Kjaer & Isdahl v. Etier

PARDEE, Circuit Judge (after stating the facts as above). This is a libel in personam, which is prosecuted on the theory that, as Etier was lawfully on the ship, the owners were negligent in not providing for his safety, in that the trapdoor or coal chute was negligently left open by the officers in charge, that no light nor lights were placed at or near the opening, that no guard rail was placed around the said opening in said passageway or gangway, that no warning was given to Etier of the dangerous premises, and that no lights of any kind, with the exception of one dim lantern located a great distance away, were used or furnished on the ship, so that all the passageways or gangways were rendered dark or unsafe. Considering the evidence in this aspect, we are not satisfied that liability was established. Etier was a man of experience, familiar with ships and their construction, and it is to be presumed knew that necessarily on all steamships there were many dangerous places and passageways, and that it was unsafe, without specific knowledge or light, to wander around the ship at night. He was not a passenger nor invited guest on the ship, nor an inexperienced employe; and having no contract relations with the owners, they owed him in the most favorable light only ordinary care, and that he received. The owners were not negligent in the ship’s construction; the trapdoor of the coal chute and the doors to the fidley were left open to give air to the stokehold, and no light was required in the fidley, because it was not a passageway, and only people having duties therein,- such [246] as firemen, engineers, and officers, could have any business or occasion to enter therein. The authorities cited by the libelant all appear to be cases where the injured party was either on board as a passenger or on the invitation or business of the ship, and are not applicable to the instant case. Taking the case as a whole, the transcript shows that at the time of the injury to Etier the owners’ possession had been for some time and! was then divested. The ship was in custodia legis, and the marshal, representing the United States, was in possession and charge thereof, and was represented on board by Etier, libelant’s intestate, to whom the owners owed no other duty than not to willfully injure him. If the doors of the fidley were left open, and the fidley was not lighted, and the place was dangerous and ought to have been lighted, it was the fault and negligence of the marshal, represented by Etier, and the owners were not responsible. As to authority of owners when a ship is in custodia legis, see The Esteban De Antunano (C. C.) 31 Fed. 920. The decree of the District Court is reversed, and the libel dismissed.