CRUMADY v. THE J. H. FISSER

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Argument of Abraham E. Freedman

Chief Justice Earl Warren: Number 61, John Crumady, Petitioner, versus Joachim Hendrik Fisser et al.

Mr. Freedman, you may proceed.

Mr. 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.

Justice Felix Frankfurter: And will you -- and will you for the sake of a land lover, translate technical sea -- water terms into English.

Mr. Abraham E. Freedman: I will certainly be glad to do so, sir.

Justice Hugo L. Black: You said this boom, which is that?

Mr. 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.

Justice Felix Frankfurter: I -- I know at least that much.

Mr. 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.

Justice Felix Frankfurter: Is the runner the black part?

Mr. Abraham E. Freedman: This part right here.

Justice Felix Frankfurter: The black part or the whole?

Mr. Abraham E. Freedman: Well, the whole of it.

Justice Felix Frankfurter: The whole.

All right, all right.

Mr. Abraham E. Freedman: This -- this one here at the right.

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

Justice Felix Frankfurter: Yes.

Mr. 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 --

Justice Potter Stewart: Not athwartship.

Mr. Abraham E. Freedman: Sir?

Justice Potter Stewart: That's athwartships.

Mr. Abraham E. Freedman: Athwart -- straight opposite, sir.

Athwartship means across while --

Unknown Speaker: (Inaudible)

Mr. Abraham E. Freedman: -- longitudinal -- I'm sorry, sir.

Justice William J. Brennan: You have to teach Justice Frankfurter here, (Inaudible)

Justice Charles E. Whittaker: Mr. Freedman.

Mr. Abraham E. Freedman: Yes, sir.

Justice Charles E. Whittaker: How did you go about (Inaudible)

Mr. 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.

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) --

Justice 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?

Mr. 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.

Justice 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?

Mr. Abraham E. Freedman: Well --

Justice Felix Frankfurter: If you tell me that's out of order or -- I'd accept your word for that.

Mr. Abraham E. Freedman: I -- I think that it is -- first of all, irrelevant --

Justice Felix Frankfurter: All right.

Mr. Abraham E. Freedman: -- because -- because what it was at that moment --

Justice 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?

Mr. 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 --

Justice Felix Frankfurter: I understand.

Mr. Abraham E. Freedman: -- vessel but also to maintain it.

This Court said that in Mahnich versus Southern Steamship --

Justice Felix Frankfurter: But I'm not --

Mr. Abraham E. Freedman: -- to keep it in order throughout the entire (Inaudible) --

Justice Felix Frankfurter: But I just want to go step by step.

One step are all enough for me.

Mr. 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.

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 --

Justice Felix Frankfurter: Is it none of your concern?

Mr. Abraham E. Freedman: Sir, I take the evidence -- I take the findings of the trial judge.

Justice Felix Frankfurter: Is it none of your concern, indemnity, is it?

Indemnity problem is none of your concern?

Mr. Abraham E. Freedman: No, sir.

Justice Felix Frankfurter: All right.

Mr. Abraham E. Freedman: No sir.

And therefore --

Justice 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.

Mr. Abraham E. Freedman: Yes, sir, Your Honor.

After the longshore --

Justice Hugo L. Black: If it's on the virtue or the (Inaudible).

Mr. Abraham E. Freedman: Yes, sir.

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

Justice Hugo L. Black: You mean that, that boom?

Mr. Abraham E. Freedman: Sir?

Justice Hugo L. Black: You mean, what you're pointing at --

Mr. Abraham E. Freedman: This one which this Court (Voice Overlap) --

Justice Hugo L. Black: -- that stay?

Mr. Abraham E. Freedman: -- right here.

Yes, sir, Your Honor.

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

Justice Hugo L. Black: Moved it down?

Mr. Abraham E. Freedman: Moved -- not down, just across.

They didn't change the angle.

They just moved it over.

Justice William J. Brennan: How do you do that?

Mr. 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.

Justice William J. Brennan: Now, what they do?

Loosen that boom?

Mr. 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.

Justice William J. Brennan: Swung it over which way?

Mr. Abraham E. Freedman: Swing it over to support to the left side.

Justice Hugo L. Black: That's what was done here?

Justice William J. Brennan: (Voice Overlap) --

Mr. Abraham E. Freedman: That's what was done here.

Justice Hugo L. Black: And got over here, then what happened?

Mr. 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.

Justice 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?

Mr. Abraham E. Freedman: The longshore --

Justice Hugo L. Black: Where was he when he got hurt?

