$ 20.00

20.00

50.00

140.75

83.22

42.50

40.00

150.00 281.50 66.90

The District Judge entered a decree in favor of libelant, owner of the steamship, for $896.65, which includes items no longer contested and all the items in dispute above listed, except the inspection fee of $83.22 paid by the charterers to the marine branch of the Houston Cotton Exchange.

The charterers appeal, and contend that the expenses they deducted were not included in the port charges which they agreed inclause 20 to pay, and were not extra port charges incurred at the second port, for which they were liable under clause 3, but, under the customs and usages at the ports of loading, that they were entitled under clause 4 to be reimbursed by the vessel. On the other hand, the owner insists that the disbursements were either port charges, under clause 20, or extra port charges, under clause 3, and were payable by the charterers in either event.

[1] In the first clause of the contract the owner bound itself to pay all port charges and pilotages, but in clause 20 agreed to pay the charterers two shillings per net ton, in consideration of which the charterers agreed to pay port charges, "viz. tonnage dues, customhouse fees, levee dues, quarantine fees, and cost of fumigating, wharfage, watching, and outward pilotage." Taking the two clauses together, we think the charterers only bound themselves to pay the port charges which were enumerated. It therefore becomes necessary to determine whether the owner, who was bound to pay port charges other than those enumerated, is liable for any or all of the items which were deducted by the charterers.

[2] We do not think the owner is entitled to recover for the two items of pilotage at Houston. The charterers required the vessel to shift but once, and they were only bound to pay expenses of towing in the event they

required her to shift more than once. The shift from Anderson's dock to the Sinclair dock was not required by the charterers, but was for the purpose of bunkering, and therefore to serve the requirements of the owner. That item was properly chargeable to the

owner.

[3-5] Wharfage, one of the port charges the charterers agreed to pay, clearly includes shed hire, which, according to the testimony, is nothing but a charge for storing cargo. It does not make any difference that it was customary at the port of loading to make a separate charge for shed hire. The customs and usages referred to in clause 5 apply to the allowance of Sundays, holidays, and bad weather days, and the observance generally of the manner of loading and discharging cargo. They do not have reference to other clauses of the contract. Davis v. Wallace, Fed. Cas. No. 3,657; Carbon Slate Co. v. Ennis, 114 F. 260, 52 C. C. A. 146; Holman v. Gans S. S. Line, 186 F. 96, 108 C. C. A. 208. A lien upon a ship, either maritime or statutory, something a vessel has to pay before she is entitled to leave port, is required to constitute a port charge. Scrutton on Charter Parties and Bills of Lading, 234; Newman v. Lamport, 1 Q. B. 20. [6,7] We are of opinion that wharfage includes dockage also. The Brooklyn (D. C.) 46 F. 132. But, even if it does not, the charterers were bound by clause 20 to pay tonnage dues. The charge for dockage was in proportion to the tonnage of the ship, and is sustainable as a valid and constitutional charge. Packet Co. v. Keokuk, 95 U. S. 80, 24 L. Ed. 377. A construction which sustains that charge as valid is to be preferred to a construction under which it would have to be rejected as void. American Sugar Refining Co. v. Newman Grocery Co. (C. C. A.) 284 F. 835.

[8] The inspection fee of the maritime branch of the Cotton Exchange is not shown to be authorized by any public authority, and is not explained in the testimony, further than that it is a fee levied upon cotton upon the wharf and before it reaches the ship. For all that appears, it is a voluntary payment by shippers of cotton. It is not such a charge as creates a lien on a ship, is not controlled by local custom, and in our opinion is not a port charge at all.

What we have already said disposes of the charges at Galveston for shed hire, dockage, and inspection fee of the maritime branch of the Galveston Cotton Exchange in favor of libelant.

[9, 10] There remains to be considered the

pilotage from Houston, by way of Port Bolivar, to Galveston. If the steamer had proceeded direct from Houston to sea, it would have passed through Port Bolivar. The charge for pilotage that far was required by clause 20 to be paid by the charterers. The pilotage charge from Port Bolivar to the pier at Galveston was authorized by clause 3 as an extra port charge; for it was in addition to charges that would have been incurred if the steamer had not stopped at Galveston to take on the remainder of her cargo.

Our conclusions are that the decree should be modified, by adding to it $83.22, the inspection fee of the maritime branch of the Houston Cotton Exchange, which was rejected by the District Court, and by subtracting from the total thus arrived at the sum of $40 for pilotage at Houston from wharf No. 8 to Anderson's dock, and from Anderson's dock to the Sinclair dock. The result is that in our opinion the decree should be increased from $896.65 to $939.87, with interest as allowed by the District Judge.

CENTRAL VERMONT RY. CO. v. PERRY.

(Circuit Court of Appeals, First Circuit. January 5, 1926. Rehearing Denied March 3, 1926.)

