Frazier v. Luckenbach , 248 F. 1011 ( 1918 )

CARR, District Judge.

The libelant claims damages for personal injuries received while engaged as a stevedore in loading a cargo of phosphate upon the steamship Ruckenbach. He had been working in one hold of the vessel trimming cargo, and was ordered to go to another hold aft, there to trim cargo. The method of loading the phosphate rock is by a pipe from the elevator into the hold of the vessel then being loaded; the trimmers being below, and as the phosphate comes in it is shoveled into the wings from the pyramid formed as the material comes from the elevator. In passing from the hold where he had been working to the hold to which he was ordered, he went along the upper between-decks and fell before reaching the hatch to-which he was going, into the hold, and was injured.

The libel alleges that the deck plates at the place where libelant fell were taken up, leaving open spaces, through one of which lie fell, and further that the officers of the ship had negligently failed to place lights to warn any one of such open spaces. The proofs show without contradiction that the owners had chartered the vessel to independent shippers for a monthly payment; that the cost of operation (except wages, etc., of the crew), the expense of loading, etc.., were to he paid by the charterers; that ihe libelant was employed by the head stevedore, who had a contract with the charterers to load said vessel; that the crew of the steamer took no part in said loading; that it wa« the duty of the head stevedore to inspect the cargo holds, and see if they were in fit condition to be loaded, and to furnish, and did furnish, lanterns to be used to light the trimmers in their labor; that thick dust arose from the phosphate while coming into the hold, which made it impossible to see, further .than a foot.

[1] Upon these facts there is no conflict. While there is conflict as to the nature of the between-decks, the overwhelming weight of the testimony shows the following facts: The Ruckenbach was_what is known as an open between-decks ship, no permanent deck having been laid upon the beams extending athwartship, with spaces between about 4 feet 6 inches; that it was beiween these beams that libelant fell while passing from one hold to the other.

Under this state of. facts, is the libelant entitled to recover from the owners of the ship? I think not. As I understand the law, the owners are not responsible under such circumstances, except for negligent acts of the master or crew of the chartered ship in navigating the vess.el, or some duty necessary to be performed by them to enable the vessel to receive or carry her cargo safely. Here the vessel was at the elevator receiving cargo. 'Che construction of open between-decks ships is recognized as proper construction, and materially aids in trimming such cargo as phospha e rock, expediting the work of the trimmers in shoveling the rock ineo the wings of the vessel and filling all the spaces, and to that extern; adds to the safety in carrying the cargo.

[2] So far as the allegation of want of light, it has been said that no obligation rests upon the shipowner to provide lights at an open hatch while in port; nor does the duty rest upon the shipowner to light that portion of between-decks constructed as was this vessel.

I am of opinion, therefore, that the libelant cannot recover, and the libel will be dismissed. It wilJ be so ordered.