gence or malfeasance, when the remedy at common law is by an action on the case. The juris diction in Admiralty is not ousted by the fact that where the wrong was done on board the vessel by the negligence of the master she had completed her voyage, and was safely moored at her wharf, where her cargo was about to be discharged. In this case the plaintiff brought an action in personam against the owners of the vessel for injury sustained on board the vessel by a bale of cotton falling on him. As was customary, plaintiff went on board to look after freight he expected by the vessel, and in going along a passageway the accident happened which caused the injury. See also Henry, Ad. 31. In ex parte Gordon, 104 U. S. 515, a writ of prohibition was refused to a District Court of the United States, sitting in Admiralty, wherein a libel claiming damages was filed against a steamer for drowning certain seamen of a vessel with which, as she was navigating the public waters of the United States, the steamer, as was alleged, wrongfully collided. Waite, C. J., at p. 517, in delivering judgment, says:

The suit is for damages growing out of the collision. Having jurisdiction in respect to the collision, it would seem necessarily to follow that the Court had jurisdiction to hear and

decide what liability the vessel had incurred thereby." And again on p. 518: "So here, the Court of Admiralty has jurisdiction of the vessel and the subject matter of the action, to wit, the collision. It is competent to try the facts, and as we think, to determine whether, since the Common Law Courts in England, and to a large extent in the United States, are permitted to estimate the damages which a particular person has sustained by the wrongful killing of another, the Courts of Admiralty may not do the same thing. If the District Court entertains such a suit, an appeal lies from its decree to the Circuit Court, and from there here, if the value of the matter in dispute is sufficient. Under these circumstances it seems to us clear that the Admiralty Courts are competent to determine all the questions involved, and that we ought not to issue the prohibition asked for." This case, however, does not appear to have been followed in subsequent cases. In the District Court of Louisiana it was held that an action for damages for the loss of a human life, caused by a maritime tort, survives in the Admiralty. Where the statute of a State gives a right of action for loss of human life, and such a loss occurs by reason of the tort of the vessel upon the high seas, whose owners re

side in that State, and whose home port is in that State, such vessel was a part of the territory of that State, and its Courts would entertain an action under the statute against the owners for the wrongful conduct of their agents on the high seas which resulted in loss of human life. A Court of Admiralty can enforce such right of action in a proceeding in rem. The E. B.

Ward, Jr., 17 Fed. Rep. 456 (1883). In a District Court of Virginia it has been held that a State statute cannot create a maritime right. A proceeding in rem brought by the administrator against the ship was dismissed. The fact that the statute gives a right of action in personam does not thereby give a right of action in rem in a similar case in Admiralty. The Manhasset, 19 Fed. Rep. 918 (1884). The Admiralty jurisdiction as to damages from loss of human life has recently been considered by the Supreme Court of the United States, and that high Court agrees with the House of Lords in The Vera Cruz, 10 App. Cas. 59. In the absence of an Act of Congress or a statute of a State giving a right of action therefor, a suit in Admiralty cannot be maintained in the Courts of the United States to recover damages for the death of a human being on the high seas, or on waters navigable from the sea,

which is caused by negligence.

The Harrisburg, 119 U. S. 199 (1886). This view was reaffirmed in The Alaska, 130 U.S. 201 (1889), where it was held, in the absence of an Act of Congress or of a statute of a State giving a right of action therefor, a suit in Admiralty cannot be maintained for damage sustained by loss of human life. Again, in 1891, the same Court held that a District Court sitting in Admiralty cannot entertain a libel in rem for damage incurred by loss of life where, by the local law, a right of action survives to the administrator or relatives of the deceased, but no lien is expressly created by the Act. The Corsair, 145 U. S. 336. In these cases the English and American decisions are cited and discussed.

EMPLOYER'S LIABILITY.

