The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-10-21
U]DGE DOLE'S OPINION
IN FULL IN THE CASE OF
BARKENTINE FULLERTON
Continued from Page Five.)


it with their eyes open to the danger
and accepting the risk.
| The question of the assumption o.
risk by the libelant is, perhaps, the
most important one in the case, and g
great deal of testimony has beer
placed on record in regard to this. The
! defendant endeavored to show that IL
belant knew, before the ship sailed
that the chain which was procured fol
| the port wildcat did not fit it. 1t is
shown that libelant, as first officer
| had charge on the 18th and 18th OF
! December of the work of getting to
sea, including the task of shipping
both the starboard and port anchor
| chains. assisting in shipping new
port wildcat, and other matters; that
the starboard chain came aboard early
in the afternoon of the 18th; the port
chain. which was a shorter one, came
late and was shipped after dark; that
the chains were transferred to the
chain locker by means of the wild
cats-as | understand it, the wildcats
were revolving, thereby letting the
chains pass over them into the lockers
below them 1t is contended that from
these circumstances libelant must
have known that the port chain did
not fit the wildcat. AS a matter of
fact, neither chain fitted either Wild
cat, and it is asserted that he knew
that the starboard chain did not fit
the starboards wildcat, and was so put
on his inquiry. do not find this to
be proved. Mr.. Evers, a consulting
engineer who was in the employ of the
company managing the Fullerton, de-
livered the chains on the wharf, and
he says that during the afternoon of
the 18th libelant admitted to him that
the chains did not fit the wildcats, but
that they would do. This the libelant
denies. He says he was busy here
and there attending to various mat
tiers, and was not especially in touch
with the wildcat. and didn't notice
that the chains didn't fit; the port
chain was put on in the dark and he
knew nothing about the misfit until
the next day when they were out at
sea, at which time he noticed it and
called the captains attention to it,
and the captain said to him, TELL me
something that I don't know" The
libelant was not called upon to inspect
everything to see that it was safe: it
was his right to take it for granted
that the owners and their agents had
done their duty in this respect. Hough
V. Railway Co.. 100 U. S. 219; Smith
V. Erie R. R. Co., 81 N. J. L. 636, SO
L. r. A. 3O6: Chicago r. r. Co. ".
Hines, 1872 Ill. ISL. % Am. st. R. SIS;
Louisville & n. r. Co. V. Baker, IL S.
452, 453.
The defense put on several of the
crew, one of whom said he saw the
starboard chain slip over the wildcat
while getting it aboard in San Fran
cisco, and noticed that it was too
large. The fact that this witness no.
ticed that the chain was too big does
not prove that libelant noticed it, or
ought to have noticed it. "A chain too
large for a wildcat might move with
it without slipping, where it was mere
ly taken in without any weight at
tached to it, and it may have moved
without any such slip, except at the
time referred to by this witness. The
statement of libelant that he spoke
to the captain the next day, and call
ed his attention to it. is not denied
by the captain; the further statement
that libelant, when he noticed that
the chain did not fit the wildcat,
sistent with the theory that he knew
all about the misfit character of the
chain the day before. The fact of his
speaking to the captain, and of his
the links after that date.
would imply surprise and some
There is nothing in libelant's
testimony that supports the theory
that he noticed the misfit of the chain |!
with the wildcat he day the Fullerton
sailed, and as to Evers' testimony !
that he admitted it, we have libelant's |
testimony denying that statement. On |
this point the burden of proof is on |
the libelee. Hough v. Railway Co., |
Supra. 225, 1864 I do not find that Ii
belant knew of the misfit of the chain |
with the wildcat before going to sea.
Counsel for libelee contends that
after libelant discovered the condition
Of things on the goth, while out at
sea, as he says he did. he still had I
the opportunity of leaving the en-
ployment of the ship, and therefore,
by going on with the ship, assumed
the risk involved in using the faulty
Hfndlass. When libelant was employ
I'd by the master on the 18th of De-
cember, no shipping articles were sign
eu, and ne says that he inquired of
he captain about shipping articles
and the captain put him off, telling
him that he could sign later Counsel
for the hbelees takes advantage of
this circumstance. in which the libel
mt was working under an oral agree
nent, to urge the contention that he
night have gone ashore at Port Har.
ord, and that by his not doing so he
the risk of using the faulty
wildcat and chain during the voyage.
The circumstances were these: The
Lansing met the Fullerton with her
Jug from five to eight miles out from
Port Hartford. and took her in tow.
The tug which brought her from San
Francisco had her own towline to
AXE up, and started away at speed in
rider to keep it from her own propeI-
er. 1t does not appear that there was
my very convenient or practicable op-
for libelant to have taken
advantage of the departure of this tug !
o leave the Fullerton. 1 do not see I
low it was possible for him to have .
lone so, except through the coopera-
ion and consent of the master. The ,
lbelant aDDeared To have regard