decree providing for judgment and executions against the principals and stipulators in the several stipulations which had been entered into in the suit. Before executions issued, however, the respondents and petitioners filed in this suit a petition for limitation of their liability as owners of the schooner Mary Lord. And, upon application, the court, following the practice indicated in Norwich Co. v. Wright, 13 Wall. 104, 126, 128; The Benefactor, 103 U. S. 239, 243, 244, 249, 250,-ordered a stay of execution upon the final decree in the original cause of collision. Libelant now moves to dismiss the petition, on the ground that the circuit court has no original jurisdiction of it.

Almon A. Strout, for respondents and petitioners, owners of the schooner Mary Lord.

Edward S. Dodge, for libelant, Carson.

COLT, J. The point taken by the libelant, that the circuit court has no jurisdiction over this proceeding except upon appeal, and that the petition should be filed in the district court, appears to me, on a review of the whole subject, to be sound. That such was the law previous to the adoption of admiralty rule 58 cannot be doubted, and I do not think this rule was intended to give original jurisdiction in these cases to the circuit court, but only jurisdiction where, as the rule specifies, "such cases". e., cases of proceedings to limit liability-are pending, upon appeal from the district court. This rule was the outcome of the decision in The Benefactor, 103 U. S. 239. In that case the supreme court reversed the decision of the circuit court, and the question arose whether further proceedings for limiting the liability of the owners should be had in the district or the circuit court. The original proceeding was begun in the district court, appealed to the circuit court, and then to the supreme court, and the supreme court decided that further proceedings might be had in the circuit court, and, in order to avoid all future objections as to the ability of the circuit court to proceed, promulgated the fifty-eighth rule.

It has been held that, under the statute (sections 4282-4287, Rev. St.) conferring the right of limitation of liability of ship-owners, the district courts, as courts of admiralty, have jurisdiction; that the circuit court has not jurisdiction; and that, unless the district courts have jurisdiction, it must be inferred that congress passed a law incapable of execution. Norwich Co. v. Wright, 13 Wall. 104, 123; Providence & N. Y. S. S. Co. v. Hill Manuf'g Co., 109 U. S. 578, 598, 599, 3 Sup. Ct. Rep. 379, 617.

In the rules promulgated by the supreme court, vessel owners are directed to file in the proper district court a libel or petition. Admiralty Rules 54, 57. Neither the decision of the supreme court in The Benefactor nor rule 58 changes this. Indeed, it is difficult to see how original jurisdiction can be conferred on the circuit court except by act of congress. In no case has it been held that the circuit court has any original jurisdiction under this act. The Luckenback, 26 Fed. Rep. 870, is a recent case bearing on this question, and the reasoning of Judge v.31F.no.7-27

BROWN is to the effect that rule 58 was not intended to determine the place where the original proceedings to limit liability should be commenced.

These considerations render it unnecessary for me to express any opinion upon the other point taken by libelant, viz., that this petition cannot properly be filed in this suit, and at this stage thereof, aside from the question of jurisdiction. Petition dismissed.

THE WM. F. BABCOCK.

WALSH V. THE WM. F. BABCOCK, Her Tackle, Apparel, etc.

(District Court, N. D. California. June 17, 1887.)

SHIPPING NEGLIGENCE-LIABILITY FOR PERSONAL INJURY-FELLOW-SERVANT— INDEPENDENT CONTRACTOR.

The libelant, an employe of the master stevedore, who was loading a vessel under contract, was injured by stepping into a small trimming hatch, in the between-decks, while engaged in storing cargo. The light in the betweendecks was dim, and libelant did not know of the existence of the hatch, or that it was uncovered. When the vessel was turned over to the master stevedore to be loaded, this trimming hatch was covered. It was subsequently uncovered by the stevedore's foreman. Held, that the vessel was not liable for the injury.

In Admiralty.

Walter G. Holmes and O'Brien & Morrison, for libelant.
Milton Andros, for claimant.

