 2iN:.E.Rep. 712. :Under such 0> rUle, I nof1 1be authorized ito give auythingto 'the libel'itl1L But this ,harsh 'Il'tlle on shipboard would offtlr too greatindemnity to crti.. eltyand oppressidu; it "is :not Dowthe rl116 of our admiralty courts: - The Max 137.'U:S. 1;11 Sup.' Ct. Rep; 29j affirming 24 Fed.'Rep. 860. The libelant's inexperience is not11 pl'oof of·uegligence,while the knownfaot that he had been:rpreviously unused to this kind of work was only an '8.dditionaI reasonwby the mate should have taken at least the usual precautions topl'e'Ventthe, lumber: from: falling. The :weight of testimony leaves no doubt in my mind that the inate persistenU)T and obstinaMlyret'usedto do BO.' .' The libelant is thet-elora entitled to recoveJ something,: provided tbatthe 'refusal to take these precautions conlrtituted a breach of duty theshiporher'()wnerslo the libelant. It is earnestly contended for' the defel1se that the case presents,: at IDost,thenegligence :·of a fellow"servant only '. fur which there can be no recovery agllinst the'ship or owners; and mate's obstinacy was only tbe:negligenceof;a fellow-servant the,defertse is good. The mere fact that· fellow-workmen occupy different!grades or departm(jtits in the eOlllmoIrser'Vice, or that one has a higher.positlon or authority 'over all" other, does not necessarily make au)' exception to theus-ualrolii. (Jayne Ral1wdy OJ., 133 i U.S:B70, 10Sup.(Ct.Rep. SJ,ed,mr8hip Go.v. MercMnt,'1-38 U. 375; 10"Sup; Ct.' '397; Billv!lrsO?lv,·Niaen, 8 Sawy.562r Anderson v. Winston, '31 Rep.l>28';, 'y;-'Li(jh'terage , Co., 23 Fed. Rep. 3631'Thll City aj AleJxittr,d'fIUI, 17 ::Eed.
The Queen, 40 Fed. Rep. 694-696. But the case shows that the mate, after notice of the dangerous condition of the pile of lumber, which his own u,llskillfulness or negligence: bad brought about, and after complaint refused to take the usual precaumade at least an hour before the tions to make the pile safe, and, in effect, required the libelant to continue work in this dangerous situation._. .This was breach ofa duty owed by the ship and owners to the seaman, for which the ship and owners are liable. Employers are required to provide .workmen with reasonably safe conditions for work, according to the nature of the business, and to the customary provisions for the safety oHife and limb. This is emphatically so as regards seamen, who are bound to obedience, and have not a landsman's option to throw up work. Obedience to officers is the necessary law of the$hip; disobedience is criminal; and seamen have the corresponding rig4t to protection againstneedles$lexposure. They are not required to vipdicate their right to security ,by refusal to. work at the risk of being put in origoingto jail. While the mere negligence of officers in lookmg after the ship's condition may perhaps not make the ship liable, as held in Halverson v. Nisen, supra, .(put see Jansen v. Sachem, 42 Fed. Rep. 66, 67,) a refusal by the maste.rto repair rigging after it has been reported defective has been recently held by Mr. Justice GRAY to make the sbip liable. The A. Heaton,.:43 Fed. Rep. 592. The principle involved, viz., the duty to provide reasonable security; against danger to limb, by,at least the., usual methods, when.tbese dangers are brought home to the. knowledge of the proper officers, is manifestly a generlU one. Itllottends the seam.ap wherever he is required to go on in the performance Qfbis duties, and applies as much to a dangerous condition of the cargo as to defective rigging.or a rotten spar. In the case of The Kate Oi:.mn, 2 Fed. Rep. 241-245, the bark was held by to an, injured stevedore, beca.use the dunnage andpla.nk where he was required to work in the ship's hold had not been properly secured, the dangerous situation being held, a violation of a duty that the ship and her owners owed to the workmen. The same has been repeatedly applied in this court in favor of stevedores or their employes on board. The Helios, 12 Fed. Rep. 732; The Ma:& MIJI"'I"iB, 24 Fed. Rep. 860; The Guillermo, 26 Fed. Rep. 921; The Nebo, 40 Fed. Rep. 31. It has been long held the ship's duty to use all rea,sonable .meanstocure seamen of their hurts in theship's.service, the negofwhich makes ship and owner liable. It would be anomalous to such a duty to cure hurts, Qut nOlle to avoid them. The Scotland, 42.Fed. Rep. 925,927. I cannot distinguish this case in principle from that of The A. Heaton, 8upra, and others above cited. The master was l:IoRl;Ient, llnd the mate was not .onlytemporarily in command, but, as mate, he was tile officer having cha,rge in unloading the cargo,-the repr!'lsentative of the,s4ip and ownera inJhe supervision oOhat work. His a.ttention was specially called to tb6 dangerous situation, its correction was requestell,.and the libelant was practically helpless. I do not hold the ship lia.ble the mate's mere negligence as a fellow-workman in produging .tp.eda.ngerous situation, but for his refusal to remedy it when
THE SHUBERT V. THE EINAR.
