Crumady v. The Joachim Hendrik Fisser

PETITIONER:Crumady
RESPONDENT:The Joachim Hendrik Fisser
LOCATION:Roosevelt Bar and Tavern

DOCKET NO.: 61
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 358 US 423 (1959)
ARGUED: Jan 12, 1959 / Jan 13, 1959
DECIDED: Feb 24, 1959

Facts of the case

Question

  • Oral Argument – January 13, 1959
  • Audio Transcription for Oral Argument – January 13, 1959 in Crumady v. The Joachim Hendrik Fisser

    Audio Transcription for Oral Argument – January 12, 1959 in Crumady v. The Joachim Hendrik Fisser

    Earl Warren:

    Number 61, John Crumady, Petitioner, versus Joachim Hendrik Fisser et al.

    Mr. Freedman, you may proceed.

    Abraham E. Freedman:

    After all that discussion, I think it might be relaxing to take a little secret now.

    May it please the Court.

    There were two questions posed by these proceedings.

    The first is whether or not the shipowner is responsible for an unsafe condition which is created by an independent contractor in the course of unloading operations, and the second is whether the Court of Appeals may reverse a fact finding of the trial judge sitting in admiralty under circumstances where the fact finding — where the finding of the trial judge is not shown to be clearly erroneous under the McAllister decision of this Court.

    Briefly, the circumstances in this case show that Mr. Crumady was a longshoreman, one of a group of longshoremen who were engaged to discharge a cargo of lumber from this vessel, the Joachim Hendrik Fisser, I’ll call it the Fisser for purposes of convenience, in January of 1954.

    He was employed by the impleaded respondent, the Nacirema Operating Company.

    They went to work on the morning of January 4th — 2nd, 1954 and discharged most of the cargo which had been piled above the level of the coaming here in this hole.

    Perhaps I should first state to the Court that all of the gear that Your Honors see on this model was designed for — a three-ton gear, designed with a workload capacity of three tons.

    That is the maximum safe workload capacity of three tons.

    That included these booms and this gear.

    And I would like to take a moment or two to describe the various parts of the gear here.

    Felix Frankfurter:

    And will you — and will you for the sake of a land lover, translate technical sea — water terms into English.

    Abraham E. Freedman:

    I will certainly be glad to do so, sir.

    Hugo L. Black:

    You said this boom, which is that?

    Abraham E. Freedman:

    Well, sir, these are the booms.

    This timber right here is the mast.

    This is the mast house down here.

    It’s the new type — it’s a foreign vessel, a German vessel, and this is the port boom and this is the starboard boom.

    Now, the port boom was called the port as the left side and the starboard as the right side.

    Felix Frankfurter:

    I — I know at least that much.

    Abraham E. Freedman:

    The port boom was used as the so-called up and down boom.

    As Your Honors can see, here is a cable which extends between the two of them and this cable is called the runner.

    The runner is that part of the cable which attaches to the load itself, which is to be lifted.

    Felix Frankfurter:

    Is the runner the black part?

    Abraham E. Freedman:

    This part right here.

    Felix Frankfurter:

    The black part or the whole?

    Abraham E. Freedman:

    Well, the whole of it.

    Felix Frankfurter:

    The whole.

    Felix Frankfurter:

    All right, all right.

    Abraham E. Freedman:

    This — this one here at the right.

    And this is to the cargo, as we explained earlier, drop down here —

    Felix Frankfurter:

    Yes.

    Abraham E. Freedman:

    — and then it’s lifted up.

    I wanted to say first, if this is the so-called up and down boom, this boom is used as Your Honors can see it, it manipulates these cables by means of winches that are located at this point.

    They’re not visible on this model, but they’re located right here.

    So that the pulleys and the cables on this side lift it up, and after this boom lifted up, then this boom is used to pull these cables over toward the shore on the pier where the cargo has landed about where I am standing.

    Now, when — as I said before, this is the runner and these two slates or cables which Your Honors see here, this is called a guy.

    A guy is just another name for another — a number of ropes.

    And — and this is the so-called preventer.

    Preventer is just another name for the rope.

    These are used for the purpose of securing the respected booms here, while these booms are taking the strain on the cargo on the load which is being lifted.

    And now, the testimony shows that when this operation first started, this boom here was rigged by the crew so that the head of the boom was directly over the center of the hatch right here.

    Now, as the discharging progressed, the longshoreman moved this head of the boom over more towards the port side so that the head of the boom was located according to the findings and the factual picture which I am trying to present is taken right from the fact findings of Judge Wortendyke who was the trial judge.

    He found that the head of the port boom was about two thirds, about one-third of the way for the center of the hatch to the port and it was secured by this so-called preventer to the — to the side of the vessel just about a switch, about pretty close to where it is here.

    And —

    Potter Stewart:

    Not athwartship.

    Abraham E. Freedman:

    Sir?

    Potter Stewart:

    That’s athwartships.

    Abraham E. Freedman:

    Athwart — straight opposite, sir.

    Athwartship means across while —

    (Inaudible)

    Abraham E. Freedman:

    — longitudinal — I’m sorry, sir.

    William J. Brennan, Jr.:

    You have to teach Justice Frankfurter here, (Inaudible)

    Charles E. Whittaker:

    Mr. Freedman.

    Abraham E. Freedman:

    Yes, sir.

    Charles E. Whittaker:

    How did you go about (Inaudible)

    Abraham E. Freedman:

    Yes, Your Honor.

    What they do is they loosen the (Inaudible) sir, securing lines right here and the others which hold it.

    Abraham E. Freedman:

    And they could swing it over.

    There was some testimony that the longshoremen were not permitted to move the angle of the boom.

    The angle of the boom is this angle right from here, the angle between the boom and the mast.

    Now, this cable from here to here, which holds this boom up is called the topping-lift.

    This is the fellow that goes on the trouble that we’re about to come to (Voice Overlap) —

    Felix Frankfurter:

    I don’t want to anticipate, but help me a little bit to understand.

    Before the operation of the — of lifting the lumber begun, was the relation of the boom to the mast, or both booms to the mast subjective to criticism by you?

    Abraham E. Freedman:

    That’s the question which is not answered in the record, sir, because as the cargo is unloaded, sir, unloading cargo in one part of the hatch may be done very safely and properly with the boom directly above.

    However, as the cargo shifts as the sling shifts over further, the boom frequently — as a matter of fact, Your Honors will find in the agreement, which the respondent here alleges as the indemnity agreement, Your Honors will find in that agreement a clause which says that it is the longshoremen who are required to what we call trim the booms, move these booms back and forth as the cargo is being unloaded from time to time.

    Felix Frankfurter:

    What I want to know if — if it’s relevant.

    If you tell me it’s irrelevant, I’ll accept it.

    As — as the gear was in position before the unloading began, was there any — was unseaworthiness predicated as of the position of the gear at the — before the operation begin?

    Abraham E. Freedman:

    Well —

    Felix Frankfurter:

    If you tell me that’s out of order or — I’d accept your word for that.

    Abraham E. Freedman:

    I — I think that it is — first of all, irrelevant —

    Felix Frankfurter:

    All right.

    Abraham E. Freedman:

    — because — because what it was at that moment —

    Felix Frankfurter:

    I didn’t mean to foreclose subsequent unseaworthiness through operation.

    I just want to know whether in the study condition, were there any complaint by you?

    Abraham E. Freedman:

    Well, if it has been in its original position, I don’t know what the effect would have been because there are no calculations to show what the respect of strains would have been from that point.

    However, as the cargo has unloaded, sir, our position is that it is not only the function of the vessel, so provide in the first instance a seaworthy —

    Felix Frankfurter:

    I understand.

    Abraham E. Freedman:

    — vessel but also to maintain it.

    This Court said that in Mahnich versus Southern Steamship —

    Felix Frankfurter:

    But I’m not —

    Abraham E. Freedman:

    — to keep it in order throughout the entire (Inaudible) —

    Felix Frankfurter:

    But I just want to go step by step.

    One step are all enough for me.

    Abraham E. Freedman:

    All right, sir.

    I can’t say whether the boom in its original position over the center of the hatch could have extricated or taken out the lumber.

    Abraham E. Freedman:

    Sufficient to say that the longshoremen who were then unloading it thought that it needed trimming, it needed moving over.And on that point, there is a dispute in the evidence as I think my two friends here will show.

