author: GILBERT, Circuit Judge.

text:
    TODAHL v. SUDDEN & CHRISTENSON et al.
    (Circuit' Court of Appeals, Ninth Circuit.
    April 20, 1925.
    Rehearing Denied May 11, 1925.)
    No. 4439.
    1. Seamen <©=>29(5) — Admiralty jurisdiction not extended to torts committed on land by Merchant Marine Act of 1920.
    Act March 4, 1915, § 20,- as amended by Merchant Marine Act June 5, 1920, § 33 (Comp. St. Ann. Supp. 1923, § 8337a), providing “that any seaman who shall suffer personal injury in the course of his employment may at his election maintain an action,” etc., does not enlarge admiralty jurisdiction so as to extend such jurisdiction to torts occurring on land, notwithstanding provision of original act relating to damages for injuries sustained “on board vessel or in its service”; the “service” referred to in such original act being service on or about the ship.
    2. Seamen <©=>29(50 — Petition against owners and charterer held not to plead partnership.
    Seaman’s petition against owners and charterer for injuries sustained on wharf controlled by charterer, alleging .merely that steamship was being used under a charter or contract with the owners, held) insufficient to plead that owners and charterer were partners, and that seaman was rendering service to partnership.
    3. Seamen <©=>29(I) — Owners held not liable for injuries to seaman, sustained while returning to ship after voluntary trip ashore, because of defective condition of wharf.
    Owners of steamship who had no control over wharf helé not liable for injuries to seaman sustained because of defective condition of wharf, while returning to ship after voluntary trip ashore, since seaman was not in owners’ service at time of accident and owners’ duty to provide safe place in which to work did not extend to a place beyond premises of employment, where seaman had gone for own purposes and over which owners had no control.
    4. Master and servant <©=>89(l) — Employee discharging duty Is In service of master.
    An employee is in the service of his master whenever he is doing that which under his contract of employment he is bound to do.
    5. Seamen <@=>29(5) — Injured seaman had no common-law right of action against owners in view of state Workmen’s Compensation Law.
    Seaman injured while returning to ship from voluntary trip ashore, because of. defective condition of wharf, could not recover against owners of ship on theory that they had not performed their common-law duty of providing a safe place of work, since Ms remedy, if any, was under the California Workmen’s Compensation Law (Laws Cal. 1913, p. 283, § 12). '
    In Error to District Court of the United States for .the Southern Division of the Northern District of California; John S. Partridge, Judge.
    Action by Axel Todahl ag’ainst Sudden & Christenson, a corporation, the McCormick Steamship Company, and ■ others. Demurrer of defendants other than the McCormick Steamship Company was sustained, and plaintiff brings en*or.
    Affirmed.
    Matthew A. McCullough, of San Francisco, Cal., for plaintiff in error.
    Farnham P. Griffiths, Jay T Cooper, and McCutcheon, Olney, Mannon & Greene, all of San Francisco, Cal., for defendants in error.
    Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
   GILBERT, Circuit Judge.

The plaintiff in error was a seaman in the service of the steamship Edna, a vessel which belonged to the defendants in error. He brought an action against the owners of the Edna and the McCormick Steamship Company, which was using the vessel under “contract or charter” from the owners, to recover for injuries sustained on a wharf alongside of which the vessel was moored." Two causes of action were set forth in the complaint. The first was to recover damages under section 33 of the Merchant Marine Act of June 5, 1920, 41 Stat. 1007 (Comp. St. Ann. Supp. 1923, § 8337a), amending, section 20 of the Act of March 4, 1915. The second was to recover damages under the common law. The complaint alleged that the McCormick Steamship Company was the occupant of the wharf except for 550 feet space on the north side thereof and that aside from that space the company had exclusive use, control, and management of the wharf; that on the south side of the wharf is a bumper to protect it from the movements of ships moored alongside, and that the bumpers are separated from the wharf proper by a space 1 foot in width, except at intervals, thus leaving open spaces or holes 1 foot wide and about 10 feet long’; that the wharf wás unlighted; that the plaintiff in error was permitted by the mate of the Edna to go ashore about 5 o’clock in the afternoon to make purchases for himself; and that on his return about midnight be passed through the office of the McCormick Steamship Company on the wharf, using the passageway which that company provided, and that he stepped into one of the open holes between the bumper and the side of the wharf, whereby he sustained serious injuries. He further alleged that the defendants in the action had failed to advise him of the faulty, dangerous, and unsafe condition of the wharf or of the hole in the floor thereof, and that he had no knowledge of those conditions. The owners and the McCormick Steamship Company interposed demurrers to the complaint for failure to state a cause of action. The demurrer of the owners was sustained and that of the steamship company was overruled. The plaintiff in error brings the case here on writ of error to review the ruling upon the demurrer of the owners.

One of the questions presented is whether or not the plaintiff was entitled to bring an action reader the Merchant Marine Act of 1920. We find no warrant in any provision of that act for disregarding the prior well-settled rule that admiralty has no jurisdiction over torts committed on land. The Plymouth, 3 Wall. 20, 18 L. Ed. 125; Swayne & Hoyt v. Barsh, 226 F. 581, 141 C. C. A. 337. The plaintiff relies on the allegation of his complaint that he was in the service of the McCormick Steamship Company as well as in that of the owners of the Edna, and on that portion of the act in question which provides “that any seaman who shall suffer personal injury in the course of his employment may at his election maintain an action, etc.” But we find in the act no expression of the intention of Congress to enlarge the admiralty jurisdiction. The clause, “who shall suffer personal injury in the course of his employment,” is not sufficient in itself to expand the juris* diction' of the court and extend it to torts which occur on land. The plaintiff cites Panama Railroad Co. v. Johnson, 264 U. S. 375, 44 S. Ct. 391, 68 L. Ed. 748. But the opinion in that case, so far from sustaining his contention, may be referred to as supporting a contrary view of the statute. Said the court: “The asserted departure from the restriction respecting uniformity in operation is without any basis. The statute extends territorially as far as Congress can make it go, and there is nothing in it to cause its operation to be otherwise than uniform.” Again, the court said: “Rightly understood the statute neither withdraws injuries to seamen from the reach and operation of the maritime law, nor enables the seaman to do so. On the contrary, it brings into that law new rules drawn from another system and extends to injured seamen the right to invoke, at their election, either tha relief accorded by the old rules or that provided by the new rules.” It is suggested that the clause, “or in its service,” found in section 20 of the original Act of 1915 (Comp. St. § 8337á) furnishes evidence that Congress intended to give seamen a right to recover for personal injuries sustained on shore. It is to be observed, however, that that clause is omitted from the amended Act of 1920, and if its presence in the original act was significant of the intention which is claimed for it, its omission in the amended act should be regarded as evidence of a contrary intention. But it would be a strained construction to hold in view of the prior well-settled maritime law that the words “or in its service,” as used in the Act of 1915, were intended to refer to the service of a seaman elsewhere than on or about the ship in whose service he was engaged. A case in point is Hughes v. Alaska S. S. Co. (D. C.) 287 F. 427, a decision which has been criticized in 1 Benedict on Admiralty (5th Ed.) § 25. But we are unable to agree with the view of the text-writer that the intention of Congress was to annex the remedy to the contract of employment and not to confine it, as if independent of contractual relation, within the bounds of maritime tort.

Nor do we find that as against the owners of the steamship the complaint states a cause of action at common law. It alleges that the McCormick Steamship Company had the exclusive use and control of the wharf, and there is no allegation that the owners of the Edna owned the wharf or participated in its management or control. The most that is alleged in that regard is that the owners knew of the defects in the wharf and failed to warn the plaintiff thereof. We find no ground for holding, as suggested by the plaintiff, that the complaint sets forth facts sufficient to show that the owners and the McCormick Steamship Company were partners and that the plaintiff was rendering service to a partnership. All that is alleged in that respect is that the steamship was being used under a charter or contract with the owners, an allegation wholly insufficient to show partnership. The complaint shows that at 5 o’clock in the afternoon the plaintiff obtained permission to go ashore on business of his own, that.he went ashore over the wharf whereby he must have had opportunity to observe its construction, and that at midnight he was returning over the wharf on his way to the ship when the accident occurred. It is argued that the plaintiff was injured while in his employer’s service, inasmuch as he was under obligation to return to the vessel and was required to pass over the wharf. It is true, as we held in Lamphere v. Oregon Nav. Co., 196 F. 336, 116 C. C. A. 156, 47 L. R. A. (N. S.) 1, that an employee is in the service of his master whenever he is doing that which under his contract of employment he is bound to do. But here the plaintiff, ini voluntarily going ashore, and thus by his own act making his return necessary, was not doing that which his contract of employment bound him to do. The owners of the steamship owed him the duty of providing a safe place in which to perform his work as a seaman. That duty did not extend to his protection when going beyond the premises of his employment for purposes of his own and over premises of which his employers had no dominion or control. 26 Cyc. 1224; 18 R. C. L. 584; Kennedy v. Chase, 119 Cal. 637, 52 P. 33, 63 Am. St. Rep. 153.

But if indeed the plaintiff would have had a common-law right of action against the owners of the steamship, his remedy is fixed by the Workmen’s Compensation Law of California (Laws 1913, p. 283, § 12), which provides: “Liability for the compensation provided by this act, in lieu of any other liability whatsoever [to any person], shall, without regard to negligence, exist against an employer for any personal injury sustained by his employees by accident arising out of and in the eourse of the employment.” Grant Smith-Porter Co. v. Rohde, 257 U. S. 469, 42 S. Ct. 157, 66 L. Ed. 321, 25 A. L. R. 1008; Netherlands American Steam Nav. Co. v. Gallagher (C. C. A.) 282 F. 171; State Industrial Accident Commission v. Nordenholdt, 259 U. S. 263, 42 S. Ct. 473, 66 L. Ed. 933, 25 A. L. R. 1013. In the case last cited it was held that where injuries occur while an employee is engaged in unloading a vessel on land, the local law and not the maritime law has always been applied, and that the state Compensation Act was applicable to the ease.Said the court: “The statute of the state applies and defines the rights and liabilities of the parties. The employee may assert his claim against the industrial accident fund, * * * but he cannot recover damages, in an admiralty court. ® * * When the Compensation Act superseded other state laws touching the liability in question, it did not come into conflict with any superior maritime law.”

