BROWN is to theeft'ect that rule 58 was not intended to determine the plaM where the 'original proceedings to limit liability should be commenced. These considerations render it unnecessary for me to express any opinion upon the other point taken by libl;llant, viz., that this petition cannot properly be filed in thi8 auit, and at this stage thereof, aside from the question of jurisdiction. PetitiQn dismissed.
THE WH. F. BABCOCK. WAI,SH .". THE WH. F. BABCOCK, Her Tackle, Apparel, etc.
(Diatrict OQurt, No D. Oalifornia. JUll,e 17, 1887.)
SBIPl'rNo-NEGLIGENOE-LIABILITV FOB PERSONA.L .!NJUBv-FELLOW-8EBVANTINDEPENDENT CONTRACTOR.
The libelant, an employe of the master stevedore, who was loading a vessel under contract, was injured by stepping into a snlall trimming hatch, ill the between-decks,while in storing cargo. The light in the betweendecks was dim, and libelant did not know of \he existence of the batch, or that it was uncovered. When the vessel was turned over to tbe master steve-' dore to be loaded, this trimmin'g hatch was covered. It was BUbsequentlyuncovered by the' stevedore's foreman. .Held, that the vell8el was not liable for
In Admiralty. . Walter G. Holmea and O'Brien k Morri8on, for Milton Andros, for claimant. " HOFFMAN, J. The libel in this case is filed to, recover damages for injuries sustained by the libelant while engaged as a stevedore in lading the cargo of the above vessel. The gang of men to which he belonged was employed in taking cases of salmon on board the vessel, and stowing them in the between-decks, forward of the after-hatch. In the direct course of the, men to the place where the cases' were to be stowed was a hatch known hatch," which had been partly uncovered. Into this thelibe]ant, who had just come down from the broad daylight on the Wharf, Bllepped his foot, and the case, escaping from his grasp, struck his arm, fracturing or otherwise injuring it. The hatch was perhapsin a somewhat unusual position,lleing amid-ships, instead of, as is more common with trimming hatches, midway between the mid-ships feet square, but it line andthe;wings. !twas about was ,divided in the center by 'shifting boards, which were attached to. the stanchions of the between-decks. The aperture left on either side of the shifting boards was 21 feet in length by 12 or 18 inches in width. It was into this aperture that the libelant put his foot.. The uSllalattempt is made tosq.ow that the accident was caused by
'l'HE WM. F.,BABCOCK:.
the man'so\vn carelessness. It iseaid that the light· in the betweendecks was amply sufficient to enable him to see and avoid the hatch, with ordinary care. It is also said'that he had freely indulged in beer, and that he, as is said to be usual with stevedores wherl at work at a late hour of the afternoon, was under its influence. With regard to the light, I am ofopinion 'that it was sufficient to enable anyone apprised of the existence and position of the hatch to seellnd avoid it. I also am inclined to think that, with reasonable care, it might have been avoided by a stranger to the ship, who had been in the between-decks long enough to accommodate his eyes to the diminished light, but not by one ignorant of the existence of the hatch, and who had just coine down from the broad daylight. The evid'ence that the man was sUfficiently under the influence of liquor to justify us in attributing the accident' to that cause is not satisfactory. If weare asked to infer that such wasthe case, from the usual habits of stevedores, that fact presents an additional reason why they should not be exposed to injury from traps of this kind, when it is known tha.t their probable condition will prevent them from exercising the care and 'caution which at an earlier hour of the day they would have observed. The ship was provided with gratings to cover the hatch. It is not shown that any necessity of her service required that it should be left uncovered, either wholly or partially. That there was danger to. be apprehended from it, under the circumstances, seems to have been recognized by one of the libelant's comrades, who immediately preceded him in the line of men carrying the cases. He testifies that he thought of warning the libelant of the' existence of the hole, but that somehow he forgot to do so. My opinion is that the injury to libelant was caused by negligence other than his own. Is the ship liable for the consequences of this negligence? The stowing of the cargo was conducted by a gang of men employed and paid by Allen & Young, the well-known firm of master stevedores in this city. The work was performed under the exclusive superintendence of their foreman. There does not seem to have been any crew on board the vessel, nor any officers, except the master, who CIlame down to the ship in the afternoon. But whether or not any of the crew or officers were engaged in the performance of any duties on board the vessel, the taking in and stowing of the cargo was conducted under a contract made by the vessel withthe master stevedores, whose servants the men were. There was therefore, no privity of contract between the libelant and the master and owners of the ship, nor did the relation of master and servant, in its technical sense, exist between them. But this does not affect the liability of the master and owners, if the fornler had been guilty of gence. The Rheola, 19 Fed. Rep. 926; The Kate Oann, 2 Fed. Rep. 241; 8 Fed. Rep. 719; The Calista Hawes, 14 Fed. Rep. 493; Hough v. Railway 00., 100 U. S. 220; Oought?'Y v. Globe,56 N. Y. 124; Mulchey v. Methodist Soc., 125 Mass. 487. But if the negligence was not that of the master, but of an independent contractor, or of the stevedore having charge of the loading of the ship, the latter, and not the owners, il'lliable. Bennett v. Truebody, 61
Cal. 509, 6 Pac. Rep. 329; The Vidoria, 13 Fed. Rep. 43; Dwyer v. Na,#onal S. S. Co., 4 Fed. Rep. 493. At the time the ship was turned over to the stevedores the trimming hatch was OQmpletely covered. The deck was also covered with dun. nage two inches in height, i. 6., inch boards laid on battens one inch high. The master, I believe, (although, there is some discrepancy in the evidence on this point,). told the foreman of the stevedores that one inch of dunnage would be sufficient for case goods. He gavl;l no direcHe did not see tions that the trimming hatch should be left the boards removed from the hatch; nor did he.know that it had been done, Ml the details of the operation of loading the ship were under the exclusive charge and $uperintendence of ,the foreman of the stevedores. If he, in obeying the master's general direction, tQ the effect that one inch of dunnage would be sufficient, removed the boards which cov,ered the hatch without warning his men of the existence of the hole thus opened, it seems to me that the negligence was his, and not that of the master. The circumstances of this case differ widely from those of the cases to which I have been referred, and mOEt of which are cited in this opinion. In every instance there was manifest negligence on the part of the ship-owners or their servants in failing to provide adequate appliances for discharging or lading the vessel, or in turning her over to the stevedores, with an uncovered and dangerous "trap," in a dark and unusual place. In this case the hatch was uncovered by the foreman of the stevedores. It was his duty either to leave it covered, or, if its removal was necessary to conduct the work, to warn his men of the danger to be apprehended from it; and this seems to be the view of one of the libelant's fellow-workmen, who thought of telling his comrade to beware of the hole, but forgot to do so. ' I think that the ship is not liable, under the circumstances, and that the libel should be dismissed.
THE ELIDA. 1 ZINCKE,
Master of the Elida,
(IJiatrict Oourt. E. D. Pennl/ylvania. June 28, 1887.)
DEMURRAGE-TRANSFER OF CARGO....,NoTIOE. To relieve. the owner of a cargo. when he has
transferred it, from responsibility for demurrage, he must show that notice of such transfer was given to the master of the ship.
SAME-CuSTOM OF PORT.
Demurrage will not be allowed for delay caused by unloading in accordance with the custom of the port.
by C. Berkeley Taylor, Esq., of the Philadelphia bar.