TilOMAS, District Judge.
On the 14th day of December, 1893, the steamship J. W. Taylor was lying at the dock in the city of Brooklyn, chartered by Lamport & Holt who had employed T. Hogan & Hons, stevedores, to unload and load her. Before this date her cargo had been discharged, and she had been sent to dry dock, from which on the day in question she was again at the dock for the purpose of loading. Bhe had four hatches, and about 2 feet aft of hatch Mo. 2 was what was known as the “bunker hatch,” which was 14 feet in length athwartships, and feet in width. During the afternoon work was in progress in other parts of the ship, but the accident involves events in the neighborhood of hatch No. 2. Men were; taking in cargo in the hold, to reach which a ladder was placed from hatch No. 2 on the main deck to the corresponding hatch between-decks, the coaming of which was about 20 inches wide, and from the inferior side of this coaming another ladder led into the hold. By this way the men went into ihe hold, and spent the afternoon, up to 0 o’clock in the evening, receiving cargo. The libelant was in the employ of Ihe stevedores, and was called from some other part of the ship, and sent, about 5 p. in., down the ladder at hatch No. 2, to join his companions in the work there under way. On his way down, he testifies, he stopped at the bottom of the ladder, ending at hatch No. 2, between-decks, and made his way to the wing, where he left his coat, and that it was then so dark at that point that he could not see. After depositing his coat, he went down the ladder to the hold, and worked until 6 o’clock, whereupon he came up the ladder to the between-decks, and started to go to the wing for his coat, but immediately fell over, into, and through the bunker hatch, and received the injuries which are the subject of the action; the locus in quo at that time being entirely dark. During the afternoon, and proh ably previous to 5 o’clock, a large piece of tarpaulin had been stretched athwartships between hatch No. 2 and the bunker hatch, so as to entirely partition olf the space, the purpose of which was to save the cargo forward of the tarpaulin from injury from the dust which would result from coaling the vessel through the bunker hatch, which was to commence at 7 o’clock. ■ The tarpaulin was tied to beams beneath the floor of the upper deck, and fell to the floor of the between-[194]*194decks, and lay in a fold upon tbe floor, and was sufficient to prevent tbe dust from getting around or under it, but was not sufficient to protect a person from falling into tbe batch, if be pressed against it. Tbe tarpaulin bad been furnished by tbe sbip, and bad been placed in position by tbe carpenter of tbe sbip, assisted by one Fitzsimmons, wbo was usually employed by Hogan by tbe day as a stevedore, but on this occasion bad been furnished to tbe sbip, and was to be paid at its expense, and was under tbe direction of tbe ship’s carpenter. It seems that T. Hogan & Sons do all tbe stevedore work for this line of vessels, and that, whether tbe vessel be under charter or otherwise, such stevedores insist that tbe sbip shall see to it that, while tbe stevedores are coaling, suitable arrangements be provided to prevent tbe dust from injuring tbe cargo, and that tbe stevedores disclaim responsibility' for damage therefrom. Tbe practice as to lighting was as follows: Tbe stevedores, through their foreman, made application to tbe ship’s lamp trimmer for lights; tbe lamp trimmer placed tbe lights on tbe deck; and tbe stevedores took and placed them wherever their convenience or work required.
