THE STUDENT, 243 F. 807

KNAPP, Circuit Judge. The case in brief is this: On June 2, 1916, in the port of Baltimore, the Terminal Shipping Company, an independent contractor, was engaged in loading the steamship Student with a cargo of copper plates. The plates were piled in slings, which were hoisted aboard by means of a fall and tackle and two of the ship’s booms, one over the side of the vessel and one over the hatch, the two falls connected therewith being attached together.

Each boom was held in place by two guys, the boom over the side of the ship having one guy leading forward and the other aft, both guys being shackled to the head of the boom and made fast, after running through two blocks to eyebolts in the ship’s rail. The lower block was secured to the eyebolt in the rail by a semicircular shackle through which a pin was inserted. The shackles and blocks and all the tackle used in hoisting the cargo belonged to and were furnished by, the ship, and the ship’s crew had rigged them up and fastened the various parts together before they were turned oyer to the contractor.

The shackle in question was rigged for use by putting the pin fi-rst through the unthreaded head of tire shackle, then through the eyebolt, and then screwing it into the threaded head of the shackle. About noon of the day named, and while the process of loading was going on, the shackle which held the aft guy suddenly gave way, in consequence of the pin coming out, with the result that the boom swung inboard, and a sling of copper was precipitated on the deck, striking the coaming of the hatch.

The sling collapsed and some of the plates fell, down upon Kreszewski, an employé of the shipping company, who was at work in the hold, inflicting injuries from which he died about a month later. A few days after the accident he filed a libel against the vessel and the Terminal Shipping Company, to which answers were made by both respondents. In September following, upon suggestion of the death of Kreszewski, the suit was continued by his administratrix, and a second suit brought by libel in personam by the state of Maryland to the use of Mattie Kreszewski et al. The cases were consolidated and tried together.

The trial court dismissed the libel as against the Terminal Company, held the ship solely liable for the accident, and awarded damages in the sum of $5,000. The case turns on a question of fact which lies within narrow compass. That the accident was caused by the pin coming out of the shackle seems to be conceded on all sides. Why or how it came out is the point in controversy. The amended libel charges that the pin was defective and unsuitable, in that the screw-head which entered the threaded end of the shackle was so worn and rusty as to be liable to work out under normal use.

On the other hand, the ship stoutly maintains that the pin was in good and serviceable condition, that it had been screwed in tightly by the boatswain with the aid of a marlin spike, and that it must have been tampered with by some one after the gear was turned over to the contractor. The claim that it had been tampered with may be dismissed at once as a mere theory unsupported by any proof. The actual condition of the pin is the decisive issue. Speaking generally, it appears that all the appliances furnished by the ship were of superior quality and strength.

The testimony shows that they had been found sufficient to handle loads several times heavier than the sling of copper plates which were being put aboard when the accident happened. The testimony is also to the effect that a shackle pin in proper condition would not work loose in the two and a half days that the tackle had been in use and under the moderate strain to which it was subjected. Although this is hardly a case to which the doctrine of res ipsa loquitur applies, yet the fact that the pin did become loose gives support to the contention that it was not such a pin as the ship was bound to furnish (Reid v.

Fargo, 241 U. S. 544, 549, 36 Sup. Ct 712, 60 L. Ed. 1156); and this contention is aided, in our judgment, by the appearance of the pin itself, which was produced in court on the argument and submitted to our inspection. Whilst the body of the pin, which passed through the eye-bolt, shows little evidence of wear or yielding to strain, the screw-head is evidently somewhat worn, the threads iook dulled and lacking in sharpness, as from long use or imperfect construction, and there is some indication that it was more or less rusty when put in the shackle.

In short, it seems a screw-head which might rather easily work out of place. Nothing would be gained by a detailed review of the testimony respecting the sufficiency of this pin for the purpose required. The witnesses, expert and nonexpert alike, sharply disagree, and conflicting opinions would perhaps be formed by those who might now subject it to examination.

Taking everything into account, we are inclined to the conclusion, which was reached by the learned District Judge, that the pin in question was shown to be defective and unfit by a slight preponderance of proof; and if this conclusion be accepted, the liability of the ship follows under familiar principles of law. The case is exceedingly close, and we can only express our best judgment after careful stpdy of the record and personal observation of the shackle which caused the accident.

On the whole we think the pin unsuitable, because of its worn and defective condition, and therefore not such a pin as the ship was under obligation to provide. In support of this view, one or two observations may be added. It is admitted by the appellants that the condition of this pin could not be discovered by any examination which it was the duty of the contractor to make before accepting the tackle and putting it to use. To all appearance it was of good quality and in every way sufficient. The contractor had the right to assume that it was free from any defect that was not observable.

If it was in fact unsafe by reason of imperfection or unfitness which could not be seen after it was inserted in the shackle, the responsibility therefor rested upon the ship and not upon the contractor, because the ship was bound to furnish tackle free from defects of that character. Moreover, there were two ways at least in which the consequences of this particular defect might have been avoided. The first of these was what is called a “preventer,” which the contractor says the ship refused to supply, though request was made before the work commenced.

On behalf of the ship it is earnestly denied that any such request was made until after the accident. This question of veracity was decided by the court below in favor of the appellees, and we are not persuaded that a different conclusion should be reached; and the evidence of record indicates that no serious , results would have followed, the giving way of the shackle if a suitable preventer had been‘provided.

Another means of insuring safety would be to protect the pin from coming out by using a wire to hold it in place, or the pin might be so made as to extend bej^ond the threaded end of' the shackle far enough to permit the insertion of a cotter pin, which would keep it in position. In a word,'there appear1 to be appliances, well known and frequently used, that would presumably avoid the risk of a defect which was unobservable to the contractor, but which might readily have been seen by the ship’s crew in' putting the tackle together.

In this case such precautions were doubtless deemed by the master to be quite unnecessary, because of the unusual size and strength of its tackle; but unfortunately it turned out that there was a concealed defect, such as we are constrained to hold, and a serious accident resulted which probably would not have occurred if proper measures had been taken to guard against it. The Anglo-Patagonian, 235 Fed. 92, 148 C. C. A. 586. Affirmed.