Littlehale v. EI du Pont de Nemours & Co., Civ. 129-13.

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Writing for the Court: Cravath, Swaine & Moore, New York City, H. R. Medina, Jr., New York City, of counsel, for defendant
• Citation: 268 F. Supp. 791
• Parties: Adelbert LITTLEHALE and Erwin Zelanko, Plaintiffs, v. E. I. du PONT de NEMOURS & CO., Defendant.
• Docket Number: No. Civ. 129-13.,Civ. 129-13.
• Decision Date: 11 May 1966

268 F. Supp. 791

Adelbert LITTLEHALE and Erwin Zelanko, Plaintiffs,
v.
E. I. du PONT de NEMOURS & CO., Defendant.

No. Civ. 129-13.

United States District Court S. D. New York.

May 11, 1966.

268 F. Supp. 792

COPYRIGHT MATERIAL OMITTED

268 F. Supp. 793

Gair & Gair, New York City, H. A. Gair, A. Passman, New York City, of counsel, for plaintiffs

Cravath, Swaine & Moore, New York City, H. R. Medina, Jr., New York City, of counsel, for defendant.

TENNEY, District Judge.

OPINION

This is an action for alleged failure of defendant E. I. du Pont de Nemours & Company (hereinafter referred to as "Du Pont"), to warn of certain inherent dangers in the use of detonators (blasting caps) manufactured by it at its Pompton Lakes, New Jersey, Plant in August 1944, pursuant to a contract with the Ordnance Department of the War Department and in accordance with detailed specifications supplied by the Ordnance Department.¹ On July 17, 1957 (some 13 years later) an explosion occurred on board the U. S. S. SOMERSWORTH (hereinafter referred to as "SOMERSWORTH") on the high seas, injuring plaintiffs Littlehale and Zelanko. At the time, the SOMERSWORTH was engaged in sound propagation tests being conducted by the United States Navy for its Underwater Sound Laboratories in New London, Connecticut.

The device, which exploded prematurely, consisted of three of these blasting caps, a fuse manufactured by the Ensign Bickford Company (not a defendant herein), and a TNT grenade, priming adapter and steel tubing or housing (each manufactured by an unknown company or person other than Du Pont).

Plaintiff Littlehale was a civilian employee of the Navy involved in said tests. Plaintiff Zelanko was a United States Navy seaman with a rating of apprentice fireman who was assigned to the SOMERSWORTH as a cook. He was an innocent bystander.

Based on the complaint herein, plaintiffs' and Du Pont's answers to interrogatories and exhibits attached thereto, the joint pre-trial memorandum and supplemental pre-trial memorandum, the pre-trial order, and the depositions of Messrs. Stratton, Batley, Jezek and Coar, and the exhibits introduced at such depositions, defendant Du Pont moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

In opposition thereto, there have been submitted affidavits of Robert Conason, Esq. (of counsel for plaintiffs), plaintiff Littlehale, and David Lee Von Ludwig, as an explosives expert.

The statements submitted herein, pursuant to Rule 9(g) of the General Rules of this Court, indicate that there are no genuine issues of fact to be tried except as to the sufficiency of the warning given, the training and experience of plaintiff Littlehale in the use of the blasting caps involved herein, and whether a leaflet "Don'ts for Blasting Caps" (Exhibit 1, annexed to Medina Affidavit of 2/10/65) was actually enclosed in the box of blasting caps furnished to Littlehale. Of course, if there was no duty on

268 F. Supp. 794

the part of Du Pont to warn plaintiffs, these issues are not relevant and do not form any obstacle to consideration of the motion for summary judgment.²

Du Pont bases its motion on the grounds that (a) Du Pont had no duty to provide any warnings and certainly not the kind plaintiffs claim; (b) even if such a duty existed it did not run to plaintiffs; (c) assuming Du Pont had a duty to warn, the warnings that it did provide met that duty;³ and (d) plaintiffs'

268 F. Supp. 795

action is barred by the applicable statute of limitations

Certain facts are not disputed in the supplemental pre-trial order or in the depositions of officials of Army Ordnance. Prior to and on July 17, 1957, plaintiff Littlehale was employed by the United States Navy as an electronics engineer, GS-7, stationed at the United States Underwater Sound Laboratories, Fort Trumbull, New London, Connecticut, and was a resident and citizen of that State. Plaintiff Zelanko (at the time of commencement of this action a resident and citizen of the State of New York) was, prior to and on July 17, 1957, in the United States Navy with a rating of apprentice fireman and assigned as a cook aboard the SOMERSWORTH. On July 17, 1957, Littlehale was aboard the SOMERSWORTH in connection with a study concerning sound propagation tests being conducted by the United States Navy. In the course of such tests an explosion occurred aboard the SOMERSWORTH, inflicting serious injuries on plaintiffs herein. At that time the SOMERSWORTH was on the high seas, some 135 miles off Montauk Point, Long Island, New York.

