Dampskibsaktieselskabet v. Bellingham Stevedor. Co.

• Decision Date: 12 June 1972
• Docket Number: No. 25551,25552.,25551
• Citation: 457 F.2d 889
• Parties: DAMPSKIBSAKTIESELSKABET, etc., et al., Appellees, v. BELLINGHAM STEVEDORING COMPANY, Appellant, and Intalco Aluminum Corporation, et al., Appellees. AMERICAN METAL CLIMAX, INC., Appellees, v. BELLINGHAM STEVEDORING COMPANY, Appellant, and Intalco Aluminum Corporation, et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

457 F.2d 889 (1972)

DAMPSKIBSAKTIESELSKABET, etc., et al., Appellees, v. BELLINGHAM STEVEDORING COMPANY, Appellant, and Intalco Aluminum Corporation, et al., Appellees.

AMERICAN METAL CLIMAX, INC., Appellees, v. BELLINGHAM STEVEDORING COMPANY, Appellant, and Intalco Aluminum Corporation, et al., Appellees.

Nos. 25551, 25552.

United States Court of Appeals, Ninth Circuit.

March 24, 1972.

Rehearing Denied June 12, 1972.

Jacob A. Mikkelborg (argued), of Long, Mikkelborg, Wells & Fryer, Earle W. Zinn, of Lycette, Diamond & Sylvester, Seattle, Wash., for appellant.

Thomas J. McKey, Jr. (argued), of Bogel, Gates, Dobrin, Wakefield & Long, Martin P. Detels, Jr. (argued), of Detels, Draper & Marinkovich, John G. Bergmann (argued), of Elvidge, Veblen, Tewell, Bergmann & Taylor, Seattle, Wash., for appellees.

Before DUNIWAY, HUFSTEDLER and CHOY, Circuit Judges.

CHOY, Circuit Judge:

Bellingham Stevedoring Company appeals from a judgment of the district court, 306 F.Supp. 170, holding the appellant liable for damage caused by the negligence of an employee who was the operator of a crane unloading cargo off a ship. We affirm.

The ship, Troja, is owned by the partnership Wilh. Wilhelmsen which is composed of Dampskibsaktieselskabet Den Norske Afrika Og Australieline and other interests (Wilhelmsen). The Troja was chartered to both a time-charterer and a voyage-charterer. At the time of this accident, the time-charterer was A/S Kristian Jebsens Rederi (Jebsens). The voyage-charterer was Aluminum Metal Climax, Inc. (A.M.C.) whose plant was the destination of the bulk alumina cargo being unloaded at the time of the accident.

The crane involved in the accident was being leased, along with other dock facilities, by the Intalco Aluminum Corporation (Intalco). The machine had been manufactured and installed by McDowell-Wellman & Co. (McDowell). Pursuant to a stevedoring contract with Intalco, Bellingham Stevedoring Company (Bellingham) provided longshoremen crews, including a crane operator, to unload the Troja.

On December 1, 1966, crane operator Guy Williams was working the Troja on a shift which was scheduled to end at 6:00 p. m. High winds had been blowing all day causing the men to stop operations on at least one occasion in mid-afternoon.

Due to the high winds, Williams decided to shut down the crane before the end of the shift. His decision was also based on the fact that a repair crew was fixing the bucket lift, used to unload the bulk alumina. The longshoremen could not resume work until the bucket was ready.

At approximately 4:50 p. m., Williams brought the crane to a vertical position and set it into its cradle alongside the king-post. Normally, the boom would have been left in a horizontal position so that the next shift crew could begin work right away. This usual procedure was dangerous, however, because the winds would be likely to swing the boom uncontrollably. Soon after Williams left the winch control tower, the boom fell on the Troja, damaging both the ship and the boom.

Wilhelmsen and Jebsens sued Bellingham and Intalco; Intalco impleaded McDowell as a third party defendant. A.M.C. brought a separate suit against Bellingham and the latter impleaded Intalco. Each defendant claimed indemnity from the other defendants for whatever damages might be imposed.

After a consolidated trial (jury-waived), the district judge found that the sole cause of the accident was the negligence of Bellingham's crane operator, Guy Williams. On appeal, Bellingham challenges this factual finding. Bellingham also contends that the district judge erred in awarding damages to Jebsens and A.M.C. in subrogation for payments made to Wilhelmsen to cover the costs of delay.

The finding that Williams' negligence was the sole cause of the accident is a factual determination presumed by this court to be correct, unless "clearly erroneous." Rule 52(a), Federal Rules of Civil Procedure. "We cannot overturn a finding unless, after considering the entire evidence, we are left with the definite and firm conviction that a mistake has been committed." Soderhamn Machine Mfg. Co. v. Martin Bros. Container & Timber Products Corp., 415 F.2d 1058, 1060 (9th Cir. 1969).

Bellingham's challenge to the findings consists of two main pillars. First, Williams testified that he distinctly remembered pushing the "Stop" button and engaging the manual brake. Bellingham contends that the judge erred in disregarding this direct evidence and favoring instead the "speculation" of expert witnesses.

The record indicates ample evidence to support the district judge's determination that Williams failed to do these two things. All parties agreed that the accident resulted from the winch drum moving in a "down" direction, unwinding and rewinding the cable until it snapped. Had the "Stop" button been pushed, there would have been certain physical consequences when the boom fell. For example, the drum would have been scarred and the brake would have been burned by the friction of the two pieces. Neither piece was so damaged. Also, the...