the boat, one extending from one side to the center, the other from the other side to the center, each man opening one-half; but on the trip in question the baggageman opened both halves of the gate in succession, and in so doing did not use the usual care and observe the position of the passengers, but in opening the gate in front of the libelant and her mother he negligently swung the gate, after calling "Hands off," in such a way that it came in toward the libelant and her mother, and the libelant, fearing injury to her face, instinctively put up her left hand to protect her face, whereupon the end of her left thumb was caught in the gate in such a way that it became necessary to open the gate to allow libelant to remove her thumb. The opening of the gate was accomplished by the regular deckhand. The libelant had a traumatic fracture of the end of her left thumb and loss of a small portion of the bone. The libelant suffered severe pain and suffering. Immediately after receiving the injury she was taken to the Broad Street Hospital, where she was treated, and returned for further treatment 16 or 18 times. There was a sharp conflict in the medical testimony as to whether there will be a permanent deformity of the end of libelant's left thumb, and as to whether she has suffered loss of sensation in the end of her said thumb. The thumb is but slightly shortened, and there is no impairment of the joint. Neither physician claimed that he was an expert on the subject of scar tissue. There is a scar going quite a distance around the thumb, which results in the end of the thumb, for about one quarter of an inch from the end, being constricted, causing a deformity which is quite noticeable when attention is directed to the thumb. That there will always be a deformity seems to be reasonably certain, as a deformity still existed at the time of the trial, after the lapse of nearly four years. But I also accept as reasonably certain that the constricted end of the thumb will to a large extent fill out, due to the fact of the youth of the libelant, and that a child recovers better than an adult, and improves with age. Such loss of sensation as there may be is not great and is in the scarred area. That the libelant will be deprived of the opportunity of following any calling or profession, due to the condition of the thumb, has not been shown to my satisfaction; but, of course, she will be handicapped by the deformity of her thumb in any instance where the thumb must be brought to the notice of others. The contention of the respondent that there was any contributory negligence, which could be imputed to the libelant, because her father was on the other side of the boat and not holding her hand, which was injured, seems to me to be entirely without support in law. Libelant was where she had a perfect right to be, and was under the care of her mother, who was exercising due care and doing all that could legally be required. [2] The statute of limitations of the state of New Jersey is not a defense, first, because this court, sitting in admiralty, is not bound by a state statute, unless laches be shown, although a state statute might and undoubtedly would be considered; and, secondly, because the injury was received in the state of New York, and not the state of New Jersey, and, if any state statute applied, it would be that of the state of New York, and the action was commenced within the time limited by that statute. The libelant was without fault, and the respondent was solely to blame. A decree may be entered in favor of the libelant for $750 and costs. aff1 21 7ted) 313. THE FEDERAL NO. 2. (District Court, E. D. New York. March 24, Indemnity 13(1)-Shipowner, compelled to Hospital expenses for cure of a seaman, injured in the service of a ship, for which the owner was liable as matter of contract and has paid, are not recoverable by him from another, whose negligence caused the injury. In Admiralty. Suit by the Gypsum Packet Company against the steam tug Federal No. 2. On exceptions to second cause of action set forth in libel. Exceptions sustained. Barry, Wainwright, Thacher & Symmers, of New York City, for libelant. Kirlin, Woolsey, Campbell, Hickox & Keating, of New York City, for claimant. CAMPBELL, District Judge. This case comes before the court on the hearing of exceptions to the second cause of action, on the ground that libelant has failed to state facts sufficient to constitute a cause of action by it against the tug Federal No. 2, and to the interrogatories annexed to the li 14 F. (2d) 530 bel on the ground that they are directed to the second alleged cause of action, and will fail if claimant's exceptions to the second cause of action are sustained. The first cause of action is for collision damages alleged to have been caused to the barges Glooscap and Blight, owned by the libelant, against the steam tug Federal No. 2. The second cause of action is brought by libelant to recover against the said steam tug Federal No. 2 the sum of $556, which the libelant alleges it was obliged, as the employer of seaman Parr, to pay to the United States for charges made by the United States on account of hospital services furnished to said Morton Parr, a member of the crew of the Glooscap, and as such an employee of the libelant. The libelant alleges in said cause of action that, just prior to the collision described in the first cause of action (which was therein alleged to have occurred on August 16, 1924), Morton