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10 F.(20) 47 charge of infringement. It involves the in- 5. Seamen exw 29 (5)–Freasonable men might novations we find in the appellant's device.

differon question whether seaman would The fact that it has been infringed by the

have been saved, if there had been rope along

deck where he was washed off. appellee lends great force to the claim of its

Question whether seaman, who was washutility, at least as against the appellee. ed off ship, would have been saved if there had Gandy v. Main Belting Co., 143 U. S. 587, been rope along deck where he was washed off, 12 S. Ct. 598, 36 L. Ed. 272; Loom Co. v.

held question about which reasonable men might

differ. Higgins, 105 U. S. 580, 26 L. Ed. 1177. [4] We are satisfied that claim 3 of the Judd 6. Seamen Om 29(4)—Seaman, working on deck patent is valid and infringed by what ap

load in obedience to orders, held not to aspellee builds and sells, and claims 1 and 2

sume risk from absence of guard rope. of the Williams patent are also infringed.

Seaman, washed overboard while working

on deck load of lumber in obedience to orders, Decree reversed.

did not assume risk arising from absence of guard rope.

Hough, Circuit Judge, dissenting in part.

In Error to the District Court of the ZINNEL V. UNITED STATES SHIPPING United States for the Eastern District of BOARD EMERGENCY FLEET

New York.
CORPORATION.

Action by Henry Zinnel, administrator of (Circuit Court of Appeals, Second Circuit. December 7, 1925.)

Charles J. Zinnel, against the United States

Shipping Board Emergency Fleet CorporaNo. 102.

tion, Judgment dismissing complaint, and 1. Evidence 359(3)—Photograph of portion plaintiff brings error. Reversed, and new

of ship, showing no lines along side where trial ordered.
seaman was washed overboard, held admis.
sible.

Writ of error to a judgment dismissing a In action for death of seaman washed complaint in an action at law upon a directed overboard, photograph taken shortly before verdict. The plaintiff is the administrator of accident, showing no line along side, held admis- his son, Charles J. Zinnel, who was employed sible to corroborate testimony that there was no such line shortly before or immediately after

as one of the crew of the defendant's ship, accident, and particularly to contradict testi. Eastern Sailor, on a voyage from the port mony of master and mate that lines were kept of New York to Yokohama. During a storm standing through whole voyage, though cor

the vessel shipped a sea on her starboard rectness of photograph at instant of accident bow and swept the intestate overboard, was not shown.

where he drowned after ineffectual efforts 2. Seamen am 29(5)-Whether there were lines to rescue him. The action was brought un

along port side, where seaman was washed der the Jones Act of 1920 (Comp. St. Ann. overboard, held for jury.

In action for death, plaintiff held entitled to Supp. 1923, 98 814644-814644), and the go to jury on question whether there were lines faults alleged were that the vessel was unalong port side, where seaman was washed seaworthy and that the defendant did not overboard.

provide the intestate with a safe place to 3. Seamen am 29(5)-Whether absence of line work. The answer, besides denials, plead

along port side was failure to exercise rea. ed that the intestate assumed the risk of the sonable care to furnish safe place to work

employment. held for jury.

The Eastern Sailor, between the bridge Whether absence of line along port side, where seaman was washed overboard while

or shelter deck and the forecastle head, had 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 furnish ings. This load came above the rail or gunsafe place to work, held question for jury.

wale on the well deck and to the level of the 4. Seamen 29(2)-Recovery for seaman, forecastle head. Where the deck load was

washed overboard when working on deck stowed there was therefore no rail or other load of lumber, may be had, though ship seaworthy.

protection at the side; the edge of the timUnder Jones Act 1920 (Comp. St. Ann. ber extending to the inner skin of the ship. Supp. 1923, $$814644-814644t), incorporating Heavy weather and seas shipped on board Employers' Liability Act (Comp. St. $8 8657- had raised some of the timber and loosened 8465) by reference, when seaman was washed the lashings. It became necessary to the overboard, shipowner is liable for faulty use by crew of proper apparatus, though ship was safety of the ship that the deck load should seaworthy.

