ROYMANN v. BROWN et al., 105 F. 250

PARDEE, Circuit Judge (after stating the facts as above). The Netherfield was a vessel about two and a half years old, which had been running for a number of consecutive voyages constantly in the Galveston trade, coming out in ballast, and carrying hack cotton and grain. On December 12,1898, she was loading cotton exclusively, and was in the hands of the charterer’s stevedore and his longshoremen, who were loading and stowing cargo. She was a well-built vessel, of the highest class at Lloyd’s.

Her No. 2 hatch was, for the convenience of the grain trade, provided with a high coaming of three feet five inches rise from the deck, made of steel, and reinforced by a half-round heading outside, and an inch and a quarter flange for receiving the ends of the hatch covers on the inside.

This hatch was divided into three chambers by two athwart-ship beams of iron, fitted with appropriate sockets with three fore and aft beams, which fitted into the ends of the hatch and into these cross beams, one being the main or strong back, running fore and aft along the middle of the hatch, and the other two being the parallel beams on each side; and these fore and aft beams were each in three parts, a part for each chamber. The following diagram is in the record: A, compartment through which Roymann fell; B, compartment used in lowering cotton.

The crew of the vessel had on the voyage out, and shortly before the vessel reached Galveston, in the business of painting and cleaning the hold, several times uncovered and recovered this hatch, and the officers examined as witnesses had been with the vessel a number of voyages. When the ship arrived at Galveston, and was turned over to the stevedore, with the hatches on, this No. 2 hatch was apparently in good condition. The covers were all good, and with clean edges. The stevedore’s gang took possession of the ship and her deck and holds, and, as customary in Galveston, removed such hatches as they desired.

They opened in this No. 2 hatch the middle compartment by taking the covers oif, and they took off the fore and aft covers Nos. 1 and 5 of compartment. A, — No. 1, to give access to the iron ladder which led down to the lower decks and the hold.

The ship lay outside of the Jamaican, a larger vessel, and received her cotton from the wharf over the Jamaican, which was higher than the Netherfield; the cotton being hoisted into No. 2 hatch by the derrick rigged on the mast, and fixed not to swing, and the cotton was dragged up frpm the wharf across stagings on the Jamaican, and then swung down towards the hatch of the Netheriield, and lowered into the hold. The stevedore controlled the operations of loading.the vessel and handling the cotton-loading appliances, hatches, and the like.

The loading operations began in the morning at 7 o’clock, and, the injury occurred at about 11 o’clock, the loading up to that time having gone on actively. The cotton was taken in slings of three hales, the entire load weighing about 1,800 pounds.

No stage or skid was placed between the top of the coaming and side of the Jamaican or rail deck of the Netherfield, but, according to the testimony of the stevedore’s men, some cotton, which is variously stated by the witnesses at from one to three bales, was placed on the deck against the coaming; hut this left a projection of from 12 to 18 inches of coaming above the cotton. The evidence is conflicting, but the preponderance establishes that the slings of cotton, after they were dragged over the Jamaican, were allowed to strike and drag with more or less force against the coaming.

The decedent, having finished a turn of work on the wharf, went aboard the ship to go below and screw cotton, and, instead of going by the deck to the head of the ladder, he stepped across upon one of the hatch covers of compartment A, three of which had been left in place, and this cover tilted, and fell with him into the hold, whereby he received injuries from which he died.

There was no difficulty in going from the deck directly over the coaming to the ladder, though there was a winch 10 inches from the forward end of the coaming of the hatch near the ladder, which had guards, and was entirely under the control of the winchmen. Whether the winch was in operation at the time is disputed. The foreman or boss who bad charge of the operations and other witnesses testified that it was not running; others insisted that it was; but it is clear that the stoppage of the' winch for the purpose of allowing a man to pass was a matter of a very short time,- -a few moments.

At the time Roymann went on the hatch covers to reach the ladder others were waiting for the winch to stop in order to go down the ladder in the usual way.

It appeared, on an examination of the hatch coaming and hatches after the fall of Roymann, that there was an indentation inwardly in the coaming at the chamber through which the loading operations were carried on, and on the side on which the fall took place, and that there was a corresponding bulge outwardly in the coamings of the forward and after chambers on the same side, and this spread in the end compartment was a natural consequence of the crushing inward in the middle compartment; and it was admitted in open court on the trial that this effect could have been produced by the striking by the cotton cargo, while being hoisted aboard, against the outside of the coaming of the middle compartment, through which the loading was going on.

In the examination which took place after the accident, it was also found that the hatch cover No. 4, in compartment A, which tipped with Roymann, was probably, through this bulging outward of the coaming there, a. trifle short of reaching its footing upon the inner flange which was placed to receive it, and which ordinarily held it up. On this state of fact, the libelant cannot .recover.

The controlling question is whether the ship Netherfield and her appliances, when turned over to the stevedore and his men to be used in loading the ship, were in good condition, and reasonably safe and proper for the purposes intended; and, under the evidence, this depends on the time when the conceded bulge in the coaming of compartments A and B took place. There is nothing to show that it was prior to the arrival of the ship in Galveston. It could not have existed without speedy discovery, as the ship’s crew had been removing and replacing the hatch covers in the business of cleaning and painting.

No cause whatever is shown for such bulging after the ship’s arrival until the cotton was taken on board. In dragging the cotton over the Jamaican, in the manner shown by the evidence, the striking of the sling loads against the coaming would naturally cause the bulge in question, and everything points to that as the cause.

If the ship and its appliances were in good order when turned over to the stevedore and his men, and thereafter they became defective, we are satisfied that it was through the faulty use of the appliances by the stevedore and his men, and certainly for this the owners of the ship cannot be held responsible before their agents had notice of the defect, and time and opportunity to repair the appliances.

The matters involved in this case seem to us to be merely questions of fact, and the law thereon is so plain that we do not feel called on to cite text-books, nor to distinguish adjudicated cases, with which the briefs on both sides are full. Nor is it necessary to consider the assignments of error in detail, nor the question — much argued — as to whether the deceased, Boymann, was guilty of contributory negligence in crossing over a loose hatch cover to reach the ladder leading to the lower deck, instead of waiting for the winch to be stopped (if it was in action), so as to go below in the usual way.

The decree of the district court in dismissing the libel is affirmed.