for the District of Washington, McRae v. Bowers Dredging Co. (C. C.) 86 Fed. 344, and Cronenwett v. Boston & A. Transportation Co. (C. C.) 95 Fed. 52.

In the Pratt Case the plaintiff, Pratt, sued the Paris Gaslight Company in assumpsit for the agreed price of a patented machine. One of the defenses was that the plaintiff had agreed to defend any suit brought against the defendant for infringement of patents, that the National Gaslight Company had brought such a suit, plaintiff had refused to defend, and that the patent was void, for which reason the defendant rescinded the contract. The patent defense was an incident of the common-law action arising collaterally and not directly. The Supreme Court held that the state court was authorized to pass upon the validity of the patent, because otherwise the defendant would have been without a remedy. It could not remove the case to the federal courts, because the declaration contained no claim arising under the federal statutes or law, and it could not file a bill against the National Gaslight Company, because it, and not the National Gaslight Company, was charged as the offending party. Mr. Justice Brown. said, for the purpose of illustration:

"The jurisdiction of state courts over patent cases is not more exclusive than that of the District Courts over cases of admiralty and maritime jurisdiction. Yet, when vessels have passed into the hands of an assignee or receiver, it has been the constant practice of courts of bankruptcy and equity to respect the liens given by the maritime law, to marshal such liens and direct their payment, precisely as a court of admiralty would have done. Scott's Case, 1 Abb. U. S. 336 [Fed. Cas. No. 12,517]; In re Kirkland, Fed. Cas. No. 7,842; In re People's Mail Steamship Co., 3 Ben. 226 [Fed. Cas. No. 10,970]; High on Receivers, § 138."

If this means that a court of equity can respect the liens by actually discharging or enforcing them like a court of admiralty, I think the authorities cited do not bear the proposition out. The question was not raised in Scott's Case. There the District Court in bankruptcy enforced admiralty liens against the balance of proceeds, in the hands of the assignee, of a vessel sold in an admiralty cause before. the adjudication in bankruptcy. The lien creditors had no remedy anywhere else. In re Kirkland was a case in admiralty, so that nothing need be said about it. In Re People's Mail Steamship Co. a maritime creditor filed a libel in admiralty against the vessel after its owner had been adjudicated a bankrupt and the assignee had taken possession of it. Judge Blatchford enjoined him from further proceedings and held that the District Court sitting in bankruptcy, under section 1 of the act of March 2, 1867 (14 Stat. 517, c. 176), could ascertain and liquidate the libelant's claim. The two decisions made by Judge Hanford were rested entirely on the foregoing authorities, and the question of the jurisdiction of the Circuit Court does not seem to have been raised. Mr. Justice Brown could not have intended to say anything in the Pratt Case inconsistent with the case of Moran v. Sturges, 154 U. S. 256, at page 276, 14 Sup. Ct. 1019, at page 1025, 38 L. Ed. 981, in which Mr. Chief Justice Fuller said:

"But the question in the case at bar arises in respect of the state court and a District Court of the United States, whose cognizance of all civil causes of

admiralty and maritime jurisdiction is, under the Constitution and by the ninth section of the judiciary act of 1789 (reproduced in Rev. St. § 711), exclusive. The Lexington (New Jersey Nav. Co. v. Merchants' Bank) 6 How. 344, 390 [12 L. Ed. 465]; The Moses Taylor, 4 Wall. 411 [18 L. Ed. 397]; The Hine, 4 Wall. 555 [18 L. Ed. 451]; The Lottawanna, 21 Wall. 558, 580 [22 L. Ed. 654]; Johnson v. Chicago, etc., Elevator Co., 119 U. S. 388, 397 [7 Sup. Ct. 254, 30 L. Ed. 447]; The J. E. Rumbell, 148 U. S. 1, 12 [13 Sup. Ct. 498, 37 L. Ed. 345]. As said by Mr. Justice Miller: 'It must be taken as settled law of this court that, wherever the District Courts of the United States have original cognizance of admiralty causes by virtue of the act of 1789 that cognizance is exclusive, and no other court, state or national, can exercise it, with the exception always of such concurrent remedy as is given by the common law.' [The Hine v. Trevor] 4 Wall. 568 [18 L. Ed. 451]. The act saves to suitors in all cases 'the right of a common-law remedy, where the common law is competent to give it'; that is, not a remedy in the common-law courts, but a common-law remedy. Suitors are not compelled to seek such remedy, if it exist, nor can they, if entitled, be deprived of their right to proceed in a court of admiralty, according to the rules and practice of admiralty, and the state courts have no authority to hear and determine a suit in rem to enforce a maritime lien. The Belfast, 7 Wall. 624, 644 [19 L. Ed. 266]; The Josephine, 39 N. Y. 19, 27. A statutory proceeding to wind up a corporation is not a commonlaw remedy, and a maritime lien cannot be enforced by any proceeding at common law. These libelants were entitled to have their causes tried in the court of admiralty, and that right could not be taken away from them, nor would the decree or judgment of the state court be pleadable in bar to their libels. If, then, the receiver had first taken actual possession of these vessels and sold them, such sale would not have cut off maritime liens and the right to have them enforced, and while it may be true that the state courts, exercising equitable jurisdiction, might undertake, in the distribution of property, to save the rights of holders of maritime liens, yet it is certain that those court would have no power by a sale under statute to destroy their liens unless they had voluntarily submitted themselves to that jurisdiction."

