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UNITED STATES v. NORTHERN METAL CO.

June 28, 1974

UNITED STATES OF AMERICA, Plaintiff
v.
NORTHERN METAL COMPANY, Defendant


Ditter, J.


The opinion of the court was delivered by: DITTER

DITTER, J.

 This is a suit brought by a ship owner seeking indemnification from a stevedore for damages resulting from the death of a longshoreman injured during loading operations. Two issues are involved: the seaworthiness of the vessel and the interpretation of a contract between the parties.

 On May 1, 1959, Albert Mascuilli was killed while working aboard the USNS MARINE FIDDLER in the port of Philadelphia. Suit was brought by his administratrix pursuant to the Public Vessels Act, 46 U.S.C. ยงยง 781-90, alleging the unseaworthiness of the MARINE FIDDLER and the negligence of the Government as owner. *fn1" That matter was tried by the Honorable Ralph C. Body, late of this Court. Judge Body held that the accident in which Mascuilli was killed was not proximately caused by an unseaworthy condition or by the negligence of the Government as vessel owner. Although his decision was affirmed by the Court of Appeals, it was reversed by the Supreme Court in a short per curiam opinion. *fn2" In the instant case, the parties have entered into a stipulation of facts and have agreed that I may consider the evidence submitted to Judge Body in the Mascuilli case.

 Based on the Supreme Court's decision in Mascuilli and the stipulation between the parties, I make the following:

 FINDINGS OF FACT

 1. The USNS MARINE FIDDLER was a public vessel operated by plaintiff, United States, through its agency, the Military Sea Transportation Service (MSTS), United States Navy. *fn3"

 2. The vessel was built at Sun Shipyard in Chester, Pennsylvania, in August, 1945, and converted into a heavy lift cargo vessel in April, 1954, with changes in her structure, mast, booms and other equipment at No. 3 and No. 4 hatches, in order to handle extremely heavy cargo weighing up to 150 tons. These changes rendered the USNS MARINE FIDDLER one of the few vessels afloat with such heavy cargo handling capabilities which resulted in her entire loading system and equipment being unique and more complicated than the normal cargo vessel.

 3. On May 1, 1959, the said vessel was moored, port side to, at one of the docks of defendant, Northern Metal Company, upon the navigable waters of the Delaware River in the Port of Philadelphia to take on a cargo of M103A1 Army tanks, each weighing in excess of 61 1/4 tons.

 4. Defendant, Northern Metal Company, an independent expert stevedore contractor, was engaged by the Government to handle Government cargoes in the Port of Philadelphia. The contract between the parties contained the customary provisions requiring the expert stevedore contractor to handle fully the loading and stowing of cargo aboard the said vessel.

 5. All the cargo handling gear and equipment at the No. 3 hatch of the USNS MARINE FIDDLER was furnished by the Government and had been rigged by members of the crew of the vessel prior to the commencement of cargo operations on May 1, 1959. The principal part of the gear consisted of a 150-ton swinging jumbo boom.

 6. The jumbo boom was raised and lowered in a vertical plane by means of a topping lift and was swung inshore and offshore by the vangs attached to the flounder of the cargo pendant. Each of the vangs was operated by its own independent winch. However, the winches could not be operated simultaneously; that is, the boom could not be topped or lowered at the same time the hoisting gear was being raised or lowered, and vice versa. The winches for the vangs were located on deck. The controls for the port and starboard after vangs were upon an elevated platform on the after port end of the hatch and were operated by a single operator. The forward starboard vang control was on an elevated platform at the forward end of the hatch and was operated by another winchman.

 8. When the longshoremen came aboard the vessel, they were questioned as to their familiarity with the vessel and her gear by the First Officer, Mr. Henry. The First Officer was informed by the longshoremen foreman that they had operated this type of heavy lift gear and were quite able to handle these loading operations. Nevertheless, several experienced crewmen instructed the longshoremen in the operation of the heavy lift gear and the individual duties of the different winchmen. All winch controls operated in the conventional manner, and instructions for operating the same were posted beside the winches.

 9. The First Officer, Mr. Henry, stood by throughout the days' operation to insure proper handling of the gear and proper operation of the winches. He advised and cautioned the foreman-signalman, Majowski to be sure that the vang lines were not pulled too tight. He testified that he was satisfied that the longshoremen were capable of properly operating the gear and that otherwise he would not have permitted them to operate it.

