to testify. The evidence shows that he made many decisions himself regarding the pipe, rather than delegating responsibility to subordinates. The inference must therefore be drawn, in any doubtful matter, that his testimony would not be favorable to plaintiff's contentions. The same rule applies to plaintiff's practice of furnishing to defendant's counsel copies of copies of documents rather than the originals, which might disclose annotations unfavorable to plaintiff's contentions.
Accordingly, we find that plaintiff has failed to established that its losses are attributable to defendant's negligence. We find that defendant performed its duties of visual inspection in the usual and ordinary manner customary in the industry, and with due care under the circumstances.
This opinion shall be deemed to embody findings of fact and conclusions of law in accordance with F.R.Civ.P. Rule 52. We proceed to make the following special findings called for by Rules 41(b) and 52(a).
Findings of Fact
1. Plaintiff, Getty Oil Company, is a Delaware corporation.
2. Defendant, Peter A. Mills, is a citizen of Allegheny County, Pennsylvania, doing business as Moody Engineering Company.
3. Plaintiff, through a series of intermediaries, placed an order of 'line pipe' to be produced by a manufacturer in Germany.
4. The Crispin Company of Houston, Texas, the penultimate intermediary, employed defendant to inspect the pipe, pursuant to a letter dated November 28, 1956, stating 'We would appreciate your performing the inspection of this material in accordance with the specifications of the order and preparing your certificate in sextuple.'
5. Defendant had previously performed numerous inspection jobs for Crispin. Such jobs involved visual inspection of the finished product, rather than continuous policing or control of the production process.
6. It was customary for inspectors on such jobs to permit some of the procedures to be performed by employees of the manufacturer.
7. Plaintiff did not inform the manufacturer or defendant what the pipe was to be used for.
8. Because it was available, plaintiff bought spiral-welded single-pass pipe manufactured by the submerged arc process.
9. Such pipe is not used for high-pressure oil transmission lines. It is not recognized by the standards of the American Petroleum Institute, API-5L.
10. Such pipe is likely to be less satisfactory than double-pass pipe, by reason of the probability of the lack of full penetration, although it is physically possible to manufacture single-pass pipe with full penetration.
11. Such lack of penetration occurs at the root of the weld, on the inside of the pipe, and cannot ordinarily be detected by visual inspection except within a short distance from the ends of the pipes where inspectors can look in with a light.
12. Defendant warned plaintiff of the danger of such concealed defects due to lack of penetration in single-pass pipe.
13. Spiral-Welded pipe is subject to stress from expansion and contraction due to temperature changes to which seamless and longitudinally welded pipe are not subject.
14. Defendant, through experienced and competent employees, made a careful inspection of the pipe here involved, exercising due care in accordance with the customary standards prevailing in the industry and in accordance with the custom established in previous inspections for Crispin.
15. After the pipe had been inspected by defendant it was transported by rail, ship, and truck to the pipe line site in the Neutral Zone, and was fabricated into a pipe line. During the course of transportation and construction it was subject to handling which may have weakened the pipe.
16. Plaintiff utilized no engineering advise or preliminary designing in constructing the pipe line.
17. Numerous leaks and ruptures, occurring in the spiral-welds, made the pipe line unserviceable.
18. Subsequent laboratory tests indicated that there was lack of penetration, lack of fusion, and other defects in many of the spiral welds.
Conclusions of Law
1. This Court has jurisdiction of the cause and of the parties thereto.
2. Defendant is not liable to plaintiff under any theories of fraud or deceit, or third-party beneficiary to a contract.
3. Defendant's liability for tort is governed by the law of Pennsylvania, including its conflicts, rules, and hence by the law of West Germany.
4. Defendant was not negligent in performing the inspection and is not liable to plaintiff in tort.
5. Plaintiff's loss was due to numerous factors, including its own acts and voluntary decisions, and plaintiff has not met the burden of proof nor shown that its loss was proximately caused by any negligence of defendant.
6. Witnesses offered by plaintiff would were familiar with welding in boilers and naval construction or in gas pipes, are competent to testify as experts regarding welding in pipe for oil transmission, the weight of their testimony being for determination by the trier of fact.
The motion to dismiss is granted and the Clerk is directed to enter judgment for the defendant.