HOFFMAN, J. The libel in this case is filed to recover damages for injuries sustained by the libelant while engaged as a stevedore in lading the cargo of the above vessel. The gang of men to which he belonged was employed in taking cases of salmon on board the vessel, and stowing them in the between-decks, forward of the after-hatch. In the direct course of the men to the place where the cases were to be stowed was a hatch known as a "trimming hatch," which had been partly uncovered. Into this the libelant, who had just come down from the broad daylight on the wharf, stepped his foot, and the case, escaping from his grasp, struck his arm, fracturing or otherwise injuring it. The hatch was perhaps in a somewhat unusual position, being amid-ships, instead of, as is more common with trimming hatches, midway between the mid-ships line and the wings. It was about three and one-half feet square, but it was divided in the center by shifting boards, which were attached to the stanchions of the between-decks. The aperture left on either side of the shifting boards was 2 feet in length by 12 or 13 inches in width. It was into this aperture that the libelant put his foot.

The usual attempt is made to show that the accident was caused by

the man's own carelessness. It is said that the light in the betweendecks was amply sufficient to enable him to see and avoid the hatch, with ordinary care. It is also said that he had freely indulged in beer, and that he, as is said to be usual with stevedores when at work at a late hour of the afternoon, was under its influence. With regard to the light, I am of opinion that it was sufficient to enable any one apprised of the existence and position of the hatch to see and avoid it. I also am inclined to think that, with reasonable care, it might have been avoided by a stranger to the ship, who had been in the between-decks long enough to accommodate his eyes to the diminished light, but not by one ignorant of the existence of the hatch, and who had just come down from the broad daylight. The evidence that the man was sufficiently under the influence of liquor to justify us in attributing the accident to that cause is not satisfactory. If we are asked to infer that such was the case, from the usual habits of stevedores, that fact presents an additional reason why they should not be exposed to injury from traps of this kind, when it is known that their probable condition will prevent them from exercising the care and caution which at an earlier hour of the day they would have observed. The ship was provided with gratings to cover the hatch. It is not shown that any necessity of her service required that it should be left uncovered, either wholly or partially. That there was danger to be apprehended from it, under the circumstances, seems to have been recognized by one of the libelant's comrades, who immediately preceded him in the line of men carrying the cases. He testifies that he thought of warning the libelant of the existence of the hole, but that somehow he forgot to do so. My opinion is that the injury to libelant was caused by negligence other than his own.

Is the ship liable for the consequences of this negligence? The stowing of the cargo was conducted by a gang of men employed and paid by Allen & Young, the well-known firm of master stevedores in this city. The work was performed under the exclusive superintendence of their foreman. There does not seem to have been any crew on board the vessel, nor any officers, except the master, who came down to the ship in the afternoon. But whether or not any of the crew or officers were engaged in the performance of any duties on board the vessel, the taking in and stowing of the cargo was conducted under a contract made by the vessel with the master stevedores, whose servants the men were. There was therefore no privity of contract between the libelant and the master and owners of the ship, nor did the relation of master and servant, in its technical sense, exist between them. But this does not affect the liability of the master and owners, if the former had been guilty of negligence. The Rheola, 19 Fed. Rep. 926; The Kate Cann, 2 Fed. Rep. 241; 8 Fed. Rep. 719; The Calista Hawes, 14 Fed. Rep. 493; Hough v. Railway Co., 100 U. S. 220; Coughtry v. Globe, 56 N. Y. 124; Mulchey v. Methodist Soc., 125 Mass. 487.

But if the negligence was not that of the master, but of an independent contractor, or of the stevedore having charge of the loading of the ship, the latter, and not the owners, is liable. Bennett v. Truebody, 66

Cal. 509, 6 Pac. Rep. 329; The Victoria, 13 Fed. Rep. 43; Dwyer v. National S. S. Co., 4 Fed. Rep. 493.

