fallen on the wife and children of the engineer who lost his life, but we do not find that the facts proven justify a decree in their favor.

ROSE, District Judge. I concur fully with the conclusions announced by the Presiding Judge. To common knowledge such a dredge as that out of the loss of which this case arises cannot be made anything like as safe for a sea voyage as can a ship whether propelled by sails or steam. The standard of seaworthiness with reference to such a dredge is, therefore, very different from that required of a ship. The testimony of the insurance expert is to the effect that experience leads underwriters to charge from three to five times as much for insuring such a dredge on a sea voyage as they would charge for insuring a ship.

The law as it has been established for many years, and can be changed only by the Legislature, and not by the courts, says that where the risks of an employment are obvious to the employé when he enters into the employment he accepts the risk of the employment; that is to say, put in another way, he himself becomes his own insurer against those risks. If he is injured or killed as a result of those risks, neither he nor his have any claim upon his employer, unless the employer has in some way failed to do something which the employer ought to have done and the not doing of which has caused or contributed to the injury of the employé.

In this case, by its contract with the United States, the Ellicott Machine Company assumed the risk of delivering the property-that is to say, the dredge-safely at Colon. That property was worth $158,000. It doubtless protected itself against that risk by charging a price for the dredge as much in excess of the price at which it would have been willing to deliver the dredge at Baltimore as would compensate it for the actual outlay of towing the dredge from Baltimore to Colon and for insuring it against the risks to which the dredge would be exposed during the voyage. In part this protection was secured by insuring the dredge with the Marine Insurance Underwriters, and in part by itself becoming its own insurer.

The marine engineer, for the loss of whose life this libel in part is filed, put his life at the risk of the voyage. In dollars and cents that life was to his family worth somewhere from $5,000 to $10,000. Let us assume that it was worth $7,500. If the rate of insurance on life for such a voyage would have been as high as on property, the risk he was assuming would have been worth somewhere from $125 to $250. It appears from the testimony that the services of a competent marine engineer, without unusual risk, were worth $65 to $80 a month. The voyage to Colon and return would, perhaps, have taken something over a month. He was to receive $75 a month. On the legal assumption, binding on this court, that he with his eyes open assumed the risk of the employment, he for $100 gave his services and assumed an underwriter's risk, for which latter alone he ought to have received from $125 to $250.

Under such circumstances it is, of course, quite to be expected that those whose whole condition in life has been so greatly and disastrously

changed by his death should try to hold those who employed him to go on the voyage liable for the loss or some part of the loss they suffered. This, under the law, they can do if they can show that the employer failed in some duty that it owed the employé, and they cannot do it unless they can show such failure. This, as Judge Morris has pointed out, they have not done. Their husband and father lost his life, not because the Ellicott Machine Company or the American Towing Company were negligent or failed in any duty the law put upon them, or either of them, but because the work he assumed to do was a perilous work. Whether it would not be far better that the law should recognize that such loss of life is a part of the necessary cost of the business, and require it to be borne by the business, is a matter for the legislative, and not the judicial branch of the government.

In this as in most other such cases, the cost of the trial to the respondents, successful, as by the decree we will pass they will be, will doubtless exceed, perhaps considerably exceed, the cost of insuring all the men on the dredge against the risks of the voyage. In so saying I do not intend to suggest that the Ellicott Machine Company were, as the law is, under any moral, much less any legal obligation to have provided such insurance.

In re ROBERTSON.

(District Court, M. D. Pennsylvania. February 17, 1910.)

ALIENS (§ 64*)—NATURALIZATION-CHILDREN OF PERSON DYING AFTER DECLA

RATION-STEPCHILDREN.

Rev. St. § 2172 (U. S. Comp. St. 1901, p. 1334), provides that the children of persons who have been duly naturalized, being under the age of 21 years at the time of the naturalization of their parents, shall, if dwelling in the United States, be considered as "citizens" thereof; and the naturalization law (Act June 29, 1906, c. 3592, § 4, cl. 6, 34 Stat. 596 [U. S. Comp. St. Supp. 1909, p. 480]) provides that, when any alien who has declared his intention to become a citizen dies before he is actually naturalized, the widow and minor children of such alien may, by complying with the other provisions of the statute, be naturalized without any declaration of intention. Applicant was born in England, where his father died, and his mother was again married to an alien, who emigrated to the United States when applicant was about four years of age. When the applicant was about 17 years old and residing with his stepfather as a member of his family, the stepfather made a declaration of intention, but died without having been naturalized. Held, that the applicant was entitled to naturalization on the strength of his stepfather's declaration.