Mr. Abraham E. Freedman: The longshoreman was in the hatch here.

Justice Hugo L. Black: In the hole?

Mr. Abraham E. Freedman: Yes, sir.

Justice Hugo L. Black: All right.

Mr. 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 --

Justice Hugo L. Black: Then it was rigging it, was on that boom?

Mr. 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.

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.

Justice Hugo L. Black: The boom is -- it got hit by the boom.

Mr. Abraham E. Freedman: That's right, sir.

Lower the boom sir.

Justice Hugo L. Black: But it wasn't -- wasn't here to be lowered.

It broke.

Mr. Abraham E. Freedman: It broke, sir.

Justice William J. Brennan: Now, what do you call the top of it and that's the cable, right?

Mr. Abraham E. Freedman: That's right, sir.

Justice William J. Brennan: Now, what was the cable, core or?

Mr. Abraham E. Freedman: That's a wire, wire --

Justice William J. Brennan: (Inaudible)

Mr. Abraham E. Freedman: -- (Inaudible) steel --

Justice William J. Brennan: (Inaudible)

Mr. 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.

Justice Felix Frankfurter: Well now, did the wire -- rope break because the boom was too port ward?

Mr. 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 --

Justice Hugo L. Black: Governor of the winch.

Mr. Abraham E. Freedman: Sir?

Justice Hugo L. Black: Governor of the winch.

Mr. Abraham E. Freedman: The governor and the winch.

Justice Hugo L. Black: The governor and the winch or?

Mr. Abraham E. Freedman: The governor inside the winch.

The governor which regulated --

Justice Hugo L. Black: (Voice Overlap)

Mr. 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.

Justice Felix Frankfurter: Well now, may I break in there?

Mr. Abraham E. Freedman: Yes, sir.

Justice 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?

Mr. Abraham E. Freedman: The opinion doesn't say exactly where it was before, sir.

I think --

Justice Charles E. Whittaker: (Inaudible) the Nacirema changed it from (Inaudible)

Mr. Abraham E. Freedman: I think that the evidence shows that Nacirema did change it.

Unknown Speaker: The Court --

Justice Felix Frankfurter: And secondly, was the -- who was in charged of the winch and governor of the winch?

Mr. 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.

Justice Felix Frankfurter: Well, it's set at fix.

Mr. Abraham E. Freedman: It was set in slightly more than six by the --

Justice Felix Frankfurter: By the --

Mr. Abraham E. Freedman: -- ship itself.

Justice Felix Frankfurter: Well then, why wasn't that in and out itself wrong?

Mr. 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.

Justice 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?

Mr. 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 --

Justice Felix Frankfurter: Pressure?

Mr. Abraham E. Freedman: Pressure or strain on these lines which were designed only for a maximum of three tons.

Justice Felix Frankfurter: And that was test by the ship?

Mr. Abraham E. Freedman: That's right, sir.

Justice 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?

Mr. 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 --

Justice 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) --

Mr. Abraham E. Freedman: (Voice Overlap)

Justice Felix Frankfurter: -- factor?

Mr. Abraham E. Freedman: Would absolutely be.

As a matter fact, sir, --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. 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.

Justice 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?

Mr. 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.

Justice 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.

Mr. Abraham E. Freedman: Well --

Justice William O. Douglas: Rigging, everything with a control device, but the control device wasn't properly used.

Mr. Abraham E. Freedman: Well, (Voice Overlap) --

Justice William O. Douglas: Was that his point?

Mr. 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.

Justice John M. Harlan: 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.

Mr. Abraham E. Freedman: Well, here's the policy in that sir.

Justice John M. Harlan: Am I mistaken in what I --

Mr. Abraham E. Freedman: (Voice Overlap) --

Justice John M. Harlan: -- what I understood him to say?

Mr. Abraham E. Freedman: Most of what you have said (Voice Overlap) --

Unknown Speaker: (Inaudible)

Mr. Abraham E. Freedman: -- Judge Hastie found that this thing had a capacity really -- a work capacity of 15 tons, he said so specifically.

Unknown Speaker: Yes.

Mr. 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.

Justice 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?

Mr. 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.

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 --

Justice John M. Harlan: What will happen if it has been set at three?

Mr. Abraham E. Freedman: If it had been set at three tons, this never would have happened, sir, because --

Justice John M. Harlan: What would have happened?

Mr. Abraham E. Freedman: Well, nothing would have happened, it would shut off.

Justice John M. Harlan: You mean, as soon as the strain started -- being applied, (Inaudible)

Mr. 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.

Justice 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)?

