De Van v. Pennsylvania Railroad Company
| Decision Date | 28 October 1958 |
| Docket Number | No. 353 of 1956.,353 of 1956. |
| Citation | 167 F. Supp. 336 |
| Parties | William DE VAN v. PENNSYLVANIA RAILROAD COMPANY. GRACE LINE, INC., v. INDEPENDENT PIER COMPANY, Impleaded Respondent. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Milton M. Borowsky (of Freedman, Landy & Lorry), Philadelphia, Pa., for libellant.
Theodore Voorhees (of Barnes, Dechert, Price, Myers & Rhoads), Philadelphia, Pa., for respondent Pennsylvania R. Co.
Thomas E. Byrne, Jr. (of Krusen, Evans & Shaw), Philadelphia, Pa., for respondent Grace Line, Inc.
Francis A. Scanlan (of Kelly, Deasey & Scanlan), Philadelphia, Pa., for impleaded respondent Independent Pier Co.
The trial judge makes the following findings of fact:
1. On or about December 20, 1954, libellant was in the employ of Independent Pier Company, impleaded respondent, as a longshoreman on the Philadelphia waterfront.
2. Pennsylvania Railroad Company, respondent, is a Pennsylvania corporation engaged, inter alia, in the transportation of goods upon navigable waters of this country in interstate commerce by barge, lighter, carfloat and otherwise.
3. On or about December 20, 1954, Independent Pier Company was engaged in loading a cargo of heavy lengths of pipe from two carfloats owned by Pennsylvania Railroad Company onto the S.S. Santa Clara, which was owned by respondent Grace Line, Inc. (a New York corporation) and was located on the north side of Pier 55 South, by virtue of an agreement with Grace Line, Inc., or its agents.
4. No personnel of Pennsylvania Railroad Company were stationed aboard either carfloat after it had been left alongside the north side of the S.S. Santa Clara (hereinafter sometimes referred to as the "ship"). This was in accordance with the customary practice in the ports of Philadelphia and New York.
5. Since prior to December 1954, it has been the customary practice in the port of Philadelphia to moor carfloats to the side of a vessel, which is alongside a pier, with only a bow and a stern line, in the absence of unusual weather conditions or other unusual circumstances, neither of which were present in this case (see Railroad's Request for Finding of Fact 10).
6. At Piers 53 South and 55 South, Philadelphia, there was a northwest wind, which was not in excess of 15 knots (due to the housing on Pier 53 South), from 4 to 6 P.M. on the afternoon of December 20, 1954.
7. The following requests for findings of fact of respondent Pennsylvania Railroad Company are adopted as findings of fact of the trial judge: 1; 2; 3, with the last seven words modified to read "to the starboard side of the ship";1 4; 5; 6, with the words "About 12:20 p. m." inserted at the beginning of the sentence, the last seven words eliminated, and the words, "and on the north side of," inserted after the word "to";2 7; 8, with "3:30" substituted for "4:00"; 9; 10; 12 to 16; 17 and 18, with the words "forward of" substituted for the words "in from" in both paragraphs; 19 to 21; 22, with the words "in an operation such as that involved in this case" inserted at the end of the sentence; 23 to 30;3 32 to 36;4 37, with "toward Delaware Avenue" substituted for "facing 514"; 38 to 45;5 47, with the words "Several witnesses testified that" inserted at the beginning of the paragraph; 48, with the words "a person supposed by them to be" inserted before the word "ship's"; 49; 50; 52, with the last five words deleted; and 53 to 55.
8. The following requests for findings of fact of impleaded respondent, Independent Pier Company, are adopted as findings of fact of the trial judge: 1 to 8; 9, with the words "the No. 4 hatch of" deleted; 10, with the words "alongside the ship" substituted for "at the No. 4 hatch" and the word "shortly" deleted; 12, with "after" substituted for "around" in the first sentence; 13; 14; 15, with the fourth sentence deleted; 16, with "necessity for" deleted and "of" inserted after "re-rigging"; 17, with the last sentence deleted; and 21.
9. Carfloat 514 was moored to the north side of the ship at the No. 2 hatch by either personnel of the Independent Pier Company or personnel of the ship between 12:20 P.M. and 4 P.M. on December 20, 1954.
10. The ship or stevedoring personnel place the eye of the carfloat lines over a bollard, cleat, padeye, or similar appurtenance on the ship's deck and the lines are tightened at the cleats on the carfloat. The ship's personnel normally see that the lines are taut when the carfloat is first moored and observe the lines to see if they are excessively slack from time to time as they walk about the ship (deposition of Beresheim 8-10, 12-14, 17, N.T. 190).
