United States Maritime Commission and in accordance with the usual and customary method of testing booms and lifting-gear followed by reputable shipyards throughout the United States. Even had it been tested at seventeen nnd one-half tons as the expert thought it should have been, it would be a pure guess to say that it would have failed in any way. It was designed to lift ten tons, with a breaking point at forty tons and a yielding or distortion point of twenty tons.
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 which it finally failed, in which the equipment was adequately cared for at all times and visually inspected a few weeks before its failure -- all this, it being understood, being in the case of an internal defect in a bar of steel which was invisible on the surface.
The case of The Tresco, 3 Cir., 134 F. 819, decided by a divided court, strongly relied on by the plaintiff, goes to the extreme limit and puts a heavier duty on the shipowner than does any case of which I know, but I would have to go much further than it goes to declare this defendant liable. In The Tresco case, supra, it was held that a shipowner was bound to remove the tarred twine covering from a spliced cable to see that the splicing was properly done. Perhaps under the circumstances of that case that was not requiring as much as the bald statement would indicate. So far as the record showed no one knew who manufactured the cable or who had spliced it or from whom it was purchased. There was no evidence that it had ever been tested or that it had ever been subjected to any strain such as that under which it broke. Under such circumstances one might well hesitate to say that it was unreasonable to hold that a "very superficial" visible inspection of the cable was a sufficient performance of the duty of care.
II.The Plaintiff's Case against the Bethlehem Companies, the Third-Party Defendants.
The case against the Bethlehem Companies stands on a very different footing from that against the shipowner although the measure of their duty and responsibility to the plaintiff, namely, reasonable care, is the same. Bethlehem Sparrow's Point was a subcontractor which installed the defective equipment and was in substantially the same position as the manufacturer. Reasonable care on the part of one who manufactures a thing which, if defective is capable of causing extensive damage and great injury, is a far more exacting duty than that of one who, having bought it, permits others to use it.
There is no question that, in this case, the shackle was defective when it came into the hands of Bethlehem Sparrow's Point and when it was installed as part of the cargo gear of the vessel. Sierocinski v. Du Pont Co., 3 Cir., 118 F.2d 531, cited by the defendants, is not in point. In that case the whole question was whether the circumstances of the accident, taken in connection with the character of the instrumentality (a dynamite cap) which caused the injury, afforded any evidence that the defect must have occurred in the course of manufacture. This Court thought that the evidence excluded the possibility of its having occurred anywhere else. The Circuit Court of Appeals held that it did not and that, therefore, the manufacturer could not be held responsible.
The case against the Bethlehem Companies is still one of maritime tort. In Atlantic Transport Co. v. Imbrovek, supra, the court said [ 234 U.S. 52, 34 S. Ct. 735, 58 L. Ed. 1208, 51 L.R.A., N.S., 1157]: "If more is required than the locality of the wrong in order to give the court jurisdiction, the relation of the wrong to maritime service, to navigation, and to commerce on navigable waters, was quite sufficient." Nevertheless the principles of McPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, Ann.Cas.1916C, 440, are broadly applicable. The law of that case has become so widely accepted as to be a part of the general law of torts, maritime as well as common law.
The only question as to these defendants is whether the plaintiff has met the burden of proof of showing negligence. Concededly there is no direct testimony of the effect that these defendants did not make tests other than the lifting test at the weight of twelve and one-half tons, which was made when the ship was delivered to the purchaser.
These defendants are shipbuilders on a large scale and it is to be assumed that they have adequate and complete plant and equipment, including forge and metal shops, as well as experts familiar with metals and all the practices of forge shops and are expert in the examination and testing of metals. A measure of diligence in searching for and discovering defects which would be entirely unreasonable in case of a shipowner, might quite properly be exacted from the builder. It is undisputed that the X-ray test would have disclosed this defect. Perhaps that is more than should be required, but this particular shackle was a key piece in the largest boom tackle was a keypiece in the largest boom tackle on the ship and a link, the breaking of which might cause as much or more damage as that of any other piece of steel on the ship. However that may be, I am satisfied and so find, tht the test, by tapping or striking with a piece of metal, if performed as the plaintiff's expert said it should be -- that is, by suspending a number of pieces of the same size and contour and striking one after the other and comparing the tone given out -- would have disclosed, to the ear of an expert, something which would have put him on notice.
On the basis of this fact finding, the plaintiff has met his burden. If the test would have disclosed the defect, then either it was not made, or if made, was negligently conducted or else the shackle was installed with knowledge of its weakness.
The Bethlehem Companies are not protected by the name and reputation of the concerns by which the equipment was manufactured and sold. No builder of structures, vehicles or mechanisms which may cause injury by failure of parts is -- that is the whole point of McPherson v. Buick, supra -- unless, perchance, there is no conceivable test or inspection within the bounds of reason which could disclose a defect. The Bethlehem Companies' argument on this point, reduced to its simplest terms, is in reality a denial of the doctrine of McPherson v. Buick.
Counsel for the Bethelehem Companies argues that the plaintiff has failed to show that the shackle which broke at the time of the accident was the same shackle installed on the vessel before its delivery to the Seas Shipping Co.