Mr. 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 --

Unknown Speaker: Who did that?

Mr. Abraham E. Freedman: -- plus the exact setting of the governor of the winch.

Justice Charles E. Whittaker: Well, who (Inaudible) position here?

Mr. Abraham E. Freedman: The longshoreman.

Justice Charles E. Whittaker: Not to rigging?

Mr. Abraham E. Freedman: Not to rigging, yes.

Justice Charles E. Whittaker: The (Inaudible).

Mr. Abraham E. Freedman: At the ship.

That's right, sir.

They didn't even know about that.

Justice Charles E. Whittaker: Now, on view of the provisions of (Inaudible)?

Mr. 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.

Justice William J. Brennan: I don't follow that completely.

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

Mr. Abraham E. Freedman: That's right, sir.

Justice William J. Brennan: Now, why might that not have been developed even if the winch (Inaudible)?

Mr. 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.

Justice William J. Brennan: 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.

Mr. Abraham E. Freedman: Yes, Your Honor.

Justice William J. Brennan: Yet you say that the actual strain was (Inaudible) somewhere between 17 and 21?

Mr. 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 --

Justice William J. Brennan: 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)?

Mr. 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.

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

Justice William J. Brennan: That's because you say, at three, the governor has been set forth at three.

Mr. 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 --

Justice William J. Brennan: Than nine?

Mr. Abraham E. Freedman: -- than half of what it did go, that nine, and actually broke at 18, the 17 to 21 the judge found.

Justice 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?

Mr. 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 --

Justice Hugo L. Black: When it gets beyond safety.

Mr. Abraham E. Freedman: It's beyond safety.

Yes, sir.

Justice Hugo L. Black: That's unsafe so that governor will --

Mr. Abraham E. Freedman: That's put it into play.

Yes, sir.

Justice Charles E. Whittaker: And if -- it may make it a little difficult to follow (Inaudible)

Mr. 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.

Justice 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?

Mr. 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.

Justice Hugo L. Black: What kind of wire was that?

Mr. Abraham E. Freedman: This -- this wire was wire cable.

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

Justice Hugo L. Black: Is there any indication that the cable has broke or defective?

Mr. 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.

Justice Hugo L. Black: What (Inaudible) against him on that, so we must assume that this was a good cable?

Mr. Abraham E. Freedman: That's right.

I have a --

Justice Hugo L. Black: No defect of any kind?

Mr. Abraham E. Freedman: I have to take that assumption, sir.

Justice 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?

Mr. 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 --

Justice 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 --

Mr. Abraham E. Freedman: If there's --

Justice Felix Frankfurter: -- it would affect that wire above.

Mr. Abraham E. Freedman: There is stipulation in the record in fact, sir, that all of the gear was designed for three tons.

Justice Felix Frankfurter: The gear, two-three tons?

Mr. Abraham E. Freedman: Gear and the boom, and the winch, in fact, and the winch.

Justice Felix Frankfurter: Well, they just -- had been relying to a three-ton safety, is that right?

Mr. Abraham E. Freedman: That -- well that's -- that's implicit in the stipulation that the --

Justice Felix Frankfurter: Is there then a stipulation?

Where is that exactly?

Mr. 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.

Justice Felix Frankfurter: 14?

Mr. 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.

Justice Charles E. Whittaker: (Inaudible)

Mr. Abraham E. Freedman: Sir --

Justice Charles E. Whittaker: (Inaudible)

Mr. 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.

Justice William J. Brennan: 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?

Mr. 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 --

Justice William J. Brennan: Theoretically affect you -- cut the circuit breaker, (Voice Overlap) --

Mr. Abraham E. Freedman: That's right, sir.

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 --

Justice William J. Brennan: Excuse me.

Mr. Abraham E. Freedman: Yes, sir.

Justice William J. Brennan: 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.

Mr. Abraham E. Freedman: Exactly, sir, exactly.

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

Justice William J. Brennan: Don't waste your time now but I would like to have that.

Mr. 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 --

Justice William J. Brennan: Let me ask one other thing.

Mr. Abraham E. Freedman: Yes, sir.

Justice William J. Brennan: 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?

Mr. Abraham E. Freedman: You mean the excess currents?

Justice William J. Brennan: Yes, (Inaudible).

Mr. 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%.

Justice William J. Brennan: If they're 115?

Mr. Abraham E. Freedman: Did not say that, no, sir.

Justice William J. Brennan: Now what -- what does it fix -- fix on the way of translation?

Mr. 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 --

Justice Potter Stewart: May I just ask you.

