THE JOSEPH JOHN.

471

will not criticiSe their conduct previous to the grounding of the raft on the sand spit at the entrance to Salmon Bay. It is suffi· cient to say that, when they found that they would be unable to enter until the next flood tide, they were negligent and foolish in leaving the raft unsecured except by a single line tied to an insecure and weak stake or post in the beach, and remaining absent until the next tide had come in sufficiently to float the raft. No to have person could doubt that it would M negligence for the left her tow for 10 or 12 hours, afloat in mid channel, and yet it would have been less, liatJle to have been lost or damaged than in the position in which the tug did leave this raft. I find the value of the logs which· were lost to be $814.80, and this amount, with interest at the rateof7 per cent. per annum from January 1,1897, is the amount which, with costs, will be decreed to the libelants as their damages. The evidence fails to show that the libelants were damaged by loss of profits. They did lose $7 per day for a period of 10 days, during which the mill Wag shut down, which they would be entitled to recover in addition to the value of the logs, but this damage only equals the amount of the towage bill, which should be deducted.

THE JOSEPH JOHN.

LIMITED LIABILITY CO. v. STARSTROM et at

(Circuit Court of Appeals, Fifth CircUit. No. 605.
SRIPPING-INJURY TO STEVEDORE.

Marcb 1, 1898.)

Where ,a stevedore's empl()j"6 was injured by the falling into the hold of bags of freight from the sling, and the evidence showed that the accident was due to the combined carelessness of the employes on the barge from which the freight was being taken, of other. employes of ,the stevedore, and· of a seaman employed at the winch, together with some negligence on the part of the injured persen himself, held, tl)at; the ship was not liable, eS{)eciany in the absence of any evidence of want of care by the ma$ter or owners in selecting the wInch man.

Appeal from the District Court of the United States for the Eastern District Texas. ' W. B. Lockhart, for appellant. . John D.' Fearhake and M. H. Royston, for appellees. Before PARDEE andMcCORMICK,Circuit Judges, and SWAYNE, .. District Judge. PARDEE, CircnitJudge. This is an appeal from a final decree of the di8trict rourt in favor ()f John Starstrorri, libelant, against the Limited Liability Company, claimant of the steam!3.hip Joseph John, awarding .the sajd Starstrom the sum of $1,000, with interest and costs, as damages for personal injuries suffered by him while employed

472

86 FED.ERAL REPORTEF

in receiving and stowing cargo on board the steam.ship Joseph John. The original libel propounded as follows:
"First. That 'all or about the 13th day of September, in the year 1894, this libelant was employed as a laborer by Dolson & Nelson, stevedores, on board the steamship Joseph John, for thE' purpose and in the capacity of assisting In receiving and stowing a cargo In said vessel, lind while the said vessel was lying at the port of Galveston, and that the said vessel was being loaded under the supervision and dIrection of T. S. Tullock. the master of the said steamship Joseph John. Second. That while serving In the capacity aforesaid this libelant was stationed In the hold of said vessel, .and that while so..statIoned and engaged In the discharge of his duties this libelant was, without any' fault on his part, knocked down by the falling Into said hold of certain bags, filled with cotton seed oil cake; thllt the said bags of oil cake were of great weight, and the force of the blows was so strong as to render this libelant unconscious, causing blood to t10w from his ears and eyes, and greatly bruising and lacerating his arm and leg, renderIng. the use of said arm of little or no value to him, and making him a cripple for life; that the Injury to the leg was near or at the ankle, and resulted In stralJilng the ankle to such an extent as to greatly Impede this libelant In the future use of said leg and ankle; that by reason of the severe Injuries hereinbefore set forth this libelant was confiped In the hospital for a space'of four weeks, and his capacity for el\.rning a livelihood greatly dim'inlshed.Third. This libelant alleges that the duty of loading said steamship was upon' the said T. S. Tullock, the master as 'aforesaid, and was conducted under hIs direction, and that the said master had placed in charge of the steam winch need for lowering the freight into the hold an ignorant and careless seaman, one of the crew of the said steamship, and that through the negligence and carelessness of the said seaman in allowing the sling in which the freight was hoisted from the wharf to swing over the hatchway, and strike against the side thereof, the said bags of oil cake became displaced and loosened, and fell through said hatchway upon this libelant; and that no warning was given In any manner whatsoever. Fourth. That this libelant was an able-bodied laborer' at the time of the injury aforesaid, and in that capacity was earning. the sum of four and no-100 dollars per day, and that by reason of the injury as alleged he has been unable to earn that sum or any other sum, and the suffering consequent upon the said Injury has been both a physical and mental strain, and this libelant alleges that he has consequently been damaged in the sum of six thousand dollars. Fifth. 'rhat all and singular the premises are true, and within the admiralty and maritime jurisdiction of the United States and of this honorable court."