11. Chief Mate Rachuba made no observation or inquiry with respect to the hook used by the stevedores and made no observation concerning the degree of slackness of the lines from the ship to Carfloat 514.
12. The engines of the steam tug Camden are very quiet, even when it is operating at full speed. Personnel stationed on Carfloat 514 moored on the forward north side of a ship berthed at the north side of Pier 55 South cannot hear, under conditions similar to those existing at 5 P.M. on December 20, 1954, any appreciable noise from these engines, even though they are operating at full speed and the tug is approximately 50 feet toward the Delaware River from the carfloat.
13. Although the Camden stirs up considerable water at its stern when its engines are at full speed, the effect of this water on movement of Carfloat 514, loaded as it was at 5 P.M. on December 20, 1954, would not be significant,6 assuming the lines of the 514 were taut and the Camden was 50 feet toward the Delaware River from the carfloat with its bow toward the river, as described by the witnesses of libellant.
14. The breaking out of the pipe from Carfloat 514 on the afternoon of December 20, 1954, was a very delicate and dangerous operation, which required all feasible care and safety precautions see testimony of gang foreman Evers on cross-examination and of employees of Benjamin F. Shaw Company (hereinafter sometimes called "the Shaw pipe company") on 10/16/58.
15. On December 20, 1954, the impleaded respondent was discharging the pipe from the cars on Carfloat 514 into the ship, pursuant to its agreement of 4/17/54 with respondent Grace Line, Inc. (Exhibit RG-5).
16. The end of the booms extending over the starboard side of the ship at the No. 2 hatch were more than 25 feet above the top of the gondola car in which libellant was working at the time of the accident.
17. The cargo hook (RP-8) used in this operation was not reasonably fit for the purpose for which it was being used in breaking out the pipe at 5 P.M. on December 20, 1954.
18. The following requests for findings of fact of respondent Grace Line, Inc., are adopted as findings of fact of the trial judge: 1; 2, with the words "the No. 4 hatch of" deleted; and 5.
All requests for findings of fact not mentioned in paragraphs 7, 8 and 18 above are denied.
In this admiralty action, libellant, a stevedoring employee of the impleaded respondent, seeks to recover from (a) the Pennsylvania Railroad Company, on whose carfloat was located the gondola car containing the four-ton piece of pipe which "rolled over"7 crushing his leg, and (b) Grace Line, Inc., into whose ship the pipe was being discharged. Grace Line, Inc., filed a petition (claiming indemnity and/or contribution if it is found liable) to implead the stevedoring company (Independent Pier Company, hereinafter sometimes called "Independent") which was performing stevedoring services under contract with it (see Exhibit RG-5). Respondent Pennsylvania Railroad Company filed cross-libels against Independent and Grace Line, Inc. Also, Grace Line, Inc., filed a cross-libel against the Railroad.
During the trial, the respondents and the impleaded respondent reached an agreement with the libellant and stipulated that the case should proceed to trial on the issue of liability only (N.T. 1677-9).
The trial judge has reluctantly come to the conclusion that libellant and his witnesses did not testify accurately as to the existence and effect on Carfloat 514 of backwash from this respondent's tub Camden. A summary of the reasons for the trial judge's findings follows:
(a) The testimony of libellant's witnesses, such as Kulbusauskas, that he heard loud noises from the engines of the tug from the vessel's deck is incredible in view of the demonstration on May 27, 1958, in the slip between Piers 53 South and 55 South.8
(b) This same demonstration disclosed that even if the tug had been headed toward the river (which the trial judge finds is not the fact), the carfloat hardly moved forward toward Delaware Avenue at all when the tug proceeded toward the river full speed and there was only a very slight movement up and down of the carfloat.9
(c) The experts (such as Good, Kane and Campbell) testified that the method of coming into a slip slowly, bow first, and pulling Carfloat 522 out with the tug in reverse was a safe and proper way for the tug to remove that carfloat. No explanation has been given of why the tug would come into the float and turn around (in an arc or by backing and filling), as testified to by libellant's witnesses.
(d) The corroboration of the tug crew by the Chief Mate in admitting that at one point during the day he saw the two carfloats moored alongside each other (N.T. 1684-5).
(e) McGovern's testimony that the S.S. Othem was moored on the south side of Pier 53 South on December 20, 1954, making it most unlikely that there would have been room for the tug to turn around in the slip, much less wait alongside the south side of Pier 53 South as testified to by at least one of libellant's witnesses.10
(f) The libellant's witnesses did not seem to the trial judge as accurate as Zarelli, Bredell, Schust, Good and Brown.11
The carfloat was a proper vessel to use to...
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