250 F. 679 | 1st Cir. | 1918
Lead Opinion
This is a libel in personam brought by Michael Conley against the Consolidation Coastwise Company to recover damages for personal injuries which he sustained while employed as a stevedore by the A. R. Wright Company in discharging coal from the hold of barge No. 23, owned by the consolidation company. There was a trial in the District Court, and it was found that the respondent
The evidence discloses that the respondent was engaged in operating seagoing vessels upon the Atlantic Coast, one of which was barge No. 23, a coal carrier; that this vessel had a single deck and. three masts, and was about 215 feet long and 35 feet abeam. She had three sets of hatches, around all of which was built a hatch coam-ing. This coaming was stated by different witnesses as being 2; 2%, and 3 feet 10 indies high. No. 3 hatch was the after hatch, and between it and No. 2 hatch was a space or dead hatch in which the spanker-mast was stepped, and between the second and first hatches was another dead hatch in which the mainmast was stepped. Forward of No. 1 hatch was the foremast. The hatches were 36 feet long and 16 feet wide, and each hatch was divided into three bays 16 feet hy 12 feet. When at sea the hatches were closed over with hatch covers resting on beams called strongbacks. These covers were built in sections of .about 3 feet in width 'and 8 feet in length. There were three strongbacks to a bay placed lengthwise of the barge, one at the center of the hatch and one on each side thereof, about midwjay between the center and the coaming. It was the duty of the crew of the vessel to remove the hatch covers and stronghacks before docking the vessel to discharge, and to replace the same after the coal was discharged; the stevedores had nothing to do with them.
The barge on this occasion was drawn up port side to the Wright Company’s dock, the hatch covers and strongbacks had been removed, and the booms hauled offshore,’so as to clear the hatches and allow the stevedores to discharge the coal.
The libelant went to work on the morning of the day of the accident at. about half past 9. He boarded the barge opposite the third hatch and went forward, on the port side to the second hatch, where he crossed over the coal, stepped down upon the starboard side of the barge, and hung his coat on the main boom, at a point about midway between the coaming and the rail. He then went aft, on the starboard side, to hatch No. 3, where he worked until ahout 2 o’clock clearing out that hatch, with a crew of men. When the work there was finished, he came out of the hold and went forward, on the starboard side, to hatch No. 1, where he worked until a quarter of 7 at night. While he was working in the forward hatch, another crew was discharging hatch No. 2. The work in hatch No. 2 was finished about 5 o’clock. Having finished his work in the forward hatch, he came out of
The sail was furled above the boom and inclosed in a sail covering. From the underside of the boom to the hatch covers was between three and four feet, and the top of the sail covering came up to the libelant’s chin.
The hatch covers when in position on the hatch inclined slightly from the center strongback to the coaming, and when removed were placed on the port and starboard sides of the deck, near their respective hatches. The morning of the day of the accident snow fell, and toward night it became dear and cold, and the snow and slush to a greater or less extent froze on the coaming and hatch covers. After the coal was removed from hatch No. 3, the captain ordered the engineer, with two deck hands, to cover the hatch and to follow up the work as the hatches were discharged. This order was given between 3 and 4 o’clock in the afternoon. After the order was given, the engineer and the two deck hands, having placed the strongbacks on the third hatch, threw the hatch covers upon the strongbacks and the coaming, beginning on the starboard side of the forward end of the hatch and working back. Having done this, they adjusted each cover in place, and then went to the port side of the hatch and threw up the hatch covers, beginning at the rear and working forward. They then adjusted the hatch covers on this side of the hatch. After the second hatch was discharged, they began covering it, beginning forward, on the starboard side, and working back in the same manner as before described. Having completed this work, they threw up the covers on the port side. There was evidence that some of the covers on the port side of No. 2 hatch were placed in position, but how many was not clearly shown. There was also evidence that the crew of the barge either left their work for supper without having attempted to place in position some of the covers, or, if they had undertaken to so place them, failed to remove the ice that had frozen on the coaming and the covers so that they could be properly adjusted.
After the covers on No. 3 hatch were adjusted, and after the covers on No. 2 hatch were placed as above stated, the spanker and main booms were swung in fore and .aft over their respective hatches. Why the main boom was so swung in before the covers on the port-" side of No. 2 hatch were properly adjusted is in controversy. There was evidence that the engineer and deck hands left their work in this condition to go to supper, and there was also evidence that the work was being hurried so that the barge might be moved downstream that night by a tug that was waiting to perform this service.