    I’m not going to get into that argument because that involves the question of indemnity.

    But so far as I’m concerned —

    Felix Frankfurter:

    Is it none of your concern?

    Abraham E. Freedman:

    Sir, I take the evidence — I take the findings of the trial judge.

    Felix Frankfurter:

    Is it none of your concern, indemnity, is it?

    Indemnity problem is none of your concern?

    Abraham E. Freedman:

    No, sir.

    Felix Frankfurter:

    All right.

    Abraham E. Freedman:

    No sir.

    And therefore —

    Hugo L. Black:

    (Voice Overlap) — the virtue of (Inaudible), if you would take that rule and point out that of those things were not given many names at all and show us exactly what happened to the fellow who got hurt.

    Abraham E. Freedman:

    Yes, sir, Your Honor.

    After the longshore —

    Hugo L. Black:

    If it’s on the virtue or the (Inaudible).

    Abraham E. Freedman:

    Yes, sir.

    After the longshoreman came aboard, they moved the boom as the Court found so —

    Hugo L. Black:

    You mean that, that boom?

    Abraham E. Freedman:

    Sir?

    Hugo L. Black:

    You mean, what you’re pointing at —

    Abraham E. Freedman:

    This one which this Court (Voice Overlap) —

    Hugo L. Black:

    — that stay?

    Abraham E. Freedman:

    — right here.

    Yes, sir, Your Honor.

    They moved this boom to a point just beyond this hatch board and then —

    Hugo L. Black:

    Moved it down?

    Abraham E. Freedman:

    Moved — not down, just across.

    They didn’t change the angle.

    They just moved it over.

    William J. Brennan, Jr.:

    How do you do that?

    Abraham E. Freedman:

    That’s very easily accomplished.

    So long as this cable right here is not moved, is not touched, it will swing the angle between the boom and the mast will not change.

    William J. Brennan, Jr.:

    Now, what they do?

    Loosen that boom?

    Abraham E. Freedman:

    Yes, sir.

    They could loosen these preventers and the guy.

    These guylines will swing it over and also this runner right here, too.

    William J. Brennan, Jr.:

    Swung it over which way?

    Abraham E. Freedman:

    Swing it over to support to the left side.

    Hugo L. Black:

    That’s what was done here?

    William J. Brennan, Jr.:

    (Voice Overlap) —

    Abraham E. Freedman:

    That’s what was done here.

    Hugo L. Black:

    And got over here, then what happened?

    Abraham E. Freedman:

    Then — then the longshoremen, (Inaudible), secured according to Judge Wortendyke’s findings, secured this preventer to avoid athwartship at this point and the guylines to a point approximately this point.

    Hugo L. Black:

    And now, you’ve lost — the longshoreman was over here, don’t go under the disputed evidence.

    The longshoreman was over here, was he?

    Abraham E. Freedman:

    The longshore —

    Hugo L. Black:

    Where was he when he got hurt?

    Abraham E. Freedman:

    The longshoreman was in the hatch here.

    Hugo L. Black:

    In the hole?

    Abraham E. Freedman:

    Yes, sir.

    Hugo L. Black:

    All right.

    Abraham E. Freedman:

    And they were unloading these timbers and there were two timbers that they were trying to get out of this hole.

    They were lining longitudinally this way, longer than this, they were almost right to the hatch about 35 feet.

    And one of them was under the coaming here.

    They took a sling and tied it around these two timbers near the after-end and then they put the sling all at this way to make the top.

    And — and the string was on this boom right here as it was rigged —

    Hugo L. Black:

    Then it was rigging it, was on that boom?

    Abraham E. Freedman:

    This boom right here, yes, sir.

    And as they started the Court found that they first took a little — took the slack out.

    Abraham E. Freedman:

    And when they first secured — there’s got to beat some slack in this runner right here.

    They first — the winchman first took the slack out and then he put what he called a strain on it.

    And then as he put the strain on it, this thing rolled or slid unto the coaming and the Court found that he continued to apply the pressure even slightly and at that point, this topping-lift right here rolled.

    The hatch came — this boom here, it came down and struck the man down here.

    Hugo L. Black:

    The boom is — it got hit by the boom.

    Abraham E. Freedman:

    That’s right, sir.

    Lower the boom sir.

    Hugo L. Black:

    But it wasn’t — wasn’t here to be lowered.

    It broke.

    Abraham E. Freedman:

    It broke, sir.

    William J. Brennan, Jr.:

    Now, what do you call the top of it and that’s the cable, right?

    Abraham E. Freedman:

    That’s right, sir.

    William J. Brennan, Jr.:

    Now, what was the cable, core or?

    Abraham E. Freedman:

    That’s a wire, wire —

    William J. Brennan, Jr.:

    (Inaudible)

    Abraham E. Freedman:

    — (Inaudible) steel —

    William J. Brennan, Jr.:

    (Inaudible)

    Abraham E. Freedman:

    It’s — (Inaudible), yes, sir.

    This topping-lift was wrapped in — was rigged in what they call the double purchase.

    That means this — this cable here was smaller or (Voice Overlap) from this but there were two of them up here and a double purchase, so that as to give it the necessary strength.

    Felix Frankfurter:

    Well now, did the wire — rope break because the boom was too port ward?

    Abraham E. Freedman:

    The — the trial judge found that this rope, because of two factors, two reasons, he said that these two lines right here, this guy and this so-called preventer were placed at a wrong angle.

    They should have been back here, but being here, they placed a greater strain on this topping-lift right here as this runner was pulling this up front against this timber out.

    Now then, that was the first factor.

    Therefore the Court held — the lower court found that it was the improper positioning, the improper rigging of this boom over too far without securing this two properly, that is the defect of securing so to speak, plus one other factor which I have not yet referred to, and that is that the winch which powered the entire operation was equipped with a governor, a cut-off device or a circuit breaker as it has been variously characterized here to stop the winch.

    Now, as I said before, all of these equipments, including the booms and the tack and everything else had a rated three-ton capacity, maximum safe working load of three tons.

    And on this occasion, however, the captain himself testified that this governor was such as —

    Hugo L. Black:

    Governor of the winch.

    Abraham E. Freedman:

    Sir?

    Hugo L. Black:

    Governor of the winch.

    Abraham E. Freedman:

    The governor and the winch.

    Hugo L. Black:

    The governor and the winch or?

    Abraham E. Freedman:

    The governor inside the winch.

    The governor which regulated —

    Hugo L. Black:

    (Voice Overlap)

    Abraham E. Freedman:

    — the current in the motor.

    That was set to stop the current at slightly more than six tons which was more than 100% overload beyond the maximum safe working capacity.

    So that Judge Wortendyke found that the accident resulted from a combination of these two factors.

    First, because this boom was placed in such a position at least not the boom as much as the rigging itself.

    Felix Frankfurter:

    Well now, may I break in there?

    Abraham E. Freedman:

    Yes, sir.

    Felix Frankfurter:

    What I want to know and this brings me back to the rigging question.

    Was the rigging in which — was the rigging in the original position in which the rigging was before the boom was stretch over port ward?

    Abraham E. Freedman:

    The opinion doesn’t say exactly where it was before, sir.

    I think —

    Charles E. Whittaker:

    (Inaudible) the Nacirema changed it from (Inaudible)

    Abraham E. Freedman:

    I think that the evidence shows that Nacirema did change it.

    The Court —

    Felix Frankfurter:

    And secondly, was the — who was in charged of the winch and governor of the winch?

    Abraham E. Freedman:

    One of the longshoremen.

    The governor — no, the winch — the governor on the winch was not to be touch by anyone.

    As a matter of fact, it was set, One said, it was left alone.

    Felix Frankfurter:

    Well, it’s set at fix.

    Abraham E. Freedman:

    It was set in slightly more than six by the —

    Felix Frankfurter:

    By the —

    Abraham E. Freedman:

    — ship itself.

    Felix Frankfurter:

    Well then, why wasn’t that in and out itself wrong?

    Abraham E. Freedman:

    It was wrong.

    That’s just what Judge Wortendyke said.

    And that was one of the — that’s one of the points here which we — which we make and holding and contending that the Court of Appeals was erroneous in overruling Judge Wortendyke’s finding on that specific point, sir.

    Felix Frankfurter:

    Well, as a matter of fact, if it was set at six, six tons, or in effect — as a matter of fact, did it have to carry six or it was set at six?

