The Magdaline

• Decision Date: 03 December 1898
• Citation: 91 F. 798
• Parties: THE MAGDALINE.
• Court: U.S. District Court — Eastern District of New York

91 F. 798

THE MAGDALINE.

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

December 3, 1898

John A Anderson, for libelant.

Ward Hayden & Satterlee, for claimant.

THOMAS District Judge.

The libelant, with other longshoremen, was employed temporarily on the bark Magdaline to assist in shifting ballast. The captain had requested one Engelke, a person not connected with the vessel, to procure the longshoremen, which the latter did. For this Engelke received no consideration beyond the promise of the captain to give him the work of loading the ship, when that should be done, which promise the captain was unable to fulfill. Engelke personally paid each longshoreman, pursuant to slips of paper, showing his time furnished to each workman by the captain or mate; and some days after the work was completed Engelke was reimbursed by the agent of the vessel the gross sum thus paid out. The vessel was undergoing repairs at the pier. McCaldin Bros were laying a new main deck under contract, and the Ross Iron Works were doing certain iron work, and payment was made therefor according to the work done on each day. The vessel had between-decks, which were decked over permanently for about 12 feet in width on each side, leaving an open space, running fore and aft, from the fore to the after hatch amidships, with the exception of certain parts near the three masts, where the deck was laid across the vessel. No other part of the permanent deck in the between-decks was taken up, unless there may have been, as claimed by the libelant, a smaller opening, approximating 18 inches in width and 2 feet long, in the between-decks, left by the carpenters in relaying the deck. The libelant claims, and produces evidence tending to show, that on July 25, 1898, after he had been working two or three days, he was wheeling sand in the hold to a point in the forward part of the ship, and that, when he was several feet from the main hatch of the between-decks, and several feet from the middle line of the ship, a piece of wood, about 18 or 20 inches long and 10 inches wide, fell upon his head, and produced the injury which is the subject of this libel. The libelant claims that the wood fell through the small opening in the between-decks, and that it was caused so to fall by the act of certain of the crew of the vessel, who were on the between-decks, clearing it of the boards and other matter thereon. Certain of the crew were on the between-decks, to wit, the mate, who at the time of the accident was near the main hatch, the second mate, between the main and after hatch, clearing away the deck planks and piling them up over the wings, and one Kruse, seaman, who was clearing up the old ropes, wires, wood, and cases lying around, about 10 or 12 feet from the large open space above referred to in the between-decks. The respondent claims that the wood fell from the main deck, where workmen were relaying the floor, and asks the court to infer this from the nature of the work existing there, and from the probability that the shavings and other material, which had previously on the same day fallen in the hold, and of which the men therein complained to the...