June 5th or 6th, 1957, and the engine attained a speed of 1600 rpms before the fresh water cooling system reached 200 degrees and black smoke emitted. Clarence McGirr, Hercules Field Service Engineer for 28 years, told Captain Boudreau on the second test run that the propeller, or wheel, although reduced to a 50 inch diameter with a 36 inch pitch, was still too large to enable the engine to attain rated maximum performance. Boudreau refused to make any further reduction in the size of the propeller. McGirr then advised a cut in the reduction gear ratio to 4 1/2 to 1. This was done.
On a third test run in the latter part of June, 1957, the engine was able to attain a speed of 1925 rpms, over a period of ten minutes running with the throttle wide open, before a temperature rise of 200 degrees and black smoke emission. When the engine speed was dropped back to 1800 rpms, the cooling system temperature dropped to 185 degrees and the black smoke ceased. Following this run, representatives of both defendant companies recommended to Captain Boudreau that the propeller diameter be reduced further, in order to eliminate the propeller overload so that the engine could attain its rated speed of 2100 rpms. However, Captain Boudreau refused to have any further propeller diameter reduction made. There is testimony that he stated, rather colorfully, that he wasn't going to swing a toy propeller on his boat. Metalweld insisted that for proper rated performance the reduction would have to be effected, and directed that the vessel remain at the Delaware Bay Shipbuilding Company until reduction was made. Captain Boudreau refused and had the engine governor set at 1800 rpms, at which speed the cooling system had attained 185 degree on the third test run in June, 1957. The manufacturer's recommended maximum speed for continuous operation as a work boat was 1700 rpms, which could vary depending upon the type of service and load haul. Captain Boudreau had the vessel released and placed in active commercial fishing service.
In November, 1959, approximately two and a half years after engine installation, during which time it had been serviced and repaired by Metalweld as well as others, it broke down. Inspection by plaintiff disclosed that the engine's cylinder liners were 0.0055 to 0.008 inches below the top surface of the engine block which, it contends, resulted in poor sealing with the gasket, by reason of defective design and manufacture causing engine failure with ensuing damages, including loss of profits.
The theories of liability advanced by plaintiff are substantially three: (a) sale by a manufacturer through Metalweld, its distributor, to plaintiff of an engine expressly or impliedly warranted to be merchantable and fit for use as intended, but which engine was in fact defective and not fit for the use represented and intended; (b) that such defective engine was placed in the stream of trade by the manufacturer which led to its purchase by plaintiff in reliance upon its national promotional advertising expressly and impliedly warranting fitness for use, hence imposing strict tort liability upon the manufacturer; and (c) negligence in the design, manufacture or servicing of the engine, or a combination of these factors, which rendered the engine inherently dangerous.
Specifically and succinctly, it is the factual contention of plaintiff that the overheating of the engine at certain speeds caused its alleged damages; that such overheating resulted from defectively designed and manufactured cylinder sleeves, which were below the surface of the engine block, thus preventing proper gasket sealing, thereby permitting water from the cooling system to seep into the cylinder housing, causing engine damage.
Defendant Hupp contends that as a matter of marine engineering, the top of the cylinder liners, or sleeves, need not touch the bottom of the gasket in order to obtain effective cylinder seal in this type engine. Therefore, if the meeting of these two engine parts is not essential to the formation of a proper seal, then the fact that the counterbore pocket may have been ground too deeply into the engine block with the cylinder liner slightly below the surface of the block, such was not a defect in design and/or manufacture.
Defendant Metalweld denies any negligence or breach of implied warranty of reasonable care and fitness in its servicing of the engine. It contends that the overheating and smoke situation was reported to the manufacturer immediately after the first trial run, and that proper recommendations to eliminate such overheating were made to plaintiff and ignored.
Both defendants insist that neither the design, manufacture, nor servicing of the engine, or any combination of those factors, was the proximate cause of the losses alleged by plaintiff. Rather, assert the defendants, plaintiff's damages, if any, were the proximate result of propeller overload, coupled with improper maintenance and abuse of the engine over a three year period of heavy duty commercial fishing, during which time plaintiff was not heard to complain of other than such engine difficulties as are customarily encountered in the trade.
Under the theories of plaintiff's case, relying on R.S. 46:30-21(1), N.J.S.A., implied warranty of reasonable fitness for purpose; or R.S. 46:30-21(2), N.J.S.A., implied warranty of merchantable quality; and negligence together with "strict tort liability," under Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1 (1960), and Santor v. A. and M. Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965), the standard imposed by law in New Jersey
for proof of liability is twofold:
(a) proof that a defect did in fact exist in the design and/or manufacture of the engine, and
(b) proof that such defect in design and/or manufacture of the engine did in fact proximately cause damage to the ultimate purchaser.