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Commentaries on the law of negligence in all relations online

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work, the place where the work was done not being obviously or neces-
sarily dangerous, and being the oidy place where the work could have
been done. 18

§4222. Liability of Ships and Shipowners to Stevedores. — The

obligation to exercise reasonable care to the end of furnishing safe
appliances for loading and unloading, extends to the protection of
stevedores engaged in that business, whether under a contract with the

8 The Harry Buschman, 33 Fed. "Geoghegan v. Atlas S. S. Co., 3

Rep. 558. Misc. (N. Y.) 224; .s. c. 51 N. Y. St.

•The Prance, 59 Fed. Rep. 479; Rep. 868; 22 N. Y. Supp. 749; s. c.

s. c. 8 C. C. A. 185; rev'g s. c. 53 aff'd, 146 N. Y. 369; 40 N. B. Rep.

Fed. Rep. 843. 507.

'• The Theresina, 2-1 Fed. Rep. 90. u Brown v. Terry, 67 App. Div.

"The Lizzie Frank, 31 Fed. Rep. (N. Y.) 223; s. c. 73 N. Y. Supp.

477. 733.


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owner of the vessel, or under a contract with the contractor who has
undertaken to load or unload the ship. 14 But the limit of this obliga-
tion and liability is measured by reasonable care. It does not extend
so far as to make the vessel-owner liable for the breaking of tackle
furnished by him for the purpose, which exhibits no apparent defect,
when the stevedore is competent, and has the exclusive appointment of
the laborers and control of the work of loading and unloading the
vessel. 15 An employer was held not liable for injury to an employ^
in the hold of a vessel by the overturning of a loaded bucket which hit
the combings of the hatch, where the appliance was safe if properly
used, it was a common occurrence for the bucket to turn out its load
if it hit anything, and on reaching the combings it was pulled sidewise
by another employe, to be dumped on the dock, and there was no other
showing of negligence. 16 Where, according to the usual custom, the
owner or charterer of a vessel— or as the expression would be in the
admiralty law, the vessel itself — furnishes the tackle, rigging and ap-
pliances to be used in loading and unloading her, then the owner or
charterer is bound to exercise that reasonable care already described, 17
to the end that such tackle, rigging and appliance shall be reasonably
safe for the purposes intended ; and, although the loading and unload-
ing of the vessel is committed to a master stevedore, who may bo
regarded, in a sense, as an independent contractor, 18 yet the vessel-
owner and the vessel itself will, in case of an injury to such master
stevedore or his servant, through a failure to exercise reasonable care
in this regard, stand under the same liability under which a master
rests for failing to exercise due care to the end that the machinery.,
appliances, etc., which he puts into the hands of his servants are reason-
ably safe for the purposes intended. It follows that an action in rem
will lie for damages happening to the stevedore or his servants from
defects and imperfections in such appliances so furnished, Whenever,
under analogous conditions, a servant could recover m against his
master. 19 The vessel-owner must, it is held, take care to keep his ship

M Hannigan v. Union Warehouse the trysail tackle would not render

Co., 3 App. Div. (N. T.) 618; s. c. the owners liable for the death of a

38 N. Y. Supp. 272; 73 N. Y. St. stevedore, caused by the breaking

Rep. 753. of such tackle and the falling of

" The Dago, 31 Fed. Rep. 574. the chute, the mate having no better

Where a ship was not bound to fur- means than others for judging of

nish tackle to hold up a chute used its safety: Jeffries v. DeHart, 96

by contractors in loading the vessel Fed. Rep. 494.
with grain, and that used was "McDonough v. Walsh, 49 N. Y.

rigged up by the stevedores em- St. Rep. 361; s. c. 21 N. Y. Supp.