At the time the ship was turned over to the stevedores the trimming hatch was completely covered. The deck was also covered with dunnage two inches in height, i. e., inch boards laid on battens one inch high. The master, I believe, (although there is some discrepancy in the evidence on this point,) told the foreman of the stevedores that one inch of dunnage would be sufficient for case goods. He gave no directions that the trimming hatch should be left uncovered. He did not see the boards removed from the hatch, nor did he know that it had been done. All the details of the operation of loading the ship were under the exclusive charge and superintendence of the foreman of the stevedores. If he, in obeying the master's general direction, to the effect that one inch of dunnage would be sufficient, removed the boards which covered the hatch without warning his men of the existence of the hole thus opened, it seems to me that the negligence was his, and not that of the master. The circumstances of this case differ widely from those of the cases to which I have been referred, and most of which are cited in this opinion. In every instance there was manifest negligence on the part of the ship-owners or their servants in failing to provide adequate appliances for discharging or lading the vessel, or in turning her over to the stevedores, with an uncovered and dangerous "trap," in a dark and unusual place. In this case the hatch was uncovered by the foreman of the stevedores. It was his duty either to leave it covered, or, if its removal was necessary to conduct the work, to warn his men of the danger to be apprehended from it; and this seems to be the view of one of the libelant's fellow-workmen, who thought of telling his comrade to beware of the hole, but forgot to do so.

I think that the ship is not liable, under the circumstances, and that the libel should be dismissed.

THE ELIDA.1

ZINCKE, Master of the Elida, v. WITTHOFF and others.

(District Court, E. D. Pennsylvania. June 28, 1887.)

1. DEMURRAGE-TRANSFER OF CARGO-NOTICE.

To relieve the owner of a cargo, when he has transferred it, from responsibility for demurrage, he must show that notice of such transfer was given to the master of the ship.

2. SAME-CUSTOM OF PORT.

Demurrage will not be allowed for delay caused by unloading in accordance with the custom of the port.

In Admiralty.

1 Reported by C. Berkeley Taylor, Esq., of the Philadelphia bar.

Charles Gibbons, Jr., for libelant.

Driver & Coulston, for respondents.

BUTLER, J. Knowledge of the alleged transfer of cargo by respondents is not brought home to the libelant. To shift responsibility for the demurrage claimed this fact should be made clear. The respondents were dealt with as owners throughout. They were looked to for the freight, and they paid it. This point presents no difficulty, and may be dismissed without further remark.

There was delay in reaching the wharf. The respondents admit liability to the extent of one day. I think another should be allowed for detention at this time. The evidence seems to require it, though there is some conflict between the witnesses about this. Are they liable for subsequent delay? This is the most serious question. An undue amount of time was occupied in unloading. Did this result from fault of the crew, who put the barrels out, or of the respondents, who received. them?

Complaint is made of the position in which the vessel was placed at the wharf. This position, it is alleged, seriously retarded the work. It appears, however, to have been in accordance with the custom of the place, and is therefore not a proper subject of complaint. There is no doubt, however, that the position, and the state of the weather, interfered with the work, and thus some part of the time lost is accounted for. Does the evidence show that further time was lost by tardiness in receiving the barrels? The testimony on the one side and the other is irreconcilable. The witnesses are apparently all equally qualified to speak on the subject. I do not propose to discuss it. A careful examination has satisfied me that some delay was caused by tardiness in this respect. I am equally well satisfied, however, that all the delay did not result from this cause. It is a significant fact that the libelant settled for the freight without complaining in this respect. It is not consistent with the allegation that so great a loss had been sustained from this cause, that he should neither have protested while unloading, nor demanded compensation when settling. Still, as we have seen, the respondents admit liability for one day's detention in getting to the wharf. The failure to demand compensation for this tends to weaken the force of the inference just referred to; and, as before stated, I am convinced that some delay did arise from tardiness in receiving the barrels. cisely how much, it is difficult to say. The burden of proof is on the libelant, and the consequences of uncertainty must fall on him. The respondent must not be held accountable for a greater sum than can be awarded with safety. One day will cover this, in my judgment, and the libelant will be allowed the demurrage provided by the charter for this, and the previous day referred to, in addition to the amount paid To what cause the remaining time, unnecessarily occupied, should be ascribed, need not be determined. It is sufficient that the evidence does not justify me in holding the respondents liable for it. A decree must be prepared accordingly.