 10. To facilitate the loading of the M103A1 tanks, the 150-ton heavy lift boom at No. 3 hatch was rigged for port side loading; there were three vangs in use; two after vangs, port and starboard, located on each side of the boo and running to vang posts at the after end of the hatch, and an offshore vang at the forward starboard end of the hatch. These vangs are designed only to swing the boom and do not support the weight of the cargo. In swinging the boom outboard over the pier to pick up a tank, the after port vang is heaved in and the two offshore starboard vangs are slacked off. When the boom is at the desired horizontal angle over the pier, heaving is stopped on the port vang and the vang is slacked. The boom is then lowered by other winches, as stated before, that activate the topping lift and hoisting gear. While the tank is attached to the hook and raised, the forward starboard vang is used to check the swing of the boom as the vessel takes a slight port or inshore list as the 61 1/4 ton tank is raised on the hook. When the tank is raised clear of the side of the vessel by hoisting and topping the boom, the forward starboard vang then pulls the tank toward the hatch since it is in the best position to perform this job being at right angles to the load. The after starboard vang is of no use initially in pulling the boom since its angle to the heel of the boom is too acute and would exert an undue strain of the boom. The after port vang must be kept slack constantly by additional paying out of the winch while the boom and tank are swung over the hatch. Thereafter, the port vang will not be used again unless it is necessary to check the swing of the boom and tank as they are positioned over the hatch.

 11. At approximately 5:00 P.M., Mr. Henry left the deck, and was replaced by Third Officer Moore as deck officer to observe the loading operation. At this time, eight tanks had been successfully loaded by the longshoremen, indicating that they were capable and competent to operate the gear in a proper manner.

 12. Five minutes after Mr. Moore was on deck, while Mr. Henry was eating supper, as the ninth tank was being lowered into hatch No. 3, the accident occurred when suddenly, without warning, the port shackle suddenly parted and the vang and connecting parts recoiled and dropped to the after port deck, striking and inflicting fatal injuries upon one of the longshoremen, Albert Mascuilli. The parting was accomplished with such force and release of energy that it was described as "thunder."

 14. The principle of tightlining can best be illustrated by visualizing two lines supporting a weight where the angle between the lines is zero degrees and each line supports one-half of the weight in this position. As the angle between the two lines increases, the load that the weight exerts is increasingly multiplied, and when the lines are at a theoretical 180 degrees, or in a straight line, the multiplied load of the weight upon the two lines is infinite.

 15. Once a tightline condition has been created, there are no known or designed safety precautions in marine architecture and engineering which will prevent the parting of the vangs and guys and their connecting parts.

 16. In April 1959, less than one month prior to the accident, The American Bureau of Shipping witnessed and approved an annual inspection of the MARINE FIDDLER'S 150-ton heavy lift gear. The annual inspection required an examination of all moveable gear, wire, blocks and shackles. At the conclusion of this inspection the gear was certified as having successfully completed the annual inspection.

 17. On April 30, 1959, the day prior to the accident, the 150-ton heavy lift gear at the No. 3 hatch was rigged by the crew of the vessel for portside loading; all running wires, blocks, booms and swivels were carefully greased and inspected. The port and starboard shackles attaching the vang spreaders to the flounder plate were also inspected by the First Officer and the Boatswain and were found to be in first class condition with no evidence of fatigue, no sign of wear, marks, notches, cracks or paint flakes on either shackle.

 18. The port shackle which parted was shown by metallurgical tests, performed after the accident, to fully comply with Government specifications. Examination of the parted port shackle revealed that at the point of break there was no evidence of any notch, scars, scratches, defects, imperfections or wear. Futhermore, there was no evidence of any fatigue or abrupt change in the shackle body at the point of break.

 19. The vangs were powered by electrical winches located on the deck at the corners of the hatch.

 20. Each of the vang winches was equipped with electrical cut-offs with an instantaneous automatic trip at 550 amperes in the electric motor which was sealed by the manufacturer. The 550 ampere automatic cut-off setting results in an instantaneous trip and must be placed at that setting to allow initial surges of amperage to start the motor.

 21. In addition, each of the vang winches was equipped with a branch circuit breaker with a 275 ampere cut-off. The 275 ampere setting will not trip instantaneously, rather its activation depends upon the amount of overloading and the extent of time of overloading.

 22. The winches have eleven operating positions: neutral, five forward or paying-out positions and five after or heaving-in positions. When the winch cut-offs are tripped, the effect is to shut off the power immediately and to engage the automatic brake holding the line in its existing condition. When the winch is in neutral or stopped position, the cut-off will not trip because the winch will not be drawing any electric current.

 23. Both the electric cut-off with an instantaneous trip at 550 amperes and the branch circuit breaker with a 275 ampere cut-off are fixed settings and these settings are necessary to allow the winch to perform its designed pull. The unrebutted expert testimony was that these settings were proper and sound for use in this rig.


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