JAMES, District Judge.
Libelant sues for damages for personal injuries alleged to have been suffered while working on board the Canadian Farmer, in port at San Pedro, in the early part of December, 1921. Eibelant was a stevedore employed by the Outer Harbor Dock & Wharf Company, an independent contractor.
On the 6th of December, 1921, the Canadian Farmer, a steam vessel, arrived at the port of San Pedro with a cargo of lumber. She docked with her starboard side to the wharf. No. 3 hatch was equipped with two cargo booms or derricks with two winches to operate the same. The booms, being used for the main purpose of loading and discharging cargo, were kept, when the ship was at sea, lowered parallel with the dock and resting in crotches or “clutches.” When needed for use they were raised, adjusted to the required height, the fall tackle placed, and the lift ropes run to the winches. Guy ropes with tackle were used to adjust the booms and hold them at the desired angle with the horizontal length of the ship. When the ship docked, with the starboard side to the wharf, it was necessary that the starboard cargo boom be so adjusted that it would swing over the side of the ship and above the wharf. The starboard boom of the Canadian Farmer at No. 3 hatch was adjusted in the general manner last described, when the stevedores began their work of unloading the cargo. The falls from each boom were shackled to the same hook and, in moving a sling-load of lumber to the port side, the port winch, pulling through the head of the port boom, would lift the load clear of the deck and it would be swung toward the wharf by the use of the starboard winch with the pull through the boom head on that side. The ship was loaded on her decks to a height of about two feet above the rail, so that, at the early stages of the unloading, it was necessary to lift the load high in order that it might swing clear to the dock — more than ordinary strain being placed [501]*501at th® rams time upon both ropes attached to the lift hook; although, so far as a decision of this case is concerned, it may be assumed that such a -contingency might normally result in clearing the ship’s load.
Libelant came aboard with other stevedores and went to work at No. 3 hatch under a stevedore foreman employed by the independent contractor, Outer Harbor Dock & Wharf Company. One of the lumber loads,, started from th'e port side, failed to clear on the starboard side to the dock, and the foreman directed the libelant to assist it in getting ck-ar. As he went to do this, the boom stay on the starboard side gave • cy under the strain and the starboard boom swung inward. The load with it and caught libelant’s leg against other lumber, which res, • ‘ in serious fractures being occasioned to his limb, by reason of -A. k he claims to have been permanently injured. The boom stay h .1 i q < 'en way at its lower fastening by the breaking of a Sc-inch rope, tier boom stay in its complete form, as carried as a part of the ship V\ equipment, was made up first of a wire rope (called a pennant), wh :h was shackled to the head of the boom and again shackled to the fin í block of the guy tackle. The guy tackle was a two-block affair, and th. lower block had shackled to it a hook. The mode of fastening the Lyre, end of the guy tackle customarily was to insert the hook into iron „ big"., located under the lip of the rail at intervals along the iron sides of ?L ship. As a precaution against the breaking of any part of the guy Dckle, a preventer rope accompanied the stay gear. This rope was I.-j.-i (a wire rope) and was firmly shackled to the iron pennant and, wi w properly used, after the y: y tackle had been hooked into a ring the • • ■ enter would he separa''.! listened into the ring, making a loop a, nd all of the rope tackf r : ¡.«in/shing a wire or iron emergency uq '¡sort from the ring to the iioiv.ii .bead. The use of a preventer such as LL appears to be so usual ,;c t' p- "hr the employment of it an ordinarily understood and i wy pan, of reasonably safe equipment of ¡hat kind. The stay on rA port boom of the Canadian Farmer which1'y, ;vi way was not so -ed. In ¿11 first place, instead of the loww* block being hooked imo any oí ¡L Ion rings designed and availably I*w that purpose, y nine- of 3^4-i-i . ¡circumference measure) ropo was run through -rn of the wa.-h ports and around the rail and tied, .making a loop, and ¡uto this rope loop was hooked the lower block mf die guy tackle. The preventer wire, instead of being fastened to a riiq.;, or passed thrauafc the wash port :„<> Jed, in either of which positions It would without doubt have held the. train, was tied into the same rope loop, so that, rS.-uki the rope fasten!/..; .give or break, the preventer as well a' die cuy : acide would carry awr\ with it. That is what happened wh>m M Cut - ws injured.
