; :gut[ the:questiorui presenfeddn:this case are: (1) Does a.nimplied contract to pay wharfage dues result from a vessel's making fast ata place: on the banks of the Mississippi; river where no prohibition to land existB,811d where no facilities wnatev.er are furnished for landing vessels or goods? (2) Can the city ofNewlOrlelms, by ordinanCe, exact wharfage aues from vessels landing or making fast to the baUure of the sippi river ill front of the city, at· places where no artificial facilities whatever are furnished? "The' use of the banks of navigable rivers or streams is public. A(}<o cordingly, everyone has a right freely to' bring his vessels to land there; to make fast the same to the trees which are there planted," etc. Rev. Civil Code La. art. 455. See enabling act providing for' admissionoi Louisiana, (2 St. at Large, 641.) ." From thiait is clear that no implied contract to pay wharfage dues resUlted fromthelanding'ormakingfast of the LizzieE; Without an express oHll1plied contract,: the maritime lien does not· arise in this case. A:. city 'ordinance exacting dues as'rwharfage dues for"landing vessels, where no facilities for landing either' vessels or ·goodsare furnished, is practically nothing but an ordinance lev.Ying a tax or charge for landing, and such tax' is probablY'atonnage tax, which cannot'belaid without the oonsent of co.ilgress. See ·(hnntm'\"; Orleans, 20 Wall. 577; Packet 00. v;: K'tdkU1c,L95 U. S. 89. A :chat.ge for Wharfage for that which is not a wharfj but' merely the· naturaJ'ilnd 'unimprovErl shore ofa gable river,: will not be'maintained. : Packet 00; v. Keokuk;8W/YI'a; Shreveport v.: Ooast'lAIY/:e, 37 LIfo Ann. 562.. Nor will a charge for Wharfage in favor of aeorporationbe niainfuined and enforced, unless it appears from the evidence that it restB on services rendered by the (J()rporation to vessels or boatBby means of wharves or'wharfage faoilitiesprovided and maintained at the expense of the corporation, and by means of which the loading' atid unloading of boats< otvessels is materially and specially benefited.'· Id; The Lizzie E. might have used l!iome of the mooring posts planted or owned: by libelant, but she was not bound to. ,A 'Will be entered dismissIng the libel, with costs of both courts.

New

Rehearing refused :May 11, 1887.

THE FURNESSIA. 1 SMITH 'V.

THE.

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MA.8TER lWBVANT- ,NEGr.IGENGE-:.' STEVEDOBE..,

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. Libelani, 8, stevedore. was employed :bythe ship·owneritoassist in loading ".8 "esseliWhlle so. he WILS. jnjured, by ,the, falling "pon him of lum.per 0Rtpf It sling. ,Til"" boatswain of t.4\'l, YJlssel., was tnc::hlU"l'!l the steam.... _ ",' , '" ""',"';""'"

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Reported by Edward G. Benedict, Esq., of the New York bar.

THE· WISOONSIN·.

'879

winch by which the timber was handled. Held that, even if the accide.l)t ocnot recover, SS, under curred by the boatswain's negligence.. the circumstances of their hiring, he and the l;Joatliwain1tere

In Admiralty. JohnJ. Allen, for libelant. Hill, Wi1l9 &: ShlYUdy. BENEDICT, J. AsstUl1ingthatwhat caused the timberto fall Qut of the sling, and, upon the libelant, engaged at the ti'ine in stowing the timber in theho1d;was negligence on.thepart of the boatswain6fthe ship, 'who for the moment was in charge of the steam-wineh by which the tim'ber wM lowered to the hcild,still the libelant :cannot recover. The opin hand was loading the ship with the lumber. The libelant was 'a stevedore, "engaged in the loading. He was selected by the. boss steve'dore to work as stevedore, bu(paid for his work by the ship's ,owner. 'The ship wasn'ot loaded under 1a contract, but by men employed' by the ship to qo the' work required. The boatswain was employed by the ship, his duties were those of a boatswain on a, ship. While hoistirig, in ,'.cargo, the ws;s run by the ship's crew, and not br the steve'dore'stnen., ,and 'the boatswain who was managing the Winch at the time '·oUne accident was not .subject to the directior(of the steveddte, but)'V.lls ·.oneofthe.ship's crew. Nevertheless. he and the libelant were fellowthey were engaged in It #ingle operilti6n, and :by the filiip's owner to the same. 'The: Hardld, 429. Bein,g engaged ina common undertaking, he '.(Ja.nnot recoVer f6r damages r.esulting to him ·from the negligence of the 'boatswain While so engaged." , ,'. '. . The libel must be , . !' .
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,THE W18CONSIN.

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CtJsHING, a.nd otherst1. THE WISCONSIN.

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May 6, 1887:)

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RIISK - DOUBTFUi,

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.' The stelilIl-ship W. went ashore,aud got of[ with the loss ofherruddel'.' She
and staunch, and in no especial danger. but the weather was doubUul, 8r.'\.I her master desired to be in the harbol' before the fall of night. in view of her ,diS.ab,JeQ.co, ition,.T,he,1'{"··inc, u, e w, as" $4\>0.000.... The v"lu.e, pf . W.,her ca.. .. ' Q.eI4. ··· 9(lO salvage should be allowed. . , ..lReported by Edward G, :Benedict, Esq., of the New York bal'.