87 F. 534 | E.D. Pa. | 1898
The libelant was employed by John Dougherty, a contracting stevedore, to assist in loading the steamship Haxby in this port. Dougherty had contracted to load the steamship —she undertaking to furnish the winch and a member of her crew to work it, together with the necessary steam power, gear and tackle. The cargo consisted in part of staves, and while the latter were being taken on, in the usual manner, a draft or sling load was drawn up the skids to and across the hatch, striking the opposite side, spilling the load upon, and seriously injuring, the libelant- — who was working in the hold immediately below. For this injury the libelant seeks compensation from the respondent as owner of the ship, on the ground that it resulted from the negligence or incompetency of the winchman. Numerous questions have been raised and discussed; but I deem it unnecessary to consider any other than those respecting, first, the alleged negligence of the winchman, second, the charge of contributory negligence in the libelant, and third, the respondent’s liability. The testimony relating to the first of these questions is very contradictory; but a careful examination of it in the light of surrounding circumstances, has satisfied me that the winchman failed in his duty, either through carelessness or incompetency. That the draft or sling load should have been moved slowly up the skids and stopped at the hatch side, so that it could there be steadied over the opening, and lowered with safety (after warning to the men below),
Was the libelant guilty of contributory negligence? If he should not have been under the hatch at the time, he was so guilty. Inasmuch, however, as he had work to do there, and, as the evidence shows, was engaged in doing it, and was justified in expecting notice to move before drafts were swung over and lowered, he is not Mam-able for being there at the time. He was there because his employment required it; and that he believed himself safe is manifest from the fact that he was there. Alen do not voluntarily incur unnecessary risk, and if the libelant’s experience had not taught him that the situation was safe, until he should receive notice to leave, the inference is very strong that lie would not have been there. His own testimony as well as that of witnesses called by him, render it very (dear I think, that he is not blamable.
Is the respondent responsible for the injury? I believe he is. The fault, whether it resulted from carelessness or incompetency, was the fault of the ship, in operating its winch and tackle; for which she would have been answerable, if attached. The fact that she was under charter is not deemed material in view of the circumstances. The owner retained control, furnishing the officers and crew, and consequently remained liable to all the ordinarv responsibilities of such owners. Leary v. U. S., 14 Wall. 607; U. S. v. Shea, 152 U. S. 178, 14 Sup. Ct. 519; Sherlock v. Alling, 93 U. S. 99; The Terrier, 73 Fed. 265. Nor can he, I believe, escape liability on the theory that the libelant and the winchman were “fellow servants.” The subject: is a much controverted one, and the authorities are not harmonious. I believe, however, the weight of the argument: is with the libelant, and that the clear weight of authority in this country, at least, is also with him. I could not add anything of value to what has been said on the subject, and will not therefore enter upon a discussion of it. The suggestion that the ship was not obliged to assist in the loading, by furnishing its winch and a man to operate it, and that the contracting stevedore simply borrowed this assistance from the ship, which was furnished as mattér of favor merely, finds no support in the facts of the case. The stevedore contracted to load, subjéct to the agreement that the ship would thus aid him in the work, and
Whether the winchman’s failure of duty resulted from incompetency I have not found it necessary to consider. In the view I have adopted the question is unimportant.
The libel must therefore be sustained, and a decree may be entered accordingly.