248 F. 21 | 9th Cir. | 1918
The appellee, a seaman on the steam'ship Colusa, as the steamship was leaving port, was directed by the chief mate to set up the deck lashings to secure a deckload of lumber. The lashings consisted of two chains, each with one end fastened to one of the sides of the ship, and brought together in the center of the deckload by means of a turnbuckle,'an appliance about five feet long, which was attached to one of the chains and had at the other end a hinged hook, in which the end of the opposite chain was inserted; the hook being prevented from opening by means of a slip link or ring, which encircled the shank of the hook and the hinged portion thereof, and was prevented from slipping off the end thereof by means of a nail, which was inserted through a hole bored through its outer end. The rod of the tumbuckle was threaded at each end, and by means of a pipe wrench it was turned for the purpose of drawing the chains tightly together, to secure the deckload to the ship. The hook had been adjusted by the boatswain, who was directing the operations, and under his direction the appellee was engaged in turning the rod, when the nail fell out of the hole, and the ring being thereby released, slipped off the hook, and the hook opened, releasing the chains, and the recoil thereof threw the appellee from the top of the lumber through an open hatchway and into the hold, whereby he sustained serious injuries.
The court below' found that the accident was due to the negligence of the boatswain in placing in the hole a nail, which might slip out, instead of a split pin, which would not, and then directing the libelant to tighten the lashings, and that the boatswain, under the circumstances, was a seaman having command within the meaning of the Act of March 4, 1915, known as the Seamen’s Law, that the negligence was not wholly that of the boatswain, because he testified that there were no pins provided, and that it was consequently necessary to use nails.
“In general, in the absence of agreement or waiver, the deposition of a witness will not he admitted when he is present and capable of being examined,” to which are cited, among'other authorities, Whitford v. Clark County, 119*23 U. S. 522, 7 Sup. Ct. 306, 30 L. Ed. 500, and Texas & P. Ry. Co. v. Watson, 112 Fed. 402, 50 C. C. A. 230.
But in 13 Cyc. 987, it is said that the preliminary proof of the absence of the witness must be made before the deposition can be used, “unless the adverse party has dispensed with the necessity of such proof by expressly or impliedly waiving it.”
In this case the deposition was taken upon a stipulation which recited that, when written up, it “may be read in evidence by either party on the trial of the cause,” and that all objections to the form of questions are waived, unless objected to at the time of taking the deposition, but that “all objections to the materiality and competency of the testimony are reserved to all parties.” This was an express waiver on the part of the appellant of its right to object to the admission of the deposition for failure to show that the witness was not within reach at the time of the trial. The reservation of a right to object to the “materiality and competency” reserved the right to object only to the materiality and competency of any item of the testimony contained in the deposition, and not to the admissibility of the deposition as a whole. “'Competent evidence is that which the very nature of the thing to be proved requires as the fit and appropriate proof in the particular case, such as the production of a writing where its contents are the subject of inquiry,” etc. 12 C. J. 235.
While counsel for the appellant on the taking the deposition expressed a desire to have Dallman present on the trial of the cause for the purpose of identifying the turnbuckle, there was no promise on the part of appellee’s counsel to produce him, and the appellant took no means, by subpoena or otherwise, to secure his presence on the trial.
Section 20 of the Seamen’s Act of March 4, 1915 provides:
“That in any suit to recover damages for any injury sustained on board vessel or in its service seamen having command shall not bo hold to be fellow servants with those under their authority.” Comp. St. 191G, § 8337a.
In Chelentis v. Luckenbach S. S. Co., 243 Fed. 536, 156 C. C. A. 234, a case in which the injury to the seaman resulted from the improvident order of an inferior officer in the course of navigation, the Circuit Court of Appeals for the Second Circuit held that section 20 of the act did not change the rule, affirmed in The Osceola, 189 U. S. 158, 23 Sup. Ct. 483, 47 L. Ed. 760, that seamen cannot recover for injuries sustained through the negligence of another member of the crew beyond the expense of their maintenance and cure; and the court in that case, while reserving the question whether the master and seamen were fellow servants, held that it made no difference whatever in respect to the liability of the shipowners for an improvident order of the master which resulted in personal injuries to the seaman. But for the purposes of the present case we need only to refer to the rule which in the Osceola Case was declared to be settled law:
“Tbat tbe vessel and ber owner are, both by English and American law, liable to an indemnity for injury received by seamen in consequence of the unseaworthiness of the ship, or of failure to supply and keep in order the proper appliances appurtenant to the ship.”
That rule, we think, is applicable here. The defect in the turnbuckle, if not obvious, was discernible by the exercise of reasonable care.
“A seaman on board ship has not -the privilege of using his own judgment, or of quitting the ship’s service if he apprehends danger, like an ordinary workman on shore. If owners cannot be held as insurers of the appliances furnished to the ship for the safety of seamen, they ought, at least, to be held to the strictest rule of diligence and care.”
So in Lafourche Packet Co. v. Henderson, 94 Fed. 871, 36 C. C. A. 519, the Circuit Court of Appeals for the Fifth Circuit held that a sea
The appellant cites the case of The Scandinavia (D. C.) 156 Fed. 403, in which it was held that the doctrine of assumption of risk is applied in admiralty as fully as in other branches of jurisprudence. Hut in that case the libelant was injured, not as a seaman at sea, but while engaged in assisting in the repair of a vessel while she lay at a wharf for repairs. There was nothing to prevent him from leaving his employment. The court said:
“If the ship, or any of its tackle and apparel, did not suit him, he was at liberty to leave at any moment. The familiar law with respect to the duty of a seaman to obey the orders of the master has no application here; for the libelant was not at sea. He was under no captain.”
The decree is affirmed.