The opinion of the court was delivered by: INCH
Libelant brings this action against the Government under the Public Vessels Act, 46 U.S.C.A. § 781 et seq., and the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., for personal injuries sustained by him of February 14, 1949 while working as a longshoreman aboard the U.S. Army Transport Corporal Eric G. Gibson at the Brooklyn Army Base. The Government has impleaded libelant's employer Pittston Stevedoring Corporation which was engaged in discharging a cargo of war dead and empty caskets from the Gibson pursuant to a written contract.
A draft of two caskets fell on libelant while he was working in the No. 2 hold of the vessel, and it is his contention that the accident was caused by a defective deck winch. He claims the government was negligent in failing to properly inspect, maintain and repair the winch, and failed to provide him with a safe place to work and that the vessel was unseaworthy.
The main issue on the trial was whether the accident was caused by a defective winch or whether it resulted from the negligence of libelant's fellow-longshoremen. This issue was fully tried and briefed, and it is my opinion that the credible evidence clearly favors a finding that the falling of the draft was due to a mechanical failure of the forward starboard winch at the No. 2 hatch and that it was not due to any other cause.
Libelant called tree longshoremen of the gang which operated the winch on Friday, February 11, 1949, three days prior to the accident. They testified that on the morning of February 11, 1949 when they started work they observed that the gears of the winch were not meshing properly. Garguilo, the gangwayman, stated that the 'second' or 'low gear' was 'only in there about a quarter of an inch'. Barcco, the hatch boss, said he saw that 'it wasn't all the way fit in * * * just at the tips it was in', and Barbagallo, the winchman testified that 'the gear was not in place'. The substance of their testimony was that they informed one of the ship's mates of the condition and that he summoned the Deck Engineer, who with another crew member attempted to force the gears into position with a crowbar, and after working on the gears for about a half hour without success, placed blocks of wood alongside the gears to hold them in place. The Deck Engineer then informed the longshoremen that the winch was alright to work, and they operated the winch for the remainder of the day without incident.
The stevedores did not work over the weekend, and on the following Monday morning, February 14, 1949, they again came aboard the vessel, and libelant's gang was assigned to the No. 2 hold. They uncovered the hatch and began to discharge the cargo of caskets and war dead. Because of the solemnity of the occasion the winch was operated in low gear. An extension handle of three or four pieces of dunnage had been tied to the handle of the winch on Friday, February 11th, by the previous gang for the purpose of getting better leverage on the winch handle and also to enable the winchman to look directly down the hold rather than to operate the winch by taking signals from a gangwayman. The gang had been working about 15 or 20 minutes and had removed approximately 15 drafts from the hold when the accident occurred. According to the testimony of three members of libelant's gang, including the winchman, the draft which struck libelant was being raised by the forward starboard winch at the No. 2 hatch, and after having been raised about 10 or 15 feet, it suddenly fell into the hold and struck libelant and another longshoreman. The fall of the draft was variously described by the witnesses as having occurred with such suddenness that 'nobody had a chance even if you yelled, nobody could get out of the way'; it happened 'in the blink of the eye' or a snap of the fingers. Immediately after the accident each of these three witnesses inspected the winch and observed that the gears were not meshed properly, but were 'holding by just a hair', 'just at the tip', 'almost out'. It is significant that the winchman in a statement to a Government agent of the day of the accident expressly described the existence of such a defect in the winch. He stated: 'The upper double gear of the winch was about 1/2 inch in position and in gear. The gear was not fully set in when I examined it immediately after the accident'.
It is also significant that when the accident happened all the interested Government personnel immediately inspected the mechanism of the winch. Four of the ship's officers together with the Port Engineer and the Port Safety Engineer made certain tests on the winch and attempted to pry the clutch out of gear with a crowbar. Although they claimed that the winch was not defective, Burgess, the Port Engineer, admitted that the clutch 'was engaged about five-eighths of an inch, better than half an inch, which was about half the distance of the male and female meshing'. He also admitted that if the clutch came out so that only the tips of the gears were touching, the load would drop.
Barden, the Government's Safety Director at the Army Base, admitted that the customary test of the operation of a winch is to test it with a load. The Government's witnesses, however, made no such test.
In addition to the evidence set forth above as to the defect in the winch on February 11, 1949, the Friday prior to the accident, and on February 14, 1949, the date of the accident, there is evidence in the Gibson's Engine Room Log Book that repairs were made to this winch on February 10th, the date of the vessel's arrival in New York. Although the Government attempted to show that this entry referred to a winch at a different hatch, the deposition of Teffeau, the ship's First Assistant Engineer, clearly indicates that the repairs were made to the winch involved in this accident. Further, records of the ship's activities, recorded by the Army timekeeper disclosed that on the day following the accident there was a 'Standby on account of faulty winch' at No. 2 hatch forward from 9:30 to 10 A.M., and the superintendent of Pittston testified that the No. 1 starboard winch was rigged in order to discharge the remainder of the caskets in the No. 2 hold.
Despite this substantial amount of evidence as to the defective condition of the winch, the Government urges two rather speculative theories as to the cause of the accident. It is contended that the accident may have occurred 'either through the confusion of the winch operator Santomarco in operating the winch handle contrary to the normal manner in which a winch handle is used or in his failure to properly control the winch handle after the pieces of dunnage tied together by rope yarn became loose.' (Brief p. 7.)
As to the first theory, it is pointed out that because of the manner in which the wooden extension handle was affixed to the winch handle, it was necessary for the winchman to depress the extension handle in order to raise the draft, which was the reverse of the normal operation of the winch handle, and that in raising this draft the winch operator may have suddenly reverted to his normal 'habit pattern' of raising the lever instead of depressing it. The difficulties with this theory are threehold. First, there is no evidence that the winchman operated the handle in the wrong direction, that is, that he raised the extension handle instead of holding it depressed. Secondly, it is undisputed that the draft was in the process of being raised and that when it reached a height of 10 to 15 feet it suddenly fell. No evidence was offered as to any reason for the winchman to have manipulated the handle at this point in the draft's rise. Thirdly, the winch was concededly operating in low gear and had the winchman reversed the direction of the draft, it is reasonable to believe that it would have come down slowly and would not have dropped as suddenly as it did.
The Government's second theory that the accident may have occurred through the failure of the winchman to properly control the winch handle, because the pieces of dunnage tied to it allegedly became loose, is likewise unsupported by the evidence. The only testimony concerning any such condition of the wooden extension was given by the Port Engineer who inspected the winch after the accident. He stated:
'Secondly, I will say that the sticks, well, when I looked at them, there was enough play in the strings, in those strings, to create an awful lot of misoperation in between movements.
'The Court: In the strings?
'The Witness: Yes, your Honor, these strings, the cords that they had which tied the sticks, tied the sticks first to the throttle lever and then, ...