    Abraham E. Freedman:

    If it was set at six, six tons, it would — it would mean that there would be a strain of six tons imposed —

    Felix Frankfurter:

    Pressure?

    Abraham E. Freedman:

    Pressure or strain on these lines which were designed only for a maximum of three tons.

    Felix Frankfurter:

    And that was test by the ship?

    Abraham E. Freedman:

    That’s right, sir.

    Felix Frankfurter:

    Well if you’re right about that and please tell me why that isn’t conclusive, why you have to bother about the other thing?

    Abraham E. Freedman:

    Well, sir — Your Honors may not even have to read — that’s a fact finding but we say to Your Honors, that even before Your Honor —

    Felix Frankfurter:

    If that — if — since that’s traceable to the ship and it should have been set at three rather than six, why isn’t that in and of itself (Voice Overlap) —

    Abraham E. Freedman:

    (Voice Overlap)

    Felix Frankfurter:

    — factor?

    Abraham E. Freedman:

    Would absolutely be.

    As a matter fact, sir, —

    Felix Frankfurter:

    (Voice Overlap) —

    Abraham E. Freedman:

    — we — we relied on and — and going up on appeal, we were the appellees, sir.

    We were the appellees here and we relied on that.

    But then the Court of Appeals sua sponte then held that this accident happened because the rigging here was better had been tucked by the longshoreman and this didn’t make any difference.

    Then for the first time on rehearing, we said to the Court that it didn’t make any difference who rigged it.

    It was the ship’s obligation to rig it.

    And if they delegated the job to somebody else and it was done wrong, they’re responsible for it.

    As this — as the Court said in the Grillea case and other cases that I’m prepared to argue that I will cite Your Honors.

    Felix Frankfurter:

    Well, will you — would you mind telling me what Judge Hastie said — the case is out of my mind.Why he said it was irrelevant that the governor was set at six when it should’ve been set at three?

    Abraham E. Freedman:

    Well, here’s what he said.

    He said that although the maximum safe rated workload was only three tons, however, he said as a — it had a tensile strength of five times that much.

    He said it had a factor of safety of five.

    He took the testimony which said that all of these cables have a factor of safety of five and he assumes from that that it had a work capacity, five times the safe working load.

    And nothing could be further from the — from the correct position because when you say you have a factor of safety of five, you’re not talking about the work capacity.

    You are talking about the breaking point.

    William O. Douglas:

    I thought his point was that the — the difference between unseaworthy applied to the rigging, and rigging that was seaworthy but that was misused, negligently used.

    There was nothing here that was not unseaworthy.

    Abraham E. Freedman:

    Well —

    William O. Douglas:

    Rigging, everything with a control device, but the control device wasn’t properly used.

    Abraham E. Freedman:

    Well, (Voice Overlap) —

    William O. Douglas:

    Was that his point?

    Abraham E. Freedman:

    No, Judge Hastie’s point was that this positioning of the boom was wrong, it was unseaworthy but it had been done by the longshoreman.

    And therefore the ship was not responsible.

    We didn’t even argue that point.

    We didn’t even know that the case was going to turn on that point.

    We had relied on the fact that there was a — an overload of a 100% on the governor.

    However, Judge Hastie said that this was wrong and then he came to the other point, sir, and he said that with respect to the governor in the winch, he said that didn’t make any difference because the factor of safety of five really gave the cables a working capacity of 15 tons and not merely of three tons.

    Well, that’s definitely incorrect.

    I thought the thrust of what he said, perhaps I’m wholly wrong was that if this log or whatever it was being hauled up, had not stuck in the process of hauling it up against the — against the coaming, that that ring would have carried that weight adequately.

    And that what happened was that the operators of this rig, instead of stopping the rig when they found the thing being hauled up and stuck, they proceeded to apply more power and as a result, the thing broke.

    Abraham E. Freedman:

    Well, here’s the policy in that sir.

    Am I mistaken in what I —

    Abraham E. Freedman:

    (Voice Overlap) —

    — what I understood him to say?

    Abraham E. Freedman:

    Most of what you have said (Voice Overlap) —

    (Inaudible)

    Abraham E. Freedman:

    — Judge Hastie found that this thing had a capacity really — a work capacity of 15 tons, he said so specifically.

    Yes.

    Abraham E. Freedman:

    As a matter of fact, every witness in the case including the respondent said that the breaking load, not the work capacity, it didn’t have a working — it has a breaking load of five times.

    And the minute you get over the three tons, you are testing the risk.

    Now Judge Hastie said that the fact that this governor was set at six tons was not unsafe even though it was a 100% overload because this cable really had a safe-work capacity of 15 tons rather than three.

    That’s the — that’s the entire (Voice Overlap) for which Judge Hastie said that.

    Felix Frankfurter:

    I suppose it isn’t for you to say, for the respondent to say what is the point of making three — the norm if that isn’t to be respected?

    Abraham E. Freedman:

    Exactly sir.

    If I may state to Your Honors that if we were to sue the manufacturer on the basis of Judge Hastie’s opinion, he would consider “high figures.”

    As a matter of fact, the evidence shows that it was plainly marked on all of the gear, maximum safe rated capacity, three tons.

    If we had gone over the three tons and it had broken for any reason, the manufacturer could have very successfully have defended and said, “You disobeyed the very instructions of running the cable itself.

    Abraham E. Freedman:

    It was designed only for three tons.

    As soon as you get over the three tons, you are testing the risk.”

    Now, there are a lot of factors.

    This cable had been in use since its inception about a year and a half when the vessel was first launched.

    The testimony shows that with normal wear and tear, this wasn’t frequently used in the Caribbean, very quick — this particular boom, this equipment.

    And it shows that normal wear and tear reduces the work capacity, even the maximum factor of safety which in turn, as the Court found, reduces the general effect of the general maximum safe working load of three tons.

    However, we don’t have to get into that.

    I think that —

    What will happen if it has been set at three?

    Abraham E. Freedman:

    If it had been set at three tons, this never would have happened, sir, because —

    What would have happened?

    Abraham E. Freedman:

    Well, nothing would have happened, it would shut off.

    You mean, as soon as the strain started — being applied, (Inaudible)

    Abraham E. Freedman:

    As soon as three tons fitted, it would have gone off.

    I should — I should say this to Your Honors that Judge Wortendyke found that the matter in which this was rigged imposed a greater strain on this topping-lift gear than what was imposed upon the gear.

    We said that when — you see, the evidence shows also and this was admitted by the defendant that if to the accident they — he went into the mast house and he found that the governor, the switch for the governor had thrown — had turned, that meant that the governor had gone off and had meant that at least more than six tons strain had already been imposed on the gear.

    How much more Judge Wortendyke said I don’t know but it was at least six.

    The strain on this part right here, Judge Wortendyke found, was somewhere between 17 and 21 tons.

    That’s what he said and spoke of it.

    Now, if this had been down to three, the evidence shows that in this position the — the strain upon this cable is many times what it is on this runner right here.

    Charles E. Whittaker:

    Now, would you tell us why that is — or would that have in this case, if the (Inaudible) has not been — this isn’t — has not — does not (Inaudible)?

    Abraham E. Freedman:

    Well, a combination, the trial judge found it was a combination of the repositioning of the boom with the improper rigging of these two lines plus —

    Who did that?

    Abraham E. Freedman:

    — plus the exact setting of the governor of the winch.

    Charles E. Whittaker:

    Well, who (Inaudible) position here?

    Abraham E. Freedman:

    The longshoreman.

    Charles E. Whittaker:

    Not to rigging?

    Abraham E. Freedman:

    Not to rigging, yes.

    Charles E. Whittaker:

    The (Inaudible).

    Abraham E. Freedman:

    At the ship.

    Abraham E. Freedman:

    That’s right, sir.

    They didn’t even know about that.

    Charles E. Whittaker:

    Now, on view of the provisions of (Inaudible)?

    Abraham E. Freedman:

    No, sir.

    They don’t — first of all, there’s no finding on that.

    There were no statistics on it.

    There’s no evidence on it so far as I know.

    The — the calculations which are in evidence are solely — are restricted to the angle of the boom as to the existence of how many aspects.

    What they would have been in the original position, we don’t know.

    In addition, I may say that the accident probably would have happened if the governor was at three tons, then it would have shut off before the strain got to any dangerous level.

    William J. Brennan, Jr.:

    I don’t follow that completely.

