DA.NACl'.} V. TH;E ,MAGNOLIA.
367
with the white label and' the woman's 'head; are claim.ed to be-<the distinctive featureil of.the, The use, by the defendant's predecessor, of tb,ewoman's head antedated its use by theplaintiff'spredecessor., ·T.he upon the alleged fact of imitation of the bright fed col<?f of the box and. of the white label. Upon final hearing, after testimQ:q.y th,at p'Q,rchasers have been deceived, I may come to a different bllt ,an inspection of the two boxes shows that their appeara,npewith their, respective labels,is very different. Thedissimtlarity be'tween the the difference in the shape of the boxes. as, they are presented to the eye, are so great that it does not seem that anybody would mistake one for ,the other. The motion is denied.
the
DANACE t1. THE MAGNOLIA
et ale
" (Ut"'cuit Oo'ltrt, E. D. UJuiBiiJna. January 22, 1889.)
1.
ADMIRALTY-JURISDICTION-CONTRACTS.
t.
A contract to stow or load a vessel is not a maritlmecontract, and not en· forceable in admiralty. A Hoe! Charged that the tug lL, through its master; and as well tpeowners of M. Bros., applied to libelanUortbe use of bbelant's ba,rge, to load th,e samewitb merchandise. and a contract was made with defendant; that libelant desired to send with his barge her keilper. which"was objeCted to by defendant as unnecessary aud useless, and ,that said while in. t,he ,custod:yand control of defendant, being improperly and insecurely, negligently and carelessly loaded, sunk, and ,pecame a los8 to:libelihlf.( 'Held, that on the pleadings M. Bros. could be held liable on1y 8S :lessees of the tug M., and, the evidence showing tbat they were or lessees, no judp;ment could .be given against them,
SAJoi:E-'PLEADmo- Al!iP
PRooF.
.
, '
In Admhlilty.
J. 'Thelibel was brought by the owner ofthe against the steam-tug Iv.{agnolia and the fimn of Manson Bros" owners or lessees of said tug. ltcharges, among other things, "that on the 16th day of December, 1887, .the said tug Magnolia, through its master, and l'eprese,1;ltingas :well himselfas the owners of said tug, and the'firm of ,Manson Bros'i of this district, IlPplied to your libelant for the. use and hire .G,f said barge Mamie, to: load the same' with merchandise, that is, with 'salt,'in the course of its employment upon the navigable waters ,,-of state, /lnd .the of hire was then and there made with said :defendant ,at the, fate of fi dollars per day, as per custom; that your
368
FEDERAL REPORTER.
libelant desired to send with said Mamie, in said contract of hire, the keeper or watchman and general custodian of said barge Mamie, and same was objected to by defendant herein as unnecessary and. useless; that said barge Mamie, while in the custody and control of the defendant, being improperly and insecurely, negligently and carelessly, loaded, sunk, and became a total Joss to your libelant." Libelant prayed for due process ltgainst the steam-tug Magnolia, its master, owners, and due per&onal process against Manson Bros., and for judgment in the sum of $800. Manson Bros. answered,denying all liability, and particularly denying that they were the owners or lessees of the steam-tug Magnolia, and any privity or obligation ·of contract between them and the libelant. Thomas Forrester appeared, and claimed the tug as owner, and excepted to the libel, because therein was joined a suit in rem and in personam. Thereafter the exception came on to be heard, alld the court ordered libelant to elect as to whether he would proceed in rem or in personam, and, in compliance therewith,1.ibelant elected to proceecl in personam against Manson Bros., defendants, with right reserved of action against said tug Magnolia, .This election, and the dis111issal of the suit in rem, left a suit in personam against Manson Bros., as owners or lessees of the tug Magnolia. The:eviderlce in the case· shows that Manson Bros. were neither the owners nor lessees of the tug Magnolia; that they had made no specific .contract for the use the tug Magnolia, nor made any contract for the use of the barge Mamie; but shows that they made a contract with one Mr. Leland to transport by the Mississippi river 2;600 quarter bags of sll1t, equal to about 6.5 tonsinweight, from a landing at Jackson Square to their warehouse, opposite Washington street, all in the city of New Q.rleans. The said Leland was to furnish the necessary' barge