THE PH<ENIX. LoWNDES
(Di8trict Oourt, D. South Oarolina. April 5, 1888.)
SHIPPING-LIABILITY OF VESSEL FOR TORT-MASTER AND SERVANT-DEFEC'I'IVE ApPLIANCES.
Libelant. who was one of the gang of the lltevedore. was at work in the hold cotton, when a sling containing three bales parted, and one of them fell down the hatchway and s:truck him, inflicting serious inju"ries. The vessel at the' time was in full charge of the stevedore, who was selected by the charterer and paid by the ship, and Who furnished all the hands, including a man at the gangway whose duty it was to warn the men in the hold when the cotton was on the way. This duty he failed to. perform. The ship suppliedtbe appliances for loading, and among these were the slings, which, owing to the bard usage, rapidly wore out. The stevedore, his foreman, the gangway man, and the man at the winch all testified that at least one of the sling'S (there were two)furpished llY the mate for this particular gangway had all the appearance of being an old one, and the. stevedore and his foz:eman, to whom theniaster showed the broken sling after the accident, swore that not only was it dark in color like an old sling, but that its ends at the break were stranded. The testimony of the officers of the ship was to the effect that both slipgS were entirely new, and had never been used before. The mate. who got possession of the broken sling. and kept it, admitted on his examination. which was de bene es8e, that it was on the ship. The ship was then in port, but the sling was not produced at the trial. In addition, the foreman of the stevedore testified that he had frequently called the attention of tke mate to the unsafe character of. the slings. Held. that as a matter of fact the sling was an old one, and it bein/!; duty of the ship to furnish the stevedore with safe appliances, the ship was liable.
SAME-NEGI.IGENCE OF FELLOW-SERVANT. "
A vessel taking in a cargo of cotton wa-s ,in full charge of the stevedore, who furnished aU the hands, including II man at the gangway and others in the hold. It was the duty of this man to warn the men below when the cotton was on the way. ThIS he failed to do, and, a sling breaking, one of the bales fell down the hatchway !lind struck t'he libelant, who was employed by the stevedore to stow the ·cotton. The immediate cause of the accident was the rope of which the was ml1de, and which was old. It was the duty of the ship to supply these slIngs, and to see that they were in good condition. The libelant was permanently disabled by the accident for the most exacting duties of a longshoreman,though he was not incapacitated, with his experience and skill, from making a living. He was confined to bed a considerable period by his Ipjuries, and lost much time. Held, the of the ship being the immediate cause of the accident, that the fact that the negligence of a fellow-servant contributed thereto was not, in admiralty, matter in discharge,but only in lliiiigatiori of damages; and that $1,500, with $75 as doctor's fees, should be 'allowed. . .. .
In Admiralty. Libel for damages for personal injuries. Inglesby & lvIiller and 1. P. K. Bryan, for libelant. I. N. Nathans, for respondent.
