The opinion of the court was delivered by: KIRKPATRICK
On August 11, 1950, a motor bus weighing some 15,000 pounds was being loaded on board the S. S. Federal Mariner, at Pier 53, Philadelphia, by means of the ship's heavy lift gear, consisting of winch, boom and wire rope runner. The bus had been hoisted from the pier, moved inboard to a position over the hatch and lowered part way when suddenly the runner started to run free and uncoiled its whole length from the drum of the winch, and the bus dropped. The cause of the accident was the improper manner in which the runner had been secured to and wound upon the winch drum.
The lift gear had been rigged by members of the ship's crew, supervised by the First Officer. Three employees of Lavino (the stevedore), including the foreman of the gang, were nearby, waiting to go ahead with the loading, and they observed what was being done. Although, apparently, they did not consider it definitely dangerous, they called the First Officer's attention to the fact that the method of securing the runner was one which was neither usual nor proper. After his reply that this was the way it had often been done and 'this is the way we do it', they made no report to their superiors, but accepted the situation and proceeded to operate a piece of machinery which they had correctly diagnosed as improperly set up.
I find that the accident was due to the joint negligence of the ship's officer and the stevedore's employees.
The task of sorting out the claims and counterclaims made by the various parties to this action for damages to the bus and finding upon which of them liability for the loss falls remains. Federal Commerce and Navigation Co., Ltd., (Federal) was the owner of the ship and the employer of the crew. Federal had time-chartered the ship to Norcuba Steamship Co. S. A. (Norcuba) which in turn had chartered it to North Atlantic and Gulf Steamship Co., Inc., (Norgulf) which last made the contract of carriage and issued the bill of lading. As the record now stands the action is by Autobuses against Norgulf and Lavino. Norgulf disclaims liability and seeks indemnity from Lavino and Norcuba. Norcuba claims indemnity from Federal, and Federal claims indemnity from Norgulf and Lavino. There is no question about Norcuba's right to indemnity from Federal or Norgulf's from Norcuba, so that Norcuba's position need not enter into the discussion.
My conclusions as to liability are:
1. Norgulf is liable to the libellant on its bill of lading, but not for negligence.
2. Federal is liable to the libellant as a tortfeasor causing damage through negligence.
3. Federal is liable to Norgulf on the latter's claim for indemnity, for the same reason.
4. Lavino is not liable either to Norgulf or Federal For indemnity.
5. Lavino is liable to the libellant, as a joint tortfeasor with Federal.
6. None of the respondents are liable for more than $ 500.
The gear was being rigged by the crew under an arrangement between them and Lavino, and Lavino had no control whatever over the manner in which the rigging was done. Had Lavino believed that a dangerous situation was in the making it might have refused to go on with the operation, but there was no way in which it could have compelled the crew to rig the gear properly.