10 F.(2d) 47 charge of infringement. It involves the in- 3. Seamen 29 (5)-Whether absence of line along port side was failure to exercise reasonable care to furnish safe place to work held for jury. 5. Seamen 29 (5)-Reasonable men might differ on question whether seaman would have been saved, if there had been rope along deck where he was washed off. Question whether seaman, who was washed off ship, would have been saved if there had been rope along deck where he was washed off, held question about which reasonable men might differ. 6. Seamen 29 (4)-Seaman, working on deck load in obedience to orders, held not to assume risk from absence of guard rope. Seaman, washed overboard while working on deck load of lumber in obedience to orders, did not assume risk arising from absence of guard rope. Hough, Circuit Judge, dissenting in part. In Error to the District Court of the United States for the Eastern District of New York. Action by Henry Zinnel, administrator of Charles J. Zinnel, against the United States Shipping Board Emergency Fleet Corporation. Judgment dismissing complaint, and plaintiff brings error. Reversed, and new trial ordered. Writ of error to a judgment dismissing a complaint in an action at law upon a directed verdict. The plaintiff is the administrator of his son, Charles J. Zinnel, who was employed as one of the crew of the defendant's ship, Eastern Sailor, on a voyage from the port of New York to Yokohama. During a storm the vessel shipped a sea on her starboard bow and swept the intestate overboard, where he drowned after ineffectual efforts to rescue him. The action was brought under the Jones Act of 1920 (Comp. St. Ann. Supp. 1923, §§ 81464-81461⁄4t), and the faults alleged were that the vessel was unseaworthy and that the defendant did not provide the intestate with a safe place to work. The answer, besides denials, pleaded that the intestate assumed the risk of the employment. The Eastern Sailor, between the bridge Whether absence of line along port side, or shelter deck and the forecastle head, had where seaman was washed overboard while working on deck load of lumber carried on well a "well deck," upon which she carried a deck, between bridge and forecastle head, was deck load of lumber made fast by chain lashfailure to exercise reasonable care to furnishings. This load came above the rail or gunsafe place to work, held question for jury. 4. Seamen 29 (2)—Recovery for seaman, washed overboard when working on deck load of lumber, may be had, though ship seaworthy. Under Jones Act 1920 (Comp. St. Ann. Supp. 1923, §§ 81464-81464t), incorporating Employers' Liability Act (Comp. St. §§ 86578665) by reference, when seaman was washed overboard, shipowner is liable for faulty use by crew of proper apparatus, though ship was seaworthy. wale on the well deck and to the level of the forecastle head. Where the deck load was stowed there was therefore no rail or other protection at the side; the edge of the timber extending to the inner skin of the ship. Heavy weather and seas shipped on board had raised some of the timber and loosened the lashings. It became necessary to the safety of the ship that the deck load should again be made fast, and the master directed the intestate, with other members of the crew, to go forward and add new lashings under the direction of the boatswain. While seated upon the top of the deck load and nearly amidships, and engaged in passing a new lashing over the load, the vessel shipped a sea over her starboard bow, which carried the intestate over the port side of the ship and into the sea. The fault relied on be low was the absence of a guard rope from the rail on the forecastle head leading aft on the port side to the shelter deck, which the intestate might have seized, or which in any case would have stopped his passage over the ship's side. The master and chief mate testified that such lines had been maintained on either side, during the whole voyage, for the protection of the crew, and to steady them while crossing. On the other hand, the plaintiff produced a member of the crew, who swore that on the morning of the accident, a few hours before it took place, and immediately thereafter, there was no line along the port side. To corroborate this he presented a photograph, taken three or four days earlier, showing the port side forward without any such line. The learned judge declined to receive the photograph, on the ground that it did not show the condition at the time of the accident. He dismissed the complaint, because the evidence too strongly preponderated in the defendant's favor to allow a verdict, and because the intestate, in working where he did and at such a time, assumed any risk due to the absence of the line. Charles Warren Hastings, of New York City, for plaintiff in error. Ralph C. Greene, U. S. Atty., of Brooklyn (Edgar G. Wandless and Joseph M. Dreyer, both of New York City, of counsel), for defendant in error. were kept standing through the whole voyage, [4] The cause arises in substance under the Before HOUGH, HAND, and MACK, she broke ground. This was in effect ruled in Circuit Judges. HAND, Circuit Judge (after stating the facts as above). [1,2] The refusal of the