The Gladestry

128 F. 591, 63 C.C.A. 198, 1904 U.S. App. LEXIS 3944

Opinion

EACOMBE, Circuit Judge.

The libelant, the gangwayman, and a fellow workman all testified to the winchman’s failure to obey the order given. The latter testifies that he conformed to whatever order he received. The cause was tried before the District Judge, who saw all the witnesses, and his findings of fact will be followed here.

It is contended that the winchman was a fellow servant .with the libelant. There was a similar contention in The S. S. Slingsby, 120 Fed. 748, 57 C. C. A. 52, where the point was quite fully discussed, and the conclusion reached that upon the facts of that case the winch-man did not become pro hac vice the servant of the firm of stevedores. The important piece of evidence in that case, as will be seen from the opinion, was the contract under which the work was being done. By its terms the stevedores agreed to “discharge and load/’ and the owners of the steamship agreed to “furnish winches and drivers [i. e., wiuchmen].” The contract in the case at bar is to the same effect; its language is, “the ship to furnish steam winchmen, falls and slings.” There has been an effort to differentiate the case at bar by the testimony of one of the firm of stevedores as to what he understood he had a right to do under this contract, and as to what he had been allowed to do under similar contracts with other parties, but it is unimportant. Under-the contract the ship retained the power to select and remove winchmen, and the case cannot be distinguished from that of The Slingsby.

The decree is affirmed, with interest and costs.