Exceptions were filed to this libel to the effect that the same was not sufficient to entitle the libelant to recover, because the allegations therein show that the libelant and the winch man, through whose negligence and carelessness the alleged accident was caused, were fellow servants engaged in comm()n employment under the same con· trol. This exception was sustained, whereupon, on leave, an amended libel was filed in which the third article of the original libel was en· larged so as to read:
"Third. This libelant alleges that the duty of loading said steamship was upon the said T. S. Tullock, the master, as aforesaid, and was conducted under his direction, and that the said master had placed In charge of the steam winch used for lowering the freight into the hold an Ignorant, incompetent, and careless seaman, one of the crew of said steamship, and tllat the said master knew of said seaman's Incompetency, Ignorance, and carelessness, or by the exercise of ordinary care and diligence might have knoWn thereof; and your libelant bad no way of knowing and determining the Ignorance and Incompetency of the said seaman, said member: of the crew being In the employ of the master of the said vessel, receiving his pay from said master, and being at all times under the direction and control of the said master; that through the negligence and carelessness of the said seaman In allowing the sling In whlcb the freight was hoisted from

THE JOiEPH JOHN.

473

the wharf, to swing over the hatchway, and strike agaInst the side thereof, the said bags of oil cake became displaced and loosened and fell through said hatchway upon this libelant, and that no warning was given in any manner whatever,"

-But otherwise the amended libel was substantially like the original. The amended libel was answered by. exceptions of no cause of action, laches, the general issue, and the special defenses that the libelant :was injured, if at all, through the negligence of a fellow servant, and that he Wlli3 guilty of contributory negligence. There were other pleadings in the nature of exceptions, amendments, and calls in warranty and for contribution, not necessary to be set forth. The material facts of the case, briefly stated, were as follows: The steamship Joseph John was being loaded with cotton seed oil meal in the port of Galveston by charterers under a charter party which provided that charterem' stevedore was to be employed under the direction of the master. Bags of cotton seed oil cake were taken from a barge of the Houston Direct Navigation C.ompany lying alongside, hoisted in slings by means of a swinging derrick operated by a steam winch furnished by the ship. The swinging derrick was controlled by guys regulated by the stevedores' men, and the steam winch was operated by a seaman furnished by the ship. The cotton seed meal was being stowed in the afterhold, at the bottom of which, and mnning along through the middle of the hold lengthwise, and directly under the hatch, was a tunnel about six feet high and four or five feet wide, containing the propeller shaft. The manner of work was that the slings would be filled by the employes of the barge, then hoisted by means of the derrick and steam winch, and, when at a sufficient height, be swung over the hatch, when, under orders from a gangway man, employed by the stevedores, they would be lowered into the hatch, where four men-two on each side of the tunnel-were stationed to receive and stow the meal, sling loads being alternately deposited on each side of the tunnel. There was evidence tending to show that the guy regulating the swing of the derrick on the side towards the barge, and which was managed by a stevedores' man, was a little too slack, sometimes allowing the sling load to swing too far over the hatch before lowering. The libelant was one of the gang of four men employed to stow the cargo, and with one companion taking care of each alternate sling load as it Wlli3 deposited on his side of the tunnel. The work was carried on in as rapid a manner as its nature would permit, and had been so carried on for about four hours, when a sling was improperly loaded on board of the barge, the employes of the barge leaving the two parts of the sling close together instead of well separated, which load was hoisted by the machinery to .the proper height, and then swung over the hatch so far that in lowering it the load struck the combing of the hatch, and the bags, being slippery, fell out of the sling into the hold, striking the libelant. and injuring him substantially as set forth in the libel. The gangway man, as usual, called out to "stand from under," he says, several times, and the evidence tends to show that, at the time the sling load swung over, the gangway man ordered the winch man to hold the load without lowering, and probably for the purpose of letting it swing back to the middle of the hatch, though, if such orders were

474

86,FEDERA<I;·nEPortTI1JR.