He explains the case of Taylor v. Carryl, 20 How. 583, 15 L. Ed. 1028, as did Judge Blatchford in The Sailor Prince, 1 Ben. 234, Fed. Cas. No. 12,218, as proceeding on the principle of comity because the state court could neither enforce nor displace maritime liens. In the latter case Judge Blatchford said:

"Now, in my view, the principle decided in the case of Taylor v. Carryl ought not to be extended as against a lien of the character of that sought to be enforced by the libelants in this case. It is at best a rule of comity. It is a relinquishment by a court of admiralty-the only court which, under the Constitution and laws of the United States, has jurisdiction over the lien of seamen for their wages, or is authorized to enforce such lien-of its clear jurisdiction, in favor of a state court, which cannot enforce or display such lien, and has no jurisdiction over it, giving to the state court the right, for the time being, to obstruct and interfere with the lien and with the remedy of the seamen. That principle or rule of comity is, according to Taylor v. Carryl, to be sustained, in regard to a vessel which has been seized by and is in the lawful custody of the sheriff under process from the state court, so long as it is in such custody; the federal court being at liberty, when the litigation in the state court is ended, or when the possession of the sheriff is discharged, to take possession of the vessel and enforce against it admiralty liens. The lien of a seamen against the vessel for his wages will remain unaffected by any action of the state court in regard to the vessel. If the state court, in the suit in which it issued the process on which the vessel was seized and is held in custody, sells the vessel, the purchaser will take his title to her subject to the lien of the seaman for his wages, and the moment she passes out of the custody of the sheriff the seaman can enforce his lien, by serving process on her on a libel in the admiralty. Now, this rule of comity, thus regarded and limited and administered, may, perhaps, in ordinary cases, work no other mischief than to cause unnecessary and harsh delay in the enforcement of their

rights by a class of men whose paramount and superior claims are recognized in the codes of law of all commercial countries. The state court can seize and sell only the interest of the owner in the vessel over and beyond the amount of the liens of the seamen, and can convey no absolute right of property in the whole vessel to a purchaser. Legally, the lien remains, to be enforced the moment the hand of the state officer is withdrawn from the vessel. And the vessel, in theory at least, remains in specie, so as to be subjected to process for the enforcement of such lien."

I think that this court, sitting either at law or in equity, has no more power than the state courts have in this respect. The consideration which moved the court in the Pratt Case, viz., that the party was otherwise without a remedy, does not apply, because in this case the maritime lien creditors have a remedy in admiralty, and the vessel was sold subject to their liens for the express purpose of preserving it. Bankruptcy courts proceed in rem, and have statutory authority, either expressed or implied, to discharge liens for the purpose of a speedy and complete distribution of the bankrupt's assets among all his creditors.

The master's report is confirmed in all respects, except as to the allowance or disallowance of the liens under the maritime and state law. I will sign a decree applying the small fund on hand to the expenses of the receivership.

ESSEN et ux. v. CITY OF PHILADELPHIA.

(Circuit Court, E. D. Pennsylvania. January 12, 1910.)

No. 142.

MASTER AND Servant (§ 278*)-MASTER'S LIABILITY FOR INJURY TO SERVANTNEGLIGENCE.

An employé in the engineering department of the city of Philadelphia, while standing on the elevated track of a railroad sketching a semaphore beside the track in the course of his employment, was killed by a passing train. He was a man of mature years and experience, and knew that trains were running on the tracks, and the danger therefrom was obvious. It was not shown that any arrangement for warning him of approaching trains was made or requested, and he could, moreover, have stood while sketching on a plank footway on the opposite side of the tracks in a place of safety. Held, that the city was not chargeable with any negligence which rendered it liable for his death.

[Ed. Note. For other cases, see Master and Servant, Dec. Dig. § 278.*] At Law. Action by William G. Essen and wife against the City of Philadelphia. On motion to take off nonsuit. Motion overruled. Charles H. Edmunds, for plaintiffs.

J. W. Catharine and J. Howard Gendell, for defendant.

HOLLAND, District Judge. This suit is instituted by the plaintiffs to recover damages for the death of their son, Willis L. Essen. He was a civil engineer by profession. He had been employed by the city of Philadelphia from 1906 as a draftsman in the grade crossing division, bureau of surveys, up until May 8, 1908, the date of his

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

death. On the morning of the latter date he was standing on the north-bound elevated track of the Philadelphia & Reading Railway at Ninth and Spring Garden streets, in the city of Philadelphia, sketching a semaphore signal, known as "5A," when he was struck by the Buffalo express, which left the Terminal at 8:30 a. m.