I do not understand it to be tiiP o qi fern on v libelant’s counsel that it was the duty of the ship to sec that the guy tackle was properly and securely fastened to the ship’s side, in whatever position the stevedores might need it to do the work of unloading the cargo. The natural conditions affecting the duties of stevedores would seem to effectually negative any such contention if made; for it is admitted that, in the discharge of a ship-’s cargo, the adjustment of the boom stays may vary and change, and how those stays shall be placed and when they shall [502]*502be moved is a matter naturally and necessarily within the control of the stevedores; and it should be assumed that stevedores knew that the iron rings on the rail would be the proper and safest plaice to at* tach the hook of the guy tackle block, and that they were familiar with the use of the preventer wire and the manner by which it should be fastened for the greatest safety. Counsel for the libelant argues that the piece of 3t4-inch rope called a strap or “strop” was a,thing furnished by the ship as sufficient for the purpose for which it; was used. Counsel admitted that that rope may have been attached there by the stevedores or by the officers of the ship. The rope was shown to be in good condition and of good kind — not, as libelant alleges, “rotten, unsound and defective.” The point may be passed, however, that the proof of the condition of the rope failed to support the allegations, and it may be assumed (for present purposes) that the word “‘defective” is synonymous with “insufficient.” Then it would seem that,, if the stevedores made the attachment of the stay, as libelant’s counsel admits may have been the case, they knowingly used as a strap a rope which their experience should have told them was insufficient to stand the strain intended to be put upon it. If they did not know this, their negligence in attaching the preventer wire to the rope, instead of,- to an iron ring, or making it fast by passing it through the wash porté, seems very apparent. Whether that negligence was a direct act 6f the libelant or one of his fellow servants acting under the independent contractor will require that the decree be against him. The rule of ' comparative negligence is not involved, because the evidence is by no means satisfactory or sufficient to the point that the ship furnished or in.tended to furnish the rope to be used for the purpose it was made to s/arve. An officer of the ship testified that that rope was not intended foir that purpose; that it was a “life line” kept about the deck for use in preventing the sailors, in the state of the deck-.with the lumber piled high, from going overboard ; that the iron rings were the places intended to be used for the attachment of the stay block hook; and that these tings were accessible.
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JAMES, District Judge.
Libelant sues for damages for personal injuries alleged to have been suffered while working on board the Canadian Farmer, in port at San Pedro, in the early part of December, 1921. Eibelant was a stevedore employed by the Outer Harbor Dock & Wharf Company, an independent contractor.
On the 6th of December, 1921, the Canadian Farmer, a steam vessel, arrived at the port of San Pedro with a cargo of lumber. She docked with her starboard side to the wharf. No. 3 hatch was equipped with two cargo booms or derricks with two winches to operate the same. The booms, being used for the main purpose of loading and discharging cargo, were kept, when the ship was at sea, lowered parallel with the dock and resting in crotches or “clutches.” When needed for use they were raised, adjusted to the required height, the fall tackle placed, and the lift ropes run to the winches. Guy ropes with tackle were used to adjust the booms and hold them at the desired angle with the horizontal length of the ship. When the ship docked, with the starboard side to the wharf, it was necessary that the starboard cargo boom be so adjusted that it would swing over the side of the ship and above the wharf. The starboard boom of the Canadian Farmer at No. 3 hatch was adjusted in the general manner last described, when the stevedores began their work of unloading the cargo. The falls from each boom were shackled to the same hook and, in moving a sling-load of lumber to the port side, the port winch, pulling through the head of the port boom, would lift the load clear of the deck and it would be swung toward the wharf by the use of the starboard winch with the pull through the boom head on that side. The ship was loaded on her decks to a height of about two feet above the rail, so that, at the early stages of the unloading, it was necessary to lift the load high in order that it might swing clear to the dock — more than ordinary strain being placed [501]*501at th® rams time upon both ropes attached to the lift hook; although, so far as a decision of this case is concerned, it may be assumed that such a -contingency might normally result in clearing the ship’s load.
Libelant came aboard with other stevedores and went to work at No. 3 hatch under a stevedore foreman employed by the independent contractor, Outer Harbor Dock & Wharf Company. One of the lumber loads,, started from th'e port side, failed to clear on the starboard side to the dock, and the foreman directed the libelant to assist it in getting ck-ar. As he went to do this, the boom stay on the starboard side gave • cy under the strain and the starboard boom swung inward. The load with it and caught libelant’s leg against other lumber, which res, • ‘ in serious fractures being occasioned to his limb, by reason of -A. k he claims to have been permanently injured. The boom stay h .1 i q < 'en way at its lower fastening by the breaking of a Sc-inch rope, tier boom stay in its complete form, as carried as a part of the ship V\ equipment, was made up first of a wire rope (called a pennant), wh :h was shackled to the head of the boom and again shackled to the fin í block of the guy tackle. The guy tackle was a two-block affair, and th. lower block had shackled to it a hook. The mode of fastening the Lyre, end of the guy tackle customarily was to insert the hook into iron „ big"., located under the lip of the rail at intervals along the iron sides of ?L ship. As a precaution against the breaking of any part of the guy Dckle, a preventer rope accompanied the stay gear. This rope was I.-j.-i (a wire rope) and was firmly shackled to the iron pennant and, wi w properly used, after the y: y tackle had been hooked into a ring the • • ■ enter would he separa''.! listened into the ring, making a loop a, nd all of the rope tackf r : ¡.«in/shing a wire or iron emergency uq '¡sort from the ring to the iioiv.ii .bead. The use of a preventer such as LL appears to be so usual ,;c t' p- "hr the employment of it an ordinarily understood and i wy pan, of reasonably safe equipment of ¡hat kind. The stay on rA port boom of the Canadian Farmer which1'y, ;vi way was not so -ed. In ¿11 first place, instead of the loww* block being hooked imo any oí ¡L Ion rings designed and availably I*w that purpose, y nine- of 3^4-i-i . ¡circumference measure) ropo was run through -rn of the wa.-h ports and around the rail and tied, .making a loop, and ¡uto this rope loop was hooked the lower block mf die guy tackle. The preventer wire, instead of being fastened to a riiq.;, or passed thrauafc the wash port :„<> Jed, in either of which positions It would without doubt have held the. train, was tied into the same rope loop, so that, rS.-uki the rope fasten!/..; .give or break, the preventer as well a' die cuy : acide would carry awr\ with it. That is what happened wh>m M Cut - ws injured.