Parr, a member of the crew of the Glooscap, was properly performing ship duties on the bow (forecastle head) of the Glooscap, and that the Federal No. 2 so negligently managed itself and the Glooscap, which it had in tow, and so negligently managed the towing hawser, that the hawser suddenly and without warning swept over and across the bow of the Glooscap and struck said Morton Parr, knocking him down and causing him injuries, and as a result thereof said Parr was necessarily removed to the United States Marine Hospital at Stapleton, Staten Island, and necessarily remained there for medical treatment until about January 21, 1925; that such injury to said Parr was due to the fault and negli gence of the Federal No. 2 and those in charge of her, and was not caused or contributed to by any fault or negligence of the libelant, or on the part of any one for whom the libelant is responsible. The theory on which libelant seeks recovery is that it was obliged to provide maintenance and cure for the seaman Parr for injuries sustained while in the service of the ship, and, as those injuries were caused by the negligence of the Federal No. 2, she was liable to the libelant therefor. To sustain this contention libelant attempts to show that there is an analogy between seamen and children, but I am unable to follow libelant's reasoning. The obligation of parents to maintain and provide for their children is not contractual. Cuming v. Brooklyn City R. Co., 109 N. Y. 95, at pages 100 and 101, 16 N. E. 65. The right to maintenance and cure on the part of a seaman under our law is contractual. The Hanna Nielsen (C. C. A.) 273 F. 171; The Bouker No. 2, 241 F. 835, 154 C. C. A. 533. Accident insurance is not a contract of indemnity only. The insured may recover from both the tort-feasor and the insurance company. Suttles v. Railway Mail Association, 156 App. Div. 435, 141 N. Y. S. 1024. An action cannot be maintained against a person for assaulting and beating one of the paupers of a town, by one who had agreed with a town to support for a specified time, and for a fixed sum, all of the town paupers, in sickness and in health, because he was thereby put to increased expense for the pauper's care and support. Anthony v. Slaid, 52 Mass. (11 Metc.) 290. It thus appears that the proximate cause of libelant's damage is the contract which it made with Parr, and I do not believe that the claimant can be held liable upon the producing of the contingency which makes the libelant liable under his contract. Libe!. ant does not plead any foreign law, and, if it did, I do not see how it could recover thereunder against an American vessel for a tort alleged to have been committed in an American port. Libelant seems to rely on 8 U. S. Comp. St. 1916, § 9193. This is not a mandatory statute, and does not require an alien shipowner to care for his seamen in a United States Marine Hospital, or any other place, but does provide for payment by the owner to the United States Marine Hospital, if the owner avails himself of the facilities of said hospital to furnish maintenance and cure, for which libelant is liable. There are no allegations on which liability in this case under the Diseased Alien Seaman's Act of 1920 (Comp. St. § 42804sss) can be found, and therefore The Yucatan, 46 S. Ct. 114, 269 U. S. 304, 70 L. Ed. 1926 A. M. C. 11, is not in point. The libelant has not, in its second cause of action set forth in its libel, alleged sufficient facts to constitute a cause of action. The exceptions to the said second cause of action and the interrogatories are sustained. KING v. PETTERSON. (District Court, E. D. New York. June 21, 1926.) No. 7650. 1. Shipping ~58(2)—Owner held entitled to interlocutory decree against charterer in libel for damages to vessel. Showing that charterer, on receiving vessel, towed it to another place, loaded it with cargo, but returned it, with hole two feet in diameter in its bottom, coupled with charterer's admission of some damage, held sufficient to entitle owner to interlocutory decree in libel for damages. In libel of charterer for damages to vessel, burden of proving negligence is on libelant. 4. Shipping 58(2). Proof of failure of charterer to return boat in same condition in which she was received, as agreed, makes out prima facie case of negligence, in libel for damages. In Admiralty. Libel by Bertell W. King against N. N. Petterson for damages to boat. On motion to dismiss. Motion denied, and decree for libelant. Bigham, Englar & Jones, of New York City, for libelant. The libelant did not offer any evidence as to the condition of the Transportation when taken by the respondent. The answer admitted that the boat had received some damage while in possession of the respondent, but denied the allegations as to charter and pleaded, by way of defense, that the boat was unseaworthy. No evidence was offered by the respondent. At the close of the libelant's case the respondent moved to dismiss, on the ground that the libelant had failed to prove any cause of action. Respondent contends that libelant was bound to show that the Transportation was seaworthy when taken by libelant and that the respondent was guilty of negligence. [1] That it will be extremely difficult to determine the amount of damage suffered by the Transportation, unless libelant can show her condition at the time she was taken by respondent, cannot be denied; but I think that this court can take judicial notice of the fact that she could not