Partos
Partos v. Pacific Coast S. S. Co.
Opinion
Lead Opinion
Denman, J.
This is an appeal from a decree on a libel for damages for injury to the sailor libelant claimed to be due to the unseaworthiness of the vessel on which he was employed and, in any event, for his maintenance and cure.
Motion was made to dispriss the appeal on the ground that the record does not show a petition and allowance by the District Court of aii appeal.
The record in this case shows no formal petition for or allowance of appeal, but such petition and allowance may be inferred from the evidence’of the acts of the lower court and counsel with reference to matters occurring subsequent to such petition and allowance. In the following cases the petition and allowance of the appeal were proved by showing the action of the court in approving of a bond on appeal or in the approval of the bond and the signing of the citation. Sage v. Central Railroad Company, 1877, 96 U.S. 712 , 24 L.Ed. 641 ; Brandies v. Cochrane, 1881, 105 U.S. 262 , 26 L.Ed. 989 ; Weinstein v. Black Diamond S. S. Corporation et al., 1929, 2 Cir., 31 F.2d 519 .
We have held the approval of the bond sufficient even where it recited that the appellants “[were] about to take an appeal.” Crescent Wharf & Warehouse…
Opinion on Rehearing
On Petition for Rehearing.
The petition for rehearing asks us to reconsider our finding that it is not shown how the pipe on which the sailor slipped escaped or rolled from the pile of piping alongside the path the sailor was required to follow in obeying the order to clean the mats. No one testified he saw anyone cause it to roll there while searching for another piece in the unconfined pile. The burden of proof of the defenses of contributory negligence or of an act of a fellow servant, if they are available here, is on the ship. See Inland & Seaboard Coasting Co. v. Tolson, 139 U.S. 551, 557 , 11 S.Ct. 653 , 35 L.Ed. 270 .
In the dim light it was quite likely that, without negligence, anyone disturbing the pile would cause a piece to roll where the sailor slipped on it, without knowing it was there. The proximate cause' was the unconfined pile in the dim light along the sailor’s path.
Petition denied.