ployed by the contractors, by un- 303; 66 Hun (N. Y.) 633 (mem.).
fastening the down-haul of the try- "Ante, §§ 3986, 3989.
sail and attaching it to the chute, "Vol. I, § 635.
the mere fact that the mate in "Steel v. McNeil, 8 C. C. A. 512;

charge did not object to the use of s. c. 60 Fed. Rep. 105; The Para, 56

VOL. 4 THOMP. NEG.— 26 401

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4 Thomp. Neg.] duties and liabilities of the Faster.

in such condition that the loading appliances may be reasonably used
without danger of catching on obstructions so as to endanger a gang-
way-man. 20 If he suffers a heavy iron bucket used in unloading salt,
equipped with iron wheels and lowered and raised by machinery and
operated by an engineer, to become insecurely attached by reason of a
defective pin on which the bucket turns, so that it falls upon the hand
of an employ^, the master will in like manner be liable for the dam-
ages. 21

§ 4223. liability of Ship or Shipowner to Servant of Stevedore for
Injuries from Defective Appliances Used in Loading and Unloading.

— And, although a master stevedore has charge of the loading and un-
loading of the vessel which furnishes the tackle, and one of his men
is injured by its breaking, in consequence of the failure of the ship-
owner or charterer to exercise reasonable care in its inspection and
repair, and the foreman of the stevedore calls the attention of the
mate of the ship to its defective character, 22 the vessel will be liable
for the damages. The doctrine of one court is, that if the master
exercises reasonable care in furnishing suitable appliances, and then
commits to a competent servant the duty of keeping them in order,
this servant is a fellow servant with any servant who may be injured
through a failure of such duty, so as to exonerate the master, under a
rule hereafter considered. 28 Applying this principle, the same court
has held that where a corporation, engaged in the business of moving "
cargoes by means of lighters and hoisting-apparatus, has furnished
suitable ropes and appliances, and put a competent man in charge of
them, he is not liable for an injury sustained by a workman, from the
parting of a rope defective from wear, which defect was known to the
man in charge, whose duty it was to replace it. 24 A learned admiralty
judge has also denied the operation of the rule first above stated, on
the ground that the owner of the vessel is not in privity of contract
with the servants of the stevedore with whom he makes a contract for
the loading or unloading of his ship. 25 But this conclusion is un-
sound in principle and out of line with the general course of authority.
The shipowner furnishes the appliances for the very purpose of their

Fed. Rep. 241; The Persiam Mon- "Post, ft 4934; Killea v. Faxon,

arch, 49 Fed. Rep. 669; The Truro, 125 Mass. 485. See also, Colton v.

31 Fed. Rep. 158; The Carolina, 30 Richards, 123 Mass. 484; Kelley v.

Fed. Rep. 199. Norcross, 121 Mass. 508.

"The Anchorla, 113 Fed. Rep. M Johnson v. Boston Tow Boat

982. Co., 135 Mass. 209; s. c. 46 Am. Rep.

"Morton v. Zwierzykowski, 192 458.

111. 328; s. c. 61 N. B. Rep. 413; "The Aalesund, 9 Ben. (U. S.)

aff'g s. c. 91 111. App. 462. 203. •

"The Phoenix, 34 Fed. Rep. 760.


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being used by the servants of the stevedore. This brings the case
within the doctrine of Lang ridge v. Levy, 29 and if there is not, under #
that doctrine, an implied warranty of the fitness of the appliances for
the purposes intended, there is at least an implied warranty that the
shipowner furnishing them has exercised reasonable care for the pur-
pose of seeing that they are fit.

