
    THE ELLERIC.
    (District Court, E. D. New York.
    December 30, 1904.)
    1, Shipping — Injury to Stevedores — Absence op Hatch Support — Responsibility oe Ship.
    Where the ship had been turned over to the stevedores, who had for some days been engaged in receiving and storing cargo, and had the hatches and their covers at their disposal, the ship could not be held (responsible for an injury to a stevedore, caused by the want of a fore- and-after to support the hatch covers, in the absence of evidence that the ship, which had fulfilled its primary duty of originally supplying the fore-and afters, Instead of the stevedores, had misplaced the fore-and-after.
    
      2. Same — Negligence oe Stevedoees.
    Fault in the action of the stevedores or contracting stevedore in employing but one fore-and-after to support the hatch, in consequence of which a stevedore was injured, is no ground for action against the ship.
    3. Same — Dieections oe Mate.
    Where it was obvious from the number, dimensions, and notches of a hatch cover that it did not belong on the part of the hatch over which the stevedores placed it, and, had they tried, they could have discovered that it belonged to another part of the hatch, one of their number could not hold the ship responsible for injuries caused by the failure of the cover to fit the hatch, although the ship’s mate told the stevedore’s foreman that the covers would fit.
    4. Same — Negligence oe Stevedoees.
    Where some hatch covers had been repaired by fresh wood, so that the number indicating their proper places was obliterated, it was the duty of stevedores engaged in covering the hatches to ascertain, by trying the different covers, where they belonged.
    
      n. Same — Liability oe Ship. .
    The laying by stevedores of a hatch cover marked “XII” or “X” as the second cover, with a margin of but one-fourth of an inch support at one end, and no fore-and-after to support it, whereas there were covers at hand which would have added nearly a half inch to the support, was a reckless use of appliances, the consequences of which, resulting in injury to a stevedore, were not chargeable to the ship.
    Convers & Kirlin (John M. Woolsey, of counsel), for claimant.
    Walter I,. Pate, (William S. Maddox, of counsel), for libelant.
   THOMAS, District Judge.