court to allow the photograph in evidence for the purpose offered was erroneous. It was not necessary that the witness who took it should swear that it was correct at the exact moment of the accident, when he was not present. If it represented the truth in the morning, a few hours before, and at once after the accident, the jury was entitled to assume that there had been no change in the interim. It was, moreover, admissible to contradict the testimony of the master and the mate that the lines Panama R. R. v. Johnson, 264 U. S. 375, 44 S. Ct. 391, 68 L. Ed. 748, where one of the faults was in the negligent use of apparently sound equipment. We therefore decline to engage in any discussion as to seaworthiness, beyond, indeed, observing that the term has itself the most relative meaning (The Silvia, 171 U. S. 462, 464, 19 S. Ct. 7, 43 L. Ed. 241; The Southwark, 191 U. S. 1, 9, 24 S. Ct. 1, 48 L. Ed. 65), and that cases can arise where juries must pass upon it (Carlisle Packing Co. v. Sandanger, 259 U. S. 255, 259, 42 S. Ct. 475, 66 L. Ed. 927). All we need, and do, hold is that under the law of master and 10 F.(2d) 49 servant, as now in force by statute, the circumstances were such as would allow the jury to find that there was no rope, and that its absence made the intestate's place of work unsafe. [5] There of course remains the question whether they might have also said that the fault caused the loss. About that we agree no certain conclusion was possible. Nobody could, in the nature of things, be sure that the intestate would have seized the rope, or, if he had not, that it would have stopped his body. But we are not dealing with a criminal case, nor are we justified, where certainty is impossible, in insisting upon it. We cannot say that there was no likelihood that a rope three feet above the deck made by the timber would not have saved the seaman. In this connection we note that the ship did not take aboard green water, but that the bluff of the bow broke the force of the sea shipped, which, when it reached the deck load, was made up of white water, and was not big enough to lift up a man's body. Considering that such lines were run for the express purpose, among others, of protecting seamen, we think it a question about which reasonable men might at least differ whether the intestate would not have been saved, had it been there. But the present decision invites, by easy possibility, a jury of tailors and haberdashers to pass judgment on how to make a wet and rolling deck in a seaway a "safe place to work"; for there is no evidence at all as to what good seamanship, not the fears of tailors, require on such a ship at such a time. In my opinion, no case along these proper lines was made for a jury, and the result below was right. cert. denied 20 211 repest 70 LED 1148 46 sup (7.631 THE BENCLEUCH. (Circuit Court of Appeals, Second Circuit. December 14, 1925.) No. 73. 1. Shipping 132(3)-Libelant must prove negligence of ship, after showing that loss was within exceptions contained in bills of lading. Where ship had showed that loss was within exceptions in bills of lading, libelant had the burden to show some fault in stowage or care of cargo, amounting to negligence on part of ship; Harter Act (Comp. St. §§ 8029-8035) being inapplicable. 2. Shipping 132(5)-More than usual loss from breakage is not prima facie evidence of negligence in stowage. More than usual damage from breakage is [6] As to the assumption of risk, on which not prima facie evidence of negligence in stow age. 3. Shipping132(5)—Evidence held to show that cargo of lemons was properly stored. In libel for loss due to damages to lemons we all agree, we need do no more than refer to our own decisions in Cricket S. S. Co. v. Parry (C. C. A.) 263 F. 523, and Panama R. R. Co. v. Johnson (C. C. A.) 289 F. 964, shipped, evidence held to show that the cargo and to the law in other circuits, Lafourche Packet Co. v. Henderson, 94 F. 871, 36 C. C. A. 519 (C. C. A. 5), and The Colusa, 248 F. 21, 160 C. C. A. 161 (C. C. A. 9). Judgment reversed, and new trial ordered. HOUGH, Circuit Judge (dissenting in part). I agree with this opinion regarding the admission in evidence of the photograph and the effect of previous decisions of this court as to assumption of risk; but I cannot approve of the obvious intent of the majority to dump this case on a jury with no more or different testimony than that which is now before us. Whenever a jury is asked to deelare whether a certain act or omission is “lack of care according to the circumstances"-i. e. negligent-proof of the circumstances includes proof as to what skilled men habitually do under similar circumstances, unless the occurrence at bar is so familiar to a jury of the vicinage as to need no such exposition. Injury by a vehicle to a foot passenger on a New York street crossing is an instance of such familiarity. 10 F. (2d)-4 was properly stored. 4. Shipping 126-Ship, having no part in discharge of cargo, is not liable after cargo clears rail. Ship, having no part in discharge of cargo, is not liable after cargo clears the rail. 5. Shipping126-Use of slings in unloading cargo of lemons held improper. Use of slings in unloading cargo of lemons held improper. 