again be made fast, and the master directed

the intestate, with other members of the were kept standing through the whole voyage, crew, to go forward and add new lashings which it very effectually did. Not only was under the direction of the boatswain. While the plaintiff entitled to go to the jury upon seated upon the top of the deck load and the question whether the lines were standing nearly amidships, and engaged in passing at the time, assuming that to be relevant, but a new lashing over the load, the vessel it is very hard to see how the jury could have shipped a sea over her starboard bow, which reached a verdict for the defendant upon that carried the intestate over the port side of the issue. The learned judge was certainly in ship and into the sea. The fault relied on be- error in taking the case from the jury. low was the absence of a guard rope from [3] The question of law remains, whether the the rail on the forecastle head leading aft on absence of the line was a default in the dethe port side to the shelter deck, which the fendant's duty to exercise reasonable care intestate might have seized, or which in any to furnish the decedent with a reasonably case would have stopped his passage over safe place to work. Upon this we might acthe ship's side.

cept the testimony of the master and the The master and chief mate testified that mate themselves as sufficient evidence, for such lines had be intained on either side, they swore that the lines were kept standing during the whole voyage, for the protection throughout the voyage, for the purpose of of the crew, and to steady them while cross- protecting seamen when passing across the ing. On the other hand, the plaintiff pro- deck load. Nor can we see how, in the abduced a member of the crew, who swore that sence of such proof, there can be much doubt on the morning of the accident, a few hours about the necessity of some such guard. The before it took place, and immediately there- deck load in effect raised the well deck to the after, there was no line along the port side. level of the forecastle head, and left no proTo corroborate this he presented a photo- tection of any sort. Without some guard graph, taken three or four days earlier, show- line we need no expert to show us that a case ing the port side forward without any such was presented, which a jury must decide, as line.

to the safety of the place where the intestate The learned judge declined to receive the was ordered to work. Indeed, it seems to us photograph, on the ground that it did not hard to see how a jury could find for the deshow the condition at the time of the ac- fendant on this issue, as well as on the issue cident. He dismissed the complaint, because of the absence of the line. the evidence too strongly preponderated in [4] The cause arises in substance under the the defendant's favor to allow a verdict, and Employers' Liability Act (Comp. St. 88 because the intestate, in working where he 8657-8665), since that is incorporated by did and at such a time, assumed any risk due reference. It is therefore quite unnecessary to the absence of the line.

to say that the ship was unseaworthy, at least Charles Warren Hastings, of New York in the ordinary sense, which makes the comCity, for plaintiff in error.

mencement of the voyage the test. The act Ralph C. Greene, U. S. Atty., of Brook- has made applicable to work at sea the same lyn (Edgar G. Wandless and Joseph M. rules which protect work on shore, and the Dreyer, both of New York City, of counsel), shipowner is as liable for the faulty use by for defendant in error.

the crew of proper apparatus as though the Before HOUGH, HAND, and MACK, she broke ground. This was in effect ruled in

ship were unseaworthy in equipment when Circuit Judges.

Panama R. R. v. Johnson, 264 U. S. 375, 44 HAND, Circuit Judge (after stating the S. Ct. 391, 68 L. Ed. 748, where one of the facts as above). [1,2] The refusal of the faults was in the negligent use of apparently court to allow the photograph in evidence for sound equipment. We therefore decline to the purpose offered was erroneous. It was not engage in any discussion as to seaworthiness, necessary that the witness who took it should beyond, indeed, observing that the term has swear that it was correct at the exact moment itself the most relative meaning (The Silvia, of the accident, when he was not present. If 171 U. S. 462, 464, 19 S. Ct. 7, 43 L. Ed. 241; it represented the truth in the morning, a few The Southwark, 191 U. S. 1, 9, 24 S. Ct. 1, 48 hours before, and at once after the accident, L. Ed. 65), and that cases can arise where juthe jury was entitled to assume that there had ries must pass upon it (Carlisle Packing Co. been no change in the interim. It was, more- v. Sandanger, 259 U. S. 255, 259, 42 S. Ct. over, admissible to contradict the testimony 475, 66 L. Ed. 927). All we need, and do, of the master and the mate that the lines hold is that under the law of master and

