186 F. 156 | 2d Cir. | 1911
March 9, 1908, at noon, the four libelants while passing from the deck of the steamer Montrose to the wharf by way of a companionway ladder, were thrown into the water through the breaking of the ladder. They were longshoremen, servants of the stevedore employed to load the steamer, and the ladder was provided by the owners of the steamer for their use. It was three years old, of teakwood, about 24 feet long, with a hand rope passing through four stanchions clamped on the outer side. The sides were 1% inches thick by 6% wide, and the treads 1J4 thick by 8 inches wide. It lay fore and aft, between the side of the vessel and the wharf, and above the wharf.
After the accident, being no longer fit for its original purpose, the master cut it up to make smaller ladders, and naturally cut off the ragged ends at the break. These were kept in the ship some time, but eventually lost, and at the trial only a piece of one of the smaller ladders was produced to show the kind, size, and character of the wood. An examination of the broken parts would probably have thrown light upon the case, and the libelants contend that because of their absence all presumptions should be against the claimant as contra spoliatorem. But, regrettable as the circumstance is, we cannot regard the master asa spoliator. What he did in disposing of the remains of the ladder was entirely in accordance with good shipkeeping, and it is not strange that he was somewhat careless about the broken ends, in view of the fact that the libelants seemed to have sustained nothing more than a, ducking, and did not make claim for some months afterwards. Moreover, his testimony as to the appearance of the broken parts was very frank. A latent defect would have been a good defense to the ship; but he conceded that there was no indication of any in the wood.
As the ladder broke in the middle, we are quite satisfied that every one on it at the time must have been thrown into the water, and that there were not more than the four libelants who were in the water. The shipowner furnished the ladder for the use of the longshoremen, among others. At the time of the accident it lay alongside at an angle of between 20 and 30 degrees from the wharf, in a position allowing nearly the maximum strain at the center. The shipowner should have expected that, out of gangs of longshoremen consisting of not less than six, hurrying to and from their work, at least four might use the ladder at the same time and in close proximity to each other. As it broke on each side in the center between two treads, and it is admitted that no fault or latent defect was disclosed, the inference is that it originally was or had become insufficient for the use which the owners should reasonably have expected it would receive. The decrees are affirmed, with interest and costs.
