The opinion of the court was delivered by: WORTENDYKE
This admiralty suit was instituted by libel in rem for damages, civil and maritime, for bodily injuries and their consequences, resulting from the fall of a cargo boom serving hatch No. 1 on the motor vessel Joachim Hendrik Fisser, of German registry, while lying in navigable waters of the United States, within the jurisdiction of this Court, at a pier or bulkhead at Port Newark, New Jersey, on January 2, 1954.
The vessel impleaded as a respondent libellant's employer, Nacirema Operating Co., Inc. (herein called Nacirema), the stevedore contractor which was discharging the vessel's cargo at the time of the occurrence complained of.
The injuries were inflicted during the course of discharge of a cargo of lumber and timbers from the forward (No. 1) hatch of the vessel by libellant's fellow-employees. The discharging operations had commenced about an hour before the offending occurrence, during which time certain drafts of lumber had been discharged by means of the so-called 'up-and-down' boom and Burton boom from the hatch of the vessel to the pier. The booms and tackle had been initially rigged by the ship's crew but before the operation in the course of which libellant was injured the stevedores had altered the position of the head of the up-and-down boom and the places of fastening of its guy and preventer. The discharging instrumentalities, including the winches, were being handled by libellant and his fellow-employees.
When the accident occurred the stevedores were in the course of discharging from the hatch two timbers, lying fore and aft of the hatch, estimated in dimensions at from 8' X 8' to 12' X 12' in girth and from 30 to 37 feet in length. One of these two timbers lay upon the cargo within the open square of the hatch, while the other timber lay beneath and entirely or partly outboard of the outboard-curving lower edge of the starboard hatch coaming, the top surface of the latter timber being close to the edge of the coaming and beneath the deck. In an effort to bring the two timbers together and into the open area of the hatch square, libellant and his fellow-employees had placed a double-eyed wire rope sling, provided with a sliding hook movable between the eyes thereof, around the two timbers at a location two or three feet from their after ends. The two eyes of the sling were then placed upon the cargo hook of the up-and-down boom runner and a signal given by the stevedore gangwayman to the winchman to 'take up the slack'. The winchman complied with the signal, and during this operation libellant stood clear upon other timbers forming a part of the cargo, within the open square of the hatch. There was some testimony that when the slack was taken up by the winchman, the two timbers slid toward each other in the sling, the timber which had been under the lower edge of the hatch coaming moving or commencing to move toward the timber which lay within the open hatch square. After the slack had been taken up by the winchman, the same signaller called for the 'taking of a strain' upon the cargo runner. The winchman again responded, the two-part topping-lift broke and the head of the up-and-down boom, with its attached cargo and topping-lift blocks, fell to the top of the cargo within the hatch square.
The topping-lift had been rigged in a double purchase and had been supporting the head of the boom. The wire rope constituting the topping-lift extended from a shackle on the topping-lift block at the cross-tree of the mast, through a block at the boom head, back through the mast block, down the mast, through a block welded to the mast table, and thence around a drum of the winch. When the boom fell, libellant was knocked down, either by the boom itself or its appurtenant tackle, and thus sustained numerous serious and permanently disabling orthopedic and neurological injuries.
Alleging that he was impliedly invited by the vessel and her owner to participate in her unloading, libellant charges that his injuries proximately resulted from the negligence of such owner, its agents and servants, and from the unseaworthiness of the vessel. More particularly, libellant asserts that the topping-lift which parted and permitted the boom to fall was, to the knowledge of the vessel's owner, 'worn, frayed and damaged', and that 'the equipment attached to * * * the boom * * * was insufficient, defective, inadequate and unsuited to handle the transfer of said cargo.'
Libellant's employer is impleaded as a respondent upon the vessel's contention that the sole cause of the breaking of the topping-lift, and the consequent fall of the boom, was the active negligence or improper conduct of the libellant's fellow employees in the handling of the cargo and unloading gear. By reason thereof the vessel seeks indemnification under the 56th Admiralty Rule.
