loquitur is inapplicable in the situation presented by this case, but I believe that the libellant has produced sufficient evidence of negligence, in addition to the happening of the accident, to carry the burden of proof upon him. This evidence has been referred to above, but a reference to further facts may present a more complete picture.
In January of 1940 the Steamship "Etna", with a cargo of wood pulp, sailed from Sweden. She was convoyed by the Swedish Navy within the three-mile limit because of German mine fields, and sustained damage to her bottom and propellers as a result of striking ground. The cargo from her No. 1 hold was thereupon removed and shipped by rail to Landskrona. The vessel was repaired and sailed to Landskrona, where the cargo of No. 1 hold was reloaded. After reloading, the "Etna" sailed for Philadelphia and experienced such heavy seas and bad weather that on the date of her arrival, April 15, 1940, the captain signed a protest before a notary public that the vessel "experienced high seas and head-winds -- ship laboring most of the voyage and the appearer apprehending damage or loss notes this protest accordingly."
It was on the same day that the discharge of the cargo began and the accident to libellant occurred. The witnesses who saw the condition of the cargo forward in the No. 1 hold testified that it appeared to have been stowed at angles and with spaces and that it was not stowed evenly or held securely in place by adequate dunnage. Such a condition could have resulted only from improper and negligent stowage because this portion of the cargo was not being unloaded by the stevedores and could not have been thus disturbed by them. Although the captain of the "Etna" testified that the loading at Landskrona was done by experienced stevedores, he further testified that he looked down into the No. 1 hold after the accident, but neither he nor any other witness on behalf of respondents contradicted the testimony of libellant's witnesses as to this condition of the forward cargo. Moreover, if the captain had sufficient cause of believe that the ship had encountered so rough a voyage that the disturbance of the cargo might have injured the said cargo, he should have been equally alert to possible injury to stevedores as a result of such disturbance.
It is argued by respondents that since the unloading of the ship had been undertaken by the Jarka Corporation, an independent contractor, that company alone had the duty of seeing to the safety of its employees, and it was the failure of the Jarka safety man to lash up the Wilmington cargo which resulted in the accident to libellant. The evidence shows, however, that the rearmost tier of the Wilmington cargo appeared to be stowed evenly and firmly and neither the libellant nor his employer had cause to believe that the forward cargo had not been evenly and properly stowed.
With respect to the duty of the respondents, it is established that the owner of a vessel owes to stevedores engaged upon the vessel, even though they be employed by an independent contractor, the duty of exercising reasonable diligence to furnish a safe place in which they may perform their services, and to notify them of any latent dangers or defects in the vessel. Grays Harbor Stevedore Co. v. Fountain, 9 Cir., 5 F.2d 385; The Chicago, D.C., 156 F. 374. It is likewise recognized that the master of a vessel has the duty of seeing that the cargo is properly stowed, Carter v. Brown, 5 Cir., 212 F. 393, and, where an injury occurs to a stevedore unloading a cargo as a result of negligent loading, the ship and her owner cannot escape liability by showing that the loading was done by an independent contractor who employed competent stevedores. Munson S. S. Lines v. Newman, 5 Cir., 24 F.2d 416. In the case at bar, therefore, the ship and her owner are responsible for the improper and negligent stowage of the cargo which resulted in the injury to the libellant.
There remains only the question of damages. There is no conflict as to the injuries received by libellant, or as to their seriousness. Under all the evidence, I fix damages in the amount of $12,000.
Conclusions of Law.
1. The proximate cause of the injury to libellant was the negligence of the respondents in permitting careless and unsafe stowage of cargo in the No. 1 hold of the Steamship "Etna".
2. The owners of a ship are responsible for injuries to a stevedore in the employ of an independent contractor resulting from an unsafe condition in a part of the ship where he is required to work.
3. The owners of a ship are responsible for injuries caused by improper and negligent stowage of a cargo, even if the stowage be done by a competent independent contractor.
4. The doctrine of res ipsa loquitur is inapplicable in this case because the instrumentality causing the injury was not at the time of the accident in the exclusive control of the ship's owner.
5. Libellant was free from contributory negligence.
6. The libel is sustained and damages of $12,000 are awarded to the libellant.
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