THE SEVEN· SONS.
543
If not enough freight was received to fill the vessel, the contract pro. vided 'that wages are to cease, and we are to stop to whale at New Gunenke, or elsewhere, and receive" a lay in lieu of wages. The vessel did not obtain a sufficient ql1antity of freight, did stop for the purpose of whaling, and tried to obtain whales until October 24th, when, on the point of starting for home, she was compelled to stay by stress of weather. The captain would not have been endalJ.voring to do his duty towards the, owners if he had started for home on October 4th without trying towbale, and had thus virtually abandoned his undertaking; for if the vessel was not to return With freight, a whaling voyage was to be. attempted. If she had left the straits on October 24th, and retumedto New it would hardly have been contended that the monthly wageB'did 'Dot stop on October 4th. The conditions upon which the men were 110: receive a lay had taken place, and the unfortunate termination of the voyage by reason of having obtained no catchings, either in the fallof 1884 or during the season of 1885, ought not to change the pecuniary relations of the parties. The fact that the sailors are poor, and that poverty, in a contest with wealth, always enlists the sympathy of the triers, ought not to induce the court to strain the facts in order to permit the sailors to receive some compensation, for the hardShips which they endured. The new faots which were presented do not seem to me to vary the original caaematerially·. ' The motion is denied.
Tm: SEVEN SONS. McLAuattLIN· v. THE SEVEN SONS· .(District (J0'I.IIrl, W; D. Penn81/l'IJania. TOWAGE-NEGLIGENCE-PREMJm>TION.
October Term, 1l!8l1;)
. Whex;e,a fiat-boat! whe.l1 delivered under a.towing contract into the of 8 tow"boat; was In good order, but when It reached the port of destmatlOn w8sina1broken and sinkinp; condition, and the owner did not accompany the fiat-boat either personally or by agent, it is the duty of those owning or navigating the tow-boat to show how the injury occurred, and, in the absence of explanation or proof on that subject, negligence will be presumed, and damages decreed against the tow-boat.
In Admiralty. . Burlhigh Harbiaon, for libelant. H. H. for respondents. ACHESON, J. The owners of the tow-boat Seven Sons undertook to tow the libelant's loaded flat-boat down the Monongahela river, from Brownsville to Pittsburgh. The flat-boat was in good order when the tow-boat took it in charge, but when it reached the place of destination
it was in a sinking condition,uthere being then a serious.break in its botofthe owners ofthe tow-boat stated to the.libelant "that they had hurttheflat in landing lit:,TackJ011es1 landingj" but, it would seem, no'{urtpar 'explanation was given. The libelant was not 'with the b6at,.norhad he any' .agent :With 'it at the' time it· was iajured. There Was a boating stage Of water during the trip; These facts the libelant proved,' and also the amount of his '. Besides ithepilot, the tow-boat had a full crew of hands,and one of her owners was 'on her during the trip. Ofthese the pilot only was examined. He testified as to the care. taken to keep thefl.at-boat afloat after it was found tobeleaking,·but he gave no account of the manner in which it was injured, nor of the degree: of care observed by the towboa.t; '. As the ease stands, there is no evidence to show the cause Dr manner of the accident, or what precautions were taken to avoid <it, although these are matters peculiarly within the knowledge of the owners of the tow-boat and their employes. Under the proofs, then,what should be the judgment of the court? The owners of a tOW-boat, it is true, are not common carriers, and they are responsible only for ordinary care, skill, and diligence. But a bailee subject to that degree of responsibility only, is yet aoundto show how the goods intrusted to him were lost or damaged;, before he can throw upon the bailor the burden of proof of negligence. Olark v. Spence, 10 Watts, 335j Beckman V. ShoU8e, 5 Rawle, 179; Logmn. v. Mathew8,6 Pa. St. 417. Now, here, the owners of the tow-boat were bailees for hire of the flat-boat. Again, it has been held that, under a bill of lading "the dangers of the river," it Is not enough for the carrier to show that his steam-boat run upon a stone, and knocked a hole in her bottom, but he must also prove that due diljgence and proper skill were used to avoid the disaster, and that it was unavoidablej and this, because the facts are peculiarly within' the knowledge of himself and his agents. Whitesides v. R-u88eU" 8 Watts & S. 44. In the absence, then, of all testimony as to the lllanner in which the libl.'lant's flat-boat was injured, or acquitting the tow-boat of blame, negligence is justly to be presumed. Humphreys v. Reed, 6 Whart. 444. Let a decree be drawn in of the libelant feb' $70, the .amount paid forrepairs, and $5.40, the cost of pumping, with interest from February 5, 1885, and costs of suit.
DIMMOCX
.545 DOOLITTLE.
DIMMOCK "tno:
others v.
(Circuit aourt,kP. idin0i8. REMOVAL
,
Where im action is brought by, a party to a non-negotiable contract for the 1llle ofms assignee, citilllenship, of, tJie ,artyto the contract, l>t his assignee, determines the 0 of the, '. "
NEGOTIABLE CQNTRAOT.
On Motion to Remand. Millard R. Powers, for plaintiff. Doolittle &: McK('!!j, for defendant. J;, (oraUy.) '1'his'oasewas in the name of Richard W. Dimrnock et al. against DoolitUe, for the Use of Powers. Doolittle applied fora removal of the case on the gronnd that the controversy was between citizens of different states, charging in the petition for removal that the Dimmocks were citizens of New Jersey, and the defendant a citizen of Illinois; and the case was accordingly sent, to this court by the statecoU,rt. The plaintiffs now move to. remand, on the ground thaUhe party fOI!whose use the suit is instituted is a citizen court has no jurisdiction. of Illinois, and therefore the The question, I firid on e±amiriation,'is by no means a new one; ,it was raised in the case of Sere v. Pitot, 6 Cranch, 332, and quite fully discussed; bui the,oase which finally settled the principles involved in this case is that of Irvinev.LaW1'y, 14 Pet. 293, where a distinction is drawn between the class of cases where an official bond was given,-:-as, for in the case of McNutt v. Bland, 2 How. 9, -and suits brought for the use of the equitableowner.of a contract. A statute of Mississippi required that sheriff's bonds should be made payable to the governor of the state, and in the lattel;' case a suit was brought in the name of the governor of the state of Mississippi for the use of a citizen of Massachusetts, against the suret,ies upon a sheriff's bond. The question, of jurisdiction was raised, and the .court there held that in that classof cases, the bond being given for the benefit of whoever might be injured by the acts or negligence of the sheriff, the citizenship of the party for whose use the suit was brought determined the jurisdiction. Butin Irvine v. Lowry the former case was fully discussed, and it was held there that' where, as in the case now before the court, the suit is brought upon a non-negotiable contract or right of action, where the legal title still remained in the original creditor, so as to require the suit to be brought in his name, the citizenship of the plaintiff holding the legal title, and not that of the person holding the equitable title, to the demand, controlled the jurisdiction. It will be readily appreciated that: in suits on official bonds made payable to a public officer, who merely holds the bond for the benefit of persons who may become entitled. to a remedy upo;n it, the designation of- the person for whose benefit the suit is prosecuted is a necessary part v.29F.no.12-35 .