114 F. 402 | E.D. Pa. | 1902
This is a suit to recover damages for personal injuries suffered by the libelant while assisting to unload the steamship Turquoise in March, 1900. He was a stevedore engaged in unloading asphalt from the hold, and was hurt by the falling of a heavy iron bucket; the fall being due, as he asserts, to the negligence of one or both of the two winchmen that were helping to hoist and lower. It is unnecessary, however, to determine the correctness of this assertion, because, even if the negligence of the winch-men be assumed, it appears clearly that they were not the servants of the vessel, but were the servants either of the Barrett Manufacturing Company, the consignee of the cargo, or of the head stevedore who was employed by the company to unload. Against which of these persons the libelant should have proceeded is not now material, but the testimony makes it plain to me that the ship, at least, is not liable. It is true that the winchmen were the second mate and a seaman from the vessel’s crew, but during the night when the accident happened they were working under a special contract of hire, either for the consignee or for the head stevedore. They were paid for their services by an agent of the consignee, and for the time being were not the servants of the ship. The libelant has apparently brought his action against the wrong person, and the libel must therefore be dismissed.