THE KONGOSAN MARU, 292 F. 801

ROSS, Circuit Judge (after stating the facts as above). Damages growing out of personal injuries received by falling into the open hatchway of ships have always been of frequent occurrence, giving rise, in consequence, to a vast number of libels for recovery therefor. A very large number of such cases have been cited on behalf of the respective parties to the present cause and have received our careful consideration.

To undertake to review and distinguish them would require an opinion of great length, which we think not only unnecessary, but that it would be contrary to the example lately set by the Supreme Court, as 'well as to the request indicated in the proceedings of late annual meetings of the American Bar Association.

In so far as concerns the ship, it is enough, we think, to point out that the libel-ant was not its employee in any respect, and that the sole negligence charged against it was the alleged absence of proper lights on the ship and knowledge on the part of its officers that the hatch in question was left uncovered.

We find nothing in the evidence calling in question the proper construction and equipment of the ship at the time that the stevedoring company, of which the libelant was admittedly the employee, was engaged to discharge her cargo and fumigate and reload her, and at the time that company entered upon that service.

We understand it to be' the well-established admiralty law that, unless some contractual relation existed between the vessel and the person injured, or that there was some failure on its part to perform some maritime duty or obligation, resulting in the injury complained of, neither the vessel nor its owners are in any wise liable for injuries sustained by an employee of a stevedoring or other independent contracting company in the work of coaling or discharging such vessel; and that the libelant so understood the law is indicated by the allegation contained in his libel that, as an employee of the stevedoring company, he was obliged to take his orders from the foreman in charge of the work, and undertook the work in question under the directions of such foreman.

Turning to the record, we find the testimony, both of the superintendent of the stevedoring company and of the boss of its coaling gang, to the effect that the coaling of the ship was entirely in the hands of the stevedoring company.

The witness John Allbin, who was the boss of the coaling gang on the occasion in question, testified that he had been working for this stevedoring company at Seattle for 15 years, that the coal was expected to be brought in a barge alongside the ship about 4 o’clock Saturday afternoon of October 16, 1920, and described the rigging by which the coal was to be taken from the barge (in this instance on the port side of the ship), by means of a crane and clam shell and dumped into a chute which passed over the deck of the ship, supported by a horse, and thus dumped into the coal hatches; that, due to delay by reason of a storm, the coal did not actually reach the ship until the next afternoon, Sunday, at 6:30, at which hour the coaling of the ship was begun, but that he and his coaling gang took the covers from the coal hatches Saturday night and lashed them to the side of the boat, so that everything would be ready when the coal arrived.

It did arrive, as has been said, Sunday at 6:30 p. m., when the, coaling was commenced; but, finding that the wet condition of the coal required a higher pitch of the chute, and being unable, on account of the lateness of the hour, to get additional men in order to raise the chute, the work was obliged to be discontinued for the night — it having been expected, when commencing, to complete the coaling by midnight of Sunday.

It is true that the record shows that the captain and at least one other officer of the ship knew, when the captain went ashore at 6 o’clock Sunday evening, that the coal hatches were uncovered; but what of it? The coaling had then been commenced, and was in the actual charge of the coaling crew of the stevedoring company. They had taken the covers off the coal hatches, as was necessary, and had stood and fastened them against the rail of the ship. They cast, it appears, a shadow over coal hatch 3, but otherwise, it clearly appears from the evidence, the ship was well lighted.

We agree with, the court below that the libelant had full opportunity to see that the covers of the coal hatches were off, as he was on that part of the ship in question during both the afternoon and evening of Sunday in pursuance of his work for the stevedoring company, and himself went ashore about 4 o’clock in the afternoon of Sunday by means of the ladder extending from the ship to the dock, and returned in the same way in the evening, when he and Maher went aboard to remove the covers from the main hatches, and must have known that the coal hatches were open and their covers fastened to the rail, only 18 or 20 inches from the hatches, and he must have known and seen that along the deckhouse was an open passageway, about 7 feet 2 inches wide, by which he could go to the ladder from the ship to the dock.

It is not pretended that there was any shadow across that passageway, or anything to impede the libelant’s passage along it. Nevertheless he chose to take a short cut across the deck of the ship, and most unfortunately walked into the open hole, with the distressing results that have been stated. We are unable to hold that the ship or its officers were in any respect culpable.

