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DE VAN v. PENNSYLVANIA R.R. CO.

October 28, 1958

William DE VAN
v.
PENNSYLVANIA RAILROAD COMPANY. GRACE LINE, INC., v. INDEPENDENT PIER COMPANY, Impleaded Respondent



The opinion of the court was delivered by: DUSEN

I. Findings of Fact

The trial judge makes the following findings of fact:

 1. On or about December 20, 1954, libellant was in the employ of Independent Pier Company, impleaded respondent, as a longshoreman on the Philadelphia waterfront.

 2. Pennsylvania Railroad Company, respondent, is a Pennsylvania corporation engaged, inter alia, in the transportation of goods upon navigable waters of this country in interstate commerce by barge, lighter, carfloat and otherwise.

 3. On or about December 20, 1954, Independent Pier Company was engaged in loading a cargo of heavy lengths of pipe from two carfloats owned by Pennsylvania Railroad Company onto the S.S. Santa Clara, which was owned by respondent Grace Line, Inc. (a New York corporation) and was located on the north side of Pier 55 South, by virtue of an agreement with Grace Line, Inc., or its agents.

 4. No personnel of Pennsylvania Railroad Company were stationed aboard either carfloat after it had been left alongside the north side of the S.S. Santa Clara (hereinafter sometimes referred to as the 'ship). This was in accordance with the customary practice in the ports of Philadelphia and New York.

 5. Since prior to December 1954, it has been the customary practice in the port of Philadelphia to moor carfloats to the side of a vessel, which is alongside a pier, with only a bow and a stern line, in the absence of unusual weather conditions or other unusual circumstances, neither of which were present in this case (see Railroad's Request for Finding of Fact 10).

 6. At Piers 53 South and 55 South, Philadelphia, there was a northwest wind, which was not in excess of 15 knots (due to the housing on Pier 53 South), from 4 to 6 P.M. on the afternoon of December 20, 1954.

 7. The following requests for findings of fact of respondent Pennsylvania Railroad Company are adopted as findings of fact of the trial judge: 1; 2; 3, with the last seven words modified to read 'to the starboard side of the ship'; *fn1" 4; 5; 6, with the words 'About 12:20 p.m.' inserted at the beginning of the sentence, the last seven words eliminated, and the words, 'and on the north side of,' inserted after the word 'to'; *fn2" 7; 8, with '3:30' substituted for '4:00'; 9; 10; 12 to 16; 17 and 18, with the words 'forward of' substituted for the words 'in from' in both paragraphs; 19 to 21; 22, with the words 'in an operation such as that involved in this case' inserted at the end of the sentence; 23 to 30; *fn3" 32 to 36; *fn4" 37, with 'toward Delaware Avenue' substituted for 'facing 514'; 38 to 45; *fn5" 47, with the words 'Several witnesses testified that' inserted at the beginning of the paragraph; 48, with the words 'a person supposed by them to be' inserted before the word 'ship's'; 49; 50; 52, with the last five words deleted; and 53 to 55.

 9. Carfloat 514 was moored to the north side of the ship at the No. 2 hatch by either personnel of the Independent Pier Company or personnel of the ship between 12:20 P.M. and 4 P.M. on December 20, 1954.

 10. The ship or stevedoring personnel place the eye of the carfloat lines over a bollard, cleat, padeye, or similar appurtenance on the ship's deck and the lines are tightened at the cleats on the carfloat. The ship's personnel normally see that the lines are taut when the carfloat is first moored and observe the lines to see if they are excessively slack from time to time as they walk about the ship (deposition of Beresheim 8-10, 12-14, 17, N.T. 190).

 11. Chief Mate Rachuba made no observation or inquiry with respect to the hook used by the stevedores and made no observation concerning the degree of slackness of the lines from the ship to Carfloat 514.

 12. The engines of the steam tug Camden are very quiet, even when it is operating at full speed. Personnel stationed on Carfloat 514 moored on the forward north side of a ship berthed at the north side of Pier 55 South cannot hear, under conditions similar to those existing at 5 P.M. on December 20, 1954, any appreciable noise from these engines, even though they are operating at full speed and the tug is approximately 50 feet toward the Delaware River from the carfloat.

 13. Although the Camden stirs up considerable water at its stern when its engines are at full speed, the effect of this water on movement of Carfloat 514, loaded as it was at 5 P.M. on December 20, 1954, would not be significant, *fn6" assuming the lines of the 514 were taut and the Camden was 50 feet toward the Delaware River from the carfloat with its bow toward the river, as described by the witnesses of libellant.

 14. The breaking out of the pipe from Carfloat 514 on the afternoon of December 20, 1954, was a very delicate and dangerous operation, which required all feasible care and safety precautions (see testimony of gang foreman Evers on cross-examination and of employees of Benjamin F. Shaw ...


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