~ mm VICTORIA. 43
1877, after the construction there given to it in 1868, I do not feel at
liberty to hold otherwise. The exception is sustained and the libel
dismissed.
And it may not be amiss to remark that this conclusion is not in
conflict with what may be called the justice of the case. These
Chinese immigrants are all males, and generally adults, and there is
very little need, in their case, in the division of berths as required by l
said section 2.
This regulation was made to meet the case of European immigrant s,
consisting of both sexes, married and unmarried. .
It is not pretended that any particular harm or inconvenience
has resulted from the want of a division of berths in this case, and
the enforcement of the law, even if it were applicable, would be more
for the punishment of the. shipper than for the protection of the
immigrant. . · ‘
Tum Vzoroau. V
(Circuit Oourt, D. Massachusetts. August 1, 1882.) i
Nmemcmca-Passousn Iumsv-Fsunr or- Farrow-Sanvmr.
Where a workman upon a vessel was injurcdby falling through an open
hatchway negligently left open by the stevedore having charge of the discharg-
ing and loading of the vessel, and the actual negligence that caused the acci-
dent was the removal of a lamp by a fellow-workman employed at the same
job with the libelant, the common employer is not liable for the injury.
E. L. Barney and E. J. Hadley, for libelant, appellant.
Ball, Storey d·Towers, for steam-ship. V _ I
Lowmu., C. J. The libelant was seriously injured by falling down
the main hatchway of the third deck of the steam-ship Victoria, on
his return from supper, just after he had reached that deck by a lad-
der placed in asmaller hatchway or scuttle, which is alleged to have
been so dangerouslynear the main hatch that it was negligence to -
V leave that hatch open. Whether it is usual to close the hatches on
the third deck after the day’s work is done is a disputed question in
the case. The preponderance of the evidence is that it is not usual; -
and see Dwyer v. Nat. Steam-ship Oo. 17 Blatchf. 47 2. The libelant
had been working during the day not far from the open main hatch,
and had been up and down this ladder once or twice, and had no A
reason to suppose that the hatch had been closed.~ If it was negli· I
gently left open, the negligence was that of. thestevedore having