The judgment is affirmed.


source: Caselaw Access Project

author: BRYAN, Circuit Judge.

license: Public Domain

text:
    GALLAGHER v. CALIFORNIA BRICK CO.
    (Circuit Court of Appeals, Fifth Circuit.
    April 14, 1925.)
    No. 4508.
    1. Master and servant <@=>185(6) — Injured pipe fitter held not entitled to recover for fellow employee’s negligence in installing block and tackle.
    Where fact that fellow employees, and not employer, usually installed blocks and tackles for use of pipe fitters was undisputed, pipe fitter, who was injured by fall of block and tackle, could not recover for employee’s failure to properly install it, regardless of what class of employees actually installed it.
    2. Master andi servant <@=>289(16) — Use of block and tackle to reach platform, Instead of using means provided by employer, held not negligence as matter of law.
    Where evidence did not show that means provided by employer for reaching swinging platform was safer than block and tackle installed by injured employee’s fellow employees, he was not négligent as matter of law in using block and tackle instead of means provided by employer.
    3. Master and: servant <@=287(2) — Competency of fellow workmen who installed block and tackle held for jury.
    Verdict for pipe fitter, injured by fall of block and tackle negligently installed, held1 warranted by evidence on ground of employer’s failure to exercise reasonable care in selecting competent fellow servants, and it was therefore error to direct verdict for employer.
    4. Master and servant <@=>265(12) — Burden on employer failing to inquire into employee’s competency to prove competency.
    Burden is on employer, who fails to inquire into employee’s fitness when his services are engaged, to prove that employee is competent, and it will not be presumed that employee is negligent' rather than incompetent, since, until contrary is shown, employee is presumed to exercise reasonable care in performing his duty.

      In Error to the District Court of the United States for the Southern District of Florida; Rhydon M. Call, Judge.
    Action by George H. Gallagher against the California Brick Company. Judgment for defendant, and plaintiff brings error in forma pauperis.
    Reversed and remanded for new trial.
    J. L. Doggett and W. McL. Christie, both of Jacksonville, Fla. (Doggett, Christie & Doggett, of Jacksonville, Fla., on the brief), for plaintiff in error.
    Sam R. Marks, W. E. Kay, Thos. B. Adams, and Reuben Ragland, all of Jacksonville, Fla. (Marks, Marks & Holt, of Jacksonville, Fla., on the brief), for defendant in error.
    Before WALKER, BRYAN, and FOSTER, Circuit Judges.
   BRYAN, Circuit Judge.

This is an action to recover damages for personal injuries sustained by the plaintiff, Gallagher, while he was employed as a pipe fitter by the defendant company on the steamship Moffitt.

Several counts of the declaration are based upon defendant’s negligence in failing to provide a safe appliance by means of which plaintiff could get from a door to a swinging platform about five feet below in order to take out a joint of pipe. The appliance provided, and which plaintiff used, was a block and tackle. It is not alleged that the block and tackle itself was defective, but that it was improperly and negligently fastened to an overhead beam. The defenses to this charge of negligence were that there was a safe way by which plaintiff could have reached the platform, and that defendant did not assume to set up temporary appliances, such as blocks and tackles, but relied upon plaintiff and his fellow servants to install such appliances as from time to time might be necessary.

Other counts allege that the block and tackle was fastened to the beam by incompetent employees of defendant, designated as the “roustabout gang,” and that defendant was negligent in failing to use reasonable care in the selection of competent employees.

Defendant was outfitting a new steamship called the Moffitt. Its work consisted of putting in machinery, pipes, water, and heating systems, and generally of completing the ship so as to make it ready to engage in commerce. It had in its employ six or eight different classes of workmen, including machinists, boilermakers, pipe fitters, painters, carpenters, and riggers. For the purpose of removing a faulty section of a pipe which extended from the engine room to the deck of the ship, the so-called roustabout gang, acting under instructions of plaintiff’s foreman, erected a swinging platform about five feet below a door on deck, and hung a block and tackle so as to enable plaintiff to disconnect a joint of pipe in order that it might be removed. There was a cleat nailed to the side of the ship below the door and about halfway between it and the platform.' The platform was not directly under the door, but was several feet off to one side. Plaintiff attempted to reach the platform by means of the block and tackle, but the hook slipped out of the sling, and as a result he fell to the bottom of the hold and was severely injured. One turn of the sling was taken over a beam, and the hook of the upper block was put through both bights of the sling. There was expert testimony for plaintiff that the proper and safe way would have been .to put one bight through the other and hang the hook in a single bight; and that the method employed was unsafe, because when the hook is passed through two bights, and one becomes taut and the other slack, the tendency is to force the slack bight out of the hook, and thus leave'the block and tackle without anything to hold it up.

While defendant’s evidence tended strongly to show that it had riggers on board whose duty it was to hang blocks and tackles for all classes of workmen employed on the ship, and who were fully competent to perform that duty in a proper manner, there was substantial evidence on behalf of plaintiff that these riggers had not been accustomed to hang blocks and tackles for pipe fitters, but that in practice their activities had been limited to operating a large crane which was used to put heavy machinery in place on the ship, and that the work of hanging blocks and tackles for pipe fitters had been performed by the roustabout gang, who as a rule passed the hook through two loops of the sling. There was further evidence for plaintiff to the effect that defendant’s superintendent and manager were constantly on board ship and had ample opportunity to observe and to know that it was usual for the roustabout gang to do this kind of work, and to do it in the manner just stated. It is not disputed that the members who from time to time constituted this gang were selected by the foreman of the pipe fitters without any inquiry being made of them as to whether they knew how to install a block and tackle. The man who actually hung the block and tackle which gave way with plaintiff did not testify, and there was no direct evidence tending to show that he was not competent to perform that kind of work.

At the close of all the evidence, the District Court granted defendant’s motion to direct a verdict in its favor. Plaintiff excepted, and assigns error.

Plaintiff contends that the trial court should have submitted to the jury the question whether defendant assumed the duty to provide a block and tackle installed and ready for use, or whether it committed the performance of that duty to its employees. There is no conflict in the evidence on this point. According to plaintiff’s evidence, it was usual for the roustabout gang to hang blocks and tackles; whereas, according to defendant’s evidence, that work was assigned to the riggers; but all the witnesses agreed that this class of work was to be done by employees and not by the employer. It follows that in so far as negligence was based on defendant’s failure properly to install the block and tackle, plaintiff was not entitled to recover.

The defense that the employer had provided a safe way for descent from the door to the platform is not sufficiently shown by the evidence to compel the conclusion that one way was any safer than the other. The cleat was so arranged that it would have been necessary for plaintiff to hold on to the sill of the door with one hand and to the pipe off to one side with the other, and to step from the cleat to the platform, which, as already stated, was not directly below but was also off to the side. It was therefore not negligence as a matter of law to use the block and tackle instead of the cleat.

The evidence shows without serious dispute that defendant did have competent riggers in its employ, but there is sharp conflict between the witnesses as to whether the riggers ever installed blocks and tackles for pipe fitters. There was substantial evidence for plaintiff that the riggers only operated the crane, that for a considerable period of time the work of hanging blocks' and tackles for pipe fitters had been performed by the roustabout gang, and that defendant’s superintendent and foreman were frequently present and knew, or should have known, that such work whenever required was done by the roustabout gang. It was therefore open to the jury to find that, notwithstanding the employment of riggers, the preparation and installation of means of getting up and down on the ship to do the work assigned to pipe fitters was intrusted by defendant, not to the riggers, but to the roustabout gang. If the jury should so find, they would be warranted in rendering a verdict for plaintiff, because of defendant’s failure to exercise reasonable care in the selection of competent fellow servants.

As there was no direct testimony to the effect that the employee who hung the block and tackle which fell with plaintiff was incompetent, defendant contends that at most only the negligence of a fellow servant was shown, and that proof of a single act of negligence does not tend to prove ineompetency, since, as it is said, the most capable servants are sometimes careless. It being established that no inquiry as to the émployee’s fitness was made when his services were engaged, the burden was on defendant to show that he was in fact competent. Under such circumstances, it will not be presumed that he was negligent rather than incompetent; for, until the contrary be made to appear, an employee is presumed to exercise reasonable care in the performance of his duty. 2 Cooley on Torts (3d Ed.) 1414; Clements v. Electric Light Co., 44 La. Ann. 692, 11 So. 51, 16 L. R. A. 43, 32 Am. St. Rep. 348; 10 R. C. L. 881. Besides, evidence of the manner in which the particular employee under consideration performed the work assigned to him on the occasion of plaintiff’s injury, coupled with testimony that that was the way the same kind of work usually had been done with defendant’s knowledge and implied approval, was enough to require the submission of the issue of his competency to the jury.

The judgment is reversed, and the cause remanded for a new trial.


author: ROSS, Circuit Judge.

text:
    PACIFIC LIVE STOCK CO. v. READ.
    (Circuit Court of Appeals, Ninth Circuit.
    May 11, 1925.)
    No. 4425.
    1. Evidence <©=10(1) — Need of water for irrigation purposes in western part of United States judicially known.
    The Circuit Court of Appeals for the Ninth Circuit judicially knows that water in many sections of the western part of the United States is their very lifeblood. ■
    2. Waters and water courses <©=24 — Appropriation will not permit waste.
    Court will not permit any appropriation of water on the public lands of the United States to go to waste, when needed by others for beneficial purposes.

