2 F. 241 | E.D.N.Y | 1880
This action is brought to recover damages for personal injuries caused by the falling of a mass of dunnage and plank upon the libellant while he was engaged in trimming the cargo of the bark Kate Cann, in the harbor of New York, on the twenty-first day of November, 1878.
The facts are as follows: The bark Kate Cann was an English vessel, under a charter to receive and transport a cargo of grain. The grain was being put into the vessel from an elevator in the Atlantic dock. The libellant was one of several persons who had agreed to trim the grain as it came into the hold from the elevator spout for so much a bushel,
The evidence leaves no room to contend that the libellant is in any degree responsible for the falling of the dunnage upon him. He had nothing to do with the stowing of it, nor is there any evidence of his having interfered with it after it was stowed; nor was its fall occasioned by any act of his. The braces supporting the dunnage had been put up by the second mate of the vessel, some 10 days before the accident, for the purpose of stowing the dunnage behind them, and the dunnage was piled upon them by the second mate and two of the crew. Six of these racks were put up at the same time and filled with dunnage. This method of stowing dunnage in the between-decks, in order to have it out of the way until needed for use, is not unusual. On the morning of the day on which the accident occurred two heavy planks were taken by the crew from the main deck of the vessel, and placed in that one of the racks which subsequently fell upon the libellant.
There is no evidence that the libellant had knowledge of this increase of the weight resting upon the braces under which he seated himself, nor did anything occur to call the libellant’s attention to this dunnage; and there is no evidence to lead to the conclusion that any person interfered with it between the time of placing the plank upon it, at about 9 a. m.,
From the moment of the addition of the plank the mass in its then position was a dangerous structure, erected in a place where men were required to be, and calculated at any moment to inflict great bodily harm.
Whether upon these facts the libellant is entitled to the relief he seeks by this proceeding is the question now to be determined. The jurisdiction of a court of admiralty to condemn a ship to pay damages arising from the neglect of the owner or master of a ship to discharge a maritime duty arising upon navigable waters cannot be deemed open to question. There are many adjudged cases in which it has been said, in respect to torts, that the - jurisdiction arises from the locality alone.
“The jurisdiction of courts of admiralty, in matters of contract, depends upon the nature and character of the contract, but in torts it depends entirely upon locality. If the wrongs be committed on the high seas, or within the ebb and flow of the tide, it has never been disputed that they come within the jurisdiction of that court.” Phila., W. & B. R. Co. v. Phila. & Havre de Grace 8. Tow-boat Co. 23 How. 215; S. B. Co. v. Chase, 16 Wall. 53.
It is almost a daily occurrence in these courts, not only to entertain jurisdiction, but to charge the ship with damages suffered by other ships because of neglect on the part of the crew properly to navigate the offending ship. So, also, it is not an infrequent occurrence to charge an offending ship with personal injuries resulting from her improper navigation, and this when the person injured is in no way connected with the offending ship. The Washington v. The Gregory, 9 Wall. 513.
So, also, ships are charged in the admiralty for a failure of their crews to perform contracts made for the transportation and safe delivery of the cargo of the ship. In those cases the ship herself is charged because of the relation of the contract to the employment of the ship; but the liability of the ship is not confined to cases arising from faulty navigation, or out of a breach of the contract of affreightment, as was said by the learned judge who rendered the decision in the case of the Germania, so greatly relied on by the claimants. But in all these cases there is a duty on the part of the officers and crew, as representing the owner, and in the discharge of the authority entrusted to them by him, and while acting within th6 scope of such authority, not be negligent towards the person to whom the liability is incurred. The duty may arise out of the fact that the vessel is being navigated, or is anchored in the pathway of other vessels, or has a relation by contract to the person injured, in person or property, and no doubt out of other circumstances. Jennings v. Bark Germania, Blatchford, J., MSS. March 12, 1878.