    Do you say that this work rate now, the strain on the topping-lift (Inaudible)?

    Abraham E. Freedman:

    That’s right, sir.

    William J. Brennan, Jr.:

    Now, why might that not have been developed even if the winch (Inaudible)?

    Abraham E. Freedman:

    Well, no Your Honor, it couldn’t have because the more of a strain that you put on this topping-lift disproportionately — the more of a strain is imposed — rather, the more of the strain you put on its runner, this is the runner, the more of a strain disproportionately goes up like something like income taxes on this — the topping-lift here.

    William J. Brennan, Jr.:

    I don’t — I don’t follow those — I think you’ve said there is a vagueness of the finding of unseaworthiness, dealing with the fact that the winch — the governor of the winch is set at six tons.

    Abraham E. Freedman:

    Yes, Your Honor.

    William J. Brennan, Jr.:

    Yet you say that the actual strain was (Inaudible) somewhere between 17 and 21?

    Abraham E. Freedman:

    That’s what — that’s what Judge Wortendyke found but he found also that the strain on this one, on this runner was an excess of six tons —

    William J. Brennan, Jr.:

    I still want to get back to the governor on the winch.

    Why — why wouldn’t — if it went off at six, what may have developed from the six to the 17 to 21 that wouldn’t have been developed from the 17 to 21 (Inaudible)?

    Abraham E. Freedman:

    Well, here’s the — here’s the point Your Honor.

    If we have — let’s read this mathematically.

    If we have a strain of three tons on this one, the — if we have strain — first of all, let’s take the calculations of Judge Wortendyke.

    He said there was more than a strain of six on this one, let’s take six.

    And then he said that there was a strain of 18 on this one.

    That means three times as much.

    Now, if we had reduced to its proper level, three.

    And this had been three on this runner right here and we would — the maximum that we would have gotten here would be nine, maximum nine, probably a little less because I said this increases disproportionately above.

    So that actually, the strain on this while it would’ve always have been more than the strain on this runner right here.

    Abraham E. Freedman:

    Nevertheless, it would have been within reasonable limits and wouldn’t have broke it.

    William J. Brennan, Jr.:

    That’s because you say, at three, the governor has been set forth at three.

    Abraham E. Freedman:

    The governor had been set — if had been set to go off at three, there wouldn’t have been anymore of a strain on here —

    William J. Brennan, Jr.:

    Than nine?

    Abraham E. Freedman:

    — than half of what it did go, that nine, and actually broke at 18, the 17 to 21 the judge found.

    Hugo L. Black:

    Did governors control the weight to be carried or something like that?

    Speed governor which controls speed in which you thought of?

    Abraham E. Freedman:

    Well, the evidence shows that as the — it’s controlled by the weight of the load being lifted.

    As the weight of the load increases — well, if — when the weight of the load exceeded six tons —

    Hugo L. Black:

    When it gets beyond safety.

    Abraham E. Freedman:

    It’s beyond safety.

    Yes, sir.

    Hugo L. Black:

    That’s unsafe so that governor will —

    Abraham E. Freedman:

    That’s put it into play.

    Yes, sir.

    Charles E. Whittaker:

    And if — it may make it a little difficult to follow (Inaudible)

    Abraham E. Freedman:

    Well, there’s been a lot of — there were a lot of terms used in the evidence.

    I used the term governor because it’s one which we sometimes know about on an automobile but I don’t responsibly be able to characterize it.

    The circuit breaker, you could — it’s been called a circuit breaker, a governor or cut off.

    But they all mean the same thing that is, that — as the load reaches a certain point, or exceeds a certain point it shut the power off in the winch.

    Hugo L. Black:

    When it gets beyond the weight of the manufacturer and said, “It’s safe on that,” the circuit breaker, it won’t do anymore, is that it?

    Abraham E. Freedman:

    That’s right, sir.

    The circuit breaker is supposed to stop it when it exceeds that level.

    And if you expose, I think from that point, I think this Court would find from — as a matter of judicial knowledge that if you exceed the safe, maximum workload of a particular cable, you’ll have an unseaworthy condition, you’ll have an unseaworthy device.

    Hugo L. Black:

    What kind of wire was that?

    Abraham E. Freedman:

    This — this wire was wire cable.

    All of it was wire cable except this guy right in here, (Voice Overlap) —

    Hugo L. Black:

    Is there any indication that the cable has broke or defective?

    Abraham E. Freedman:

    Well, they — the plaintiff in this case, libellant in this case contended that this — there was a sharp dispute whether this topping-lift here was defective.

    And in fact, produced a length of cable which was supposed to have been cut at the time of the accident but the ship produced another one but the Court believed the ships had the right cable — ship had the right cable and that the plaintiff did not have the right cable.

    Hugo L. Black:

    What (Inaudible) against him on that, so we must assume that this was a good cable?

    Abraham E. Freedman:

    That’s right.

    I have a —

    Hugo L. Black:

    No defect of any kind?

    Abraham E. Freedman:

    I have to take that assumption, sir.

    Felix Frankfurter:

    May I ask you this, Mr. Freedman.

    When you say that three is safe and therefore six exceeded the safety limit, what is the evidence that — on which that statement is based that three is the standard of the norm of safety rather than are conventional thing?

    Abraham E. Freedman:

    Well, sir, you have three-ton booms, you have 10-ton booms and each one is designed for a different operation.

    Now —

    Felix Frankfurter:

    I don’t want generality.

    I want — in this record, is there — what is — was there proof and findings based on proof that three really was the determination of safety —

    Abraham E. Freedman:

    If there’s —

    Felix Frankfurter:

    — it would affect that wire above.

    Abraham E. Freedman:

    There is stipulation in the record in fact, sir, that all of the gear was designed for three tons.

    Felix Frankfurter:

    The gear, two-three tons?

    Abraham E. Freedman:

    Gear and the boom, and the winch, in fact, and the winch.

    Felix Frankfurter:

    Well, they just — had been relying to a three-ton safety, is that right?

    Abraham E. Freedman:

    That — well that’s — that’s implicit in the stipulation that the —

    Felix Frankfurter:

    Is there then a stipulation?

    Where is that exactly?

    Abraham E. Freedman:

    Your Honor, we’ll find it right in the mid — right at the beginning of Judge Wortendyke’s opinion starting at about 14, sir.

    Felix Frankfurter:

    14?

    Abraham E. Freedman:

    16, sir, second paragraph, about one-third of the page down.

    At the commencement of the trial, the following facts were stipulated.

    One, the topping-lift which admittedly permitted the boom to pull had been rigged and installed following the launching of the vessel in June 1952.

    That was a year and a half before, and had not been replaced prior to the accident here involved.

    Two, the port up and down boom winch which has been operated at the time of the topping-lift cable quarter had also been installed following the launching of the vessel, had a rate of three times capacity with an 18 German horsepower.

    This winch was equipped with a device which automatically interrupted this operation upon the application of a burden exceeding the capacity of the winch.

    Now later on, we — we have the testimony of the captain himself who admitted that this governor, this circuit breaker and the winch was set at slightly more than six tons.

    Charles E. Whittaker:

    (Inaudible)

    Abraham E. Freedman:

    Sir —

    Charles E. Whittaker:

    (Inaudible)

    Abraham E. Freedman:

    There — there is a very — there is a point which they don’t permit — there is a post of regulation which came into the case in the Court of Appeals.

    There was — it was very vaguely referred to by the experts of the trial but never really introduced them to the evidence judicially or otherwise.

    And it says that in certain motors, it does not say winch, it just says in motors, certain motors that the circuit breaker maybe set in certain motors at 250% of current.

    Now, that does not say, sir, that it’s not over 100% overload of the loading method.

    And the evidence here shows that the circuit — this circuit breaker was set to go off when the load being lifted was more than six tons.

    Now the evidence also shows that even though it takes more current — it may take more current than an 100%, the lift recants, but whatever current they take, they should not impose more current than is required the lift to recant because the minute they go over the three-ton strain, they are testing the risk in the cable, exceeding at safe-workload capacity.

    William J. Brennan, Jr.:

    I don’t get this.

    If — if it takes more current than the three tons on the winch to lift three tons, then does it make it go off at some point higher than three tons?

    Abraham E. Freedman:

    Well, the — the testimony shows that in order to lift three tons, you’ve got to have something more than a 100% of current because if you just matched the current with the three tons, it won’t lift it.