given, the Finell man did not understatldthem., ,', 'The libelant admits nearing thfgangway'll;J.an'Il.w'arllin:gofthe coming !lUng load, but insists tIuit he 'gotovtof the way,and iritotne wing of the ship, as soona:ndas'far aS,he could, and that his injiii'y c,amefromthe falling meal StMkingjhe 'tlinnel, .a..ild glancing' off into the wing of the ship; but it is more likely, from the entire evidence, that, as the expected load was, in order, due to beloaded on the other side of the tunnel, the libelant did not attempt to stand from under until too late to avoid injury. The winch man. WflS not only' an able seaman, but had previously operated the winch' $uecessfuIly,and with the usual care. Ordinarily; the winch would hl:tve been operated by a direct of the stevedore, but on tbeoccas,ionin q)lestion the master of the ship furrtished the winch man" at the special request of the 'managing stevedores. The ship's appliances furnished for the business of loadiJ;lg were all properly rigged, and usually safe, and they in no wise, from any defect, conti-ibutedto the libelant's injury. , The consideration of the whole evidence leads' us to the conclusion that the libelant's injuries were, caused, by the ,carelessness of the on the barge, of the stevedores' direct on the deck of the ship, of the seaman running the winch, and of the libelant himself, all cornbined l;Uld tending to the resulting accident. Under this state of the facfs,it is difficult to see wherein the ship was in any Wise liable for, the libelant's injuries. No foresight or precaution required of the D':lllster andowners'of :t;he ship wouJd bve prevented or if the guys the accident. If the work was carried on too to the, derrick were too slack,; allowing sling loads, to ,swing too far oyer the liatch, and either contributed in any way to the accident, 'they were both matters not under, th'e control, of the master and ,owners, but directl;y under tIle ·eolitrol of the stevedores and their employes. It is contended in charge of the winch ,was negligent in,managing and operating the winch, and, if this is eonceded,-though by no means fullyproved,--",-still,as there is no evi'dence to spow that the and notuse due precaupon and III selecting hIm for the work,'and ,ashe 'was for the tIme ,being in the serVice of and under the control of the stevedores, the master andowu'ers cann(jt be .responsible for his negligence. Asa matter 'of 'fa,et, all persons employed in taking aboard, in ,'of no matter by ,wages were to' be patd: , ,If, 'however;it''$hould be friat the, loading, was being carr1etl 'on f.or and in" and: of the ship, 'then the em'ployes engaged, in'such' 'loadingwere 'indirectly of the aMp, engaged iIi"1i master's applhlnciFcunistances:that the negligence ces at the same ttme and under .orone in injury toanothe.r; 'and in!hat view of the case, assillning that theUbelantwas inNted bytbe of the winch man, it is perfectly clear that the:Winci'i mnn wa,s'a feIlowservant, ;and bisnegHgence was one ,of, tlie'risks Of the e'i'itployment assumed by theli'J:leW.nt" wheb he entered upon 'the services. ' The decree Of the districtc6urt should and the libel shOUld be dismissed. This rendered it unnecessary to pro;s ripon tbe varied qries-

all

I,A BOUflGOGNE.

47.5

tions presented with reference to the liability of the stevedores to contribute in case the ship should be condemned, and also as to libelant's right to recover in admiralty, although himself guilty of contributory negligence. The cosU! in this case have been very largely enhanced by the calls in warranty, and the libelant ought not be condemned to pay all the costs of the district conrt nor all the costs of this court. It is therefore ordered aud adjudged that the decree of the district court be reversed, and this cause l'emanded, with instructions to dismiss the libel, and that all the costs of this and the lower court be equally divided between the libelant and the claimant.

LA BOURGOGNE THE AILSA. ATLAS S. S. CO., LIm1ted, v. LA GENERALE TRANSAT· LA:NTIQUE. WHEELER v. ATLAS S. S. CO., Limited, et a1WESTERN ASSUR. CO. OF TORONTO et aI. v. SAME. (Circuit Court of Appeals, Second Circuit. April 7, 1898.) Nos. 21-23.

1.

COLLISION-FoG-ANCHORING IN CHANNEL.

Where a vessel in a dense fog anchors In New Yorlr Harbor outside of anchorage limits, and In the track of vessels seeking anchorage, and, while there, has means of knOWledge, by reason of the passing of other vessels, that sbe is in the channel, she Is In fault If another vessel, acting In a prudent manner, seeking anchorage In the customary and appropriate ground, runs Into her. Where a vessel outward bound from New York encounters a fog before reachIng the Narrows, and decides to anchor, but, Instead of anchoring above the Narrows, goes on through to find anchorage In Gravesend Bay, a natural, wide, and favorite anchorage ground (a course followed by other vessels about the same time during the same fog), and on leaving the Narrows to go to anchorage in the bay, while acting with the usual precautions, runs into another vessel anchored In the channel, she is not at fault.

2. SAME.

These three appeals are from the decrees of the district court for the Southern district of New York, which dismissed three libels against the steamship Bourgogne, for damages arising from a collision. The first libel was by the owner of the injured vessel; the second was by one of her passengers; and the third was by the insurers and owners of her cargo. The general facts iIi regard to the collision are accurately stated by Judge Brown, as follows (76 Fed. 868):
The above libels were filed to recover damages for Injuries arising from a collision between the steamships Bourgogne and Ailsa at a little after 2 o'clock In the afternoon of February 29, 1896, during a dense fog for about half a mile below the Narrows, In New York Harbor. Both steamers were outward bound. The Ailsa, 1,330 tons register, 297 feet long, had left her pier in North river about noon, and, finding thick 'fog at the Narrows, came to anchor. The Bourgogne. a much larger steamer, 475 feet long, left her pier in the North river at 1:13 p. m. The tide was Stfl!>ng ebb. She was backed out of the pier, and turned wit,h aid of tugs, and on her course downriver at 1:37.