Page:Federal Reporter, 1st Series, Volume 2.djvu/252

 OEERITT V. BAEK KATB CANN. 245 �ployment of the ship as an instrument of commerce, and owing to the person injured. If, then, it appears in this case that there was a duty owing to the libellant in respect to the maiiner of stowing the dunnage and plank that fell upon him, and it also appears that such duty arose oui of the employ- ment of the ship as an instrument of commerce, and to be performed on navigable waters, the jurisdiction of this court to condemn the ship, and the right of the libellant to require that the ship be held to be charged with the damages caused to him by the omission of that duty, must be upheld. �I proceed, therefore, to the inquiry whether the owner of this ship, who, for the purposes of this inquiry, must be held to be represented by the crew of the ship, under the rule already stated, became charged with any duty towards the libellant in respect to the stowage of the dunnage and plank that caused the injury in question. The character and posi- tion of the dunnage and plank here become important, and it is to be noticed that the weight of the mass, and its posi- tion at the top of the between-deeks, and overhanging the space where men must necessarily be at work, rendered the structiire dangerous to life, unless it was properly secured. It was 80 arranged that, from its nature, it was dangerous to ail persons who might be in that part of the between-deoks. It was at ail times, at least from the time of the addition of the planks to the weight resting upon the braces, equaUy dan- gerous, and necessarily so. The danger arose not from any use of the thing, but from the thing itself, �So far as the character of the structure affects the question of liability, this case seems to be within the principle of the case of Thomas v. Winchester, 6 N. Y. 397 ; for in this case, aa in that, the death or great bodily harm of some one was the natural and almost inevitable consequence of the structure as it was at the time it fell. Such being the character of this structure, in case the mass was not properly secured, if the libellant was in the between-decks of this ship in the exercise of a right to be there, the ship-owner owed him a duty to see that the dunnage and plank were properly secured, which duty was not properly performed. ����