6. Shipping 132 (3)-Burden on libelant to distinguish recoverable from nonrecoverable damage. Libelant being entitled to recover damages to lemons during unloading and transferring on wharf, but not damages during shipment, the burden rests on him to show the recoverable damages, separate and distinguished from nonrecoverable damage. 7. Shipping 142-Damages may not be recovered for goods removed before notice was given, where bills of lading required notice to be made. Where bills of lading exempt the company from any claim, notice of which was not given before removal of goods, damage may not be recovered for any goods removed before notice, and a libel filed in rem against the ship is not fused and there was a delay in delivery. For a compliance with such requirement. one reason and another some of the lemons rotted, and the board of health of the city of New York seized a portion and condemned it. 8. Shipping 209 (3)—Amendment relevant only on reference erroneously refused, when application was made before reference had begun. Amendment of answer setting up clause in limitation of liability, applied for before reference ordered by trial judge had begun, and which sought to set up matters relevant only on the reference, held erroneously refused. 9. Shipping 142-Clause in bills of lading requiring notice of damage before removal does not apply to lemons seized and condemned by board of health. Clause in bills of lading exempting company from any claim, notice of which was not given before removal of goods, did not apply as to lemons seized and condemned by the board of health. 10. Shipping 132(5)-Admission in bills of lading that lemons were received in apparent good order and condition only creates prima facie proof that lemons, so far as visible, were not damaged. Admission in bills of lading that lemons were received in apparent good order and condi tion goes no farther than to create prima facie proof that lemons, so far as visible, were not damaged, and was not proof that fruit was inherently sound. 11. Shipping 131-Where libelant is responsible for two years' delay after filing libels, interest will not run during that time. Where there was a delay of two years after filing of libel, for which libelant is responsible, interest will not run during such delay. Appeal from the District Court of the United States for the Eastern District of New York. Libel by Charles L. Fuller against the steamship Bencleuch, etc., claimed by George McMillan, wherein the Cunard Steamship Company, Limited, and another, were impleaded under the fifty-sixth rule. From a decree dismissing the libel against the ship, and decree against the Cunard Steamship Company (3 F. [2d] 824), the Cunard Steamship Company appeals. Decree affirmed as to claimant, and reversed as to the Cunard Steamship Company, with directions. Fuller, the libelant, is the assignee of the claims for damages of a number of importers of lemons on the steamer Bencleuch on a voyage from Messina to New York in June and July, 1917. On arrival the out-turn showed a number of cases crushed and the lemons injured, and other cases blackened by moisture. The discharge was made in slings, 9 to 11 cases to the sling, and the proof was that in the slings and in landing the cases upon the docks they were further damaged. On the wharf the marks were con The ship was being operated by the Cunard Steamship Company on behalf of the British government in war time, which company laded the Bencleuch at Messina and discharged her at New York. It gave bills of lading in its own name, signed by the master in usual form, which contained exceptions against breakage and decay, and also the following provision: "The company is not liable for any claim of which no tice has not been given before the removal of the goods, nor in any case for more than the proportionate part, the declared or invoice value of the goods damaged or lost, whichever shall be least." The libel was in rem, and upon arrest of the ship the master appeared as claimant, answered by petition, and under the fifty-sixth rule brought in the Cunard Steamship Company, which answered, and in turn brought in the discharging stevedores in New York. Upon the trial the District Court dismissed the libel against the ship and the libel and petition against the stevedores, but held the Cunard Steamship Company for all damages, and referred the cause to a commissioner. After long delay the commissioner reported the damages at some $16,000, with interest of $6,000, on which a final decree was eventually issued, from which the Steamship Company appealed. Upon the appeal the company raised no question of the dismissal of its petition against the stevedores, but insisted that the ship was liable for any damage which occurred on board, and that it was itself exempt from all liability. Franklin Grady, of New York City, for appellant. Frank I. Finkler, of New York City, for libelant-appellee. Robert S. Erskine, of New York City, for claimant-appellee. Before ROGERS, HAND, Circuit Judges. MANTON, and HAND, Circuit Judge (after stating the facts as above). [1] The damage done upon the ship must be distinguished from that done in the slings and on the piers. The first was of two kinds, breakage and decay, against both of which the bills of lading contained exceptions. Therefore, since the ship had showed that the loss was within the exceptions, the 10 F.