receipted for said cotton. The next morning the discharge of said lighter into said steamship was begun. During the day 102 square bales of cotton were discharged from the lighter and taken on board the steamship, together with 45 bales of the Johnstone shipment, leaving 155 bales still on board the lighter.

On October 15th, 1904, the master of said steamship executed and delivered to the respondent a receipt for said 200 bales as set forth in the sixth article of the libel.

The discharge of said lighter was exclusively under the control and management of the steamship Dalton Hall and the agents of Furness, Withy & Company, Limited, who as the respondent is informed, so negligently and improperly discharged the cargo of said lighter that during the night of October 16th-17th, 1904, she sank.

Said lighter was tight, staunch, and strong, and in all respects seaworthy. She did not spring a leak and her sinking was due solely to the negligence of those in charge of the steamship Dalton Hall, in that they did not unload her with care and skill, but instead allowed a portion of her cargo to remain at one end of the lighter, which put her by the head or by the stern, so that she took in water over her decks and thus filled and sank. Said lighter was afterwards raised and put into service and continued in service for many months without repairs of any kind.

Whatever loss or damage was sustained by the libellant was due solely to the negligence of the respondent Furness, Withy & Company, Limited, and those in charge of the steamship Dalton Hall."

On the trial an amendment was asked for, as follows:

"And further, in that they negligently allowed a stream of water from the steamship's pumps to flow on to the lighter on the morning of October 17 thus causing the lighter to sink.".

The proposed amendment was strenuously objected to by Furness, Withy & Co., but after consideration, I have concluded to permit it. The only substantial effect is to make the pleadings conform to the proof, which was properly received in replying to a general allegation of negligence and simply gave particulars. I have also allowed a proposed amendment of the libellant not hereinbefore alluded to. It only serves the same purpose.

The testimony shows that the lighter arrived alongside of the steamer on the 14th of October, about 7 or 7:30 P. M. Upon arrival, or shortly thereafter, the 200 bales were receipted for by the mate of the steamer. On the next day, the 15th, the master signed a receipt for 200 bales. These were round bales. There were also 102 square bales loaded on the lighter. At the time of delivery all of the crew were on shore and the ship in charge of a watchman. On the 14th, 45 bales of the 200 were removed from the lighter to the steamer. The cotton was loaded on the lighter in the usual and customary manner. The quantity was not in excess of her safe capacity. She was all right up to 5 o'clock Monday morning as seen by the watchman who had examined her three times during the night. She was found to be sinking at 14 before 6 o'clock.

There can be little doubt of the lighter's seaworthiness. After this occurrence, she was pumped out, repaired at an expense of $28 and put to work again and continued working, carrying full loads. Some other reason than unseaworthiness must be found for the sinking.

It appears that water was pumped into her by the steamship between 5 and 7 o'clock Monday morning. Several credible witnesses said the flow was from the ship's discharge pipe. She was moored on

the port side, opposite some discharge pipes of the steamer. These pipes were situated about amidships of the engine a little abaft the middle of the ship. The lighter was 65 feet long. The steamer was 337 feet long on the water's line, her water ballast tanks occupying the first 21 feet; hold No. 1, 60 feet; hold No. 2, 72 feet; the engine and boiler room, 56 feet; hold No. 3, 58 feet; hold No. 4, 54 feet, and the water ballast tank the remaining 16 feet. This would bring the lighter under the discharge pipes. Several witnesses saw a 5 inch stream of water coming out of the pipe, early Monday morning, which struck the deck of the lighter a little forward of a hatch. It was testified that a stream of this size would fill the lighter in from 15 to 20 minutes.

The steamer's crew had taken possession of the lighter, moved her at their pleasure, put tarpaulins. over the cotton, and some time Saturday, the 15th, removed from her 45 bales. In connection with the receipt given, there can be no doubt that the steamer was in full charge. In view of these facts, the burden was upon her to show that the sinking and the damage to the cotton was due to some act not under its control. The owner has accepted this burden but has failed to show that the cause of the sinking was due to any act for which it is not itself responsible.

There will be a decree for the libellant against Furness, Withy & Company, with an order of reference. The petition against the Railroad Company is dismissed.

THE CHARLES H. KLINCK.

(District Court, S. D. New York.

October 12, 1909.)

SEAMEN (§§ 11, 29*)—NEGLIGENCE OF FELLOW SERVANT-INJURY TO SEAMANDAMAGES.

Injury to seaman from becoming entangled in a winch when engaged in hoisting the spanker. Held that the vessel was not liable for the injuries as they happened through the negligence of the mate, but that the seaman was entitled to care and maintenance under the doctrine of The Osceola, 189 U. S. 158, 23 Sup. Ct. 483, 47 L. Ed. 760.

[Ed. Note.-For other cases, see Seamen, Cent. Dig. §§ 39, 40; Dec. Dig. §§ 11, 29;* Master and Servant, Cent. Dig. §§ 211, 492, 592, 734.]

(Syllabus by the Judge.)