§ 4224. Circumstances under which the Ship or Shipowner has
been Exonerated from Liability for Injuries Arising from its Appli-
ances for Loading or Unloading. — Outside of these principles, the
vessel has been exonerated where the hoisting-tackle was new, sound,
large enough and apparently fit for the purpose intended, but never-
theless gave way after several days' use through the parting of a rope
in consequence of a sudden jerk ; 2T where the stevedore was injured in
consequence of the breaking of a hook through a latent defect; not dis-
coverable by an ordinarily careful inspection ; 28 where the injury arose
from the giving way of a chock in the hands of an experienced steve-
dore, such as was constantly used in the business, no previous accident
having resulted from its use ; 29 where the appliances furnished by the
vessel were put to a use by the injured stevedore and his co-employes
for which they were not intended, all the requisite appliances for the
particular purpose having been furnished them; 30 where the injury
happened through the manner in which the stevedores adjusted the
appliances furnished them, and not from any defect in the appliances
themselves, — as where one of them was killed in consequence of tlieir
failure to lay the usual planks about the platform or "stool" on which
they stood in their work of rolling merchandise into the hold of the
vessel, it being customary for the servants to lay such planks and it
not being the primary duty of the master. 81 On a principle already
considered, 82 it is not actionable negligence on the part of a ship-
owner to keep in use a winch which has been used with safety for
several years, although it may require more care to operate it safely
than is required in the case of some more modern machines,— espe-
cially when the machine and the care required in using it are well
known to the injured employe. 88

"Murph. 6 H. 134; s. c. 2 Mee. 6 analogous facts: Butler v. Town-

W. 519; Horn 6 H. 325; 4 Mee. 6 send, 126 N. T. 105; s. c. 36 N. T.

W. 337. St. Rep. 508; 26 N. E. Rep. 1017;

"The Dago, 31 Fed. Rep. 574. rev'g s. c. 32 N. Y. St. Rep. 1055; 10

" The Benbrack, 33 Fed. Rep. 687. N. Y. Supp. 809.

•McCampbell v. Cunard S. S. Co., "Hogan v. Smith, 125 N. Y. 774;

36 N. Y. St Rep. 852; s. c. 13 N. Y. s c. 35 N. Y. St. Rep. 870; 26 N. B.

Supp. 288. Rep. 742. See also, ante, § 3954.

"The Persian Monarch, 55 Fed. "Ante, § 3996.

Rep. 333. Similarly as to the liabil- "The Serapis, 51 Fed. Rep. 91;

ity of the owners of a dock-yard on s. c. 8 U. S. App. 49; rev'g s. c. 49


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4 Thomp. Neg.] duties and liabilities op the master.

§ 4225. Liability of Stevedore for Injuries to his Servant in Con-
sequence of Using Defective Appliances Belonging to the Ship. — A

stevedore contracting to load a ship and for such purpose using appli-
ances belonging to the ship, is charged with the duty toward his own
employe of exercising reasonable care to the end that such appliances
are safe. 34

§4226. Liability of Warehousemen, Owners of Shipyards, etc.,
for the Safety of Appliances Used in Loading and Unloading Ships. —
A warehouse company owes to the employes of one engaged with it in
removing the cargo of a ship directly to its warehouse for their mutual
advantage, the same duty of supplying safe implements for their use
that it owes its own employ6s. 85 An iron hook fastened by the owner
of a shipyard to a wharf, to hold a. pulley through which passed a rope
used in the work of unloading, running from the ship to a steam-
winch on the wharf, is regarded as an appliance used in the business,
so as to make the owner of the yard liable to his employes for the exer-
cise of reasonable care in maintaining it in a safe condition. 80 And
where a warehouse company is negligent in furnishing slings for un-
loading a ship which are unfit for the purpose intended and which are
unable to carry the weight put upon them, it is liable to an employe
of a master stevedore for an injury resulting from the breaking of
such a sling. 87

§4227. Obstructions on a Deck. — Where a deck-hand on a tug-
boat was injured by stepping on a siphon-pipe which another deck-
hand had carelessly left lying on the deck, — it being the duty of the

Fed. Rep. 393. Plaintiff was a long- App.), 69 S. W. Rep. 203 (no off.

shoreman employed by defendant rep.); s. c. rev'd on other grounds,

stevedores, and was Injured by the 96 Tex. 99; 70 S. W. Rep. 950.

breaking of a rope used by defend- "Hannigan v. Union Warehouse

ants to hoist barrels on board ship. Co., 3 App. Div. (N. Y.) 618; s. c.

