Crumady v. The Joachim Hendrik Fisser
| Decision Date | 30 September 1957 |
| Docket Number | No. 12138-12140.,12138-12140. |
| Citation | 249 F.2d 818 |
| Parties | John H. CRUMADY, Appellant in No. 12138 v. THE JOACHIM HENDRIK FISSER, Her Engines, Tackle, Apparel, etc., and Joachim Hendrik Fisser and/or Hendrik Fisser, Respondents (Nachirema Operating Co., Inc., Impleaded Respondent Appellant in No. 12140; Hendrik Fisser Aktien Gesselschaft, Claimant Appellant in No. 12139). |
| Court | U.S. Court of Appeals — Third Circuit |
Abraham E. Freedman, Philadelphia, Pa. (Sidney A. Brass, Newark, N. J., on the brief), for Crumady.
Victor S. Cichanowicz, New York City (Charles N. Fiddler, New York City, Frederick H. Cunningham, New York City, on the brief), for Hendrik Fisser Aktien Gesselschaft.
John J. Monigan, Jr., Newark, N. J., (Stryker, Tams & Horner, Newark, N. J., on the brief), for Nacirema Operating Co.
Before MARIS, STALEY and HASTIE, Circuit Judges.
Proceeding in rem against the ship Joachim Hendrik Fisser, the libellant Crumady has sued in admiralty to hold the ship and its owners responsible for personal injuries suffered by him while working on the ship as a stevedore employed by Nacirema Operating Co. in the unloading of the vessel at a berth in Port Newark, New Jersey. The respondent impleaded libellant's employer, Nacirema Operating Co., seeking thereby to obtain indemnification for any loss it might suffer through this suit.
After full hearing the court held the ship liable, ruling that one factor which contributed to the accident was the unseaworthiness of certain equipment of the ship. The court 142 F.Supp. 401 also allowed the ship to recover over against Nacirema, the party whose negligence, in the court's view, was the "sole, active or primary cause" of the accident.
Each of the parties has appealed. The ship challenges the ruling as to unseaworthiness. Nacirema claims that in any event there was no basis for holding it to indemnify the ship. The libellant complains that the amount of the award was erroneously determined and grossly inadequate.
We consider first the way the issue of unseaworthiness arose and was determined. The libel itself asserted a claim in admiralty for injury caused by the negligence of a ship and its owners, and nothing else.1 There was no claim that unseaworthiness caused the accident or even that any unseaworthy condition existed. However, discussion at a pre-trial conference seems to have led the court to conclude that libellant's contentions included a claim predicated upon unseaworthiness. In any event, the transcript of the trial judge's statement at the conclusion of the pre-trial conference shows that he undertook to frame the issues, saying, apparently with the acquiescence of the parties, that the libellant "contends in effect that the injuries complained of resulted from the unseaworthiness of the vessel. * * *" In addition, the court made it clear that the structure alleged to have been unseaworthy was a cable or topping-lift which parted causing a boom which it supported to fall upon the libellant. Thereafter, libellant's proof was directed at establishing that the topping-lift was worn and defective and, for that reason, parted under the strain of lifting cargo which sound gear would have withstood.
The evidence relevant to this theory of liability was conflicting and the court, with adequate basis in the record, found as a fact that the topping-lift was not defective but "was adequate and proper for the loads for which the rest of the gear was designed and intended". The court also found quite properly that Nacirema's employees, libellant's fellow stevedores, were negligent in their conduct of the unloading operation. More particularly, attempting to lift long and heavy timber from the hold they permitted the load to catch under the coaming at the margin of the hatch from which it was being removed. In addition, though forbidden to change the position of the head of the boom which the crew of the vessel had placed over the center of the hatch, they had changed the attachment of the preventer and guy which controlled the position of the boom so that the head of the boom was no longer over any part of the hatch but had been moved a distance to port of the hatch opening. The excessive and abnormal strain which this incorrect procedure imposed upon the topping-lift will be discussed later. It suffices to point out now that the court with justification attributed the accident primarily to this negligence of Nacirema.
But having thus eliminated the basis of unseaworthiness formulated at pretrial, the court found and adopted a new theory of the ship's unseaworthiness and responsibility which libellant had not pleaded and, so far as we can determine, had not attempted to establish in his proof. An understanding of the court's reasoning requires the consideration of additional circumstances not heretofore mentioned.
The gear being used at the time of the accident was rated and approved to lift a load of three tons or less. In the actual unloading operation a cable, called a cargo runner, was attached to the object to be lifted from the hold. This runner extended upward over a block at the end of a boom high above the hold and thence to and around a winch powered by an electric motor. The electrical equipment in this case included an automatic circuit breaker which stopped the flow of power to the winch whenever the current built up beyond the amperage for which the device had been set. Witnesses were asked to relate the cut off amperage to the strain imposed upon the winch by the load it was lifting. The witnesses agreed that the cut off was set so that if the motor should be required to overcome a strain on the cargo runner somewhat in excess of six tons the current would quickly build up to the setting of the circuit breaker and the motor would automatically cut off. In this case, the motor did cut off, apparently just before the topping-lift parted.
The libellant seems to have introduced testimony about the cut off device in an effort to show that the power was cut off before the gear was subjected to any greater strain than it should have been able to withstand. But in analyzing this testimony, much of which was a rather confused discussion of "load" and "torque" and other electrical concepts induced by questions addressed to the witnesses as though the...
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