compll\int was made, and the danger, pointed out to him. As I have some doubt, however,whether the libelant's negligence did not also contribute to the accident, and as it was not proved that any great permanent disability will probably result, I allow the libelant $400, and costs. The Max Morria, 137 U. S. 1, 11 Sup. Ct. Rep. 29,24 Fed. Rep. 860.
SHUBERT"'. THE EINAR AND THE IVANHOE. THE EINAR
(Dlmict CoUrt,E. D. Pennslllvanf.a.February 6, 1891.)
AIm Tows. The tug Ivauhoe and tow Einar, passing down the Delaware, met head on thetu'g Brown and tow Shubert passing up, botlitows being asteru, on a windless night, asl1glit:fog near the water and tide flood.. When the Ivanhoe sighted the Brown she continued her course in silence for a few minutes, then turned eastward lu silence. The Brown then went .port, and blew one blast, which, being immediately foUdwedby a blast from the tug Argus, slightly below, (loming up, was mistaken by the ,Ivanhoe for a two-blast from the A:rgus.The Brown was then discovered in front of her bows. The Ivanhoe and Brown then ported, and the tows collided. Held; as the Ivanhoe had notsipaledthe Brown before turning eastward,'had the whistles oft.be Bt:Own and Argus, althollgh the two had ad.Uferent. !JOund, and the vessels were some distance apart, she had. not kept a vigilant lookoilt, and WBs in fault. '
SAME-'-'NEGUGBNOB 011' TuG.
A ,tow ;having a pilot on board was brought by the negligence of her tug into QOllision. ' Held; as a pilot's duty was to control the tug as well as the tow, anll 6s the fllililre, of, the tug to take proper precautions must have been observable from the tow, the tow is equally liable with the tug. Following The CivUta, lOS. U. S. 699; The Hart v. The I'llanhoe. 58 Fed. Rep. 765. '
ADMIRALTy-AOTIONS ON DIlI'lI'BRENT RIGHTS.
A vel/sel brought an action against a vessel with which she had collided, and the tug towing it, in one district, and against her own tug in another. He£d a decree holding the other vessel and her tow each equally liable should provide that the amount recovered from her OWJl tug be deducted from the amount awarded, and that it should be drawn to secure a recovery from each of the amount the other should fail to pay, and that it' \Voulll take precellence of a decree in favor of the other vessel against her tug.
In Admiralty. Libel by William H. Sloan, master of the schooner William H. Shubert,.against the Einar and the tug Ivanhoe; and libel by LauritzOlansen, master of the bark Einar, against the schooner WilliamH. Shubert and the tug Ivanhoe. Henry Edmunds, for· the Shubert. JohnQ. Lane, for the Einar. OoulBton &: Driver, for the Ivanhoe.
BUTLER, J. On the night of March. 21, 1890, as the schooner Shubert was passing up the Delaware river, off Reedy island,. towi3d astern
,1Reported by Mark WilksCoUet, )jlsq., of thePhila:llelphillo bar.