Weigel v. The MV Belgrano
| Decision Date | 14 April 1960 |
| Docket Number | Civ. No. 10027. |
| Citation | 189 F. Supp. 103 |
| Parties | George WEIGEL, Libelant, v. THE MV BELGRANO, her engines, tackle and gear, and any and all persons claiming any interest therein, and Partenweederei, M. S. Belgrano, Owner and Operator, Seekonter Line, Charterer and/or Operator, Respondents. Rudolph A. OETKER, Claimant, v. BRADY-HAMILTON STEVEDORE COMPANY, a corporation, Third-Party Respondent. |
| Court | U.S. District Court — District of Oregon |
Frank H. Pozzi, Pozzi & Wilson, Portland, Or., for libelant.
Erskine B. Wood, Wood, Matthiessen, Wood & Tatum, Portland, Or., for respondents.
Nathan J. Heath, Gray & Lister, Portland, Or., for third-party respondent.
This is a libel in personam and in rem with foreign attachment for damages resulting from personal injuries sustained by libelant as a result of the alleged unseaworthiness of the MV Belgrano ("vessel") and the negligence of the respondents.
The respondents impleaded Brady-Hamilton Stevedore Company ("stevedore") as third-party respondent under Admiralty Rule 56, 28 U.S.C.A. in a cause of indemnity.
The libelant at the time of the accident involved was a longshoreman employee of stevedore then under contract to bring aboard and stow the vessel with cargo, including lumber. The question of the claim of respondents for indemnity from stevedore has been segregated and reserved until adjudication of libelant's claim.
The segregated issue of liability to libelant and his damage has been submitted to the Court following a trial by the Court and the filing of brief.
On or about October 10, 1958, the vessel was lying adjacent to the dock at Terminal No. 1 on the Willamette River in the Port of Portland, Portland, Oregon, and longshoremen unemployed by the stevedore were immediately engaged in moving (topping) the starboard boom at No. 1 hatch in order to bring aboard lumber cargo from the dock when the boom and its rigging fell and struck the libelant, who was working on the dock as a fellow longshoreman, causing him personal injuries.
This Court has admiralty and maritime jurisdiction of this cause in rem of the vessel and in personam of the named parties.
This Court finds that:
Libelant was struck with the falling boom while he was engaged in his duties as a dockworking longshoreman and particularly operating a tractor in reverse motion and pulling with a tow line a railroad car, then loaded with some of the lumber cargo, upon a permanently fixed railroad spur line on the dock along shipside. The purpose was to place the lumber-laden railroad car under and within the reach of the vessel's gear so as to load the lumber upon the vessel.1 (Figure 1.)
The falling boom struck the libelant without any notice or warning to him.
The vessel was of German design, newly-built, and engaged as a freighter, and she appeared clean.
The vessel's starboard boom at her No. 1 hatch had been and was at the time of the accident fitted, among other things, with a topping lift winch drum ("lift gear") of German design. This gear was a permanently affixed appurtenance of the vessel and, unlike the common American style of chain and shackle fastening topping gear, was semi-automatic in operation.2 (Figure 2.)
The larger wire rope wound on the left portion of the drum on the lift gear and extending upwards between the words "notches" and "pawl" extends on upwards and through a block on the mast and is made fast near the top of the boom involved. The lift gear is stationed just abaft of the starboard winch at No. 1 hatch.3 (Figure 3.)
