Mascuilli v. United States
| Decision Date | 04 May 1965 |
| Docket Number | No. 203 of 1959.,203 of 1959. |
| Parties | Helen MASCUILLI, Administratrix of the Estate of Albert Mascuilli, Deceased v. UNITED STATES of America, |
| Court | U.S. District Court — Eastern District of Pennsylvania |
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Milton M. Borowsky and Freedman, Borowsky & Lorry, Philadelphia, Pa., for libellant.
Drew J. T. O'Keefe, U. S. Atty., and Sidney Salkin, Asst. U. S. Atty., Philadelphia, Pa., Alan Raywid and Daniel Leach, Admiralty & Shipping Section, Dept. of Justice, Washington, D. C., for respondent.
This case is before the Court on a remand from the Third Circuit Court of Appeals where it was determined that a District Court judge erred, in a wrongful death action in Admiralty which alleged unseaworthiness and negligence, by entering a Pre-Trial Order, 188 F.Supp. 754, that resolved the issue of liability in favor of the libellant and directed that the trial of the cause be restricted exclusively to the issue of damages. Accordingly, the case was heard by another District Court judge who after trial entered a judgment in favor of the libellant and against the respondent in the amount of $124,000.00. However, on appeal the Appellate Court held (313 F.2d 764, 768 (1963)):
"For the reasons stated the Decree filed April 11, 1961 entering judgment in favor of the libellant in the amount of $124,000 against the United States will be vacated and the Pre-Trial Order filed December 5, 1960 will be reversed with directions to proceed in accordance with this Opinion."
From the above directive this Court concluded that the cause should be tried as to the issue of liability and to the issue of damages since both the judgment was vacated and the Pre-Trial Order was reversed.
2. The said vessel had been built at Sun Shipyard in Chester, Pennsylvania, in August 1945 and was converted into a heavy lift cargo vessel in April 1954, with changes in her structure, mast, booms and other equipment at No. 3 and No. 4 hatches, in order to handle extremely heavy cargo weighing up to 150 tons. These changes rendered the U.S.N.S. "Marine Fiddler" one of a few vessels afloat with such heavy cargo handling capabilities that resulted in its entire loading system and equipment being unique and more complicated than the normal cargo vessel.
3. On May 1, 1959 the said vessel was moored port side to at one of the docks of the Northern Metals Company upon the navigable waters of the Delaware River in the Port of Philadelphia to take on a cargo of heavy army tanks, designated as M103A1 tanks, each weighing in excess of 61¼ tons.
4. The Northern Metals Company, an independent expert stevedore contractor, was engaged by the Government to handle government cargoes in the Port of Philadelphia. The contract contained the customary provision requiring the independent expert stevedore contractor, Northern Metals Company, to fully handle the loading and stowing of cargo aboard the said vessel.
5. All of the cargo handling gear and equipment at the No. 3 hatch was furnished by the respondent and had been rigged by members of the crew of the vessel prior to the commencement of cargo operations on May 1, 1959. The principal parts of this gear consisted of a 150-ton swinging jumbo boom, equipped with an 18-part topping lift purchase, and hoisting gear with a 14-part purchase between the upper and lower block, the latter being affixed to a cargo pendant consisting of a swivel above and below a flounder, into which was shackled by means of a vang spreader, or a fish plate, a single guy or vang secured to a vang post at the after port corner of the hatch, and on the starboard side a vang spreader was shackled to the flounder to which two vangs were connected, one secured at the opposite end to a vang post at the forward starboard corner of the hatch, and the other to a vang post at the after starboard corner.
6. The jumbo boom was raised and lowered in a vertical plane by means of a topping lift and was swung inshore and offshore by the vanks attached to the flounder of the cargo pendant. Each of the vangs had a 10-part purchase and each set of lines and guys was operated by its own independent winch. The winches which activated the topping lift and hoisting gear were located on the deck. The controls for these winches were located upon the after starboard platform and were operated by a single winchman. However, the winches could not be operated simultaneously; that is, the boom could not be topped or lowered at the same time the hoisting gear was being raised or lowered, and vice versa. The winches for the vangs were located on deck. The controls for the port and starboard after vangs were upon an elevated platform on the after port end of the hatch and were regulated by a single operator; and the forward starboard vang control was on an elevated platform at the forward end of the hatch and was operated by another winchman.
