Hill v. American President Lines, Ltd.

• Decision Date: 23 May 1961
• Docket Number: No. 8095.,8095.
• Citation: 194 F. Supp. 885
• Parties: Andrew James HILL, Libellant, v. AMERICAN PRESIDENT LINES, LTD., Respondent and Impleading Libellant, v. UNITED STATES of America and Whitehall Terminal Corporation, Impleaded Respondents.
• Court: U.S. District Court — Eastern District of Virginia

194 F. Supp. 885

Andrew James HILL, Libellant, v. AMERICAN PRESIDENT LINES, LTD., Respondent and Impleading Libellant, v. UNITED STATES of America and Whitehall Terminal Corporation, Impleaded Respondents.

No. 8095.

United States District Court E. D. Virginia, Norfolk Division.

May 23, 1961.

L. David Lindauer, Portsmouth, Va., for libellant.

John W. Winston, Norfolk, Va., for American President Lines, Ltd.

Alan Raywid, Dept. of Justice, Washington, D. C., for the United States.

William B. Eley, Norfolk, Va., for Whitehall.

WALTER E. HOFFMAN, District Judge.

As a consequence of serious and permanent injuries sustained by the libellant, Andrew James Hill, a longshoreman employed by Whitehall Terminal Corporation, this action was instituted against American President Lines, Ltd., the owner and operator of the SS Lone Star Mariner, alleging negligence and unseaworthiness.

On November 5, 1958, libellant was a member of a stevedoring gang employed in loading a quantity of pipe in the No. 4 hatch under a space charter agreement between the vessel's owner and the United States. The Government agreed to furnish its own labor and load the cargo of pipe. In turn, the United States entered into a written contract with Whitehall Terminal Corporation, the expert stevedore, for the latter to supply the equipment and provide the necessary personnel to accomplish the loading of the quantity of twenty foot pipe. Upon the institution of the action against American President Lines, the shipowner, after calling upon the United States and Whitehall to take over the defense and assume the liability, if any, impleaded the space charterer and stevedore under Admiralty Rule 56, 28 U.S.C.A., alleging contracts of indemnity. If the libellant is entitled to recover from the shipowner, it is abundantly clear that the ultimate liability must rest upon the stevedore, Whitehall Terminal Corporation, the employer of libellant. The United States, pursuant to its indemnity agreement with the stevedore, filed a cross-claim against Whitehall seeking the recovery of attorney's fees, costs and expenses incurred in the defense of the action irrespective of the result, and alleging that, if liability is imposed upon the United States, the full amount of any judgment should be paid by Whitehall.

Libellant was in the lower hold assisting in placing the pipe into the No. 4 hatch. Between five to ten drafts of pipe had been loaded into the hatch without difficulty. While a draft of pipe was being lowered into the hatch, the pipes broke loose from the sling and tumbled into the lower hold, striking libellant who was in the offshore corner and away from the square of the hatch. There is no negligence attributable to libellant.

The pivotal question for determination is whether there was any unseaworthiness of the vessel and its equipment. While negligence of the officers of the ship is also alleged, it is plain that any recovery on this theory does not merit discussion. The shipowner, the space charterer, and stevedore each contends that the sole proximate cause of the accident was the negligence of one or more longshoremen employed by the stevedore, and that libellant's only recourse is under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., compensation benefits and medical payments having been previously paid by Whitehall's compensation insurance carrier in the total sum of $5,070.85.

The pipes, some of which were in bundles and others loose, were removed from the dock with the assistance of the Burton¹ winch, brought over the side of the vessel, and then, aided by the up-and-down winch guided to the square of the hatch, where the up-and-down winch took over the primary duties and the Burton operator guided the draft to keep it from striking the sides of the hatch. The draft in question consisted of approximately fifty separate sections of pipe, weighing in the aggregate from three to three and one-half tons. Two longshoremen, Jones and Epes, operated the winches, with Jones stationed at the up-and-down boom and Epes operating the Burton winch. Epes died on some date prior to the trial.