It was dark at the time the accident occurred; 'there were no lights on the deck of the barge, and the lights in the hold of the first hatch, which the libelant had just left, did not light the deck. On the dock were two towers, from which were suspended either arc or incandescent lights; but at the time of the accident only one of these lights was burning.
We are also of the opinion that there is no ground for the position taken by counsel for the respondent that the libelant assumed the risk
The respondent’s contention, as has been pointed out, is that the libelant’s injury was due entirely to his own fault, and that the court below erred in not so finding and ruling. The libelant’s contention, on the other hand, is that his injury was due solely to the fault of the respondent, and consequently that the court erred in finding and ruling that he was guilty of contributory negligence and apportioning the damages.
“It is well settled, however, that an appeal in admiralty from the District Court to the Circuit Court vacates altogether the decree of the District Court, and that the case is tried de novo in the Circuit Court. * * * We do not think that the fact that the claimants did not appeal from the decree of the District Court alters the rule. When the libelants appealed, 1hoy did so in view of ihe rule, and took the risk ol’ the result of a trial of the case de novo. The whole case was opened by their appeal, as much as it would have been if both parties had appealed, or If the appeal had been taken only by the claimants.”
Since the passage of the act of 1891, the question has often arisen whether, in an admiralty suit, an appeal to the Circuit Court of Appeals opens up the whole case for a new trial, and whether it is necessary, in case one party appeals, that the other should do likewise in order to have considered a question that may have been determined against him in the court below, and it has been held that the rule applied in Irvine v. The Hesper prevailed. The question has been nowhere more carefully considered than in the Second Circuit, in the case of Munson Steamship Line v. Miramar Steamship Co., 167 Fed. 960, 93 C. C. A. 360. It has also been recently passed upon by the Supreme Court in the case of Reid v. Am. Exp. Co., 241 U. S. 544, 36 Sup. Ct. 712, where it was said:
“At the threshold It Is insisted that the court below [the Circuit Court of Appeals] had no authority to consider the case as before it for a new trial— that is, de novo — and to award relief upon that theory, and that consequently*684 it erred in reviewing the interlocutory decree, wlrich. was not appealed from, by which the steamship company was dismissed, and allowing a recovery against that company, and also in reviewing both the interlocutory and final decrees so far as it was essential to grant relief to the express company, because that company had not appealed. It is not denied that in the Second Circuit the right to a de novo trial was considered as settled by Munson S. S. Line v. Miramar S. S. Co., Limited, 167 Fed. 960 [93 C. C. A, 360], and that a well-established practice to that 'effect obtained; but it is insisted that a general review of the adjudged cases on the subject will show the want of foundation for the rule and practice. But we think this contention is plainly without merit, and that the right to a de novo trial in the court below authoritatively resulted from the ruling in Irvine v. The Hesper, 122 XI. S. 256 [7 Sup. Ct. 1177, 30 L. Ed. 1175] — a conclusion which is plainly demonstrated by the opinion in that case, and the authorities there cited, and the long-continued practice which has obtained since that case was decided, and •the full and convincing review of the authorities on the subject, contained in the opinion in the Miramar Case. Entertaining this view, we do not stop to consider the various arguments which are here pressed upon our attention, tending at least indirectly, to establish the nonexistence of the right to the trial de novo in the court below, or that this case, for reasons which are wholly unsubstantial, may be distinguished and made an exception to the general rule, because to do so would serve no useful purpose and would be, at least impliedly, to admit that there was room to discuss a qnestion concerning which there was no room for discussion whatever.”
See, also, Gilchrist v. Chicago Ins. Co., 104 Fed. 566, 44 C. C. A. 43, and The Nyack, 199 Fed. 383, 118 C. C. A. 67. In this circuit the decision in The Philadelphian, 60 Fed. 423, 9 C. C. A. 54, lends recognition to the rule that an appeal in admiralty gives a right to a trial de novo, and lays down rules for the transmission of evidence taken in the court below to the court of appeals, and the circumstances under which further proof, may be taken in that court. See Rule 14, pars. 6, 7, 8, 9, and 10 (150 Fed. xxxix, 79 C. C. A. xxxix).
The case is remanded to the District Court, with directions to enter judgment for the libelant for $1,812.75, with interest and costs.
Dissenting Opinion
(dissenting). I am unable to concur in so much of the opinion of tire court as holds the libelant not chargeable with negligence contributing to his injuries. Not being satisfied that the District Court’s finding upon this question was erroneous, I think the decree dividing the damages should have been affirmed.