have been towed from the Jersey City dry docks to Tarrytown with a hole two feet in diameter in her bottom, except she was towed deck-to, and that no cargo could have been loaded on her in that condition, and that, coupled with the admission in respondent's answer of some damage, would be sufficient to entitle the libelant to an William F. Purdy, of New York City, interlocutory decree, so far as that point is for respondent. concerned. CAMPBELL, District Judge. Libelant and respondent agreed, over the telephone, on September 19, 1924, that respondent would take deck lighter Transportation, with mast and boom, owned by the libelant, then at Jersey City dry docks, to Tarrytown, and use her at his first opportunity. Her time was to start when respondent took her in to load, and they were then to agree on a reasonable charter rate. She was taken on a bareboat basis, and respondent was to return her to libelant in the same condition as when received, except usual wear and tear. Respondent took the deck lighter Transportation. On September 30, 1924, the respondent called the libelant on the telephone and told him that the boat was on the rocks at Tarrytown, and that on September 27, 1924, the Transportation had been loaded with cargo. The libelant went to Tarrytown and found the boat on the shore. A large boulder had gone through the bottom of the boat, making a hole of about two feet in diameter, and breaking everything in the neighborhood, and another rock had broken the timbers at the bow near the rake. [2] Libelant made no express warranty of seaworthiness, but, of course, there was an implied warranty of seaworthiness in the oral charter, and, if it was shown that the boat was not seaworthy, libelant could not recover. But libelant has shown that he delivered to respondent the boat which he agreed to deliver, at the place specified, and no authority has been submitted by respondent which holds that libelant must prove, as a part of his case, the seaworthiness of the boat which he impliedly warranted. If respondent contends that there was a breach of warranty because the boat was unseaworthy, it seems to me that such contention should have been raised by way of defense. No evidence of unseaworthiness was offered. [3, 4] The burden of proving negligence rests on the libelant, but the failure on the part of the respondent to return the boat in the same condition in which she was received, as agreed, makes out a prima facie case of negligence; and, while the difficulty which libelant will meet in proving his damages is not overlooked, it seems to me that the proof that libelant delivered a boat which respond 14 F. (2d) 533 ent was able to tow to Tarrytown, and that respondent returned that boat on the beach at Tarrytown, with a hole in her bottom of two feet in diameter, which could not have resulted from usual wear and tear, and that with such a hole it would have been impossible to load the boat with cargo, as it was shown respondent reported to libelant that the boat had been loaded, together with the admission in the answer that the boat had received some damage, makes out a prima facie case against the respondent. The motion to dismiss the libel is denied, and a decree may be entered in favor of the libelant against the respondent, with costs and the usual order of reference. THE SUDBURY. (District Court, D. Oregon. May 24, 1926.) No. 9748. Shipping 82-Vessel owner not liable for accidental injury of mere licensee on board to inspect merchandise for consignee. One going on board a vessel to inspect just arrived merchandise for the consignee, without invitation of the vessel owner or his agent, is a mere licensee, and takes things as he finds them and the owner owes him no duty to have conditions the best for safety of visitors, or other duty than to avoid his willful or wanton injury. guard and suffered the injury from which he complains. The averment that the libelant was requested to go aboard the boat by its agent, and that he went by the knowledge and consent of the master, is not supported by the testimony. The most that can be claimed from the evidence is that he went aboard the boat with the knowledge and without objection from the agent. His purpose was to examine the stowage of glass in the boat and its discharge, so as to formulate a claim against the vessel or the stevedoring company in the case of damage through the negligence of either of them. He was therefore at most a mere licensee; he was not on board at the invitation or request of its agents or representatives, for the purpose of transacting business with them, and there is a distinction to be found between the rights of a trespasser, or a mere licensee, and one who enters upon the premises at the invitation of another. The former takes the premises as he finds them, but the latter is entitled to the observance of due care on the part of the owner for his safety and protection against accidents. Lange v. St. Johns Lbr., 115 Or. 337, 237 P. 696. These rules are illustrated by two cases of the Supreme Court of the United States, one Leathers v. Blessing, 105 U. S. 626, 26 L. Ed. 1192, and the other Zinc Co. v. Britt, 258 U. S. 268, 42 S. Ct. 299, 66 L. Ed. 615, 36 A. L. R. 28. In the former, the libelant was on the vessel by invitation of those in charge thereof, for the purpose of transacting business with the master. He was injured by the falling of freight that had been improperly stowed, and the court held that he was entiJ. O. Davies