[Ed. Note.-For other cases, see Aliens, Cent. Dig. § 128; Dec. Dig. § 64.*

For other definitions, see Words and Phrases, vol. 2, pp. 1164-1174; vol. 8, pp. 7602, 7603.]

Application of James Robertson for naturalization. Petition sus

tained.

James McQuade, for applicant.

Mark J. Maloney, for the government.

•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

ARCHBALD, District Judge. James Robertson, the applicant for naturalization, was born in England April 24, 1880, where his father died, and his mother was married again to one John Fenwick, who emigrated to the United States, where the family arrived September 30, 1884, when the applicant was some four and a half years old. On July 13, 1897, when he was a little over 17, and still residing with his stepfather as a member of his family, his stepfather made a declaration of his intention to become a citizen, but died November 1 following, without having been actually naturalized. The present application for naturalization is made on the strength of this declaration, and is opposed by the government, on the ground that it was not the declaration of the applicant's own father.

It is provided by Rev. St. § 2172 (U. S. Comp. St. 1901, p. 1334): "The children of persons who have been duly naturalized under any law of the United States * * being under the age of twenty-one years at the time of the naturalization of their parents shall, if dwelling in the United States, be considered as citizens thereof."

Also by the naturalization law now in force (Act June 29, 1906, c. 3592, § 4, cl. 6, 34 Stat. 596, 598 [U. S. Comp. St. Supp. 1909, p. 480]), as it was in substance by that before it, that:

"When any alien who has declared his intention to become a citizen of the United States dies before he is actually naturalized, the widow and minor children of such alien may, by complying with the other provisions of this act, be naturalized without making any declaration of intention."

The applicant relies on the combined effect of these enactments.

It was held in United States v. Kellar (C. C.) 13 Fed. 82, that, upon the marriage of a resident alien woman with a citizen, her infant son, dwelling with her, also becomes naturalized by virtue of the citizenship which she so acquires. And in People v. Newell, 38 Hun, 78, that, where the mother of a minor alien marries a man who subsequently becomes naturalized, this not only naturalizes his wife, but also his minor stepchild; that is to say, that a stepson, who is a minor, and residing with his parents in this country, is naturalized by force of the naturalization of his stepfather. United States v. Rodgers (D. C.) 144 Fed. 711; Behrensmeyer v. Kreitz, 135 Ill. 591, 26 N. E. 704. So an illegitimate child, who emigrates to this country as a member of the family of his reputed father, the wife being his mother, is held to become a citizen upon the subsequent naturalization of the father, while the child is still a minor. Dale v. Irwin, 78 Ill. 170.

Accepting these decisions as a correct exposition of the law, it is clear that, if the stepfather here had gone on and completed his naturalization within the minority of the present applicant, and while he was a member of the family, this would have had the effect of naturalizing the applicant also. It certainly would have naturalized the wife. Rev. St. § 1994 (U. S. Comp. St. 1901, p. 1268). And she, as mother, having become a citizen, this would have naturalized also her minor children. But by making a declaration of his intention the father, being the head of the family, took the first step provided by the law for the acquisition of citizenship, and this, according to the express provision of the statutes quoted, inured to the benefit of, and

gave an inchoate right to, all those who would be made citizens if he had gone on and concluded it. Boyd v. Nebraska, 143 U. S. 135, 12 Sup. Ct. 375, 36 L. Ed. 103. At the time his step father died, the applicant, as we have seen, was between 17 and 18 years old, and was still living with him at Wilkes-Barre, Pa. The stepfather's declaration of intention was therefore the same in effect as if it had been the applicant's declaration, and he is now entitled to be made a citizen on the strength of it.

Petition sustained, and naturalization granted.

SOUTHERN COTTON OIL CO. v. MERCHANTS' & MINERS' TRANSP. CO. (District Court, S. D. New York. April 19, 1910.)

1. SHIPPING (§ 108*)-MARINE INSURANCE CONSTRUCTION OF COntract. Where a carrier by water already held policies insuring it against loss through liability to cargo owners, a provision in a bill of lading, in consideration of a higher freight rate, that the cargo therein specified "is covered by marine insurance while on board, * * under and in ac cordance with and subject to the conditions and limitations of policies of marine insurance held by" the carrier, must be construed as an obligation on the part of the carrier to pay the shipper's loss under the same contingencies as permitted it, through its reinsurance, to throw the loss on its own insurers.

