THE EDDYSTONE.! AMADON
(DiBtriet Gourl. E. D. Virginia. December 14. 1887.)
A laborer who went on board a ship to secure employment, but had not been actually employed. (it being the custom to employ laborers on the wharf,) three hours before the ship was ready to commence loading. was injured by the falling of a derrick which the crew were rigging up, and which was negligently allowed to fall. Warning had been given, but was not heard by the laborer, as he had not then gotten aboard the ship. On libel by him for persOllal injuries, held, that both were in fault, and the damages were divided, the estimate of damages, however, including only expenses and loss of time.
In Admiralty. Libel for damages for injury to the person. Sharp &: Hughes, for libelant. Harrrw.nson Heatlt, for respondent.
HUGHES, J. James O. Amadon, the libelant, was painfully injured on the 17th day of November, 1886, on board the English steam-ship Eddystone, which was making ready to take on cotton at Norfolk. He had previously spoken to William Welsh, acting chief of stevedores, in Norfolk, for employment in loading cotton, who had said to him that be would give him work on the next ship that would be ready to take on cotton. After this conversation the Eddystone was the next ship to come along-side of the wharf for the purpose of taking on a load of cotton. She had made fast, and was rigging her derrick, and getting ready to receive her cargo, when Amadon, seeing Welsh on the after-part of the deck of the Eddystone, stepped on board, and was moving towards Welshwlien the boom of the derrick, which some of the crew of the Eddystonewas hoisting tc) its place, made a sheer, became unmanageable, and fell! the end of it striking Amaclon while he was ascending a flight of steps which led in the dire<;tion of the place where he had seen Welch. His injuries were very severe, and for a time painful, and he was treated for several months in St. Vincent's hospital in this city, where he was nursed by the Sisters living in that institution, and treated by its physician. It is probable that he is permanently injured, and it is certain that he has not yet (December, 1887) recovered sufficient strength to engage in any work requiring active physical exertion. His libel is for damages for bodily injuries, for expenses incurred, and loss of time from work, and are laid at $10,000. The boom which fell, and was the instrument that produced the accident, belonged to one of the derricks of the Eddystone, which the boatswain and two of the crew were rigging and making ready for use in lifting cotton upon the ship. They were in the act of raising this boom when Amadon came on board the ship. When about to commence the raising of the boom, the boatswain cried
by Rob:rt M. Hughes, Esq.; of the Norfolk bar.
out, giving notice to all on board to look out. This notice could be heard by whoever was on board, 'but was 'llot heard by Amadon, who was at the time on the wharf, and who came on board soon afterwards, and was stepping rapidly in 'the<direction of Welsh when he was struck by the falling boo Ill .. The Eddystone was not yet ready to receive cotton when Amadon came aboard. · When the acCident' occurred she was still in the act and course of prepappg to receive her and to, be in saf!" condition and,readiness to,beboarded by whoever should'be engaged, directly Or indirectly, in the business of the cargo which she was there to receive. ,. I. think the foregoing though far from' being full, exhibits the controlling facts of the case. ,', I do not feel called upon, in opinion, to dwell on the details of the manner, iq.wlJ,ich the boom' which inflicted' the to fall. If the ship was bound, before she had made herself 'ready on her deck for engagingjp ,the work of taking on cargo, and ata time when part of her crew might have been needed in other measures of to man her derrick so completely as to render the falling of the boom absolutely impossible, then the maxim res ipsa loquitur might apply. But certaiI).ly there. was no such .obligati()n upon the ship while yet unready to re(}eive cargo. Or, if the ship had begun to take on cargo,or signified her re!f,diness to begin, and thereby impliedly contracted to use all proper diligen\)e for the securityO,f persons coming on board against accidents, then the mere fact of the falling of her boom would have been an act which would have raised the strongest presumption of negligence. fhis ship, however, was not ready to receive her cargo. The stevedore Welsh, duty it was to know when she would be so, states that, whereas the aCQident occurred at about half past 11 A. M., the ship was not then likely to be ready until half past 2 P. M. He says, moreover, that he employed labore,s on the wharf, and although in excepUonalcases he might engage a mall when on deck, yet, in point of fact, he always engaged them on the wharf, which was the proper place for the purpose. The case on each side, then, is this: on one hand, three hours before the ship was ready to engage in receiviI).g cargo, while ill the act, with three of her crew, of raising one of her derricks in part preparation, the boom of that derrick fell, those engaged in raising it having given warning to all persons to look out for accidents. On the other, hand, three hours before laborers were authorized to come on board for the purpose of loading cotton, a man,not yet employed for the purpose, steps on board, and places himself just at the point of danger; it being urged in his justification that he went froIll the wharf, where laborers are engaged, to the deck of 14e unready ship, where they are never engaged, to secure employment.in loading the ship. Such is the case to be adjudicated. I do not thiIlk the ship was bound before she was ready, and while in the act of making ready for promiscuous visitation by all persons who might, through whim or on business, come upon her decks, to so man her derrick as to insure against the possibility of such an accident as happened. And I think the case of this ship is one for the most lenient
'raE CAPTAIN JOHN.