Great care was taken by defendants 73 N. Y. St. Rep. 753; 38 N. Y. Supp.

in procuring good ropes. The rope 272.

which broke had been tested before "Olsen v. Starin, 43 App. Div.

it was put in use, and the load when (N. Y.) 422; s. c. 60 N. Y. Supp.

it broke was small compared to the 134 (but the evidence, tending to

ordinary carrying power of such show that the hook straightened out

a rope. The cause of the breaking only under an extraordinary strain,

of the rope was not known, but it due to an accident, was held not to

had been used but a short time com- be sufficient to go to the jury on the

pared with the time such rope could question of the sufficiency of the

ordinarily be used with safety book).

This was held to show freedom "Hannigan v. Union Warehouse

from negligence as a matter of law. Co., 3 App. Div. (N. Y.) 618; s. c.

Kelly v. Hogan, 37 Misc. (N. Y.) 38 N. Y. Supp. 272; 73 N. Y. St. Rep.

761; s. c. 76 N. Y. Supp. 913. 753.
"Young v. Hahn (Tex. Civ.


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deck-hands to keep the deck clear, — the negligence was in a mere de-
tail of the business, for which the owner of the boat was not re-
sponsible. 88

§4228. Defective Gang-Planks, Staging, etc. — A shipowner will
not be liable to an employ^ for an injury through a defect in a gang-
plank caused by the metal strip at the end of the plank wearing loose
and projecting above the surface of the plank, where the defect is
plainly visible and of such a nature that it could have been readily
repaired, and where the shipowner kept for use at the pier an extra
gang-plank which was in good condition. 89 Where the use of staging
or connecting planks in transferring cotton from a barge to a river
steamboat was neither customary nor practical, the failure to furnish
such staging was not negligence ; and there could be no recovery for
the death of a steamboat-hand caused by falling overboard from such
a cause. 40

§4229. Dangerous Defects in Ladders, Hatches, Scuttles, etc. —
Defects of this nature have been a frequent source of injuries to em-
ployes of the owners of vessels, and to stevedores and their employes.
The question of the negligence of the owner of a vessel has been held
to be for the jury where the evidence tended to show that it did not
appear that the owner of a vessel had, by any regulation, require*!
those in charge of it to advise an inexperienced workman, temporarily
engaged in loading it, that lanterns and materials to cover the hatch-
ways had been provided, and the workman was injured by falling

"Direct Nav. Co. v. Anderson, 29 standing on it. The plank was

Tex. Civ. App. 65; s. c. 69 S. W. sound and had been used for a long

Rep. 174. time. Jambs were prepared to re-

"• O'Connor v. Pennsylvania R. ceive it where it generally stayed,

Co, 48 App. Div. (N. Y.) 244; s. c. and when it stayed in them it could

62 N. Y. Supp. 723. not slip; and there was no proof

*» Red River Line v. Smith, 99 that the plank would not have been
Fed. Rep. 520; s. c. 39 C. C. A. 620. a proper and safe appliance for the
A complaint In an action for negli- purpose for which it was used, if
gently causing the death of plain- properly stayed at the ends. It was
tiff's intestate while in defendant's held that a nonsuit was properly
service as fireman on a steamboat granted, since the evidence was in-
alleged that defendant failed to pro- sufficient to sustain a finding that
vide a safe and suitable gang-plank defendant was negligent; it tending
over the hold of the boat for the rather to show that the accident
use of employes, in that the plank happened through the misuse by de-
in use was made of unsound ma- ceased of a proper appliance : Meek-
terial, and not fastened at its ends ins v. Norfolk &c. R. Co., 127 N. C.
in jambs, to prevent slipping. The 29; s. c. 37 S. E. Rep. 77 (Douglas,
evidence showed that deceased had J., dissenting on the ground that a
put the plank out, i. e., away from nonsuit seems to him a "judicial
the jambs, to reach for something, lynching"),
and that it slipped while he was


