of ice to workmen engaged in the work of keeping the road and track in order is a part of the operation of the road. The rule is well settled that, while the railroad company owes a positive and nondelegable duty to its employés with respect to the construction and maintenance. in proper repair of its cars, tracks, and other appliances, yet with respect to the operation of the road its duty extends no further than to exercise ordinary care to provide a sufficient number of reasonably competent employés, make proper rules for their government, and to exercise proper supervision over them. When that has been done, it is not liable for an injury to an employé in the operation of the road through the negligence of other employés in the operating department, or their failure to observe the rules, notwithstanding such negligence makes the place unsafe to work in. In Martin v. Atchison, T. & S. F. Ry. Co., 166 U. S. 399, 17 Sup. Ct. 603, 41 L. Ed. 1051, the plaintiff, a laborer in the employ of the railroad company, while on a hand car proceeding to his work was run into by a train. It was argued that the defendant violated its duty to see that the plaintiff had a reasonably safe place in which to perform his work, through the negligence of the foreman in failing to warn the plaintiff of the danger, as he had agreed to do. It was held that the doctrine as to the duty of the master to furnish a safe place for the servant to work in had no application. In Pennsylvania Co. v. Fishack, 123 Fed. 465, 59 C. C. A. 269, the negligence of a switch yardmaster, in directing a train to take a certain track, with information that it was open when it was not, caused a collision. It was held that the act of the switch yardmaster was not a breach of the duty to provide a safe place to work, but that the act complained of was one of operation. In that case Judge Cochran, who wrote the opinion of this court, reviewed a large number of cases sustaining the undoubted rule above stated. The following cases, in addition to those cited in Penn. Co. v. Fishack, support the rule there stated: American Bridge Co. v. Seeds (C. C. A., 8th Circuit), 144 Fed. 605, 75 C. C. A. 407, 11 L. R. A. (N. S.) 1041; Kinnear Mfg. Co. v. Carlisle, supra; Portland Gold Min. Co. v. Duke (C. C. A., 8th Circuit), 164 Fed. 180, 182, 90 C. C. A. 166. See, also, Neagle v. Syra

cuse, etc., Ry. Co., 185 N. Y. 270, 77 N. E. 1064.

None of the cases cited on plaintiff's behalf, in our judgment, conflict with the rule we have stated. Thus, in Choctaw, Okla. & Gulf Ry. Co. v. McDade, 191 U. S. 64, 24 Sup. Ct. 24, 48 L. Ed. 96, the negligence, which was held to be that of the railroad company, consisted in so maintaining a water tank spout as to collide with a brakeman at his post of duty upon a freight train. This was clearly a breach of a nondelegable duty to provide the employé with a safe place to work. Such construction was no part of the operation of the railroad. In Kentucky Block Cannel Coal Co. v. Nance, 165 Fed. 44, 91 C. C. A. 82, decided by this court, the plaintiff, while doing mining work, was injured by the fall of a drain pipe in course of removal from a worked-out portion of the mine, through the negligence of those engaged in the removal of the pipe. It was held that the plaintiff and the workmen whose negligence caused the fall of the pipe and resulting injury were not fellow servants, for the reason that plaintiff was en

gaged in the work of operating the mine, while the negligent servants were engaged in the dismantling of a place provided for the work of operation, and so represented the master in a duty to the servant equally nondelegable as the work of original construction. In Northwestern Fuel Co. v. Danielson (C. C. A., 8th Circuit), 57 Fed. 915, 6 C. C. A. 636, plaintiff was employed by defendant to shovel and remove coal from a burning dock. While plaintiff was so at work under two bents which formed a part of the trestlework upon the dock, he was injured by the falling of the bents, occasioned by the negligence of two foremen engaged in the work of tearing down the trestle, and that of the superintendent under whose direction the foremen were so engaged, in failing to notify the plaintiff that the trestle was being taken down. It was held (so far as material to this case), not only that the superintendent was the representative of the master, but that the foremen engaged in the work of demolition were not the fellow servants of the plaintiff, because they represented the defendant in the nondelegable duty of keeping the place in which plaintiff was at work reasonably safe. In McCabe & Steen Const. Co. v. Wilson, 209 U. S. 275, 280, 28 Sup. Ct. 558, 52 L. Ed. 788, it was held that the superintendent of construction and foremen of the bridge gang engaged in supervising and directing the work on a bridge represented the principal with respect to the duty to provide a safe and suitable place and structures for its employés to work in, and so were not fellow servants as to a fireman engaged in the movement of a train over the bridge, viz., engaged in the operation of the road as expressly distinguished from the work of construction. In Santa Fé & Pacific R. R. Co. v. Holmes, 202 U. S. 438, 26 Sup. Ct. 676, 50 L. Ed. 1094, it was held that a train dispatcher represented the company in the promulgation of orders for the operation of the train, and was thus not a fellow servant of the trainmen. The decision in the Holmes Case is in accordance with the decided weight of authority previous thereto. This court has more. than once asserted the same proposition (B. & O. Ry. Co. v. Camp, 65 Fed. 952, 13 C. C. A. 233; Felton v. Harbeson, 104 Fed. 737, 44 C. C. A. 188), and this proposition was recognized in Pennsylvania Co. v. Fishack, supra. We see nothing in the cases of Fletcher v. Baltimore & Potomac R. R. Co., 168 U. S. 135, 18 Sup. Ct. 35, 42 L. Ed. 411, and Peters v. George, 154 Fed. 634, 83 C. C. A. 408, opposed to the views we have expressed.

