693.

desired its float to be shifted from the bridge by the Long Island Railroad Company. The fact that the Long Island Railroad Company rendered that service gratuitously is not any reason for imposing a liability on the Long Island Railroad Company from which it expressly exonerated itself. If the Lehigh Valley Railroad Company desired not to avail itself of the shifting services rendered by the Long Island Railroad Company, it should have had its own tug in readiness to do its shifting, so as to avoid congestion at the bridge. The libel, therefore, must be dismissed.

O. A. KNUDSON.

ANTONIO BARNEVO, Plaintiff-Respondent,

V8.

MUNSON STEAMSHIP LINE and FRANK APUZZO, Defendants-Appellants. State of New York, Court of Appeals, February 25, 1925.

PERSONAL INJURY-15. Persons Liable-CHARTER-1539. Stevedores1544. Discharge-STEVEDORES-12. Liability for Personal Injury. Under charter providing that "charterers are to load, stow and trim the cargo at their expense under the supervision of the Captain" and that owners remain responsible for the navigation, insurance, crew, and all other matters, same as when trading for their own account," the charterer is not liable for injury to a longshoreman caused by a defective hatch cover.

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CHARTER-15. Time Charter-31. Government Form-14. Demise. The government form time charter is not a demise, and the officers and crew of the ship are not the servants of the charterer.

STEVEDORES-12. Liability for Personal Injury.

A stevedore is not required to make an inspection as to the safety of a vessel's appliances unless there is some condition or circumstance to excite suspicion or suggest danger.

G. EVERETT HUNT, for Munson Steamship Line.

E. C. SHERWOOD, for Apuzzo.

THOMAS CRADOCK HUGHES, for Respondent.

Appeal by defendants, by permission, from judgment of Appellate Division, second department, unanimously affirming a judgment of Trial Term entered upon a verdict of a jury in favor of plaintiff.

POUND, J.:

1925 A. M. C.

Plaintiff was a longshoreman in the employ of defendant Apuzzo, who was a stevedore. While the stevedore was unloading, at the Arbuckle Building, Brooklyn, a cargo of sugar from the vessel O. A. Knudson, which had been chartered by the defendant Munson Steamship Line, under a charter party known as a "time charter, government form," plaintiff sustained injuries. He brought action to recover damages, alleging that defendants owed him, among other duties, the duty of inspecting the vessel before putting him at work on it, which they negligently omitted to discharge. The accident happened while plaintiff and his fellow-workmen, under the direction. of Apuzzo's foreman, were putting in place a hatch cover which gave way and went into the hold. It then appeared that the fore and aft beam which supported the hatch did not rest securely in its grooves or sockets because the ends of the beam were worn away and splintered. We may assume the existence of a question of fact as to whether the defect was obvious when the hatch cover was in proper position.

Both defendants allege error in the submission of the case to the jury and the question of law is not whether on the facts submitted to the jury negligence was established, but whether the theory of legal liability as to each defendant was properly stated to the jury by the trial court. This question being raised by proper exceptions to the charge as made and to the refusals to charge as requested, survives the unanimous affirmance. McGuire vs. Bell Telephone Co., 167 N. Y. 208.

The appellant Munson Steamship Line complains because the court charged the jury that it was in the charge and possession of the steamship for the purpose of discharging the cargo and in substance refused to charge that under the charter party the owner and not the charterer was under the legal duty of discharging the cargo. Looking at the evidence as we may to determine the pertinency of the exceptions, (Cardozo on Jurisdiction, 103), we find that the only evidence in the record to show the relation of Munson Steamship Line to the unloading of the vessel is the charter party, which provides:

"25. Nothing here stated is to be construed as a demise of the steamer to the Time Charterers, The Owners to remain responsible for the navigation of the Steamer, insurance, crew and all other matters, same as when trading for their own account."

697.

It also provides, among other things, that "Charterers are to load, stow and trim the cargo at their expense under the supervision of the captain." The complaint alleges that at the time of the accident the steamship was in charge of officers and a crew who were the agents and servants of defendant Munson Steamship Line. To establish this allegation, plaintiff was bound to prove that the charterer was responsible for the unloading.

The trial justice erred in stating the duty of the charterer on this record. The distinction is material between the duty of a charterer under a demise of the ship and under a mere contract for cargo space, and this distinction was ignored. In the main charge the court said that the steamship company had had the boat in its possession for some time prior to the accident and owed plaintiff the duty of making inspection of its condition. It did not have the boat in its possession. It was in the possession of the owner and his officers and crew. The charterer had the cargo on board, but it does not appear that it had, as matter of law, taken charge of the vessel, even for the purpose of unloading. The court refused to charge that the agreement between the charterer and the owners of the vessel was simply a lease of cargo space; refused to charge that there was not a demise of the ship from the owners to the charterer at the time the accident occurred, and held as matter of law, not, however, with entire consistency, that the vessel was leased by the charterer for the time stated in the charter party. The charter known as the government form is not a demise; the officers and crew of the ship are not the officers and crews of the charterer. The jury should have been so instructed. Munson Steamship Line vs. Glascow Nav. Co., 235 Fed. 64. We are precluded from considering the evidence to determine whether the propositions requested to be charged would logically have been fatal to the disposition of the motion for a nonsuit or for direction of a verdict. McGuire vs. Bell Telephone Co., Supra.

