Ivusich v. Cunard White Star

• Decision Date: 10 May 1945
• Citation: 65 F. Supp. 412
• Parties: IVUSICH v. CUNARD WHITE STAR, LIMITED.
• Court: U.S. District Court — Southern District of New York

65 F. Supp. 412

IVUSICH v. CUNARD WHITE STAR, LIMITED.

District Court, S. D. New York.

May 10, 1945.

Jacob Rassner, of New York City, for plaintiff.

Reid, Cunningham & Freehill, of New York City (Frederick H. Cunningham, of New York City, of counsel), for defendant.

BRIGHT, District Judge.

The only negligence upon which libellant can base his claim to a recovery is that respondent furnished for use by his fellow winchman, a steam winch which worked stiffly, if that is negligence. He was a member of a group of stevedores, all employees of the Jarka Corporation, to which had been delegated by the respondent the duty of loading cargo on the Steam Ship Empire Spray, owned and operated by the respondent.

In doing the work, these men were furnished by the respondent with two winches situated aft of No. 4 hold, into which the cargo was being loaded. That cargo consisted of cylindrical pieces of steel, 8 to 10 feet in length, and 4 to 6 inches in diameter. The cargo was hoisted from a lighter over the ship's side into the hold. Both winches were used in the operation. One of them was called the up and down winch, and was operated by plaintiff's fellow employee Amato; the other, called the burton switch, was operated by McCarthy, another fellow employee and since deceased. This gang of longshoremen, not including libellant, who did not come to work until 1 o'clock, had started work in the hold in question at 8 o'clock in the morning of September 9, 1941, the date of the accident. Their first job was to take off the hatch covers and clean out the dirt and rubbish in that hold, and that was completed in about two hours. From then on from three to three and one-half hours they had stowed between twenty and twenty-five drafts of the steel which had been placed on the floor of the hatch, forming what they called a table. In this work both winches were used jointly and simultaneously. No difficulty had been experienced in their use prior to the accident, except that sufficient steam had not been furnished by the respondent earlier in the day, but that had been remedied, and except that the lever on the up and down winch worked stiffly. So far as appears, however, that stiffness had not interfered in any way with the conduct of the work, or caused any trouble.

The draft of steel which caused the injury to libellant had been lowered into the hold just prior to the accident, and rested upon the table of steel already placed. The other longshoremen in the hold, under the direction of their boss, were to place dunnage or planks over the table, and by means of rollers were to move the draft into place in the wing of the ship. After this dunnage had been placed, the foreman ordered libellant and three other of his fellow workmen to station themselves two on each side and end of the draft to control the movement of the draft when suspended.

Through the center of the ship ran what has been called the tunnel, which covered the shaft operating the propeller. The tunnel was about 4 feet high and libellant was directed to take his customary position between the draft and the tunnel, which he did. The draft was raised by the winchman about 1½ feet or 2 feet, above the table of steel, the signal for that being first given by the boss, who was with the men in the hold, to the gangwaymen standing on the deck about 35 feet above and looking down into the hold, and was communicated by him by hand to the winchmen who were supposed to operate the winches together in unison. When so suspended, there was a space of 3 to 4 feet between the draft and the tunnel and libellant stood in one end of that space.

The order was then given by the boss in the hold to lower the draft upon the rollers placed by libellant and his fellow workers. The burton winch responded, and the up and down winch failed to do so. Thus the control of the draft by the burton winch was lost. The entire weight of it was shifted to the wire from the up and down winch, causing the draft to swing rapidly over, pinning the libellant against the tunnel before he could get out of the way, and causing him severe and permanent injuries to both legs.

The only one who actually knew what happened at the winch was Amato, the up and down winchman. Absent any defect in the winch, he was the one solely responsible for libellant's injury if he did not respond promptly and carefully to the signal of the gangwayman to lower the draft, and for his negligence alone there could be no recovery. He had been an experienced winchman for many years. He had also operated that winch that day from 8 o'clock in the morning until 2:30 or 3 o'clock in the afternoon, when the accident happened. No trouble had resulted when the 20 or 25 other drafts of...