      3. Waters and water courses <g=>I4-3 — Prior appropriator permitted to divert greater amount during season of heavy flow.
    Prior appropriator -will not be restricted to limited quantity of water per second where effect of decree will be to deprive it of water used for more than 20 years for irrigation of ranch prior to attempted diversion by other owner, in view of small portion of year during which such water is available, but will be permitted to divert greater amount during short period of heavy flow.
    Appeal from the District Court of the United States for the District of Nevada; Edward S. Earrington, Judge.
    Suit by the Paeifie Live Stock Compafiy against D. M. Read. Erom a judgment giving it insufficient relief, complainant appeals.
    Affirmed, as modified.
    T. P. Wittsehen, Joseph C. Sharp, and David E. Snodgrass, all of San Eraneiseo, Cal., for appellant.
    T. A. Brandon, of Winnemucea, Nev., for appellee.
    Before ROSS, HUNT, and RUDKIN, Circuit Judges.
   ROSS, Circuit Judge.

The decree appealed from in this case adjudged the complainant in the suit (appellant here) the owner of certain specifically described parcels of land known as the “Big Creek ranch,” of which at least 200 acres have been under cultivation for more than 25 years and devoted to the raising of hay, grain, alfalfa, and garden and orchard produce, and that at least 300 acres have been fenced and used as pasture land; that the complainant has a prior right to that of the defendant to the suit (appellee here) to sufficient of the waters of Pass creek, Big creek, and of Boyd Basin creek, and of any streams intercepted by the complainant’s Boyd Basin creek ditch during the irrigating season of each year to irrigate the described land, the necessary amount of which water for that purpose being 7Yz cubic feet per second; that, in so far as Big creek and Pass creek can supply that needed water, it should be taken first from those streams, after the taking of all of which, at the point where the same enters the ranch, the complainant is entitled as a prior right and prior to any claim of the defendant to the suit to divert from Boyd Basin creek, and from the ditch leading from Boyd Basin creek, and from any streams flowing into said ditch, enough more water, measured at the place -where the same enters the ranch, to make up the 7% cubic feet per second of water so awarded the complainant.

In the opinion of the court below, supporting the decree, is the following :

“Complainant and its grantors for about 30 years have been the owners and in possession of 800 acres of land in northern Humboldt county, known as ‘Big Creek ranch.’ At least 200 acres have been under cultivation, and have produced as high as 500 or 600 tons of hay in a single season. Three hundred other acres have been for many years fenced and used as a pasture. Big creek flows through the premises, and from it complainant and its grantors have for more than 25 years diverted during the irrigating season of each year substantially all its waters and applied them to the crops and feed growing on the land. Three or four miles north of this ranch is another stream, known as Boyd Basin creek. In 1889 or 1890 complainant constructed a ditch from that creek sufficient to convey all the waters naturally flowing therein to Big Creek ranch. The soil cultivated on the ranch is a sandy loam, and for its proper irrigation fully the average amount of water is necessary. Big creek carries from 2% to 3 times as much water as Boyd Basin creek, and at all seasons of the year carries some water, though, like most Nevada streams, and like Boyd Basin creek, its largest flow is when the warm weather in May and June brings "down the spring freshets from the mountains.
“It is impossible to make any finding as to the exact quantity of water carried by either creek. Though there is an abundance of testimony to the effect that, when all the water of both streams is used, it is insufficient for the irrigation of the crops and the pasture, it is. also in evidence that the alfalfa dried up several seasons for lack of moisture. It is difficult to avoid the conclusion that water has often been wasted, and frequently used injudiciously, by complainant’s employees. That fact alone, however, is not enough to justify an order depriving the company of the right to divert from the two creeks so much water as is reasonably necessary for the irrigation of as much land as was irrigated prior to the time when the defendant in 1919 first attempted to divert water from Boyd Basin creek. The circumstances then attending the actual and contemplated beneficial use of the water by the complainant and its grantors must be given due weight, recognizing the doctrine that there can be-no right of diversion in excess of what is actually needed for beneficial uses and purposes then present. In 1919 defendant located a ranch at the head of Boyd Basin creek, and shortly thereafter his wife, Mrs. Read, made a desert entry on the land in the fiat, opposite the mouth of Boyd Basin canyon. Defendant diverted the waters of the creek to his own land, and in May, 1921, this suit was commenced.”

In the brief of the counsel for the appellant it is said:

“Our only objection to the decree of the lower court is that, while it purports to give 7% cubic feet per second on paper, that amount of water is in the streams for such a short time during the irrigation season that the practical effect of the decree in limiting the use to that amount early in the season will be to deprive appellant of water which it has used for over 20 years, and which it needs for the proper irrigation of its ranch and the conduct of its business. The practical operation of the ranch and of the supply of water from these streams is such that, unless the greater flow of water coming down in the spring of the year with the melting snows is immediately spread over the property, there is no water for the pasture. Por a very limited time in the spring during the thaw the combined flow of all these streams may exceed 7% cubic feet per second. Then they rapidly fall much below this; two (Pass and Boyd Basin) drying completely on or before July 1st, and Big creek dropping to about 2% feet or less. The pasture gets its main and only irrigation during the short period of heavy .flow. When the streams get down to their ordinary flow, they run but very little, and the water is then barely sufficient to take care of the 200 acres of more highly improved lands; therefore it is only in the beginning of the season, when there is more than 7% cubic feet per second flowing in the stream, that the pasture is irrigated. Unless the pasture is irrigated during the time of heavy flow, it is not irrigated at all. Owing to the large number of cattle which appellant has in the vicinity, it needs all the grass that it can possibly grow upon its property, and, the more water spread upon the pasture, the greater the growth of grass, and the more beneficial use is made of the land. These facts are all supported by the findings and opinion of the court.

“Considering the stream flow, placing a limitation of 7% cubic feet per second upon the amount that appellant can take deprives it of water which it had always used and needs for the proper irrigation, of its property, and ,at a time when it can be applied beneficially. Appellant contends that it should be permitted to take more water than 7% cubic feet in the beginning of the season, and that, if there is to be a curtailment, the use be curtailed later on in the season. The position of appellant briefly is that it should be permitted to take not less than 10 second feet prior to June 15th of any year, with its rights limited on a sliding scale thereafter as to the amount of water which may he diverted.”

The evidence shows, and, indeed, it is practically admitted by both sides to the controversy, that the three small streams from which the appellant takes water, and that from which the appellee takes it for the purpose of irrigating land acquired from th,e government near the head of Boyd Basin creek, come from the canyons of the mountains of Nevada. The court knows judicially that water in many sections of this great Western country is its very lifeblood. The evidence shows that it is so with respect to the properties here in question. In such circumstances it is, in our opinion, contrary to both law and justice to permit any appropriation of water upon the public lands of the United States to go to waste, when needed by others for beneficial purposes.

The judgment appealed from in the present ease awards the appellant 7% cubic feet per second of the waters of the three streams for' its lands, without limit as to time, while the evidence in the ease, we think, shows that about the 1st of July both Pass creek and Boyd Basin creek become dry, and the water of Big creek greatly diminished; whereas, during the early part of the irrigating season, the flow of all of the streams is comparatively heavy, dlie to the melting of the snow in the mountains. During that season, the evidence shows, the appellant has been accustomed, for many years preceding the acquiring of any right by the appellee, to irrigate from the said streams its pasture lands, and what it asks, in effect, is that the decree of the court below be so modified as to permit it to use more than 7% cubic feet of the waters in question during their heavy flow, and less as the streams diminish, instead of 7% cubic feet per second for the entire year, during the critical period of which two of the streams, according to the evidence, aré practically dry. We are of the opinion that the judgment should be modified in that regard.

Some very sensible and practical observations were made upon the general subject by the late able and experienced Judge Hawley, of Nevada, in the ease of Union Mill & Mining Co. v. Dangherg (C. C.) 81 F. 73, 118, 119, which we quote:

“The quantity of water flowing in the Carson river is dependent, not only on the amount of snow which falls upon the mountains and in the canyon from which the river draws its supply, but also upon the time of the year when it falls, and further upon the amount of rain that comes in the spring or summer season of the year. The truth is that in some years, in every month thereof, there is more than' water enough to meet and supply all the demands of the farmers and of the mill owners, and that in seasons of extra drought, for a few months in such years, 'there is scarcely enough for either. The real controversy between the respective parties is confined to a period of time ranging from July 1st to November 1st of each year, during which there is always liable to be an insufficient quantity of water flowing in the river to enable the parties to make a reasonable use- thereof both for irrigating and for milling purposes at the same time. The difficulty in arriving at a proper decree is apparent. The power of regulating or controlling the amount of rain or snow is beyond the jurisdiction of courts. No decree can be framed, which is based either upon riparian rights or of appropriation, or of both, which overlooks the uncertainty of the season, or the necessities of the various litigants, so as to meet the demands of justice and of right. It would be unjust and inequitable to compel the farmers in the valley to allow the water to run down to the mills when the quantity of water was wholly insufficient, to enable the complainant to run its mills with water power. There must be a beneficial use before any protection can be invoked. No provisions should be contained in the decree which would result in depriving one party of the use of the water when the other party could make no beneficial use of it. This would amount to a destruction, instead of a protection, of the rights of the parties. In the appropriation of water, there cannot be any ‘dog in the manger’ business by either party, to interfere with the rights of others, when no beneficial use of the water is or can he made by the party causing such interference. The same rules govern riparian rights. No riparian proprietor can dam up or withhold the use of the water of a river simply because the river is on his land, or so use it as to prevent its flowing, down the channel to others having an equal right thereto, and entitled to an equal and beneficial 'use thereof, when such use could be made of the water exeept for such wrongful acts. A practical view ought to be taken of all the conditions, surroundings, and situations. The rights of all parties must be protected by the decree.”

