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SOWICZ v. UNITED STATES

December 20, 1973

Michael SOWICZ
v.
UNITED STATES of America v. NORTHERN METAL COMPANY


Newcomer, District Judge.


The opinion of the court was delivered by: NEWCOMER

NEWCOMER, District Judge.

Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the Court makes the following findings of fact.

 1. Plaintiff Sowicz was a sixty-two year old longshoreman who was employed in that capacity on December 18, 1969 by the Northern Metal Company, third party defendant herein.

 2. Northern Metal was a stevedoring company which had entered into contract DAHC 21-69-D-0055-P003 (hereinafter "contract") with the United States.

 3. Pursuant to the contract, Northern Metal was to process and ship privately owned vehicles (hereinafter "POVs") which belonged to military personnel.

 4. POVs were processed as follows:

 (a) The cars were driven to Northern Metal by their owner or his designee and were stopped at the main gate.

 (b) At the main gate the cars were directed to the POV building which is 300 to 600 feet away. There are two stop signs between the main gate and the POV building.

 (c) The orders of the car owner (sponsor) were reviewed at the POV office to determine whether he was entitled, pursuant to Army regulations, to ship his vehicle. If so, Army-supplied form DD788 was completed as required by Army regulations.

 (d) A Northern Metal employee, in the presence of the vehicle owner, examined each POV for external damage. Any such damage was noted on the Army-supplied form DD788 which was then signed by the owner.

 (e) Pilferable items were removed from the vehicles, placed in a carton and locked in the trunks of the cars. A list of said items was made by Northern Metal pursuant to Army requirements.

 (f) A Northern Metal employee then drove each vehicle to a degassing area pursuant to Army regulations. The brakes of the car were applied to assure that they were operational before the vehicle was driven from under the canopy of the POV office.

 (g) If anything was found to be wrong with a car prior to its being loaded, a note to that effect was placed on the windshield of the car. Such a car would then be given special attention while being stuffed.

 (h) The degassing area was between 150 feet and 300 feet from the POV office. There was one stop sign en route. Cars were stopped by their own brake systems upon arrival at the degassing area.

 (i) At the degassing area, cars were backed onto inclined ramps and gas was drained from them.

 (j) The gas removed from the vehicles was the property of the United States government and was either picked up by the Army or put into vehicles shipped to the United States from foreign installations.

 (k) After degassing the cars were driven approximately 400 feet to a storage area; there were two stop signs en route. The cars were stopped by their own brake systems at the storage area. When the vehicles reached the storage area, their hoods were opened and their engines were left running.

 (l) When the engines stopped, batteries were disconnected, terminals were taped, and the cars were locked as provided in Army regulations. Keys were returned to the POV office.

 (m) Cars remained in the parking or storage area from 15 days to a period of months. The Army's Military Sea Transportation System booked vessels on which military cargo was transported and arranged for arrival at Northern Metal of containers for use in shipping POVs when the ship was a container vessel.

 (n) When a vehicle was booked on a container ship by the Army, it was towed with its battery still disconnected to the pier area with someone inside to steer. The cars were usually moved to the pier a day or more before being stuffed into containers. Upon arrival at the pier area, the cars were stopped by their own braking systems. Someone was inside to steer during these operations.

 (o) Containers were stuffed on the day before the ship on which they were to be loaded arrived.

 (p) Cars were brought from within the pier shed to the doorways of the pier with someone inside to steer; they were stopped at the doorways by their own braking power. When cars were moved from within the pier shed to the pier itself, if the man steering detected any braking difficulty, he would tell others and the car would be pushed into a container by hand.

 (q) Cars were pushed into containers by modified forklift trucks from which the forks had been removed and onto the front of which a tire had been placed. While a car was being pushed into a container, there was a longshoreman in it to steer.

 (r) Cars had to be pushed up a ramp of approximately six inches to get into containers.

 (s) POVs were stopped in the container by their own brakes.

 (t) After the POV was stopped, each wheel would be chocked (secured) by the longshoreman working inside the container.

 5. On December 18, 1969, plaintiff was working as a wood butcher at Northern Metal. It was not unusual for a longshoreman to be hired as a carpenter. Five wood butchers constituted a group. The group in which Sowicz was working included Charles Angelus (Sowicz's partner or breaster), John Galle, Tracey and a chock man, Stanley Sezpiel.

 6. Plaintiff had never worked as a wood butcher in the past.

 7. On December 18, 1969, containers were not being stuffed differently than at any other time over a period of years.

 8. Between 3:00 p.m. and 5:00 p.m. on December 18, 1969, Sowicz was struck by a car being pushed into a container in which he was working.

 9. The platform lights on the pier were on at the time of the accident.

 10. Sowicz, at the time he was struck, was standing at the rear of a vehicle which had been chocked in the container. He was awaiting the arrival of a second vehicle.

 11. The vehicle by which Sowicz was struck was being steered by William Taras (nickname, "Calhoun") who had been a longshoreman for 35 years. Michael Libucki was driving the forklift by ...


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