The Howell

273 F. 513 | 2d Cir. | 1921

HOUGH, Circuit Judge

(after stating the facts as above). The only point decided below having been settled by the Knickerbocker Case, supra, appellant is entitled to a reversal, and on this new trial a decision unaffected by the Compensation Raw of this state (Consol. Raws, c. 67).

McCole and his mates were unloading cargo with the usual boom, fall, and engine-driven winch. The lighter captain fastened to a link at or near the end of the fall a shackle, and of course, in order to do this; took the pin out of the shackle, reinserted it, and testifies that he set the nut on the pin as tight as he could with hand strength. He did not do this in order to put any weight on the shackle, but to make weight at the end of the fall, so that it would “overhaul the drum.”

The fall thus rigged was used for some time, when the bolt or pin fell out of the shackle when the boom was elevated, and, falling to the deck, hit the libelant on his head, cutting the scalp, and causing the loss of a tooth. He suffered a good deal of pain, but has in our opinion completely recovered.

[1] Ribelant not being a member of the crew, no question of seaman’s right or contracts arises, under The Osceola, 189 U. S. 158, 23 Sup. Ct. 483, 47 L. Ed. 760. He must recover on principles of negligence.

[2] One of two things is certainly true — either the shackle was defective in respect of pin or nut, or both, or the master failed to tighten the nut on the pin when he fixed the shackle to the fall. If so ordinary a piece of apparatus as a shackle was defective — i. e., so loose in its fastening that it could not be set taut — the vessel is plainly liable; but there is no evidence to show that there was any such defect existing. On the other hand, the shackle remained aloft, the pin was seen to be in good condition, but the nut was never found.

We infer that the master did not properly and sufficiently tighten the nut before putting the shackle into service. This has raised the fellow servant question, a doctrine which has certainly “come to be applied to a considerable extent in the admiralty.” (Per Holmes, J., dissenting, in the Knickerbocker Case, supra. And, for this circuit, see The Gladestry, 128 Fed. 591, 63 C. C. A. 198, approved in Standard Oil v. Anderson, 212 U. S. 215, 29 Sup. Ct. 252, 53 L. Ed. 480. For a summary of cases with a dissent from the prevailing view, see 18 Harv. L. Rev. 294.)

[3] But this case is unaffected by that question; for, libelant not being a member of the crew, he was plainly not a fellow servant of the captain. It follows that libelant is entitled to recovery, and he is awarded $750, with the costs of this appeal and the costs of the court below.

The decree appealed from is reversed, and the case remanded, with directions to enter a decree in conformity with this opinion.