The opinion of the court was delivered by: KIRKPATRICK
This is a civil action, on the law side, brought by a longshoreman, originally against the Seas Shipping Co., Inc., owner of the Robin Sherwood, to recover damages for injuries received while engaged in loading that vessel. The Seas Shipping Co., impleaded the two Bethlehem Companies and the plaintiff then amended his complaint to include a cause of action against each of the two third-party defendants. The trial was to the court with a jury, but before the testimony was completed it was stipulated that the plaintiff's damages were $9,500 and that the court should determine liability as though a jury trial had been waived at the outset.
The plaintiff, in his brief, has correctly stated the basic facts as follows:
The defendant, Bethlehem Steel Company, was awarded a contract by the United States Maritime Commission to build the steamship Robin Sherwood. That company subsequently sublet a portion of the job to the defendant, Bethlehem Sparrow's Point Shipyard, Inc.The latter undertook to assemble and install on the vessel, among other things, certain cargo gear and particularly, the ten-ton boom and tackle at number 5 hatch.
Upon completion of the vessel in June of 1941, the ten-ton boom was tested by lifting a dead weight of twelve and a half tons, and the vessel was then turned over to the defendant, the Seas Shipping Co., Inc., which had purchased it from the Maritime Commission.
The vessel was in service approximately eighteen months when it called at the port of Philadelphia on December 23, 1942, to load parts of freight cars for shipment abroad. The plaintiff was one of a number of longshoremen who were engaged to load the cargo into the vessel. After rigging the gear on the ten-ton boom, which had never been used up to this time, the longshoremen lowered one piece of freight into the hold of the ship and were engaged in stowing away the second part of the freight car, the weight of which was not in excess of 8.2 tons, when the shackle which supported the ten-ton boom broke, causing the boom and tackle to come down and injure the plaintiff.
I. The Plaintiff's Case against Seas Shipping Co., Inc.
The plaintiff must show negligence according to the rules of the principles of the maritime law, and the decisions of the federal courts, not those of Pennsylvania, are controlling.
Concededly the Jones Act, 46 U.S.C.A. § 688, does not apply, the plaintiff's suit not being against his employer. The New Brooklyn, D.C., 37 F.Supp. 955; Kwasizur et al. v. Dawnic S.S. Co., et al., D.C., 25 F.Supp. 327. The plaintiff was injured on a ship lying in navigable waters and while he was engaged in the performance of a maritime service and the wrong which is the subject of the suit is a maritime tort. Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 61, 34 S. Ct. 733, 58 L. Ed. 1208, 51 L.R.A., N.S., 1157. The court has jurisdiction either in admiralty or on the law side, Murray v. Pacific Coast S.S. Co., D.C., 207 F. 688.
The plaintiff asks the court to find that the accident occurred by reason of unseaworthiness of the vessel and I make that finding, but his contention that this fact alone entitles him to recover against the owner cannot be sustained. If he were a seaman in the employ of a vessel he would, of course, be entitled to a verdict on that showing alone. The Osceola, 189 U.S. 158, 23 S. Ct. 483, 47 L.Ed 760. But he is not a seaman, nor a member of the crew of the vessel. What was decided in International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S. Ct. 19, 71 L.Ed 157, and Uravic v. Jarka Co., 282 U.S. 234, 51 S. Ct. 111, 113, 75 L. Ed. 312, was that in the Jones Act the word "seaman" was intended by Congress to include a longshoreman. It has never been decided that longshoremen are seamen generally and, in fact, the Court in the Haverty case pointed out "that for most purposes, as the word is commonly used, stevedores are not 'seamen.'"
This leaves the plaintiff standing upon the general maritime law of tort. "This means, as we indicated, by the law of the United States, with the provisions of section 33 [ 46 U.S.C.A. § 688] left out." Uravic v. Jarka, supra.The maritime law makes shipowners liable to third persons properly on board as invitees, including stevedores, if they are injured through the fault or negligence of the shipowner, but not otherwise. The Howell, 2 Cir., 273 F. 513; Jeffries v. DeHart, 3 Cir., 102 F. 765. *
The measure of the shipowner's duty is reasonable care. In the present case the particular duty of care involved is the duty to inspect the ship's equipment, and liability depends upon whether the shipowner exercised the degree of care in this respect which the maritime law imposes upon him.
At this point further detailed fact findings are necessary and I make them as follows:
The shackle was a forged U-shaped bar of mild steel about one and three-quarter inches in diameter, pierced at the two ends to take a cross-bar. The defect which caused it to break was a cavity known as a pipe, located in the center of the bar just at the bend of the U extending longitudinally a distance of possibly three-quarters of an inch. From this pipe a crack or seam, also longitudinal, extended to the outer surface of the U at the crown or bend. The separation or parting line at the surface of the shackle was "a couple of thousandths of an inch wide" -- an estimate which I accept in default of accurate instrumental measurements. The defect occurred in the course of forging the shackle. After forging, as part of the process of manufacture, the entire shackle was galvanized. Before it came into the hands of any of the defendants, it was painted. It is unlikely that the crack was visible to the naked eye, even without galvanizing or painting, but certainly when the shipowner got the shackle as part of the ship's equipment it had been effectively concealed and was entirely invisible. I find further, not only from the testimony but from my own examination of the shackle, that its surface was not perfectly smooth anywhere and that there was no exceptionally large raised area at the line of the fracture which would call attention to it or which is noticeably different from other unevennesses on its surface. The crack was not welded after forging nor "doctored" in any way and there was nothing on its surface to suggest that it had been. To sum up, when the ship was turned over to the Seas Shipping Co., no visual inspection of the shackle, however close, would have disclosed anything to indicate that it was defective.
