Fischbach & Moore Intern. v. CRANE BARGE R-14

• Decision Date: 10 September 1979
• Docket Number: Civ. A. No. Y-77-646,Y-77-1706 and Y-77-1623.
• Citation: 476 F. Supp. 282
• Parties: FISCHBACH & MOORE INTERNATIONAL CORP. et al. v. CRANE BARGE R-14, her engines, boilers, etc., et al. In the Matter of the Complaint of M. J. RUDOLPH CORPORATION as Owners of the CRANE BARGE R-14, for Exoneration from or Limitation of Liability. In the Matter of the Complaint of the BAKER-WHITELEY TOWING COMPANY, Owner of The TUG HOLLAND for Exoneration from or Limitation of Liability.
• Court: U.S. District Court — District of Maryland

476 F. Supp. 282

FISCHBACH & MOORE INTERNATIONAL CORP. et al. v. CRANE BARGE R-14, her engines, boilers, etc., et al.

In the Matter of the Complaint of M. J. RUDOLPH CORPORATION as Owners of the CRANE BARGE R-14, for Exoneration from or Limitation of Liability.

In the Matter of the Complaint of the BAKER-WHITELEY TOWING COMPANY, Owner of The TUG HOLLAND for Exoneration from or Limitation of Liability.

Civ. A. Nos. Y-77-646, Y-77-1706 and Y-77-1623.

United States District Court, D. Maryland.

September 10, 1979.

Manfred W. Leckszas, Kieron F. Quinn, William R. Dorsey, III, and James W. Bartlett, III, Baltimore, Md., for intervening plaintiff in Civ. A. No. Y-77-646.

Phillips L. Goldsborough, III, and Jon H. Grube, Baltimore, Md., for Wiley Manufacturing Co.

Joseph M. Mangino, and George F. Chandler, III, New York City, for M. J. Rudolph Stevedoring Corp. and Crane Barge R-14.

Donald A. Krach, Baltimore, Md., for Farrell Lines, Inc.

Edward C. Mackie, and Joseph F. Lavin, Baltimore, Md., for General Electric Co.

Louis G. Close, Jr., Baltimore, Md., and Joseph M. Mangino, New York City, for plaintiffs in Civ. A. No. Y-77-1706.

William R. Dorsey, III, and James W. Bartlett, III, Baltimore, Md., for claimant Chesapeake Operating Company.

Manfred W. Leckszas, and Kieron F. Quinn, Baltimore, Md., for Morrison-Knudsen Co., Inc.

John H. Skeen, Jr., and David W. Skeen, Baltimore, Md., for Baker-Whiteley Towing Co.

John G. Prendergast, Jr., and Jon H. Grube, Baltimore, Md., for Wiley Manufacturing.

Roger L. Smith, Baltimore, Md., for John Giordano.

John H. Skeen, Jr., and David W. Skeen, Baltimore, Md., for plaintiffs in Civ. A. No. Y-77-1623.

Louis G. Close, Jr., Baltimore, Md., and Joseph M. Mangino, New York City, for claimant M. J. Rudolph Corp.

Manfred W. Leckszas, Baltimore, Md., for Morrison-Knudsen Co., Inc., et al.

JOSEPH H. YOUNG, District Judge.

On April 14, 1977, a crane barge partially capsized while lifting an electrical transformer in the Port of Baltimore. In an effort to right the barge and prevent its loss, the crane operator caused one of the transformers to be dropped into the harbor, and two other transformers on the deck of the barge slipped into the water when barge commenced a listing movement.

As a result of this accident, the owners of the transformers, Fischbach and Moore International Corporation and Morrison-Knudsen International Co., Inc., brought suit against various parties involved in some way in this mishap. The owners accordingly brought action in rem against Crane Barge R-14, and in personam against the owners and manufacturer of the barge, respectively M. J. Rudolph Corporation and Wiley Manufacturing Company. Chesapeake Operating Company, the owner of the pier which was damaged in the accident, intervened as a plaintiff, bringing suit against Crane Barge R-14, Rudolph, and Wiley. Rudolph filed third party claims against the S.S. Austral Pilot, the ship onto which the transformers were to be loaded; the Tug Holland, which was towing the barge crane at the time of the accident; Farrell Lines, Inc., the owner of the Austral Pilot; Baker-Whiteley, the owner of the Tug Holland; and the General Electric Company, manufacturer of the transformers. Each of the parties filed various counterclaims and cross-claims against the other. Out of this tangle of action, counter actions, and cross-actions, the parties have managed to settle all outstanding claims,¹ with the exception of the claims for contribution by Rudolph and Wiley against General Electric.

This matter proceeded to a court trial on July 18, 1979, on the sole issue of General Electric's liability. After hearing testimony and inspecting the crane barge, the Court will find for General Electric on the question of its liability to Wiley and Rudolph for contribution as a concurrent wrongdoer. All findings of fact and conclusions of law are made in accordance with Rule 52(a), F.R.Civ.P., whether or not specifically so stated.

