realized on a fair sale should be awarded to the salvors. As already remarked, the enterprise, labors, and expenditures of the libelant have given the property here in controversy all its value. No one else has hazarded anything in its rescue. The proof is un· contradicted that the libelant will not receive more than about one-fifth of the value of the work done and the expenses of its performance. To take from him any part of the proceeds of the property under such circumstances, and bestow it upon one whose title was divested by competent authority, because of his inaction, would be simply to increase libelant's loss, and to revest the title of the property in one who has no legal or equitable ownership therein. It was argued that, if the libelant should be held to be a salvor, the proceeds of the property could not be awarded to him solely, but a part should be decreed to the persons who obtained the services of the fireboat Detroiter, which checked the progress of the flames, and prevented a further loss by fire of the vessel and cargo. The facts do not warrant any allowance for the services of the fireboat as against the claim of the libelant. Had the fund been sufficient to pay the libelant's actual expenditures and the fail' value of his work, and leave surplus for distribution, the Detroiter might be permitted to share in it, if not barred by her contract of service. But the steamer was not equipped to perform the services rendered by libelant, and bring the vessel and cargo into port. All that she did was practically lost by the submergence of the vessel, and conferred no appreciable benefit upon the salvors. The proofs fail to show that any considerable portion of the cargo in the hold was benefited by the extinguishment of the fire on deck, while it is clear that the hull of the Burlington had been so injured before the arrival of the fireboat as to make it practically worthless above the water line. A further and insuperable objection to any allowance out of the fund by way of salvage to the Detroiter is the fact that her work was done under a contract that her services were to be paid for at all events, whether successful or unsuccessful. The Camanche, 8 Wall. 448, 477; The Excelsior, 123 U. S. 40, 49, 8 Sup. Ct. 33. The libelant was the last salvor, and is entitled to priority, under the circumstances of the case, over all others. His services, including his necessary disbursements, were fairly worth the sum of $5,000, and a decree will be entered in his favor for that sum, with costs. 'l'he fund in the registry of the court arising from the sale of the Burlington and cargo is awarded to the libelant.
THE TERRIER. FERGUSON v. THE TERRIER. (District Court, E. D. Pennsylvania. March 31, 1896.)
SHIPPING-IN.JURY TO S'l'EVEDORR.
by the dropping down of a board upon him by the ship's seJ'vant, who was
Injury caused to a stevedore working in the hold beneath an open hatch,
engaged in relaying the floor of the between deck, is, in legal cOlltempla-
73 FEDERAL REPOItTEJtt.
tion, an injury caused by the ship herself; and If the same was the result of carelessness she Is liable. And It is Immaterial that the person whose negligence caused the injury was also a stevedore, since in performing the said work he was acting as a servant of the ship.
CHARTER-CONTHOl. OF OWNERS.
'Where the owners appoint the officers and crew and retain control, they remain liable to all the ordinary responsibilities of owners, although they have contracted for the privllegt' of sending a supereargo on the vessel's voyages.