The defendant Apuzzo, the master stevedore, an independent contractor, complains of the generality of the charge. The court instructed the jury that the test and measure of proper care on his part was what a reasonably careful and prudent employer would have done under the circumstances.

The following request, and ruling were thereupon made:

"Mr. Clark: I respectfully except. I ask your Honor to charge

1925 A. M. C.

the jury that unless there was something in that part of the hatch or the hatch cover or the beams supporting it to excite a suspicion of danger in the mind of a reasonable man, there was not duty upon the part of the defendant Apuzzo to remove the hatch covers.

"The Court: Unless there was something there which a reasonable man could discover upon inspection then there could be no liability on the part of the defendant Apuzzo."

This ruling was erroneous under the rule laid down by this court in Liverani vs. Clark & Son, 231 N. Y. 178. The court was bound to explain what a proper inspection would consist of; to state in substance that in the absence of any condition to excite suspicion or to suggest defects or danger, the stevedore might assume the safety of the appliances and that due care had been used by the ship owner to keep and maintain them in reasonably safe condition; that if appearances indicated no danger or defects, an inspection for latent imperfections was not required of him; that in the absence of indications of danger it would be unreasonable to expect a stevedore minutely to examine the hatch, its covers, beams and appliances, before permitting his employees to work on them. The fact that the defendant Apuzzo discovered after the accident that the fore and aft beam was not all right and that when the hatch covers were on it, it was bending some in the center, did not change his right to have the jury consider the question of his negligence under proper instructions as to the specific duty of inspection. The distinction is clear between a negligent manner of doing the work and negligence in inspecting the vessel before the work is done. The question was whether Apuzzo discharged the specific duty of inspection resting on him before putting his men to work. In cases where the law has detailed the duty resting on a reasonably prudent man, general instructions are inadequate. As in the railroad crossing cases, where the duty of a reasonably prudent man is to look and listen for the approach of trains before going on the crossing, so here defendant was entitled to have the jury consider the legal test of prudence. The exceptions present substantial and reversible error.

The judgments should be reversed, and a new trial granted as to both defendants, with costs to abide the event.

HISCOCK, C. J., CARDOZO, CRANE, ANDREWS and LEHMAN, JJ., concur; MCLAUGHLIN, J., absent. Judgments reversed, etc.

INTERNATIONAL STEAMSHIP COMPANY.

State of Pennsylvania, Supreme Court, Eastern District, March 16, 1925. At law.

AGENTS AND BROKERS-154. Ship Brokers-Commissions-CHARTER— 121. Contract-In General-133. Hire-Deductions.

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A charter negotiated by plaintiff provided for "Payments of hire in advance in cash at New York to owner without discount but less chartering commission and also 'A commission of one per cent. on estimated gross amount of freight or hire is due to Congress C. & T. Co." Nothing in the charter required the owner to pay the one per cent. to the broker. The broker was not a party to the charter. The vessel was subsequently withdrawn from the charter.

Held: The broker cannot recover the commission from the owner under the charter contract, because he was not a party to it; and as his pleadings averred that the charter embodied the final agreement, he cannot recover on the theory of an oral contract of whose terms the charter provision was mere evidence.

HOWARD M. LONG and SAUL, EWING, REMICK & SAUL, for Plaintiff.
LEWIS, ADLER & LAWS and HUNT, HILL & BETTS, for Defendant.

SCHAFFER, J.:

Plaintiff, a ship broker, brought this action against defendant, a vessel owner, to recover commissions for negotiating a charter for a steamer. The trial judge gave binding instructions for defendant; plaintiff appeals.

Appellant endeavored to make out its case in chief entirely from certain paragraphs of its statement of claim which were admitted by the affidavit of defense. The facts which were thus spread upon the record were these: Plaintiff is engaged in the business of acting as a ship broker and ship agent; defendant in that of owning and chartering ships. During the month of October, 1919, defendant by its duly authorized agent, Suzuki & Co., requested plaintiff to secure a charter for the steamship Yayoi Maru, owned by defendant. Pursuant to the instructions and employment by defendant, plaintiff did negotiate a charter for the steamship, which was executed and approved by defendant. The statement of claim referred to the charter party for the vessel, a copy of which was attached to the statement. The