DALLAS, Circuit Judge.
This was a suit in admiralty, in which a libel in personam was filed against M. J. De Hart, owner of the steamship Henrietta H., by the widow and children of Thomas Jeffries, to recover damages for his death, which resulted from an accident that occurred on that vessel while he was at work as a stevedore. The fact that the accident happened on hoard a ship is, however, of no significance. The same principles apply as would have been applicable if it had happened upon the land and recovery had been sought in a common-law action. The necessary condition of the defendant’s liability is that he owed to Jeffries a duty of care, in violation whereof he negligently committed or omitted some act, and thereby proximately caused the fatal catastrophe. Bragdon v. Perkins-Campbell Co., 30 C. C. A. 568, 87 F. 109" court="3rd Cir." date_filed="1898-04-13" href="https://app.midpage.ai/document/bragdon-v-perkins-campbell-co-8861991?utm_source=webapp" opinion_id="8861991">87 Fed. 109. Jeffries was not employed by De Hart nor by any one representing him, but by the G. P. Cronise Company, the master stevedores, who were loading the ship under an agreement in writing which contained this provision: “The ship to furnish all necessary steam, slings, and rope for falls. All other gear to be furnished by the G. P. Cronise Company.” It *766may be assuified that this provision imposed upon the owner of the ship the duty to exercise reasonable care to assure the safety of any appliances which in pursuance thereof he might actually specify or point out for use in doing the work; but the evidence has convinced us, as it did the court below, that the gear which broke and permitted the chute to fall upon or against Jeffries was not selected by De Hart, or by any person acting- on his behalf, but by the stevedores themselves, who in choosing this particular tackle relied upon their own judgment as to its fitness, and who, in using it' as they did, were not pursuing the contract with the owner, but were acting independently of it, and therefore upon their own responsibility. All that the mate of the vessel, or any other agent of De Hart, really did, was to passively permit the workmen of the Oronise Company to employ such part of the vessel’s tackle as they saw proper, instead of furnishing the gear which, under the agreement, the ship might have been required to furnish; but of this departure from the terms of the contract Jeffries could not have complained, for he was neither a party norprivy to it. Consequently, whatever duty of care was owing to him was, under the circumstances, due by his employer, the Oronise Company, and not by the ship or its owner. If the appliances were negligently selected, those who made the selection were at fault, and not the defendant in error, who neither by himself nor by any agent of his or of the ship participated in that selection, or was under any obligation to Jeffries to direct or control it. We do not think that any part of the answer can properly be said to be inc.onsistent with our understanding of the facts. It admits that the chute was supported by certain tackle, ropes, and gear, which belonged to,, and were part of the outfit of, the steamship, but avers “that they were selected and chosen for the purpose by the stevedores loading the vessel, out of a large amount of other suitable tackle, ropes, and gear,- which were on board, and available for use by said stevedores in loading.” This averment is, in our opinion, precisely accordant with the proof; and the subsequent allegation which has been pressed upon our attention does not, when fairly considered, appear to present the matter differently. The general statement is, again, that “the stevedores who undertook the loading assumed full charge and control of the loading of said vessel, and all her gear, rope, and tackle”; and we do not perceive that this, is in any way materially modified by the immediately following state-' ment that the stevedores “signified to the officers of the ship what tackle, rope, and gear they required, and were furnished with the rope, tackle, and gear which they requested.” The reasonable and natural meaning of this language as a whole, and as related to the context, is simply that the stevedores selected the gear they required, and that their request that they might be permitted to use it was acceded to; and this, we think, is the very truth of the matter.
Our conclusions of fact are founded solely upon the record before us, and therefore the motion which was made upon the argument, to strike out certain matter contained in an appendix to the appellee’s brief, need not be considered. The decree of the district court (96 F. 494" court="E.D. Pa." date_filed="1899-09-11" href="https://app.midpage.ai/document/jeffries-v-de-hart-8866286?utm_source=webapp" opinion_id="8866286">96 Fed. 494) is affirmed.