THE HOGARTH. NEW YORK LIGHTERAGE & TRANSPORTATION CO. v. THE HOGARTH et al.; SAME v. HOGAN et al.

THE HOGARTH. NEW YORK LIGHTERAGE & TRANSPORTATION CO. v. THE HOGARTH et al. SAME v. HOGAN et al. (Circuit Court of Appeals, Second Circuit. December 2, 1895.) Shipping — Loading Cargo prom Lighter — Loss op Goods. A ship was loading heavy packages of goods from a lighter by means of a boom projecting over the lighter’s rail, no guy being used with the sling. The eases had been piled in tiers next to the lighter’s rail, each tier being-composed of three layers of cases. There was a space of some 12 to 18 inches between the outside tier and the one next to it. In raising the topmost case of the outside tier, which case was much broader than the one immediately beneath it, the latter was shoved over the rail and lost, by the sinking of the back edge of the upper case into the space between the two tiers as the front edge was raised by the sling. Edd that, as it was the duty of the lighter’s master to place the cases within the reach of the ship’s tackle, the lighter was responsible for the manner in which the cases were piled along the rail; that, if a guy was necessary, it was the duty of the lighter’s master to notify the stevedore stationed on the deck of the ship of such necessity; and that, if there was any negligence, it was due to the manner of piling the cases, and the ship was not liable for the loss. Appeals from the District Court of the United States for the Southern District of New York. These were libels by the New York Lighterage & Transportation Company against the steamship Hogarth (the Liverpool, Brazil & River Plate Navigation Company, claimant), and against Timothy Hogan and others, to recover for the loss of a package of merchandise lost overboard while loading cargo upon the Hogarth from libelant’s lighter. The district court dismissed the libels, with costs, and libelant has appealed. The Hogarth was lying alongside a wharf in Brooklyn. Outside °of her, along her starboard side, lay a lighter, the property of the libelant. The port side of the lighter was towards the starboard side of the ship. The cargo on the lighter consisted of heavy machinery in cases, and driving wheels of locomotives. A boom was rigged out from the mast on the ship, and swung about a foot and a half over the ship’s side. The sling around the cases was made fast to tackle rigged to the end of the boom. No guy rope was used with the sling. At the winch on board of the ship wras one of the ship’s company in charge. At the gangway on the ship stood George Crowley, one of the stevedore’s men. On the lighter were two of the stevedore’s men, Willis and Leary, who had charge of the slinging of the different eases and pieces of machinery, of fastening the tackle from the end of the boom into the sling, of signaling when to start, and of hoisting. On board the lighter was John Olsen in charge. He was in the employ of libelant. It was his duty to bring the cases of pieces of machinery within reach of the ship’s tackle. Thereafter the stevedore’s men took charge of it. The port tier of cases on the lighter — that is, the tier next the rail of the lighter — was made up of three layers of cases, one on top of the other. There was a short space between the outside tier and the next tier, variously testified to as being about 18 inches. The dimensions of the case in the sling were 7 feet 10 inches by 7 feet 9 inches by 3 feet 6 inches, weighing 2,800 pounds. The dimensions of the case that went overboard were 10 feet 11 inches long, 2 feet 9 inches wide, and 1 foot 4 inches thick, weighing 2,570 pounds. The following opinion was delivered in the district court by BROWN, District Judge: “The evidence leaves no doubt that the second case above the deck was forced off from the side of the lighter by the great weight of the case above it, as the latter was being raised to go on board the Hogarth. The latter case, being broaelor, mueli overriaipeel 1li(i ease Ijoiu'utli, and, as the side towards tlie ship was lioipfed lip, tlip opposite overlapping sido sank down somewhat into The. spacer of 12 to 18 inches between the case beneath and 1he neixt insider tierr e-ase%, so that the great weight of the rising easer pre>,sse:el lic'avily against the eielgo of the e-ase? benefitli, and fore-cd it outwards; and the batieras may also have caught. 'Hie' narrower box. below was^ abover the lighter's rail, and there were no posts to ke’<>p ii from going em'i'boárd as it was preasen! outward by the rising hox, so that it we'iri down enigenvaya between the: two veisoels, pro?'ably assisie'd by isome1 list of the lighter to port. I do not find sufficient evidence to charge either the Uc-garth or tint surveeloro with the responsibility for this loss. Xe'gligoüe-c; an ilwii part is not shown. The captain of the lighter testifies: that her war, required to bring the cam's within reach of titer ship's tackles by user of the; lighter’s own applianecs, and that her did so. The stcwerelorer had riggerel the; ship's boom so its let project beyond Iter tail for hoisting up the eases, and it was no doubt the business of the'liglitermaii to bring: the (whom beneath the boom, or near it. Í do nett, fine! established any oilier diree-tion to liter lighterman than Utah. It was no concern of the ship or to the stevedore whe'ihcT (he, cases berneaUi (her boom wc>ree taken from the top of other boxes, or from the deck of thee tighter. The captain of the lighter had full control of lhai, and her evidently could have done' as her chose about, it. If was for him to seer to it üiat he deposited the cases for laming in such a way as not to crowd off or injure other cases, beneath tlienn, which we're' not ><>t ele'live'reel to ¡he ship, but were still under tiler lighter-man's c-ontrol and responsibility. A number of other boxes had berern previously silling up from on top of this same box without crowding it, probably ben-ause tile1 previous boxes did not overlap. There,' ⅛ no proof of nergligeneie in the mode' of hoisting, or in (her appliances userel. As respects guys, the. evidernce is that it was not usual io maker user of tlurtn where the boom projected, as this one did, beyond the vesse'l’s rail, and that therre was no apparent need of therm, if there was any noe'd of therm, having referreucer to the liability of boxers below to ho crowded off, thnl was a mutter specially within the province of, the light or-inan to observe, and to periut out to the slewcdoic’s foreman, who was on lite ship, and neit in a position to observe err know any such peculiar sitúatiem. There was no request for guys, or noe'd of tlienn pointed out. There is further evidence, which is nett contradicted, that guys would have been of no use? to prevean pressure» in the raising erf cases erf so great weight as these. The only ne'gle'e-t shown is in putting a wielc, overlapping e-a.se above a narrower one, wheie eme siete? cernid sink inter the spae-er botvvevn the two 1ie>rs, whern it begun to riser, so as ter e:atch auel e-rowei out file? imrrervve’r box beniesath, with ueitUerr rail nerr persts to keep it. in plae-er upern the lighter. The eieposii of the case's was the; light('imams ae-t, and not that of the ídeve'(Ierre. The steveeterre’s two mem em the; lighter were ordinary wen-king mem, not exercising any control, anel evi-eiently having no autherrity to control the e-aptain of the liglite'r, as to whether ho should deposit the; e-ases so as to be lianle'd from the elee-k, or from the terp of other boxes. The lighterman very likely placed these boxes em terp erf oí heirs, instead erf upon his deck, so as to pre'vemt any swinging of iho herxes against his ervvn rail. Whether ihat is so or nert, I de> nert find any negligemeie irrervod against the de'fe'udants. anel the lihtrls are therefore dismissed, with disbursements, and one docket fee.” II. \V. Goodrich, for appellants. Edward. L. Owen, for appellees. Before WALLACE, LACOM.BE, and BHIPMAN, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. Decree's of district court affirmed, on the opinion of tlie district judge, with interest and costs.