to ship oil on deck in barrels on coasting voyages, and that there is no settled custom as to whether such deck-load shall or shall not be entitled to contribution in general average, in case of loss on such voyages, the question being in doubt with shippers and insurers. The vessel sailed from Tiverton August 19, 1885, and thereafter stranded on Eldredge Shoal. To lighten ship, most of the oil was thrown overboard, and the vessel afterwards floated, and arrived at Gloucester August 23, 1885. The question argued was whether the under-deck cargo is liable to contribute in general average for the jettison of the deck-load.

William G. Roelker, for libelant.

The right to contribution arises as matter of law, independent of any custom. The goods being properly on deck, under the custom of the trade, must be contributed for by all persons who embarked on the voyage, because they must be presumed to have had notice that, by virtue of the custom, goods might properly be shipped there. In this case the defendant had actual notice. Wood v. Insurance Co., 1 Fed. Rep. 235, 8 Fed. Rep. 27; The William Gillum, 2 Low. Dec. 154; Wright v. Marwood, 7 Q. B. Div. 62; Gould v. Oliver, 4 Bing. N. C. 134; Johnson v. Chapman, 19 C. B. (N. S.) 563; Harris v. Moody, 30 N. Y. 266.

Charles Theodore Russell, Jr., for defendant.

The general rule is that there is no liability to contribute in general average for the jettison of a deck-load. Sturgis v. Cary, 2 Curt. 382; 1 Story, Eq. Jur. § 490; The Paragon, 1 Ware, 326; The Delaware, 14 Wall. 579; 3 Kent, Comm. 240; Wolcott v. Insurance Co., 4 Pick. 429; Copper Co. v. Insurance Co., 22 Pick. 108; Adams v. Insurance Co., Id. 163; Smith v. Wright, 1 Caines, 43; Lenox v. Insurance Co., 3 Johns. Cas. 178; Cram v. Aiken, 13 Me. 229; Sproat v. Donnell, 26 Me. 185; Doane v. Keating, 12 Leigh, 391; Triplet v. Van Name, 2 Cranch, C. C. 332; The Milwaukee Belle, 2 Biss. 197; Abb. Shipp. (12th Ed.) 520; Lown. Av. (3d Ed.) 31; Miller v. Tetherington, 6 Hurl. & N. 278. Where the carriage of the deck-load is justified by general usage, the rule has been extended so as to allow the shipper to recover contribution for its jettison against the ship-owner only on the ground that he consented to such carriage, and received freight for it. Gould v. Oliver, 4 Bing. N. C. 134; Gould v. Oliver, 2 Man. & G. 208; Johnson v. Chapman, 19 Č. B. (N. S.) 563; Wright v. Marwood, 7 Q. B. Div. 62; The Watchful, Brown, Adm. 469; The May & Eva, 6 Fed. Rep. 628; Hazleton v. Insurance Co., 12 Fed. Rep. 159; The William Gillum, 2 Low. Dec. 154. Wood v. Insurance Co., 1 Fed. Rep. 135, 8 Fed. Rep. 27, is sustainable on the ground that the shippers received the benefit of reduced freights on the deck-load, and so must be assumed to have taken the risk of contribution. If usage can be invoked to increase the legal obligations of under-deck cargo, it must be not merely a usage to carry deck-load, but a usage to pay for its jettison. Seccomb v. Insurance Co., 10 Allen, 305; Dickinson v. Gay, 7 Allen, 29, and cases above cited.

CARPENTER, J. I shall not refer to the evidence further than to say that I find as a fact, for the purposes of this case, that there is a custom in the trade to carry oil in barrels on deck, in coasting voyages, when the under-deck cargo consists of fish-scrap, and that the defendant is chargeable with knowledge of this custom. The question, then, is whether the existence of this custom is to be held to impose a liability to contribute on the under-deck cargo. After mature consideration I am

satisfied that it cannot be so held. I see no consideration moving to the shippers of the under-deck cargo which could furnish an equitable ground for the imposition of increased liability on them. Where a custom exists, as in this case, to carry a particular kind of goods on deck under particular circumstances I think the shippers of under-deck cargo might be so far affected as that they could not maintain any claim for the increased risk resulting from such shipment. But I can see no reason why their rights and liabilities should be otherwise affected. There will be a decree dismissing the libel, with costs.

THE BENBRACK.1

POWER V. THE BENBRACK.

(District Court, E. D. Virginia. January 12, 1888.)

