Globe S.S. Co. v. Moss

• Decision Date: 01 August 1917
• Docket Number: 2966.
• Citation: 245 F. 54
• Parties: GLOBE S.S. CO. v. MOSS.
• Court: U.S. Court of Appeals — Sixth Circuit

245 F. 54

GLOBE S.S. CO. v. MOSS.

No. 2966.

United States Court of Appeals, Sixth Circuit.

August 1, 1917

Thos H. Garry, of Cleveland, Ohio, and Sherwin A. Hill, of Detroit, Mich., for appellant.

Frederick L. Leckie, of Cleveland, Ohio, for appellee.

Before KNAPPEN, MACK, and DENISON, Circuit Judges.

KNAPPEN Circuit Judge.

The appellee, while in the performance of his duties as assistant engineer of the ship Frank C. Ball, owned by appellant, and while on a voyage from Lorain, Ohio, to Duluth, Minn., was seriously injured in an attempt to start a defective feed pump used for supplying water to the boilers. To recover the damages suffered appellee filed libel in admiralty against the ship; the appellant giving bond to answer the decree. Upon hearing in open court, decree passed for libelant, from which this appeal is taken.

The ground on which the right to recovery is rested is that the pump was so defective as to render the ship unseaworthy as respects appellee, and to amount to a negligent failure of duty to supply and keep in order the proper appliances appurtenant to the ship-- a duty analogous to the ordinary duty of a master to furnish his servant a safe place to work and safe appliances to work with.

The case is governed by the admiralty law. Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 Sup.Ct. 524, 61 L.Ed 1086; Tropical Fruit S.S. Co. v. Towle (C.C.A. 5) 222 F. 867, 868, 138 C.C.A. 293. The rule in admiralty is well settled that a ship owner owes to his seamen a positive and nondelegable duty to see that the ship is seaworthy and her equipment in safe condition for use when she starts on a voyage, and that a seaman injured through failure to perform this duty is entitled to compensation. The Osceola, 189 U.S 158, 175, 23 Sup.Ct. 483, 47 L.Ed. 760; Thompson Towing etc., Ass'n v. McGregor (C.C.A. 6) 207 F. 209, 211, 124 C.C.A. 479, and cases cited.

The feed pump, as fastened to the floor of the engine room, was about 20 feet long; it was duplex in that it had two sides which, when not in use, were independent of each other; it was compound in that each side had both a high-pressure and a low-pressure cylinder, the steam first passing through the high-pressure cylinder and then into the low-pressure; the pistons of the high and low pressure being connected to a common piston rod, which in turn connected with a crosshead on which was bolted a plunger operating in one end of the water cylinder; another crosshead (suitably connected with the first) held another plunger. In operation the plungers alternately extended forward out of the water chambers. The feed pump was started when the boat left Lorain, which was about noon; it did not work well, and finally stopped, leaving one plunger within the chamber, the other extending out the full length of the stroke, which was about 12 inches. To start the pump appellee took an iron pinchbar, 6 or 7 feet long and weighing about 25 pounds, fulcrumed its lower end against the angle iron edge of the oil pan, which was fastened to the floor and pushed against the crosshead; the plunger was thus finally forced into the cylinder, but immediately flew back, causing the pinchbar to strike appellant upon the forehead, knocking him backward and causing his head to strike a metal pipe.

The refusal of the pump to start when the steam valves were opened, and the sticking of the plungers, were not a new experience; it had frequently occurred for two years before the accident. The chief engineer, who was a witness for appellant, testified that it usually happened three times out of ten when the ship left port. On such occasions the pump was started either by using a pinchbar in the way used by appellee as before described, or by the use of a chain fall-- a chain in the nature of block and tackle-- to pull out the plunger which was within the cylinder, or by a blow from a heavy iron sledge with all the force a man could muster against the nut on the end of one of the guide rods, a usage which had considerably battered up the nut. The chief engineer had taken part in all three of these methods of starting the pump. Sometimes after being so started it would stop and require restarting by the same process two or more times. There was testimony of credible witnesses that trouble in starting this kind of a pump was not unusual; but we agree with Judge Tuttle that:

'A fair interpretation of their testimony is that the troubles to which they refer are not of the kind shown to have occurred with this pump. Nearly all of them speak of pumps that require a little force to start them. This pump frequently stuck in a way that required a great deal of force to start it. It seems plain from this record that this was a poor pump, did not work well, and never was in proper working order at any time during the period covered by the testimony in this case; that is, two years preceding the accident.'

None of the witnesses seem to have ever known a pump which gave so much trouble as this; to some of the witnesses for appellant the use of chaim fall and sledge seems to have been unheard of, and by one or more, at least impliedly, condemned. The most prominent of the suggested causes for such sticking of the plunger were air in the suction pipe, dryness of the cylinders, too tight packing, and leaking valves. We think it a fair deduction from the testimony that the experience had with this pump was such that the difficulty could be satisfactorily accounted for by neither nor all of these causes.

We are satisfied that there was something vitally and radically wrong with the pump at the time the ship left Lorain on the voyage in question. We think this indicated by the experience up to that time, and corroborated by what developed later.

Following the accident no attempt was made to operate the feed pump, nor does it seem to have been examined until the ship arrived (about midnight) at Detroit, where it picked up the chief engineer, and, after putting off appellee at the dock and sending him in an ambulance to the Marine Hospital, the ship was anchored in the river. The chief engineer then opened up the cylinders and found the piston in the high-pressure cylinder broken in two or three pieces. If this piston was broken, or even seriously cracked, before the boat left Lorain the ship was unseaworthy. One of defendant's witnesses presents the theory that the piston was broken after leaving Lorain, but before the accident; others, that the flying back of the plunger when appellee was hit caused the break. It is possible that the break occurred in either of the two ways suggested, but the question must be considered in the light of the evident fact that appellant has not given the court all the aid possible to be furnished. The piston was not presented in court, and seems not to have been preserved. Its production might well disclose valuable evidence on the question of its condition prior to the accident, including the evidence or lack of evidence of old cracks or breaks. The fact neither of the accident nor of the docking at Detroit was entered upon the permanent log, although it is said such record is required, and although the captain is confident he entered the facts upon the scratch log (which was lost or thrown away), and although the fact of the accident was so well in mind during the voyage that the ship was met at Duluth by its representative, who took the written statements of its seamen regarding the accident. This suppression of the record was a foolish and vain thing; but we can see no other reason for it than that suggested by the District Judge, viz.:

'So that if the owner or boat got in a lawsuit any kind of a theory could be advanced, when there was plenty of time for interested parties to think the matter over.'

While as already said, it is possible that the piston was broken by its flying back as stated, at the time of the accident, it would seem more probable that it was broken...