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No one questioned the condition of the shackle and the plaintiff makes no complaint of the shackle. I am not required to draw an inference that the shackle was good before it was put to work. The plaintiff's expert conceded that if the shackle had been used for some time it would have shown the effects of the accumulated sea water and he said that he could not state how long it had been in the ship and that he did not know whether it had been in the ship for three months or for thirty years. The shackle was put to work before the plaintiff was injured and the plaintiff concedes that the shackle was in the ship when it injured him. As I have already stated, a cracked or broken shackle is not unusual in a ship and, of course, a good and whole shackle may have a crack and still be sound. The plaintiff, however, contends that the shipowner was negligent in using a shackle which was cracked and broken, relying on the case of The Markos, 2 Cir., 255 F. 98, which he says is directly in point. In that case, however, there was no question of a cracked or broken shackle. The vessel in question was on a voyage from New York to Rio de Janeiro, and her cargo consisted of stone which, when unloaded, came in bags weighing several tons each. Some of these bags were delivered on the wharf at Rio and were taken aboard the ship by a truck. The plaintiff, a baggage porter, was injured in consequence of a bag, which the plaintiff had just unloaded, being dropped on top of him. The bags were not the bags of the stone. The bags were of the size used by the whole shipment, and they were all of the same size.
Similarly, I do not accept the opinion of the plaintiff's expert that the rust would have concealed a crack in the shackle. He did not examine the rust, of course, but I do not accept that rust could have disappeared in the course of seven years. Rust does not disappear because it is concealed by other things. It is not a solid.
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