    It’s — it’s like if you weigh a 100 and —

    William J. Brennan, Jr.:

    Theoretically affect you — cut the circuit breaker, (Voice Overlap) —

    Abraham E. Freedman:

    That’s right, sir.

    So you set that for circuit breaker, it’s lightly a high figured.

    Now I don’t know how much higher but the testimony in this case shows that whatever the current might have been in the winch, the captain himself says that it was said to go off after the workload exceeded six tons not current but six tons, that’s the testimony, over six tons.

    And where Judge Hastie went wrong was in assuming —

    William J. Brennan, Jr.:

    Excuse me.

    Abraham E. Freedman:

    Yes, sir.

    William J. Brennan, Jr.:

    Before we get — (Inaudible) with the power set at some surplus sufficient to raise a little more than six.

    In this respect, a circuit breaker could go off when the actual weight being lifted was something in — more than six tons.

    Abraham E. Freedman:

    Exactly, sir, exactly.

    And I can refer Your Honor to the testimony that you desire by the captain himself who is —

    William J. Brennan, Jr.:

    Don’t waste your time now but I would like to have that.

    Abraham E. Freedman:

    It’s in the brief, sir.

    As a matter of fact, Captain Peters, captain of the vessel who was there supervising the construction of the ship so testified.

    He knows — he know a great deal about it.

    He was perhaps obviously someone —

    William J. Brennan, Jr.:

    Let me ask one other thing.

    Abraham E. Freedman:

    Yes, sir.

    William J. Brennan, Jr.:

    Was there any testimony at all of what the opinion was on you that were — should have been above the amount of power so far as to raise this current?

    Abraham E. Freedman:

    You mean the excess currents?

    William J. Brennan, Jr.:

    Yes, (Inaudible).

    Abraham E. Freedman:

    It didn’t say — they didn’t relate to two.

    They did say — the respondent’s experts said that it takes more than a 100% of current to lift the — a weight of three tons.

    They have to have a little more than 100%.

    William J. Brennan, Jr.:

    If they’re 115?

    Abraham E. Freedman:

    Did not say that, no, sir.

    William J. Brennan, Jr.:

    Now what — what does it fix — fix on the way of translation?

    Abraham E. Freedman:

    We had nothing in the record to show it.

    But whatever the current that was required, the testimony is — does show that it was set at six tons and not at so much current.

    I had planned to take 30 minutes of my time from my original argument and I had not yet touched on my main point.

    I like to just —

    Potter Stewart:

    May I just ask you.

    Now, Mr. Freedman —

    Abraham E. Freedman:

    Yes, sir.

    Potter Stewart:

    — is there any evidence at all as to what the weight of the — of these logs were, these boards were?

    Abraham E. Freedman:

    Well, there’s no specific evidence sir, except that the — to take the findings of Judge Wortendyke as we must, the pole, the strain on the logs, I would say exceeded considerably the weight of the logs themselves, the strain when they were caught underneath the coaming, underneath this — this court right here.

    So that actually, if — if the governor had been set properly, it would have shut the current off before it exceeded the proper —

    Potter Stewart:

    Is there any suggestion at all in the case that the cargo being lifted from the hole exceeded three tons, (a) three tons or (b), six tons?

    Abraham E. Freedman:

    Oh, yes.

    Yes, sir.

    As a matter of fact, the first mate admitted that after the accident happened, he went down and he looked on the mast out here and he found that the switch had been thrown.

    That isn’t meant that the governor had shut off and that meant that the weight of the load —

    Potter Stewart:

    At the time that the weight (Voice Overlap) —

    Abraham E. Freedman:

    — that the weight of the load had exceeded six tons.

    (Inaudible)

    Abraham E. Freedman:

    Well, that’s the pole, sir.

    Potter Stewart:

    No, it’s —

    William J. Brennan, Jr.:

    He asked to the pole —

    Abraham E. Freedman:

    Oh, oh —

    William J. Brennan, Jr.:

    — the timber was caught underneath.

    Abraham E. Freedman:

    The timber was caught underneath, so that we have no way of determining at that point how much the weight of the timber was.

    As I said, the —

    William J. Brennan, Jr.:

    Well, the weight of the timber was still quite it was (Voice Overlap) —

    Abraham E. Freedman:

    Yes, sir.

    William J. Brennan, Jr.:

    It was like, about three tons?

    Abraham E. Freedman:

    Well, I would say it would be very close to it, sir.

    Potter Stewart:

    Well, when did the record —

    Close to what?

    Potter Stewart:

    — show if anything?

    Abraham E. Freedman:

    The record does not show that, sir.

    Close to what?

    Abraham E. Freedman:

    Close to the three tons.

    I would assume that the — taking two logs, the logs were 8×10 or 12×12 and they were 35 feet long.

    That’s a pretty good lot of weight.

    Felix Frankfurter:

    There wasn’t a record on the ship as to the weight of the — to the summit of —

    Abraham E. Freedman:

    It is not in evidence, sir.

    I’m — I’m just speculating on that sir.

    William J. Brennan, Jr.:

    Well actually though, the — the pressures that Judge Wortendyke was talking about would give the application of the power to the runner and assigned when the lumber would have caught the coaming, was that it?

    Abraham E. Freedman:

    That’s right.

    And he said the weight, you see, the governor is put into operation by the weight of the load being lifted which is the pole here.

    Now, as soon as this thing arrived in a strain, if it has been set at three tons, soon as it — they got the three tons, it would have shut off the — shut the motor off as it was and exceeded six tons which meant that the strain on this topping-lift was building up disproportionately high.

    And if it had been set at the original three tons —

    William J. Brennan, Jr.:

    Yes, but the strain with the application of the power to a runner which was fine to lift log from the court to this coaming.

    Abraham E. Freedman:

    Yes, sir Your Honor.

    That’s exactly right, sir.

    And as I said, the judge — there were two factors which Judge Wortendyke found were the course of the accident.

    One was the improper positioning of these two guys, plus the unseaworthy winch as they called it.

    Now, —

    Would you care to comment (Inaudible)

    Abraham E. Freedman:

    118, sir.

    113, (Inaudible)

    Abraham E. Freedman:

    Oh, yes.

    If Your Honor will — will read it, we’ll refer to this part.

    (Inaudible) — a proper — a proper finding of negligence — negligence of the (Inaudible) according to the Supreme Court, the sole active and primary cause of the parting of the gear.

    I think it goes on to say that (Inaudible) unseaworthiness but in order to find — to bring it unsearworthy in this case, if the other side something wrong with the gear.

    Then he goes on to say that the setting, the cut off, at six tons does not (Inaudible) the vessel unseaworthy unless there was reason to appear that it’s strained in about six ton here which would activate the cut off device, subject cable 15-ton capacity in the topping-lift (Inaudible).

    Abraham E. Freedman:

    Yes.

    William J. Brennan, Jr.:

    (Inaudible)

    Abraham E. Freedman:

    This is Judge Hastie’s opinion but the conflict was Judge Wortendyke.

    He says 15 tons capacity and again immediately, the sentence — immediately proceeding says, thus gear rated to handle a three ton load, utilizes cable adequate to withstand a strain of 15 tons and that’s not corrected.

    It’s disputed by every witness in the case including the respondent.

    It’s not adequate to withstand a strain of 15 tons.

    At 15 tons, we know that that cable is going to break.

    If the — the test on the cable shows that it’s supposed to break at 15 tons, maybe or less.

    Now, actually when the manufacturer manufactures any product, a cable or any kind of a product, and he puts a safe workload on it whether it’s a grinding wheel, he says it shouldn’t go faster than then so many revolutions and so on.

    The minute you get above that safe workload and thought to deteriorate to the point where it ultimately breaks and just like if I were to take this stick and start bending it as I am now, it would reach a point, if I go beyond the point that I have it right now, it would actually start to crack.

    It would be irreversible damage.

    The next time we use this stick, it would not have the same capacity that it has right now.

    But now Judge Hastie said that when you get to the 15 tons, it can withstand the strain of 15 tons.

    That’s absolutely wrong.

    William O. Douglas:

    That’s irrelevant in this — as to the matter of this — whether it’s (Inaudible)

    The question I’m putting on to you is the negligent (Inaudible)

    Abraham E. Freedman:

    It’s a —

    William O. Douglas:

    It’s the question I tried to get you answer earlier, with several injuries.

