SUPREME COURT OF THE UNITED STATES.
There having been an Associate Justice of this court appointed since the commencement of this term, it is ordered that the following allotment be made of the Chief Justice and Associate Justices of said court among the circuits, agreeably to the act of Congress in such case made and provided, and that such allotment be entered of record, viz.:
For the first circuit, HORACE GRAY, Associate Justice.
For the second circuit, SAMUEL BLATCHFORD, Associate Justice.
For the third circuit, JOSEPH P. BRADLEY, Associate Justice.
For the fourth circuit, MELVILLE W. FULLER, Chief Justice.
For the fifth circuit, Lucius Q. C. LAMAR, Associate Justice.
For the sixth circuit, HENRY B. BROWN, Associate Justice.
For the seventh circuit, JOHN M. HARLAN, Associate Justice.
For the eighth circuit, DAVID J. BREWER, Associate Justice.
For the ninth circuit, STEPHEN J. FIELD, Associate Justice.
January 19, 1891.
1. Where a person is injured on a vessel, through a marine tort arising
partly from the negligence of the officers of the vessel and partly
from his own negligence, and sues the vessel in Admiralty, for dam-
ages for his injuries, he is not debarred from all recovery because of
the fact that his own negligence contributed to his injuries. The Max
Morris, 1.
2. Whether, in such case, the decree should be for exactly one-half of the
damages sustained, or might, in the discretion of the court, be for a
greater or less proportion of such damages, quære. lb.
3. A bill of lading for goods shipped at Pittsburg for New Orleans, on a
barge towed by a steam-tug, stated that the goods were "to be deliv-
ered without delay," "the dangers of navigation, fire and unavoidable
accidents excepted." The barge was taken safely down the Ohio River
to Mt. Vernon, and was then towed up the river and took on cargo at
several places not over about three miles above Mt. Vernon. After
making the last landing she struck an unmarked, unknown and nidden
object below the surface of the water, which caused her to sink, with-
out negligence on her part or that of the tug, and by an unavoidable
accident, thereby damaging the shipper's cargo. On a libel in admi-
ralty, in personam, by the shipper against the owners of the barge and
the tug, the Circuit Court, on an appeal from the District Court, which
had dismissed the libel, found the foregoing facts, and that it always
had been the general and established usage, in the trade in question
for a tug and barges to follow the practice adopted in this case, and
that such usage tended to cheapen the cost of transportation, facili-
tated business and conduced to the safety of the whole tow, and was,
therefore, a reasonable usage. The libel having been dismissed by
the Circuit Court: Held, on appeal, (1) This court is concluded by the
facts found by the Circuit Court; (2) The usage in question is to be
presumed conclusively to have been known to the shipper, so as to
have formed part of the bill of lading, and to control its terms, and
to have brought the accident within the exceptions therein; (3) It is
no deviation, in respect to a voyage named in a bill of lading, for a
vessel to touch and stay at a port out of its course, if such departure
is within the general and established usage of the trade, even though
such usage be not known to the particular shipper; (4) Parties who
contract on a subject matter concerning which known usages prevail,
incorporate such usages by implication into their agreements, if noth-
ing is said to the contrary. Hostetter v. Park, 30.
4. In a collision, in a dense fog which hung low down over the water, in
the Atlantic Ocean off Cape May, between a steamer and a fishing
schooner, the steainer was going at half-speed, between six and seven
knots an hour, and the schooner about four knots an hour. When so
running, the steamer would forge ahead 600 to 800 feet after reversing
her engines, before beginning to go backwards. The steamer first
sighted the schooner when the latter was about 500 feet distant. The
schooner first sighted the steamer when 400 to 500 feet distant. The
steamer reversed her engines full speed astern, in about 12 seconds,
but did not attain backward motion before the collision. The bow of
the steamer struck the port quarter of the schooner about 10 feet from
the taffrail, and sank her. The steamer on a north half east course,
had overhauled and sighted the schooner, on a north-northeast course,
with the wind south-southeast, about an hour before, and had passed
to the eastward of her, and heard her fog-horn. Thinking she heard
cries of distress to the starboard, the steamer ported and changed her
course 13 points, to south-southeast. The schooner had on deck one
man at the wheel, and one man forward as a lookout and blowing the
fog-horn, and 14 men below. The schooner kept her course. Her
fog-horn was heard by the steamer, before the steamer sighted her:
Held, (1) Under Rule 21, of § 4233 of the Revised Statutes, the
steamer was in fault for not going at a moderate speed in the fog;
(2) She was, under the circumstances, bound to observe unusual cau-
tion, and to maintain only such a rate of speed as would enable her to
come to a standstill, by reversing her engines at full speed, before she
should collide with a vessel which she should see through the fog; (3)
The schooner was not sailing too fast, and she blew her fog-horn prop-
erly, and she was not in fault for keeping her course, her failure to
port being not a fault but, at most, an error of judgment in extremis,
due to the fault of the steamer; (4) As the Circuit Court did not find
that the absence of another lookout on the schooner contributed to
the collision, and, so far as the findings were concerned, the man for-
ward on her properly discharged his double duties, there was no lack
of vigilance on the part of the schooner in the matter of a lookout;
(5) The testimony not being before this court, it cannot consider
exceptions to the refusals of the Circuit Court to find certain facts;
(6) As the District and Circuit Courts found both vessels in fault, and
gave to the schooner only one-half of her damages, this court reversed
the decree of the Circuit Court, and ordered a decree for the schooner
for the full amount of her damages, with interest, and her costs in
both of the courts below, and in this court. The Nacoochee, 330.