See, also, In re Willow Creek, 74 Or. 592, 628, 629, 144 P. 505, 146 P. 475.

The judgment of the court below will be so modified as to permit the appellant 9 eubie feet per second of the waters of the streams up to June 15th each year, and 7% eubie feet per second thereafter, and, as so modified, it will stand affirmed.


author: DONAHUE, Circuit Judge

text:
    CARTHAGE TOBACCO WORKS v. BARLOW-MOORE TOBACCO CO.
    (Circuit Court of Appeals, Sixth Circuit.
    May 15, 1925.)
    No. 4215.
    1. Trade-marks and trade-names and unfair competition <§=>3(4) — Words “Red” or “Red Leaf,” descriptive of. grade of tobacco, held not valid trade-mark.
    Words “Red” or “Red Leaf,” commercially used to designate grade of tobacco, cannot be appropriated as trade-mark, notwithstanding leaf is not actually red in color, or that order for “Red Leaf,” nothing more appearing, would be too indefinite to fill.
    2. Trade-marks and trade-names and unfair competition >§=>93(3) — Evidence held to Show that words “Red Leaf” applied te grade of tobacco had significance in retail and wholesale markets.
    Evidence that red grades of tobacco were quoted at higher wholesale prices in trade journals than other grades held sufficient to show that words “Red Leaf” had significance as a descriptive term in both retail and wholesale markets.
    3. Trade-marks and trade-names and unfair competition >§=>3(4)— Descriptive words not valid trade-marks.
    Words, marks, or names not denoting origin or ownership, but merely descriptive and commonly and commercially known and used in trade as descriptive of quality, class, grade, or composition of article sold, are not valid trademarks.
    Appeal from the District Court of the United States for the Western District of Kentucky; Charles H. Moorman, Judge.
    Suit by the Carthage Tobacco Works against the Barlow-Moore Tobacco Company. Decree for defendant, and plaintiff appeals.
    Affirmed.
    This appeal involves the question of infringement of a registered trade-mark and unfair competition. The appellant and ap-pellee are both engaged in the manufacture and vending of chewing and smoking tobacco. The appellant in its bill of complaint alleged that in June, 1899, it adopted as a trade-mark the words “Red Leaf” to designate its product and has ever since used that name for that purpose; that when this name was adopted by appellant it was original, new, distinctive, and had never theretofore been used in the tobacco business; that on June 25,1901, it applied to the United States Patent Office for the registration of this trade-mark “Red Leaf,” and after full compliance with the law, registration was allowed on August 6,1901, and is in full force and effect, unrevoked and uncaneeled; that this trade-mark is the property of the appellant and has ever since been used to designate its products exclusively; that it has expended a large amount of money in advertising its tobacco for 19 years as “Red Leaf” and has built up a large trade; that the appellee has put upon the market á chewing and smoking tobacco under the name “Moore’s Red Leaf Twist” and “Moore’s Red Leaf Smoking Tobacco” ; that the products are similar in size, color, and shape; that the appellee’s use of the words “Red Leaf” is an infringement of appellant’s trade-mark; and that the use of the same and the imitation of plaintiff’s package is calculated to deceive the trade and is unfair competition.
    The appellee in its answer denied that appellant had or has any right to appropriate to its exclusive use the words “Red Leaf” in the tobacco trade, and further alleged that these words at the time of their adoption by appellant were not original," new, or purely fanciful and arbitrary, but, on the contrary, that the words “Red Leaf,” whether taken separately or in combination, have been of common and general use in the tobacco business for a long number of years; that they are fairly indicative of the grade and "quality of tobacco and belong to the trade and to the public and cannot be exclusively appropriated by any one manufacturer or dealer.
    The appellee also denied it had been guilty of any unfair competition in the marketing of its products. The trial court found on the issue joined for the defendant, denied the injunction, and dismissed the bill of complaint, from which decree the Carthage Tobacco Works appeals.
    Edwin C. Henning, of. Evansville, Ind. (H. B. McGinness, of Carthage, Tenn., on the brief), for appellant.
    John B. Rodes, of Bowling Green, Ky. (Sims & Sims, of Bowling Green, Ky., on the brief), for appellee.
    Before DENISON, DONAHUE, and KNAPPEN, Circuit Judges.
   DONAHUE, Circuit Judge

(after stating the facts as above). Upon the trial of this cause, a stipulation was filed, which, in part, reads as follows: “All twists and granulated tobaccos aré dressed and marketed for the public in practically the same form) color and shape of package as complainant and defendant are using. The sole and only issue arising on the question of infringement between the complainant and defendant being the use by defendant of the words ‘Red Leaf.’ ”

While there is some conflict in the evidence, nevertheless it appears from the record that the appellee established by a fair preponderance of the evidence that'the words “Red Leaf” are not fanciful and arbitrary, but are distinctive and descriptive of a grade, character, and quality of certain species of tobacco; that these words are commonly used and employed as descriptive of grade and quality of these several species by all tobacco raisers, dealers, and manufacturers. There is also substantial evidence tending to prove that there is a distinct variety or species of tobacco grown from-seed, in Barren and Smith counties, Tenn., in the upper Cumberland district, known as “Tennessee Red Leaf.” The appellant’s factory is located in Barren county.

It is claimed on behalf of appellant that these words cannot be descriptive of grade or quality for the reason there is no such thing as “Red Leaf” tobacco. Strictly speaking, that may be true, nevertheless it' is conclusively established by the evidence that red or red leaf is commercially used to designate a certain grade, differing in color from other grades of at least three species or varieties of tobacco grown in Tennessee, and that what is known as the Red or Red Leaf grade is recognized as of better quality and commands a higher market price than several other grades of the same tobacco. It' is therefore wholly unimportant whether the leaf is actually red or only a reddish brown, if it be known and designated in the trade as “Red Leaf.”

It is further claimed on the part of the appellant, and there is some evidence to that effect, that “Red Leaf” standing alone would have no significance in the trade, and that if an order were given to a dealer for “Red Leaf,” nothing more appearing, it would be too indefinite to fill. That, no doubt, is true, but it further appears from the evidence that it would be equally true if an order were given for' a distinct species, or variety, such as Burley, Green River, or One-Sucker to-baeeOj .without designating dark brown, red, bright, or select. Such an order would be equally as indefinite as an order for Red Leaf without designating1 “Green River,” “One-Sucker,” “Burley,” or “Tennessee Red Leaf,” yet it would hardly be claimed that “Green River,” “One-Sucker,” “Burley” or “Tennessee Red Leaf” could be appropriated as a trade-mark.

It is also claimed on the part of the appellant that even though “Red Leaf” might have some meaning in the trade to growers, dealers, and manufacturers, it has no significance whatever to the consumer. This contention is not sustained by the evidence. It appears by the excerpts from two issues of Western Tobacco Journal of Cincinnati of March 5 and 12,1923, copied into the record, that red grade of Green River leaf is quoted at $18 to $40, while dark leaf of the same tobacco is quoted from $10 to $30. A like difference in market value also applies to like grades of One-Sucker and Burley. This evidence would indicate that the consumer is very much concerned about the color of the tobacco he uses and is willing to pay a higher price for the red or bright leaf than the dark leaf of the same tobacco. This demand and willingness to pay on the part of the consumer is reflected in the wholesale market quotations, otherwise a level price would obtain for all colors of the same variety of tobacco in both wholesale and retail markets. If the ultimate consumer were not concerned as to color, the grading by color would appear to be without purpose or advantage in the trade.

Words, marks, or names which do not denote origin or ownership, but are merely descriptive and commonly and commercially known and used in the trade or business as descriptive of the quality, class, grade, or composition of the article sold, are not valid trade-marks and may not be appropriated. Columbia Mill Co. v. Alcorn, 150 U. S. 460, 463, 14 S. Ct. 151, 37 L. Ed. 1144; Rouss, Inc., v. Winchester Co. (C. C. A.) 300 F. 706, 711, and cases there cited.

Upon the question of unfair competition it clearly appears that, eliminating from the appellee’s label the words “Red Leaf,” there is no similarity whatever. The script upon the appellee’s label is wholly different and there is no resemblance whatever, “even as a picture.” Schlitz Brewing Company v. Houston Ice Co., 250 U. S. 28, 30, 39 S. Ct. 401, 63 L. Ed. 822.

The appellee having the right to use the words “Red Leaf,” it cannot now be held guilty of unfair competition because it has done so. The stipulation that all twists and granulated tobaccos are dressed and marketed for the public in practically the same form, color, and shape of package as complainant and defendant axe using, eliminates from our consideration all questions of similarity of packages in connection with the claim of unfair competition.

