The Clan Graham
| Decision Date | 02 September 1908 |
| Docket Number | 4,817. |
| Citation | 163 F. 961 |
| Parties | THE CLAN GRAHAM et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Giltner & Sewall and William La Force, for libelant.
Williams Wood & Linthicum and Gammans & Malarkey, for The Clan Graham.
Wm. D Fenton and A. M. Dibble, for Brown & McCabe.
This is a libel for the recovery of damages arising from injury to the person of the libelant. The respondents Brown & McCabe who were stevedores, were under contract with the respondent Clan Graham to load her with wheat. The libelant was a longshoreman, and in the employ of Brown & McCabe to assist in loading. It is averred that the Clan Graham was an open ship between decks, with iron cross-beams running from one side to the other; that said cross-beams were partly covered over with between-deck hatches or planks, which made it appear safe for persons walking thereon; that libelant while proceeding along between decks at about 7:30 o'clock on the morning of December 28, 1905, fell through an opening contiguous to the forward hatchway to the hold below, whereby he was injured; that, the morning being dark, the libelees failed and neglected to provide sufficient light to light up the between-decks, and carelessly and negligently failed to cover said opening, or to notify libelant thereof, or to provide a safe place for libelant to walk over in order to do his work in loading the vessel. Besides a denial of the material charges of the libel, the Clan Graham avers that Brown & McCabe were independent contractors for the loading of the vessel, and that, if any liability was incurred, it was by them, and not by the vessel, and, further, that the libelant was himself negligent contributing to his injury. Brown & McCabe plead contributory negligence and assumption of the risk incurred by libelant's employment.
By the evidence it appears that the Clan Graham is an open between-decks vessel, being constructed with beams running across ship, from one side to the other, except where hatchways intersect them, in which event the beams extend from the side of the ship to the hatchway. These beams are placed four feet apart, and have a top surface of eight inches, upon which the men walk from side to side of the ship when necessary. Four longitudinal girders extend fore and aft-- one along each side of the vessel, and one upon each side of the hatchways. The forward hatchway is 12 or 14 feet in width, and the central girders run close alongside of it. The side plates or girders are three feet in width on the top, and the central girders two feet in width. Other plates run diagonally across, but it is unnecessary to describe these further. Forward of the forward hatch the beams are decked over with permanent decking bolted to them. The space between the girders abreast the forward hatch on either side is left entirely open and without decking in the ship's primary construction. On the morning of the accident Rosh, a co-servant of the libelant, preceded libelant down the hatchway, taking with him some candles handed him by Fred Jorgenson, the foreman of Brown & McCabe. Rosh lighted one of the candles, and placed it on some dunnage lying on the permanent deck, and gave the others to another workman, who went below in the hold. Libelant came down on the between-deck, and he says that he walked across from forward of the hatch into the starboard wing of the ship, reaching a point nearly opposite the center of the hatch, and there hung up his coat, and made his way back again to near the forward end of the hatch. He then went to the after part of the hatch, where workmen were putting up a spar, and helped them to pull up and tighten a rope. Some one having given the order, he left the starboard side of the hatch, near the corner aft, to go again into the wing, but forward, for a spar, and, when he had gone a little way only, he stepped on a board or plank, which tipped with his weight and let him through the deck into the hold below, causing a fracture of his leg, and other injuries. The men about the hatch at the time were engaged in arranging a chute for conducting sacked wheat into the hold to be loaded. Libelant says he had gone three or four feet when the plank tipped with him, and locates the opening through which he fell starboard and opposite near the center of the hatch. Other witnesses who saw the opening from below after the accident locate it about the same place. The lighted candle was placed on the pieces of dunnage about 4 feet forward of the hatch, and near midway between the hatch and side of the ship; thus fixing its location from 12 to 14 feet almost directly forward of the place through which libelant fell. Libelant further testifies that the decking looked to be solid; that the between-decks had the appearance of being a closed hatch ship clear back flush with the hatch; and that he did not know that the ship was open deck around the hatches, otherwise, he was apprised that the beams were open abaft the hatch. There was solid footing around the hatch on the sides and aft for the width and space of 18 inches to 2 feet.
Kerns a witness for the libelant, testifies that there was a floor of planks extending from the side of the hatch into the starboard wing, but that there was dunnage in the wing also; that later, in the progress of loading the ship, these planks and dunnage were all removed; and that the men worked right up through between the beams. Albert Rosh relates that he lit the candle and put it on the dunnage; that there was a good deal of dunnage in the wing of the ship, and for this he could not tell whether the ship was open deck or not; that the solid deck extended back to the forward end of the hatch, and because of the dunnage he could not tell whether it extended farther or not. He further relates that the dunnage, consisting of sticks of lumber and timber of every description, was lying in all directions, criss-cross and otherwise, 'was strewed all over pretty nearly from the hatch-coaming of the ship up towards the wing, made one pile. ' After lighting the candle, and placing it in position on the dunnage,...
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