5. The libellant in an Admiralty suit, owner of a barge lost through
alleged negligence in the propeller towing it, obtained a decree against
the offending vessel in the Circuit Court on appeal, valuing it at $5300,
and adjudging that he recover of the claimants (owners) and also
against the sureties on the appeal bond, $2422.28 for his own damages
by loss of the barge and freight, and $2877.72 as trustee for the own-
ers of the lost cargo. Claimants appealed to this court. After this
appeal was taken claimants commenced a new suit in Admiralty in the
District Court, in which a decree was obtained valuing the vessel at
$7000 and distributing this amount to the libellant in this suit and to
other sufferers. In this new distribution libellant was awarded $4658,
instead of $5300. Held, (1) That this court had jurisdiction of the
appeal in this suit; (2) That this jurisdiction was not affected by the
proceedings in the subsequent and independent suit. The Propeller
Burlington, 386.
6. When a tow suffers injury through improper and unseamanlike conduct
on the part of the tug hauling it, the latter is liable. Facts stated
which show such improper and unseamanlike conduct in this case. Ib.
See JURISDICTION, B, 2.
AFFIRMANCE ON PLEADINGS AND FACTS.
The pleadings and findings in this case fully sustain the judgment of the
court below, and it is therefore affirmed. Egan v. Clasbey, 654.
See JURISDICTION, B, 3;
PRACTICE, 6.
ARMY OF THE UNITED STATES.
1. An enlistment is a contract between the soldier and the government
which involves, like marriage, a change in his status which cannot be
thrown off by him at his will, although he may violate his contract.
In re Grimley, 147.
2. An enlisted soldier cannot avoid a charge of desertion by showing that,
at the time when he voluntarily enlisted, he had passed the age at
which the law allows enlisting officers to enlist recruits. Ib.
3. A recruit who voluntarily goes before a recruiting officer, expresses his
desire to enlist, undergoes a physical examination, is accepted by the
officer, takes the path of allegiance before him, signs the clothing rolls,
and is placed in charge of a sergeant, has thereby enlisted and has
become a soldier in the army of the United States, although the
articles of war have not been read to him. Ib.
4. The provision in Rev. Stat. § 1117, "that no person under the age of
twenty-one years shall be enlisted or mustered into the military ser-
vice of the United States without the written consent of his parents or
guardians: Provided, that such minor has such parents or guardians
entitled to his custody and control," is for the benefit of the parent or
guardian, and gives no privilege to the minor, whose contract of enlist-
ment is good so far as he is concerned. In re Morrissey, 157.
5. The age at which an infant shall be competent to do any acts, or per-
form any duties, civil or military, depends wholly upon the legisla
turę. Ib.
1. Gratuitous bailees of another's property are not responsible for its loss
unless guilty of gross negligence in its keeping; and whether that
negligence existed is a question of fact for the jury to determine; or
to be determined by the court where a jury is waived. Preston v.
Prather, 604.
2. The reasonable care required of a bailee of another's property, entrusted
to him for safe keeping without reward, varies with the nature, value
and situation of the property and the bearing of surrounding circum-
stances on its security. Ib.
3. When bonds originally deposited with a bank for safe-keeping are by
agreement of the bailor and bailee made a standing security for the
payment of loans to be made by the bank to the owner of the bonds,
the bailee becomes bound to give such care to them as a prudent
owner would extend to his own property of a similar kind. Ib.
1. A bank, receiving on deposit from a factor, under the circumstances set
forth in this case, moneys which it must have known were the pro-
ceeds of property of the factor's principal, consigned to him by the
principal for sale on the principal's account, of which moneys the
principal was the beneficial owner, cannot, as against the latter, appro-
priate the deposits to the payment of a general balance due to the
bank from the factor; and if it attempts to do so, the remedy of the
principal against the bank is in equity and not at law. Union Stock
Yards Bank v. Gillespie, 411.
2. Persons depositing valuable articles with banks for safe keeping with-
out reward have a right to expect that such measures will be taken as
will ordinarily secure them from burglars outside and from thieves
within; that whenever ground for suspicion arises an examination
will be made to see that they have not been abstracted or tampered
with; that competent men, both as to ability and integrity, for the
discharge of these duties will be employed; and that they will be
removed whenever found wanting in either of these particulars.
Preston v. Prather, 604.
3. In this case persons engaged in business as bankers received for safe-
keeping a parcel containing bonds, which was put in their vaults. They
were notified that their assistant cashier, who had free access to the
vaults where the bonds were deposited, and who was a person of scant
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