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10 F.(20) 49 servant, as now in force by statute, the cir- But the present decision invites, by easy cumstances were such as would allow the jury possibility, a jury of tailors and haberdashto find that there was no rope, and that its ers to pass judgment on how to make a wet absence made the intestate's place of work and rolling deck in a seaway a "safe place to unsafe.

work"; for there is no evidence at all as to [5] There of course remains the question what good seamanship, not the fears of tailwhether they might have also said that the ors, require on such a ship at such a time. fault caused the loss. About that we agree In my opinion, no case along these proper no certain conclusion was possible. Nobody lines was made for a jury, and the result becould, in the nature of things, be sure that the low was right. 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 crim

46. inal case, nor are we justified, where certain

up Ć7.637

THE BENCLEUCH. ty is impossible, in insisting upon it. We cannot say that there was no likelihood that (Circuit Court of Appeals, Second Circuit.

December 14, 1925.) a rope three feet above the deck made by the timber would not have saved the seaman. In

No. 73. this connection we note that the ship did not

1. Shipping Om 132(3)-Libelant must prove take aboard green water, but that the bluff

negligence of ship, after showing that loss was of the bow broke the force of the sea within exceptions contained in bills of lading. shipped, which, when it reached the deck Where ship had showed that loss was withload, was made up of white water, and was

in exceptions in bills of lading, libelant had the not big enough to lift up a man's body. Con- of cargo, amounting to negligence on part of

burden to show some fault in stowage or care sidering that such lines were run for the ship; Harter Act (Comp. St. 88 8029-8035) express purpose, among others, of protecting being inapplicable. seamen, we think it a question about which 2. Shipping cw 132(5)—More than usual loss reasonable men might at least differ whether from breakage is not prima facie evidence the intestate would not have been saved, of negljgence in stowage. had it been there.

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. we all agree, we need do no more than refer to our own decisions in Cricket S. S. Co. v. 3. Shipping Om 132(5)-Evidence held to show Parry (C. C. A.) 263 F. 523, and Panama

that cargo of lemons was properly stored. R. R. Co. v. Johnson (C. C. A.) 289 F. 964, shipped, evidence held to show that the cargo

In libel for loss due to damages to lemons and to the law in other circuits, Lafourche

was properly stored. Packet Co. v. Henderson, 94 F. 871, 36 C. C.

4. Shipping Om 126—Ship, having no part in A. 519 (C. C. A. 5), and The Colusa, 248

discharge of cargo, is not liable after cargo F. 21, 160 C. C. A. 161 (C. C. A. 9).

clears rail. Judgment reversed, and new trial ordered.

Ship, having no part in discharge of cargo,

is not liable after cargo clears the rail. HOUGH, Circuit Judge (dissenting in

5. Shipping on 126–Use of slings in unloading part). I agree with this opinion regarding

cargo of lemons held improper. the admission in evidence of the photograph Use of slings in unloading cargo of lemons and the effect of previous decisions of this held improper. court as to assumption of risk; but I cannot 6. Sh ng am 132(3)-Burden on libelant to approve of the obvious intent of the majority distinguish recoverable from nonrecoverable to dump this case on a jury with no more or damage. different testimony than that which is now Libelant being entitled to recover damages before' us.

Whenever a jury is asked to de- to lemons during unloading and transferring on clare whether a certain act or omission is burden rests on him to show the recoverable

wharf, but not damages during shipment, the "lack of care according to the circumstanc- damages, separate and distinguished from nones”-i. e. negligent-proof of the circum- recoverable damage. stances includes proof as to what skilled 7. Shipping aw142—Damages may not be remen habitually do under similar circum- covered for goods removed before notice was stances, unless the occurrence at bar is so

given, where bills of lading required notice

to be made. familiar to a jury of the vicinage as to need

Where bills of lading exempt the company no such exposition. Injury by a vehicle to a

from any claim, notice of which was not given foot passenger on a New York street crossing before removal of goods, damage may not be is an instance of such familiarity.

recovered for any goods removed before notice, 10 F.(20)-4

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 8. Shipping Ow209(3)—Amendment relevant rotted, and the board of health of the city of

only on reference erroneously refused, when New York seized a portion and condemned it. application was made before reference had begun.

