by the latter is treated as a fund representing the lost ship, and' as such chargeable with half the loss on' her own cargo. This is enforced the fact that the statute makes "the interest of the owner i:n the ship and pending freight" at the close of the voyage, the limit of his liability. For his interest in the ship still remains in the forttl of a demand against the other vessel fol.' half dallllOtges. for which he must account. It is the same with a bottomry bond; for this conveys, in pledge, all the owner's interest in his ship; and under the bond, and under the statute alike; the his interest in the vessel includes, by necessary implication; the fund recoverable, as the representative of the ship, for her tortious destruction. I find,therefore. that the bond upon that part of the carg'o .which arrived in Hamburg, and. which was worth more than the amount of the bond. The libelants, having necessarily paid the bottomry loon in full. in order to obtain possession of the cargo, are entitled to be reimbursed so much as upon a proper adjustment was chargeable to the respondent as owner of the ship and freight; The rules of /2;eneral average being somewhat different in this conntryfr(!)m those of England, if the parties 'are dissatisfied with the adjustment made in London, a reference may be taken to as<:ertain proper lllilount according to oU],' law, there being no evidence that any different law is applicable. Decree accordingly, with costs.
REARDON v. ARKELL. (District Court,S. D. New York. February 7, 1894.) §§ 4235, 4236LAws OF NEW YORK AND NEW JERSEY - REv. ST. RIGHT OF NEW JERSEY PILOT TO SUE IN NEW YORK.
Section 4236 of the United States Revised Sta.tutes, in conjunction with section 4235, by necessary implication makes applicable, in favor ot pilots, the laws of either New York or .New Jersey; and hence a New Jersey pilot may, by Virtue of such statutes, maintain his action in the United States courts of New York, against the consignee of a vessel, for pilotage servIces rendered in New York waters.
In Admiralty. On exceptions to a libel filed by John A. Reardon against James W. Arkell to recover for pilotage services. Exceptions .overruled. Carpenter & Mosher, for libelant. Wheeler, Cortis & Godkin, for respondent.
On the 17th day of August, 1893, the BROWN, District British steamship Jersey City was pilmed into the port of New York by the libelant, a pilot duly licensed under the laws of the state of New Jersey; and on the 23d day of August she was again piloted by him back to sea. The pilotage fees not being paid, the above libel in personam was filed against the respondent, as the consignee of the ship, who entered and cleared her at this port. The pilotage laws of New Yo-rk and New Jersey alike make the pilotage payable
REARDON fl. ARKELL;
''by the master, owner, or agent entering or clearing a vessel jointly or severally," and prescribe the same pilotage rates. Exceptions to the libel have been filed by the respondent, on the grounds (1) that the laws of New York provide only for pilO'ts licensed under the laws of the state of New York, and therefore are not available to the libelant. (Brown v. Elwell, 60 N. Y. 249; Hopkins v. Wyckoff, 1 Daly. 176;) (2) that the laws of New Jersey have no extraterritorial fO'rce to create a statutory liability in the consignee of the ship entering her on arrival at the port of New York. Under the construction given to some sections of the pilotage laws of New York by the court of appeals in Brown v. Elwell, above cited, I should find difficulty in sustaining the libel if the laws of either state could only be applied to the present case by virtue of their own inherent force. By section 4235, however, of the United States Revised Statutes, re-enacting the act of August 7, 1789, it is provided that all "pilots in the * * * ports of the United States shall continue to be regulated in conformity with the existing laws of the state respectively, wherein such pilots may be;" and by the following section (4236) the master of a vessel coming into this port may lawfully employ a New York or a New Jersey pilot. See The Abercorn, 26 Fed. 877. The construction of these two provisions with reference to the points taken by the exceptions, is. somewhat embarrassing. The well-known intention of section 4236, originally passed in March, 1837, (5 Stat. 153, c. 22,) was to end the conflicts and disputes that arose cO'llcerning the right to employ pilots licensed under the laws of different states bounding on pilotage waters. In giving authority to masters to employ a pilot duly licensed by either of such states, it could not have been the intent of congress that the pilots should be without the pO'wer to enforce any compensation at all. That act must be read in connection with the provision of the act of 1789, (Rev. St. § 4235,) which is in pari materia; and when thus read, the phrase "the laws of the states respectively wherein such pilots may be" must be regarded as applicable to the "employment" authorized by section 4236. Although a New Jersey pilot may not in terms be provided fO'r by the New York law, when piloting in New York waters, I think a reasonable construction of the act of congress authorizing his "employment" in such waters. and also declaring that "pilotage shall be regulated by the law of the state where the pilm may be," adopts the local law, and makes it applicable to the New Jersey pilot so "employed" as much as if the act said expressly that the rates and other regulations as to the pilotage authorized by the act to be thus "employed," should be those prescribed by the local law of the states wherein the pilots may be. This is the mO'St literal interpretation of the words "wherein such pilots may be," and makes them refer to the place where the ser"ice is rendered, or the port to which the vessel is taken; and for which the pilotage service was v.59F.no.5-40
employed!. "wherein such pilots may. be" may also be interpre,tedto refer to the place,w:here the pilotlil are licensed; and if that were the intended, the laws of New Jersey wO'll1d .be applicable. It is immaterial. in this to decide which of .th,ese interpretations should be given, since the laws of both are the same; and both m.ake the consignee liable at the same ;rates. ConsiderinJot, therefore, that section 4236, in conjunction ,with. section 4235, ,by implication makes applicable in, favor' of pilO'ts the laws of the.one state or the other, I am of the opinion that the pilot may maintain his action in a case like the present against the consignee by virtue, of these acts of congress. The exceptions are, therefore. overruled.
THE BOLIVIA.' DEEHAN v. THE BOLIVIA. (DIstrict Court. S. D. New York. December 18, 1893.)
NEGLIGENCE-PERSONAL INJURIES-FELLOW' SERVANT-WINCUMAN'S ERROR.
Where cargo was being loaded, Into a hatch of a steamship by means of three whips; and certain boxesfell,from one of the loads upon libelant, who was working in the hold. not by reason of the improper use of three two of the loads interfered, as the libelant whips in, one. batch. claimed, but, as. the evidence showed. because the winchman prematurely let go of the brake of the winch, it was lwld thatllbelant could not recover, as the Injury was occasioned by the negllgen.ce of a fellow servant.
In Adr,niraIty. Libel"for personal injuries.. bismissed. S. B. Johnson and Joseph Fettretch, for libelant,; Wing, Shoudy & Putnam, for claimant. BROWN, District Judge; At about 11 o'clock in the forenoon ()f March 3, 1893, the libelant, while at work in the lower hold of the steamship Bolivia, lying at the foot of East Twenty-Sixth street, and engaged in" loading barrels (}f resin, was seriously injured by the fall of several boxes of logwood, which were at the same time being loaded, through the same hatch, upon the orIop deck, next above the hold. He was struck in the back by one or more of the boxes, and the spine so injured that the lower part of his body be'Came paralyzed. For the libelant it is contended, that the accident arose in consequence of the improper use of three falls or whips in the same hatch, so that the load of boxes colli:ded with the draft of resin barrels which were descending at the same time, a little below the for. mer; whereby some of the boxes on top were knocked off, and fell upon the libelant . ,For the claimant it is contended, that the use of three whips at the same time is justifiable,. being a frequent practice, where there
Reported by E. G. Benedict, Esq., of the New York bar.