SHIPPING LIABILITY OF VESSEL FOR TORT-INJURY TO STEVEDORE-LATENT DEFECT.

One of a gang of stevedore's men engaged in loading a ship was injured by a bale of cotton falling upon him. The accident was caused by the breakage of the hook which was used in raising the cotton and lowering it into the hold. The hook was furnished by the ship, and gave way on account of a latent defect. Held, that the ship was not liable.

In Admiralty. Libel for damages.

Neely & Seldner, for libelant.

Harmanson & Heath, for respondent.

HUGHES, J. The leading facts of this case are as follows: The steamer Benbrack came from Liverpool to Norfolk for a cargo of cotton. She had, as part of her outfit, the engine, winch, tackle, and appliances necessary to the convenient loading of bales of cotton. The tackle consisted of the usual ropes, pullies, and hooks which constitute what is called a "fall." On arriving at the port of Norfolk, the steam-ship contracted with a stevedore here for the proper loading of the cotton and stowing it on board. It was part of the contract that the ship should allow her winch, tackle, fall, etc., to be used for this work, including the hook on which the bales of cotton were suspended when they were lifted from the wharf to the deck of the steamer. The work of loading the cotton commenced on the seventh December last, and went on without accident until the twelfth day of that month, when two of the bales suspended to the hook of the tackle, in being passed to the deck from the wharf, fell through an open hatchway, one of them striking the libelant, breaking his nose, and seriously wounding and bruising him in other respects, from which he was disabled, and has been laid up to the present day, (ninth January, 1888.) He is still unable to go to work, and is likely to re

1Reported by Robert M. Hughes, Esq., of the Norfolk bar.

main so for a month or more yet to come.

The cause of the accident was the breaking of the hook in the tackle on which the two bales of cotton were suspended while passing over the hatchway. The injured man was engaged with other laborers, at the time of the accident, in stowing away cotton on the under-deck below the hatchway. It is not contended that there was negligence in the fact of this hatchway being uncovered. The hook which was broken as described is brought into court, and it is plain from an inspection of it that the cause of breakage was a flaw which involves more than half of the fractured surface. The defect was a latent one, which was most probably such as would have cluded a close scrutiny; though we have no direct evidence on the subject. The hook had been purchased new in Liverpool; had been spliced to the tackle during the voyage to Norfolk, to be ready for use; and had been actually used by the stevedores in stowing this cargo for five days before it broke and gave way, with the unfortunate result which has been described.

The diligence required of the ship in respect to this hook was that ordinary diligence which a prudent man is bound to exercise in conducting his own business. There is no evidence in this case tending to show that the master of the Benbrack was delinquent in this respect. The accident did not occur from any improper use of, or strain upon, the hook, as was the case in The Mary Stewart, 5 Hughes, 314, 315. The flaw had not been detected before the accident, and was latent, and probably imperceptible. The hook had done its work for five days, and the existence of the flaw was unknown and unsuspected. The laborers who were using it, and those who were near by, and who had observed its use for five days, did not detect or suspect the flaw. The hook had been purchased at Liverpool in good faith, and with confidence in its freedom from defect. I think, therefore, that the ship is not responsible for the accident which so seriously injured the libelant. The makers and manufacturers of tools and mechanical implements are responsible for their soundness; but those who purchase them in good faith, and use them prudently, and in ignorance of latent defects, cannot be held to guaranty all others, equally competent with themselves to judge of their quality, against accidents from them. I will sign a decree for the defendant ship.

It has not been necessary in this decision to consider the question of liability if the flaw in the hook which broke had been patent and observable. In that case, the defect would have been just as apparent to the stevedore who employed the libelant as to the master of the ship. The stevedore would have been under no necessity to use the hook. It would have been his duty to discard it, and to have obtained a proper one. His using it was the immediate cause of the accident. A part of his contract with the libelant was to see that the latter should be safe from all carelessness and negligence on his own part. The privity of contract in the case was between the stevedore and the libelant, and the remedy of the libelant was immediately against the stevedore, and not remotely against the ship. The case would then have been governed by what I said in the case of The Mary Stewart.

OMAHA HORSE-RY. Co. v. CABLE TRAM-WAY CO. OF OMAHA.1

(Circuit Court, D. Nebraska. February 6, 1888.)

COURTS-FEDERAL JURISDICTION-SUPPLEMENTAL BILL.

While the federal courts have jurisdiction of actions between citizens of the same state when federal questions are involved, and may, in such actions, determine issues otherwise triable by the state courts, their jurisdiction cannot be extended to other questions and issues raised by supplemental bill filed after the determination of the original cause.