    Abraham E. Freedman:

    Probably, I — (Inaudible) I tried.

    Well, the point is that the minute you get over the three tons, you start testing the rest because you don’t know at what point that cable is going to be kept at right.

    Judge Wortendyke therefore found it was an unseaworthy condition.

    Felix Frankfurter:

    Mr. Freedman, if I’m not interrupting you, you said all the evidence is clear that the strain on the lateral would be what — would — that the wire would snap.

    Felix Frankfurter:

    Now, Judge Hastie says there’s nothing in this record which suggests that such an eventuality was reasonably to be feared or anticipated.

    Are you saying that that is a misreading or a failure to read the record?

    Abraham E. Freedman:

    I would say that Judge Hastie took a — as he called a mathematical calculation which was clearly erroneous and in direct conflict with Judge Wortendyke’s finding.

    Felix Frankfurter:

    But I don’t care about Judge Wortendyke’s finding.

    I mean, I do care but for the moment, I’m talking about what the record, not the finding.

    Abraham E. Freedman:

    The record will not sustain that, sir.

    Felix Frankfurter:

    There is nothing in this record going on to a sentence beyond which Mr. Justice Harlan did, saying it would subject — which would — if only there was reason for fear that a strain of above six tons on the running gear which would activate the cut off would subject a cable of 15-ton capacity in the topping-lift to a dangerous strain.

    Your argument is — that it is subjective to a dangerous strain.

    Abraham E. Freedman:

    Yes, sir.

    Yes, Your Honor.

    Felix Frankfurter:

    Or Judge Hastie goes on to say there is nothing in this record and by record, I mean testimony.

    In this record, I don’t mean to be disrespectful.

    The Lord knows about this, wouldn’t he?

    Would suggest that such an eventuality was reasonably to be feared or anticipated?

    Abraham E. Freedman:

    Well, that’s where he’s wrong and for this reason —

    Felix Frankfurter:

    You mean, the record — the record doesn’t — it contradicts that statement.

    Abraham E. Freedman:

    Well, it — yes sir, absolutely and here his word contradicts it.

    The record says that the cable at 15 tons would break that nothing had had the capacity to withstand the strain of 15 tons.

    The record says that it did not have a capacity of 15 tons.

    That’s the breaking point, the record says and I said it forth at least from every witness, I’ve said it forth on my brief, every witness says that the breaking point is 15 tons.

    Now, Judge Hastie —

    Well, excuse me.

    Could you point these findings (Inaudible) these findings of Judge Wortendyke which you (Inaudible) Judge Hastie’s?

    Abraham E. Freedman:

    Well, my point is that Judge Hastie’s statement is based on the premise that this cable had a weight working capacity of 15 tons.

    That is — that’s argued.

    Is there a finding of Judge Wortendyke in which you find the strain of 15 tons?

    Abraham E. Freedman:

    Yes, Your Honor.

    On page — on page 30, I think it’s 30 and 31.

    (Inaudible)

    Abraham E. Freedman:

    Here’s what Judge Wortendyke said at the bottom of page 31.

    Abraham E. Freedman:

    I may — as a matter of fact on page 30, Judge Wortendyke also makes a very pertinent observation when he says — after he talks about what Mr. Justice Brennan said before was the continued application of the power.

    He says that it was the continued application of the power which caused this topping-lift to break.

    Then, he goes on to say and I may say that my friend says that Judge Wortendyke found — made that statement and made that finding out of the course of the accident, but that’s not so at all because here’s what Judge Wortendyke says starting at the middle of page 30.

    Immediately after he talks about that — the winchman’s continued application.

    He says, “The question immediately arises.

    Why did the power running through the winch failed to shut off automatically if and when an excessive load was built up as above concluded?

    Assuming the respective dimensions of safe working loads of the respective components of the gear, the positions of the courtroom and its preventer and guy, the direction of the cargo runner extending from the boom heads to the sling around the two timbers and the obstruction by the lower edge of the standard hatch coaming to the movement into the hatch square of the offshore timber.

    Respondent’s witness Stuart, and he goes on to talk about the amount of pounds that were calculated by the Stuart — by the witness Stuart at about 21 tons.

    And then he says it is apparent therefore that the topping-lift quarter under a stain of between 17 and 21 tons, several times the safe workload of the topping-lift and the other components.

    Now, going down — back down to the bottom of page 31, the last paragraph, the witness cited that what ultimately shuts the current off is the resistance to the horsepower of the motor to be found in the load which is being lifted.

    There was testimony uncontradicted that after the boom had had fallen, bust under — to operate the winch, noticed the cut off device have functioned through a switch necessary to restore current flow and then demonstrated that the winch operated perfectly.

    The cut off device was susceptible of being so adjusted as to operate automatically at different degrees of excess load on the gear.

    In this case apparently, the device was set to function at a much lighter load than was imposed upon the gear although it was set to operate at a load slightly more than twice the safe work load of the topping-lift.

    Now, my opinion that —

    Then he goes on at page 32 to say, (Inaudible) the primary cause of the (Inaudible).

    Abraham E. Freedman:

    Now, if Your Honor will —

    (Inaudible)

    Abraham E. Freedman:

    Yes.

    Now, if Your Honor will read the last sentence on page 33, the last sentence.

    Can I find the details?

    Abraham E. Freedman:

    Yes, sir, that’s the one.

    I find that it failed to exercise that degree of care and that as a result thereof, have broaden to play the unseaworthy condition of the vessel and there he’s talking about the governor on the winch, the excess level on the winch for which the latter would be liable in damages under the principles annunciated to a court Sieracki and the other cases.

    Earl Warren:

    Mr. Freedman, we’ve asked you so many questions.

    I’m sure you haven’t had the chance to sum up but you may have five minutes more although your time is up.

    You may take it now or to take it in rebuttal just as you please.

    Abraham E. Freedman:

    I — I think I would prefer to take in rebuttal, sir.

    Earl Warren:

    You — you may and — and other counsel may have five minutes in addition also.

    Abraham E. Freedman:

    Thank you, sir.

    Earl Warren:

    Mr. Cichanowicz.

    Victor S. Cichanowicz:

    If it please the Court.

    Victor S. Cichanowicz:

    So much has been said about the cut-off and about the shipping of the topping-lift that sort of beclouds the issues as to actually why this topping-lift broke.

    I’d like to point out that initially when the vessel, when the longshoreman came on board, this boom was over the square of the hatch and for a period of one hour —

    (Inaudible)

    Victor S. Cichanowicz:

    I’m sorry.

    William J. Brennan, Jr.:

    Oh, the square over that (Inaudible) —

    Victor S. Cichanowicz:

    I’m sorry.

    This boom (Voice Overlap) —

    (Inaudible)

    Was the (Inaudible) was over the square of the hatch, meaning on the hole?

    Victor S. Cichanowicz:

    Over the hole.

    That’s right.

    Now for a period of one hour the longshoreman discharged timbers with no problem whatsoever.

    They were taking lumber there was in this square of the hatch.

    Now, shortly before this accident occurred, the longshoreman then switch this boom which was positioned in this way over to the position that it’s indicated on this model now.

    Evidently, the purpose was to getting more lateral poles so that they could remove timbers that were underneath this part of the deck port ward in the wings of the vessel.

    And the first timbers that they sought to remove were the timbers that were involved in the accident.

    One timber was in the square of the hatch.

    The other timber was underneath.

    The longshoreman took a sling which is a piece of wire with an eye at each end.

    And before they did that, they lifted the timbers up with a crowbar and inserted the sling around it, and then attached the sling to this hook that is on the runners here.

    And then they started to pull and they kept on pulling, and actually what happened is — I can demonstrate here.

    They kept on doing that.

    In other words, they were trying to pull the ship apart.

    When they did that, as they did that, something broke, something had to break.

    In this case, the topping-lift broke.

    This would cause the accident.

    It’s not a question of the shifting of the boom.

    It’s true the Court of Appeals and the District Court both have referred to the shifting of the boom.

    They’ve also referred — the District Court has referred to the cut off, that I will deal with later.

    But this accident never would have happened if the longshoreman have not, as the District Court found, it said the proximate cause or the sole act and primary cause of this accident was the continued application of power to the winch by the longshoreman after the timber had become, in fact, or after the movement of the timber had become effectively blocked.

    Victor S. Cichanowicz:

    That is what caused this accident.