In the case of The Enrique, Watters, J., dismissed the plaintiff's suit upon the ground that the Court had no jurisdiction. The other objections urged in defence were not considered. It may, however, be useful to refer to some recent leading cases upon the employer's liability to his servant. In an action to recover damages for injury caused by the negligence of the defendant's servant, the defence of common employment is not applicable unless the injured person, and the servant whose

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negligence caused the injury, were not only engaged in a comENRIQUE. mon employment, but were in the service of a common master. Johnson v. Lindsay (1891) A. C. 371. This decision of the House of Lords was followed by the Privy Council in Cameron v. Nystrom (1893) A. C. 308. This was an action on appeal from the Court of Appeal of New Zealand to recover damages for injury caused by the defendant's servant. The defence of common employment was held not applicable unless the plaintiff was at the time of the injury in the defendant's actual employment in the relationship of master and servant. Where the defendants were stevedores, the plaintiff a servant of the shipmaster on whose vessel the injury was caused, and the person whose negligence caused the injury was a servant of the stevedore, held that the defence of common employment was not available. Lord Herschell, L. C., at p. 310, says: "It is to be observed that the question of common employment only arises as a defence, on the assumption that the person who did the injury was the servant of the person sued. Unless this be the case, the person sued is under no liability, because he is sued in respect of an injury not caused by himself or by anyone for whom he is responsible. And therefore common employment only becomes necessary as

a defence, and is only relevant when the person doing the injury is a servant of the person sued." The case of Donovan v. Laing, Wharton, and Down Construction Syndicate, (1893), 1 Q. B. 629, in the Court of Appeal, is an important one. The defendants contracted to lend to a firm who were engaged in loading a ship at their wharf a crane with a man in charge of it. The man in charge of the crane received directions from the firm or their servants as to the working of the crane, and the defendants had no control in the matter. The plaintiff, who was a servant of the wharfingers, and was employed by them to direct the working of the crane, sustained an injury through being struck by it by reason of the negligence of the man in charge, and sued the defendants on the ground that the negligence was the act of their servant. But, held, that though the man in charge of the crane remained the general servant of the defendants, yet, as they had parted with the power of controlling him with regard to the matter on which he was engaged, they were not liable for his negligence while so employed. Lord Esher, M. R., at p. 632, says: "For some purposes, no doubt, the man was the servant of the defendants. Probably, if he had let the crane get out of order by his neglect, and in consequence any one was in

jured thereby, the defendants might be liable; but the accident in this case did not happen from that cause, but from the manner of working the crane. The man was bound to work the crane according to the orders and under the entire and absolute control of Jones & Co."the parties who were loading the vessel. In Brown v. Leclerc, 22 Can. S. C. R. 53, it was held that where two stevedores are independently engaged in loading the same steamer, and owing to the negligence of the employees of one, an employee of the other is injured, the former stevedore is liable in damages for such injury. The failure to observe a precaution usually usually taken in and about such work is evidence of negligence. In Heaven v. Pender, 11 Q. B. D. 503 (1883), the defendant, a dock owner, supplied and put up a staging outside a ship in his dock under a contract with the shipowner. The plaintiff was a workman in the employ of a ship-painter who had contracted with the shipowner to paint the outside of the ship, and in order to do the painting the plaintiff went on and used the staging, when one of the ropes by which it was slung, being unfit for use when supplied by the defendant, broke, and by reason thereof the plaintiff fell into the dock and was

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injured. Held, reversing the decision of the Queen's Bench Division, that the plaintiff, being ENRIQUE. engaged on work on the vessel in the performance of which the defendant, as dock owner, was interested, the defendant was under an obligation to him to take reasonable care that at the time he supplied the staging and ropes they were in a fit state to be used, and that for the neglect of such duty the defendant was liable to the plaintiff for the injury he had sustained. Held, also, by Brett, M. R., that whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense, who did think, would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger. See also McDonald v. McFee, 3 Pugsley 159; Wood v. Pitfield, 26 N. B. 210; Smith v. Baker, (1891), A. C. 325.

The United States District Court of Louisiana, in The Para, 56 Fed. Rep. 241, has held that a ship is liable in damages to a stevedore's employee who is injured through the insufficiency of the tackle provided by the ship for hoisting cargo.