Libel by John Kersh against the schooner Charles H. Klinck. Case referred to commissioner.

Simon O. Pollock, John F. McIntyre, and David C. Hersh, for libellant.

Bertrand L. Pettigrew, Frederick B. Campbell, and Henry S. Curtis, for the schooner.

ADAMS, District Judge. This action was brought by John Kersh to recover his damages, said to be $10,000, sustained through the loss of his right arm, a little below the elbow, while engaged in performing his duties as seaman on the schooner Charles H. Klinck, on the 23d *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

day of February, 1907. She was then lying off the Chatham Lightship, Long Island Sound. The libellant was operating the winch, which received its power from a gasoline engine located in the forecastle cabin, through which the winch ran, one drum head coming out on the port side and one on the starboard side. Some little distance above the winch-head was a rod which ran through the cabin, and started or stopped the winch as was desired. The engine had previously been started and was going at the time regardless of the use of the winch. In order to start the winch from the port side, it was necessary to pull out the connecting rod, and to push it in to stop it.

They were raising the spanker on the vessel, and the libellant, acting under the directions of the mate, took some turns with the halyards around the drum on the port side. The libellant in his libel describes the accident as follows, viz.:

"That on or about the 23d day of February, 1907, the schooner had been at anchor in the eastern end of the sound and was about to get up her anchor and hoist her sails for the purpose of proceeding on her voyage; that the libellant was ordered by the mate of the vessel to stand at the winch of the vessel for the purpose of hoisting the sails; that while standing there his hand became entangled in the rope of the fall which led around the winch, and he was for the moment unable to extricate himself. The winch at the time was stopped. The mate of the vessel, who was aft on the vessel, shouted to the men at the winch to hoist away the spanker, and thereupon the sailor who was on the other side of the winch and who could not see this libellant from where he stood, started the winch, although the libellant had shouted to the inate that his hand was entangled and not to allow the winch to be started. The result of the starting up of the winch in this manner was such that the libellant's right arm was so crushed by the fall and the winch that it became necessary to amputate it, and the libellant has thereby lost his right arm."

This seems to be a correct account of the occurrence. The mate, who was called by the claimant, gave a somewhat different version of the matter, but I think the foregoing should be regarded as accurate.

It appears that, the mate was standing somewhat aft of the place of the accident but in full view of the winch and what was taking place. He should have seen what was being done and the accident is no doubt attributable to his carelessness in giving directions to go ahead with the engine, while the libellant was so situated as to be liable to injury from its movement.

It is claimed by the libellant that in consequence of the dangerous method of operating the winch, the vessel was rendered unseaworthy, but it does not appear that the accident happened through such cause, but, as stated above, from the action of the mate.

This conclusion precludes a recovery for personal injuries but the libellant is entitled to the sum that will be necessary for his maintenance and care, under the doctrine of The Osceola, 189 U. S. 158, 23 Sup. Ct. 483, 47 L. Ed. 760. The case is therefore referred to a commissioner for further proceedings in such respect.

ATCHISON, T. & S. F. RY. CO. v. UNITED STATES (two cases). (Circuit Court of Appeals, Eighth Circuit. October 5, 1909.) Nos. 3,027, 3,028. In Error to the District Court of the United States for the District of Colorado. George A. H. Fraser (Henry T. Rogers, Daniel B. Ellis, Lewis B. Johnson, and Pierpont Fuller, on the brief), for plaintiff in error. Ralph Hartzell and Philip J. Doherty, for the United States. Before SANBORN and VAN DEVANTER, Circuit Judges, and WILLIAM H. MUNGER, District Judge. PER CURIAM. These were actions for penalties for the violation of the safety appliance law embodied in Act March 2, 1893, c. 196, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), Act April 1, 1896, c. 87, 29 Stat. 85, and Act March 2, 1903, c. 976, 32 Stat. 943 (U. S. Comp. St. Supp. 1907, p. 885), and the principal question in the cases was whether the duty of the railway company, where this law was applicable, was that of exercising reasonable care to maintain the prescribed safety appliances in operative condition, or was absolute. This question, and all the other questions in these cases, have been repeatedly considered and decided, and upon the authority of St. Louis, Iron Mountain & Southern Railway Company v. Taylor, 210 U. S. 281, 294, 28 Sup. Ct. 616, 52 L. Ed. 1061, United States v. Denver & Rio Grande R. Co., 163 Fed. 519, 90 C. C. A. 329, Chicago, Milwaukee & St. Paul Ry. Co. v. United States, 165 Fed. 423, 91 C. C. A. 373, 20 L. R. A. (N. S.) 473, Hepner v. United States, 213 U. S. 103, 29 Sup. Ct. 474, 53 L. Ed. 720, and Chicago, Burlington & Quincy R. Co. v. United States (C. C. A.) 170 Fed. 556, the judgments below must be affirmed. It is so ordered.

