THE YOXFORD.
521
flaw, and the engineer of the ship, the only competent man who examined the ruptured surfaces before they were affected by the subsequent attrition, says that there was no evidence of flaw on either ruptured surface before the parts were strapped together. Seaworthiness does not require perfection in machinery, more than in anything else. Perfection is unattainable. Only a reasonable fitness for the service designed isrequired. Gibson v. Sma.ll, 4 H. L. Cas. 353; Readhead v. Midland Ry. OJ., L. R. 2 Q. B. 412, 440; Burges v. Wickham, 3 Best & 8.669,692. In the case of The Titania, 19 Fed. Rep. 101,107, in reference to latent defects, it was said: "The ship should be deemed seaworthy if, all the circumstances being known, she would still be deemed by competent persons, according to the existing knowledge and usage, seaworthy and reasonably fit for the voyage, although subsequent experience might recommend additionalprecautions." The rule as respects latent defects doubtless operatesharshly upon ship-owners. It cannot justly be pressed, as it seems' to me, beyond the limitations above indicated; and the first condition of the application of the rule must be proof, with a reasonable degree of certainty, of the fact that such defects did exist as, if known, would have been deemed to render the ship, respects the defective subject-matter, not reasonably fit for the service designed. Considering, on the one hand, tllE' doubtful and inconclusive result'df all the evidence as to the fact of any such material and substantial'defects in the welding as to make this shaft not reasonably fit for service; and, on the other hand, the long period of 11 years during which it had been in constant use, and the severe weather and the trying circumstances under which it finally broke, I must hold that the presumption in favor of the sufficiency of the shaft arising from this long use stillremains, and that the break resulted from the perils of the sea, rather than from unseaworthiness of the shaft. The libel must, therefore, be dismissed, with costs.
THE YOXFORD.1
QUINN 11. THE Y OXFORD.
{Di8t'riot Court. E. D. New York. .
December 81, 1887.}
NEGLIGENCE-PERSONAL INJURY-UNSAFE CONDITION OF VESSEL-HATCH-COVER.
On evidence that the hatch-cover of the steamer Y. gave way when libelant stepped on it. by reason of its own defect. and so precipitated libelantint() the hold of the vessel, without fault on his part, held, that the vesssl was lia]:>le.
In Admiralty. Libel for damages. Libel by Joseph Quinn against the steamer Yoxford, to recover dam. ages for injuries sustained by reason of the giving way of a defective hatch-cover, precipitating libelant into the hold of the ve8$el. . .. : lReported'by Edward G. Benedict, Esq., of the New York bar.
522
FE.DERAI, REPORTER.
John J. Allen, for lib,elant. E. B. Oonvers, for claimant. BENEDICT,J.. This is a1;1 action brought to recover for personal injuries caused by the libelant's fall into the hold of the steamer Yoxford. At the time of the accident the steamer was taking in grain from au elevator. It being necessary to shift the elevator spout into hatch No.2, the libelant was directed to assist in the operation. At the time, several hatch-covers were on hatch No.2, which it was necessary to remove. These covers the libelant and another man, Powell, undertook to remove. While so engaged, the libelant fell into the hold, one of the hatch-covers falling with him. of the accident is that he stepped upon the covered portion of the hatch, and, in obEldiElnce to a direction from the man with him to come to him, he turned about, when the cover on which ,he stepped gave way uuderhim,and he was precipitated into the hold below. He charges the, acoident to an unsafe conditionof the hatch. .Avery differentaccount.js.given by the master of the steamship. The master swea,rB that he, at the time the libelant fell, was close to the hatch and saw the fallj tbatthe libelant undertook.to raise one ,of the hatch-covers without assistance, and for this purpose stood upon ope of the fore-and-afters,-a narrow beam, of wood On which, when in place, the hatch-covers rest at O1;1e end,-and, while stan<ling on this narrow and dangerous place, stooped down, lifted one of the covers by a ring, apd pulled on,e end oHt frQmtbe.coamingjthatthe cover was too heavy for him, and by its weight he was pulled off the fore-and-after on which he stood, and so fell from tlte beam to the hold below. According to the master, the sole cause ofthe accident WIlS thel:lxcessivecarelessness of the man in. lifting the cover by its ring while he was standing on the narrow fore-and-aft beam over the open hatch. If the master's account be true, the cannot recover. If, on the other hand, the master's account be untrue, the fact of an untrue account, willfully made-as this one must be, if untrue-by the master of the ship, goes far to confirm the evidence presented by the libelant to show that the hatch was unsafe by reason of a worn and warped condition of the hatch-cover, and a loose condition of the fore-and-after. The important question of veracity thus raised has received my careful attention, and my conclusion is adverse to the claimant. In the first place, I am unable to see how, if the libelant was standing as the master says he was, it was possible for him to lift the hatch l\$the ,master says: he did. It is cel'tainlyhigbly improbable that any one:would assume such a risk without necessity. In the next place, the libelant, whose appearance()i! the stand was in his favor, contradicts the master, and the libelant's testimony is confirmed by a disinterested bystander, who was at the hatch. Furthennore,while the account given by master respecting the fall itself is specific, .in other respects hisaQcount is so meagre as' to .raise a doubt as to its accuracy. Still further, Mr. Berry, the superintendent of the elevator, called in behalf of the steamer, fa,ils to corroboratE! .the master, but on the con-