The device which exploded was one of many similar devices being used in the tests and consisted, as noted, of three Du Pont blasting caps, fuse manufactured by the Ensign Bickford Company, and a TNT grenade, priming adapter and steel tubing or housing, each manufactured by an unknown company or person.⁴ The blasting caps were manufactured by Du Pont on August 26, 1944, pursuant to contract number W-36-034-ORD-2115 with the United States of America (Ordnance Department of the War Department) and in accordance with the United States Government specifications set forth therein.

It is not disputed and I find that Du Pont fully complied with the specifications set by Ordnance, that the specifications required or contemplated no warning other than that required by the Interstate Commerce Commission regulations⁵ (which were fully complied with) —the blasting caps being consigned to Ordnance which was expert in the use, handling and storage of explosives, including blasting caps. Ordnance was not at all interested in or desirous of receiving warnings from Du Pont because Ordnance and the Army, as part of their routine professional responsibility, thoroughly trained their personnel in the dangers and use of blasting caps, issued their own warnings of the caps' inherent dangers and regarded warnings by the manufacturer as superfluous. The whereabouts of the blasting caps after their sale to Ordnance by Du Pont until approximately 13 years later is unknown.

Plaintiffs have expressly abandoned any claim (a) that the blasting caps were manufactured without due care, without proper and adequate materials and not in accordance with proper design; (b) that the explosion in question was due to a defective blasting cap manufactured by

268 F. Supp. 796

Du Pont; and (c) that the cap was defective by reason of (i) the negligence of Du Pont in its manufacture and assembly; (ii) Du Pont's failure to use materials and devices which would prevent premature explosion so that the cap was latently defective; (iii) Du Pont's negligence in failing to make proper, sufficient and adequate inspection of the cap before distribution to users thereof; and/or (iv) other carelessness and negligence of Du Pont in the premises. It seems clear from the foregoing that the sole basis of plaintiffs' claim is the failure on the part of the manufacturer, Du Pont, to warn plaintiffs adequately of the inherent dangers to users of the blasting caps. These "inherent dangers" have been defined by plaintiffs as being

(a) that the ultimate user of said detonators (blasting caps) might well place said explosive detonators (blasting caps) where they might be exposed to excessive heat, impact, flame and sparks;

(b) that the fuse used with said explosives might be lit before sufficient stemming had been placed over the explosive to prevent sparks from coming into contact with the explosives or the caps;

(c) the dangers to the users of its detonators (blasting caps) which might result from stresses applied directly on the caps and fuse; and

(d) the dangers to the users of its detonators (blasting caps) from the results of minute damage to the covering of the fuse or caps. In short, plaintiffs allege that Du Pont was negligent in failing to provide warnings that the blasting cap would explode if exposed to heat, impact, flame, sparks, stresses or damage or if sparks from a fuse came in contact with it. It is not disputed that certain warnings were printed on the boxes containing the blasting caps.⁶ There is a dispute as to whether or not a particular and more detailed pamphlet was also contained in alternate boxes of 100 caps. However, the issue as to the sufficiency or existence of any warning is only relevant if a duty to warn plaintiffs existed on the part of Du Pont. Fully aware of the seriousness of the injuries claimed herein, I must hold that there was no such duty.

Federal jurisdiction is based on diversity of citizenship. At the time of the commencement of this action, plaintiff Littlehale was a citizen and resident of Connecticut, plaintiff Zelanko was a citizen and resident of New York, and defendant Du Pont was a corporation organized and existing under and by virtue of the laws of Delaware. Insofar as applicable substantive law is concerned, it might be observed that the contract for the manufacture of the blasting caps was prepared in Pennsylvania (although the place of execution is unknown); payment was to be made in Pennsylvania; the caps were manufactured in New Jersey and delivered f. o. b. there; the accident occurred on the high seas; and the forum is New York.

Were it not for the fact that a maritime tort is involved herein, the Court might well be bound to apply the substantive law of New York, the forum state.⁷ However, the accident involved herein occurred on the high seas.

"Every species of tort, however occurring and whether on board a vessel or not, upon the high seas or navigable waters, the Supreme Court has said, is of admiralty cognizance. * * *'" 1 Benedict, Admiralty § 127 at 350, n. 1 (Knauth ed. 1940).⁸ Accordingly, plaintiffs'

268 F. Supp. 797

claims are governed not by New York law, but by the general maritime law. Igneri v. Cie. de Transports Oceaniques, 323 F.2d 257, 259 (2d Cir. 1963), cert. denied, 376 U.S. 949, 84 S. Ct. 965, 11 L.Ed.2d 969 (1964); Kermarec v. Compagnia Generale Transatlantique, 358 U.S. 625, 628, 79 S.Ct....