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4 Thomp. Neg.] duties and liabilities op the master.

through an open and unlighted hatchway on the lower deck ; 41 where
the injury was alleged to have been produced by a defective ladder
leading into the hold of a ship, and the evidence tended to show that
one of the rounds of the ladder was missing, and that a fellow servant
of the plaintiff, while attempting to descend the ladder, fell, and to
save himself jumped against a bale of cotton, which thereupon fell
through the hatchway and struck the plaintiff, breaking his leg; 42 and
where the owner of a ship or his representative suffered an open
hatchway in a passageway leading to the coal-bunkers to remain un-
lighted, although in use, on a dark night while the ship was coaling,
although he had furnished lanterns to two of the servants who were
specially designated to look after them and who were paid extra com-
pensation therefor, but no care being used to see that they were prop-
erly placed and lighted. 48

§4230. Defective or Insufficient Hopes. — In a case in admiralty
the libellant, a seaman, who had just signed and reported for duty on
board the steamer, fell and was injured by reason of the breaking of a
rope which he was directed by the mate in charge to use to support him
while washing down the mast. The rope had been in use for a num-
ber of voyages as a staysail halyard, and had been in a position where
it was exposed to injury from heat and smoke, but during the preced-
ing voyage had been subjected to no strain to test its strength, the

tt Tully v. New York Ac. S. S. Co.,
10 App. Div. (N. Y.) 463; 8. c. 42
N. Y. Supp. 29; s. c. aff'd, 162 N. Y.
614 (mem.); 57 N. E. Rep. 1127.

tt Burns v. Ocean S. S. Co., 84 Ga.
709; s. c. 11 S. E. Rep. 493.

"The Saratoga, 87 Fed. Rep. 349.
But it was held that there was no
evidence of negligence to charge
the owner of the vessel under the
following circumstances: — Where it
appeared that the stevedore stepped
on the cover of a scuttle in the deck
and it tilted and he fell through;
that the scuttle, with its cover, was
a proper one of a kind in common
use, and that the accident was prob-
ably due to a temporary misplace-
ment of the cover due to a cause
not shown in the evidence: The
Theresina, 31 Fed. Rep. 90. Where
it appeared that the employe of a
master stevedore who was loading a
vessel under a contract was injured
by stepping into a small hatch in
the hold which had been uncovered
by the foreman of the stevedore:
The William F. Babcock, 31 Fed.


Rep. 418. Where a stevedore was
Injured in consequence of taking
hold of a batten which had been In-
securely nailed across the top of a
ladder to replace a broken rung:
The Truro, 31 Fed. Rep. 158 (re-
covery limited to loss of wages —
no damages given for pain and suf-
fering). It has been held that a
steamship company is not liable to
an experienced coal-passer in its em-
ploye for Injuries sustained while
working in the coal-bunker, by be-
ing struck with a proper portable
ladder, securable at the top by
hooked ends, on which he had de-
scended and with whose use he was
familiar, whether the fall of the
ladder was due to Insecure fasten-
ing or was caused by the pitching
or rolling of the ship, or the sliding
and sinking of the coal; since the
fastening of the ladder was a detail
of the work, and the other risks
named were assumed by him: Bal-
leng v. New York Ac. S. S. Co., 28
Misc. (N. Y.) 238; s. c. 58 N. Y.
Supp. 1074.