The basis of the plaintiffs' claim, as set forth in the statement, is the alleged negligence on the part of the city of Philadelphia in not having provided the deceased "with a reasonably safe place in which to discharge the duties of his employment," and in failing to "furnish and provide him with reasonably safe tools and appliances therefor, and to provide him with the usual and reasonable safeguards incident thereto, and to instruct and caution him relative to the dangers connected therewith."

Upon the trial of the case, it appeared that the semaphore which the decedent was sketching at the time he was killed was near Ninth and Spring Garden streets, on the east side of the elevated structure, about 37 feet wide, upon which the tracks of the Philadelphia & Reading Railway were laid, and on each side of the tracks there was a plank footway about 7 or 8 feet in width, and the space between the footways was occupied by two tracks; the east being used by the northbound trains, and the west track by the south-bound trains. A picket fence, about 5 feet in height, was located between the north and southbound tracks from Spring Garden street to a point 87 feet north of Green street, or about 36 feet north of semaphore 5A, opposite which the decedent was shown to have been standing. The semaphore, which he was sketching, was about 25 feet high, and was located on the outside edge of the east footway, about 48 feet north of Green street. The decedent was employed to make a detailed inventory of the railroad property along this elevation, preparatory to the further elevation of the railway tracks of the railway company, in which the city was interested.

It is not claimed the decedent was a man of immature years or inexperienced in his profession. The work he was employed to do was admittedly dangerous work, but all the elements of danger surrounding the work and the places where the work was to be performed were as well known to him as to his employer or his immediate superiors who had charge for the defendant. In fact, his knowledge of the surroundings was superior to those who were not upon the ground, and who could not know what particular position it would be necessary for him to take to perform his work. The decedent could have taken a position on the plank footway on the north of the semaphore, or if it be argued that it was necessary for him to be directly in front of the semaphore in order to sketch it, as the elevated structure at that point was only 37 feet wide, he could have taken his stand on the footway on the west side. He, however, elected to take the most dangerous place near the semaphore to perform his work. He had worked on the elevation the day before, and knew that trains were running. He took a position on the north-bound track, with the picket fence between him and the south-bound track. He was not directed to take this dangerous position by the defendant or its agents, nor had he any assur

ance that notice of approaching trains would be given. There is no evidence to show that he was left under the impression that he was to be notified of any approaching danger. All the dangers of the surrounding situation were obvious and plain to him when he assumed this position, and there was nothing in the evidence to show that in any particular the defendant was guilty of any negligence whatever. The decedent knew the nature of the work to be performed by him, and saw the surrounding circumstances and the dangers attending it. made no request for a guard, nor is there any intimation that he had been left under an impression that he would be guarded and warned of any approaching trains. There were no hidden dangers known to the employer with which he was unacquainted. He was a skilled workman, and knew more of the surrounding conditions than the defendant. There is nothing to show that any act of omission or commission on the part of the city in any way contributed to the unfortunate accident.

There being no evidence to establish negligence on the part of the defendant, the motion to take off the nonsuit is overruled

THE ROCKLAND & ROCKPORT LIME CO. NO. 1.

(District Court, E. D. New York. January 5, 1910.)

1. SALVAGE (§ 26*)-ELEMENTS IN DETERMINING AMOUNT OF COMPENSATION— INJURIES TO VESSEL.

In an award for a salvage service, damages to the rescuing vessel cannot be included as specific items, in addition to the award for the service, but may be taken into consideration in fixing such award.

[Ed. Note. For other cases, see Salvage, Cent. Dig. § 63; Dec. Dig. § 26.*]

2. SALVAGE (§ 27*)—AMOUNT OF COMPENSATION-RESCUE OF BARGE IMPRISONED IN ICE.

A tug held entitled to an award of $1,200, one-third to the officers and crew, for services rendered in the rescue of a barge from a point in lower New York Harbor, where she had been carried from her slip in Brooklyn by an ice floe in which she was frozen; the barge and cargo being of the value of about $40,000.

[Ed. Note. For other cases, see Salvage, Cent. Dig. §§ 65, 66; Dec. Dig. § 27.*

Awards in federal courts, see note to The Lamington, 30 C. C. A. 280.] In Admiralty. Suit by the McCaldin Bros. Company and another against the barge Rockland & Rockport Lime Co. No. 1. Decree for libelants.

Robinson & Robinson (George L. Robinson, of counsel), for libelants.

Wing, Putnam & Burlingham (James Forrester, of counsel), for claimant.

CHATFIELD, District Judge. The barge in question, worth $35,000, with a cargo of coal valued at $5,500, upon the 8th day of February, 1908, was imprisoned in the ice at a slip in Brooklyn, and during the night of the following day was carried by the ice floes

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes