PROTOS. I PROTOS.
CANNON ". THE
COlircuU Court, .E. D. Penn8ylmania. December 11, 1891.}
Toleave a small trimming hole in the lower deok of a vessel, a short distance from U\\l .main hatch, open and unguarded, when the vessel was unloading, and the betweElD-decks, where it was to be exPEiote4, the stevedores discharging the cargo would necessarily go, was dark and unlighted, is negligence, fur whioh the . .TM Helio8, 12 782, followed. .A stevedore engaged hi unloading a vessel went between-deoks to get his overalls'and' ohange his clothes preparatory to goin, to work iil the lower hold. The between-deck$ was dark, alldhe feU· through a feeding It was the ship'. duty to keep the "feeding hole" o1ose4' HeM, he in belieVing the hole closed, and was not guilty of contrlbutory negligence.' ' ' A vessel is responsible for an injury happening to a shoveler employed bv the stevedore that she employed to unload the vessel, when such injury occurs through her own unsafe condition. . " ,..
." , . " .
S. SAKE-LIABILITY OJ! VESSEL..
Of the district conrt awarding 81,250 as damages fdr in-
respondelltqelow,tlie steam-ship Protos,
to 'cargo.' .
of libelant, Frank Cannon, incul'l'ed while unloading the , John Q. tane, for appellant. JoM F. and Joh'fl,T. Murphy, for appellee.
A(JHESON, J. Afier careful consideration of all the proofs. I am entirelyslltisfied with the conclusions of theaistrict court. both as respects the fa<'l;:; and the law of the case." I find the facts to be as follows: 1.' The libelant was a laborer finder a hdad steve'dore, who 'was em,ployMbytheniaster of. the stelim-ship Protos to unload her cargo of at tne port of Philadelphia. The libelant was engaged on the vessel, as a shoveler. at this work,on Saturday, F.ebruary 9, 1889; and, the of'the cargo not being completed on that day, he 'was told toretutn the next Monday m<>rning. .' 2. When he ,quit work on Saturday, he left his overalls in the beneturning 'on Monday morning, the libelant" about 7 o'clock, went down the ladder of the main hatchway, used for storing and of cn,rgo,and got off at the between-decks, to get his overalls, ll'!'l4' make the usual change of clothing preparatory to going 19\Ver hold; where the clay yet to be discharged was; and, iIi getting on his overalls and changing his clothes, he small feeding or trimming hole down into the lower hold, arm, and otherwise injuring himself. 3.'. holes, are for trimming the cargo as it
·...: , ' . ,
by Mark Wilks'Ctlllet;
in a dark place, and was flush with the deck. Upon this occasion, it was uncovered, and was not guarded by a railing or otherwise; neither was there any lamp or other light burning near it; nor was any warning givtln to libelant to avoid the danger. 4. It is usual and proper for the shovelers engaged in unloading a cargo to put their overalls in the between-decks, and there, also, the drinking water for the men is kept. Daniel Brew, the foreman of the headstevadore over the workmen who were engaged in unloading the was called as ',8 witness for the respondent. and upon his examination in chief thus testified: "Question. In discharging the cargo that day, had the men employed, by you in dillQharge of that, duty any business to go between-decks? AnBwe1', We11"the hold had the clay in. and the men had to go between-decks to puttheirclbthes there. They had no place else to put their clothes, because the' eIay was in the hold. It ' Th.efact was as thus stated by the witness.