For the reasons stated, the judgment of the District Court is affirmed.


author: ROSE, Circuit Judge.

text:
    JOHNSON et al. v. UNITED STATES.
    (Circuit Court of Appeals, Fourth Circuit.
    April 14, 1925.)
    No. 2318.
    1. Criminal law <©=>! 129(3) — Assignments of error, complaining of exclusion and admission of evidence, without specifying particular evidence involved, held contrary to rules.
    Assignments of error, complaining that court “erred in excluding competent evidence offered,” to which the “defendants duly and regularly excepted,” and that “court erred in admitting various incompetent, irrelevant, and immaterial evidence offered by the United States” over defendants’ objection, “all of which more particularly and at large is shown in the transcript of the testimony,” helé viola-tive of Circuit Court rules.
    2. Grand jury <©=>30 — Existence of special term grand jury did not terminate on convening of regular term to which it was continued.
    Legal existence of special term grand jury did not terminate on convening of regular term, where it was continued to such regular term by order of court entered on day preceding it.
    3. Indictment and information <©=>121 (2) — Application for bill of. particulars in prosecution for conspiracy to violate National Prohibition Act held prope'rly denied.
    Denial of application for bill of particulars demanding bill of particulars giving “all the facts and circumstances of the conspiracy” concerning. which the government “expects to introduce evidence,” “a detailed statement of all overt acts committed, the days and dates when committed, the time and place at which they were committed, and the method and manner in which they were committed,” and overt acts “which could have been pleaded therein but were not so pleaded,” the “names and post office addresses of all witnesses which the United States will call to testify,” and “the facts concerning which each of the said witnesses respectively will testify,” held proper.
    4. Jury <©=>149 — Dismissal of panel pending determination of preliminary questions held within sound judicial discretion.
    Where six days had elapsed without commencement of actual trial of defendants because of time consumed in hearing demurrers, motions, pleas in abatement, etc., and 13 jurors originally summoned had been excused because» of valid excuses, action of court in dismissing entire panel on ground that it would be a “needless expense to keep these jurors on pay at the expense of the government for three or four days” during which he would still be occupied in dealing with preliminary questions, held within sound judicial discretion.
    5. Criminal law @=586 — Granting of continuance is in sound discretion of trial court.
    The granting of a continuance is in sound discretion of trial court.
    6. Criminal law @=599 — Denial of continuance because surprised by government’s witnesses held not abuse of discretion.
    Where government, after opening statement, spent more than three weeks in producing its evidence, and during such time thoroughly disclosed its case, and where the only evidence thereafter produced for defendant other than that as to good character was that of witness who sought to impeach credibility of some of government’s witnesses, refusal of continuance on ground that defendants were surprised by testimony of government’s witnesses was not abuse of discretion, since defendants had ample time in which to meet government’s evidence.
    7. Conspiracy @=40, 45 — Defendants who sold alcohol, illegally removed pursuant to conspiracy, became parties to conspiracy, and evidence of prior events admissible.
    In prosecution for conspiracy to violate National Prohibition Act (Oomp. St. Ann. Supp. 1923, § 10138% et seq.) by purchase of alcohol from United States for industrial purposes under agreement to denature it before removal, and by removal and sale thereof without denaturing it, persons to whom alcohol was shipped, who sold it with knowledge of the conspiracy, became parties thereto, though not parties at its inception, so that evidence as to what occurred at inception of conspiracy was admissible against them.
    8. Criminal law @=721(1) — Remarks of counsel in argument to jury held not references to defendants’ failure to take stand.
    Remarks of counsel for government in argument to jury held not references to defendants’ failure to take stand.
    9. 'Criminal law @=829(1) — Refusal of instructions covered by charge given not error.
    Refusal of instructions covered by charge given held not error.
    10. Criminal law @=424(3) — Declarations of conspirator, made out of presence of a defendant after termination of conspiracy, not admissible against such defendant.
    Statements or declarations of one conspirator, made out of the presence of a defendant after termination of conspiracy, are not admissible, against such defendant.
    11. Criminal law @=779 — Charge as to acts and declarations of conspirators held not misleading.
    Statements in charge that “acts and declarations of each of the members of the conspiracy are- competent and available proof against each other member,” and that “they are then partners as in other transactions of life, lawful transactions, each acts for every one, and' for all the others,” held not misleading as against objection that charge permitted jury to consider declarations of one conspirator, made out of presence of another and after termination of' conspiracy, admissible against such other, especially where no such declarations had been made after termination.
    12. Criminal law @=865(1) — Instructions on sending jury back for further deliberations held not ground for reversal.
    Instructions to jury, on sending it back for further deliberation after extended deliberations without agreement, that absolute certainty could not be expected, that dissenting juror should consider whether his doubt is reasonable one, etc., held not ground for reversal.
    13. Criminal law @=42 — Voluntary statements to government agent, and testimony in prosecution of another, where not incriminatirtg, held not to protect' witness from prosecution.
    One who answered questions of government agent investigating violations of National Prohibition Act (Comp. St. Ann. Supp. 1923, §• 10138% et seq.), and thereafter testified in liquor prosecution of other person, without objection, was not immune from prosecution for conspiracy to violate National Prohibition Act, under Fifth Amendment, where neither such statements nor testimony had slightest tendency to incriminate him, and were not introduced against him in such subsequent prosecution.
    14. Witnesses @=2’97 — Witness cannot be compelled to give incriminating testimony.
    A witness cannot be compelled to answer-questions which incriminate him, for the very reason that such incrimination may, in the absence of statutory amnesty, result in his subsequent prosecution and conviction.
    15. Criminal law @=42 — Witness who- voluntarily testified in liquor prosecution held not exempt from prosecution under National Prohibition Act.
    Under National Prohibition Act, tit. 2, § 30 (Oomp. St. Ann. Supp. 1923, § 10138%q), providing that no person compelled to give incriminating testimony in liquor prosecution shall be-“prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing as to which in obedience to a subpoena or under oath he may so testify or produce evidence,” defendant, who freely answered questions of government agent investigating liquor prosecution, and testified voluntarily in prosecution of other defendant in. obedience to subpoena under oath without knowledge or suspicion that he was in any wise criminally implicated, was not immune from subsequent prosecution for conspiracy to violate Prohibition Act.
    , In Error to the District.Court of the United. States for the Northern District of West Virginia, at Wheeling; William E. Baker,. Judge.
    S. K. Johnson and Albert Eiek were convicted of conspiracy to violate the National Prohibition Act, and they bring error.
    Affirmed.
    J. Bernard Handlan and G. Alan Garden, both of Wheeling, W. Va. (William T. Dixon, of Martins Ferry, Ohio, and Frank A. O’Brien, of Wheeling, W. Va., on the brief), for plaintiffs in error.
    Thayer M. McIntire, Sp. Asst. U. S. Atty., of Parkersburg, W. Va. (T. A. Brown, U. S. Atty., of Parkersburg, W. Va., on the brief), for the United States.
    Before WOODS, WADDILL, and BOSE, Circuit Judges.
   ROSE, Circuit Judge.

The plaintiffs in •error S. K. Johnson and Albert Eiek, hereinafter called the defendants, together with eight other individuals, were indicted for a conspiracy among themselves, and with others unknown, to violate the National Prohibition Act (Comp. St. Ann. Supp. 1923, § ÍOISS^ et seq.). Six of the accused pleaded guilty either before the trial began or at various stages of its progress. Two more were acquitted by the jury. The plaintiffs in error were convicted and have brought their case here. ,

Their' assignments of error in form number 24, but in fact, are so expressed as to attack some hundreds of separate rulings •of the court below. Thus, one seeks to bring before us the refusal of 43 separate instructions asked for hy the defendants. Some of these, it may be said in passing, have reference solely to persons acquitted and have no relation whatever to the ease against either of the parties now before the court. Anoth•er assignment complains that the court below “erred in excluding competent evidence offered by” the “defendants” “to which action •of the court” the “defendants duly and regularly excepted,” and another that the “court •erred in admitting various incompetent, irrelevant, and immaterial evidence offered by the United States” “over the objection of” the “defendants,” “all of which more particularly and at large is shown in the transcript of the testimony.” We have not attempted to count how many exceptions there were, but there could scarcely have been fewer than 100. It goes without saying that assignments like these comply neither with the letter nor the spirit of our rules. They are of no assistance in a review of a record which runs up to nearly 800 printed pages. We, however, have read all of it and, without attempting a detailed discussion of the assignments as such, will state with what brevity we may the conclusions to which we have come upon such of the questions raised as seem to us require any mention whatever.

It will be more convenient to deal with those which relate to both of the defendants first, and afterwards to consider separately one applicable to Johnson alone.

Complaint is made that the indictment was returned by a body of men who were not, in contemplation of law, a grand jury at all. Admittedly, they had legally constituted the grand jury at the special term of the United States court opened at Wheeling on April 24, 1923. The 1st of May was the date fixed by law for the beginning of the regular May term of court. On the preceding day, the 30th of April, the court entered an order that the grand jury “heretofore impaneled and sworn, and not having completed the business before them, and the regular May term of this court convening on tomorrow, on motion of the United States attorney, it is ordered that the said grand jury be, and it hereby is, adjourned and continued until to-morrow morning at 9:30 o’clock, at the regular May term of this court, that they may continue the investigations before them or which may come to their knowledge touching the present service.” Without any further action, this grand jury continued to act and returned the indictment in this ease on May 8th. The defendants say that upon the convening of the regular term, the special term necessarily came to an end and with it the legal existence of the grand jury which had been impaneled for it. Substantially, the same contention was made and overruled in United States v. Rockefeller (D. C.) 221 F. 462, with the reasoning and conclusions of which we agree.

The defendants say that the learned court below erred in overruling their demurrer to the indictment. In all substantial respects, it was identical in form with that we held sufficient in Martin v. United States, 299 F. 287.

The defendants assign error to the denial of the bill of particulars for which they asked and which demanded, among other things, “all the facts and circumstances of the conspiracy” “giidng in detail all dates of any and every transaction concerning which the United States” “intends to offer evidence.” “Particular description of that part of the National Prohibition Act which the defendants or any of them are alleged to have conspired to violate.” “A full and complete description of all the facts and circumstances and acts concerning which the government expects to introduce evidence,” “in its proof of overt acts.” “A detailed statement of all overt acts committed, the days and dates when committed, the time and place at which they were committed and the method and manner in which they were committed.” “A full and detailed description of all facts and circumstances concerning which the government intends to offer proof of any and all acts committed by the defendants” “which could have been pleaded therein as overt acts but were not so pleaded.” “The names and po.st office addresses of all witnesses which the United States will call to testify,” and “the facts concerning which each of the said witnesses respectively will testify.” Such an application obviously went far beyond anything to which the defendants could possibly have been entitled.