    William J. Brennan, Jr.:

    That might have happened even without the shifting here.

    Victor S. Cichanowicz:

    That’s right Your Honor.

    I say that it would have made no difference whether the boom was shifted or not shifted.

    When you continue applying power, something has got to give.

    In this case, the topping-lift broke.

    The runner might have broken.

    Nobody can tell what may have happened.

    Now, insofar as the cut off —

    Earl Warren:

    Is that — is that the reason that that cut off should have come before —

    Victor S. Cichanowicz:

    No.

    Earl Warren:

    — that much power was applied?

    Victor S. Cichanowicz:

    No, Your Honor.

    May I — now, I’d like you to refer to the cut off.

    Earl Warren:

    (Voice Overlap) — you come to that later.

    Victor S. Cichanowicz:

    I’m sorry.

    Earl Warren:

    Take your time.

    Victor S. Cichanowicz:

    The reference to the cut off.

    Counsel has been talking about this device as a governor.

    It is not a governor.

    This device is put into the — as they call it mast blocker which is away from all of the equipment.

    The — the equipment, the winches are forward here.

    And that is a device which is on the cables or wires furnishing the current to the electric motors.

    And the sole purpose of that and this is the only testimony in the case on what the purpose of that was and that was to prevent an overload of current so that the motors would not burn out.

    That is the sole purpose.

    Earl Warren:

    It wasn’t a —

    Victor S. Cichanowicz:

    Now —

    Earl Warren:

    — safety factory.

    Victor S. Cichanowicz:

    — it had nothing to do with regulating the load.

    Counsel talks about it.

    Victor S. Cichanowicz:

    There’s been a lot of talk about it that this is what I would say a load limiting device.

    It had nothing to do with limiting the load.

    The longshoreman didn’t even know that it was there.

    Felix Frankfurter:

    You say — you said a minute ago that the sole evidence on that subject bears out the statement you’ve just made.

    Is that right?

    Victor S. Cichanowicz:

    That is right.

    There was one —

    Felix Frankfurter:

    Would you mind referring to it?

    Victor S. Cichanowicz:

    There was one witness, (Inaudible) here who talks about —

    Felix Frankfurter:

    We’ll do it later.

    It’ll hold you up.

    Victor S. Cichanowicz:

    He was — he was an expert on —

    Felix Frankfurter:

    Do you say that the — the only witness, you say the only testimony in the record on the function of this so-called governor or cut off or circuit breaker has to do with —

    Victor S. Cichanowicz:

    (Voice Overlap) —

    Felix Frankfurter:

    — with the load of the electricity and had nothing to do with the — with limiting the load.

    Victor S. Cichanowicz:

    That is right.

    This expert on the chief maid also testifies because we had some problem.

    These were German witnesses.

    And in fact, that is the reason why the captain’s testimony may prove a little fuzzy and not clear.

    Felix Frankfurter:

    Was this through a translator or — was this through a translator or difficult English?

    Victor S. Cichanowicz:

    It was through a translator but I understand it was considerable difficulty because of the dialects that were spoken.

    Tomorrow morning, could you pinpoint those two (Inaudible)

    Victor S. Cichanowicz:

    I will, sir.

    Yes.

    William J. Brennan, Jr.:

    Now, before you — can I ask this one first.

    After the cut off (Inaudible) continued application of power (Inaudible)

    Victor S. Cichanowicz:

    No, once it — once the — once it — this cuts the current off then it’s necessary to go back into the mast house and all you do is — there is a button there that you push which restores the current.

    William J. Brennan, Jr.:

    (Voice Overlap) — after trial, how was it, let’s assume the cut off power was still applied with a certain pressure on that stacked — no, stacked log under the (Inaudible)

    Victor S. Cichanowicz:

    Well, apparently —

    William J. Brennan, Jr.:

    It would (Voice Overlap) —

    Victor S. Cichanowicz:

    Yes.

    William J. Brennan, Jr.:

    He pulled that?

    Victor S. Cichanowicz:

    Yes.

    William J. Brennan, Jr.:

    He pulled that thing — it would show us what happened?

    Victor S. Cichanowicz:

    That’s right.

    Yes, I do.

    William J. Brennan, Jr.:

    I gather that the — once you give it the application of electric power —

    Victor S. Cichanowicz:

    Well, that’s correct, sir.

    William J. Brennan, Jr.:

    — as a matter of fact.

    Is that right?

    Victor S. Cichanowicz:

    That’s right.

    Yes.

    William J. Brennan, Jr.:

    Well, now, if one — what point did the electric power go out?

    Victor S. Cichanowicz:

    Well, the electric power would go out when the load current reaches — I mean, the difficulty is — as I think the — the Court of Appeals pointed out was that we were trying to relay the electrical to mechanical problems.

    In other words, the load — full load current was equivalent to about a little better six-ton.

    Now, I will explain why it was six-ton.

    Aside from this Coast Guard regulation regarding which two of the witnesses testified.

    Most — a witness Simon who was produced by the impleaded respondent testified that there was a —

    William J. Brennan, Jr.:

    — I don’t want to miss that point in here but I still —

    Victor S. Cichanowicz:

    Yes.

    William J. Brennan, Jr.:

    — don’t follow.

    How is it that there were these pressures with 17 to 21, whatever it was, applied in the cut off (Inaudible)

    I don’t follow that.

    Victor S. Cichanowicz:

    Well, the question is — and may I say this.

    The Court said it was 17 to 21.

    I say that it probably was even more than that because what happened is this.

    Charles E. Whittaker:

    Well, may I say I did not (Inaudible) to say that the cut off is not off the runner?

    Victor S. Cichanowicz:

    Oh, no, it isn’t.

    Its laid — it’s laid off here and only controls the current to the motor —

    Charles E. Whittaker:

    (Voice Overlap)

    Victor S. Cichanowicz:

    — and the power from the motor which tends to transfer it to the winch —

    Charles E. Whittaker:

    But —

    Victor S. Cichanowicz:

    — so that —

    Charles E. Whittaker:

    Was that in effect that the winch is only on the runner?

    If that is (Inaudible).

    Victor S. Cichanowicz:

    Not necessarily.

    Maybe I can demonstrate what I —

    William J. Brennan, Jr.:

    I thought —

    Victor S. Cichanowicz:

    I’m going to —

    William J. Brennan, Jr.:

    (Inaudible)

    Victor S. Cichanowicz:

    Well —

    William J. Brennan, Jr.:

    — if someone were to clear the (Inaudible)

    Victor S. Cichanowicz:

    Well, let me say this that —

    Felix Frankfurter:

    A little while ago as Justice Brennan was referring to, you pulled a rope there and showed how the — how the accident, the injuries, the incident occurred, didn’t you?

    Victor S. Cichanowicz:

    That’s right.

    Yes.

    Felix Frankfurter:

    Now, when you pulled the rope, it wasn’t a rope that was pulled that brought about the incident, was it?

    Victor S. Cichanowicz:

    No.

    Felix Frankfurter:

    What did bring it about?

    Victor S. Cichanowicz:

    It was the runner which was on the winch that was being powered by the electric motors.

    Felix Frankfurter:

    Yes.

    Now, the question had bother some of us is, if there had been cut off, why wouldn’t that pressure not had been wanting, why would there not have been an absence of that pressure.

    Victor S. Cichanowicz:

    Well, there the cut off — the reason is that the cut off was set to take here of inertia and other things.

    That’s why it was set up here.

    But — I can — the reason that you had all this power built up, maybe this will answer the question is this.

    If all that we were doing was lifting up a three-ton load, we would have to exert three tons plus pressure to raise this.

    Now, what happens is when this is caught, this is what happens, you’re exerting and this is in the calculation.

    These are the mathematical calculations that Judge Hastie speaks about.

    When you start pulling on this, you had three tons but this is also — this is not moving.

    This is what’s building all this — actually, the computations are they just put three tons here and three tons here, three tons being caught here.

    Victor S. Cichanowicz:

    You’ve got something like five and a half tons of full right here in the head of the boom.

    That’s why when you start talking about the cut off, this whole thing is throwing out completely when you’ve got a load caught in here because you no longer lifting a three-ton load.

    You’re not lifting a six-ton load.

    You’ve got a tremendous amount of power built up right in here —

    Potter Stewart:

    You also have the —

    Victor S. Cichanowicz:

    — and that what caused this to break.

