Page:Federal Reporter, 1st Series, Volume 2.djvu/609

 602 FEDERAL REPORTES. �George P. Rîch, for libellant. �H. O. Ward and Henry Flanders, contra. �Butler, D. J. Taking the libellant's case as stated by himself, as we must, is he entitled to the remedy invoked ? �Of the jurisdiction of the court I entertain no doubt what- ever. The right to proceed in rem is not so clear. A careful examination of the subject in the light of the authorities, bas however, satisfied me that the libellant is entitled to this remedy. He was lawfully on the vessel, at the instance of the master, and for her benefit. It is unimportant that the contract to repair was not directly with him; he was there in pursuance of it. It was therefore his right to have the ves- eel so kept and managed as to render him secure from unnec- essary danger while on board. �Whether he beregarded as a passenger after the vessel moved — (and I incline decidedly to the opinion that he may be; be- cause, taken on a voyage, as he was without consent, it would seem quite reasonable to hold the vessel to an implied con- tract to treat him as a passenger) — or simply as a workman, engaged in repairing the vessel in the river I believe him to be entitled to proceed by attachment. If the movement of the vessel under the circumstances stated in the libel was justifiable, the duty to exercise proper care, to avoid accident in transferring her to another landing is plain. That such care was not exercised, and that the injury resulted from this cause, the libel sufficiently avers. For this injury, — whether the libellant be regarded as a passenger while the vessel was in motion or simply an ordinary workman engaged in making repairs, I believe, as before stated, the vessel is liable. I will not enlarge on the subject; for had I the inclination, I have not now, the time. It is sufficient to say that in my judg- ment the decided weight of recent authority supports the conclusion stated. The opinion of Judge Benedict in Gerrity V. The Kate Cann, lecided in April last, and published in the Federal Eeporter of the eighteenth inst., (vol. 2, No. 2, p. 241,) very fuUy covers the case in hand; and presents an examination of the interesting question involved and the authorities, so able, and satisf actory that it would be unprof- ����