Page:Federal Reporter, 1st Series, Volume 2.djvu/253

 246 FEDEEAL REPORTER. �In regard to the presence of the libellant in the between- decks, the evidence shows that he was net there by the mere sufferance or license of the ship-owner, but for the purpose of performing a service that could not be performed elsewhere, and in which the ship-owner had an interest. To be sure, the libellant was not directly employed by the ship-owner, and it may be truly said that no relation by contract existed between the ship-owner and the libellant. But the libellant was trim- ing the ship-owner's ship. He was doing what was necessary to be done to enable the ship to carry the cargo in safety, and the reason why he was so employed was because the ship- owner had, by a contract with the charterer, indirectly pro- vided for the performance of this service. �There was a relation between the ship-owner and the libel- lant arising, not out of the mere presence of the libellant on board the ship, but out of the service he was then engaged in performing, the necessity of that service to the ship-owner, and the circumstances of the libellant's employment toperform that service. The libelant had, therefore, a right to be where he was; and it folio ws that there was a duty on the part of the owner to see to it that the dunnage and plank stowed above him were so secured as to prevent its falling upon him of its own weight. Nicholson v. The Erie R. 41 N. Y. 533. �The libellant's case differa from the case of the Germania, to which reference bas already been made. In the case of the Germania a charterer of the ship had contracted to deliver to the ship a cargo of grain in bags. The libellant was employed by the charterer to sew up the bags of grain as they were filled, and while walking over the deck of the ship fell through an open hatchway and was injured. In that case it was not necessary that the bags be sewed on board the vessel, or indeed to be sewed at ail except to enable the charterer to per- form his contract to deliver the grain in bags. In this case the grain could not be carried unless it was trimmed on the ship, and the libellant was injured while engaged in perform- ing that service. This libellant was, in a very proper sense, reqïdred by the ship-owner to be in the between-decks of the ����