Now, Mr. Freedman --

Mr. Abraham E. Freedman: Yes, sir.

Justice Potter Stewart: -- is there any evidence at all as to what the weight of the -- of these logs were, these boards were?

Mr. 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 --

Justice 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?

Mr. 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 --

Justice Potter Stewart: At the time that the weight (Voice Overlap) --

Mr. Abraham E. Freedman: -- that the weight of the load had exceeded six tons.

Unknown Speaker: (Inaudible)

Mr. Abraham E. Freedman: Well, that's the pole, sir.

Justice Potter Stewart: No, it's --

Justice William J. Brennan: He asked to the pole --

Mr. Abraham E. Freedman: Oh, oh --

Justice William J. Brennan: -- the timber was caught underneath.

Mr. 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 --

Justice William J. Brennan: Well, the weight of the timber was still quite it was (Voice Overlap) --

Mr. Abraham E. Freedman: Yes, sir.

Justice William J. Brennan: It was like, about three tons?

Mr. Abraham E. Freedman: Well, I would say it would be very close to it, sir.

Justice Potter Stewart: Well, when did the record --

Unknown Speaker: Close to what?

Justice Potter Stewart: -- show if anything?

Mr. Abraham E. Freedman: The record does not show that, sir.

Unknown Speaker: Close to what?

Mr. Abraham E. Freedman: Close to the three tons.

I would assume that the -- taking two logs, the logs were 8x10 or 12x12 and they were 35 feet long.

That's a pretty good lot of weight.

Justice Felix Frankfurter: There wasn't a record on the ship as to the weight of the -- to the summit of --

Mr. Abraham E. Freedman: It is not in evidence, sir.

I'm -- I'm just speculating on that sir.

Justice William J. Brennan: 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?

Mr. 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 --

Justice William J. Brennan: 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.

Mr. 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, --

Justice John M. Harlan: Would you care to comment (Inaudible)

Mr. Abraham E. Freedman: 118, sir.

Justice John M. Harlan: 113, (Inaudible)

Mr. Abraham E. Freedman: Oh, yes.

If Your Honor will -- will read it, we'll refer to this part.

Justice John M. Harlan: (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).

Mr. Abraham E. Freedman: Yes.

Justice William J. Brennan: (Inaudible)

Mr. 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.

Justice 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)

Mr. Abraham E. Freedman: It's a --

Justice William O. Douglas: It's the question I tried to get you answer earlier, with several injuries.

Mr. 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.

Justice 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.

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?

Mr. 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.

Justice 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.

Mr. Abraham E. Freedman: The record will not sustain that, sir.

Justice 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.

Mr. Abraham E. Freedman: Yes, sir.

Yes, Your Honor.

Justice 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?

Mr. Abraham E. Freedman: Well, that's where he's wrong and for this reason --

Justice Felix Frankfurter: You mean, the record -- the record doesn't -- it contradicts that statement.

Mr. 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 --

Justice John M. Harlan: Well, excuse me.

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

Mr. 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.

Justice John M. Harlan: That is -- that's argued.

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

Mr. Abraham E. Freedman: Yes, Your Honor.

On page -- on page 30, I think it's 30 and 31.

Unknown Speaker: (Inaudible)

Mr. Abraham E. Freedman: Here's what Judge Wortendyke said at the bottom of page 31.

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 --

Justice John M. Harlan: Then he goes on at page 32 to say, (Inaudible) the primary cause of the (Inaudible).

Mr. Abraham E. Freedman: Now, if Your Honor will --

Justice John M. Harlan: (Inaudible)

Mr. Abraham E. Freedman: Yes.

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

Justice John M. Harlan: Can I find the details?

Mr. 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.

Chief Justice 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.

Mr. Abraham E. Freedman: I -- I think I would prefer to take in rebuttal, sir.

Chief Justice Earl Warren: You -- you may and -- and other counsel may have five minutes in addition also.

Mr. Abraham E. Freedman: Thank you, sir.

Chief Justice Earl Warren: Mr. Cichanowicz.

Argument of Victor S. Cichanowicz

Mr. Victor S. Cichanowicz: If it please the Court.

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 --

Unknown Speaker: (Inaudible)

Mr. Victor S. Cichanowicz: I'm sorry.

Justice William J. Brennan: Oh, the square over that (Inaudible) --

Mr. Victor S. Cichanowicz: I'm sorry.

This boom (Voice Overlap) --

Unknown Speaker: (Inaudible)

Justice John M. Harlan: Was the (Inaudible) was over the square of the hatch, meaning on the hole?