The conclusion reached is that the agreed facts did not justify a direction of verdict for the plaintiff. But while, under the facts on which the case was submitted, it would have been proper to direct a verdict for the defendant, yet such facts are not inconsistent with the existence of other facts, not embraced in the stipulation, upon which a liability might be established; and, as the agreement was made upon the trial, it must be held made for the purposes of, and limited to, that trial, and so cannot, under the practice which contemplates the production of proofs in open court, be held to preclude further or different proofs upon another trial.

The judgment must accordingly be reversed, and a new trial ordered.

(176 Fed. 499.)

MACK S. S. CO. v. THOMPSON.

(Circuit Court of Appeals, Sixth Circuit. February 8, 1910.)

No. 1,992.

1. ADMIRALTY (§ 29*)—JurISDICTION IN REM-LIEN GIVEN BY STATE STATUTE. Where an admiralty court has jurisdiction of a maritime claim, as a charge for towage under a contract with the owner, express or implied, the libelant may as a general rule proceed against the owner in personam, and if he has a lien upon the vessel towed, given either by the general rules of the maritime law or by a local statute, he may proceed in rem. [Ed. Note.-For other cases, see Admiralty, Cent. Dig. §§ 289, 296; Dec. Dig. § 29.*]

2. ADMIRALTY (§ 16*)—JURISDICTION IN REM-LIEN GIVEN BY STATE STATUTE. Under Comp. Laws Mich. 1897, § 10,789, which gives a lien on watercraft constructed, or being constructed, for towage, a charge for towage of a new vessel being built in that state and completed, except for her fittings, whether regarded as a completed vessel or not, may be enforced by a proceeding in rem against her in an admiralty court, where the contract was with the owner, who was a resident of another state; the contract for towage being maritime.

[Ed. Note. For other cases, see Admiralty, Cent. Dig. §§ 23, 24, 193; Dec. Dig. § 16.*

Admiralty jurisdiction to enforce liens created by state laws, see note to The Electron, 21 C. C. A. 21.]

3. MARITIME LIENS (§ 57*)—STATUTORY LIENS-WHEN ENFORCEABLE IN ADMIRALTY.

A lien for repairs, towage, etc., given by the local law, to be enforceable in a court of admiralty, must be reconcilable with the principles of the maritime law, and notwithstanding general language of the statute, in the absence of express agreement, the work must have been done under circumstances which under such law would raise a presumption that it was on the credit of the vessel, and not of the owner. A contract for towage made with a resident owner would not raise such a presumption, but it would be otherwise if the owner were a nonresident.

[Ed. Note. For other cases, see Maritime Liens, Cent. Dig. § 96; Dec. Dig. § 57.*]

4. ADMIRALTY (§ 1*)—MARITIME LAW-EFFECT OF STATE LEGISLATION.

The maritime law of the United States subsists as an entirety as the subject of federal jurisprudence, and is to be administered by the federal courts without impairment by state legislation.

[Ed. Note. For other cases, see Admiralty, Cent. Dig. §§ 1-6; Dec. Dig. § 1.*]

5. MARITIME LIENS (§ 57*)-STATUTORY LIENS-ENFORCEMENT IN ADMIRALTY.

Liens created by state laws on vessels are not of themselves merely subjects of the maritime law, but, because such a lien is a right or interest inherent in a principal subject of a maritime nature of which the admiralty takes jurisdiction, the court will recognize the lien as an incident of the debt it is administering, and give to the owner of the claim the benefit of it.

[Ed. Note. For other cases, see Maritime Liens, Cent. Dig. § 96; Dec. Dig. § 57.*]

6. TOWAGE (8 6*)—LIABILITY FOR SERVICE-CONSTRUCTION OF AGREEMENT.

A shipbuilding company completed a vessel under a contract with the exception of her fitting, and she was left at its wharf in a stream through the winter. Payment had been made so that title to the vessel had passed. In the spring, fearing damage from flood, the company wrote the owner, asking permission to have her moved out of the stream, which was granted.

Held that, under the circumstances and as the service was for its protection, such consent might properly be construed as an agreement that the towage should be at the owner's expense.

[Ed. Note. For other cases, see Towage, Cent. Dig. § 5; Dec. Dig. § 6.*] Appeal from the District Court of the United States for the Eastern District of Michigan.

Suit in rem in admiralty by Robert P. Thompson, doing business. as the Thompson Tug Company, against the steamer F. B. Squire, the Mack Steamship Company, claimant. Decree for libelant, and claimant appeals. Affirmed.

