GREGORY V. ORRALL· GREGORY and others v. ORRALL
(Otrcuit Oourt"D. 1.
Where such a casualty happens to a vessel as requires salvage Rervices to be rendered and extraordinary repairs to be made, owners of the goods on board;' if called upon doao, must contribute to 'the expense thereby incurred, pro-·' vlded such casualty.was due in no way tO,the previous negligence of the master. :'
OF PROOF. _
making out negligence ilion such owners.
In Equity. ': ,I , '0. F. J/ T. H. Russell, for complaina.nts. John C. DdiJ,ge ct. Sons, for defendants. , i LoWELL, C. J .. This bill is, brought by the owners of masted schooner Cephas Starret, against the shippers of a. part ,of th.x cargo, for a contribution to general average. On the, twenty-sixth of: Jtdte, 1879, the ,schooner was lying at New Orleans, ready for sea, having taken on board the timber belonging to the defenl;lat;ltsJ which was stowed in the ,hold, and twenty bales of compresl:\ed rags, the property of other consignees, stowed between decks. The crew had shipped, but only the mate, boatswain, and cook had comeot;l, board. The master spenUhe -night on shore. When he left the ship the mate was on ahore, but. was expected to return soon. The boatswain and cook usually slept on deck, on top of the forward house. He gave general directions to them to keep a sharP lookout, not meaning that they should keep watch, and none was kept, so far as he During the knows. The mate, I suppose, was to sleep in night a fire broke out on board the ship, of which the master was first informed by the mate. The charges and expenses for which contribution is asked, are for salvage paid foJ.: steamers, or floating fire-engines, used in putting out the,fire, and for extraordinary repairs and supplies, rendered necessary by damage suffered in the course of putting out the flames. , The defendants allege that the 10s8 was caused in whole or in part by the negligence of the master. If this is made out, the ship-owners must bear the whole, because it is only when the carrier bas been involved in a peril by a superior force, or by misfortune, without his own fault, that he can throw a part of the burden of relieving the property imperiled npon those persons whose goods be ;was bound to carry and protect with diligence and reasonable skill, as in the instance commonly put in the books of the jettison of goods which
· had been stowed on deck by the master without the authority of the owners or of an established usage, . I understand it to be usual in the port of New Orleans, as in other ports, to maintain no watch upon a vessel with an ordinary cargo, such as cotton, when she has been fully loaded and is lying at a wharf. Unless there are some peculiarly valuable goods, easily stolen, ordinary care, as in fact exercised, does not require a watch to 'be kept. It is, however, usual to close the hatches of vessels at night, and one of the hatches of this vessel was left open. The question, therefore, is whether this was such negligence as will charge the master and owners with the loss. The master is the only witness examined who was on board the ship. He is of the opinion that the fire was set by an incendiary, and he gives some reasons for this conclusion. If this be so, then the open hatch may have tempted or aided the commission of the crime. Such is the argument. The negligence is not made out. It does not appear to me that a vessel with two men asleep on her deck, and one in her cabin, is likely to have been set on fire; nor that it would have been safer to stow the hatches and leave the ship with no one on board. I do not understand that hatches are necessarily or usually fastened for the night so securely that an incendiary would have the least difficulty in prying them open; or that it is at all probable that the state of the hatches could be observed at night, and have tempted a stroller. If it was so light that the hatches could be seen, I suppose the men lying on the forward house could be seen. That a clerk sleeps in a shop is considered by underwriters a great protection against thieves and incendiaries, and so it is on board ship, I suppose. The information which we have of the causes and circumstances of the fire is meager, but this does not shift the burden of proof. The defendants are to make ontnegligence. The m·aster tells us what his orders and dispositions were; whether they were carried out I do not know. It may be that the mate and both the men left the ship, or one of them may have SE t the fire; but there is no proof of any of these things. If the ill lster's orders were reasonably prudent, and there is no evidence that they were not obeyed, aIld he was not negligent in sleeping on shore himself, the defence fails. Decree for the complainants.
'KITH f1. OITY OJ' J'OND DU LAO.
OJ' FOND DU LAO.
HIGGINS V. SAME.
((}Wcuit Ouurt, E. D. WiaconBin.
JuJ,y 12, 1881.)
IIUNIOlPAL BoNDS-RAILROADS-CONSTITUTION 01' WISCONSIN, ART.
11, f 8. The legislature of Wisconsin pa811ed an act whereby it authorized the defendant to subscribe to the capital stock of a particular railroad, and to make, issue and deliver to such company its bonds, etc., provided a majority of the legal voters of the defendant municipality shall flrst have voted in favor of such subscription, as also in favor of a Proposition, in writing, stating the amount, kind, and description of stock or bonds, etc., to be subscribed, submitted by such railroad. The statute set no limit to the amount of such subscription, except that the city authorities could make only such subscription and issue such amount of bonds as called for by this proposition. In an action brought by holders of coupons attached to these bonds, held, such statute is not in con· flict with section 3 of article 11 of the constitution of Wisconsin, providing for a restriction upon the power of municipalities, among other things, to borrow money, contract debts, and loan their credit.
A federal court, when determining the rights of parties under 8 state law, will never, in 8 doubtful case, adjudge such law to be in conflict. with the constitution of the state, unless sustained in so doing by some distinct adjudica. tion of the highest court of the state. Foster v. Oity of Kenosha, 12 Wis. 618, and Fisk v. Oityof Kenosha, 26 Wis. 23, examined and distinguished.
FEDERAl. COURTS-UNCONSTITUTIONAL STATE LAWS.
These are actions by the holders of coupons attached to certain bonds issued by the city of Fond du Lao in payment of a subscription made in its behalf to the capital stock of a railroad company originally known as the Milwaukee & Northwestern Railway Company, but whose ,name was subsequently changed to that of the Northwestern Union Railway Company. Eaoh bond, dated November 7. 1871, is made payable to the Northwestern Union Railway Company, or bearer, and recites that it"Is one of a series of 750 bonds, bearing even date herewith, each for the sum of $100, and is issued in pursuance of an election held in said city on tile seventh day of November, 1871, under and by virtue of a certain act of the legislature of the state of Wisconsin, approved March 21, 1871, entitled 'Au act to authorize certain towns, cities, and villages therein named to aid the Milwaukee & Northwestern Railway Company,' by which said act certain towns, cities, anel villages were enabled to subscribe for and take stock of the said Milwaukee & Northwestern Railway Company, at which election llo majority of the legal voters of said city voted' for the railway proposition,' requiring the said city to for and take the common stock of the said Milwaukee &; Railway Company, in the sum of $75,000, and to issue the of thp """id city therefor; and the sd.id election having been dUly