Page:Federal Reporter, 1st Series, Volume 7.djvu/795

 THE RHBOLA, 7S3 �lant for wMch this suit was bronght. ' The weight being lifted was about 1,500 ]f)ounds. The iink thait broke was never found, though search -was made for it. The chain was afterwards tested by a competent machinist, and broke at a weight of seven tons. It was somewhat worn where the links came together, especially in the middle, and the testimony showed that it parted not far from the middle. Before putting this chain on at the hatch where it plafted an examination of it was made by the ma,to and the stevedore, by passing it along through the hand and examining the linkS, bending a few of the links. No defect was then discovered in it. The chain which broke the day before had had two or three times the use which this chain had had, and was ttioreTTorn. Compe- tent machinists, who examined the chain af ter the accident, were of the opinion that it was safe for lifting from two to fonr tons. When they examined it they, of course, did not see the Iink that parted. �Under these circumstances I think the libellant cannot recover. There was no privity of contract between the ship and the libellant. The averment in the answer that he and those working with him were co-servants of the Tespdndent is obviously a mistake. It is not averred in the libel that libellant was in respondent's employ, and the contrary was proved by libellant himself. The liability, ' theref ore, if it exista, does not arise ont of the breach ol any coIItfSict be- tween these parties; and in such case the rule seems to be that the owner of the defeotive or dangerbus article, by reason of the defect in which in'jury is done; I3 nbt liable unless the defeotive thing is imminently dangerous. Loop v. Litckfield, 42 N. Y. 351; Burke y. De Castra Go. 11 Hun. 353; The Germania, ut supra. See, also, Longmeed v. Hulladay, 6 Eng. L. and Eq. 562; The Aalsemund, 9 Ben. 203, Even if the degree of negligence which would be suflBbient to make the respondent liable as employer were enough, the testimony does not show such negligence. It must be shown that the defect was known to the employer tir eotild have beeti dis- covered by him. De Graff -v. Bailroad Co. 76 N. Y. 125. See, also, Jones v. Railroad Co. 11 N. Y. Wky. Dig. 7. ��� �