The court below, however, held that, when it was ascertained Sunday evening that it was necessary to suspend the coaling operations until the next day, the duty thereupon devolved upon the stevedoring company to put the covers on those hatches, and, applying the safe place doctrine to the situation, held that company liable for-such neglect. It is obvious that, being a corporation, the company could only replace the covers through its employees, each of whom was a fellow servant of the others engaged in the general undertaking of discharging, coaling, and reloading the ship.

That such stevedores are now as clearly identified with maritime affairs as the mariners themselves, and, consequently, governed by the maritime law, was distinctly adjudged by the Supreme Court in the carefully considered case of Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 34 Sup. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157. We need not, however, decide whether the safe place doctrine or the fellow servant rule should apply to the present case, for the reason that we are of the opinion that there was no negligence committed in leaving the covers off the coal hatches at the time in question.

It is undisputed that the coaling of the ship was commenced by the stevedoring company at 6:30 in the afternoon of Sunday, and that, finding that the wet condition of the coal required a higher pitch of the' chute through which it was being passed, and being unable, on account of the lateness of the hour, to get additional men in order to raise the chute, it became necessary to discontinue the work for the night, during which interval the libelant carelessly, as the court below rightly found from the evidence, walked into open hatch No. 3.

The rule properly applicable to the case is, we think, well stated in the case of Dwyer v. National Steamship Co. (C. C.) 4 Fed. 493, which ruling has been many times approved in subsequent federal cases. In that case Judge Benedict said: “Hatchways are well-known features and sources of danger on a ship. They are intended to be open a large portion of the time, especially when in port, not only for the purposes of loading and unloading cargo, but also for ventilation. An open hatchway on a ship, when provided with the usual coamings, is not evidence of a neglect of duty on the part of the shipowner.

On the contrary, a shipowner has the right to allow the hatchways of his ship to remain uncovered and unprotected, except by the usual coamings; and all persons moving upon the decks of a ship are chargeable with notice of the probable presence of open hatchways on the deck. Neither is it the duty of the shipowner to maintain a guard stationed at the hatchway of his ship for the purpose of protecting persons from injury by falling into it.

Such a duty would be burdensome in the extreme, and is not required by the law. * * * The requirement would be unreasonable, has never been observed in practice, nor, so far as I know, declared in any adjudicated case.” Among the numerous cases approving that rule is that of Horne v. George H. Hammond Co., 71 Fed. 314, 18 C. C.

A. 54, where Judge Putnam, delivering the opinion of the Circuit Court of Appeals of the First Circuit, stated the facts thus: “The plaintiff’s intestate for whose injuries this suit was brought, was a stevedore having general charge of loading the ocean steamer Virginian, at Boston, with a general cargo, and working several gangs day and night. The injury occurred about half past 10 o’clock in the evening of January 24, 1887. The ship had three decks — the main or spar deck, next below it the steerage deck, and below that the orlop.

At the time of the injury, and during the whole evening, one of his gangs was, and had been, working on the steerage deck receiving cargo through the hatchway in the spar deck upon the hatch in the steerage deck, which was being used as a landing place. Their work, however, was on the forward port

section of the hatch, from which point they were running the cargo forward. Expecting at any time cargo for the hold, they had left the hatchway in the orlop deck open. The defendant corporation had control of a space on the orlop deck for shipping meats, and! the right to visit it for refrigerating purposes. The hatchway on the steerage deck was about 20 feet long and 10 feet wide, divided longitudinally by the strong-back, from which there extended each way to the hatch coamings sections of hatch' coverings about 5 feet long and 2% feet wide. While the stevedores were at supper, the defendant’s employees took off the after-starboard

section or leaf of this hatch, and went below for icing the meats. About half past 7, while these employees were still below, the stevedores returned, and resumed work between the spar and steerage decks on the forward port side of the hatch. As to what lights they had there is no evidence in the ease, except that one of the plaintiff’s witnesses testified that ‘the deck of the steamer was lighted by lamps, candles.’ About half past 8 the defendant's employees, having finished their work, extinguished whatever light they had, and came up through the leaf or

section of the hatch which they had removed, without replacing it, and without warning the deceased. The employee who last came up was called as a witness by plaintiff. He did not state why he did not replace the leaf, and was not even asked the reason; but whether there was enough in the case to enable a jury to find that the omission to replace it was without occasion we need not determine. The deceased was between-decks at the hatch during the evening, hurrying up his men; but whether or not he knew the leaf was off remains a matter of conjecture.