It is claimed that tbe sbip is liable for some omission of duty owing by it to tbe stevedores. What is that duty? Tbe sbip was under charter. Tbe charterers employed tbe stevedores’ master, T. Hogan & Sons, to unload and load. For all such purposes tbe sbip was in tbe possession and under tbe control of tbe charterers, save as they surrendered, such possession and control to the stevedores for discharging and receiving cargo. Tbe charter party imposes no obligation upon the sbip to furnish lights, or to take other means for protecting the stevedores, wbo were removed from tbe sbip by tbe intervention of tbe two contracts named. Reasoning from generally applicable principles and tbe terms of tbe charter party, it may be concluded readily that tbe sbip was guilty of no fault of omission. But did the sbip do any act that was a breach of a duty owing by it to tbe stevedores? Did it leave tbe hatcb open? Tbe stevedores bad been in tbe possession of tbe ship to unload it. Cargo bad been discharged from tbe bunker batch. There is no evidence that tbe batch was covered while it was upon tbe dry dock, or that tbe sbip thereafter disturbed tbe batch. Why should the ship disturb tbe batch? She bad no interest in tbe unloading. That matter alone concerned tbe charterers and their stevedores. If tbe batch was left uncovered after discharging, tbe stevedores suffered it. If it was uncovered afterwards, and in contemplation of tbe coaling that was imminent, tbe presumption would be that tbe persons interested in tbe cargo did it. For what possible purpose should tbe sbip open the hatcb? By tbe terms of tbe charter party, it was not tbe duty of tbe sbip to do tbe coaling. Nor did tbe ship do it, but T. Hogan & Sons did do it, under contract with the charterers, upon whom tbe contractual duty rested. But tbe argument of tbe learned advocate for tbe libelant is that it was tbe duty of tbe sbip to place a light at tbe batch. For what purpose? For taking in tbe cargo for which it was obviously made ready? From what did tbe obligation arise? Certainly not from the terms of tbe charter party. From her relation to tbe cargo? The sbip bad no interest in the reception of tbe cargo. From custom? [195]*195There is no satisfactory evidence of that. The courts take judicial notice of the fact that be tween-deck hatches are left off in port, and the usual holding is that stevedores working on the 'ship assume the risk thereof. The evidence in this case shows that the libelant knew of the bunker hatch. He should have known that it was liable to be off, (1) because it is a custom in port to leave such hatches open; (2) because it had been open to discharge cargo, and he does not show that he had reason to suiipose that it was closed; (3) because within about one hour the ship was to be coaled through the hatch. It is true that in Craig v. The Saratoga, 87 Fed. 349, this court held that, notwithstanding the established custom of leaving hatches open, yet, when the ship laid out a way over a hatch for its servants to pass, the court would not assume, under such circumstances, in the absence of evidence to that effect, that it was the custom to leave the open chasm unlighted, and gave judgment for the libelant for divided damages. But the bunker hatch was not appropriated as a portion of a pathway over which the ship asked its servants to travel in profound darkness. It was removed sufficiently to permit a person about his business to go down the main hatch, and was divided from that hatch by a heavy tarpaulin. Why did not the libelant go on his way down to the hold, and why did he step off, and attempt to walk in the between-decks? He states that on his way down he stopped at the between-decks, and in utter darkness walked to the wing and left his coat, and that he was on his way to recover it when the accident hajipened; and the argument is that the ship should have lighted the bunker hatch, so that the libelant could have gone safely to his coat, -which he had laid away deliberately in the wing, making his way in the dark.
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TilOMAS, District Judge.
On the 14th day of December, 1893, the steamship J. W. Taylor was lying at the dock in the city of Brooklyn, chartered by Lamport & Holt who had employed T. Hogan & Hons, stevedores, to unload and load her. Before this date her cargo had been discharged, and she had been sent to dry dock, from which on the day in question she was again at the dock for the purpose of loading. Bhe had four hatches, and about 2 feet aft of hatch Mo. 2 was what was known as the “bunker hatch,” which was 14 feet in length athwartships, and feet in width. During the afternoon work was in progress in other parts of the ship, but the accident involves events in the neighborhood of hatch No. 2. Men were; taking in cargo in the hold, to reach which a ladder was placed from hatch No. 2 on the main deck to the corresponding hatch between-decks, the coaming of which was about 20 inches wide, and from the inferior side of this coaming another ladder led into the hold. By this way the men went into ihe