possible application of the very stringent rule of law whioh holds accidents of this sort to be necessarily the result of fault and negJigtmce. On the other hand, I think it proven that Amadon was not on the ship in the line of rightful business. He was seeking employment; and went from the wha,rf,where alone he could have been enlisted, upon the ship, where laborers are never engaged. He was not on deck in the line of business. He was there for no legal purpose. He was there before the ship was ready to guarantee safety to strangers coming on board. He had no rights there, except the right not to be hurt by the negligent act of the ship. He was bound, being there under such circumstances, to observe the strictest diligence in keeping out of harm's reach, and he was in fault in not getting out of the way of so' palpable an accia-ent as the of a large boom at mid-day, after warning had been given to all bystanders to look out. The rule of admiralty requiring the damages to be divided where both parties are at fault must be llpplied here; and, in estimating them, the case is one which forbids. the idea of punitive or vindictive damages. The actual' damages I. must estimate somewhat arbitrarily. The libelant is still in feeble condition of body, nnable to in laborious work. His, board for one year is not an 'unreasonable allowance, under the, circumstances, and this is $395. The medical account, which is not onfile"is said to be 845. The loss of time from work I will consider one year, at a dollar a day for .313 days. The total will therefore be 8753. For half of thisswu I will give a decree, and costs,against the respondents.
'lI. THE CAPTAIN JOHN.
(Di8trict OQfWt, 8. D. NWI York-February I, 1888.)
8JmopmG-RElI'USAL OJ' CoNSIGNEE TO ACCEPT-DUTY Oll' MASTER-Locus PENITBNTI&.
On a refusal by the consignee to receive certain whisky consigned to him. it was the master's duty to store it properly on account of the consignor, and the vessel was liable in '1'em for a failure to perform this duty; but both parties being remiss in their duties, opportunity was given for a legal adjustment of their rights.
In Admiralty. On the twenty-fourth of November, 1886, the libelanm shipped on board the propeller Capt. John, New York, a barrel of whisky, to be transported to New Rochelle, and delivered to Michael Cullen. It was carried to New Rochelle, and first placed temporarily in the warehouse of
IReporWd by Edward G. Benedict, Esq., of the New York bar.
the line at that place, and the consignee notified Of its arrival, who immediately refused to receiv it. on tho ground that he had not purchased it, and knew nothing about it. The barrel was thereupon again taken on board the propeller. The name of the shipper was not marked upon it, and the captain was. unable to ascertain Jrom whom it had come. After some months the libelants, learning that the consignee had refused to receive the barrel, had an interview with the captain. On examination a portion of the liquor was found gone. The· captain claimed that the loss had happened through leakage, which the libelants' agents denied. No agreement being arrived at, this suit for the value of the whisky was brought.' Hyland & Zabriskie, for libelants. Martin J. Keogh, for respondents.
BROWN, J. 1. The evidence does not establish any sale of the whisky to the consignee. The libelants are, therefore, the proper parties to bring this suit for damages. 2. Upon the refusal of the consignee to receive the goods, it was the duty of the propeller, asa common carrier, to store· the barrel properly on account of the consignor, until he could be found. This duty is a maritime one, and for any neglect or imperfect performance of it-the vessel is liable inrern. for damages. Richardson v. Goddard, 23 How. 39 j The Surrey, 26 Fed. Rep. 791, 794. 3. The whisky was not, in this 'case, properly stored. The betweendecks of the propeller, where it lay for a long time, more or less subject to access, was not a suitable place. The libelants' agent testifies that the bung was loose when he examined it, and I am not satisfied that the loss was from leakage only j and, not having been stored in a proper place, the vessel is liable for the loss. 4. In the interviews between the libelants' agent and the captain, no agreement was arrived at, through the improper claims of each,-from the denial of responsibility by the master on the one hand, and no offer to pay freight on the other. I cannot find, upon the evidence, that the libelants have established a case of conversion of the whole barrel, or any refusal to deliver the on payment of freight; for no freight has ever been offered, and the proof does not show how much of the still remains. To enable both parties to comply with their legal duties, I shall direct that, upon delivery by the propeller of the barrel at any proper place in New York, on account of the Ii belants, and notice thereof to them, within 10 days, and payment for the whisky missing when the barrel shall be delivered, less the freight charges of the propeller,-one for carrying and one for returning,-with the disbursementsof this action, the respondent will be dischargedjotherwise payluent for the value of the whole barrel will be ordered, with costs.
END Oil' VOLUME 38.