Conley v. Consolidation Coastwide Co.

• Decision Date: 01 May 1917
• Docket Number: 393.
• Citation: 242 F. 591
• Parties: CONLEY v. CONSOLIDATION COASTWISE CO.
• Court: U.S. Court of Appeals — Fourth Circuit

242 F. 591

CONLEY v. CONSOLIDATION COASTWISE CO.

No. 393.

United States District Court, D. Maryland.

May 1, 1917

Richard E. Harvey, of Portland, Me., for libelant.

Gerry L. Brooks, of Portland, Me., for libelee.

HALE District Judge.

This is a libel in personam against the owners of a barge to recover damages for personal injuries alleged to have been sustained in consequence of negligence of the master and those intrusted with her management.

The libelant was a stevedore, and at the time of the injury was in the employ of the A. R. Wright Company, and engaged, with others, in discharging coal consigned to that company, out of the hold of barge No. 23, then lying at the company's wharf, port side to the wharf, starboard side offshore. When the libelant went to work on the morning of March 16, 1916 it being bad weather, he hung his coat under the mainsail the main boom being then offshore. He worked in the hold of the barge all day, until nearly 7 o'clock in the evening when he came on deck, on the starboard side of the barge. He found the main boom had been changed over from its offshore position, and had been trimmed fore and aft. He was compelled to go across No. 2 hatch to get his coat. He started across, secured his coat, put it on, and, going under the boom, started to cross the hatch on the inshore or port side. He stepped upon the hatch covers, which had not been securely placed, and which tilted under his weight; he was thrown into the hold of the barge, a distance of some 23 feet, breaking his left leg and three ribs.

The proofs show that the duty of taking care of the hatches devolved upon the master and crew of the barge; that the custom aboard the barge was, as the various hatches were discharged, the crew of the barge followed up the work by at once replacing the hatch covers, beginning forward, on the starboard side of such hatches as had been discharged, and working aft. The process was to put the strongbacks in place, after which the hatch covers, in sections of about 3 feet in width and 8 feet in length, were pushed temporarily up on the strongbacks, in such a position that the outer end extended some 8 inches beyond the outer edge of the hatch coaming, after which two men fitted them into their places by the use of hooks, completing one side of the hatch before anything was done on the other side. The proofs show that, on the day of the injury, Nos. 2 and 3 hatches had been fully discharged, and the hatch covers on the starboard side of these hatches had been replaced and securely fitted by Lewis, the engineman, with two deck hands, who had then proceeded to cover the port side of the hatches. The strongbacks had been put in place, and all of the hatch covers placed upon the strongbacks, as usual. Beginning at the after part of the port side of the hatches, part of the hatch covers had then been fitted into place; but some of them had not been so fitted. Among them were those on the forward bay of the port side of No. 2 hatch. These had not been fitted into their position, for the reason that the crew had not had sufficient time before the hour came for quitting work. There is some evidence tending to show that the presence of ice upon some of the covers made the fitting of them more difficult. Upon these hatch covers on the port side of No. 2 hatch the libelant stepped, and fell. He had climbed up on the starboard side over the hatch coaming, which was some 3 feet 10 inches high. He had gone across the starboard side of the hatch to the boom, had taken his coat, and put it on. He had then set out to go ashore, starting to cross No. 2 hatch on the port side, or inshore side, when he fell, as I have described. He said the hatches were right there in front of him, and that he did not look to see if the covers were on all right; that, in coming from the hold of the vessel, he had found the offshore side of the hatch covered; that he received no warning to indicate that the inshore side was uncovered; that no guard or lantern was there, to indicate that there was any trouble before him from the insecure placing of the hatch covers; and that he had stepped upon the inshore covers without making examination, and was injured.

The libelant alleges that he had been working on barges for the last 16 years; that he had been accustomed to find the hatches covered as soon as the coal was discharged. The proofs on the part of the barge tend to show that, while the barges were being discharged, the booms were thrown offshore; that, as soon as the hatches were discharged, the booms were swung around between the rail and the hatch coaming, so as to enable men to get the covers on the hatches; that the hatch covers were immediately put on, and the booms hauled fore and aft, over the center of the barge.

The learned proctor for the respondent urges that, so far as this libelant is concerned, the duty of the barge ended when it provided him with a reasonably safe place to work and a reasonably safe passageway to and from his work; that the barge was under no duty to keep the hatches covered for him while he was on board, or to keep the hatch covers and appliances in their proper place, or in any way to aid him in getting his coat, which he had left on the main boom; that the barge owed no duty to him, or to other independent contractors, to provide lights for their convenience, or to guard them against risk resulting from an open hatch. The respondent relies upon the line of cases in which the federal courts have said that the deck of a ship is not a highway that hatches are well-known sources of danger, and that to leave them open is not, in itself, evidence of negligence. Dwyer v. National S.S. Co. (C.C.) 4 Fed. 493; The Willowdene (D.C.) 103 F. 678; The J. W. Taylor (D.C.) 92 F. 192; The Santiago, 137 F. 323, 69 C.C.A. 653; The Saranac (D.C.) 132 F. 936; Anderson v. Scully (D.C...