It is elementary that the vessel owed libellant longshoreman the nondelegable obligation of seaworthiness. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099; Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S. Ct. 202, 98 L. Ed. 143; Alaska Steamship Co., Inc., v. Petterson, 347 U.S. 396, 74 S. Ct. 601, 98 L. Ed. 798. This obligation required only that the vessel and its equipment 'be reasonably fit for the use for which it was intended'. Berti v. Compagnie De Navigation Cyprien Fabre, 2 Cir., 213 F.2d 397, 400.
The topping-lift which supported the boom before it fell had been installed in its position at the time the vessel was originally rigged in May or June, 1952. There was much evidence about the topping-lift which parted.
I find that it was rigged in a double-purchase and consisted of 6 X 24 mild plow steel wire rope 2' in circumference. Since she had been launched and placed in commission, the vessel had been plying between different ports in the Carribean area and her loading and unloading gear at hatch No. 1 had been in frequent use, handling a variety of cargo loads. The so-called 'safe working load' of the boom and of the cargo runner (the latter measuring 2 1/2' in circumference) was, according to the stipulation of the parties, three tons each. Single wires taken from R-38, and tested by Isaac Stewart, Chief Engineer of the New York Testing Laboratories, disclosed a breaking point of between 158 and 177 pounds. He computed the tensile strength of the entire wire rope at 19,600 pounds, representing 80% of the product of the average strength of the individual component wires by the number of the wires. Mr. Stewart defined the safe working load of a rope as represented by one-fifth of its breaking load. Accordingly, the safe working load of R-38 would be approximately two tons if it were rigged in a single-purchase, but its double-purchase arrangement would render it stronger by at least 50%. I conclude, therefore, that the safe working load of the topping-lift with which we are here concerned was at least three tons. It was the opinion of Stewart, as well as that of respondent's witness Otar Grundvig, a Marine Surveyor, who also examined it, that the topping-lift which parted was in good condition and appeared to be 'very good wire'. On the other hand, libellant's witnesses, John P. Brady, a Chemical Engineer, and Theodore A. Schnieder, an Assistant Professor of mechanical engineering, each of whom examined R-38 and R-39 over two years after the topping-lift parted, were of the opinion that the rope was in a condition rendering it unsafe for use as a topping-lift with gear of the rated capacity stipulated for the boom and runner serving No. 1 hatch on the vessel in question. Brady found the exhibits pliable, greasy and dirty, indicating deck and handling wear, manifesting evidence that the wires had been galvanized, with a consequent reduction of tensile strength below what the witness believed would be the factor of safety. Schneider found the wire insufficiently lubricated, its core dry and some evidence of corrosion, conditions which, in his opinion, rendered the wire rope unsafe for use as a topping-lift for the boom.
It was also the opinion of Robert A. Simons, a Marine Engineer and designer of topping-lifts for vessels, that a topping-lift should be equal to or greater than the cargo runner in diameter and circumference.
Walter J. Byrne, Industrial and Marine Safety Consultant (who with Simons also testified for the respondent-impleaded), said that he had never seen a two-part topping-lift of wire rope 5/8' in diameter on any vessel, although he had inspected thousands. Byrne considered a topping-lift running rather than standing gear because of its function to raise and lower, as well as to hold, the boom, and he disapproved of the use of 5/8' wire rope as a topping-lift, rigged in a double purchase. Byrne admitted, however, that there was nothing wrong with a two-part topping-lift, provided the size of the rope was appropriate, and he added that a 5/8' wire in one position could be stronger than an inch wire in another position.
Since I am persuaded that the topping-lift which failed, and its condition, is exemplified in the exhibits R-38 and R-39, and since the testimony is uncontradicted that that topping-lift had been in use since the initial rigging of the vessel in June 1952, apparently with the same boom and a cargo runner of the same rated capacity as at the time of the accident, I find that the topping-lift and its manner of rigging, which was in use just prior to the fall of the boom, was adequate and proper for the loads for which the rest of the gear was designed and intended.
I am satisfied by the evidence in this case that, just prior to the fall of the boom which caused the libellant to sustain injuries, power was being furnished to this up-and-down boom by the port winch, which was located just forward of hatch No. 1, and which was being operated (as was the starboard winch which powered the Burton boom) by a fellow-employee of libellant.