The Phoenix

• Decision Date: 05 April 1888
• Citation: 34 F. 760
• Parties: THE PHOENIX. v. THE PHOENIX. LOWNDES
• Court: U.S. Court of Appeals — Fourth Circuit

34 F. 760

THE PHOENIX.

LOWNDES v. THE PHOENIX.

United States District Court, D. South Carolina.

April 5, 1888

Inglesby & Miller and I. P. K. Bryan, for libelant.

I. N Nathans, for respondent.

SIMONTON J.

The libel is for injuries sustained by libelant on board of the steam-ship Phoenix, on 11th February, 1888, she being at the time at Adger's wharf, in this port. The steam-ship taking in a cargo of cotton, was in full charge of a stevedore, selected by the charterer, and paid by the ship. She furnished the appliances for loading,-- derrick windlass, blocks, chains, rope slings, and the steam for the winch. The stevedore furnished all the hands, including a man at the steam-winch, and a man at the gangway. The duty of the latter was to pass out the slings, and to give notice that the cotton was coming aboard, so that the men working in the hold should keep from under the hatch. The stevedore had been engaged during the week in loading at the other hatches of the steamer. On Saturday, a little after 1 o'clock P.M., he began for the first time to put cotton into the No. 4 hatch. He asked for rope slings for that hatch. The mate, whose duty it was to furnish them, gave him two. Two rope slings are needed for each hatch. In each sling are put three bales. They are then hauled from the wharf by the appliances mentioned, going up towards the hatch on a skid, which is an incline of some 55 or 60 deg. As they reach the combing of the hatch, they are raised above it, over the hatchway, and should be let down gradually into the hold. The gangway man gives notice as the bales are on their way. Between 4 and 5 o'clock on this afternoon libelant was at work, one of the gang of the stevedore in the hold of hatch No. 4. He had just reached forward to get from under the hatchway an implement of his calling, known as a 'Dolly Varden,' when a bale of cotton was precipitated down the hold, striking him, and inflicting serious injuries upon him. No warning whatever was given by the gangway man. His excuse is that the bales came so fast he had no time to give it. The circumstances attending the accident are these. Three bales, as is usual, were put into the sling. They came up the skid, steam having been put on the winch. When they got to the combing of the hatch, perhaps just as they got on a level with the top of the combing, the sling parted. Two of the bales fell on the deck, the other went down the hold and struck libelant.

When a stevedore has full charge of the loading or unloading of a vessel, and one of his gang suffers injury by reason of defective tackle furnished by the vessel, she is responsible if there be absence of due care upon the part of her master in furnishing the tackle, or in maintaining it in a safe condition; that is to say, if he knew, or if the circumstances were such as to put him on the inquiry so that he could know, that the tackle was not safe. The Rheola, 19 F. 926; The Harold, 21 F. 428; The Carolina, 30 F. 200 affirmed, 32 F. 112; The Dago, 31 F. 574. The general principle appears in The Malek Adhel, 2 How. 210, and it is illustrated in The Yoxford, 33 F. 521. The question in this case is, was the sling thus furnished by the ship on this afternoon defective within the knowledge of the officer furnishing it, or were the circumstances such as to put him upon inquiry as to its condition? The sling had been in use only two hours when it parted. On this essential question the testimony is contradictory. The stevedore, his foreman, the gangway man, and the man at the winch, all of whom handled the sling, swear that one at least of the slings furnished for and used in hatch 4 that afternoon was very dark in color, having all the appearance of an old sling. Two of these, the stevedore and his foreman, to whom the master exhibited the broken sling after the accident, swear that it not only was very dark in color, like an old sling, looking on the outside black and scraped, but that its ends at the break were stranded. On the other hand, the officers of the ship swear that the two slings furnished for hatch 4 on that afternoon were entirely new, had never been used, had been cut from a fresh coil of rope recently purchased; that it had the bright color of new Manilla rope; that its edges at the points of parting were clean, appearing to have been cut short off with some sharp instrument. The testimony cannot be reconciled. New Manilla rope used on smooth skids for two hours and...