It was stipulated that on June 2, 1941, Bethelehem Steel Company purchased a block including a galvanized shackle, and that the block including shackle was painted and installed by Bethlehem Sparrow's Point, Inc., at the boom end of the ten-ton boom at the main mast of Hull 4350 (The Robin Sherwood).
Captain Bonn, who joined the vessel sometime before her delivery to the owners and remained with her continuously to the date of the accident, testified that the ten-ton boom was never used for any lifts from the time of the test (prior to the turning over of the ship to the Seas Shipping Co., on or about July 15, 1941) to the date of the accident, on December 23, 1942. On being shown the broken shackle, which had been produced in court, he testified that it was the same one which was on the boom at the time of the accident. His testimony then proceeded: "Q. Now, on the occasion that this tackle was used prior to this accident, who rigged the tackle? A. The riggers from the Bethlehem Shipbuilding Company.
"Q. I mean just prior to the accident? A. Oh, prior to the accident, the longshoremen.
"Q. This is on December 23, 1942? A. Oh, the longshoremen rigged the gear."
This taken in connection with his testimony as to the position in which the boom was carried and that of Acker, the mate, as to routine inspections and lubrication, neither of whom referred to any replacement of equipment, is sufficient to warrant a finding that the shackle installed by the Bethlehem Sparrow's Point Co., Inc., was the same shackle which caused the accident.
Even without this testimony, however, if the Bethlehem Companies wanted to avail themselves of the defense that the shackle might have been changed, the burden was upon them to show it. This is a type of equipment that is quite permanent in nature. It appears that, after the first test with the weights, the boom was put in a vertical position and remained in that position until the day of the accident. With the exception of routine visual inspections there is no evidence that this particular boom received any attention. After the test it was not used at all until the date of the accident. Under these circumstances, unless evidence to the contrary is introduced, the court may and will conclude that the shackle installed by the Bethlehem Sparrow's Point Co., Inc., was the same one which parted on December 23, 1942 and caused the injuries complained of.
It is a general rule that a prior existence or condition is evidential of a later one unless the contrary is shown. See 22 C.J. 86, 31 C.J.S., Evidence, § 124. Considering the circumstances here, the lapse of time does not destroy the probative force of the inference (sometimes called "presumption") of continuance. See Liverpool & London & Globe Ins. Co. of Liverpool, England, v. Nebraska Storage Warehouses, 8 Cir., 96 F.2d 30, 36; Berwind White Coal Mining Co. v. City of New York, 2 Cir., 48 F.2d 105, 106; Wigmore, On Evidence, Sec. 437.
The close relationship of these two companies makes it unnecessary to determine or apportion the liability as between them. I hold that they are both liable and judgment may be entered accordingly.
Answers to Requests
The statements of fact contained in the foregoing opinion may be taken as special findings and the statements of law as conclusions of law. In accordance with the rule I also state the following conclusions of law separately:
Plaintiff's requests for findings of fact.
I affirm requests Nos. 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, (modified to the extent that the galvanizing and painting entirely concealed any surface indication of the crack), 13, 15, 19 and 21.
I deny requests Nos. 16, 22, 23 and 24.
Requests Nos. 6, 14, 17 and 18 are answered by the general finding that the Bethlehem Companies failed to meet the duty of care required of them as manufacturers of the vessel and that the Seas Shipping Co. did meet the duty of care which the law imposes upon it.
As to request No. 20, I find that there is no evidence that tapping the shackle by itself would have disclosed the defect. There is evidence which I accept that, had the shackle been hung with others of the same size and shape and tested in that manner by an expert the defect could have been noticed.
Plaintiff's requests for Conclusions of Law.
I affirm requests Nos. 1, 2 (with the qualification that the company should have used the utmost precaution reasonable under the circumstances).
Request No. 3 is answered by the general fact finding that the Bethlehem Companies were negligent.
Request No. 4 is affirmed.
Requests Nos. 5 and 6 are correct statements of the general law as applied to seamen but do not apply to this plaintiff.
Request No. 7 is denied.
Request No. 8 is affirmed and No. 9 is affirmed so far as it relates to the duty to make reasonably proper examinations.
Request No. 10 is denied.
Request No. 11 is affirmed as regards to the Bethlehem Company but is denied as in respect of the two shipping companies.
Original defendant's requests.
Findings of Fact.
I affirm requests Nos. 1, 2, 3, 4, 5, 6, 7 (with the qualification that it might have been discovered by the striking test, if conducted by an expert in conjunction with other shackles.)
I affirm requests Nos. 8, 9, 10, 11, 12, 13 and 14.
Requests for Conclusions of Law.
I affirm requests Nos. 1, 2, 3 and 4.
The remaining requests need not be answered in view of the holding that the Seas Shipping Co. is not liable.
Requests of Third-Party Defendants for Findings of Fact.
I affirm requests Nos. 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, (as modified by the statements of fact in the opinion).
I deny requests Nos. 5 and 17.
Requests Nos. 19 to 27 inclusive need not be answered in view of the holding with the Seas Shipping Co. as not liable.
Requests for Conclusions of Law.
I affirm request No. 1.
I deny requests Nos. 2, 3, and 4.
Requests Nos. 5 to 8 need not be answered.
Judgment may be entered in favor of the plaintiff against Bethlehem Steel Company and Bethlehem Sparrow's Point Shipyard, Inc., in the amount of $9,500 with interest.
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