tion was to put an end to legislation whereby favored localities might thrive at the expense of others, or powerful individuals or corporations might secure exemptions or privileges not accorded to others. It was not designed to prohibit legislation aimed at criminal or improper practices, which from their very nature could be committed only by persons of certain classes. It was not designed to ignore or annihilate distinctions which from the very nature of things must exist in society. It was not intended to forbid legislation which might be had to regulate physicians, as a class, in the practice of their profession. Its scope does not embrace the destruction of confidential relationships. When the clergyman appears upon the stand, sworn as any other witness to declare the whole truth, he is not absolved by the change in the organic law from the duty imposed upon him by the statute, as one of a class, of holding in sacred silence the secrets of which he is the guardian.

The policy of the law is opposed to vexatious litigation. A long experience proved that it was derogatory to the character of the legal profession, and dangerous to the interests of the public, that attorneys should purchase claims with a view to foment litigation. Accordingly the common law, and the statutes of many of the States, forbid attorneys from bartering in litigation.

The statute, in my judgment, is not a special statute in the sense of the Constitution; to destroy the evil sought to be cured by it, no general law could be made applicable.

Again, the statute was adopted long before the adoption of the Constitution. Assuming, then, for the sake of argument, that the law is such, as would be objectionable, if presented now for action by the Legislature, it would not follow that by the adoption of the Constitution it would be repealed or annulled. The language is that the Legislature shall not pass special or local laws. It does not in terms, or by necessary implication, repeal special statutes heretofore enacted. Its operation is to be prospective, not retroactive. It is not to be presumed that it was the intention of the framers of the Constitution to blot from the statute books every vestige of a special or local law. (See Allbyer vs. State of Ohio, 10 Ŏhio St. 588; Hingle vs. State, 24 Ind. 28; Madison etc. R. R. vs. Whitcomb, 8 Ind. 217; Hymes vs. Aydelotte, 26 Ind. 431; Sedgwick on Stat. and Const. Law, Pomeroy's Notes, 535.)

Certain special or local laws which contravene positive provisions of the Constitution are repealed, but such repeal is effected by Article XXII, Section 1 (the Schedule), and

not by the section under consideration. From these views it follows, in my judgment, that the motion for leave to amend should be granted.

So ordered.

United States District Court,

DISTRICT OF OREGON.

November 9, 1880.

GUSTAVUS PETERSON, LIBELANT,

VS.

THE CHANDOS (R. T. EMERY, MASTER), RESPONDENT.

CRANE LINE. The primary purpose of a crane line is to steady the backstays, and in blustery weather it is very apt to chafe and wear out where it is fastened to the stays; and therefore it ought not to be used as a foot-rope without caution and the aid of the stays.

INJURY TO SEAMAN-CONTRIBUTORY NEGLIGENCE. The weather being wet and the night dark and the wind strong, the libelant was ordered to go aloft and cast off the stop on the foretop-gallant halliards, which he did by going up the rigging and out on the crane line to the space between the topmast and the top-gallant stay, and there untying the stop with both hands while he sat upon the crane line without any other hold or security, and just as the stop was cast off the line parted near the top-gallant stay, and the libelant was precipitated to the deck and seriously injured: Held, that the injury was caused by the negligence of the libelant in going on the crane line without an opportunity of examining its condition, and without holding to the stays by his arms or legs, or both, while casting off the stop; and that if, by reason of the negligence or misconduct of the mate, the crane line was insufficient, still the libelant could not recover damages for the injury, because even then his own negligence substantially contributed to the result.

IS THE MATE THE FELLOW-SERVANT OF A SAILOR? Semble, that the mate is not the fellow-servant of a sailor so as to exempt the master from liability for an injury caused to the latter by the negligence of the former. DEVIATIONS. A departure from the due course of a voyage to save property merely is a deviation, and will forfeit the insurance; but a departure to save life is not. But although the law will, as between the insurer and insured, excuse a departure from motives of humanity, a master is not correspondingly bound to make such departure, even to save the life of one of the crew; but the time and risk likely to be consumed and incurred in such departure, as compared with that incident to the direct voyage, are to be considered, and have a controlling influence in the matter.

WHAT DEVIATION SHOULD BE MADE. On June 10th, in latitude 38 south and longitude 91 west, the ship Chandos was on her way to Portland, Oregon, with a cargo of railway iron, without a surgeon or any surgical appliances on board, when the libelant fell from aloft and broke

his thigh bone: Held, that if the ship could have made a port-as, for instance, Valparaiso, distant about 1080 miles-in five or six days, it would have been the duty of the master to have gone there and obtained surgical aid for the libelant; but if it could not have been done in less than two weeks, he was not bound to make the departure. U. S. HOSPITAL SERVICE. The hospital service of the United States is not intended to supersede the marine law, which imposes an obligation on a vessel to take care of a seaman falling sick or becoming injured in its service, but only auxiliary thereto.

CARE OF SICK AND INJURED SEAMEN. A seaman injured in the service of a vessel without his fault is entitled to be taken care of at the expense of the vessel until the end of the voyage, and longer if necessary to effect a cure, so far as the same can be done by the use of the ordinary medical means; and the fault which will exempt a vessel from such liability is not mere ordinary negligence consistent with good faith, but some positively vicious conduct, such as gross negligence or willful disobedience of orders.

NEGLECT TO SEND SEAMAN TO HOSPITAL-DAMAGES. Damages allowed for neglecting to send libelant to the marine hospital at Portland at the expense of the ship for twelve days after her arrival in the Columbia River.

