Steel v. McNeil

60 F. 105 | 5th Cir. | 1894

LOCKE, District Judge,

(after stating the facts.) The law is too well established to require argument that a vessel is bound to furnish rigging and appliances reasonably safe for the use of those employed in receiving or discharging her cargo, although they may be in the immediate employ and pay of the stevedore, and that an action in rem will lie for damages arising from defects and imperfections in such appliances furnished, whenever the defect was such that a careful examination at the time could have detected it. The Carolina, 30 Fed. 199; The Rheola, 19 Fed. 926; The William Branfoot, 48 Fed. 914; The Protos, Id. 919; The Serapis, 49 Fed. 393.

In this case, it is not disputed that the shackle which finally gave way was furnished by the steamship, and was put in its place, and fitted and prepared for use, by its crew; but it is claimed in defense that it was in good condition when furnished and delivered to the stevedore’s gang, and that it was through their neglect that it was permitted to give way. It is also claimed that the manner of rigging the hoisting apparatus as insisted upon by the stevedore brought an unusual strain upon the shackle, that caused it to give way, and that on account of such arrangement the course of the block which struck the libelant was changed from what it would have been, so that he was injured, when otherwise he would not have been, even had the shackle parted with a different manner of rigging. The testimony as to whether the usual hoisting rigging of the ship was in place upon her arrival, and so tendered to the stevedore, is conflicting; the officers of the ship stating that it was, but some of them modifying their statements by saying that it generally was rigged before coming into port, or was usually so, while the stevedore’s men deny that the rigging was up, but declare the derrick boom wTas resting upon the stand. But we do not consider this an important question in the case. It is clearly shown that the manner of rigging was at the request of the stevedore, and was insisted upon by his men. It appears that the second mate protested against the change, but, when told that they would go to the captain and get an order to have it done, he yielded. We do not consider that the stevedore and those working under him assume the risk of any imperfect or faulty appliance which was furnished by the ship because arranged in a peculiar manner insisted upon by him, when such manner is not unreasonable, nor requiring unusual and extraordinary strength of material. It is strongly contended that, had not this manner of rigging been adopted, this disaster would not have occurred; and with equal force may it be urged that it would nob have occurred, had hand or horse power been used for hoisting, instead of steam. But that cannot, we consider, relieve the vessel from the responsibility of furnishing reasonably good and sufficient means to perform the work. The testimony is. that the rigging tendered by the ship was a chain and- iron blocks, heavy, and capable- of hoisting from three to four tons. The cargo to be discharged demanded no greater strength at any time than sufficient to hoist about 800 pounds. The stevedore said that he wanted a lighter rigging, and we do not consider it unreasonable for him to endeavor to avoid-, if possible, the swinging of the heavy derrick and chain rigging back and forth by hand, and unnecessarily using the chain hoisting fall in the hold. In regard to the condition of the shackle when furnished by the ship, it is in testimony that its appearance was. such before they went to work that it attracted the; attention of one of the stevedore’s men, — the derrick man in charge of the hatch, — who spoke to the mate about it, and complained that the bolt of the shackle did not go through, but that the mate examined it, and said that it was all right, — to go ahead, - — and that after they had been at work he again remarked that it looked as if the bolt was drawing out, but that the mate again assured him that it was all right. There is nothing to deny or ¡contradict these statements, although the mate says -that he saw the shackle properly screwed in; and, in the light of future occurrences, we must consider that there was at that time some defect, which, although not enough to justify one in refusing to work, should have been recognized, had a more careful scrutiny, and been corrected.

From the testimony in the case, and the appearance of the shackle as presented, it is plain- that there was a defect in the threads of the screw of the shackle bolt, which permitted it to work loose, and that the strain upon the bolt when the end had escaped from the socket was sufficient to twist it into its present sfiape. It is impossible for us to arrive at any other conclusion, from an examination of it. Nor do we consider that there was any extraordinary, unusual, or unreasonable strain brought to bear upon- t]ie shackle by the manner of rigging insisted upon by the stevedore, which in any way contributed to the negligence which cáused the damage. The shackle is shown to have been capable, in its perfect condition, of sustaining certainly many times as niuch weight as was put upon it at any time during this service. The only additional strain that could have been caused by using it with three blocks, instead of two, was the increased friction of the extra leading block, and the variation of the direction of the strain from directly aft was but a few degrees to the starboard, as is plainly shown in the photograph in evidence. Neither of fíjese conditions, it is believed, could have been sufficient to cause the pin to work out, with the strain that was upon it, had it been securely and completely screwed into its place. If it were screwed in,' as is stated .in the testimony, with a marline spike, the subsequent events conclusively show, we consider, that there must have been at. thát time some obstacle which prevented its being screwed w.ell home, it should have been.

Questions of fact, in admiralty, cannot, at all times, be determined beyond a possibility of doubt; but in this case we consider*, by a careful examination of the shaclde and the photographs of the hoisting gear, as presented, and the entire testimony in the case, that the probabilities, beyond a reasonable doubt, are that the spread of the shaclde was so great, either on account of the thickness of the eye on the mast hoop to which the shackle was made fast, or some other cause, that the pin was insufficient in length for its thread to hold firmly in the socket, where it was intended. In the photograph presented, the shackle bolt distinctly appears, projecting some distance beyond the socket in which it is firmly held. Had there been such a bolt to this shackle, we are confident no disaster would have happened. It is contended that there was a jerking motion caused by the third block which tended to loosen the pin of the shackle. The entire force of the hoisting gear came from the winch, and such force producing the strain could have heen no more irregular, uneven, or jerking with three blocks than with the two. The maimer of rigging appears to be, under the circumstances found in this case, one usual and customary in this port, and a more rapid and economical way of discharging cargoes; and we find no ground for considering it unreasonable, or requiring extraordinary or unusual strength in the appliances used. No disaster resulted from the same manner of rigging at any of the other hatches, nor would there have been here, had not the pin withdrawn from the socket into which it should have heen more securely fastened. The testimony shows that at first there was an appearance of an insufficient security of the holt; and its final coming out, and permitting the escape of. the block, shows that such appearance was not -without foundation. Whether or not the block would have struck the winchman, had the appliances given way with some different manner of arrangement, we do not consider has any weight in this case. The shackle was furnished, fitted, and arranged by the ship, and, after a small amount of ordinary service, gave way. There was no latent or hidden defect, or sudden and unforeseen breaking, as of a rope or hook apparently sound, strong, and sufficient; and the prima facie case made for the libelant we do not consider has heen at all overcome or explained away by the evidence for appellant. It is certain that, had there heen no defect in the shackle in question, or in the manner of its being made fast, the damage which we are considering would not have been caused. In furnishing such defective appliance, or so insecurely fastening it, there must have heen such negligence as should make the vessel liable.

We have examined and considered the testimony as to the former and present condition of (he libelant, his ability to earn a livelihood previous to the injury and since, and do not consider the damages allowed by the court below unreasonable nor excessive. But it appears that for a long time after filing the lib el there was no prosecution of the suit, taking of testimony, or seeking for a trial, and we do not consider that interest should be computed until tbe decree. The judgment below should be so far amended as to allow interest from the final decree in the court below, rather than from the date of judicial demand; and in all other things the judgment of the court below should be affirmed, with eosts herein, and it is so ordered.