SIMONTON, J. The libel is for injuries sustained by libelant on board of the steam-ship Phamix, on 11th February, 1888, she being at the time at Adger's wharf, in this port. The steam-ship, taking'rin a cargo of cotton, was in full charge of a stevedore, selected by the charterer, and paid by the ship. She furnished the appliances for loading,-derrick, windlass, blocks, chains, rope slings, and the steam for the winch. The
stevedore furnished all the hands, including a man at the steam-winch, and a man at the gangway. The duty of the latter was to pass out the slings, and to give notice that the cotton was coming aboard, so that the men working in the hold should keep from under the hatch. The stevedore had been engaged during the week in loading at the other hatches of the steamer. On Saturday. a little after 1 o'clockp. M., he began for the first time to put cotton into the No.4 hatch. He asked for rope slings for that hatch. The mate, whose duty it was to furnish them, gave him two. Two rope slings are needed for each hatch. In each sling are put three bales. They are then hauled from the wharf by the appliances mentioned, going up towards the hatch on a skid, which is an incline of some 55 or 60 deg. As they reach the combing of the hatch, they are raised above it, over" the hatchway, and should be let down gradually into the hold. The gangway man gives notice as the bales are on their way. Between 4 and 5 o'clock on this afternoon libelant was at work, one of the gang of the stevedore in the hold of hatch No.4. He had just reached forward to get from under the hatchway an implement of his calling, known as a "Dolly Varden;" when a bale of cotton was precipitated down the hold, striking him, and infiictingserious injuries upon him. No warning whatever was given by the gangway man. His excuse is that the bales came so fast he had no time to give it. The circumstances attending the accident are these. Three bales, as is usual, were put into the sling. They came up the skid, steam having been put on the winch. When they got to the combing of the hatch, perhaps just as they got on a level with the top of the combing, the sling parted. Two of the bales fell on the deck, the other went down the hold and struck libelant. When a stevedore· has full charge of the loading or unloading of a vessel, and one of his gang suffers injury by reason of defective tackle by the vessel, she is responsible if there be absence of due care upon the part of her master in furnishing the tackle, or in maintaining it in a safe condition; that is to say, if he knew, or if the circumstances were such as to put him on the inquiry so that he could know, that the tackle wasnotsaJe. The Rheola, 19 Fed. Rep. 926; The Harold, 21 Fed. Rep. 428; Tne Carolina, 30 Fed. Rep: 200, affirmed, 32 Fed. Rep. 112; The Dago, 31 Fed: Rep. 574. The general principle appears in The Malek Adhel, 2 How. 210, and it is illustrated in The Yoxjord, 33 Fed. Rep. 521. The question in this case is, was the sling thus furnished b;r the ship on this afternoon defective within the knowledge of the officer furnishing it, or were the circumstances such as to put him upon inquiry as to its condition? The sling had been in use only two hours when it parted. On this essential question the testimony is contradictory. The stevedore, his foreman, the gangway man, and the man at the winch, all of-whom handled the sling,swear that one at least of the slings furnished for and used in hatch 4 that afternoon was very dark in color, having all the appearance of an old sling. Two of these, the stevedore and his foreman, to whom the master exhibited thebrokcnsling after the accident, swear that it not oulJ was very dark ill color, like an old sling;
looking on the outside blackand scraped"but that its ends at the break were stranded. On the.otherhand,theofficers of the ship swear that the two slings furnished for batch 4 on that afternoon were entirely new, had never been used, had been cut fromA-fresh coH of rope recently purchased; that it had the bright color of new Manilla rope; that its edges at the points of parting were clean, appe,ariqg to have been cut short off with some sharp instrument. The testimony cannot be reconciled. New Manilla rope used on smooth skids fortwo hours and a little more could not be made to assume thel;l.ppearance of old rope. In this contradiction of testimony we fillSt examine even small facts. ;r ust after the accident occurred the first.mate of the steam-ship sent a man into the hold' and got the broken' sling. He kept possession of it. It was shown on Monday totbe stevedore. The lllates, and. crew were examined dj! bene e88e a few days afterwards. The ma.te, on cross-examination, was-, asked as to this sling. llfl replied that it was aboard ship. The, ship was in port. The exaQlination of respondent's ",itnesses went on the next day. The rope was, never produced, nor was any offer made t(} produce it. ,Now,. the issues between these parties were: What the sling to break? "Was ,it of new rope qr of old? Did it part because of its inherent weaklless, discernible ou:examination? Was it cut by, the iron baildsaround the, bales, as Wl\S very possible? Was it broken in a violent concussion ,of. the bales against the combings of the hatch through the unskillfulness of the winch man? If thl'l rope was a new one, if the ends were clean cut, if the break was the of a sharp and violent blow, the ship wOl,lld not be liable. The bare production of the rope would have demonstrated ,the He had full notice of its importance, and opportunity to produce it. The rope ",as not 'produced.