THE CONDE WIFREDO. SMITH v. THE CONDE WIFREDO, 77 F. 324

McCORMICK, Circuit Judge. The appellant, Noah Smith, libeled the steamship Conde Wifredo in a cause of (orí and damage, civil and maritime, claiming- $10,000. for injuries received while engaged on hoard in the service of the steamship, loading cargo, alleging that (he injuries were caused by the negligence of the officers and servan!s of (he vessel. The. injuries were received May 22, 1894. 'Flit' libel was exhibited October 21,1895. The vessel was seized, and duly released to the owners on claim and bond.

The claimants excepted to the libel, and pleaded; fl) That it set forth no cause; of action against the vessel; (2) that it presented no cause of action justifying procedure in rein under the admiralty and maritime jurisdiction of the district court.; (3) that the cause of action is stale, and is barred by the lapse of time.

The judge, on considering these exceptions, made an order that the exceptions he maintained and the libel dismissed, unless, within five days, the libelant file an amendment “stating, under oath, the reason why he failed to bring, an action in personam before the expiration of the time [one year! fixed by the stale law for the limitation of such an action as the present one.” An amended libel was filed, and, on exceptions to it. (he district court; referred the matter (o a commissioner to take testimony; which being done, and the cause coining on for hearing on the exceptions to the amended libel, it was decreed that the exceptions be sustained, and that the libel and amended libel be-dismissed. on (he ground of staleness of claim.

We do not concur in this view of the case. The ship is a foreign vessel. Her owners are all aliens, and reside in Europe, and were not in the district or within rea,eh of the process of the court from the time the injury was received until the libel was exhibited.

The claim is not one that will support attachment under ihe laws in Louisiana.' It could not'justify the libeling of any other ship of the owners, even if the appellant had known or was charged with knowledge of what persons were the owners of the Wifredo, aud that these persons were also the owners of other ships entering the port :of New 'Orleans monthly during the 17 months that elapsed from the infliction of the injury to the exhibiting of the libel.

If it be conceded that the owners had other vessels in the port of New Orleans, and also had an agent in the same port during the year following the libelant’s injuries, so that libelant could have proseéuíeS a libel in personam, securing service through the agent or by attachment of other vessels, still the libelant cannot be charged with laches for not proceeding in personam, because thereby he would have been compelled to waive his lien, and rély upon a general judgment against foreign owners.

The vessel had been for two years before May 22, 1894, making regular round trips between New Orleans and various European ports, on an average time of three or four months to each trip. A few days after the date of appeh lant’s injury, the vessel sailed, and was not again in the port of IsTew Orleans, or in any other port of the United States, until one or two days before the exhibition of the libel. No change of ownership' divesting or even affecting liens in the meantime supervened.

Thé'appellant had promptly taken advice of a lawyer of reputation, and had kept' constant watch for the vessel’s return, and for an opportunity to prosecute his claim; and, if his cause of action is otherwise good, we are clear that his demand is not stale, nor lost-by lapse' of time.

The evidence taken and brought up is confined to the issue of stale claim, but wé know from the custom of trade, and from what incidentally appears in the evidence, that independent stevedore contractors :were loading cargo into the steamship, and it also appears from the evidence that the firm of Brown & Jones or Brown & Sons were coaling her.

The allegations of the libel are that appellant was engaged in the service of the ship, on board, in the work of loading the vessel; that while he was engaged in the hold of the ship, load-' ing it, the mate, captain, or other officer in authority carelessly- and negligently rigged a gangway right over the, combing of the hatch, for the purpose of wheeling coal, and coaling the vessel;that the 'hatch was left open, unguarded and unprotected, and the captaih, mate, or other officers in authority, and having the management of the ship, and of her loading and coaling, caused wheelers to', wheel coal over the gangway, and over-the open hatch, where libelant, was below, in the hold, stowing the cargo, when sudden'Iy'and without warning a large lump of coal fell on him, causing a, sever fracture of his skull.

These allegations are not suffi-cient to charge the ship. It must appear by direct allegation that the libelant was in the employment of the ship, and that the ship furnished and put to use a gangway that was not reasonably safe, and that the injury occurred by reason, partly, of the defective and dangerous appliance furnished for use by the ship. No argumentafite conclusion of law or of fact drawn by the pleader’s mind from the general duties of the ship’s officers, and the fact that she was then receiving cargo and' coal, is sufficient' to charge her with liability for ibis injury.

If this dangerous appliance was in fact put in by the coalers for their use in coaling, the ship would not' be bound. The libelant must therefore show that the ship undertook, to furnish, and did furnish, the gangway appliance, and place it in such situation and order that it was not reasonably safe for the use to which it was to be, and was, put. Therefore, unless the libelant can and does so amend as to charge the ship in the manner just indicated, Ms libel must be dismissed, on the first ground of exception taken by the claimant.

The decree appealed from is reversed, and the case is remanded to the district court, to be proceeded with in accordance with the views expressed in this opinion; each party to pay the costs in this court.