(dissenting). About the middle of January, 1899, the Austrian steamship Styria was in the port of Galveston, Tex., to receive a cargo of grain. Her last cargo had been hides and tallow, and she was in a dirty, slippery, disordered, and greasy condition. I quote from evidence of the stevedore’s foreman:
“Well, when I was going through the ship with the master I noticed the dangerous openings below, and I told him this was the God danmest old trap I ever worked in. * “ * Well, as stated above, I called the master’s attention to the ship being dangerous in general terms, without pointing anything specific; that is. did not point out what was dangerous and wiiat not. If I had undertook to do that, I would have had to take him all over the ship, because she was dangerous all over. She was at one time a tramp emigrant ship before she -was put into tills service, and for their convenience for general cargo, I suppose, they had cut out the lowest ‘tween-decks In sections. This made her very dangerous to those who were not familiar with her.”
The construction of the forward part of the Styria was substantially as shown in the two following diagrams:
Just forward of the engine and boiler space and aft of the ISTo. 2 hatchway between the lower decks was a spare cross hunker, intended to carry coal, but also used, on occasion, to carry cargo. *494There were round iron chutes running from the upper deck to the second or main deck, through which coal and cargo could be sent down to the bunker; and, in the floor at the bottom were three hatches about four feet square, intended to allow the coal to pass down to the lower deck, and then through doors to the engine room, to supply coal to the furnace. These hatches were without coamings or hatch covers, and were so built and intended for the purpose of allowing coal to pass freely down to the engine room. This bunker extended across the ship, and there were no other openings than those above mentioned except two doors about 20 feet from the nearest hatch, one on the port and one on the starboard side, both opening on to an apron about 3 or 4 feet wide, and thence connecting with the ladder to No. 2 hatch. Thus the cross coal bunker was absolutely without light, and could only have daylight when the door was open; and even then it was dim in the daytime, and, of .course, at night, although the doors were open, it was perfectly dark. When the ship was turned over to the stevedore and his gang for the purpose of being cleaned and prepared for grain cargo, the foreman of thé stevedore was shown all through the ship' by the master and chief officer, and it appears he fully appreciated its condition. On the morning of the 13th the stevedore and his gang took charge of the ship so far as it was- necessary for the preparation and cleaning of the same. The stevedore’s men worked on the ship day and night throughout the 13th, 14th, 15th, and 16th of January. During all this time the doors of the cross coal bunker were open, and during all this time the stevedore’s men used the cross coal bunker to keep their tools and supplies — nails, hatchets, saws, and lumber —and to place their clothes. The men were going into it at all times, and to some extent used it for a lounging and smoking room. On the 14th of January one of the stevedore’s men going in or out carrying a plank stepped into one of the hatches, and, according to his own evidence, would have fallen through but for the plank he carried. He was somewhat bruised, and his accident was known to his companions. On the morning of the 16th of January the stevedore’s foreman took men into the cross coal bunker to measure up and find the necessary amount of lumber to make the shifting boards fore and aft, so that the bunker might receive cargo; and on the 16th the said cross coal bunker was cleaned to some extent, and nearly prepared for cargo by the stevedore’s men. All this was prior to the accident to Fleming. It does not appear decidedly from the evidence when Fleming went to work on the Styria. None of the apparently willing witnesses for the libelant were able to speak in that regard except two, one of whom (Mayfield) testified that Fleming commenced work on the morning of the 16th, and that he saw him at work on another ship the day before; while another witness (Walker), whose evidence seems to be punctuated with a trifle more slang and profanity than that of the other witnesses, testifies that he (Fleming) went to work on Sunday morning, the 15th. However that may be, on Monday, the 16th, about 1 p. m., being called from another hatch to work in' No. 2 hatch, he went into the cross coal bunker, and deposited his clothes on the port side *495of the ship; then worked somewhere in No. 2 hatch until between 5 and 6 o'clock, when the men were called off with a view of going to work again at 7. About this time — say 5:30 p. m. — Fleming was seen in the cross coal bunker without a light, and he then inquired of a companion outside where were his clothes, saying that he could not find them. The probability is that his clothes had been moved during the cleaning which had been going on more or less in the cross bunker that afternoon. The next seen of Fleming was about 7 o’clock, when he was found at the bottom of the hold, in his work clothes, dead, apparently having fallen through the port hatch of the cross coal bunker. The case seems to show that in searching for his clothes in the cross coal bunker he had fallen through, and met his death at the bottom of the ship. At no time did Fleming use a light when in the cross bunker. Some of the others used lights, all of which were furnished by the stevedore.