(2d) 49 libelant must prove some negligence on the ship's part. Nelson v. Woodruff, 1 Black, 159, 17 L. Ed. 97. The Harter Act (Comp. St. §§ 8029-8035) has nothing to do with this situation. There was no attempt in the bills of lading to exempt the ship from liability for careless stowage, at least unless by contact with other goods; nor is the warranty of seaworthiness involved, because the damage did not arise from anything which could be attributed to unseaworthiness. Hence the libelant had the burden to show some fault in stowage or care of the cargo. As to decay, none such was shown or even attempted. The sweat was no more than inevitable, proper ventilation being shown, and if the decay was accelerated because of the breakage, that was one of its consequences, and stands or falls with it. [2, 3] Therefore we confine our discussion to the breakage, remembering on whom the burden rests. In this circuit it is the established rule that mere excess of damage over what is usual under the circumstances is not prima facie evidence of negligence in stowage. The St. Quentin, 162 F. 883, 89 C. C. A. 573; The Arpillao (C. C. A.) 270 F. 426. The earned judge below appears to have ignored this rule, and assumed that the excessive breakage was itself proof that the stowage was negligent. On the contrary, the proof is that the cargo was properly stowed. In the 'tween-decks there could be no question; there only 6 tiers were piled, and that was a moderate burden for the lowest tier. Indeed, little damage occurred there anyway. In the holds the situation was different. The cases were piled in about 15 tiers from the ceiling, five feet above the tanks, to the beams, or nearly. But 15 tiers were not uncommon and had not in the past caused trouble; indeed, cargoes came through 22 tiers in height, and made good delivery. Nor did the ventilation shafts under the square of the hatches give way or cause any shift. It is quite true that the lowest tiers were badly crushed and much loss occurred thereby. But that might have been due to the fact that the cases were uncommonly frail, as there was good reason to suppose from the evidence relating to the wood used for the covers. It is argued that, as the cases lay on their sides, the support was in the heavier end pieces, whose wood was, so far as appears, strong enough. But the libelant fails to recognize the part which the covers must have played in holding fast the ends. As long as the ends remained vertical, the thrust of the upper tiers was straight along the grain; but as the ship worked in the sea there would be lateral strains, which must be taken up by the covers or "shocks" between the ends. If these were brittle, and not tough, they would more easily yield, and, once the ends were thrown out of vertical, they would cease to act as effective bearings, and the cases might easily be crushed, just as they were. So we understand Pilcher to have testified. The same cause might account for the small shift which was observed. [4] But we think it unnecessary to make any finding on this question. It is enough that the damage was shown to be due to an excepted cause, and that the libelant has shown no negligence, but that the ship has proved the stowage good. We have not forgotten the testimony of Sweeny that it was customary to set what he called "dunnage" at intervals across the tiers, apparently to distribute the weight more generally. Not only does this testimony stand alone and contradicted, but it is apparent that as this stiffening, or whatever it may be deemed, was not anchored at the ship's side, it could not relieve the lower tiers of the least part of the weight, but indeed a little increased it. All that it could do was possibly to prevent a shift in the cargo. Considering that the stow was solid from side to side, we can see no reason for adding such a supposed precaution. Therefore we exonerate the ship and the Cunard Steamship Company from any damage before discharge. As the ship had no part in the discharge, and is not liable after the cargo clears the rail, we affirm the decree as to her. [5,6] There remains the liability of the company for the discharge. This was done by slings which we think were improper. While it is quite true that platforms, the alternative means, were not generally used at the time, they have since become the accepted apparatus for such cargo, and were used in unloading the Ellerdale at the same time. Apparently the only reason for not using them on the Bencleuch was that none were then available. It was in war time and their absence is readily understood. Certainly, after the discharge began to show the character of the cases, slings ought at once to have been abandoned. But we go further and hold that they were not a proper means at all. The whole weight of the draught bore against those cases under which the ropes ran, and in some cases the lemons were actually squeezed out. Furthermore, there was damage as the draughts were put on the wharf, |