The opinion of the court was delivered by: GALSTON
This action is brought pursuant to the provisions of the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq.
The libellant's intestate was one of a gang of stevedores employed by Turner & Blanchard, Inc., which corporation was engaged in loading cargo on the S. S. Samuel Adams. On October 3, 1942, the ship was lying bow in on the north side of the pier located at the foot of 31st Street, Brooklyn, New York. Sportiello, with other stevedores of his group, was working in No. 4 hatch. Still other members of the stevedore gang were lifting drafts of sheet iron weighing approximately two tons each to the hold of the Adams from a lighter on the port side of the ship. One winchman operated the port winch and another the starboard winch, and the deck gang included the hatch boss and a gangwayman.
The port side winch was rigged to operate from side to side, and the starboard as an up and down winch. The burton or port winch lifted the draft from the lighter above deck level, and then a fall from the up and down boom carried the draft over to a point above the hold. When the burton winch was slacked off, the up and down winch took the strain and lowered to to the hold.
The booms were rigged when the stevedoring crew came on board to load the cargo. They knew what they were to do and did not require instructions from the ship's company. The gangwayman was stationed to give signals to the winchmen. Customarily when the draft is lowered into the hold and reaches a point about three or four feet above the floor of the hold, it is the duty of men in the hold to guide the draft to the place where it is to be stopped, after which they give the signal to let the draft down.
At the time of the accident, about 3 P.M. on October 3, 1942, Sportiello was standing at the side of the tunnel in the hold on the starboard of in-shore section and as the draft was being lowered suddenly the port winch, through the disengagement of its gears, caused the draft to swing first to the starboard, then to the port, and struck the libellant's intestate, causing his death that day. Such is libellant's claim. The libel alleges that this accident arose and was caused solely by the defective condition of the burton winch and its appurtenances.
The winch in question was manufactured by the American Hoist & Derrick Company, and had two speeds, a low and a high gear. Haight, a marine engineer and ship surveyor, testifying for the libellant, said of the respondent's winch and lever mechanism that it appeared to be the ordinary winch except as to the lever. Describing the operation he said in shifting from one gear to another the handle of the lever is squeezed, releasing the latch, and the lever is free to be moved over to the other side of a quadrant. Then the lever is released, and the spring causes the pawl or latch to engage the opposite gear. In his judgment the pawl was ineffective as a safety device, for, he said, all winches vibrate rather severely when in use; and a pawl is subject to being jarred out of the slot in which it is supposed to be engaged.
In the operation of the winches on the day in question, owing to the weight of the drafts, both winches were put in low gear. It was customary on this vessel, before using the winches, for the engineers to fix the gear ratio as requested by the boss longshoreman. The chief engineer of the vessel testified that some time after the ship was in service he had installed in all winches a bolt and a nut in the quadrant, to prevent the winchmen from changing the gear ratios without the knowledge of the engineer on duty. On the other hand, the libellant contends that such bolt and nut installation was a safety device to prevent the lever from shifting out of gear while the winch was working.
Klinefelter, the chief engineer, and Dembicki, his second assistant engineer, said the gears could not be disengaged unless the winch was first stopped; after which the grip or release trigger at the top of the lever is compressed to lift the latch from the notch so that the lever may be moved to the desired gear position. A pressure estimated at about fifteen pounds is required to overcome the spring tension which holds the latch or pawl in the notch. To move the lever from one gear position to another requires a pressure of about thirty pounds -- at least such were the estimates given by Ljungkull, chief engineer of the American Hoisting Derrick Company.
Ljungkull, who designed the winch, said it was of conventional order, having been made and sold by the manufacturers for forty years. Currently it was the type built by them for the British Purchasing Commission, and later for the United States Maritime Commission. The Commission has purchased 15,000 of such winches for use on Liberty ships. When designed and constructed no provision was made for the insertion of a keeper bolt in either of the gear positions. The general design had been approved by Gibbs & Cox, naval architects, and by the Maritime Commission. Each winch was tested before delivery.
Ljungkull disagreed with Haight. He contended that vibration during the operation of the winch would not be sufficient to dislodge the pawl from its notch. He regarded the keeper pin inserted in the holes bored by the chief engineer in the winch on the Adams not as a safety device, but installed for the purpose of preventing unauthorized persons from shifting gears, though to be sure Ljungkull did admit that in present practice a pin is used instead of a pawl. Why the change was requested by the Maritime Commission does not appear. No one from that commission testified and so the matter is left in the realm of speculation.
I must conclude that the gears could not be disengaged during the operation of the winch; and that when a load is on the line it is necessary to stop the winch to shift the gears.
Moreover, on the day of the accident the keeper bolts to prevent shifting of the gears were in place, and were seen by the chief engineer, the second engineer, and an oiler of the crew. Battaglia, an oiler, had inspected and oiled the winches. It is true on his first round he found a loose bolt in the gear shift, and that he tightened against the objection of the winch driver. On his second round of inspection he found nothing wrong with the gear shift.
Klinefelter and Dembicki and Battaglia reached the scene of the accident shortly after it occurred and they observed that the gear lever handle of the port winch was in neutral position and that the keeper bolt was missing. Klinefelter searched for a bolt on the deck adjacent to the winch and as far as the bulwarks of the ship on either side in the vicinity of No. 4 hatch. He also inspected the starboard winch at No. 4 hatch and found that the bolt had been removed from the gear lever and quadrant, but the lever was still in low gear. He made a search for the bolt on the starboard winch gear shift lever and found a bent bolt along the bulwarks on the starboard side of the ship about twenty-four feet away, that could have ...