[Ed. Note. For other cases, see Shipping, Dec. Dig. § 108.*]

2. INSURANCE (§ 479*)-MARINE INSURANCE-INSURANCE BY CARRIER-CONSTRUCTION OF CONTRACT.

A shipowner carried five annual policies of insurance, aggregating $40,000 covering its loss through liability to cargo owners, each having a rider providing that "the amount hereby insured is to contribute pro rata with the whole amount of insurance on the merchandise at risk." The carrier contracted in a bill of lading issued to a shipper to insure the cargo covered thereby in terms which measured its liability by that of its own insurers. It also held an open policy, which by its terms covered only so much of any loss as was over $40,000. The shipper also held a policy on the property shipped, which contained provisions that it should be "null and void, to the extent of any amount paid by or recoverable from any carrier and/or bailee," and that "this insurance shall not inure to the benefit of any lighterman or carrier whatsoever." Held that, as applying to the contract of the carrier with the shipper made by the bil of lading, the "whole amount of insurance on the merchandise at risk," within the meaning of the riders, and which was to be taken into contribution, did not include its open policy, which by its terms did not attach to the same risk as the annual policies, nor the shipper's policy, which was clearly limited not to come into any contribution with the carrier.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1244, 1245; Dec. Dig. § 479.*]

3. SHIPPING (§ 108*)-MARINE INSURANCE-CONTRACT OF INSURANCE BY CARRIER AGAINST FIRE-EFFECT.

In such case the contract of the carrier with the shipper had the effect of voluntarily restoring its common-law liability for loss by fire, abrogated by Rev. St. § 4282 (U. S. Comp. St. 1901, p. 2943), and having the right to recover on such liability, whether under or over the $40,000, to that extent the shipper could not recover on its own policy, which would make it inure directly to the benefit of the carrier, and the latter could •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

not for that reason invoke such policy to discharge or lessen its own liability.

[Ed. Note. For other cases, see Shipping, Dec. Dig. § 108.*]

In Admiralty. Suit by the Southern Cotton Oil Company against the Merchants' & Miners' Transportation Company. Decree for libel

ant.

The libelant on the 17th day of July, 1907, shipped on board the respondent's steamer Allegheny at Savannah, Ga., bound for Philadelphia, a quantity of cooking oil and lard compound, the value of which was $3,635. The goods were destroyed by fire en route without negligence upon the part of the respondent. The two bills of lading which covered the shipment limited the carrier's liability except in case of payment of a higher freight rate. The libelant paid the higher rate, and received bills of lading upon which the following was stamped: "Insured Rate. The freight mentioned in this bill of lading is covered by Marine Insurance while on board the steamers of the Merchants' & Miners' Transportation Company under and in accordance with and subject to the conditions and limitations of policies of marine insurance held by them."

At the time of the destruction of the libelant's goods, the respondent held six policies of marine insurance upon goods shipped in its steamers on northbound voyages. The total value of the cargo upon this voyage, all of which was shipped under similar bills of lading, not including the libelant's shipment, was $37,567.16, all of which was a total loss. The libelant at the time of the shipment and loss held an open marine policy in the London Assurance (Marine) dated November, 1901, and attaching when the goods were loaded at the inland town of Milhaven. This policy contained the "American Clause," and a warranty by the assured that the payment of any loss thereunder should not, directly nor indirectly, inure to the benefit of any carrier or bailee, and that the policy should be null and void to the extent of any amount paid by or recoverable from any carrier or bailee. After the loss the London Assurance Company paid to the libelant the amount of the loss, but upon the understanding that the said payment should be regarded as a loan, repayable to the insurer only to the extent that any recovery should be had from the carrier. Of the respondent's six policies, all of a later date than the libelant's, five were annual, aggregating $40,000, and the sixth an open policy from $40,000 to $100,000. Each attached on the cargo when laded. The five annual policies each contained the same "rider" to which reference is made in the opinion. The respondent insists, first, that the libelant has been paid in full; second, that the London Assurance Company must bear the loss; and third, that at most there must be contribution. The libelant insists that the respondent's liability is primary under the language of the several policies.

Kneeland & Harison, for libelant.

Carter, Ledyard & Milburn, for respondent.

HAND, District Judge (after stating the facts as above). It will be more simple to consider this case first, as though the shipper were himself suing for the loss and afterwards to see what difference it makes that he has been paid by the London company. There being no common-law liability under the circumstances (Rev. St. § 4282 [U. S. Comp. St. 1901, p. 2943]), the carrier is only responsible because of the obligation contained in the words stamped on the bill of lading. These may be considered in two ways: First, as a direct covenant of insurance; second, as an undertaking to procure insurance elsewhere, to collect it, and pay the proceeds to the shipper. Doubtless the sec

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes