Metzger v. SS Kirsten Torm

• Decision Date: 24 September 1965
• Docket Number: Adm. No. 4419.
• Citation: 245 F. Supp. 227
• Parties: Dorothy J. METZGER, surviving wife of William Frederick Metzger, deceased, individually and for the use of Ronald Lee Metzger and Howard Bruce Metzger, surviving infant children of William Frederick Metzger, deceased v. S. S. KIRSTEN TORM, her engines, tackle, apparel and furniture, and Torm Line.
• Court: U.S. District Court — District of Maryland

245 F. Supp. 227

Dorothy J. METZGER, surviving wife of William Frederick Metzger, deceased, individually and for the use of Ronald Lee Metzger and Howard Bruce Metzger, surviving infant children of William Frederick Metzger, deceased

v.

S. S. KIRSTEN TORM, her engines, tackle, apparel and furniture, and Torm Line.

Adm. No. 4419.

United States District Court D. Maryland.

July 8, 1965.

Supplemental Opinion September 24, 1965.

Fred Ginsberg and Eugene V. Chircus, Baltimore, Md., for libelant.

David R. Owen and Semmes, Bowen & Semmes, Baltimore, Md., for respondent.

THOMSEN, Chief Judge.

This is a suit in admiralty to recover damages for the death of a longshoreman, who was killed while working on board the S.S. Kirsten Torm, while it was moored to a pier in Baltimore Harbor.¹ The issues require construction of the Maryland "Lord Campbell's Act", Anno.Code of Md., 1957 ed., Art. 67, secs. 1-6, with respect to liability thereunder for unseaworthiness and negligence, the persons who may recover, and the amount of any such recovery.

William F. Metzger, the decedent, was a longshoreman who, on September 24, 1962, was employed by Jarka Corporation of Baltimore, a stevedoring company, to assist in loading steel billets into the No. 4 lower hold of the S.S. Kirsten Torm, which was moored to the Pennsylvania Railroad pier. While Metzger was working in the hold a wire rope sling, attached to a draft of billets being lowered into the hold, parted, causing the steel billets to fall and strike him. The sling was owned by Jarka, and was attached to a hook at the end of the runner of a crane, which was owned and operated by the Railroad Company. The runner and hook were part of the crane, which moved along the pier on rails.

The draft consisted of 33 steel billets, each of which was 30 ft. long and 2½ inches square. Each billet weighed 600 lbs., making the total weight of the draft 19,800 lbs. Two slings had been attached to the draft by longshoremen, employed by Jarka, in a railroad car on the apron of the pier. The sling which parted had been attached at a point about 10 ft. from one end of the draft, while the other sling was attached about 5 ft. from the other end. The slings were attached at uneven distances from the ends so that one end of the draft would be a little higher than the other while it was being lowered into the hold. This was necessary because the billets were longer than the open hatch. Each sling was 6-37 wire cable, fibre core, ¾ inch diameter, improved plow steel, 25 ft. long overall, with eyes at both ends.² After one end of the sling was wrapped around the draft, the eye at that end was fastened to a pedro hook, which traveled along the standing part of the sling, and held the loop tightly around the draft. The eye at the other end of each sling was then attached to the hook at the end of the runner, and the crane raised the draft from the car and lowered it into the hold. After a draft was landed in the hold, the sling would be unwrapped by the longshoremen there and raised out of the hold by the crane.

When the draft involved in the accident neared the bottom of the hold, the forward sling parted. Almost immediately thereafter the rear sling also parted, and the billets fell, striking and killing Metzger. The draft did not hit any part of the ship or any other object before the slings broke. The draft was being lowered smoothly and steadily, there was no jerk before the break, and the billets did not slip in the loops of the slings at any time.

Twenty-three drafts had been loaded without incident during a period of an hour and a half that morning; the sling which parted had been used on eleven of them. The slings were new, without any apparent defect. The longshoremen noticed no more flattening of the cables than would be expected when slings are used with pedro hooks. The expert who examined the slings macroscopically found a little more flattening than usual, but not an excessive amount. The microscopic examination showed some structures which should not be present in sound wire, although the expert could not say just what the structures were. He did say and the Court finds that the condition could not have been caused by the loading of a single billet. The number of microscopic cracks which were discovered indicated that the material was more brittle than ordinary wire. The break occurred in the area where the sling passed through the eye of the pedro hook, not in the spliced eye of the sling.