I do not understand it to be tiiP o qi fern on v libelant’s counsel that it was the duty of the ship to sec that the guy tackle was properly and securely fastened to the ship’s side, in whatever position the stevedores might need it to do the work of unloading the cargo. The natural conditions affecting the duties of stevedores would seem to effectually negative any such contention if made; for it is admitted that, in the discharge of a ship-’s cargo, the adjustment of the boom stays may vary and change, and how those stays shall be placed and when they shall [502]*502be moved is a matter naturally and necessarily within the control of the stevedores; and it should be assumed that stevedores knew that the iron rings on the rail would be the proper and safest plaice to at* tach the hook of the guy tackle block, and that they were familiar with the use of the preventer wire and the manner by which it should be fastened for the greatest safety. Counsel for the libelant argues that the piece of 3t4-inch rope called a strap or “strop” was a,thing furnished by the ship as sufficient for the purpose for which it; was used. Counsel admitted that that rope may have been attached there by the stevedores or by the officers of the ship. The rope was shown to be in good condition and of good kind — not, as libelant alleges, “rotten, unsound and defective.” The point may be passed, however, that the proof of the condition of the rope failed to support the allegations, and it may be assumed (for present purposes) that the word “‘defective” is synonymous with “insufficient.” Then it would seem that,, if the stevedores made the attachment of the stay, as libelant’s counsel admits may have been the case, they knowingly used as a strap a rope which their experience should have told them was insufficient to stand the strain intended to be put upon it. If they did not know this, their negligence in attaching the preventer wire to the rope, instead of,- to an iron ring, or making it fast by passing it through the wash porté, seems very apparent. Whether that negligence was a direct act 6f the libelant or one of his fellow servants acting under the independent contractor will require that the decree be against him. The rule of ' comparative negligence is not involved, because the evidence is by no means satisfactory or sufficient to the point that the ship furnished or in.tended to furnish the rope to be used for the purpose it was made to s/arve. An officer of the ship testified that that rope was not intended foir that purpose; that it was a “life line” kept about the deck for use in preventing the sailors, in the state of the deck-.with the lumber piled high, from going overboard ; that the iron rings were the places intended to be used for the attachment of the stay block hook; and that these tings were accessible.
From the photographs introduced in evidence/ showing the location of those rings, it seems quite clear that they weire as accessible, if not more accessible, than the wash port opening, the top of which was apparently a number óf inches below the lip of; the rail; the rings being attached to the under side of the lip. Moreover, the testimony is fairly convincing that the ship’s'habit was- and its duty as well, upon coming into port, to free the cargo booms, supply and arrange the tackle to be used in connection therewith, and leave the booms to be fastened and adjusted by the stevedore :crew as might suit their needs and inclination. The officers oí the ship testified that the ship was so prepared on the day in question when the stevedore crew came aboard. The traffic manager of the stevedore company, the immediate employer of the libelant, testified to the same state of facts, and stated that the booms were not attached or fastened in any particular position when the stevedores took charge. He stated that in making ready for the handling of ship’s cargo the booms were hoisted up by the ship’s crew and the balance of the rigging was1 done by the stevedores, particularly saying:
[503]*503“We place the gear; it is furnished by the ship. The stevedore company does the clearing away and arranging the booms and gears.”
The ship’s officers testified that any fastening that they made of the boom stays was merely a fastening to hold them in place, to prevent undue swinging. The temporary nature of such fastening would be apparent from an inspection of it by the stevedores, and the requirement that they should attach and re-attach the stays shows that they would be well informed as to the sufficiency and stability of the fastenings. The general conditions connected with the discharge of a ship’s cargo and the necessary control that a stevedore crew ‘must have of the appliances furnished for their use corroborate the evidence given by the ship’s officers and that of the employer of the libelant.
My conclusion is that the ship in this case did furnish gears and tackle stays and appliances of a good and sufficient character, and that it was no part of its duty to attach the boom stays to the ship before turning over the winches and booms for use in unloading the cargo; that it was negligence on the part of the stevedores to attach the lower guy tackle block to the rope instead of to a ring; and that it was negligence likewise for them to attach the preventer wire to the rope instead of separately attaching it to the wash port of a ring.
The decree must be for the defendants.