John Woodward and Charles Woodward, for the libelant. John W. Whalley and M. W. Fechheimer, for the respondent and claimants.

DEADY, J.:

In January, 1880, the American ship Chandos sailed from the port of New York for Portland with a full cargo of railway iron. The libelant, Gustavus Peterson, a native of Sweden, and aged twenty-seven years, shipped for the voyage as an able-bodied seaman. Near 3 o'clock of the morning of June 10th, in about latitude 38 south, longitude 90 west from Greenwich, the weather being dark and rainy, with a good breeze, the libelant was ordered by the second mate to go aloft and cast off the stop on the foretop-gallant halliards. He went up the rigging on the starboard side to the top, and thence out on the crane line and stood or sat upon it probably the latter-between the topmast and topgallant backstays, where, without other hold or support, he untied with both hands the stop, which was about eighteen inches or two feet above the line. Just as the libelant finished untying the stop, the line on which he was resting parted at the hitch near the top-gallant stay and precipitated him to the deck. In falling he appears to have struck first on one foot on the ship's boat, which was stowed bottom up on the booms just abaft of the foremast, and then fell over on the deck, striking his head on the pin-rail as he went down. The distance from the crane line to the bottom of the boat on which libelant struck is about thirty feet, and from there to the deck is about ten feet more. The alarm

was soon given, and the man was immediately carried into the house on deck used as a forecastle, in an unconscious condition, and bleeding profusely from what appeared to be a severe injury to the head. The master was called, and came at once to the forecastle, and had the libelant stripped and examined, placed in a bunk, and dressed his head. The fall caused a fracture of the collar-bone and a severe cut in the head, from which the libelant in due time fully recovered. It also caused a fracture of the femur or thigh bone of the right leg a little below the middle of the same. On the next day after the accident the master had the libelant removed into the carpenter's room, and his leg bandaged with splints and placed in a box then made for that purpose. There seems to have been a difference of opinion on board as to whether the leg was broken or not the master's testimony being that he did not think that it was broken until July 4, when the vessel was in latitude about 2 degrees north and longitude 110 west, at which time he became satisfied that it was broken.

The Chandos arrived in the Columbia River on August 10th, and anchored in Baker's Bay, where she remained ten days, and then proceeded to Portland, where she arrived on August 22d. There the libelant was sent to the marine hospital, where he remained about two months. From the evidence of the hospital physicians the bone has united, and the leg will, in all probability, be strong and sound; but it is about three inches short. The knee is also somewhat stiff, but that will probably pass away.

The libelant brings this suit against the vessel and the master to recover $5,000 damages for the injury suffered by the fall and the subsequent inattention, alleging that the fall was caused by the neglect of the master in not providing a sufficient crane line, and that the shortening of his leg was caused by neglect and the want of proper treatment after the fracture.

Upon the first point, I find against the libelant. From the evidence it plainly appears that the crane line is not primarily a foot-rope, and that it is put upon the stays to keep them steady, and not to walk upon, but that it is often used by seamen more or less as a support or rest in going from the top to the stop and casting it off. It also appears that this line, which is usually on this vessel a fifteen-thread ratline, is very liable to chafe and wear from the swaying of the stays, so that sometimes it only lasts a day or so, and is therefore considered an insecure footing, and one that ought not to be used without other support or more than ordinary

caution. As an evidence of how soon this line may become chafed and weakened, and therefore of its insecurity as a foot-rope, it may be mentioned that on the evening before the libelant was hurt, as he came down from furling the sail he sat with all his weight upon this same crane line while he put on this same stop; and yet it broke with him under similar circumstances within eight hours thereafter. When, therefore, the libelant, who appears to be a man above the average weight, went upon this line in the dark, without any precaution against its breaking, or observation as to its then condition, I think he was guilty of negligence. The libelant assumed the ordinary risks of his employment, and the liability of the crane line to part appears to be one of them.

The negligence of the libelant was the proximate, if not the sole cause, of the injury; and, therefore, he cannot recover for the damage resulting from it. (2 Thomp. on Neg. 1148; Bowas vs. Pioneer Tow Line, 2 Saw. 27.)

-

But the libelant also claims that the crane line was insufficient when put up, a few days before, by the express direction of the mate-being only a piece of old rotten manilla gasket that he went upon the crane to cast off the stop by the special order of the second mate, and that it was customary on the vessel in giving an order to cast off this stop to say: "Go aloft, and get on that crane line and cast off the stop on the top-gallant halliards."

But, in my judgment, the evidence fails to establish either of these allegations; and if it did, the libelant would not thereby be relieved from the obligation to exercise ordinary care and prudence in going on such line, or casting off such stop.

Admitting, however, the alleged negligence of the mate, and that the master or owner and the vessel are liable therefore, still, if the negligence of the libelant substantially contributes to produce the injury, he could not recover damages therefor. In this view of the matter it is unnecessary to consider whether the mate was a fellow-servant of the libelant, within the general rule which exempts a master from responsibility for injuries to those in his employ resulting from the negligence of a fellow-servant employed in the same general business.

In Halverson vs. Nisen, 3 Saw. 572, the libelant while at work upon a triangle fell to the deck by reason of the negligence of the mate in rigging the same and was seriously injured. Mr. Justice Hoffman, upon the strength of the authorities, but with apparent reluctance, held that the owners of the vessel were not responsible for the injury.