Libellant's main contention is that two twenty foot running hook wires were used by the slingers, whereas, according to libellant, two thirty foot wires were required to make the load safe. These wires ran from a hook at the end of the boom rigging, and were then separately placed at a point approximately three feet from the ends of the draft of pipe. The length of these running hook wires only permitted one wrap around the pipe. With the use of thirty foot wires it would have been possible to make two complete wraps around the pipe, thus making the load more secure. It is also suggested by libellant's expert that a "spreader" could be placed between the two twenty foot wires, the effect of which would remove the strain from that portion of the wire around the pipe and prevent any slippage.

Disposing of the theory that a "spreader" could be used effectively, it is sufficient to state that this method is never used in loading pipe aboard a vessel. Indeed, libellant's expert, a thoroughly qualified naval architect with some experience in shoreside rigging, concedes that he has never seen the "spreader" used in this manner. Moreover, while the pipe could undoubtedly be lowered into the hold more safely by the use of the "spreader", there would be considerable danger when the pipes were directed to their final resting place in the hold of the vessel away from the square of the hatch. To brand loading equipment as unseaworthy merely because an expert conceives an idea which is untried and untested would impose liability upon the shipowner extending far beyond the rule of absolute nondelegable duty to furnish reasonably safe equipment and appliances.

It is conceded that the stevedore rigged the gear, placed the wires around each bundle of pipe, operated the winches, and, in short, had complete control over all loading operations. There is no evidence that the winches or booms were defective. Libellant contends that the running hook wires used by the slingers in securing the draft were unsafe and unseaworthy in that they were too short for the intended purposes, and under the doctrine established in Alaska S. S. Co., Inc. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798, and Rogers v. United States Lines, 347 U.S. 984, 74 S.Ct. 849, 98 L.Ed. 1120, the shipowner is liable for unseaworthiness even though the equipment was selected, owned and controlled by the stevedore.

The surviving winch operator, Jones, described the draft as being tilted "approximately five or six inches" as she came over the square of the hatch. When the draft was between the coaming and the 'tween deck, Jones observed the forward wire start to slide toward the center of the load, thus causing the pipes to slide. He denies that the draft struck the side of the hatch or otherwise hit the 'tween deck before the wire started to slip. The same type of rigging had been used on prior loads that morning without any difficulty. He saw the gang boss, Taylor, turn the load crosswise the hatch and initially guide it as the load entered the hatch. No longshoreman was stationed in the lower 'tween deck to straighten the load. Jones testified that the up-and-down winch maintains the same speed during the lowering operation, but the Burton operator is sometimes required to vary his speed in order to properly guide the draft and keep it from striking the side of the hatch. If the Burton operator turned the draft loose, it would cause the same to swing. According to Jones, it was the side nearest the other winch operator, Epes, which initially tilted downward. Jones is the only witness who referred to any perceptible tilt of the load as it came over the side of the vessel and into the square of the hatch.

The physical facts and overwhelming weight of the evidence point to some contact of the pipes with the coaming and deck of the upper 'tween deck. Tags from the pipes were found on the port or inboard side of this deck; fresh scratch marks were noted on the coaming; and several fresh marks were "dug" into the deck about three feet from the hatch. Whether these marks were caused by the load striking the upper 'tween deck prior to coming loose from the slings is problematical.

There is some intimation that the pipes were covered with a substance which was slippery. Undoubtedly they were covered with a preventative to avoid rust, but the credible evidence does not reflect that there was any wet, damp, or slippery substance on the pipes; and as the slinger, Battle, described the pipe, it had a "waxy coating", but was not wet or greasy.

Libellant's expert referred to the single wrap sling as a "highly unsafe" practice employed in loading pipe, but he likewise noted that a tilt of the load to the extent of five or six inches would be of little or no consequence and would not ordinarily cause a wire to slip or the pipes to fall. The expert related that he had seen pipe fall from a sling on prior occasions where twenty foot wire was used and, while he had never observed a "spreader" used, that the double wrap had been employed with thirty foot wire around the pipes. The longshoremen, while admitting that the twenty foot wire was commonly used on the East Coast in loading pipe approximately twenty feet in length, suggested that this was not a "safe" form of rigging;...