About half past 10, as told by the only witness who claims to have seen him, he came down the ladder, which was close to the port edge of the strong-back, ‘and turned right off with his foot on the starboard, and went right down in the hold.’ We have stated all the essential facts favorable to the plaintiff which the evidence proved or tended to prove and also those favorable to the defendant which were not denied, or must be accepted as undeniable.

The case went to a jury, which, under the direction of the court, returned a verdict for the defendant.” The court, in affirming the judgment of the Circuit Court, said, among other things: “Coming, now, to the only question before us, the issue is not so broad as to touch upon the duties and responsibilities connected with a ship’s hatchways at all times or towards all persons, but only while the ship is underemployment, or is in some state with relation thereto, and towards stevedores, mariners, and perhaps others commonly found aboard in connection with her service.

These duties and responsibilities undoubtedly involve mixed questions of law and fact; but with reference to the ordinary class of cases of which this is clearly one, the questions both of law and fact have eom.e so often before the courts that they have settled into a well-known practical rule, which the courts will not allow juries to disregard.

While, therefore, the issue is not wholly one of law, yet if this case had been submitted to the jury without a peremptory instruction, and the jury had found against the rule, the court would properly have set aside the verdict; and it is now thoroughly settled in the federal courts that under such circumstances the court should instruct the jury peremptorily.” In The Gladiolus (D. C.) 21 Fed. 417, where a stevedore engaged in his usual occupation fell through an ordinary coal hunker hatch used for storing cargo, the presumption was that his fall was due to his own negligence.

The court said; “The leaving open a common between-deck hatchway while the vessel is lying in port, under ordinary circumstances, is not presumptive evidence of negligence on the part of the ship. This is not only shown to be the custom by the testimony in this case,' but it has been so frequently commented upon in decisions as to be too well settled to be questioned. The Victoria, 13 Fed. 43; Dwyer v. Nat. Steamship Co., 4 Fed. 493; The Carl, 18 Fed. 655; The Germania, 9 Ben. 356; The Helios, 12 Fed. 732.

While the falling through an open hatchway by a stranger, a landsman, visitor, or passenger on board a vessel might not be presumptive of negligence on his part, where such accident occurs to a seaman or stevedore, who is accustomed to hatches, their presence, necessity, uses, character, and location, the case is different, and unless the circumstances of the particular case are such as to rebut it, the first presumption is of his negligence.” In The Jersey City (D. C.) 46 Fed. 134, the libelant was a stevedore employed by charterers of a part of the ship to help put up a refrigerator in the hold.

On leaving his work about midnight, he fell -down the hatchway, and libeled the vessel for injuries thereby received, claiming fault in that the hatch was not covered and lights maintained about the opening. The court said; “The evidence shows that it is not customary on shipboard to cover the hatches between decks while the vessel is in port until her cargo is loaded. The way to the between-decks was by a ladder that ran from the forward side of the upper hatchway perpendicularly down to the coamings of the forward side of the hatch below.

The ladder was in the middle of that side, and about five feet from each corner. Stevedores were at work upon the cargo during the day, and had been going up and down by the same ladder into the hold below, so that that part of the hatch which was at the foot of the ladder was kept uncovered, in accordance with the usual practice. The only proper way of going to the ladder was from the deck immediately in front of the hatch.

The libelant testifies that at midnight, on quitting, work, he went to the side of the hatch near where he had been working, raised his foot to step upon covers which he supposed to be there, and at the same time reached forward for the ladder, but fell down the hatch, because no cover was there to step on. He says also that it was dark because the lights were extinguished, as had been ordered. From other testimony, however, including some of the libelant’s own witnesses, it is quite certain that there had been no covers at the foot of the ladder at any time during the day.