Most importantly, 6-37 wire cable with fibre core, ¾ inch diameter, improved plow steel, has a breaking strength of 45,200 lbs. The load on the lower sling was slightly over 14,000 lbs. Both the agreed custom of the industry and the Safety and Health Regulations for Longshoring, June 1960, published by the United States Department of Labor, Bureau of Labor Standards, Division of Safety, § 9.62, require a safety factor of 5 to 1. The ¾ inch diameter wire cable with fibre core was not safe for this type of operation, in view of the weight of the draft and the use of the pedro hook. A stronger cable should have been used. Jarka did not exercise reasonable care in using the ¾ inch sling. The issues in this case, however, are whether under all the circumstances the use of the sling by Jarka rendered the ship unseaworthy under the applicable law and whether there was any negligence on the part of the master or crew of the ship which caused or contributed to the injury.

The shore based crane was being used for the loading because the weight of the drafts was far beyond the capacity of the ship's booms. The slings were supplied by Jarka; the ship did not carry any slings suitable for such loading operations. None of the gear was attached to any part of the ship in any way. The Chief Officer of the Kirsten Torm testified that he always keeps an eye on the gear the stevedores are using "to see if it looks good or not"; if something is wrong with the gear, "we tell the stevedores and they change", but this morning "it looked nice, * * * it was new wire they were using". It was the type of gear always used in America. The Chief Officer looked into the hold several times before the accident. The Third Officer saw the draft in question when it was just over the hatch; he saw nothing unusual about it; he had observed the loading operations and did not see anything wrong. Neither officer questioned anyone about the strength of the cable or the crane.

The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524 (1959), and United New York & New Jersey Sandy Hook Pilots Ass'n v. Halecki, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541 (1959), as interpreted by a majority of the Supreme Court in Goett v. Union Carbide Corp., 361 U.S. 340, 80 S.Ct. 357, 4 L.Ed.2d 341 (1960), and in Hess v. United States, 361 U.S. 314, 80 S.Ct. 341, 4 L.Ed.2d 305 (1960), held that "in an action for wrongful death in state territorial waters the conduct said to give rise to liability is to be measured not under admiralty's standards * * * but under the substantive standards of the state law." 361 U.S. at 319, 80 S.Ct. at 345. "Under this holding, in a maritime tort death case, the State might apply the substantive law generally applicable to wrongful death cases within its territory, or it might choose to incorporate the general maritime law's concepts of unseaworthiness or negligence." 361 U.S. at 342, 80 S.Ct. at 358.³ See also Union Carbide Corp. v. Goett, 4 Cir., 278 F.2d 319 (1960).

The basic questions, therefore, are: (1) whether the Maryland "Lord Campbell's Act", Anno.Code of Md., 1957 ed., Art. 67, secs. 1-6,⁴ employs the Maryland or the general maritime law concept of negligence; (2) whether the Maryland Act encompasses a suit in admiralty for death caused by the unseaworthiness of a vessel; and if so (3) whether Maryland would apply the concepts of unseaworthiness developed by the Supreme Court in longshoremen's cases or some other standards and principles.

There is no Maryland case in point on any of the questions. In cases within the maritime jurisdiction involving injuries to longshoremen, not resulting in death, the Court of Appeals of Maryland has applied, as it must, the concepts of unseaworthiness and negligence developed by the Supreme Court. Frazier v. Waterman S.S. Corp., 206 Md. 434, 112 A.2d 221 (1955). But it has not yet had to consider any civil action for the death of a longshoreman.

In 1959, after Skovgaard and Halecki, but before Hess and Goett were decided by the Supreme Court, and before the decision of the Fourth Circuit on remand of Goett, this Court overruled motions to dismiss two civil actions in each of which the complaint charged that the death of a longshoreman was caused by the unseaworthiness of the vessel on which he was working. State v. Weyerhaeuser Steamship Co., D.Md., 176 F.Supp. 664 (1959); State v. Nabella, D.Md., 176 F.Supp. 668 (1959). The discussions in those opinions will not be repeated here; they should be read as part of this opinion. Suffice it to say that after full consideration⁵ this Court concluded that the Court of Appeals of Maryland would hold that the Maryland statute is not limited to the wrongful acts, neglects and defaults with which the legislators who adopted it were familiar, but that the statute was intended to apply to all wrongful acts, neglects and defaults which from time to time would entitle the party injured to maintain an action; and that in view of the onerous duties placed on the shipowner by Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), and Alaska Steamship Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798 (1954), the Maryland Court would hold, however reluctantly, that the failure of a shipowner to provide a seaworthy ship, with appurtenant appliances and equipment, is a "wrongful act, neglect or default" within the meaning of the Maryland statute. See State v. Nabella, 176 F.Supp. at 671.

In the...