cases of The Lottawanna and The Edith. This suit was instituted for a maritime lien originally existing by force of the state statutes, which lien ceased at the expiration of the prescribed nine months. The fact that the lien could not have been previously enforced by seizure, in consequence of the custody of the state court, does not enlarge or suspend the operation of the state statute. The lien expired before , the suit was brought. The exceptions are sustained and the libel dismissed, at cost of libelant.
See, generally, The De Smet, 10 FED. REP. 483, and note, 489.
THE PRIVATEER, her tackle,etc.
(DiBtn'ct Court, S. D. New York. January 18, 1883.J
VESSEL-PERSONAL INJURIES-WHEN NOT LIABLE.
Where a gang of workmen, including the libelant, employed to remove ballast from the ship, removed the ladder in ordinary use for workmen from the ship's side and put it down the hold, and at noon, on going off from the vessel, instead of returning the ladder to its place for their use, went aft and used the poop ladder, placed there temporarily for private use and not fastened, and were warned that it was unsafe, and the la.dder fell as the libelant was going down, Whereby he sustained severe injuries, held, that he had no ground for an action against the vessel for damages for personal injuries.
In Admiralty. Jesse Johnson, for libelant, (W. R. Beebe, of counsel.) Benedict, Taft « Benedict, for claimant. BROW.:<, D. J. On considering all the evidence, I am of opmlOn that the libelant had no right to make use of the ladder ftom which he fell in leaving the ship, if thei'e was any other means of exit. This is shown (1) by the character of the ladder itself, since it obviously was not one for the common andol'dinary use of seamen and workmen: it was a heavy ladder, weighing some 200 pounds, made with steps like stairs, of hard wood, polished and finished with beeswax; (2) by the place of the ladder, which was at the poop, near the cabin, where seamen and workmen do not belong, unless they have business there; (3) by the testimony of several masters of vessels showing that a ladder of this kind is designed only for the use of the masters and officers, passengers and visitors, and is not customarily used for seamen or workmen. There is no satisfactory evidence to the
contrary; thatof Collins, in my judgment, being insufficient. Moreover, the ladder is ahown to have been put in its position by orders of the master for the accommodation of his family, who were expecting to visit the ship, with orders to the mate that its use by others should be forbidden. The witness Perry received these' orders from the mate. He was by the ladder when the men went down, and, as he swears, forbade the use of it, and told them it was not fastened and unsaf . This notice is denied by the libelant. That a conversation did occut between him and the libelant regarding the use of th'e ladder is manifest from the libelant's statement that he said to Perry, "Let me pass; I want to get my dinner." , No explanation is given by'the libelant of'the reason for this remark.' All the evidehce on the part oftha claimant, viz., that in regard to the nature of the the use it was designed for, the orders restricting its use, the: attendance' of Perry to prevent its use by the 'Workmen, alid his notice to the men, which he testifies lie gave, are all harmonious and cbnsistent, and are, in fact, sustained by the libelant's testimony as to what be' said to Perry. I am of opinion that McCabe and the test of the meti were notified not to use this ladder, and that they had 'no' right to USB it. There was another ladder, with rounds, which was the ordinary means of going on and off the ship, amidships, near the main hatch, where the men were at work. I have no doubt that the men took this ladder from the side of the ship and put it down the hatch to go to the It was their business to take it up and put it over the side of the ship for their use in going off. There is testimony on the part of the claimants that this ladder was used by the men on going aboard, although the libelant's witnesses testify that they used the other ladder at the poop on going aboard. There is no probability that the ordinary ladder for use amidships was removed before the men came aboard, so as to compel them to go up by the poop ladder, contrary to custom, and, contrary to the master's express orders; and in testifying three years after the occurrence the libelant's witnesses might be very easily mistaken in their recollection as to which ladder they had used on going aboard, and it is impossible for me to place much reliance on their testimony in this respect. I think there is little doubt that they went up by the usual ladder amidships, and having taken up this ladder for use in the hold they were bonnd to replace it for going off at noon and coming on again. But even if the men had a right to make use of the poop ladder, and no notice was given them not to use it, I do not see how the ves-
selcan be' held in fault. The ladder by its construction wasonetha could not be safely kept lashed to the rail, because liable thereby to be broken through the rise and fall of the tide ; and it was not customary to keep such a ladder lashed. There was no defect about the ladder itself. Itfelli)1 consequence of slipping at the bottom, upon day. If it had been lashed the slippery ground, on a sleety to the rail at the top, that would doubtless have prevented its, slipping; but the character of the day, the slippery ground on which the ladder rested, and thE! want of any lashing at the top, were as well known to the workmen, or as visible to them, as to the man on board the ship. The crew;had already left; the workmen discharging the ballast were employed upon an independent contract; and I do not perceive on what the vessel was bound to keep a man in attendance to fasten and unfasten this particular ladd,er ,for the men's accommodation, even if there had been no objeetion to their using it. lt could have been as well secured by being held at the bottom by the men were as by fastening at their companions the top. I do not perceive,. therefore l any of the ship to the men in:rega,rd,to it. lt is urged that, had notice been given, as claimed, the men would of going down upon it. But every day's expenot have run the rience proves that men will often foolishly risk .their lives to save a few miuutes'time, or to avoid a little additional McCabe had seen four men go do,,"n safely immediately before him, and evidently,as I think, insisted on following them. He went, therefore, at his own risk; and, much as his consequent and Buffering and loss are to bedeplored, I must hold the ship not responsible, and dismiss the libel, with costs.
(Di.strict COW"t, N. D. Illinois.
JURISDICTION-DoES NO'l'. A'l''l"ACH OVER EQUITABLE' CLAlliS.
Where the contract set out in the libel is merely a loan for money, for the payment of which the ve3scl was conveyed as security, the "dmiraltv has no jUrisdiction jthe remedy is in equity.' . .
Win. R. Condon, for libellJ,nt. Schuyler d:. Klcillcr, for respondents.