The defendants stressed what they charged to have been irregularities in the manner of discharging, selecting, summoning, and impaneling the men from whom the petit jurors who tried them were selected. Sixty jurors originally had been summoned for the special term which was convened on September 20th for the trial of the instant ease. Many preliminary questions were raised. . There were demurrers, motions, pleas in abatement, etc. The court apparently patiently heard argument on all of them. Six days had elapsed and the case was not yet at issue. In the meantime the court had felt constrained to excuse thirteen of the jurors originally summoned, and the judge said that in the two years and a half there had never been a jury that, to his mind, had so many real and valid excuses. He .said there were eases without number in which these excuses were' almost mandatory, and that very much against his inclination he had been compelled to say, “Gentlemen, I cannot excuse you.” He had gone so far as to say: “Gentlemen, this is a busy time of the year. You will not be detained more than two weeks.” It may be -added that the verdict was not actually returned until November 9th, more than six weeks after the time at which the court was speaking. The judge mentioned other considerations which made the retention of these particular jurors quite inconvenient. The end of” the quarter had come. Under the accounting regulations of the Department of Justice, all the jurors must be paid up. The accounts had to be closed out and a new start made. All this was hard upon the marshal’s office unless that official had a little time. The learned judge added, “Now as I see it, it would be a needless expense to keep these jurors on pay at the expense- of the government for three or four days,” during which he apparently anticipated he would still be occupied in dealing with mere preliminary questions. The entire panel was thereupon discharged. The defendants excepted. Under the circumstances, the action taken by the court was within its sound judicial discretion. We see no reason to think that it was abused. The subsequent action of the court in issuing a new venire followed as a matter of course. The trial of the defendants could only be to a jury and one had to be obtained.

Throughout the course of the ease, the defendants moved to strike out the testimony of every government witness on the ground that the defendants were refused the bill of particulars for which they asked, and as a consequence of the insufficient information given by the indictment they were taken by surprise. We have already held there was no error either in sustaining the indictment or- in refusing to grant such a bill of .particulars as the defendants saw fit to demand. During the examination of each of the government’s witnesses, the defendants asked that if the court would not strike out the testimony, it .should grant a continuance on the same ground; that is to say, that they were taken by surprise. This request was refused as often as made. The granting of a continuance is in the sound discretion of the trial court. As already stated, we have carefully examined the record in this ease. "The government made its opening statement on the 4th of October and began the examination of its witnesses the next day, and this continued during every court day up to and through the 29th of October. The record shows that very shortly after the testimony began, the outline of the government’s case was thoroughly disclosed. There was ample time for the defendants to have met it if they had seen fit. In point of fact, the only testimony, other than that as to good character, offered on behalf-of either of the defendants, was that of Johnson’s daughter, who took the stand apparently for the purpose of impeaching the credibility of some of the government witnesses by testifying that he could not have been at a particular place at the time they had sworn he was. We are satisfied that the defendants were not surprised.

The prosecution proved the United States had, at Hermitage, Term., a large quantity of alcohol which it advertised for sale for industrial purposes. Before the alcohol could be removed, it was to be denatured by .the purchaser. One of the defendants who pleaded guilty was a certain Cecil H. Kearns. He and others of the defendants, not including those now before the court, planned to buy this alcohol, to pretend to denature it without doing so, and to ship it to various cities, Chicago, Toledo,- Wheeling, etc., and there dispose of.it for beverage purposes. The theory of the government was that Johnson and Eick, knowing its history as that has just been stated, undertook to receive and to dispose of a carload of it in Wheeling and did so. One of the theories of the defense is that the record shows that the conspiracy charged and proved by the government was to ship the alcohol from Tennessee without denaturing it, and that no evidence as to what happened at Wheeling afterwards was material unless the government proved that the defendants had participated in the illegal acts at Hermitage. There is nothing in this contention. The government offered any amount of evidence that the defendants knew all about the alcohol and had undertaken to receive it in Wheeling and to dispose of it illegally there. That they may not have been in the conspiracy at its inception. is immaterial if they became parties to it at any stage of its progress.

What has been already said disposes of the contentions of the defendants that they were entitled to an instructed verdict. If the jury believed the uncontradicted evidence of the government, their guilt was amply proved.

The defendants complain that in argument the counsel for the government called the attention of the jury to the fact that neither of the defendants had seen fit to take the stand in his own behalf. It does not appear that anything of the kind was done. In enumerating the questions that the jury would have to consider, one of the counsel for the government said: “What is the evidence introduced by the government? Does that evidence tend to prove these men guilty beyond a reasonable doubt? What is the defense offered on their behalf?” At another time, he said: “Is there any evidence to show that” (a couple of the government witnesses, naming them) “were not here in the latter part of March or the 1st of April, and that they did not get the alcohol as they were directed? That is one thing upon which there has been no apparent contradictions.” Then, again, another one of the counsel for the government said: “I want to call your attention to this opening statement of counsel. And now after the government has presented to you what I think is the strongest ease that was ever made out against a man, we have in defense of that only the evidence of the good reputation of some of these defendants.” We see in this nothing but a fair and accurate statement of what had taken place, and there is nothing in the quoted language to sustain the contention that the government in any way called the attention of the jury to the fact that the defendants did not take the stand.

No harm was done to them by the refusal of any of the instructions for which they asked. Everything to which they were entitled was covered in the charge of the court.

Attention is called by them to the fact that the court said that after the jury is satisfied the conspiracy has been formed and exists, “the acts and declarations of each of the members of the conspiracy are competent and are available proof against every other member. They are then partners as in other transactions of life, lawful transactions, each acts for every one and for all the others.” The defendants say that this is misleading, in that it did not tell the jury that, statements or declarations of one of the conspirators, made out of .the presence of a defendant and after the conspiracy had ended, are not admissible against such defendant. The defendants’, statement of the law is, of course, accurate, but our attention has not been called to the admission of any evidence of any declarations made by one of the conspirators out of the presence of the others after the conspiracy had ended. We have not noticed any in our own examination of the record.

We think it necessary to notice only one other complaint going to the ease of both the defendants, and that is as to what the court did and said after the jury had been considering their verdict for some three days. As we understand the record, the jury were not kept together during all of that time. The case was given to them a few minutes before 12 on November 6th. At 12:40 they were apparently allowed to separate for their luncheon, were reconvened at 2 o’clock, were again excused at 5 in the afternoon. They came together again at 10 o’clock on the morning of the 7th. At 12:30 they had an hour and a half recess, were excused at 4:44 in the afternoon until 9:30 the next day, the 8th. On that day, they had the usual noon recess of something like an hour and 20 minutes, and at 5:49 in the afternoon, were brought into court, when the court asked the foreman what, in his opinion, was the probability of agreeing on the verdict if there should be a night session. The foreman answered: “Well, from all indications, the point is just the same as it has been the first minute we went out. I think it will be an impossibility for the jury to get together.” The court then explained to them that they' might find all the defendants guilty, or all not guilty, or some guilty or some not guilty, and, in an extreme ease, if they could agree as to some of them and not as to the others, they could find a verdict as to those about which they had agreed and report a disagreement as to the others. He then said: “Let me now add, without detracting from what I said in the former charge, the court and jury are here to come to a just and righteous result. No doubt you are as anxious to reach it as I am; so anxious is the court that, having spent five weeks in the trial of this ease, I am willing to stay here another week if by that means we are able to reach a just and proper result in this trial. " The jury are instructed that in a large proportion of cases absolute certainty cannot be expected, although the verdict must be the verdict of each individual juror and not a mere acquiescence in the conclusions of his fellows. Yet, you should examine the questions submitted with candor and with a proper regard and deference to the opinions of each' other. It is your duty to decide this ease if you can conscientiously do so. No juror is expected to do violence to his conscience. You should listen with a disposition to be convinced to each other’s arguments. If a much larger number are for conviction, a dissenting juror should consider whether his doubt is a reasonable one which made no impression upon the minds of so many men equally honest and equally intelligent with hiinself. If, on the other hand, the majority of you are for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority.” We see nothing in this language to which any exception can be taken and no need to make any additions to it.

It remains to consider the one assignment applicable to Johnson alone and which involves a question of importance upon which the views of the courts have not been altogether uniform.

It appears from the testimony that the government in some way found out that the alcohol was being shipped without being denatured. Cars of it tvere seized at various places, and arrests 'which ultimately culminated in an indictment tried at Dayton, Ohio, were made of various parties, some of whom were subsequently included in the indictment in the instant case. No proceedings at that time had been instituted against either of the defendants now before the court. In the course of the investigation preparatory to the prosecutions instituted elsewhere, a government agent visited Johnson. Johnson received him pleasantly and told him what, of course, he already knew, that the ear of alcohol had come to Wheeling. He added, at the request of the consignees of it, he had taken charge of it and had put it in storage for them. He gave the agent certain delivery tickets, bills, etc., which had been used in connection with the transaction. He said nothing- to indicate that he had any knowledge that the alcohol was not denatured or that any improper disposition was to be made of it or, in fact, had been made. He made other statements at the time, which the record would indicate were untrue or were but such half truths as axe to a proverb often the most effective instruments of deception. Subsequently at the trial in Dayton of Kearns and others,' Johnson was summoned to produce these papers, and he did so and proved their receipt. Although he was examined at some little length, he testified to nothing else of any practical importance. He had freely answered the questions of the agent in the first instance, and he made no objection to testifying at Dayton. Nothing he there said, if true, had the slightest tendency to incriminate him. The government did not, in this case, offer any part of the testimony he there gave, against him.