The smaller steel rope wound on the right portion of the drum has been referred to as "topping lift pennant" and "pigtail line" ("pigtail line"), and the unwound portion thereof lies free on the deck when not in use. The free end of the pigtail line is equipped with a "hook," a "dog" or a "pawl" ("dog").4 (Figure 4.) The "nigger head" or "gypsy head" ("gypsy head") on the winch has a hole or cutting through its outside rim.5 (Figure 5.) To operate the boom lift gear the dog is inserted in the hole in the rim of the gypsy head.6 (Figure 6.) This pigtail line dog with the cutting in the rim of the gypsy head is also of German concept and design and, when the dog is properly inserted and locked by a twist in the gypsy head opening7 (Figure 7.), the pigtail line is made fast to the gypsy head and cannot be separated by direct pull of the winch unless there is a failure of the metals. When the lift gear is operating normally, the strain of the winch causes an unwinding of the pigtail line and causes a reverse winding of the boom topping wire rope upon the drum and a lifting of the boom. Slack upon the pigtail line will cause an unwinding of the topping wire rope by the weight of the boom, a lowering thereof, and a winding of the pigtail line upon the drum. The drum of the lift gear has as an integral part thereof, at each end, a permanently fixed circular ratchet or pawl rim or wheel made of cast metal provided with a series of cammed ratchets on which permanently attached but free rising and falling pawls ride and rise and drop into the intervening notches by gravity. These two pawls are rigidly connected together with an iron bar and operate on a single axle. When one pawl is up so is the other, and vice versa. When the lift gear in the boom-lifting operation functions correctly according to intent and design, the pawls freely ride and rise upon the cammed ratchets and drop automatically by gravity into the notches, thus forming a locking device to prevent the drum from turning back under the weight of the boom following an intentional slack or an unexpected failure of the pigtail line. When the gear is used to lower the boom, it is necessary for a longeshoreman to manually hold or otherwise prevent the pawls from falling by gravity into the notches. The action of a longshoreman in lowering or letting the pawls fall into the notches will lock the drum and prevent the continued lowering of the boom or a falling of the boom upon a sudden parting or failure of the pigtail line.
The intent and design of the lift gear is an improvement upon the mentioned American gear and is a safe and is in nowise an inherently dangerous appurtenance when functioning properly. There would be a malfunction of the gear according to design and intent if the pawls did not freely ride and rise and drop by gravity or in anywise fail to drop freely by gravity when released from a manual holding.
Immediately prior to the commencement of the operation leading up to the accident, the ratchet notches and the pawls were in a locked position and the lift gear was steady under the weight of the boom. The work of bringing aboard the lumber at No. 1 hatch required a topping of the boom in order to place the same in a working position, and the winch driver called to a ship longshoreman and asked for "a hand" in attaching the free end of the pigtail line to the gypsy head. The winch operator did not see this operation, and the longshoreman involved can give no satisfactory account of what he did in the way of fixing the free end of the pigtail line to the gypsy head. In any event, it was somehow attached, but evidently not properly. The winch driver took up the slack in the pigtail line, put strain thereon, and commenced the lifting of the boom. The winch driver did not hear the "clanking" of the pawls (dropping of the pawls in the notches in the ratchet rims). After raising the boom approximately three-four feet, the driver stopped the winch, braked it, and started astern to see what was wrong. Under the weight of the boom, the pigtail line started to slip on the gypsy head and the boom lift wire rope on the drum of the lift gear started to unwind. The boom in its fall gathered momentum, and the flailing free end of the pigtail line prevented the winch driver from manually putting stress upon the same. The boom, uncontrolled, fell to the starboard side of the vessel across the dock and struck the libelant. From the commencement of the raising of the boom, the unwinding of the drum, and throughout the fall of the boom, the pawls had failed to fall into the notches by gravity or otherwise.8
On the day before the accident, while in the process of topping the boom involved through the use of the lift gear, the pawls had locked in an upright position and failed to properly function by falling under gravity into the locking position, and a longshoreman had used a piece of dunnage to strike and knock the pawls into position.
That there was a malfunction in the intent and design and of the lift gear during the operation of the lifting of the boom in that the pawls failed to freely ride the cammed ratchets and drop freely into the notches is self-evident. Otherwise, there would have been a maximum drop of the boom to the extent of some seven inches or a destruction of the locking device of notch and pawl, which there was not. Therefore, the Court concludes:
(1) That the said vessel was unseaworthy in that:
9
(2) That the respondents and the claimant were negligent in:
(3) That said unseaworthiness of the vessel and concurring negligence of the respondents and claimant were the proximate causes of the falling of the boom10 and libelant's...
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