and Chas. A. Wallace, both tled to recover for the reason that he was on of Seattle, Wash., for libelant. the boat by invitation for the purpose of Erskine Wood, of Portland, Ore., for transacting business with its officers, and that claimant. In Admiralty. Suit by W. B. Miller against the steamship Sudbury; the American Ship & Commerce Navigation Corporation, claimant. Libel dismissed. BEAN, District Judge. This is a libel in rem to recover damages for a personal injury to an employe of W. P. Fuller & Co. The Sudbury is a steamer bringing freight into this port. In November, 1924, it was docked at one of the municipal docks, and libelant went aboard the boat and received the injury of which he complains. He alleges in his libel that it was his duty to look after the shipments of glass consigned to the Fuller Company, to inspect the same before being discharged from the ship, and as discharged; that at the request of the agent of the vessel, and by and with the knowledge of the master, he went aboard for that purpose, and while at a point just forward of No. 4 hatch he stepped into an unguarded opening in the steam pipe it owed him the duty of exercising ordinary care to see that he was not injured. In the Zinc Company Case two children, aged 8 and 11 respectively, were caused to go on the premises of the zinc company by a pool, or rather it was attractive to them. The water of this pool had been affected by a discharge from the zine company's manufacture, and was poisoned; the children went into the water, were poisoned, and died, and the court held they were not entitled to recover, because they were not on the premises by invitation of the owner, but were mere trespass ers. Now the libelant, being a mere licensee going on this boat in his own interest or that of his employer, the owner of the boat owed him no duty as to its condition, save that it should not knowingly let him run upon a hid den peril, or wantonly, recklessly, or willfully cause him harm. A licensee enters upon the premises of another at his own risk, and he takes the premises as he finds them, and the owner owes no duty to a mere naked licensee to keep the premises in a certain condition for the benefit of such licensee. The libelant was on this boat by mere sufferance or acquiescence of the agent of the owner, and for his own convenience and the interest of his employer, and not transacting any business in which the boat had an interest. If, therefore, the steam pipe coverings or guards were not of the latest or most approved pat tern, such as are ordinarily or generally used on vessels, the libelant would not be entitled to recover. The vessel did not owe him the duty of providing the latest pipe guards. It had a right, so far as he was concerned, to use such guards as best suited it, or as it saw fit to do. He was on the vessel for the purpose of ascertaining facts, if he could, that would form the basis of a claim against the boat or the stevedoring company, for the manner in which they were handling this freight, and therefore, under these circumstances, it is clear to my mind that the libelant has no cause of action against the boat, and the libel will be dismissed. Chadwick, McMicken, Ramsey & Rupp, of Seattle, Wash., for defendant. NETERER, District Judge. Is a stevedore a seaman? If so, the action may not be removed. Cassil v. U. S. E. F. C., 289 F. 774 (Ninth Circuit), held that a stevedore tion in admiralty. In The Hoquiam, 253 F. was not a seaman within the accepted defini629, 165 C. C. A. 253, the same court said: in the merchant marine. Treaties do not af"Longshoremen are not classified as seamen fect them and legislation in relation to flogging or to safety at sea has no relation to them." This sentiment is indorsed in Young v. Clyde S. S. Co. (D. C.) 294 F. 549. A person not shipped for a voyage, no shipping The John articles signed, is not a seaman. not comprehended within the scope of limB. Lyon (D. C.) 33 F. 184. A stevedore is itation or liability of seamen. He may not be punished for refusal to perform duty by forfeiture of wages or otherwise. None of the laws or rules for compelling duty or protection of a seaman have application to a stevedore. The fact that his employment has maritime relation is not decisive. The motion is denied. The plaintiff commenced an action in the state court, alleging injury while employed as a stevedore upon the steamship Ohioan, through the negligence of the defendant. The defendant removed the cause to this court on the ground of diversity of citizenship. The plaintiff moves to remand, on the ground that this court is without jurisdiction under section 33 of the Jones Act (Comp. St. § 8337a); that the plaintiff is a seaman, and action may not be removed to this court. George F. Vanderveer and S. B. Bassett, both of Seattle, Wash., for plaintiff. Fees allowed attorneys for bankruptcy trustee must be reasonable, as determined by facts Bankruptcy Act (Comp. St. § 9585 et seq.). of each case, and in keeping with objects of 3. Bankruptcy 482(1)-That two firms of attorneys were employed by bankruptcy trus tee should not be considered in determining reasonableness of fees, where either firm could have performed services. Though fact that more than one firm of attorneys is required to do work for bankruptcy trustee should be considered in certain cases. unless fees are allowed separately, it should not be considered where either firm could have performed all services required. |