No. 1887.

1. Master and servant 112(1)-Injury from violation of Safety Appliance Act actionable under federal Employers' Liability Act.

Federal Employers' Liability Act April 22, 1908, as amended April 5, 1910 (Comp. St. 88 8657-8665), gives right of action for injury or death of employee due to violation of duty imposed by Safety Appliance Act March 2, 1893 (Comp. St. §§ 8605-8612), or its supplements, Act April 1, 1896 (Comp. St. § 8610),

Act March 2, 1903 (Comp. St. §§ 8613-8615), Act April 14, 1910 (Comp. St. § 8617 et seq.), Act Feb. 17, 1911, and Act March 4, 1915 (Comp. St. § 8630 et seq.), in failing to equip and maintain cars and engines as therein re

quired, as well as for death or injury arising

from negligence of servants or failure to provide equipment.

2. Master and servant 110-Safety Appli

ance Act and rules of Interstate Commerce Commission do not prescribe footboards on tender of engine.

Safety Appliance Act March 2, 1893 (Comp. St. §§ 8605-8612), as supplemented by Act April 1, 1896 (Comp. St. § 8610), Act March 2, 1903 (Comp. St. §§ 8613-8615), Act April 14, 1910 (Comp. St. § 8617 et seq.), par

Vt., on the brief), for plaintiff in error.

Alexander Murchie, of Concord, N. H. (Murchie & Murchie, of Concord, N. H., and Raymond Trainor, of White River Junction, Vt., on the brief), for defendant in error.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

BINGHAM, Circuit Judge. In this action the plaintiff seeks to recover damages for the death of her husband, who was killed in the yard of defendant railway company at White River Junction, Vt., while engaged in work connected with interstate commerce. The action was brought in the federal District Court for New Hampshire, the state and district of which she was a citizen and resident. In her declaration the plaintiff alleged that, at the time of the accident, the defendant company was operating a railroad in Vermont, and as such was a common carrier engaged in interstate commerce; that her intestate was in the employ of the defendant as a brakeman engaged in interstate commerce; and that while so employed he was injured by being thrown beneath the wheels of

a locomotive then and there used as a switching engine in interstate commerce-"said injury being caused (1) by reason of the unsuitable, dangerous, and negligent condition of said locomotive; (2) by failure of said defendant to provide a safe work place for said deceased; and (3) by the failure of

said defendant to warn and instruct said deceased of the hazards and dangers caused by the negligent condition of said locomotive-by reason of which negligence on the part of said defendant, its officers, agents, and employees, said deceased received injuries as aforesaid, from which, after conscious suffering, he died on the 12th day of May, 1921, whereby under an act of Congress entitled 'An act relating to the liability of common carriers by railroad to their employees in certain cases,' approved April 22, 1908, as amended April 5, 1910, also under an act of Congress entitled 'An act to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving-wheel brakes, and for other purposes,' approved March 2, 1893, as amended April 1, 1896, March 2, 1903, and April 14, 1910, and also under an act of Congress entitled 'An act to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their locomotives with safe and suitable boilers and appurtenances thereto,' approved February 17, 1911, as amended March 4, 1915, an action has accrued to the plaintiff," etc.

parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment." Comp. St. § 8657.

And in sections 3 and 4 of the act (Comp. St. §§ 8659, 8660) it is provided that in actions brought under or by virtue of the provisions of the act an employee injured or killed should not be held to have been guilty of contributory negligence or to have assumed the risks of his employment "in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee."

[1] The Safety Appliance Act of March 2, 1893 (Comp. St. §§ 8605-8612), and the Acts of April 1, 1896 (Comp. St. § 8610), March 2, 1903 (Comp. St. §§ 8613-8615), April 14, 1910 (Comp. St. § 8617 et seq.), Feb. 17, 1911, and March 4, 1915 (Comp. St. § 8630 et seq.), supplementing and enlarging the provisions of the Act of March 2, 1893, all of which were enacted "to promote the safety of employees and travelers upon

There was a trial by jury, and a verdict for the plaintiff for $7,600. Judgment was entered, and this writ of error prosecuted.

The errors relied upon are that the court erred in denying the defendant's motion for a directed verdict, in its charge to the jury, in the admission of evidence, and in permitting plaintiff's counsel to make certain statements in his closing argument.