He claims immunity under section 30 of title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138%q), which provides that: “No person shall be excused, on the ground that it may tend to incriminate him or subject him to a penalty or forfeiture fróm attending and testifying, or producing books, papers, documents, and other evidence in obedience to a subpoena of any court in any suit or proceeding based upon or growing out of any alleged violation of this act; but no natural person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing as to which, in obedience to a subpoena "and under oath, he may so testify or produce evidence, but no person shall be exempt from prosecution and punishment for perjury committed in so testifying.”

His claim that he is immune from prosecution rests upon that statutory provision and upon it alone. He is not protected by the common law as that has been embodied in the Fifth Amendment to the Constitution. United States v. Kimball (C. C.) 117 F. 156; United States v. Price (C. C.) 163 F. 904; United States v. Wetmore (D. C.) 218 F. 227. Indeed, the proposition of law just stated is itself the basis upon whieh the decision of the Supreme Court in Counselman v. Hitchcock, 142 U. S. 547, 12 S. Ct. 195, 35 L. Ed. 1110, rests. A witness cannot be compelled to answer questions whieh incriminate him for the very reason that such incrimination may in the absence of statutory amnesty result in his subsequent prosecution and conviction. We do not have here an attempt to introduce his former testimony in evidence against him. We are therefore not concerned with questions whieh relate to whether what he once swore to was obtained from him under conditions which would make any confession or admission of his inadmissible against him. Cases similar to that of United States v. Bell (C. C.) 81 F. 830, are therefore not in point.

The one question upon which we are called to pass is whether, under the statutory provision in question, one who has in obedience to a subpoma testified under oath for the government, without making any objection or claim of privilege on his part, is thereby exempted from subsequent prosecution for any phase of the transaction as to which he was interrogated, it not appearing, at the time the government subpoenaed and examined him, that it had any knowledge or suspicion that he was in any wise criminally implicated in the affair. The defendant says it is admitted that 'he was subpoenaed; that in obedience to its behest, he attended in court, produced the documents it commanded him to bring with him, and testified under oath in a criminal trial against others for'a transaction in whieh the offense with whieh he is now charged was included or with whieh, at all events, it was inseparably connected. He insists that he is within both the words and the letter of the statute. The section of the National Prohibition Act above quoted, and upon whieh he relies, is in itself borrowed, without any intention to change its scope or meaning, from the form given to a series of earlier acts by that of June 30, 1906, 34 Stat. 798 (Comp. St. § 8580), which provided that the immunity given by the previous statutes “shall extend only to a natural person who, in obedience to a subpoena, gives testimony under oath or produces evidence, documentary or otherwise, under oath.” Quite clearly this act did only two things and it was intended to do no more. It made it clear that the immunity granted did not inure to the benefit of corporations and that a natural person could not claim it unless he had testified in obedience to a subpoena. It was passed to meet the serious situation whieh the President and Congress thought had been created by the rulings of Judge Humphreys in United States v. Armour & Co. (D. C.) 142 F. 808. 4 Wigmore on Evidence (2d Ed.) 962; Congressional Record, vol. 40, pp. 7658 and 8739. It was clearly not intended" to change the previously existing law in any other respect. As the Supreme Court has said in Heike v. United States, 227 U. S. 131, 33 S. Ct. 226, 57 L. Ed. 450, Ann. Cas. 1914C, 128, its “obvious purpose * * * is to make evidence available and compulsory that otherwise could not be got.” It added, the significant statements, “we see no reason for supposing that the act offered a gratuity to crime.” “It should be construed, so far as its words fairly allow the construction, as eoterminus with what otherwise would have been the privilege of the person concerned.” That privilege would have been to have done either one of two things; to have testified voluntarily or to have refused to testify on the ground of his constitutional privilege. The act was not intended to deal with the cases in whieh he chose to do the former. Its one object was to meet the situation whieh arose when the witness elected to claim "the right which the Constitution gave him. It was not intended to relieve from tie possibility of punishment under other circumstances, or as the Supreme Court said, it did not offer a gratuity to crime.

• A construction should not be given to it whieh would result in a grand jury or prosecuting officer unwittingly conferring immunity upon a serious offender because in the best of good faith, and with no reason to suppose that he was criminally involved in the transaction, he was subpoenaed to produce some documents or to give some testimony whieh perhaps could just as well have been obtained from other sources. Unquestionably the witness has the constitutional right to object to testifying. Then it- is open to the government to elect whether it will or will not proceed with his examination under the statute, but if it does not, his rights remain as they were before he was called to the stand.

We are aware that there are decisions to the contrary, as for example U. S. v. Pardue (D. C.) 294 F. 543, U. S. v. Ward (D. C.) 295 F. 576, and People v. Sharp, 107 N. Y. 427, 14 N. E. 319, 1 Am. St. Rep. 851; but we think the conclusion to which, as above stated, we have come, is based upon what appears to us to be the better reason and is supported by U. S. v. Skinner (D. C.) 218 F. 870, U. S. v. Elton (D. C.) 222 F. 428, U. S. v. Lee (D. C.) 290 F. 517, and if we understand the report correctly, by the majority of the Supreme Court of Wisconsin in State v. Murphy, 128 Wis. 201, 107 N. W. 470. In 4 Wigmore on Evidence (2d Ed.) § 2282, p. 958, the learned author well says: “The anticipatory legislative pardon or immunity is not authorized absolutely but only conditionally upon and in exchange for the relinquishment of the privilege. The Legislature did not intend to give something for nothing, i. e., to give immunity merely in exchange for a testimonial disclosure which it could in any event have gotten by ordinary rules or by the witness’ failure to insist on his privilege. The immunity was intended to be given solely as a means of overcoming the obstacle of the privilege; and therefore (irrespective of the precise formality of the judge’s procedure) could not come into effect until that obstacle was explicitly presented and thus needed to be overcome.”

It follows the judgment below was right and should be affirmed.


author: WADDILL, Circuit Judge.

text:
    THE SANTA ROSA. GRACE S. S. CO. et al. v. MERRITT & CHAPMAN DERRICK & WRECKING CO. et al. (GUILDS, Intervener).
    (Circuit Court of Appeals, Fourth Circuit.
    April 14, 1925.)
    No. 2319.
    1. Salvage @=>I7 — Tugs responding to call of stranded vessel entitled to compensation, though more powerful tugs were later called.
    Tugs which responded to the first call for assistance of a stranded ship, and were faithful and efficient about their work, should be reasonably compensated, though they did not meet with success, and it was thought necessary to call in more powerful and better equipped wrecking ships, which were finally successful.
    2. Salvage @=>51 — Salvage award disturbed] only for violation of principle of law or for manifest error in discretion.
    An appellate court should not disturb a salvage award, unless convinced that some principal of law was violated, or that there was plain and manifest error in exercise of discretion.
    3. Salvage @=>30 — Award for assistance by several tugs to stranded vessel approved as just and fair to all parties.
    Award of about $50,000 to several tugs, for assistance extending over several days in floating a stranded vessel off Charleston Harbor, approved as just and fair, under the circumstances, to the ship and the several tugs.
    4. Salvage @=>30 — Allowance to individual superintending entire work of tugs permissible.
    The manager of two of the several tugs which took part in floating a stranded ship having superintended the entire work, a reasonable allowance to him on account thereof was proper.
    Cross-Appeals from the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. Middleton Smith, Judge.
    Consolidated suits in admiralty for salvage by Robert H. Lockwood, manager of the steam tugs Waban and Cecelia, and others, against the steamship Santa Rosa and cargo and freight money. Decree for libel-ants (295 F. 350), and the Grace Steamship Company and W. R. Grace & Co., claimants of the steamship and cargo, appeal, and the Merritt & Chapman Derrick & Wrecking Company and another bring eross-appeal.
    Affirmed.
    John M. Woolsey, of New York City (Edwin Serre Murphy, of New York City, and George L. Buist, of Charleston, S. C., on the brief), for appellants and cross appel-lees.
    John W. Griffin, of New York City (Haight, Smith, Griffin & Deming, of New York City, on the brief), for appellees and cross appellants.
    Harold A. Mouzon, Arthur R. Young, and Alfred Huger, all of Charleston, S. C. (Lawton & Cunningham, of Savannah, Ga., and Hagood, Rivers & Young and Miller, Huger, Wilbur & Miller, all of Charleston, S. C., on the brief),, for other appellees.
    Before WOODS, WADDILL, and ROSE, Circuit Judges.
   WADDILL, Circuit Judge.

These are cross-appeals from a final decree of the United States District Court for the Eastern District of South Carolina, dated April 22, 1924, in the consolidated maritime causes brought against the American steamship Santa Rosa, and her cargo and freight money, for salvage services rendered to the vessel by five tugs, the Waban, the Cecelia, the Manomit, the Clincho, and the Hinton, all of Charleston, the tug MeCaulley, of Savan-. nah, the tug I. J. Merritt, of Norfolk, and R. H. Lockwood of Charleston. The services were rendered under these circumstances: The Santa Rosa, a large ocean-going steamship of 6,415 tons gross, 404.6 feet long, 53.9 feet beam, and of which appellant W. R. Grace & Co. is claimant, en route from Chili for Charleston, S. C., with a car go of 8,750 tons of nitrates in bags on the evening of December 26, 1922, ran aground in a thick' fog off Morris Island, near the entrance to the Charleston Harbor; the wind at the time being northerly, and with a smooth sea running. After unsuccessful efforts to float the ship, about 3 p. m., the master, by wireless to the ship’s agents at Charleston, requested assistance, and the first-named four tugs promptly responded, the first one arriving about 4:12 p. m., and that evening the tugs made fast to and began pulling, with a view of floating, the vessel. On the early morning of December 27th the Clincho arrived. On the night of the 27th the United States revenue cutter Yama-eraw arrived and joined in the work. On the morning of the the 28th the United States naval tug Umpqua arrived, and that night the tug Bison, of Savannah. These vessels, or some of them, with the exception of the Bison, in an effort to float the steamship pulled on her at high tide on five different occasions between the 26th and 28th of December, without avail. On the 29th, the steamship’s bow anchors were run out, and lightering of the cargo commenced, and 9,231 bags of nitrates unloaded. On account of low tide on that day, no pulling was attempted.

