26 F.2d 173 | 9th Cir. | 1928
Concerning the. condition of the shaekle pin and the strain under which it broke, all the testimony on behalf of the appellant, with the exception of that of one expert, was heard before the court. There was evidence that the pin had been subjected to extraordinary strain in dragging a heavy slingload of lumber, estimated by the first officer of the ship to weigh 2% tons, a distance of 180 feet across the dock. An expert witness, who had been employed in the repair department of the Emergency Eleet Corporation, testified that in his judgment the pin- was in prime condition prior to what he characterized as the enormous pressure which broke it, that otherwise it would not have distorted the eye of the pin or drawn the jaws of the shackle out of parallel. The chief engineer of the Willamette Iron & Steel Works testified! that in his opinion the pin was a good piece of metal before it broke, and that its appearance indicated a tough and live metal. On the other hand, an instructor in a local polytechnic school testified that the appearance of the pin indicated that it was crystallized, and several witnesses, who were longshoremen, or sailors, or workmen, also testified that the pin was crystallized, and some testified that there were visible defects which should have led to its rejection for further use. There was undisputed testimony of officers of the ship that all shackles were discarded after six months of use. We are of the opinion that no ground is shown for setting aside the conclusion reached by the trial court upon the testimony of the witnesses and the appearance of the shaekle pin.
Nor do we find merit in the Contention that the fact that the pin broke was in itself evidence of negligence in using the same or that this is a ease in which the rule of res ipsa loquitur may be invoked. Citation is made of The Rheola (C. C.) 19 F. 926; Steel v. McNeil (C. C. A.) 60 F. 105; The Portland (D. C.) 213 F. 699; Neptune Steam Nav. Co. v. Borkmann (C. C. A.) 118 F. 420. In the Rheola Case, a chain which was in appearance old, rusted, and worn, and which, if in proper condition, should have sustained a weight of 6 or 7 tons, broke under a weight of 1,800 pounds, shortly after a similar chain had broken under like conditions. It was held that there should have been ‘a careful and thorough test or examination before using the chain. In Steel v. McNeil, the injury was caused by the slipping of the pin from the eye of a shackle because of defects which had been noticed and pointed out to the mate by one of the longshoremen. In Neptune Steam Nav. Co. v. Borkmann, the fact that a piece of wire rope furnished by the ship for the stevedores broke under a weight only one-tenth of that which it should have supported if in good condition was held to be evidence that it was not in good condition. In The Portland, Judge Wolverton held the steamship liable by reason of the breaking of a’rope sling which had become frayed, worn, and attenuated, as would have been apparent to one making an inspection thereof, and that the fact that it broke was proof positive that it was defective. In the ease at bar, the evidence was conflicting as to whether the shaekle pin should have sustained a weight as great as that which caused it to break, and there was conflict in the evidence as to whether it was defective, and as to whether, if defective, the defects were discoverable by inspection. The most than can in general be claimed for the occurrence of such an aeeident is that, while it may tend to prove that a defect existed in the appliance whieh was used, the libelant must go farther and show that the fracture was the result of a defect, and that the claimant knew of that defect or by the exercise of reasonable care could have discovered it. Patton v. Texas & P. R. Co., 179 U. S. 658, 21 S. Ct. 275, 45 L. Ed. 361; San Juan Light Co. v. Requena, 224 U. S. 89, 98, 32 S. Ct. 399, 56 L. Ed. 680.
Under Admiralty Rule 56, which permits either the claimant or the respondent to bring in a party jointly liable to any party to the suit by way of remedy over or contribution, and provides that the suit shall proceed as if such new party had been jointly proceeded against, and requires the other parties in the suit to answer the petition and the new party to answer the libel, the owner of the vessel filed a petition against the stevedore company, praying that it be cited to answer the petition and the libel, and alleging that the accident occurred through the stevedore’s improper and negligent use of the ship’s gear. The stevedore company answered, alleging that the gear which was turned over to it by the steamship was represented to be in good condition, and was rigged by the officers and employees of the ship, that, if there was negligence in the use there
The appellant assigns error to the failure of the trial court to find that the stevedore company improperly rigged the prevent-er guy, and used an unseaworthy and defective shackle, and failed to exercise reasonable care in using said preventer guy, and negligently failed to provide the appellant with a reasonably safe place to work. The basis of the contention seems to be that the evidence showed the gear to be defective for want of preventer guys attached to the peak of the boom. The officers of the ship testified that at the request of the president of the stevedore company they installed preventer guys, one end of which was attached at the tip end of the boom, and the other to a bulwark stanchion below; each guy being a wire cable 70 or 80 feet, in length and three-fourths of an inch in diameter, and that a day or two prior to the accident the preventer guys were removed by the longshoremen. As to this there was sharp conflict in the testimony. The longshoremen, in the main, testified that there was no preventer guy on the ship when they began their work; that they applied to the ship for preventer guys, and were told that there were none; that they were given short guys of 20 feet in length, which they pieced together and used as a preventer guy running only from the block down to the deck to safeguard the tackle in the event that the ropes broke. But the fact remains that the stevedores continued to load with the gear without further complaint of its condition, and, if there was negligence in that regard, it was their own negligence. We find nothing in the record which required the trial court to make findings on the issues brought in by the petition.
Nor do we think that the appellant is in a position to assign the errors, if errors there were, which he now relies upon. He ignored the command of rule 56, and made no answer to the petition. Nor did he at any time adopt the allegations thereof or request findings thereon, or become a party to that proceeding. In New Jersey Shipbuilding & Dredging Co. v. Davis (D. C.) 291 F. 617, 619, Judge Learned Hand said: “The petition was a pleading requiring an actor and a reus just as much as though it had been a libel in the admiralty, a bill in equity, or a declaration at law.” In The Silverway (D. C.) 14 F.(2d) 154, 157, it was said: “The proceeding under rule 56 is an independent proceeding.” In disregarding the petition as he did, the appellant exercised his right to elect not to proceed against a party as to whom he made no claim, and whom the appellee had no right to substitute in its stead as the party primarily liable. Having elected to proceed in rem, he was not compellable to establish the liability in personam of a new party brought in by the claimant. The Providence (D. C.) 293 F. 595, 599.
The decree is affirmed.