The opinion of the court relieves the owners from responsibility so far as the construction of the cross coal bunker and the hatches therein is concerned; that in respect thereto they were not in fault, the necessities of the ship, her economical management, requiring the construction as made; but the court holds that the owners are liable because the doors of the cross coal bunker were left open, dnd the stevedore’s men were not warned of the danger of going into the cross coal bunker. As I have stated the case above, it seems to me that, so far as the warning to the stevedore and his men (who, by the way, are supposed to be more or less experienced in the building and construction of ships, and whose calling it is to work on all sorts of ships at all times of the day and night) is concerned, they had better opportunities to see the dangerous character of the hatches in the cross coal bunker, for they were going and coming in there for four days, cleaned up the same, and used it as a lounging room, than had the officers of the ship, whose occasion to inspect the coal bunker would come seldom, and at long intervals. The late adjudged cases on the subject of warning to stevedore employés are to the effect that a ship which is turned over for loading or coaling to a contractor, who is fully notified of the location of the hatchways and hatches, and that they are uncovered, owes no further duty to the individual stevedore employed by such contractor of the danger from such hatchways, or to protect them therefrom, but such duty devolves upon their employer, and the ship cannot be charged with liability for an injury to a stevedore resulting from his falling through such hatchways. I quote from a well-considered case as follows:
“The ship bore no contractual relation to the libelant. It had not employed him. It had made no contract, expressed or . implied, for protecting him. The ship had a right to come to port with all its hatches on or oil, or with part of them on or part of them off, quite according to its own convenience; and if it owed a duty of guarding an open hatch, or of advising of its existence, the duty was fulfilled when the conditions were made known to the person to whom it turned over the ship for loading. No duty required it to keep watch of the servants employed by the stevedores, and warn each in turn, or to light the holds so that a person happening to be employed without its knowledge might not fall into a well-known hatchway, nor to cover the hatch for such person’s protection. If any in*496struction, warning, or protection was needed, it should have been given by the, stevedores. The hatch was not unusual, the absence of the bulkhead between it and hatch No. 2 was not unusual, and its open condition was not unusual, although it was neither necessary nor useful. The general holding seems to be that a stevedore will be presumed to know of the usual hatchways, and of the custom to leave the covers off while the ship is in port. If this be the law, there is nothing unusual about 'the bunker hatch in the present case which should except it from the rule just stated. But the further rule that the contractor’s servants must look to him for the observance of duties mandatory between master and servant has full force in such a case, and, when a ship is turned over to such contractor for the purpose of loading, he, if anybody, should be responsible for the dangers that may arise from the open condition of the hatches. The cases relating to injuries by falling through hatchways are collected in the Saratoga (I). 0.) 87 Fed. 349, although the conclusion reached in that case was not approved by the circuit court of appeals (36 C. C. A. 208, 94 Fed. 221). See, also, The J. W. Taylor (D. C.) 92 Fed. 193.” The Auchenarden (D. C.) 100 Fed. 895, 896.
If this, is the rule when a ship is turned over to a stevedore for loading cargo or coaling, and where the master of the ship practically says to the contractor, “My ship is ready and prepared to receive cargo or coal,” it is undoubtedly a safe rule to apply where the master turns his vessel over to the stevedore for cleaning and repairing and fitting up to receive cargo, where the master of the ship practically says to the stevedore and his men: “My ship is out of order. It needs cleaning, fitting up, and preparing to properly, receive cargo.” In cases where the cargo has just been discharged it is common knowledge that there are loose lumber, uncovered hatches, and many dangers, covered and uncovered, to deal with. In this connection it is proper to note that the dangerous hatches in the cross coal bunker were actually covered by the stevedore’s men when they got ready, and this in the regular line of their employment.
I have examined the record in this case very carefully and attentively, and I am constrained to find that the owners of the Styria were not in fault, and are not liable for the death of Fleming, unless they are insurers against the effects of their own negligence of all the. people who may work on the ship. When Fleming went into the cross coal bunker on the 16th to deposit his clothes, there was probably some daylight, and yet he should then have had a light, which it would have been the duty of the stevedore to furnish; and when, after 5 o’clock on the evening of January 16th, after nightfall had set in, he went into the same bunker to search for his clothes, and it was dark, in then neglecting to provide himself with a light he was unquestionably guilty of negligence, more particularly as he then went searching around through the bunker to- find his clothes, which had either been misplaced or he had forgotten where he put them.