In Equity. On demurrer to supplemental bill.

BREWER, J. This case is now submitted on demurrers to supplemental bill and amendments thereto. A brief review of the past litigation is important. The original bill was filed by the complainant, a corporation chartered by the legislature of the territory of Nebraska, and given an exclusive franchise for the building and operating of a horse-railroad in the city of Omaha for the term of 50 years. The defendant is also a corporation, organized under the laws of the state of Nebraska, and having received, as was claimed, permission from the city of Omaha, was proceeding to construct a cable tram-way in its streets. The bill sought to enjoin the defendant from prosecuting its work, on the ground that such cable tram-way was an infringement of the exclusive franchise given to complainant, which exclusive franchise the state of Nebraska was restrained by the federal constitution from interfering with in any way, directly or indirectly. Upon the hearing of the case I ruled that the complainant's exclusive franchise was limited to a mere horse-railway, and did not include all manner of street-railway travel, and therefore that the cable tram-way was no invasion of its exclusive franchise.

It was strenuously insisted by the defendant that, having ruled on the federal question against the complainant, the only proper decree was one dismissing the bill; but, under the authority of Railroad Co. v. Mississippi, 102 U. S. 135, and cases cited therein, I ruled that the existence of a federal question gave to this court jurisdiction of the entire cause, and that it was its duty to hear and determine all other questions existing in the case between the parties. The constitution of the state of Nebraska prohibits both the damaging and the taking of private property for public uses without compensation, and it seemed to me, under the facts as disclosed by the testimony, that while the complainant's exclusive franchise was not invaded, its property rights were damaged by the building of the proposed cable tram-way. I therefore directed that the matter of the damages to its property be referred to a commission. That commission examined the question, and reported in favor of the complainant a certain amount. On exceptions to their report, and a motion to confirm it, a second lengthy hearing was had. After reducing the amount allowed by the commissioners, I sustained their report, and di

'See former reports of this case, 30 Fed. Rep. 324, and 32 Fed. Rep. 727.

v.33r.no.13-44

rected a final decree in favor of the complainant for such amount. Νο such decree has been in fact entered, but, after the proceedings above named, complainant obtained leave to file a supplemental bill, and subsequently certain amendments thereto. The matters presented in these pleadings are those now challenged by demurrer and before me for consideration.

There are three matters presented: First, it is averred that the supposed permission to the defendant to occupy the streets of Omaha with its cable tram-way was never in fact legally given, and that its entry upon the streets was a mere trespass; second, there is presented a question about the occupancy of a street heretofore occupied by neither party; and, third, defects in the construction of certain crossings of complainant's track by defendant's tram-way are alleged. Several grounds for demurrer were discussed on the argument. One only will be noticed, as that is deemed fatal.

It is doubtless true, as a general proposition, that, at any time before final decree, the court may permit the bringing in of matters germane to the original controversy which have accrued since the filing of the original pleadings, in order to make a decision of the entire controversy between the parties. But is not this rule largely affected by the question whether the court is one of general or limited jurisdiction? Can it convey the jurisdiction to matters over which, but for the rule, there would be none? The parties here are both citizens of Nebraska, and ordinary disputes between them must be settled by the state courts, and the federal courts can only take cognizance of a controversy between them in which there is a federal question. Now, if it be true, as I think it is, and have so held, that the existence of a federal question in the case as presented gives the court jurisdiction to hear and determine all of the pending questions, can it be true that it also gives the court power to continue the case, and draw to itself all subsequent disputes, even if connected with and germane to the original controversy? See to what that, in this case, might lead. The complainant's charter has 30 years still to run. Some of the streets are occupied by the tracks of each party; and, as the city grows, more will be occupied by each, and doubtless, in some cases, the same street by both. Crossings will, in the nature of things, have to be made. Perhaps there will be negligence in the construction of these crossings; perhaps negligence in the management of cars of each as they approach such crossings. All such controversies naturally and properly belong in the state courts. Can it be that, because in the first instance there was a federal question growing out of the alleged invasion of an exclusive franchise, the federal courts can, by supplemental bills, take cognizance of these continuing and repeating controversies? It will be borne in mind that there has not been constant unanimity on the part of the judges of the supreme court on the question whether the existence of a federal question gives the federal court power to hear and determine all the questions in the case, and surely, if that be a matter of doubt, it would be unwise to attempt to carry the jurisdiction of the federal court a step further. It is not the design of