The opinion
On Rehearing.
(November 21, 189G.)
In this case the court below dismissed the libel, on an exception of staleness of demand, not: passing on tbe exception of no cause of action. On the hearing at the last term, it was held that: the demand was not stale, and to that extent the decree of the court below was ordered reversed; but: the court, in passing on the exception of no cause of action, held that the libel was deficient. To permit the latter question to be reargued, a rehearing was granted, and the case continued to this term.
Before PARDEE and McGORMICK, Circuit Judges, and NEWMAN, District Judge.
PARDEE, Circuit Judge.
The libelant, alleging himself to have been in the service of the ship Conde Wifredo, sues in rem to recover damages for injuries resulting from improper machinery and appliances used on the ship in coaling, while car go was also being loaded and stowed. In such cases the ship can only be held liable for injuries received by an employé when the injury resulted from defective machinery or appliances furnished by the ship, or'from the negligent handling or management of either the machinery or *328 appliances, under the direction of the master. The libel in the present case contains no sufficient allegation that the ship was responsible for the machinery and appliances or the defective handling of the same. In that respect the charge is “that the mate,, captain, or other officer in authority carelessly and negligently rigged the gangway right over the hold across the hatch, for the purpose of wheeling coal, and to coal the said vessel; and the hatch was carelessly and negligently left open, unguarded and unprotected, and the captain, mate, or other officers in authority, and having the management of said ship,- and her loading and coaling, then and there caused wheelers to wheel coal over said gangway, and over the said open hatch, where libelant was below in the hold, stowing the cargo.”' 'This allegation is not sufficiently specific to charge the ship with responsibility for libelant’s injuries. The libel in other respects is too general, and leaves too much to be inferred. The relation of the libelant to the ship is declared as follows: “Your libelant was engaged in the service of said steamship, on board, in the work of loading said vessel.” This is averrifig a conclusion of fact. The libel should show the facts with regard to the employment of the libelant in the service of the ship, by what party, and for what purpose, and leave the court to determine from such facts whether or not the libelant was employed in the service of the ship.
While the libel charges the improper location of a coal gangway over an open hatch, and the improper wheeling of coal over said gangway at-the time the libelant was below in the hold, stowing cargo, and the libelant’s injury from a lump of -coal falling on him, he does not show that the coal which fell upon and injured him came from the gangway, or from any vehicle then being wheeled over the said gangway, but leaves the court to infer that the, libel-ant was stowing cargo directly under the open hatch, and the coal which fell upon him and injured ‘him came directly from the gangway under which he was working, or from some barrow overloaded or carelessly wheeled over the said gangway, and then find that the falling of the coal was the direct result of the location of the gangway.
‘The libel should be narrative, specious, clear, direct, 'certain, not general nor alternative.” Dunl. Adm. Prac. 116, 118, quoting:
“The declaration must allege all the circumstances necessary for the support of the action, and contain a full, regular, and methodical statement of the injury which the plaintiff has sustained, with the time and place and other circumstances, with such precision, certainty, and clearness that the defendant, knowing what he is called upon to answer, may he able to plead a direct and unequivocal plea; that there may he a complete finding of the issue; and that the court, consistently with the rules of law, may give a certain and distinct judgment.”
Being of opinion that, to enable the libelant in this case to recover against the ship, he must prove, and therefore aver, that the appliances by which, or through the use of which, he was injured, were furnished by the ship directly or for the use of the ship under the authority of the master, that the same were defective under *329 the attendant circumstances and for the purpose intended, or were negligently handled under the direction of the master, and that the injury libelant received was caused by or through the use of such defective appliances, we are clear that the libel under consideration does not sufficiently state a cause of action against the ship. Therefore, unless the libelant can and does so amend as to charge the ship in the manner indicated, his libel must be dismissed, on the first ground of exception taken by the claimant. The decree appealed from is reversed, and the case is remanded to the district court, to be proceeded with in accordance with the views expressed in this and in our former opinion; each party to pay his own costs in this court.