The libelant when he came down at noon, when ho went up at 6 o’clock for supper, and when he came down to work again at 7 p. m., must have seen and known that there were no covers there. To repeated inquiries of the court, he would not say that at either of these three times he had stepped upon any covers in going down or going up the ladder; and it is plain that he had not.

One of his own witnesses also testified that, instead of stepping in from the side of the hatch, he stepped upon the corner, and, as the ladder was five feet from the comer of the hatch, it is incredible that he should have stepped up from the side of the hatch where he was working, and at the same time reached out his hands for the ladder. Each of the workmen during the evening had been supplied with one or two candles. When the libelant fell, only a part of the candles had been extinguished, and one was burning within six feet of the hatch.

From these facts it is evident that the libelant’s fall was owing to his own negligence alone. He knew perfectly the proper means of access to the ladder, and that there were no covers at the foot, and that he could properly approach the ladder in only one way, viz. the way he had gone three times. At midnight he was among the first to start to go up. It is likely that in his haste he stepped upon the corner and rashly intended to walk upon the coamings to the ladder, instead of keeping on deck. Whether this be so or not, there was no fault in the ship towards him.” In The Saratoga, 94 Fed. 221, 36 C. C.

A. 208, the libelant was one of a gang of men engaged in coaling the steamer while she lay at the pier, and sued for personal injuries sustained by him in falling through one of the open hatches. In holding that he was not entitled to recover, the Circuit Court of Appeals said, among other things: “The District Judge held that the hatch coverings were customarily left off when the vessel was in port.

The evidence in support of that proposition is, as he expresses it, ‘full, uncontradieted, and satisfactory.’ Indeed, it should take but little proof at this late day to satisfy a court of admiralty, sitting in this port, that, when a vessel is lying here between trips, one cargo discharged and the next not yet stowed, it is usual to have her between-deck hatches off, day and night, to sweeten the hold. With the knowledge of this condition of things the libelant must be held charged.

Passengers, visitors, or workmen from shore unaccustomed to the regulation of the ship’s internal economy who are invited by the owner, either expressly or by implication, to wander about in the vicinity of such hatches, may hold tho owner responsible for results; but so far as the crew, and the regular gangs of workmen from shore, who are familiar with the location and regulation of the hatches, are concerned, their knowledge of the situation and their continuance at work, are held to be conclusive evidence that, as to the particular danger of which they were thus advised, they took their risk.

This has been held so many times that it is unnecessary to cite authorities.” The Louisiana, 74 Fed. 748, 21 C. C. A. 60, was a libel by a stevedore (Harty) for damages sustained by him in falling down an unguarded hatchway. The Circuit Court of Appeals of the Fifth Circuit, after detailing the facts, in holding that the accident was due to his ■ own negligence, said, among other things: “Mr.

Harty’s ease is very similar to that of the libelant in Re Sir Garnet Wolseley, 41 Fed. 890, where a night watchman undertook to sit down upon a hatch on the main deck, assuming the hatch cover to be on, and without looking to see whether the cover was on or not, and fell backward into the hold. In this case so experienced an admiralty jurist as Judge Benedict held that there was no right to recover, and the libel was dismissed. In the-case of The Jersey City, 46 Fed. 134, decided by Judge Brown in the District Court for the Southern District of New Tork, the libelant like Harty was a stevedore.

On leaving his work he fell down the hatchway, and claimed that the hatch was not covered, and that lights were not maintained about the opening. The evidence showed that it was not customary to cover the hatchway until the cargo was in, and the open hatchway was known to libelant. The libel was dismissed upon the ground that the libelant’s fall was due to his own negligence. In this case the libelant fell at midnight. Mr. Harty fell in the daytime.

It is, moreover, apparent that the duty of covering and uncovering the hatchway whenever that was necessary, rested upon the squad of laborers who happened to be working between-decks, and they were fellow servants of Harty. Murphy v. Rubber Co. (Mass.) 34 N. E. 268. Therefore, in any event, he could not recover.

If it be, as insisted, that this squad was under the control of the foreman Marigny, still the rule would be applicable, for Marigny was an underforeman — a third foreman, as he is called — and is to be treated as the fellow servant of the laborer.” The decree is reversed, with costs to the appellant and against the cross-appellants.