The opinion of the court was delivered by: GANEY
This civil action was brought by a longshoreman under the general maritime law for damages for personal injuries sustained by him while he was employed on a vessel.
From the evidence presented to it, the court makes the following
1. The original plaintiff was Patrick Shelton, a longshoreman and a citizen of the State of Pennsylvania.
2. Laura Shelton, executrix of the estate of Patrick Shelton, has been substituted as plaintiff in this action.
3. The defendant is Seas Shipping Company, Inc., a corporation organized and existing under the laws of the State of New York, which brought Jarka Corporation, an independent stevedoring concern, upon the record as a third-party defendant.
4. On December 23, 1942, and prior thereto, the Steamship Robin Tuxford, owned and operated by the defendant, was moored at Pier 84 South, in the Delaware River, navigable waters, at Philadelphia, within the territorial limits of the Eastern District of Pennsylvania.
5. The No. 1 hatch of the Robin Tuxford was 20 feet long and 24 feet wide. The hatch covers, which weighed 8,000 pounds, consisted of two sections (a fore and aft section) of approximately equal dimensions and weight. The two sections of the hatch cover were hinged together; the fore section, in turn, being hinged to the fore upper edge of the hatch coaming. Two operations, with the aid of the ship's lifting gear, were necessary to open the hatch. The first required the aft section of the cover to be lifted or swung bow-ward through an angle of 180 degrees until it rested or folded on the fore section of the hatch cover. The second operation required the two sections, in turn, to be lifted or swung through an angle of approximately 100 degrees until they rested against a stanchion.
6. The ship's lifting gear which worked the No. 1 hatch was situated aft the hatch. The star-board boom was between 55 and 60 feet in length and pivoted from a 10 foot high platform or rail approximately 11 feet aft the hatch. The topping lift of this boom ran from the peak of the boom to the tip of the 35 foot foremast or king-post, which was amidships and also approximately 11 feet aft the hatch. The topping lift fall or cable descended from the top of the foremast to a block near the boom platform and thence to the topping lift winch aft of the foremast. The up and down or midship fall or cable ran from the electric starboard winch (which occupied part of the space between the No. 1 hatch and the boom platform, and had no connection with the lifting or lowering of the boom), lead upward to a block near the heel of the boom, ran along the under side of the boom through a fair-lead two-thirds up the boom, reeved a second block attached to the peak of the boom, and then dropped vertically to the ship's deck. The lever which controlled the starboard winch was immediately aft the hatch.
8. The defendant employed Jarka Corporation, Patrick Shelton's employer, as an independent contractor to load the Robin Tuxford.
9. On December 23, 1942, and prior thereto, the employees of Jarka Corporation were in sole control of the booms, winches, cables and other lifting gear situated at the No. 1 hatch of the Robin Tuxford. None of this lifting gear was supplied by Jarka Corporation or its employees.
10. On the morning of December 23, 1942, the first operation to be performed by the stevedores on the ship was the removal of the No. 1 hatch covers, which had been removed and replaced by them on the previous day, with the lifting gear in question. The peak of the starboard boom, which was used to raise the covers of the No. 1 hatch, was approximately 45 feet above the level of the deck, and extended to a line approximately one foot aft the fore edge of the hatch, and so for the purpose to which it was put, the boom was in an improper position, as the boom should have been lowered, so that its peak would have extended beyond the fore edge of the hatch. It was the hatch-tender's duty to change or order the change of the position of the booms in any case when there was need for it.
11. At about 8:00 o'clock, with Patrick Shelton controlling the starboard winch, the first operation of the opening of the No. 1 hatch was performed without the boom being moved. During the process of the second operation, the hatch covers were lifted to almost a vertical position. Shelton apparently believing that the covers had gone beyond the vertical position and that they would continue to swing toward the bow of the ship and rest against the stanchions, overhauled the ...