hold, and spent the afternoon, up to 0 o’clock in the evening, receiving cargo. The libelant was in the employ of Ihe stevedores, and was called from some other part of the ship, and sent, about 5 p. in., down the ladder at hatch No. 2, to join his companions in the work there under way. On his way down, he testifies, he stopped at the bottom of the ladder, ending at hatch No. 2, between-decks, and made his way to the wing, where he left his coat, and that it was then so dark at that point that he could not see. After depositing his coat, he went down the ladder to the hold, and worked until 6 o’clock, whereupon he came up the ladder to the between-decks, and started to go to the wing for his coat, but immediately fell over, into, and through the bunker hatch, and received the injuries which are the subject of the action; the locus in quo at that time being entirely dark. During the afternoon, and proh ably previous to 5 o’clock, a large piece of tarpaulin had been stretched athwartships between hatch No. 2 and the bunker hatch, so as to entirely partition olf the space, the purpose of which was to save the cargo forward of the tarpaulin from injury from the dust which would result from coaling the vessel through the bunker hatch, which was to commence at 7 o’clock. ■ The tarpaulin was tied to beams beneath the floor of the upper deck, and fell to the floor of the between-[194]*194decks, and lay in a fold upon tbe floor, and was sufficient to prevent tbe dust from getting around or under it, but was not sufficient to protect a person from falling into tbe batch, if be pressed against it. Tbe tarpaulin bad been furnished by tbe sbip, and bad been placed in position by tbe carpenter of tbe sbip, assisted by one Fitzsimmons, wbo was usually employed by Hogan by tbe day as a stevedore, but on this occasion bad been furnished to tbe sbip, and was to be paid at its expense, and was under tbe direction of tbe ship’s carpenter. It seems that T. Hogan & Sons do all tbe stevedore work for this line of vessels, and that, whether tbe vessel be under charter or otherwise, such stevedores insist that tbe sbip shall see to it that, while tbe stevedores are coaling, suitable arrangements be provided to prevent tbe dust from injuring tbe cargo, and that tbe stevedores disclaim responsibility' for damage therefrom. Tbe practice as to lighting was as follows: Tbe stevedores, through their foreman, made application to tbe ship’s lamp trimmer for lights; tbe lamp trimmer placed tbe lights on tbe deck; and tbe stevedores took and placed them wherever their convenience or work required.
It is claimed that tbe sbip is liable for some omission of duty owing by it to tbe stevedores. What is that duty? Tbe sbip was under charter. Tbe charterers employed tbe stevedores’ master, T. Hogan & Sons, to unload and load. For all such purposes tbe sbip was in tbe possession and under tbe control of tbe charterers, save as they surrendered, such possession and control to the stevedores for discharging and receiving cargo. Tbe charter party imposes no obligation upon the sbip to furnish lights, or to take other means for protecting the stevedores, wbo were removed from tbe sbip by tbe intervention of tbe two contracts named. Reasoning from generally applicable principles and tbe terms of tbe charter party, it may be concluded readily that tbe sbip was guilty of no fault of omission. But did the sbip do any act that was a breach of a duty owing by it to tbe stevedores? Did it leave tbe hatcb open? Tbe stevedores bad been in tbe possession of tbe ship to unload it. Cargo bad been discharged from tbe bunker batch. There is no evidence that tbe batch was covered while it was upon tbe dry dock, or that tbe sbip thereafter disturbed tbe batch. Why should the ship disturb tbe batch? She bad no interest in tbe unloading. That matter alone concerned tbe charterers and their stevedores. If tbe batch was left uncovered after discharging, tbe stevedores suffered it. If it was uncovered afterwards, and in contemplation of tbe coaling that was imminent, tbe presumption would be that tbe persons interested in tbe cargo did it. For what possible purpose should tbe sbip open the hatcb? By tbe terms of tbe charter party, it was not tbe duty of tbe sbip to do tbe coaling. Nor did tbe ship do it, but T. Hogan & Sons did do it, under contract with the charterers, upon whom tbe contractual duty rested. But tbe argument of tbe learned advocate for tbe libelant is that it was tbe duty of tbe sbip to place a light at tbe batch. For what purpose? For taking in tbe cargo for which it was obviously made ready? From what did tbe obligation arise? Certainly not from the terms of tbe charter party. From her relation to tbe cargo? The sbip bad no interest in the reception of tbe cargo. From custom? [195]*195There is no satisfactory evidence of that. The courts take judicial notice of the fact that be tween-deck hatches are left off in port, and the usual holding is that stevedores working on the 'ship assume the risk thereof. The evidence in this case shows that the libelant knew of the bunker hatch. He should