When the Seas Shipping Co. received the ship it was furnished with certificates from the United States Maritime Commission and the shipbuilder which certified that the gear, including the shackle here involved, had been tested with a load 25 percent in excess of its rated capacity of ten long tons and had been carefully examined after the test and before delivery of the vessel on July 16, 1941. In addition, Captain Bonn of the Robin Sherwood had been present and sew a test (probably the one referred to in the certificates) of the ten-ton boom at which it raised twelve and one-half tons. After the gear was disassembled for examination, it was reassembled on the ship and it had not been tested between that time and the day of the accident. From the certificate and specifications the master knew that the shackle was a product of a reputable manufacturer and had been installed by a responsible and competent shipbuilder.
During the 18 months prior to the accident, the shackle, as well as other parts of the equipment, was properly cared for and was not allowed to rust or deteriorate. It was also inspected visually, the last time being two to four weeks before the accident. While this inspection was not close, the fact is that the most meticulous visual inspection would not have disclosed any defect.
The pipe would undoubtedly have shown up under an X-ray examination, though there is no evidence that the crack would. The crack could have been discovered if its location could have been divined and the bar at that point had had the paint removed by a solvent, given an acid bath and etched by a process which constitutes a metallurgic test, known as deep-etch or macro-etch. This process was actually applied to the shackle during the trial, and afrer all the steps had been taken, the crack was barely visible.
The plaintiff does not seriously argue that the law required the shipowner to apply either of these tests to the shackle and similar equipment. He does, however, contend that the shackle should have been suspended by a wire, struck with another piece of metal, and the sound given out observed, and that failure to do this constituted negligence. There was evidence that a test of this kind is customary in shops where articles of this character are manufactured. There is no testimony to the effect that it is ever used anywhere else, or that shipowners in practice ever disassemble ship's gear and equipment and apply it. As described by the plaintiff's witness it involves hanging up a number of pieces of the same size and contour and striking them, in which case if any one of them gives out a different note, it is cause for suspicion. I do not think that the law requires a shipowner to provide himself with several pieces of equipment duplicating each part of his ship's gear, in order to apply this test.
The plaintiff's expert testified that, even without other pieces to use as a standard, tapping a piece such as the one in question will produce a dull sound which will reveal that it is defective, "if the fracture is bad and if it is transferse" and he further said that, in his opinion, this particular shackle would have given a dull sound. Of course, it may be accepted that if a crack is very large it will cause the bar to give a dull instead of a ringing sound. Parenthetically, the crack in this shackle was longitudinal, not transverse and, of course, any fracture in a shackle is bad in one sense. I do not, however, accept the testimony of the plaintiff's expert that this particular shackle with a hair line crack of two one-thousandths of an inch would have given out a tone so noticeably dull as to indicate any thing to the listener. He was shown to be so completely wrong in his very definitely expressed opinion that the crack had been doctored and a layer of metal added and the whole welded with an acetylene torch, that I am unwilling to accept his guess at the kind of sound which this particular shackle, before it was broken apart, would have given out. rejecting his opinion, I find that there is no evidence to the effect that, striking this shackle, by itself and without others like it for comparison, with a piece of metal would have disclosed anything wrong with it.
But apart from the fact question and assuming that the shackle, if suspended and tapped, would have given out a suspicious sound, I am of the opinion that under the circumstances of this case the shipowner was not required by law to make such a test or to do more than he actually did. The question involves the extent to which a shipowner, who is not the builder of the ship nor the manufacturer of its gear, is under an affirmative duty to discover unknown and invisible defects in a ship's equipment.
No doubt a high degree of diligence is prescribed, and rightly so, but it all comes down to what is reasonable under the circumstances. The law cannot require a man to take more care than is reasonable to prevent risks inherent in his conduct, without making him an insurer. there is no intermediate measure of duty, and it is well-settled that the responsibility of a shipowner to invitees is not that of an insurer. Without attempting to lay down a general rule, I think that a shipowner is not negligent in permitting the use of the ship's equipment by stevedores in a case in which the particular portion which failed was known to the shipowner to have come from an established and reliable dealer in maritime supplies and where, in the presence of the master of the vessel as well as representatives of the Maritime Commission, the equipment was subjected to a standard test prescribed by the Commission and demonstrated to be capable of safely performing under a load 25 per cent greater than that for which it was designed and 50 per cent greater than that under ...