Deehan v. The Bolivia

• Decision Date: 18 December 1893
• Citation: 59 F. 626
• Parties: THE BOLIVIA. [1] v. THE BOLIVIA. DEEHAN
• Court: U.S. District Court — Southern District of New York

59 F. 626

THE BOLIVIA. ^[1]

DEEHAN v. THE BOLIVIA.

United States District Court, S.D. New York.

December 18, 1893

S. B Johnson and Joseph Fettretch, for libelant.

Wing Shoudy & Putnam, for claimant.

BROWN District Judge.

At about 11 o'clock in the forenoon of March 3, 1893, the libelant, while at work in the lower hold of the steamship Bolivia, lying at the foot of East Twenty-Sixth street, and engaged in loading barrels of resin, was seriously injured by the fall of several boxes of logwood, which were at the same time being loaded, through the same hatch, upon the orlop deck, next above the hold. He was struck in the back by one or more of the boxes, and the spine so injured that the lower part of his body became paralyzed.

For the libelant it is contended, that the accident arose in consequence of the improper use of three falls or whips in the same hatch, so that the load of boxes collided with the draft of resin barrels which were descending at the same time, a little below the former; whereby some of the boxes on top were knocked off, and fell upon the libelant.

For the claimant it is contended, that the use of three whips at the same time is justifiable, being a frequent practice, where there is need of haste in loading; that the accident did not arise from the use of three whips, and that there was no collision between the two drafts; that the fall of the boxes of logwood was caused by the inattention or mistake of the man at the winch, who controlled the descent of the boxes of logwood and that the latter were allowed to strike too suddenly and too heavily upon the platform on the orlop deck, where they were landed; and that the sudden blow knocked off the upper boxes, and thus caused the accident.

The case of the libelant has been most carefully and thoroughly presented by his counsel, and I have given it the careful consideration which the painful consequences of this accident demand. I am constrained, however, to find that the great weight of testimony, as well as the probabilities of the case from the circumstances detailed, sustain, substantially, the account given by the claimant, viz.: That there was no collision between the two loads; and that the fall of the boxes arose through the fault or error of the winchman, a fellow servant of the libelant, and not in consequence of the use of three whips in the same hatch.

Two of the whips or falls were used for lowering the barrels of resin into the hold; the third whip was for lowering the boxes of logwood to the orlop deck. Both were lowered by the use of a sling or loop of rope, which was passed beneath and around the load of barrels or boxes, and hung at the top in the hook of the fall. There were about eight men employed in receiving and disposing of the barrels to each of the two whips lowering into the hold. The libelant was in the gang working on the port side, and it was his duty to aid in the landing of...