McGhee v. United States
| Decision Date | 21 March 1947 |
| Citation | 75 F. Supp. 76 |
| Parties | McGHEE v. UNITED STATES. |
| Court | U.S. District Court — Southern District of New York |
Jacquin Frank, of New York City, for libelant.
Hunt, Hill & Betts, of New York City (Geo. Whitefield Betts, Jr., Helen F. Tuohy and S. R. Jackson, all of New York City, of counsel), for respondent.
The question to be answered on this retrial is, what caused the S. S. Thomas Hooker to be lost as a result of the cracking of her plates on March 5th, 1943.
This suit has been sent back for further findings, because the testimony of Hathaway, the master, and of Nesbit, called as an expert, both witnesses for the respondent, was "baffling and unsatisfactory and it seems to us that justice will be best secured by having them reexamined".
This court had originally found (1) that it had jurisdiction; (2) that the ship was not seaworthy, and defendant was negligent (a) in failing adequately to inspect, (b) because the ship was not adequately and properly ballasted, and (c) because the ballast placed therein was not properly located and distributed; (3) that because of that negligence, plaintiff became ill of tuberculosis and as a result was totally disabled. It was not expressly found that libellant was not guilty of contributory negligence, but he was awarded $20,000 as full damages.
The Circuit Court of Appeals, 2 Cir., 154 F.2d 101, 105, affirmed the findings as to jurisdiction, that libellant's exposure was the cause of his tuberculosis, the award, and the implied finding that libellant had not improperly neglected his safety. It wrote further, "We therefore count out the failure to inspect as actionable faults"; as to the failure to take on enough ballast upon the trip of February 11, "We agree, the judge might have found to be negligent * * * however skeptical we might be"; and as to improper distribution of ballast, the finding of which was based upon the testimony of Captain Hathaway, Its mandate directed a new trial upon two issues —
(1) Were the ship's plates strained on the trip of February 11 because she had insufficient ballast, and were those strains a necessary factor in her cracking on March 5th?
(2) Was the ballast improperly stowed on the trip of February 21, and was that improper stowage a necessary factor to her cracking on March 5th?
It is to be noted that the Circuit Court of Appeals did not decide that the ship was seaworthy or that there was no negligence, otherwise it would have dismissed.
The evidence upon the first and second trials proves these facts.
The Thomas Hooker was a "Liberty" ship, that is, a steel vessel with welded plates, launched July 1942, delivered to the War Shipping Administration in August, and arriving in England on her maiden voyage September 30th, when the master referred to was given his first command. On October 25th she left Glasgow, laden with cargo, bound for Oran among the vessels which aided in the African invasion. She returned, without cargo but with 800 tons of ballast, to Glasgow on December 5th. On December 24th she again left with cargo bound for Bone, Algeria, which she reached on January 5th, 1943. While there she was subjected to repeated enemy attacks and two bombs struck near her, one on the dock, from 25 to 50 feet away, and the other in the water, the evidence shows, from 15 to 100 feet away. She returned to Glasgow, again in ballast, where she arrived on February 1st. On February 11th, she took on 500 tons more of ballast, and left for a trip across the Atlantic.
This, together with the 800 tons which she already had, made 1300 which Hathaway thought enough for a voyage across the Atlantic. She then left to join a convoy but while off the north coast of Ireland, met very heavy weather. The ship was so light that she rolled and bobbed in the sea and she would go down and hit on the waves, her propeller would rise out of the water, the engines would race, and a severe vibration was caused, breaking the telemotor pipe, moving the steering apparatus on the deck three inches and completely disabling ability to steer the ship. It was shown that even in the Clyde, the water was very rough, and the captain stated that the steering trouble had developed even before he cleared the land; that the minute the ship got into the weather, the propeller went out of the water, causing terrific vibration; and that after the telemotor pipe broke, control of the ship was lost and it was at the mercy of the sea for some time — he says for 15 or 20 minutes while changing over to hand steering. However, repairs were made while in the rough sea and Hathaway, believing that he did not have enough ballast, put back to Glasgow for more. There further repairs were made, the fastening hangers on the steam line through the shaft alley were renewed or rewelded. The testimony amply justifies the finding that the reason the trip was abandoned was in order to get more ballast. While in Glasgow, several officers came on board and examined the damage but made no inspection of the ship's plates or any other part except the steering gear. Hathaway asked for 1500 tons more of ballast, but got 800, making 2100 in all, with which the ship again broke ground on February 21st, with her propeller "just submerged", and started for this country on what proved to be her last trip, taking the north Atlantic route.
It is proven without question that at the time of the year when this trip was made, the weather on the north Atlantic route is always rough. What was to be expected was variously described. Hathaway said that during February and March, the weather in the north Atlantic is well known and is a prevailing northwest gale, and that he expected running into storms and that is why he asked for more ballast. Archer, one of the libellant's witnesses, said that the weather is invariably bad. Devlin, another of respondent's witnesses, testified that he would not be in favor of lightening the ship forward "in the face of winter gales in February", and Geriat, another of respondent's witnesses, stated that the prevailing wind is northwest and you might get all types of seas; and that one of his ships cracked up because of the sea it rose on but that you find those things almost continuously.
The weather proved out as expected; the wind was a west northwest gale, about 7 on the Beaufort scale; the sea rough and the temperatures low. Hathaway said that on March 5th the weather had moderated a bit and that the mate told him that some large sea came along that seemed to raise the ship and drop right down quick at the instant when the crack up happened. Apparently no one else saw this and the mate was not produced as a witness. In any event, at about 5:15 that afternoon, a loud explosion was heard, and upon investigation, the plates were found to be cracked. Hathaway prepared a sketch of the cracks, which was introduced in evidence as Exhibit O. They were not at the joints but through the body of the plates. One ran from the port bulwark down to the ship's side `tween deck. Another ran thwartship from the same point in the port bulwark to the forward end of No. 3 hatch, and from the after end of that hatch to the starboard bulwark. Another, aft of the last, ran thwartship from the store room along the deck to the starboard bulwark, and a fourth ran from the point at the bulwark about 15 feet aft of the end of the last mentioned crack, down the starboard side to the `tween deck. The cracks in the sides opened and closed with the ship's pitching and rolling and took in water in quantity.
Plans for ballasting were made by the War Shipping Administration, whose duty it was to furnish the ballast and arrange for its proper distribution, some time after the occurrence in question. These plans, both for summer and winter, were introduced in evidence by the respondent, and it will be interesting to note the comparison between them and the manner in which the Hooker was ballasted on the two trips of February 11th and February 21st.
It is to be noticed that the ballasting of the Hooker did not in many respects comply with the standards set out by the War Shipping Administration. This is relevant to my mind to the question of whether the ballast as distributed by Hathaway placed too much weight fore and aft, resulting in the "hogging" of the consequent cracking amidships — and "breaking of the girder", to which Hathaway had testified on the first trial. It is apparent that the Hooker on both trips had 228 more...
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