· Why? It is difficult, if not,impossible, to escape the conelusion that the rope was not produced because its production would have contradicted the theory of As matter of fact, I find that the whiqhpa,rted, wa.san old; o,ne. This being the case; was the ship responsible? The wear and tea,rin use of these slings is very great. They cannot be used with safety aft,er loading a vessel witld ,000 bales of cotton; When the cotton in thE! slings comes aboard it moyes rapidly and always, or almost always, against the combing of the hatch. When, therefore, the of the stevedore asked lor new slings for this hatch was cntitlerl to new ropes or ropes safe as new ones. If an old sling WIlS it f?hould have been examined. An examination mlLy'have developed. that it was not safe, No examination was had. XhuEl there was a want of due care, which is negligence, and for this the ship is1iable.: A,dd to this the evidence of the foreman of the stevedore, that he had called the. attention ofthemate to the unsafe character of t4e slings, and the is strengthened. '.. .. . . In determining the of the liability. of the ship other tions, however) enter ipto, the question. The.gan,gway man failed in hi$ duty, and gave no wanling. It may be-but on: this point the evidence is not strong-thll.t the tllJl,P at the winch was unskillful. Both of theq>
were gilngoqhe stevedore; paid anel employed' by hhn. But for the negligence of the one, perhaps tQe action of the other, the accident might not have happened. The libelant was the fellow-laborer with these men, and their negligence was one of the risks of his employment. He assumed this, and is affected ,by it. Hough v. Railway Co., 100 U. S. 213; The City of Alexandria, 17 Fed. Rep. 390; The Harold, 21 Fed. Rep. 428. This, however, does not exonerate the ship. Even in the narrow administration of the common-law courts the negligence of an employe will not excuse the common master for an injury to a fellow-servant if the master himself was negligent, (Railway v. Cummings, 106 U. S. 700, 1 Sup. Ct. Rep. 493;) and in the broad and liberal administration of adniiralty cohtribtitory negligence on the part of the libelant himself would not exonerate the ship. This being so, still the negligence for which libelant would have been directly responsible, and the negligence of a fellow-servant, the risk of which he assumed, will diminish the amount of damages to be awarded to him. This, then, is the last question in the case. The libelant has been disabled, in some respects; for the most duty of a longshoreman, permanently disabled. With his experience and !'kill, he can still make a living. He has been confined to his bed,-still is,-and has lost much time. I award him as damages the sum of $1,500, not including his physician's fees. Towardsfhese I allow him 875. Let, a decree be entered accordingly; respondent to pay costs.
THE ST. JOHNS. I
THE GEN. ROSECRANS · HEATH V. THE ST. JOHNS AND THE GEN. ROSECRANS.
(Df8trict Court, S. D. New York.
April 6, 1888.)
A vessel that agrees by signal to pass ahead of another vessel, and thereafter stops without reasonable necessity, is in fault if collision ensues.
As the steam-tug Ro, with a canal-boat on her starboard side, was turning from the North into the East river. another tug. the D., being a little astern, and going in the llaDie direction, she observed the steamer St. J. up on her starboard haml. She signaled her intention to pass ahead of the St. J .. to which the latter, by whistles, agreed; and the St. J. at the same time agreed to go ahead of the D. As the vessels drew nearer. the R., fearing that she would not clear the St. J., stopped and reversed. As soon as this was perceived by the J., Ahe also stopped and reversed, but collided with the R.'s tow, striking it about 10 feet from her stern. Had the R. kept on, she would have cleared the St. J. by at least 100 feet, the same distance that the St. J. passed.ahead of the D. All the vessels were moving slowly. and on direct lines. Held,' that there was no reasonable' or apparent necessity for the stop.ping of the R,. contrary to the agreement under which both had been acting. and such stopping was the fault that caused the collision; that the St. J. owed no duty to ,the R., except the duty of not thwarting her in keeping out of the
-Reported by Edward G. Benedict, Esq., of the New York bar