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staysail not having been set during the voyage, though during such voy-
age the rope had been exposed more than usually to heat and smoke, on
account of the direction of the wind. It was held that, in failing to
test it before directing its use, the mate was guilty of negligence for
which the vessel was liable. 44

§4231. Defective Appliances for Navigation. — The owner of a
schooner, owes to one employed to perform such service on the vessel
as the captain may call upon him to perform, the duty of supplying
a good reefing-pennant, so as to render him liable for injuries caused
by the breaking of the pennant white the employ^ is pulling on it
while assisting in reefing the mainsail in the proper manner. 45

§4232. Injuries from Defective Eyebolts. — The use of an eye-
bolt, apparently sufficient, but in reality insufficient solely because of
a latent defect, entails no liability for a resulting injury. 46

"The Ethelred, 96 Fed. Rep. 446.
In a case which deserves less com-
mendation it appeared that the
plaintiff was employed by the de-
fendants, who were contracting
wharf and bridge builders, to work
on their pile-driver in constructing
a certain pier. The defendants had
purchased the tiles from T, who had
agreed to bring them to the place
In his own vessel, and deliver them
over the side. While the plaintiff
was on T's boat, assisting in un-
loading the piles under direction
of defendant's foreman, a short, guy-
rope, part of the tackle of the ves-
sel, broke, allowing the boom to
swing around, and tighten another
rope attached to it, which threw the
plaintiff into the hold of the vessel,
injuring him. It was held that
plaintiff was not entitled to re-
cover, as no duty rested on de-
fendant in regard to the appliances
on T's vessel: Hughes v. Leonard,
199 Pa. St 123; s. c. 48 Atl. Rep.
862. The fallacy of this decision lies
in the fact that when the defendant
set his servant at work with the ap-
pliances upon T's vessel, he did as-
sume a duty In favor of his servant
with respect to such appliances: a
principle which is constantly illus-
trated with respect to the liability
of a railway company to its em-
ployes for defects in "foreign cars":
Post, § 4373, et seq.

*Silveira v. Iverson, 125 Cal.

266; s. c. 57 Pac. Rep. 996. In an ac-
tion for wrongfully causing the
death of a steam-boat hand, by or-
dering him and eight or nine other
men to go out over the river on a
poplar plank eleven Inches wide,
three and a quarter inches thick,,
and sixteen feet long, extending
from 'the floor of a boat to the
wheel, in order to turn the wheel
over, the jury was authorized to
conclude that the poplar planfc was
not such an appliance as a man of
ordinary prudence should have pro-
vided for such a body of men under
the circumstances; the plank not
being braced in any way, and no
caution being given to the men as
to its use when they were ordered
upon it: Louisville Ac. Packet Co.
v. Samuels, 22 Ky. L. Rep. 979; s. c.
59 S. W. Rep. 3 (no off. rep.).

"The Flowergate, 31 Fed. Rep.
762 (grain-trimmer Injured by d&
fective eyebolt in deck to which a
block was attached for the purpose
of moving the vessel along the
dock). The plaintiff, who was em-
ployed as guy-tender aboard a scow,
was injured by the breaking of an
eyebolt through which led the guy-
rope used for the purpose of swing-
ing aboard a boom hung from the
mast of the scow. The bolt was
originally suitable, and, while it
had been used about a year and a
half, plaintiff had not discovered
anything wrong about it, though he


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4 Thomp. Neg.] duties and liabilities of the master.

§4233. Loading and Unloading at Night.— The fact that the
work of unloading cotton from a barge onto a steamboat engaged in
the river trade on the Mississippi was carried on after dark, and while
the boat was moving down the river, and that the mate was hurrying
up the work, does not show negligence on the part of the owners of
the steamboat; since it is the common practice and duty of the mas-
ters and crews of boats engaged in the river trade to push their em-
ployment, and, when called for, to receive, deliver, and stow freight at
night as well as in the daytime. 47

§4234. Accidents in Navigation. — Where the plaintiff, while in
a boat anchored near the route of defendant's steamer, was injured by
a collision with such steamer during a fog, defendant is not bound by
opinions expressed by an employ6 of defendant's, who could give no
authority to any one to anchor at such place, in the course of the
steamer, and on whose opinion plaintiff had no right to rely as to
whether his boat could be seen from the steamer. 48

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 59 of 165)