7. The handling of the cargo and the operation and movement of the ship's heavy lift gear was performed entirely by Northern Metals employees and under the supervision of a Northern Metals foreman. The deck gang consisted of four winch operators, two tag line tenders, and the foreman who also acted as a signalman. Of the four winchmen, Charles Mascuilli operated the two after vang winches from a control position on a platform on the port side of the king post. A second winchman, Kranicki, operated the forward starboard vang winch from a control platform at the forward end of No. 3 hatch. A third winchman, Ringler, operated the hoisting and topping winches from a control platform on the starboard side of the king post. The fourth winchman, Maliszewski, operated a snaking winch at the after port corner of the hatch which was used to move or "snake" the cargo under the coaming in the hold. All of these men were experienced winch operators with years of winch operating and cargo handling experience.
8. When the longshoremen came aboard the vessel they were questioned as to their familiarity with the ship and its gear by the First Officer. The First Officer was informed by several of the longshoremen that they had operated this type of heavy lift gear, and the remaining longshoremen assured him that all of them were veteran longshoremen with many years of experience and quite able to handle these loading operations. However, several experienced crewmen instructed the longshoremen in the operation of the heavy lift gear and the individual duties of the different winchmen. All winch controls operated in the conventional manner, and instructions for operating the same were posted beside the winches.
9. The First Officer, Mr. Henry, stood by throughout the day's operation to insure proper handling of the gear and proper operation of the winches, and advised and cautioned the foreman-signalman Majdowski to be sure that the hoisting gear blocks were not pulled too close together, or the vang lines pulled too tight. After delivering these precautionary instructions, Mr. Henry testified that he was told on these occasions by Majdowski that his men were skilled and experienced longshoremen, and that the work would be done in the same manner. It must be noted that Majdowski was not called as a witness for the plaintiff to refute Mr. Henry's testimony.
10. To facilitate the loading of the M103A1 tanks, the 150-ton heavy lift boom at No. 3 hatch was rigged for port side loading; there were three vangs in use: two after vangs, port and starboard, located on each side of the boom and running to vang posts at the after end of the hatch, and an offshore vang at the forward starboard end of the hatch. These vangs are designed only to swing the boom and do not support the weight of the cargo. In swinging the boom outboard over the pier to pick up a tank, the after port vang is heaved in and the two offshore starboard vangs are slacked off. When the boom is at the desired horizontal angle over the pier, heaving is stopped on the port vang and the vang is slacked. The boom is then lowered by other winches, as stated before, that activate the topping lift and hoisting gear. While the tank is attached to the hook and raised, the forward starboard vang is used to check the swing of the boom as the vessel takes a slight port or inshore list as the 61¼ ton tank is raised on the hook. When the tank is raised clear of the side of the vessel by hoisting and topping the boom, the forward starboard vang then pulls the tank toward the hatch since it is in the best position to perform this job being at right angles to the load. The after starboard vang is of no use initially in pulling the boom since its angle to the heel of the boom is too acute and would exert an undue strain on the boom. The after port vang must be kept slack constantly by additional paying out of the winch while the boom and tank are swung over the hatch. Thereafter, the port vang will not be used again unless it is necessary to check the swing of the boom and tank as they are positioned over the hatch.
11. At approximately 5:00 P.M. Mr. Henry left the deck and was replaced by Third Officer Moore as deck officer to observe the loading operation. Until this time eight tanks were successfully loaded by the longshoremen, indicating that they were capable and competent to operate the gear in a proper manner. Six of the tanks were stowed in the lower hold and two in the 'tween-deck.
12. Five minutes after Mr. Moore was on deck, while Mr. Henry was eating supper, the accident occurred when suddenly, without warning, the port shackle holding the vang spreader to the flounder suddenly parted and the vang and connected parts recoiled and dropped to the after port deck, striking and inflicting fatal injuries upon the libellant's decedent, Albert Mascuilli. (See...
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