G. H. Eichelberger, for appellant.

Before SEVERENS and WARRINGTON, Circuit Judges, and KNAPPEN, District Judge.

SEVERENS, Circuit Judge. The Jenks Shipbuilding Company under contract with the appellant, the Mack Steamship Company, built during the season of 1903 the steamship F. B. Squire at its works on Black river, an affluent of the St. Clair river. The vessel had been substantially completed, but had not been taken out. She had been launched and inspected, but whether a license had been issued does not appear. Her engines and boilers had been put in, and she had been completed, except that the "fittings," as they are called in the record, furniture and the like, which the contractors had agreed to supply, had not yet been put on board. These were incidentals which it was customary to put in when the vessel was about to leave. Otherwise she was ready to go. By the terms of the contract, the vessel was to be delivered at the shipbuilding company's works on Black river. She had been paid for, and a bill of sale had been given by the contractor to the owners. But she stayed over winter at the dock of the contractor, and was remaining there, when, on March 12, 1904, the Jenks Shipbuilding Company, being apprehensive of danger to the vessel from the spring freshets, sent the following letter to the managing owner: "Port Huron, March 12, 1904.

"Mr. Charles O. Jenkins, Cleveland, Ohio.

"Dear Sir: Thinking it might be advisable to move the 'F. B. Squire' out into the river, I ask for your consent. We thought perhaps it might be advisable to have her moved out the first of the week. We haven't had any high water here at all, and we don't know whether we will have, but there is a great deal of water up in the country, and it is liable to come down with a sudden rush and cause some damage. I wish you would wire us on receipt of this if we shall have her moved.

"Yours very truly,

"The Jenks Shipbuilding Company, by A. O. Carpenter." On March 15th the managing owner telegraphed the following reply:

"Cleveland, Ohio, March 15, 1904.

"The Jenks Shipbuilding Company, Port Huron, Michigan. "Shift 'Squire' as per your letter of 12th.

Charles O. Jenkins."

Black river is a small and rather tortuous stream, and it was customary to take large vessels like the Squire (which was 430 feet long)

out by using tugs, one at each end, to manage their course down the stream. The Jenks Shipbuilding Company on getting the telegram procured tugs of the libelant, which towed the Squire out of Black river and down the St. Clair to a dock called Miller's Coal Dock, where she was laid up. The owner of the tugs presented his bill to the appellant for the towage, and, payment being refused, he filed this libel against the ship to enforce a lien he claimed to have. The owner answered, setting up his claim of title to the steamer, and averring that: "The said Jenks Shipbuilding Company, for their own convenience and economy, and at their own instigation and acting in their own behalf, caused said vessel to be moved from their shipyard, where the vessel was under contract to be delivered to the Mack Steamship Company, to a place on the Detroit river, and the said libelant at no time acted at the request of the Mack Steamship Company or its agent."

The proofs were taken in open court, and a decree was awarded to the libelant.

The principal grounds on which the appellant relies are, first, that there was no admiralty jurisdiction; and, second, that the towage was done at the instance and in behalf of the Jenks Shipbuilding Company, and not for the appellant.

It is admitted, and cannot be doubted, that a towage contract is a maritime contract. 1 Conk. Adm. 28, note; The May Queen, Spr. 558, Fed. Cas. No. 9,360; Porter v. The Sea Witch, 3 Woods, 75, Fed. Cas. No. 11,289; The W. J. Walsh, 5 Ben. 72, Fed. Cas. No. 17,922. And, if the contract was made by or on behalf of the appellant and the appellant resided in another state (questions we shall take up later), we suppose it is not doubted that a libel in personam would be a proper remedy, in admiralty against the owner. That seems to be admitted, if the facts are as above supposed. But the stress of the appellant's contention is that the "Squire" was not a completed vessel, and therefore was not a subject for a maritime lien. And, if the vessel was not so far complete as to come within the range of a general maritime lien, it must be admitted that, if there were nothing more, this libel, which is one in rem, would fail for the lack of any lien upon the vessel. But a Michigan statute supplies this lack. Section 2 of chapter 298 of Compiled Laws of 1897 gives a lien upon watercraft constructed or being constructed for, among other things, "towage."

Now, it is the well-settled law of this court and elsewhere that where the admiralty court has jurisdiction of a maritime claim, in this case a charge for towage, under contract with the owner, express or implied, the libelant may as a general rule proceed against the owner in personam; and, if he has a lien upon the vessel towed given either by the general rules of the maritime law or by a local statute, he may proceed in rem. The admiralty court will recognize and enforce by its own procedure a lien given by a local statute for the security of the claim where the provision of the local law does not antagonize or derogate from the principles of the maritime law. This subject was given much consideration and the rules upon which the admiralty court will enforce, as incident to a maritime claim, liens given by state laws, laid down in the case of The Samuel Marshall decided by this court in 1893, 54 Fed. 396, 4 C. C. A. 385. One of those rules was the