CONCLUSIONS OF LAW.
it was negligence for which the vElSsel is answerable to lea v,e, ", trimming hole open, and unguarded in a dark place. where it, bc expec*ed the shovelers would go tp put on their overalls'and change their clothes, and where they had a right to go for this purpose. The Helio8, 12 Fed, Rep. 732. The fact that the master had hired a head stevedore to unload the cargo did ,not relieve the vessel from liability for the injury the libelant sustained by reason of her unsafe CQooitio,n. 1'lun of opinion that the evidence does not shoVf contributory negligence on thE! part of the libelant.·" As the learned district judge well said, "llewasjustified in believing the not only because of the I:eflpondent's duty to have it so, but also he had found it safe It is true that s,inoo the appeaJ"and two years and six, rponthS,l:\#er the accident, two of the respondept's witnesses, being recalle4,testified that the small feeding holes in the between-decks of the' Protos were open on the Saturday before the. libelant was hurt. But, if are to be as that they remember that the partICular feeding bole here in question was open it by no means follows that the libelant observeci that it uqcovered. The appo\nted to ascertain the libelant's damages seenis to have procl'leded carefully and intelligently, and bis award. was approved by· the 'district judge. Taking into consideration the serious character of the libelant's injuries, his suffering, and the physical eon· dition in which he was left, together with loss of time, the allowance O"f $1 ,2,5,O.dpesnot strike me as exce"ssive. The decree of the district De affirmed, and a decree in favor of the libelant entered in this c<nirt for the sum of $1,250, with interest from the date of the decree in the district court, together with the costs in lIhat court and the, costs in this court. Let such a decree be drawn,
NORDAAS V. HUBBARD.
et al. l
(Dtstrl.ct Court, S. lJ. Aktbama.
December 12, 1891.)
SHIPPING-PLACE OF LoADING-CHARTER-PARTY.
A charter-party providing that the vessel sha.llioad at Mobile a cargo not exceeding what she can reasonably carry does not compel the shipper, after he has IQaded her to the draught of the river at the city, to furnish her more at the deeper anchorage in the bay of Mobile, 80 miles from the city. .
SAME-DtrTIES OF MASTER.
It is the peculiar business and duty of the ship-master to know what ports hi. vessel can enter and what anchorages are safe.
If a vessel, in order .to' earn greater freight, gets the shipper to furnish at a deeper anchorage cargo in addition to what he had furnished at the agreed place Of loading, the cost of lightering must be borne by the vessel. Delivery to the lighter is delivery to the vessel.
BAME-COST OF LIGHTERAGE.
,"CUSTOM-EvIDENOE OF UUGE.
While evidence of usage is inadmissible to contradict, it is admissible to explain, a contract where otherwise the intention of the parties cannot be ascertained.
SAME-ApPLICATION TO CHARTER.
When a custom is certain and general, although not so notorious or so acquiesced in as to have the force of law, it will be carried out as to a point where the contraCt is silent, when the charter-party provides that the custom of the port is to be observed in all cases not especially expressed.
In Admiralty. Libel inper80nam by owner of vessel for extra expenses of finishing IQading his vessel in the lower bay of Mobile, 30 miles from the city of Mobile: The facts are stated in the opinion. G. L. &- H. T. sm'ith, for libelant. PiUam, Torrey &- Hanaw, for respondents.
TOULMIN, J. 'l'hecharter-party out of which this suit has arisen, and upon the construction of which the rights of the parties thereto are
be provides: ",That the vessel'chartered shall proceed to Mobile. and there load from the at such anchorage or dock as they may direct, (Where the vessel can be afloat, ". '" *) a full and complete cargo, to consist of sawn pitch .pine deals under and. upon deck, not exceeding what she can reasonably stow or carry, ... * ... which cargo the charterers agree to ship, and, being so loaded, shall proceed to Rio de Janeiro, ... III III at the rate of &15 per one superficial feet," etc.
It seems to me clear from the terillS of the contract that it was the intention of the parties that the vessel was to load at Mobile, and not partly at Mobile and partly in the lower bay, as ·she did do, owing to her heavy draught, and especially in view of the principle that it is the -peculiar business and duty of the ship-master to know what ports his vessel can enter and what anchorages are safe. The GazeUe, 11 Fed. Rep. 431. Under the terms of the charter-party, the ship was not bound to load a part of her cargo at Mobile, and then take on board, outside the bar of Mobile, a part of the cargo she could not safely load at Mobile and -cross the bar with. She could have loaded such a cargo as she could
by Peter J. Hamilton, Esq., of the Mobile bar.