On the night of December 29th, about 9 o’clock, the wrecking tug I. J. Merritt arrived from Hampton Roads, pursuant to a call sent to her on December 27th, and immediately took charge of the operation, and the tugs aforesaid withdrew, and were then or the next morning dismissed from further service. On the early morning of the 30th, the Merritt, assisted only by the naval tug Umpqua and the tug Bison attempted at high tide to move the ship, but could not do so. Lightering of the cargo was continued during the morning of December 30th, and that evening, about 4 or 5 o’clock, another pull was made, also without result. Light-ering was again resumed, and continued until 9 p. m. On the 30th, 4,067 bags were lightered ashore, making in all about 1,200 tons removed from the vessel. At 4:30 on the morning of the 31st, with the Merritt swinging ahead and the ship heaving on her anchor purchase, the steamship’s bow began to swing to starboard, and to move ahead, and at 5:10 that morning the vessel was afloat. At this time, the tide was higher than at any previous period since the stranding, largely brought about by the brisk wind from the northwest, which with the continued lightening of the ship by removal of the cargo, tended to accelerate the ship’s release.

The value of the Santa Rosa in her salved condition, and her cargo and freight money and fuel stores, «was $744,638.50; the v'alue of the tugs, other than the Merritt, $286,200, as agreed by stipulation, and- that of the Merritt $356,269.13. The amount of salvage allowed, including certain expenses in connection with the service, was to the tugs a total of $17,374.90, of which $3,374.90 was for costs and expenses incurred and damage sustained by tugs; also $500 allowed to R. H. Lockwood for services in connection with the undertaking; and to the Merritt the sum of $22,000, and $3,811.76 for expenses and disbursements — making a total of $25,811.76.

These appeals are from the allowances thus made; appellant, claimant of the Santa Rosa, on the one hand, insisting that the allowances as a whole are excessive, particularly those made to the tugs, and that, while the award to the Merritt should not be increased as against the claimant, as between the Merritt and the tugs the award should have been greater in favor of the former, assuming the total award to stand. The Merritt, by cross-appeal, insists that a very much larger award should have been made in her behalf.

The questions presented for our consideration upon these appeals involve as well the reasonableness of the awards made to the several parties as the matter of apportionment between the several salvors. That the services were salvage is not seriously disputed, and certainly cannot be successfully controverted. It is tr.ue, having regard to the usual considerations that control in salvage awards, the service cannot be said to be of a high order of merit; but it was, nevertheless, for meritorious service rendered to a stranded ship, exposed to the hazards of the open sea, and by vessels employed on the water in and about the effort to float and extricate her. The demand for the service was urgent, and promptly, faithfully, and efficiently rendered, covering a space of time, day and night, from the 26th to the 31st of December, and it will not do, either because it was not possible to extricate the ship earlier from her perilous position, or because the tugs rendering service at the beginning had not met with success, or that it was believed necessary to call in more powerful and better equipped wrecking vessels, to whistle down the wind the claims of those who diligently performed their duty and happened unaided not to be successful. They did all that could reasonably have been required of them, assiduously and continuously, day and night; and, while undoubtedly it was within the province of the ship to secure more powerful aid, still, none the less, those who responded to the early call, and were faithful and efficient -about their work, should be reasonably compensated.

The maintenance of a wrecking outfit, such as the Merritts fortunately possess, is most desirable, and ought to be encouraged; but it is also true that tugs in the position that libelant’s tugs were, are entitled to much consideration, and their services and equipment and ability to render service promptly is of very great importance to the locality, and as much so as that of professional wreckers in the larger harbors of the country, where, by reason of the extent of the business, wrecking concerns like the Merritts can be supported.

The tugs in this case were by no means small, but all large and valuable vessels) most of them carrying large wrecking appliances and equipment especially designed and suited for occasions like the one in question. The Cecelia was 100 feet long, 25 feet beam, 350 horse power, 98 tons gross, valued at $38,000; the Waban, 100 feet long, 20 feet beam, 600 horse power, valued at $60,000; the Hinton, 90 feet long, 19 feet beam, 400 horse power, valued at $28,000; the Mano-mit, 105 feet long, 600 horse power, valued at $30,000; the Clineho, a large and powerful ocean-going steam tug used in towing barges between Charleston and Havana, 142 feet long, 17.7 feet beam, 800 horse power, valued at $70,000; and the MeCaulley, 98 feet long, 24 feet beam, valued at $60,000. These several tugs were manned by experienced navigators, used to service of the kind in question, and were well and appropriately equipped, and the tugs were working in thorough harmony and accord in the service, being placed in connection therewith under the direction and control of Capt. Robert H. Lockwood, manager of two of the tugs, who gave supervision to the whole undertaking.

The services performed were long-continued and arduous, reaching from the evening of the 26th to the morning of the 30th of December, and were appropriately referred to by the judge of the District Court in the statement that “all the tugs acted with promptitude, zeal, and energy, and their action is most commendable.” The Merritt was a large ocean-going steam vessel, valued at $356,269.13, a part of the outfit of the well-known Merritt & Chapman Derrick & Wrecking Company, and on the occasion in question, fully equipped and manned for the work in hand, rendered most efficient and effective service, for which it claims 'a salvage award of $35,000, and on account of which the court allowed $22,000, together with $3,-811.76 for expenses, a total of $25,811.76.

The case is somewhat unusual, because of the number of vessels employed and the large number of persons engaged in the service. The record is exceptionally large. The ease was tried by a judge who, by reason of his recognized ability and long experience in maritime matters, was especially equipped to pass intelligently and justly upon the merits of the controversy. His opinion filed in the record (295 F. 350) shows that he gave much labor and painstaking and careful consideration to every detail of the case, and passed upon the same, having regard to its many niceties and conflicts of interest, as well between the libelants and the ship, as between the several libelants and inter-veners themselves.

A careful consideration of this record will demonstrate how difficult the task was, and the intelligence and fairness with which he met the problems. He had necessarily to consider the conflicting interests between the several parties respecting a most difficult question; that is, the fixing of awards in salvage cases, something largely and almost entirely within his judicial discretion; and this court should be slow to disturb what he did.

The law properly controlling in the reduction of and increasing salvage awards in an appellate court is well settled, and we need go no further than cite the recent decision of this court in The Naiwa, 1924 A. M. C. 1435 (C. C. A.) 3 F.(2d) 381, a salvage ease from the Eastern District of Virginia, and the cases therein cited. An appellate tribunal should not disturb a salvage award by a trial court, although it may feel that, if sitting on such eoiir¡t, a different allowance would have been made, unless convinced in what was done some principle of law was violated, or there was a plain and manifest error in the exercise of discretion in the conclusion reached.

This court, speaking through Judge Woods, in the Kia Ora Case, said: “Doubt, or even a decided inclination to differ, does not warrant interference with the finding’ of fact of the trial court, and this is especially true as to the amount to be allowed in salvage cases.” The Kia Ora, 252 F. 507, 164 C. C. A. 423.

Considering the claim of the Merritt Company for an increase of the award made to it, from- $22,000 to $35,000, we are greatly-impressed by tbe reasoning of tbe learned judge of tbe District Court in reaching his conclusion as to the amount of the award. He says: ' “The Merritt left promptly for the scene of the disaster and arrived as early as she could. Her value is greater than that of all the other libeling tugs put together, and her equipment incomparably more efficient. It is to her equipment and its use that the extrication of the vessel was chiefly due, and she undertook the work on true salvage basis; if she failed, she lost all the effort cost her. But she did her work in comparatively fair weather, in less than 48 hour’s, and very much assisted by the lighter-age and consequent lightening of the ship. A fair compensation for the Merritt is $22,-000, to which must be added her expenses and disbursements, $3,811.76, or in all $25,-811.76.”

In likewise fixing the amounts of the several tugs, the District Court necessarily gave consideration to the services severally rendered by them; the number engaged; the time they reached the stranded vessel; what they did, and the hours of service performed; the long space of time they were engaged in the actual work, together with the capacity of the several tugs and their officers and crews to do what was required of them; and hence, under the circumstances, we should be careful in substituting our views for those of the judge who had full opportunity to consider the whole ease when it was fresh in the minds of all the parties. To do so would probably result in injustice, rather than justice.

From our view the conclusion reached by the trial court was just and fair, under all the circumstances of the case, between all the parties litigant, and none of them has any just cause of complaint. This is especially true so far as the ship is concerned, as to which Judge Smith in his opinion said: “In determining the award in a salvage ease the main consideration is danger to the lives of the salvors, and next to their boats and property. In this case there appears to have been no imminent danger to the lives and boats of the salvors, other than that incident to their vocations, the danger incident to the danger of gaining a livelihood on the seas. Nor does there appear to have been much danger to the lives of the ship’s crew, or to her hull and cargo. Nevertheless the case is one where a ship and cargo involving nearly $750,000 stranded in the face of the open sea were finally restored to a position of safety, where the one could ply her vocation as a transport in commerce and the other be delivered to the consignees” — -and with which we fully concur.

We should perhaps say in this connection that we see no reason why the libel-ant Lockwood, having regard to his superintendence of the entire work, should not be made some reasonable allowance on account thereof, and the sum allowed him by the District Court is only a fair charge therefor.

The decree of the District Court will in all respects be approved and affirmed, with costs.

Affirmed.