The Saratoga

Citation87 F. 349
PartiesTHE SARATOGA. v. THE SARATOGA. CRAIG
Decision Date29 April 1898
CourtU.S. District Court — Eastern District of New York

Charles G. Nadal, for claimant.

THOMAS District Judge.

The libelant was a longshoreman, and had been in the employ of the claimant, the New York & Cuba Mail Steamship Company, for about one year previous to September 7, 1894, coaling vessels, and during that time had coaled two, and sometimes three, vessels per week. The vessels were all similar in plan and arrangement. On the day named, he was sent, with others to coal the steamship Saratoga, lying with her starboard side abreast a dock, in the city of Brooklyn. The coal was received from a vessel lying on the port side of the steamer through the port entrance on the lower deck, and was wheeled to the bunkers, which were situated some 20 feet aft of the port entrance, and about 4 feet oft the dead hatch, which was about 8 feet square, and whose front was some 8 feet from the port entrance of the ship. In front of the dead hatch was the forward hatch, which was 13 feet square, with four subdivisions, running fore and aft, of about equal dimensions. There was a space of about 8 feet on each side of the forward hatch. Athwart the hatch and in proximity to the upper edge thereof was a skid, evenly intended to be used as a footway for persons desiring to reach the ladder. Two exists and entrances were provided for the workmen,-- one by the port on the inshore side, and one down a ladder extending from the edge of the fore hatch on the main deck to the forward edge of the forward hatch on the lower deck. On the afternoon of the accident the libelant, while it was yet daylight, went upon the ship by way of the port entrance. His special duty was trimming the coal after it had been emptied into one of the bunkers, to which it was carried by barrows, which were filled at the port entrance on the port side of the ship. There were two bunkers, one on each side of the ship. To reach the one on the starboard side, the barrow was wheeled in front of the dead hatch, and along the starboard side thereof to the bunker door; while, to reach the bunker on the port side, the barrows were wheeled along the port side of the dead hatch. The bunkers and the deck around the dead hatch were lighted as follows: Some fourteen hand lanterns were provided by the company. The men working in the bunkers took such lanterns as were necessary, and lit the same. As the bunkers filled up, and the men receded towards the bunker doors, the lanterns were brought back towards the doors. This process, repeated, finally resulted in all the lamps being placed outside the doors of the bunkers. Such of the fourteen lamps as were not used in the bunkers were placed at various points at the ports, and in such positions on or about the dead hatch as would best enable the men to go with their barrows to and from the bunkers. Some six or eight of the lanterns seem to have been distributed in this way on the evening in question. While the lighting of the lanterns used in the bunkers devolved on the men using them, the lighting of the lanterns outside was the duty of two men specially designated therefor by the foreman, who received some special consideration for the care of the lamps. It was stated by two or more of the claimant's witnesses that two lighted lanterns were placed within some five or six feet of the forward hatch, and there is some evidence that at least one of these lanterns was in such position at the time of the accident. In general, the distribution and location of the lanterns on the deck was with sole reference to the convenience of the men in taking and delivering coal at the bunkers. Between 8 and 9 o'clock the foreman ordered the men to stop work, and report at New York in the morning. The libelant and his witnesses state that the foreman also directed the lights to be put out, and that this command resulted in the extinguishment of most of the lights before the men got away. It is probable that the extinguishment of the lights was effected in this way: If a workman happened to have a light in his hand, he extinguished it upon quitting work, but the duty of putting out lanterns placed upon the deck devolved upon the two designated men. At least, it was their care to see that all lights were extinguished, if this had not been done by others. Upon receiving the order to quit work, the libelant went to the place where he had left his coat, got the same, and went to the port on the starboard side. The foreman, or one of his men, was closing this entrance, and told the libelant to go out the other way. The libelant then went towards the forward hatch, to go up the ladder to the main deck. In doing so, he fell into the hatch, and received the injuries which are the subject of this action. The libelant claims that most of the lanterns had at this time been extinguished, although one or two were still burning. In this he is confirmed by two of his fellow workmen. In any case, he and his witnesses state that it was entirely dark around the hatch, so that they could see nothing. He indicates that this darkness was so intense that he could only grope for the hatch. The claimant's witness that a bright light from the main deck fell through the hatch thereof, and lighted and revealed the open hatch in the lower deck. The fact probably is that while the lower hatch was not in total darkness, as the libelant claims, yet its condition was somewhat obscured by the scantiness or remoteness of the light, and that the place was not sufficiently lighted to make it reasonably safe for persons desiring to reach the ladder.

The decision in this case should turn upon the solution of this question: In what state of security could the libelant justly expect to find the forward hatch? Certain features of the evidence are very pronounced: (1) The libelant had complete knowledge of these hatches, their location, and the spaces about them. It was a knowledge resulting from actual use of the deck two or three times each week for a year. (2) The hatch coverings were customarily left off when the vessel was in port. The evidence in this regard is full, uncontradicted, and satisfactory. The libelant does not contradict, nor by himself, or his fellow workmen called in his behalf, give a single syllable of evidence tending to negative, such custom, so amply asserted by the evidence of several other witnesses. The libelant by not so much as a word of evidence declares himself ignorant that such was the customary condition of the hatches while the vessel was in port, or that on any occasion or at any time he ever found the hatches closed; nor does he state any fact or circumstance which to any degree whatever suggests that he had a right to expect that the hatch would be closed, from anything said or done at the time, or at any past time, or from any condition existing at this time, or in the past. There is no evidence in the case that this custom was limited to times when the ships were receiving cargo, or to the daytime, or to any particular conditions. The state of the evidence is one broad, general declaration that the custom was to leave the hatch covers off, except at such times as they were kept down to enable cargo to be passed over them.

The claimant calls attention to several decisions to the alleged effect that such open condition of the hatches is recognized by the law as one which a person working upon a ship must or may expect to find; and the proctor for the libelant does not refer to any holding whatsoever on the direct subject of open or closed hatches. A brief review of the authorities may be useful:

In The Gladiolus, 21 F. 417, it was held that where a stevedore, engaged in his usual occupation, falls through an ordinary coal-bunker hatch, used for stowing cargo, the presumption is of his negligence, rather than that of the officers of the vessel. Locke, J., in the course of his opinion, states:

'The leaving open of a common between-deck hatchway when 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 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 F. 43; Dwyer v. Steamship Co., 4 Fed. 493; The Carl, 18 F. 655; The Germania, 9 Ben. 356, Fed. Cas. No. 5,360; The Helios, 12 F. 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.'

This case was affirmed by the circuit court. 22 F. 454. It is observable, however, that it was not affirmed upon the ground that it was the custom of vessels to leave the hatches open, but the decision of the appellate court is rather that the steamship company owed no duty to the stevedore who was injured 'to look to the hatches and preparations to receive the cargo,' but that the ship, for preparations to receive cargo, and in receiving cargo, was under the control of the stevedore and his respective gangs of men. In other words, the stevedore, the employer of the injured man, had received control of the ship for the purpose of stowing the cargo, and it was his duty, if it was anybody's, to put the hatchways in a condition of safety, and to furnish light therefor.

In the Victoria, 13 F. 43, it was held that where a workman upon a vessel was injured by falling through an...

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