I. THE FACTS

A. The General Electric Transformers

General Electric manufactured the three transformers involved in this action for Fischbach and Moore International and Morrison-Knudsen which had formed a joint venture trading as Constructeurs Inga-Shaba (CIS). CIS was involved in constructing a power line in the Republic of Zaire. The transformers were shipped by General Electric from its Pittsfield, Massachusetts plant to the Locust Point Marine Terminal in Baltimore. On the side of each transformer was stencilled a weight figure of "208,000 lbs." This figure was the calculated engineering weight, which was computed from the known weight of the materials which went into fabrication of the transformer. General Electric never physically weighed any of the three units in question.

General Electric listed the figure as the weight of the transformers designated M 100284, M 100285, M 100291, on all invoices, packing lists, and shipping documents. The transformers were shipped by rail from Pittsfield, arriving in Baltimore separately sometime between June and November, 1975. Upon arrival at the Baltimore & Ohio Yard, Locust Point Marine Terminal rail express, each transformer was transported to Pier 8.

On July 11, 1976, nine months before the accident, another of General Electric's transformers listed at a weight of 80 tons was lifted by the barge crane Cape Fear, which was fitted with a device enabling it to weigh the lifted cargo. The device indicated the actual weight of this transformer as 110 tons. On July 23, 1976, a transformer of the type involved in this action, stencilled at 104 tons, was determined to weigh between 119 to 122 tons.

Prior to the second weighing by the Cape Fear, the Chesapeake Operating Company notified Morrison-Knudsen of a possible discrepancy between the actual and stencilled weights of the General Electric transformers. As a result of this notification, a representative of Morrison-Knudsen contacted James Seahill, of the International Sales Division of General Electric, who explained how the stencilled figure had been computed. Seahill further indicated that while the units could be overweight by as much as five percent, General Electric had confidence in the figures and would stand on them.

As a result of various inquiries concerning the weight of the transformers, General Electric rechecked the stencilled figures, reviewed the calculations for the weight of the similar transformers, and arranged to have one of its converter transformers² weighed by the Penn Central Transportation Company. On August 27, 1976, transformer M 100301 was placed on a railcar which was weighed empty and full in Pittsfield, Massachusetts. The difference between the two weighings, representing the actual weight of the transformer, was 213,400 pounds, or less than 107 tons.

B. Crane Barge R-14

With Rudolph's assistance, Wiley completed conversion of a 60 ton floating crane, acquired from the Navy, to a R-14 crane barge. As designed and manufactured, the R-14 had a maximum non-revolving lift of 130 tons over the stern of the barge and up to 115 tons full revolving at maximum outreach of 40 feet. At an outreach of 45 feet, the R-14 had a lifting capacity of 104 tons.

The R-14 was not outfitted with any weight-indicating device, as was the Cape Fear. However, the crane operator could safely lift loads without endangering the stability of the barge in the water by relying on an outreach indicator which was used in conjunction with a chart in the crane cab which listed the crane's lifting capacity at various levels of outreach. Such a procedure required accurate information on the weight of the load to be lifted.

C. The Accident

On April 13, 1977, Rudolph was engaged to load five General Electric transformers abroad the S.S. Austral Pilot. Among these five transformers was the unit which had been weighed by General Electric the previous August. This loading operation involved carrying the transformers from their storage point at Pier 8 to Pier 3, where the Austral Pilot was docked.

Transfer of the five transformers from Pier 8 to Pier 3 occurred without incident on the morning of April 14, 1977. During this operation, the transformers had been transported in two trips of the crane barge from Pier 8 to Pier 3, in which three and two transformers respectively were carried on each trip. On each transfer, two transformers were carried on the deck of the barge, and when the need arose to carry a third unit, it was carried suspended by the crane, directly over the two units on the barge deck.

Once the five units had been carried to Pier 8, procedures were undertaken to carry the units aboard the Austral Pilot. Crane operator John Giordano had already loaded two units on the deck of the crane barge when he was told by Chesapeake's gear man that "they" wanted three transformers carried on the first trip to the ship. Giordano instructed the tug to move the crane barge back to its loading position and proceeded to lift the third transformer. Giordano indicates that he was aware of the weight stencilled on the side of the transformers and relied upon this figure in lifting the unit. The transformer was lifted at an outreach of 40 to 45 feet. When Giordano was in the process of completing his swing of the crane boom and the suspended cargo into position, the barge listed radically causing Giordano to drop the suspended transformer into the harbor and the two units on the deck to slide into the water.

After the units were recovered two weeks later, several of the transformers were weighed. In separate weighings by various parties, the weights of transformer M 100284, the unit suspended on the crane's hook at the time of the casualty was determined to be:

(1) 113.2, 113.4, and 113.4 tons (by Richard Dudgeon, Inc., April 25, 1977);

(2) 109.6 tons (by B&O at Locust Point, July 9, 1977);

(3) 109.3 tons (by Con Rail at North Adams Junction, July 22, 1977); and

(4) 110 tons (by General Electric at its

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