Such a liability, in my opinion, exists where damage arises from the neglect on the part of the owner of a ship to discharge any duty arising on navigable waters out of the em
I proceed, therefore, to the inquiry whether the owner of this ship, who, for the purposes of this inquiry, must be held to be represented by the crew of the ship, under the rule-already stated, became charged with any duty towards the libellant in respect to the stowage of the dunnage and plank that caused the injury in question. The character and position of the dunnage and plank here become important, and it is to be noticed that the weight of the mass, and its position at the top of the between-decks, and overhanging the space where men must necessarily be at work, rendered the structure dangerous to life, unless it was properly secured» It was so arranged that, from its nature, it was dangerous to all persons who might be in that part of the between-decks. It was at all times, at least from the time of the addition of the planks to the weight resting upon the braces, equally dangerous, and necessarily so. The danger arose not from any use of the thing, but from the thing itself.
So far as the character of the structure affects the question of liability, this case seems to be within the principle of the case of Thomas v. Winchester, 6 N. Y. 397; for in this case, as in that, the death or great bodily harm of some one was the natural and almost inevitable consequence of the structure as it was at the time it fell. Such being the character of this structure, in case the mass was not properly secured, if the libellant was in the between-decks of this ship in the exercise of a right to be there, the ship-owner owed him a duty to see that the dunnage and plank were properly secured, which duty was not properly performed.
There was a relation between the ship-owner and the libellant arising, not out of the mere presence of the libellant on board the ship, but out of the service he was then engaged in performing, the necessity of that service to the ship-owner, and the circumstances of the libellant’s employment to perform that service. The libelant had, therefore, a right to be where he was; and it follows that there was a duty on the part of the owner to see to it that the dunnage and plank stowed above him were so secured as to prevent its falling upon him of its own weight. Nicholson v. The Erie R. 41 N. Y. 533.
The libellant’s case differs from the case of the Germania, to which reference has already been made. In the case of the Germania a charterer of the ship had contracted to deliver to the ship a cargo of grain in bags. The libellant was employed by the charterer to sew up the bags of grain as they were filled, and while walking over the deck of the ship fell through an open hatchway and was injured. In that case it was not necessary that the bags be sewed on board the vessel, or indeed to be sewed at all except to enable the charterer to perform his contract to deliver the grain in bags. In this case the grain could not be carried unless it was trimmed on the ship, and the libellant was injured while engaged in performing that service. This libellant was, in a very proper sense, required by the ship-owner to be in the between-decks of the
Moreover, in the case of the Germania, the injuries arose from that common and at most times necessary feature of a ship’s deck while in port, viz., an open hatch; while here the libellant was injured because of the dangerous character of a structure erected in the between-deeks, as to the nature of which the libellant had no means of informing himself, and respecting which he was informed by no one. This ease would seem to be within the rule as stated in Smith v. Dock Co. 3 L. R. C. P. 326, that persons inviting others on their premises are answerable for anything in the nature of a trap upon their grounds. It is certainly within the principle of the case of Indemaux v. Dawes, 2 L. R. C. P. 311, where a gas-fitter, having contracted to fix certain gas apparatus to the defendant’s premises, sent his workman, the plaintiff, after the apparatus had been fixed, and by appointment with the defendant, to see that it acted properly, and the workman having gone upon the defendant’s premises fell through an unfenced shaft in the floor and was injured. In that case the plaintiff was held entitled to recover because he was not a mere volunteer.
For these reasons I conclude that the damages sued for arose from the neglect of a duty owing by the ship-owner to the libellant. This neglect was the neglect of a maritime duty, and attaches to the ship herself. Not only did the neglect occur upon navigable water, but in the performance of a •service necessary to be performed to enable the ship to receive her cargo. The stowing of this dunnage was part of the ordinary duty of the ship’s crew, and in this case was done by the crew. The object of stowing the dunnage was to facilitate the taking in of the very cargo upon which the libellant was
In legal effect the blows inflicted upon the libellent were blows of the ship, and for blows given by the ship she has always been held liable; as, for instance, in cases of collision. It thus appearing that this is a case where the damage sued for was caused by the wrongful neglect, upon navigable water, of a duty owing to the libellant by the owner of this ship, and arising out of the employment of the ship, in her capacity as a carrier of cargo, I must adjudge the vessel herself to be liable for such damage, and she is accordingly condemed to pay the same. Let a reference be had to ascertain the amount of the damage.