Page:Federal Reporter, 1st Series, Volume 1.djvu/97

 PHALON V. THE HADJI. 89 �Phalon V. The Hadji. �(Bîstriet Court, E. D. Nm York. January 5, 1880.) �ADOTRAiiTr — Xegligence. — It is not negligence to cover the lower deck bcans of a steamer with loose planks, for the purpose of stowage, wlien the party injured has notice of the manner inwhich tlieyare placed, and uses the same without any necessity. �Benedicï, J. This is an action in rem to enforce a lien upon the steamship Iladji for the damage sustained by the libellant by reason of injuries occasioned by bis falling from the between-decks to the lower hold of that steamship in the port of New York, on the eighth day of September, 187T. �The following are the facts : The steamship was an open- beam vessel; that is to say, she had beams running across the hold on whieh a lower deck could be, but never had been, con- structed. Vessels of this description are not uncommon. They are not unfinished vessels, but a kind of vessel used in navigation. The lower deck beams of this one were about seven feet apart ; around the sides of the vessel, at the end of the beams, was a stringer, forming a passage on which aper- son could pass in safety fore and aft in the between-decks, and which was used for that purpose. Therewere also beams some two feet wide running across the vessel, capable of be- ing used and actually used to pass from one side of the between-decks to the other. �The steamship in this condition was taking in cargo, and certain deals in the lower hold being found to be in the way were removed to the between-decks and laid upon the low.er deck beams, They were not laid for the purpose of forming a deck or to be used to support cargo, nor were they to remain there, but were simply placed on the beams temporarily, be- cause they were in the way elsewhere. These deals, when so placed, extended from the stanchions amidships to the string- ers in the wings, on each side, and for the most part covered the deck beams from the fore hatch forward. They were not etted to each other or in any way secured to the beams, but simply laid side by side fore and aft upon the beams, in some ��� �