BARBER ASPHALT PAVING CO. v. FORTY-SECOND ST., M. & ST. N. AVE. RY. CO. et al. (Circuit Court of Appeals, Second Circuit. August 2, 1909.) No. 297. Appeal from the Circuit Court of the United States for the Southern District of New York. Dexter, Osborn & Fleming (George N. Whittlesey, of counsel), for appellant. Kellogg & Rose, for complainant. Evarts, Choate & Sherman (Herbert J. Bickford, of counsel), for respondent Whitridge. Henry M. Ward and Nathan Ottinger, amici curiæ. Selden Bacon, for Haley, Adm'r. Merrill & Rogers (Alfred H. Holbrook, of counsel), for receiver of Forty-Second St., M. & St. N. Ave. Ry. Co. Hamilton v. Wood, for creditors' committee of the New York City Ry. Co. Bowers & Sands, for Central Trust Co. Before ADAMS, HOLT, and HAND, District Judges.

PER CURIAM. Judge Lacombe's order (170 Fed. 1022) is in no sense final, even assuming that a decree finally determining this proceeding is itself a final decree in the suit from which an appeal can be taken. The reference which he has directed to the master is not a mere ministerial act in execution of a final order. It is a substantial part of the litigation, upon the determination of which the rights of the parties wholly depend. Although no parties to the record have raised this point, the brief of others interested does raise it, and in any case no jurisdiction can be conferred by consent, for the proceedings are non coram judice. We must therefore dismiss the appeal, and the parties must prosecute the reference before the special master.

In re BLANCHITE CO., Limited. (Circuit Court of Appeals, Second Circuit. November 16, 1908.) No. 64. Petition to Review Order of the District Court of the United States for the Southern District of New York. P. O. W. Smith and Kendall & Herzog, for petitioner. McLaughlin, Russell, Coe & Sprague

(Charles Levy, of counsel), for respondent. E. W. Tyler and Henry B. Singer, for purchaser. Before LACOMBE, COXE, and NOYES, Circuit Judges. PER CURIAM. Order of the District Court affirmed, with costs; time to comply with its terms to run from date of entry of order on remittitur.

C. CRANE & CO. v. SESHER. (Circuit Court of Appeals, Sixth Circuit. October 25, 1909.) No. 1,939. In Error to the Circuit Court of the United States for the Eastern District of Kentucky. W. H. Mackoy and Charles Stevens, for plaintiffs in error.. S. C. Bailey and J. C. Wright, for defendant in error. Before LURTON, SEVERENS, and WARRINGTON, Circuit Judges. PER CURIAM. The facts in this case are identical with those in the case of Noble v. Crane & Co. (decided by this court at the June session) 169 Fed. 55, where we affirmed an instruction for the defendant company. It was error in the court below to deny the request by plaintiff in error for a similar instruction; Noble and Sesher having been hurt by the fall of the same scaffold at the same time. Reversed, and remanded for new trial.

EICHELBAUM v. SCOTT et al. (Circuit Court of Appeals, Fourth Circuit. March 9, 1909.) No. 876. Appeal from the District Court of the United States for the Western District of Virginia, at Lynchburg. J. E. Edmunds and G. E. Caskie, for appellant. F. W. Whitaker, for appellees. Before PRITCHARD, Circuit Judge, and BOYD and DAYTON, District Judges.

PER CURIAM. After due consideration of the questions involved in this controversy, we are of opinion that there is no error in the ruling of the court below. Affirmed.

THE GYPSUM KING. (Circuit Court of Appeals, Second Circuit. August 27, 1909.) Appeal from the District Court of the United States for the Southern District of New York. Motion to take new proofs on appeal. Before WARD, Circuit Judge (in vacation).

WARD, Circuit Judge. Under the former practice of this court the parties might take new proofs at will, though the depositions of witnesses who had deliberately not been examined, or who might have been called at the trial, might be suppressed on motion. Singlehurst v. La Compagnie Générale Transatlantique, 50 Fed. 104, 1 C. C. A. 487; The Venezuela, 52 Fed. 873, 3 C. C. A. 319. The present rules 1 and 7 of this court in admiralty changed the practice, permitting new proofs to be taken only by leave of the court. The appellant seeks to examine two sea-faring witnesses in this court. Its secretary swears "that at the time of the trial in the District Court I made strenuous efforts" to secure the presence of these witnesses, but they were then not in port and so could not be produced. That they were competent and material witnesses evidently was known, and also that their occupation put them in the class of going witnesses. What these efforts were is not stated. It is not shown that any reasonable steps were taken before the trial, by subpoena or otherwise. The motion is denied.

MAHLE V. SCHILPP. (Circuit Court of Appeals, Fourth Circuit. December 7, 1908.) No. 848. Appeal from the District Court of the United States for the District of Maryland. A. W. Patterson (Rignal W. Baldwin, on the brief), for appellant. William Reynolds, for appellee. Before GOFF and PRITCHARD, Circuit Judges, and BRAWLEY, District Judge.

PER CURIAM. We fully concur with the conclusion reached by the court below. Affirmed.