have known that it was liable to be off, (1) because it is a custom in port to leave such hatches open; (2) because it had been open to discharge cargo, and he does not show that he had reason to suiipose that it was closed; (3) because within about one hour the ship was to be coaled through the hatch. It is true that in Craig v. The Saratoga, 87 Fed. 349, this court held that, notwithstanding the established custom of leaving hatches open, yet, when the ship laid out a way over a hatch for its servants to pass, the court would not assume, under such circumstances, in the absence of evidence to that effect, that it was the custom to leave the open chasm unlighted, and gave judgment for the libelant for divided damages. But the bunker hatch was not appropriated as a portion of a pathway over which the ship asked its servants to travel in profound darkness. It was removed sufficiently to permit a person about his business to go down the main hatch, and was divided from that hatch by a heavy tarpaulin. Why did not the libelant go on his way down to the hold, and why did he step off, and attempt to walk in the between-decks? He states that on his way down he stopped at the between-decks, and in utter darkness walked to the wing and left his coat, and that he was on his way to recover it when the accident hajipened; and the argument is that the ship should have lighted the bunker hatch, so that the libelant could have gone safely to his coat, -which he had laid away deliberately in the wing, making his way in the dark. It is considered that if the ship was under obligation to light the hatch for any purpose, which is not shown, she was not constrained to do so to the end that the libelant might hide away his coat in the wing of the ship, or recover the same. In Hefferin v. The Illinois, 63 Fed. 161, and The Protos, 48 Fed. 919, it is held that it is the custom of workmen to leave their clothes on the deck above which they work, and that it was the duty of the steamship to keep the deck in a safe condition for that purpose. This holding was not made with reference to hatches, but trimming holes, whose open condition the stevedore had no occasion to expect. The libelant asks that the doctrine be extended to hatches, probably opened by the stevedores to whom the ship was committed. The proposition that the ship must either keep the hatches closed, or, if open, lighted, when in port, to protect stevedores, who would otherwise be injured by wandering in the dark to store their coats in parts of the ship disconnected with their work, cannot be accepted. It is peculiarly obnoxious to judicial holdings, when sought to be applied to a case where the decks and hatches are under the control of charterers, and the charterers have delegated the whole matter to stevedores, one of whom falls through a hatch opened in the course of the general employment of stevedores. But it is urged that the bunker hatch is a blind hatch, and that the custom of leaving hatches so open in port does not apply to it. The bunker hatch corresponded in size and locality to one on the main deck, and was in no sense a blind [196]*196hatch, but was a large hatch, used for the purpose of loading a division of the hold, when occasion arose.
' The foregoing views find precise expression in the following findings : (1) That it was not the duty of the ship to take off' the hatch covers for the purpose of the loading; (2) nor to guard the hatches when uncovered for the purpose of loading; (8) that there is no evidence that the ship uncovered the hatches; (4) that hatches in the between-decks are customarily left off when the vessel is in port, when the spaces beneath are needed for loading or unloading cargo; (6) that the libelant, from his experience, must be presumed to have known of that fact; (6) that it is not customary to light hatches in the between-decks under such circumstances, unless work be in progress at the hatch; (7) that the hatch did not expose the libelant to any danger while he was engaged in his legitimate occupation; (8) that the libelant placed ,his coat in the wing in profound darkness, knowing of the proximity of the bunker hatch, and that it was, or might be, open, and that he assumed the risk of doing this in safety; (9) that the ship was not under any obligation to light the place, to aid the libelant in the storing or recovering his coat; (10) that it was no part of the ship’s duty to light the between-deck hatches for any purpose; (11) that even if it be granted that it was the ship’s duty to hand out such lanterns as the stevedores requested, which was certainly the practice, the distribution of the lights was a matter that concerned the stevedores alone. There is nothing in this case to commend the libelant to the consideration of the court, save his grievous injury, and the skillful effort of his counsel to avoid the difficulties that beset his case. But the magnitude of the injury does not tend to create liability, and the law and facts are too obstinately opposed to permit a decision favorable to him. Let there be a decree for the claimant, with costs.