and tug· . Manson Bros. were to pay $17 for the service and were to do the loading and unloading themselves. It further appears in the case that, for the purposes of .the contract, Leland obtained from the libelant the use of his barge, worth ab.out $400, and the use of the tug Magnolia; that the salt wasloaded on the barge by Manson Bros., and the barge was towed up tb the warehouse, arriving too late to unload that day. During the night the barge sunk, and was a total loss. The bulk of the evidence in the case was directed to the question as to whether the barge sunk because of defective loading, or because the barge was unseaworthy. It is very voluminous and conflicting. From my examination of it, I am disposed do concur with the district judge, who found that the barge sunk because 'it was impr.operly loaded. ' From this statement of the case it is easy to to be seen that there is not sufficient pleading here to hold Manson Bros. liable in any other capacity than that of owners or lessees of the tug Magnolia.: As they were not the owners or lessees of the tug Magnolia, n(): jUdgment can be given against them on this state of the pleading. Fr6m: tbe facts of the case it appears that the only contract that Manson ·Bros. rriadewith anybody was to pay freight on delivery of the goods, and 'io load and unload the goods. As the barge sunk from improper loading, Manson Br.os., if liable at all, are liable for improper loading
KROHN V. THE JULIA.
or stowage of the cargo. By the settled jurisprudence of this circuit, since the decision 'of Mr. Justice BRADLEY in the case of The !lex, 2 Woods, 229, the contract to stow or load a vessel is not a maritime contract, and not enforceable in admiralty. Of course, if the contract, for the violation of which damages are sought, is not a maritime contract, the admiralty is without jurisdiction. Neither on his pleading nor on the facts of the case is libelant entitled to recover in admiralty. A decree will be entered in this case dismissing the libel herein against Manson Bros., with costs of both courts. \
KROHN V.
THE
JULIA.
(Circuit Court, E. D. Louisiana. January 19,1889., ADMIRALTY-JURISDICTION-CONTRACTS.
A libel alleged that the schooner received a certain quantity of charcoal consigned to a place named on account of libelant; that the master contracted to carry the charcoal to 'the place of destination, there to sell the same; and account to libelant for the price at a given rate per barrel; that the agreement ,is the general custom among charcoal schooners; that the contract was one of affreightment, whereby tbe schooner was to transport the charcoal and of· fer it for sale, under obligation of accounting for the price named; that the schooner sold the charcoal. and refuses to account, the master's receipt being for the charcoal at the stated rate per barrel, "to be paid when sold out." Held that it showed a transfer 9f the title to the charcoal tothe schooner, and not a maritime contract; and that the admiralty court has no jurisdiction.
In Admiralty. Libel on contract. H. P.Dart, for appellant. Hor'ncrr & Lee, for appellee.
On appeal from district CO\!rt.
PARDEE, J. The libel alleges that on or about the 15tl! day of January, 1888, the schooner Julia, of New Orleans, whereof Meyer was master, being then in the Tchonticabourg river, Mississippi. depigned on a voyage to New Orleans, did receive from libelant 1,330 barrels of charcoal, consigned to order, to New Orleans, on account of libelant; that the said master contracted, in behalf of the said vessel, to carry said charcoal to New Orleans, there to sell the same, and to account to libelant for the price thereof at the rate of 15 cents per barrel; that the agreement thus made is the general and usual custom among charcoal schooners; that said schooner Julia received the 1,330 barrels of charcoal, and brought the same to New Orleans, there sold the same, and now refuses to account for the said proceeds, as covenanted by the said master; tbat the said charcoal was sold by the said schooner at the price of 15 cents per barrel, and that the sum now due libelant therefor is 6199.53; that libelant received from said schooner Julia the receipt hereto attached as part hereof, at the time of said shipping and said furnishing; that the whole was sold and delivered on the faith and credit of said schooner v.37If.no.7-24