The ship was being operated by the CunAmendment of answer setting up clause in

ard Steamship Company on behalf of the limitation of liability, applied for before refer- British government in war time, which comence ordered by trial judge had begun, and pany laded the Bencleuch at Messina and which sought to set up matters relevant only discharged her at New York. It gave bills of on the reference, held erroneously refused.

lading in its own name, signed by the master 9. Shipping Om 142–Clause in bills of lading in usual form, which contained exceptions

requiring notice of damage before removal against breakage and decay, and also the foldoes not apply to lemons seized and condemned by board of health.

lowing provision: "The company is not liClause in bills of lading exempting company

able

for any claim of which nofrom any claim, notice of which was not given tice has not been given before the removal before removal of goods, did not apply as to of the goods,

nor in any case for lemons seized and condemned by the board of

more than the proportionate part, the dehealth.

clared or invoice value of the goods damaged 10. Shipping Om 132(5)-Admission in bills of

or lost, whichever shall be least." lading that lemons were received in apparent

The libel was in rem, and upon arrest good order and condition only creates prima facie proof that lemons, so far as visible, of the ship the master appeared as claimwere not damaged.

ant, answered by petition, and under the Admission in bills of lading that lemons fifty-sixth rule brought in the Cunard Steamwere received in apparent good order and condi- ship Company, which answered, and in turn tion goes no farther than to create prima facie proof that lemons, so far as visible, were not brought in the discharging stevedores in damaged, and was not proof that fruit was in New York. Upon the trial the District Court herently sound.

dismissed the libel against the ship and the 11. Shipping 131-Where libelant is respon- libel and petition against the stevedores, but sible for two years' delay after filing libels, in, held the Cunard Steamship Company for all terest will not run during that time.

Where there was a delay of two years after damages, and referred the cause to a comfiling of libel, for which libelant is responsible, missioner. After long delay the commisinterest will not run during such delay. sioner reported the damages at some $16,000,

with interest of $6,000, on which a final deAppeal from the District Court of the

cree was eventually issued, from which the United States for the Eastern District of Steamship Company appealed. Upon the New York.

appeal the company raised no question of the Libel by Charles L. Fuller against the dismissal of its petition against the stevesteamship Bencleuch, etc., claimed by George dores, but insisted that the ship was liable McMillan, wherein the Cunard Steamship for any damage which occurred on board, Company, Limited, and another, were im- and that it was itself exempt from all liapleaded under the fifty-sixth rule. From a bility. decree dismissing the libel against the ship,

Franklin Grady, of New York City, for and decree against the Cunard Steamship

appellant. Company (3 F. [20] 824), the Cunard Steam

Frank I. Finkler, of New York City, for ship Company appeals. Decree affirmed as libelant-appellee. to claimant, and reversed as to the Cunard

Robert S. Erskine, of New York City, Steamship Company, with directions.

for claimant-appellee. Fuller, the libelant, is the assignee of the claims for damages of a number of importers

Before ROGERS, MANTON, and of lemons on the steamer Bencleuch on a HAND, Circuit Judges. voyage from Messina to New York in June and July, 1917. On arrival the out-turn HAND, Circuit Judge (after stating the showed a number of cases crushed and the facts as above). [1] The damage done upon lemons injured, and other cases blackened the ship must be distinguished from that done by moisture. The discharge was made in in the slings and on the piers. The first was slings, 9 to 11 cases to the sling, and the of two kinds, breakage and decay, against proof was that in the slings and in landing both of which the bills of lading contained exthe cases upon the docks they were further ceptions. Therefore, since the ship had showdamaged. On the wharf the marks were con- ed that the loss was within the exceptions, the