The libelant was a stevedore employed by persons who had engaged to load the ship. The cargo was lowered through the upper hatch, and allowed to rest on the fore section of the between-decks hatch, and thence shifted into its proper position. The fore part of the hatch was covered by five hatch covers, placed athwart-ships. There was under them but one fore-and-after, placed at about one-third of the distance from the port side of the hatch. Another fore-and-after towards the starboard side of the hatch was required, but it was not in place. The athwartship iron beam was in place near the middle of the hatch, but there were no fore-and-afters in the after-part of the hatch, although several hatch covers were laid longitudinally across the after-part of the hatch, one end resting on the aft coaming and the other on the athwartship beam. It appears that several ■ of the longshoremen were engaged in trying to find the remaining fore-and-afters, but after diligent search could not do so, and reported the fact to Downey, their foreman, who was on the upper deck. He, as claimed, called the attention of the third mate to it, who said that the fore-and-afters were down there. Thereupon the foreman told the men to look again, but upon their reporting that they could not find them Downey again spoke to the mate, who, as Downey affirms, stated that, “The hatches will fit anyway.” Thereupon the men were ordered to put on the hatch covers, and they did in the manner stated. It appears that some nine hatch covers were put on — five athwartships in the manner stated and four lengthwise over the aftersection of the hatch — but that only a few of them had any numbers, and these were not consecutive numbers. Several of the hatch covers showed that they had been repaired recently, and bore no numbers whatever. The morning after the accident all four of the fore-and-afters were found . in the between-decks, and one of them was new. On July 24th the proctor for the libelant visited the ship and made some measurements. He found seven hatch covers out of the ten required to cover the. hatches. Of these three had numbers. The distance across the fore section of the hatch was 13 feet 11% inches, and across the after-part of the after-section of the hatch 13 feet 10% inches. Of this distance 1% inches on each side constituted the supports for the hatch covers. The second hatch cover from the forward part of the hatch bore the-marks “LXII,” meaning “Larboard XII.” It was 13 feet 10% inches. The claimant contends that it read “LX.” None of the other hatch covers was as much as half an inch longer than this one. If this cover were set back snugly in place on the port side .of the hatch, it would be supported on the starboard side to the extent of only % of an inch. If it had been placed in the after-section of the hatch, it would have fitted and filled the entire space lacking % of an inch. After the work had been in progress for about an hour, during which time boxed sewing machines had been laden, a sling was lowered into the forward' part of the hatch, and all of it was stowed away except one box, which the stevedores were handling, when another sling came down on the hatch, whereupon the starboard side of the second hatch cover slipped off, allowing the libelant to fall on the starboard side of the fore-and-after that was in place. At the time of the accident he was standing on the port side of the fore-and-after. The question is, what breach of duty was there on the part of the vessel? It is first to be observed that the hatch covers were not consecutively numbered, that some of' them were without numbers, that there was no specific place for hatch-cover “LXII,” although the evidence of the ship is to the effect that this hatch was numbered “X.” But, assuming that it was a promiscuous lot, was it the duty of the persons undertaking to use them to see-that they were put on in places where they would fit? For instance, it was not proper to put the hatch cover numbered “XII” or “X,” and in length 13 feet 10% inches, across a space 13 feet 11% inches, so that it would receive a support of but % of an inch on one side, and to receive on such hatch cover the slings of cargo in addition to the weight of the men working there. The ship had been turned over to the contracting stevedores, and for several days they had been engaged upon her. Before beginning the work on the between-decks, the stevedores had been receiving and stowing cargo in the hold. Hence the hatch and its covers had been .at their disposition, as had been the other cargo portions of the vessel. When the stevedores wished to stow cargo in the between-decks, it was necessary to replace the hatch covers over the hold. Three fore-and-afters were missing. Search did not discover them. They were present the next day. One-of them was new. There is no evidence that the ship was responsible-for the undiscovered fore-and-afters. They and the hatches had been in the presumptive possession of the stevedores for the purpose of' loading, and the inference that the stevedores misplaced them is stronger than that the ship’s fault caused their disappearance. Therefore no recovery by the libelant can be based upon the absence of the fore-and-afters. That they were on the ship is certain. So the-primary duty of supplying them had been fulfilled. Some one had misplaced them. There is no presumption that the ship did it. The men laid five hatch covers across the open hatch. They used but one fore-and-after. The plank worked out and fell, as, of course, it must fall. If there was fault in employing but one fore-and-after, it was the fault of the contracting stevedore or the stevedores, or both. The foreman told the men to do it. They did it. If there was danger and negligence in view thereof, the ship should not respond for the fault of the stevedore. But to this the libelant answers that the hatch cover would not have fallen if it had fitted, and the third mate told the foreman that the covers would fit. Assuming that the mate did so state, he did not state that any cover would fit in any place throughout the entire hatch where it might happen to be laid down. He did not authorize covers to be laid by chance. No stevedore could justly infer that. Each stevedore knew that there is an order in which the covers of a hatch must be laid. When the men laid the hatch cover marked “EXII” or “EX” as the second cover from the fore part of the hatch, they knew it did not belong there, (1) because it was marked for some other place, (2) because it was notched to fit into stanchions aft,-(3) because they could see that it lapped but one-fourth of an inch on its support. Had they tried it in the after-part of the hatch, according to the evidence, they would have found that it fitted the space, less one-fourth of an inch, and was adjustable to the stanchions. It is true but ten hatch covers were required, and that a cover marked “LXII” could not be placed as the twelfth cover. But it was just as certain that it was not the second cover, while a trial of it aft would have resulted in suitably placing it, and a trial of some of the other hatches at the second place would have given a full support on the port side, and a three-fourths of an inch support on the starboard side. But it is urged that the ship did not number the hatches consecutively, and some not at all; hence their order could not be determined by the number. The evidence shows that the absence of numbers in some cases came from repairing the hatches, so that the numbers were cut out. But the men knew this. It was their duty to look for the numbers. Had they done so, they would have found that in some cases they were absent, and the fresh wood in the places of repair gave the reason. There was all the more reason for ascertaining where each cover belonged. As there were no numbers to direct, trial of the pieces alone could determine. But the laying of a cover marked “XII” or “X” as the second cover, with a margin of one-fourth of an inch support at one end, and no fore-and-after at all on that side, while there were covers that would have added nearly a half inch to the support, was a reckless use of appliances that is not chargeable to the ship. If the stevedore ordered it, he is the person to be accused.

The libel should be dismissed.  