523
trary contradicts him. Mr. Berry was forwar:d on the ship when the man fell. The confusion at hatch No.2 caused him to go there immediately. He says that when he arrived at the'hatch the master was not there; that in five or eight, perhaps ten, minutes, the master came to the hatch, and then directed his men to get ready and get the man out. This is hardly consistent with the master's statement that he was close to the hatch when the man fell. If the master saw the man fall, it is improbable that he would have left the hatch before Mr. Berry came, unless, perhaps, to go into the hold. The master did not go into the hold, and he makes no mention of anything he said Of did at the time; but, contrary to Mr. Berry, says that the libelant was got out by the elevator men, "under the instructions of Mr. Berry, who came on deck and directed matters." Furthermore, the master says he saw the libelant and the other man on board the ship together, for the purpose of erecting the spout, when the proof is that the libelant came on board alone, on the call of Mr. Berry. Open to such criticism, I do not see how I can take the master's account to be the true account of the accident, as against the statements of two witnesses, one of whom has no interest in the result. In coming to the conclusion that the master's account must be rejected, I have not overlooked the fact that, before any witnesses were examined, the master, in his deposition, relates a conversation between the libelant and Powell, just before the fall, which on their examination they say did take place. From this circumstance, it has been argued that the master must have been present when the man fell. It may show that, and it may show no more than that the master heard the accident described after it had happened. The latter is more probable than that the accident occurred in the way described by the master. My conclusion, therefore, is that the hatch-cover gave way when the libelant stepped on it, by reason of its own defect, and so precipitated the libelant into the hatch, without fault on his part. From that fact, the conclusion that the hatch waR unsafe follows. Whether this unsafe condition resulted from a warp in the cover, or wear of the cover, or looseness of the foreand-after, or all of these combined, is immaterial. It is plain that from one or all of these causes the cover was unsafe, and an improper covering for a hatch of this description. To provide such a covering for such a hatch was negligence which renders the ship liable for the injuries received by the libelant in consequence thereof. 'fhe decree must, therefore, be in favor of the libelant, with an order of reference to ascertain the amount of damages.
524
FEI?ERAL REPORTER.
THE NON P AREILLE. 1 ZEI,LER 'D. THE NON PAREILLE.
(District Oourt, 8. D. N61JJ York. December 29, 1887.) 1. COI,LISION-RIGHT OF WAy-RISK OF COLLISION-DUTY TO YIELD.
In the presence of danger of immediate collision there is no absolute right of way, and both of two approaching vessels are bound to give way and depart from the usual rule. if such departure will plainly avoid collision. Two yachts, the C. and the N., were standing up the lower bay of New York, both close-hauled on the port tack, and heading for about the same point.. The C. was to windward of the N., and was heading a little more off the wind, and making more leeway than the latter. Owing to the drift of the C., their courses crossed more than their headings indicated, and each, supposing the other to be an overtaking vessel, held her own course until collisIOn ensued. Held, that the C., being the windward vessel. under old rule 17, or rule 24 of the International Regulations, and the practice of seamen, should have kept out of the way. Held, also, that the case was one of crossing, rather than of overtaking, vessels, and that both vessels were in fault for persisting in their courses in the face of danger of collision, and the damages should therefore be divided. Semble the lower bay below the Narrows is part of the "coast waters" rather than of the "harbor" of New York; and is subject to the new rules of March, 80, 1885. .
2.
SAME-"CROSSING" AND "OVERTAKING"-INTERNATIONAL RULES-"HARBORS" -"COAST WATERS."
In Admiralty. Libel for damages. Oraig,. Shoudy & Putnam, for a. Stewart Davison, for claimant. BROWN, J. Towards evening on the twenty-fifth September, 1887, the yachts Chessie E. and Non Pareille came in collision along the westerly edge of the channel in the lower bay, about half way between Fort Wadsworth and Hoffman island. The yachts were both sailing up the bay, close-hauled on the port tack, heading for Fort Wadsworth, or a little to the eastward of it. The wind was light from the north-west, and all were making only about three knots an hour. The Chessie E. was a small sloop-rigged yacht, drawing only from 12 to 18 inches of water. The Non Pareille,was much larger, yawl-rigged, drew III feet, and could be and was kept about half' a point nearer the wind than the Chessie E. The Chessie E. had left Huguenot, near Prince's bay, on Staten island, and after standing over towards the Long island shore had put about and run across the channel of the bay into the shoal water towards the Staten island shore. In doing so, she had crossed some distance ahead of the course of the Non Pareille, which had shortly before come down from New York, and had turned about in the lower bay, and was coming up a little in advance of another sister yacht, the Cythera, of the same size, and so similar in appearance as to not be distinguishable except by careful attention. The Chessie E., after reaching the shoal water on the Staten island 1
Reported by Edward G. Benedict, Esq., of the New York bar.