This was a libel by Richard F. Ferguson against the steamship Terrier to recover damages for personal injuries. Samuel Evans Maires and Curtis Tilton, for libelant. Renry R. Edmunds, for respondent. BUTI,ER, District Judge. The libelant snes for an injury inflicted on him by the vessel while working npon her as a stevedore. There is no room for serious controversy about the facts involved. While the libelant, with other stevedores was engaged in the vessel's hold, unloading cargo, her agents and servants commenced relaying the floor of the between deck. This floor had been taken up and stored above for convenience in placing cargo. In passing the floor' ing down through a hatch immediately over the heads of the stevedores, a plank was allowed to fall, and striking the libelant inflicted serious injury. There was carelessness, both in passing the flooring down through this hatch, and in allowing the plank to fall. It should have been passed through another hatch, equally cOllvenient, whereby all danger would have been avoided. The work was being performed by the crew under the supervision of one of the mates. 'fhe evidence does not leave these facts in doubt. Is the ship responsible for the libelant's injury? This is the only question raised. In my judgment she is. FIrst because she inflicted the injury. This flooring was as much a part of her, as was any other part of the structure; that it was out of place at the time is unimportant. As.is said in the Kate Cann, 8 Fed. 719 (under similar circumstances) "in legal effect the blow inflicted was inflicted by the ship." And second, because it was her duty to see that the place where the stevedores worked was safe, while they 'were upon her. Cannon v. The Protos, 48 Fed. 919, and Records of Dist. Ct. E. D. Pa. No.8 of 1889; The Kate Cann, 2 Fed. 248, 8 Fed. 719; The Frank & Willy, 45 Fed. 494; The Wells City, 38 Fed. 48; The Carolina, 30 Fed. 200; The Relios, 12 Fed. 732; Sherlock v. Alling, 93 U. S. 108. The Germania, 9 Ben. 356 [Fed. Cas. No. 5,360] cited and relied upon by the respondent is easily distinguished from this case. There the work on which the libelant was engaged was foreign to the business and obligations of the vessel. He was arranging the cargo to suit the convenience of a purchaser, in compliance with the consignee's contract; and the court held, in effect, that the ship owed him no duty. On no other ground, in my judgment, can the decision in that case be sustained. All the court says there must be understood with reference to the special facts stated. The respondent asserts that one of the stevedores assisted ill lowering the planks, and that the accident resulted from negligence
fad would be unimIKJrtant, however, if proved.
This assertion is not sustained by the evidence. The All persons en; gaged about the work were the ship's agents and servants, and it would make no difference that others than her usual employes assisted; they were engaged about her business, for her benefit, and under her orders; and they were not therefore fellow workmen with the stevedores, who were engaged in unloading cargo. The defense set up, that the vessel was under a time charter, and not in possession or charge of her owners is not sustained by the evidence. The charter proves the contrary. Under it the owners appointed the officers and crew, and retained control; and consequently remained liable to all the ordinary responsibilities of such owners. Leary v. U. S., 14 Wall. 607; U. S. v. Shea, 152 U. S. 186 [14 Sup. Ct. 519]; l1arcardier v. Insurance Co., 8 Cranch, 39. A careful reading of the charter leaves no doubt of this. It is in effect a contract on the part of the owners and vessel to enter the charterer's service, under the conditions stipulated. The latter contracted for the privilege of sending a supercargo on the vessel's voyages, which is entirely inconsistent with the notion that they were to become the owners while the vessel was in their service. If the fact were as alleged, however, the responsibility of the ship for this injury would be the same-just as in the ordinary case of collision or other torts, which she may commit. Ko charter could relieve her of such responsibility. "As is'said in Sherlock v. Alling:
"By the maritime law the vessel as well as the owners, is liable for the damage caused by her torts. The vessel is deemed to be an offending thing, and may be prosecuted without any reference to the adjustment of responsibilities between the owners and employees for the negligence which resulted in the injury. Any departure from this liability of the owners or vessel has belm found in practice to work great injustice."
on his part.
Charterers may of course be liable also, as was held in the case of Posey v. Scoville, 10 Fed. 140, cited by the respondents. No case has been found wherein the ship was not held to be responsible for her torts under such circumstances.
THE NATCHEZ. NEW ORLEANS NAV. CO. et a1. v. WATSON. (Circuit Court of Appeals, l<'ifth Circuit. February 17, 1896.) No. 410.
SHIPPING-INJURY TO OEAMAN-LIABILITY OF VESSEl·.
,V here it was sought to recover damages against a steamboat for per. sonal injuries to one of her crew on the ground that the mate, being in command at the time, was directing the loading of bales of cotton from a wharfboat, and in the course thereof ordered and personally assisted in the negligent act, causing the injury, held, upon the testimony, that he was not so present directing or assisting; and that, as libelant was cared for at the time, returned to the port of New Orleans, paid full wages to the end of the voyage, and given a certificate entitling him to admission to the United States marine hospital, he could recover nothing further.
Appeal from the District Court of the United States for the Eastern District of Louisiana.