Rawson v. Calmar Steamship Corporation
| Citation | 304 F.2d 202 |
| Decision Date | 19 June 1962 |
| Docket Number | No. 16773.,16773. |
| Parties | Jean Ruth RAWSON, individually, and as Administratrix of the Estate of Thomas Roy Rawson, deceased, Appellant, v. CALMAR STEAMSHIP CORPORATION, a corporation, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Oscar A. Zabel and Philip J. Poth, Seattle, Wash., for appellant.
Bogle, Bogle & Gates, and Robert V. Holland, Seattle, Wash., for appellee.
Before CHAMBERS, MERRILL and KOELSCH, Circuit Judges.
On the morning of June 16, 1958, the decedent, Rawson, and one Ross, fellow longshoreman, were on the weather deck of the S. S. Kenmar, the Calmar Company ship which was berthed at a dock in Seattle with cargo to be there unloaded. The night before, the crew of the vessel had uncradled the ship's booms from their fixed positions in which they rode at sea. The port boom for the No. 3 hatch had been upright against the mast. The crew had lowered the boom perhaps to an angle of about 65° with the deck, or one-third of the way down.
The purpose of lowering the boom is to get it into a working position for use during the loading or unloading of cargo from the hatch. It is a normal occurrence, even though the crew has set the booms, that longshoremen find some adjustment of position is necessary. This, Rawson and Ross, who was working with him, were doing. Ross appears to have been acting under the direction of the former at the material time.
To adjust the boom it was necessary to use a topping lift winch, part of a ship's normal equipment adjacent to a hatch. (This particular winch was perhaps rigged so that it could have been used in the unloading of cargo, but in practice it was only used on the Kenmar for raising and lowering or adjusting a boom.)
A drum around which a cable or "wire" was wound or spooled, a clutch, motive power (which was steam), various levers and safety devices were essential parts of the winch apparatus.
One adjustment on the position of the boom had already been made at about 8:00 a. m. by Rawson. But Rawson decided a further shift of the position was advisable. Ross joined him and was at a point near two controls — the steam handle and the handle (in a quadrant) controlling a dog pawl, a common safety device. Ross was several feet away at the clutch lever.
As Ross and Rawson were shifting the various control levers, something slipped. The drum ran out of control, the cable on the drum "free spooled," the cable came loose from the drum and a loop from the wild cable ensnared Rawson's head, crushed it. Death was apparently instantaneous.
The widow of Rawson (who did as a longshoreman have workmen's compensation) close to sue the steamship company. She asserted both unseaworthiness and negligence of the ship. Either established as a cause would permit recovery. But in this judge-tried case, it was found that there was no negligence or unseaworthiness on the part of the ship. Further, it was found that the death was caused solely by the negligence of Rawson and Ross working under the former's direction. The widow appeals in behalf of herself and her children.
Thus, we must consider the cause and ascertain if, in our opinion, the decree below is or is not clearly erroneous. For such consideration, further facts must be related.
Clutches on winches with pins to lock the clutch out of engagement or in engagement, it may be assumed, are old devices. Likewise, it is indicated that a safety dog pawl with pins on its control handle to lock it in engaged or disengaged position is an old device. Apparently the pins on both have always been inserted manually.
All agree that to prevent free spooling when the boom is out of the cradle, the clutch and the safety dog pawl, both subject to hand control, should not be disengaged at the same time. One should be disengaged when the other is engaged and vice versa. The operation of shifting the levers (and normally locking in position after the shift) can be done by one man in successive steps, or by two men in quick succession.
After the accident, pins were found out of the quadrant holding the locking dog lever and out of the locking device on the clutch handle with which the Kenmar's winch was equipped. The ship says that fact indicates recklessness on the part of Ross and Rawson — negligence. There was some testimony indicating that it was necessary to have both pins out at the same time, but it would appear that such evidence was pretty well discredited, even by Mrs. Rawson's own experts. Had the alternate put and take of the pins been used, it would seem fairly certain there would have been no accident.
But the case really only begins with consideration of the clutch locking and the safety dog locking. Here Calmar had provided another safety device — a clutch guard or clutch pawl. We believe it fair to describe it cryptically as automatic or semiautomatic. Sometimes in the testimony it is called the "interlocking safety bar apparatus." (At least one witness thought this description inappropriate.) At any rate, at the vital point of contact there was a finger-like piece of metal which rode against the clutch collar in sort of a ratchet arrangement. The clutch guard apparatus was intended to prevent or assist in preventing double disengagements of clutch and safety dog pawls. Most of the witnesses agreed that Calmar's special device was an unusually good one, but one expert questioned its basic design.
Naturally, after the accident there was a detailed investigation of the topping lift winch and all of its component parts. A 7/16th inch clearance was found on the finger-like apparatus against the dogs of the collar of the clutch. This was not good. It would seem the clearance should not have been over one-eighth of an inch. How did the 7/16th inch get there? Calmar says it had to get there by misuse of the equipment during the very operation in which it failed. (The trial judge declared he was satisfied at the time of the slippage Rawson and Ross were engaged in a "flying switch," comparable to the outlawed practice by the same name in railroading.) Calmar suggests that a simultaneous twisting of the shaft on which the metal finger rode could have produced the 7/16th inch play. The shaft on testing proved to be .0015 inch off true. Appellant's experts say that the shaft must have left the foundry that way — that such a variance, the...
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