So wo

10 F.(20) 49 libelant must prove some negligence on the upper tiers was straight along the grain; ship’s part. Nelson v. Woodruff, 1 Black, but as the ship worked in the sea there would 159, 17 L. Ed. 97. The Harter Act (Comp. be lateral strains, which must be taken up by St. $$ 8029_8035) has nothing to do with the covers or “shocks” between the ends. If this situation. There was no attempt in the these were brittle, and not tough, they would bills of lading to exempt the ship from lia- more easily yield, and, once the ends were bility for careless stowage, at least unless thrown out of vertical, they would cease to by contact with other goods; nor is the war- act as effective bearings, and the cases might ranty of seaworthiness involved, because the easily be crushed, just as they were. damage did not arise from anything which understand Pilcher to have testified. The could be attributed to unseaworthiness. same cause might account for the small shift Hence the libelant had the burden to show which was observed. some fault in stowage or care of the cargo. [4] But we think it unnecessary to make any As to decay, none such was shown or even finding on this question. It is enough that attempted. The sweat was no more than in the damage was shown to be due to an exevitable, proper ventilation being shown, and cepted cause, and that the libelant has shown if the decay was accelerated because of the no negligence, but that the ship has proved breakage, that was one of its consequences, the stowage good. We have not forgotten and stands or falls with it.

the testimony of Sweeny that it was custom[2,3] Therefore we confine our discussion to ary to set what he called “dunnage” at inthe breakage, remembering on whom the bur- tervals across the tiers, apparently to distribden rests. In this circuit it is the established ute the weight more generally. Not only rule that mere excess of damage over what does this testimony stand alone and contrais usual under the circumstances is not prima dicted, but it is apparent that as this stiffenfacie evidence of negligence in stowage. The ing, or whatever it may be deemed, was not St. Quentin, 162 F. 883, 89 C. C. A. 573; anchored at the ship's side, it could not reThe Arpillao (C. C. A.) 270 F. 426. The lieve the lower tiers of the least part of the learned judge below appears to have ignored weight, but indeed a little increased it. All this rule, and assumed that the excessive that it could do was possibly to prevent a breakage was itself proof that the stowage shift in the cargo. Considering that the was negligent. On the contrary, the proof is stow was solid from side to side, we can see that the cargo was properly stowed. In the no reason for adding such a supposed pre'tween-decks there could be no question; caution. Therefore we exonerate the ship and there only 6 tiers were piled, and that was a the Cunard Steamship Company from any moderate burden for the lowest tier. Indeed, damage before discharge. As the ship had no little damage occurred there anyway. In the part in the discharge, and is not liable after holds the situation was different. The cases the cargo clears the rail, we affirm the decree were piled in about 15 tiers from the ceiling, as to her. five feet above the tanks, to the beams, or [5,6] There remains the liability of the comnearly. But 15 tiers were not uncommon pany for the discharge. This was done by and had not in the past caused trouble; in- slings which we think were improper. While deed, cargoes came through 22 tiers in height, it is quite true that platforms, the alternative and made good delivery. Nor did the venti- means, were not generally used at the time, lation shafts under the square of the hatches they have since become the accepted apgive way or cause any shift.

paratus for such cargo, and were used in unIt is quite true that the lowest tiers loading the Ellerdale at the same time. Apwere badly crushed and much loss occurred parently the only reason for not using them thereby. But that might have been due to

on the Bencleuch was that none were then the fact that the cases were uncommonly available. It was in war time and their abfrail, as there was good reason to suppose

sence is readily understood. Certainly, after from the evidence relating to the wood used the discharge began to show the character of for the covers.

the cases, slings ought at once to have been It is argued that, as the cases lay on their abandoned. But we go further and hold that sides, the support was in the heavier end they were not a proper means at all. The pieces, whose wood was, so far as appears, whole weight of the draught bore against strong enough. But the libelant fails to rec- those cases under which the ropes ran, and ognize the part which the covers must have in some cases the lemons were actually played in holding fast the ends. As long as squeezed out. Furthermore, there was damthe ends remained vertical, the thrust of the age as the draughts were put on the wharf,

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