On appeal from Superior Court, Law Division, Hudson County.
Petrella, Conley and Villanueva.*fn1The opinion of the court was delivered by Petrella, P.J.A.D.
Plaintiff John Anzalone appeals from a summary judgment order dismissing his complaint against defendant WesTech Gear Corporation (WesTech), formerly known as Western Gear Corporation. Anzalone asserts that the motion Judge erroneously (1) applied the government contractor defense, and (2) determined that WesTech did not have either a contractually imposed or common law duty to install the ram tensioner or inspect its positioning aboard ship. We reverse solely on the basis of a misapplication of the government contractor defense.
During 1987, Anzalone, a civilian, worked for the U.S. Navy as a room steward aboard a naval tanker used for transporting fuel and supplies to vessels at sea. He apparently also had limited duties with respect to fuel replenishment operations undertaken by the tanker.
Transferring fuel and supplies between naval ships at sea involves an elaborate replenishment system consisting of numerous components, including a WesTech device known as a "ram tensioner." During a typical replenishment operation, a wire rope known as a "spanwire" or "highline" extends from the delivering ship to the receiving ship to provide support for connecting fuel and supply lines. The spanwire is reeved through a ram tensioner, which contains a series of pulleys at both ends of a vertical
column (collectively termed the upper and lower sheave block or assembly). It is operated by a hydraulic ram to maintain constant tension on the spanwire by either "paying out" or "taking in" the spanwire so as to prevent supply lines from falling into the water.
On March 20, 1987, Anzalone (a Bayonne, New Jersey resident) was on the USNS Waccamaw off the Virginia coast,*fn2 and was on a fuel replenishment detail when he tripped while he was walking adjacent to the open and unguarded lower sheave block. As he fell forward, Anzalone reached out with his left hand and grabbed one of the spanwires as it was being fed vertically downward from the upper sheave assembly into the lower sheave block of the ram tensioner. As a result of the spanwire passing through the lower sheave block, Anzalone's left hand was amputated at mid-palm.
According to the certification of A. Martin Hanke, a Navy engineer from 1941 to 1973, who originated the concept of the ram tensioner, the Navy awarded the first contract for design and development to Sancor Corporation in 1958. On August 7, 1961, after testing and evaluating the Sancor ram tensioner at sea, the Navy drafted specification SHIPS-T-3945, which provided in pertinent part:
3.2.6 Sheaves. -- Sheaves shall be designed for one inch wire rope (breaking strength of 85,600 pounds). Means shall be provided to prevent the wire rope from jumping the sheaves.
3.13 Workmanship. -- Workmanship shall be of the highest quality commensurate with the intended use.
Additionally, Navy specifications provided in part:
The Contractor shall furnish the services of a competent engineer(s) for checking and placing the hydraulic ram tensioners in a satisfactory operating condition. These services shall consist of assisting the yard in operating and testing the equipment and instructing yard and ship personnel in proper operation of the equipment. Due to the special nature of equipment involved these services are considered essential and special attention is invited to this requirement.
The engineering services shall be performed within the limits as to places, if any, and period specified therefor, at specific places and times which shall be designated by the Chief, Bureau of Ships, Code 622A, or his duly authorized representative.
The Government may require less than the total amount of services set forth above be furnished. In such event or in the event that the Government does not designate times and places sufficient for the full performance of said total amount of services within the period provided therefor, those services not furnished shall be deemed to be terminated for the convenience of the Government at no cost to the Government.
Based upon specification SHIPS-T-3945 and the final Sancor drawings, the Navy issued a procurement request that sought proposals for the development, manufacture, and testing of seventy-eight hydraulic ram tensioners.*fn3 The Navy subsequently awarded WesTech, then known as Western Gear, the contract to manufacture the ram tensioners.
According to a certification of Charles S. Forve, employed by WesTech since 1966 and currently manager of contracts and special products, a subcontractor for WesTech provided the Navy with the subject ram tensioner in either late 1963 or early 1964. Forve further stated:
All of the ram tensioners provided to the Navy or Naval suppliers by Western Gear/WesTech were manufactured in accordance with strict written military specifications. During my tenure at Western Gear/WesTech, the Navy never objected to any of the ram tensioners on the basis of nonconformity with military specifications. The military specifications for ram tensioners have never required guards for the lower sheave block of the ram tensioner.
Although stating that the SHIPS-T-3945 specification and Sancor drawings "establish[ed] a pattern of detail and precision," Hanke also stated that the initial procurement for ram tensioners "did not require any guarding of the lower sheave block area." With respect to the upper and lower sheave blocks, Hanke further opined:
In my experience at the Navy, its approval of drawings and proposals was never merely a stamp of approval without substantive evaluation; the Navy was always intimately involved with the design and development of all deck equipment and the design and development of the ram tensioner was no exception.
During my tenure with the Navy, guards for the lower sheave blocks of ram tensioners were never required by the specifications or the accompanying drawings in a procurement of ram tensioners.
According to Hanke, WesTech had suggested various design features for the ram tensioner that the Navy had challenged, modified, or rejected. As to the installation of the ram tensioners, Hanke said:
The specifications provided to Western Gear for the production of ram tensioners often contained provisions which stated that the manufacturer was to provide engineering services in connection with the supply of the equipment. Such engineering services were performed only at the request of the Navy and Western Gear had no obligation to provide them unless the Navy requested and paid for those services under the option provided in the contract. Engineering services did not include installation, erection or arrangement of the ram tensioner. Installation and arrangement of the ram tensioner was the sole responsibility of the Navy and the ship builder; Western Gear had no authority to install the ram tensioners it provided and had absolutely no input as to the placement of a ram tensioner within [a replenishment] configuration.
In sum, Hanke believed that the "ram tensioner was a piece of U.S. Navy deck machinery, conceived and developed by the Navy at Navy expense, and its design and application on U.S. Navy ships was completely controlled by the U.S. Navy."
Additionally, R.T. Hawley, who worked at WesTech from 1939 to 1979, and was chief engineer primarily responsible for the development and manufacture of ram tensioners for installation on naval ships, outlined the various military specifications for the ram tensioner in his certification and added:
The specifications further provide that the ram tensioner should reflect the utmost in simplicity and reliability, and that the ram tensioners should be easy to install and maintain with a minimum of skilled personnel.
The specifications clearly provide that the ram tensioner subject to development was to be free standing, base mounted structure which could be ...