    Potter Stewart:

    You also have the weight of the boom on the topping-lift —

    Victor S. Cichanowicz:

    That’s right.

    Well, now —

    Potter Stewart:

    — which is not on the runner.

    Charles E. Whittaker:

    (Inaudible) and the cut off worked at fixed (Inaudible) that is right off the topping-lift which caused it to break.

    Victor S. Cichanowicz:

    That’s right.

    Actually —

    Charles E. Whittaker:

    (Inaudible)

    Victor S. Cichanowicz:

    Actually Your Honor, I — the computation was — I’m sorry.

    The difference in the computation was that this was just three tons in here.

    That’s exactly why, we just demonstrated it.

    In other words, three and three, this is sought.

    It wasn’t six tons.

    Charles E. Whittaker:

    That was — it found that two times the normal load, it were for six tons (Inaudible), is that it?

    Victor S. Cichanowicz:

    That’s right.

    Yes.

    Charles E. Whittaker:

    Six tons on the runner (Inaudible) the trial court finds, (Inaudible) that on the topping-lift which caused this to break.

    Victor S. Cichanowicz:

    That’s right.

    Charles E. Whittaker:

    (Inaudible) just like that.

    Victor S. Cichanowicz:

    That’s right.

    Charles E. Whittaker:

    And that caused — led to two things.

    He says, “One, by — in repositioning of the portside boom.

    That boom was over to (Inaudible) portside.

    And second, by pulling against (Inaudible) it was lodged on the coaming.

    Victor S. Cichanowicz:

    That’s right.

    Charles E. Whittaker:

    (Voice Overlap)

    Victor S. Cichanowicz:

    That’s right except — may I — the positioning of this though, there’s got to be a condition where this is going to — where it will break because you’re lifting along through the portside.

    That changes the components of forces that you get when you have a strain in operation.

    I agree.

    That’s — in other words, the forces that are exerted on this topping-lift with the boom shifted in that position, pulling in this way was greater than if — than they are when the boom —

    Charles E. Whittaker:

    Was directly over the hatch.

    Victor S. Cichanowicz:

    Is directly over the hatch.

    It doesn’t change but still, it’s not an unseaworthy condition because this is —

    Charles E. Whittaker:

    Not (Inaudible)

    Victor S. Cichanowicz:

    This is what causes the all of the strain.

    Charles E. Whittaker:

    My question is, because they conceived — applied the pressure against this timber after the timber was (Inaudible)

    Victor S. Cichanowicz:

    Exactly.

    Could I make or understand that on (Inaudible) as I understand what you’re saying and Justice Brennan’s question about it makes no (Inaudible).

    If I understand you now and correct me, you say, the cut off at six tons, current stop, is not at the same time cut off the strain that has been already created (Inaudible) whatever it is on this boom, is that it?

    And that it, (Voice Overlap) —

    Victor S. Cichanowicz:

    Well, it cut off around — it cut off around there but you see, the forces then began to multiply in here.

    I don’t care about —

    Victor S. Cichanowicz:

    In other words —

    — multiplication.

    But the point is, the stopping of the — stopping of the current does not stop this — does not cut off the strain on the boom that’s already been created, whatever.

    Victor S. Cichanowicz:

    No.

    Is that — is that what this all comes down to and as to Justice Brennan’s question?

    Victor S. Cichanowicz:

    I believe so.

    I’m — I’m a little hazy on —

    William J. Brennan, Jr.:

    (Inaudible) — what the cable under which has already (Inaudible) —

    Victor S. Cichanowicz:

    Yes, sir.

    William J. Brennan, Jr.:

    — at the time of the cut off?

    And there, whatever the strain is, the time of the cut off which stays there because you’ve got the timbers stuck into the coaming and the whole thing has been pulled tightly together for the winch — for the timber, is that it?

    Victor S. Cichanowicz:

    Well, at — at the time of the — at the — if — when the cut off went off, it means that a certain amount of pressure was built up at that time.

    William J. Brennan, Jr.:

    That point.

    And that’s —

    Victor S. Cichanowicz:

    That’s right.

    William J. Brennan, Jr.:

    — because whatever is on the winch, the cable off the winch stays there.

    Victor S. Cichanowicz:

    That’s right.

    Yes, because it’s caught underneath.

    William J. Brennan, Jr.:

    That’s right.

    Hugo L. Black:

    Now let me ask you.

    I — I can’t get it here either.

    Maybe this is wholly wrong as to the question.

    Supposed just before this reached the point where it actually broke, and we’ll assume it hasn’t broken.

    It reached the point though where (Inaudible), suppose that he cut it off, would it have broke?

    Victor S. Cichanowicz:

    No.

    Hugo L. Black:

    It wouldn’t?

    Victor S. Cichanowicz:

    No, it would not have.

    May I say this — that we have here two methods by which this could have been shut off.

    In fact, those are the methods by which it should have been set off.

    There was lever.

    The longshoreman was operating this with a lever.

    He pushed it — I believe forward from himself it would raise, if he put it in the middle, it’s neutral, if he pulls it back, it would lower.

    He had that.

    He also had a switch.

    It was shown to him when he started working.

    Here’s a switch that you can turn off this operation.

    Charles E. Whittaker:

    You’re talking about the winch operater?

    Victor S. Cichanowicz:

    The winch operator himself.

    In other words, in this situation, here’s a man standing down and he keeps on operating this winch and continuing to apply the pressure.

    And now — which the trial court and the parties coming here and say, “But the cut off should’ve cut off.

    This is the man who should have turned this thing off.

    He had them where with all which to do it.

    Hugo L. Black:

    (Voice Overlap) — if it had been cut off back there, that there’d been a safety.

    That thing had functioned before it reached the breaking point, it wouldn’t have broken, would it?

    Victor S. Cichanowicz:

    That’s right, it wouldn’t have broken.

    But the fact is this, Your Honor, that there’s testimony in this case which is uncontradicted that — by two experts that the setting of a cut off such as this is proper at 250% of the — a full load current.

    In other words, 250% of three tons which was the safe working load of this equipment.

    I might point out that on each of these booms, it was marked three tons, which means that you can.

    This it’s international practice.

    You can’t lift more than three tons.

    That’s what guides this longshoreman in the loads that they lift.

    It’s not a governor or cut off on the equipment.

    Hugo L. Black:

    That’s a different point you’re saying.

    Now, you’re saying that even though the cut off wasn’t fixed that it worked, had restricted the other place but that was proper.

    Victor S. Cichanowicz:

    It was proper because —

    Hugo L. Black:

    But you do not deny — you do not deny that it had been limited to the point of safety there, so it cut off before it reach the breaking point, then it wouldn’t have broken.

    Victor S. Cichanowicz:

    Well, it wouldn’t have broken.

    The only thing is then you would never be able to lift your loads because you’ve got inertia, you’ve got the operation problems and all.

    You’ve got to have it at some point.

    You never could lift a three ton load with three tons with a cut off at three tons.

    And the practice evidently, the standard practice is, it’s shown that you’ve got this — you can set it up to 250% of the safe working load and that’s what we — we have less than 200 —

    Hugo L. Black:

    What you’re saying is that they could — they could put on two and a half tons more weight than this, it was marked being safe to operate?

    Victor S. Cichanowicz:

    Oh, no.

    No.

    That’s not it.

    You — in other words — you’ve got to — in order to lift the load, that’s — that’s where the problem comes in.

    In order to lift the load here of three tons, you certainly have to have more than three tons pulling power to raise it.

    And in this case, the practice, standard practice is, the Coast Guard regulation says that a maximum setting is 250% of the safe working load because you have to remember here, we have what is known as a instantaneous type or instantaneous electromagnetic cut off.

    In other words, what happens is this.

    As soon as the current reaches a certain point, the whole thing cuts out.

    There is, in fact, this testimony by one of the witnesses which I think possibly have — may have misled Judge Wortendyke in thinking that this should have been set at some other point.

    One of the witnesses testified about a thermal relay which works in this instance.

    Victor S. Cichanowicz:

    You — there is a setting.

    But when that’s — point is — when that setting is reached then heat is built up.

    And then when the heat reaches a certain point then it goes off.

    Now, the Coast Guard regulation here says, 250%.

    I don’t see how we can be wrong in having it said within that regulation.

    I don’t think its —

    Earl Warren:

    We’ll recess now, Mr. Cichanowicz.

    Victor S. Cichanowicz:

    Thank you.