The Employers' Liability Act of April 22, 1908, in section 1, provides:

"Every common carrier by railroad while engaging in commerce between any of the several states or territories, or between any of the states and territories, or between the District of Columbia and any of the states or territories, or between the District of Columbia or any of the states or territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, ir case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's

common carriers by rail to equip their cars with certain appliances and their locomotives with safe and suitable boilers and appurtenances, and although these provisions of law do not in express terms confer a right of action upon an employee injured because of a failure to comply with such requirements, it has been held that by implication they give him a right of action for personal injuries not resulting in death. Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33, 36 S. Ct. 482, 60 L. Ed. 874. And where the injury resulted in death and a statute of the state where the accident occurred gave a right of action for death, it has been held that an action under such death statute might be maintained by the deceased employee's representative, relying upon the duty imposed by the Safety Appliance Act and its supplements. St. Louis Iron Mountain Ry. v. Taylor, 210 U. S. 281, 284, 285, 28 S. Ct. 616, 52 L. Ed. 1061; C., B. & Q. Ry. v. United States, 220 U. S. 559, 571, 579, 31 S. Ct. 612, 55 L. Ed. 582; Delk v. St. Louis & San Francisco R. R. Co., 220 U. S. 580, 31 S. Ct. 617, 55 L. Ed. 590; Schlemmer v. Buffalo, Rochester & Pittsburg Ry. Co., 220

U. S. 590, 31 S. Ct. 561, 55 L. Ed. 596. And since the enactment of the Employers' Liability Act of 1908, which gives a right of action for death as well as for personal injuries, it has been held that that act, although it in terms authorizes an action based on negligence only (the failure to exercise the care of the average prudent man), taken in connection with the Safety Appliance Act and its supplements, authorizes an action for personal injuries or death due to the breach of a duty imposed by the Safety Appliance Act and its supplements, irrespective of negligence. Baltimore & Ohio R. R. Co. v. Groeger, 266 U. S. 521, 45 S. Ct. 169, 69 L. Ed. 419; Great Northern R. R. Co. v. Donaldson, 246 U. S. 121, 38 S. Ct. 230, 62 L. Ed. 616, Ann. Cas. 1918C, 581; St. Joseph & Grand Island Ry. Co. v. Moore, 243 U. S. 311, 37 S. Ct. 278, 61 L. Ed. 741; Louisville & Nashville R. R. Co. v. Layton, 243 U. S. 617, 37 S. Ct. 456, 61 L. Ed. 931 (where, apparently, was applied the same construction to the Employers' Liability Act of Georgia and the federal Safety Appliance Act); Southern Ry. Co. v. Crockett, 234 U. S. 725, 34 S. Ct. 897, 58 L. Ed. 1564; Director General of Railroads v. Ronald (C. C. A.) 265 F. 139, 140; Hines v. Smith (C. C. A.) 275 F. 766. And the result is to give to section 1 of the Employers' Liability Act of April 22, 1908, the same effect as though it read:

"Every common carrier by railroad while engaging in commerce between any of the several states or territories, or between the District of Columbia and any of the states or territories, or between the District of Columbia or any of the states or territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment [or due to the violation by such common carrier of any statute enacted for the benefit of employees]."

So construed and read, the Employers' Liability Act (Comp. St. §§ 8657-8665)

gives a right of action to an employee not only for an injury or death arising out of the negligence of the officers, agents or employees of the carrier or due to the carrier's negligence in providing cars, engines, appliances, machinery, track, roadbed, boats, wharves or other equipment, but due to the violation of a duty imposed by the Safety Appliance Act and its supplements for failure to equip and maintain its cars and engines as therein required. See Davis V. Manry, 266 U. S. 401, 403, 45 S. Ct. 163, 69 L. Ed. 350.

The plaintiff's declaration charged negligence only. The ground on which the case was submitted to the jury was not negligence, but the breach of a duty or duties claimed to be imposed upon the carrier by the Safety Appliance Act and its supplements. No objection, however, was taken to the declaration on this account, and it may be regarded as amended to conform to the issue tried. The claimed imposed duties upon which the plaintiff relied were (1) the failure of the defendant to equip the tender with a grabiron or handhold extending across the rear of the tender, and (2) its failure to provide a footboard across the rear of the tender and located from 9 to 12 inches above the rail.

The only evidence in the case was introduced by the plaintiff. It appeared that the plaintiff's husband, the deceased, was employed by the defendant as a member of a switching crew in its yard at White River Junction; that on May 11, 1921, he sustained injuries (from which he died the following day) by being run over by a road engine while backing up to couple the tender to three empty coal cars; that the road engine was then being used, as the switching engine ordinarily used by the crew had been taken to the roundhouse for repairs. The switching crew consisted of the engineer, Dunlay, the fireman, Comstock, the conductor, Learnard, the head brakeman, Perry, the deceased, and the rear-end brakeman, Carroll. It appeared that the crew, on turning in the switching engine, were directed to take the road engine to use in switching; that they took it about half past 1 in the afternoon; that after doing various pieces of work with it (it then being nearly half past 3), they began making the movement in question when the accident occurred, which was about three minutes before completing the day's work; that at the time the engine was backing to make the coupling, the fireman, Comstock, had left to go home; that the engineer, Dunlay, was in the cab operating the engine; that