THE JULIA FOWLER.
think there is any infringement,· and it is not shown. that any purchaser has ever been deceived ,in buying the underwear made by the Beach Manufacturing Company for the underwear made by the complainant .company. Bill dismissed..
HANSEN 'V. THE JULIA FOWLER.
Ooun, S. D. New York. January 28. 1892.)
HAu OF VB88BL-AOQUIlIS-'
wasemploied in scraping the mainmlist of the' 3'utfa Fj>wler,oIj ',surrounding tb,e: m!'8t, the ropebolding the ·triangle,br,oke; '. precl,pitating libelant to the deck, .and capsing injuries,to recover fQr which ,this , suit was brought.' The evidence showed that the rope was old and spliced;'an4' .i ,thatthll attention.of the maUl. who rigged the triangle and was.in oharge.of thet , work. hl'd been callild to character before the It also appeare4,tqat., all the men considered the rope of doubtful sufliciency;but that they cOntinued' the'work without objection, without de1ijBj1dmganew.rope,and there was lIP evi-: dence to show a new one.would not have been furnished them had they; asked.forit. ' Held; that this was an acquiescence in the wrongful, act of the mate, charging libelant also with negligence. Four hundred dollars damages awarded.
In Admiralty. Libel.by S. ;ijansenagainst the schaoper Julia Fowler for personal injuries. Decree for libelant. Carpenter & Mosher,. for libelant. Henry D. HotchkWs,for claimant. B:aOWN, District Judge. On the 7th of August, 1891, theUbe1ant, a -seaman on board the Julia Fowler, was at work with two others scraping the mainmast on triangulal' frame-work of wood surrounding. the mast, which had. beep ,rigged up by the mate of the vesselfof them to sit on while at work. One side of the triangle waS' held by the end· of the main throat-halliard, which gave way while the libelan,t was at work, so that he fell upon the deck and suffered injuries ,which Up to the present time have disabled him from work. The above libel is filed to recover his damages, alleging negligence in that the halliard was known to be unfit for the purpose. ' . The evidence shows that the triangle was rigged up undeL' the immediate direction and inspection of the mate; that the .halliard was broken a.t a splice; that it had not been used for the same. purpose before, and was unfit and insufficient to support the three men who were sent to work in the triangle in the way that it was rigged, namely, to .sustain the triangle by a single line, or purchase, ini'ltead' ofllavingthe line rove through the three sheaves of the block above, and. the two .sheaves of a block below" .which would'have divided the weight among live the same line. The master, who at the time
FEDERAL REPORTER j
was liickl>elow, states'tllat the lineW()uld have been sUfficient had it been riggoo in the latter way; and that the latter was the· propel' and of rigging the trillngle, though it is sometimes done iIi the mode used in this case. The mate's statement that he had neve)' seeil any other IDolie used at sea makes me discredit his testi1110ny on all controverted points. It is plain that the mate WI1S negligent in the performance of his duin the use of such a 'liue to rig the triangle in that manner. He ordered the use of this particular rope, andsnperintended the rigging of it. The defect in the line was matlifest upon inspection, as it was spliced, and whipped for smooth running. The negligence of the master, or cbief officer wboacts in the master's place, to provide safe appliances for the use of the seamen, and the deliberate use of rigging or methods plainly unsafe, affects both ship and owners witb liability for damage., The cbief. officer was not acting in the mere CIlpacity Qf:fl fellow-laborer, as in Q1I1inn, v., Lighterage Co., 23 Fed. Rep. 363; The 'Queen, 40 Fed. Rep. 694, 697; Hedley v. Pink'fley, (1892,) 1 Q. B. 58. substantially the sI!ome as tbat of The A. Heaton, 43 Fed. Rep.o92 j in which this rule was applied in respect to theuse of .t rotten, See, ala<>, The, Prank ·(lind ' Willie, 45 Fed. ,Rep. 494. The libelant bad notbing to do with preparing or rigging the triangle; but ready, he was work upon it, and obeyed. In defense it is urged that not ,long after the libelant and companions had,lbegun work a:loft,' and while he was sitting in the triangle, the mate noticed from the' deek that the rope was defective, and called the attention of the men to it, and asked Hansen if the secure, and said that he did not like the looks of it; that the libelant thereupon examined the rope, and replied that it looked all right; and that the men contioued at work for a half hour afterwards before the balliard broke.. l>dollot credit this version, but that of the men, who say that Hansen'sr.eply was in that it was a mighty poor rope for such work; and' the/weight of' evidence on this point, notwithstanding the fact tha1ithe libelant does not rememberbis language, is that he further suggested that they hurry on, so that if they feH,they would have a less distariceto fall. Does thatlilCt release the mate and ship from the consequenceof their priorl'legligence, and transfer the whole risk thenceforth to the seamen? I think not.. The men were neither told to come down, nor does the mate say that he the men to come down, if they thoul?:ht rthe1bpe insufficient. The men testify that what the mate sRid was, "LOokout boys;thltt isa poor rope." The direction amounted to little ifan1thiilg more thali to be cautious in theil work and movements, so ftS"l1ot'to make! any unnecessary strain upon the rope. The inaufficiencyar<iSenot merely from the splice, but il1tldjastillgthe rope with a tlingle' bearing. The evidenoe leaves no doubt, however, that aU'thenuini'consideredtne rope of doubtful sufficiency, and that they would have'been'jUati6edindemanding another roPfI', or a 'readjustment of it in a: We i manner; .buttnat .they continued to work :withoutobjee-
tion. Nor can I find that, if a proper rope or readjustment had been asked by them, it would not have been allowed: I do not see how I can hold this to be less than acquiescence by them in the wrongful act ,of the mate, such as to charge the men also with negligence or want the principles of of reasonable care. The case falls, therefore, The Max Morris, 137 U. S. 1; 11 Sup. Rep. 29, 24 Fed. gep. 860. Though the libelant is yet far from well, his ultimate recovery, upon the ' evidence, 8,eems proMble. 1 allow him $400, and CO$ts.
(DlItrict CInlh't, ,D. WaaMnaton, N. D. lI'ebraU'711t18Ol.), Jrurma LJBNli-INSUBAlfOB PREIUt1Jl8. , lJnder thegeneralml\l'itime law there Is no Uen onav8sielfor mllrine Inaura1Hle premi1UD' due frqm w,r :' " ' ' .
in A<irniralty· Libel by bark H(jpe, etc., to recover to th(:l libel. Sustained.
Sun , '. premiulXU$. 'Heard oU,exceptiol1$ . ." '
Wnt. H.Whittle8ey, O. D.$mery, for claimant.' "
" , . . '
District is 11 suit in the amount of a premium for marine insurance issued to' the, of the vessel libeled. The claimant has filed exceptions to tbe,libel oil the gronnd that there is no lien to support process in rem,and the court is without jurisdiction. There is no statutedgiying a lien for p,remiums in this state, and whether such a lien exists under the general maritime of authority. But a ma.law is a qUtlStion upon wl:tich I.find a jority of CRses, and I' the' weightier affirm that in:suranceforthe personal benefit of an owner is not eBBeptial to render a vessel or an aid and there can be.n.o reason for gi cre<iit to the. vl;lssel for. s,uch expense; therefore, .the hen does not Henry,Adm.p. The John P. Moore, 3Woods,61j The GUkey, 19 Fed. !tep.127i The Waubaushene, Fed. 109; note to The Dolphin, 1 Flip. 580. I hold to this and will sustain the '