Mr. 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.

That is what caused this accident.

Justice William J. Brennan: That might have happened even without the shifting here.

Mr. 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 --

Chief Justice Earl Warren: Is that -- is that the reason that that cut off should have come before --

Mr. Victor S. Cichanowicz: No.

Chief Justice Earl Warren: -- that much power was applied?

Mr. Victor S. Cichanowicz: No, Your Honor.

May I -- now, I'd like you to refer to the cut off.

Chief Justice Earl Warren: (Voice Overlap) -- you come to that later.

Mr. Victor S. Cichanowicz: I'm sorry.

Chief Justice Earl Warren: Take your time.

Mr. 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.

Chief Justice Earl Warren: It wasn't a --

Mr. Victor S. Cichanowicz: Now --

Chief Justice Earl Warren: -- safety factory.

Mr. Victor S. Cichanowicz: -- it had nothing to do with regulating the load.

Counsel talks about it.

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.

Justice 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?

Mr. Victor S. Cichanowicz: That is right.

There was one --

Justice Felix Frankfurter: Would you mind referring to it?

Mr. Victor S. Cichanowicz: There was one witness, (Inaudible) here who talks about --

Justice Felix Frankfurter: We'll do it later.

It'll hold you up.

Mr. Victor S. Cichanowicz: He was -- he was an expert on --

Justice 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 --

Mr. Victor S. Cichanowicz: (Voice Overlap) --

Justice Felix Frankfurter: -- with the load of the electricity and had nothing to do with the -- with limiting the load.

Mr. 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.

Justice Felix Frankfurter: Was this through a translator or -- was this through a translator or difficult English?

Mr. Victor S. Cichanowicz: It was through a translator but I understand it was considerable difficulty because of the dialects that were spoken.

Justice John M. Harlan: Tomorrow morning, could you pinpoint those two (Inaudible)

Mr. Victor S. Cichanowicz: I will, sir.

Yes.

Justice William J. Brennan: Now, before you -- can I ask this one first.

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

Mr. 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.

Justice William J. Brennan: (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)

Mr. Victor S. Cichanowicz: Well, apparently --

Justice William J. Brennan: It would (Voice Overlap) --

Mr. Victor S. Cichanowicz: Yes.

Justice William J. Brennan: He pulled that?

Mr. Victor S. Cichanowicz: Yes.

Justice William J. Brennan: He pulled that thing -- it would show us what happened?

Mr. Victor S. Cichanowicz: That's right.

Yes, I do.

Justice William J. Brennan: I gather that the -- once you give it the application of electric power --

Mr. Victor S. Cichanowicz: Well, that's correct, sir.

Justice William J. Brennan: -- as a matter of fact.

Is that right?

Mr. Victor S. Cichanowicz: That's right.

Yes.

Justice William J. Brennan: Well, now, if one -- what point did the electric power go out?

Mr. 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 --

Justice William J. Brennan: -- I don't want to miss that point in here but I still --

Mr. Victor S. Cichanowicz: Yes.

Justice William J. Brennan: -- 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.

Mr. 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.

Justice Charles E. Whittaker: Well, may I say I did not (Inaudible) to say that the cut off is not off the runner?

Mr. Victor S. Cichanowicz: Oh, no, it isn't.

Its laid -- it's laid off here and only controls the current to the motor --

Justice Charles E. Whittaker: (Voice Overlap)

Mr. Victor S. Cichanowicz: -- and the power from the motor which tends to transfer it to the winch --

Justice Charles E. Whittaker: But --

Mr. Victor S. Cichanowicz: -- so that --

Justice Charles E. Whittaker: Was that in effect that the winch is only on the runner?

If that is (Inaudible).

Mr. Victor S. Cichanowicz: Not necessarily.

Maybe I can demonstrate what I --

Justice William J. Brennan: I thought --

Mr. Victor S. Cichanowicz: I'm going to --

Justice William J. Brennan: (Inaudible)

Mr. Victor S. Cichanowicz: Well --

Justice William J. Brennan: -- if someone were to clear the (Inaudible)

Mr. Victor S. Cichanowicz: Well, let me say this that --

Justice 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?

Mr. Victor S. Cichanowicz: That's right.

Yes.

Justice Felix Frankfurter: Now, when you pulled the rope, it wasn't a rope that was pulled that brought about the incident, was it?

Mr. Victor S. Cichanowicz: No.

Justice Felix Frankfurter: What did bring it about?

Mr. Victor S. Cichanowicz: It was the runner which was on the winch that was being powered by the electric motors.

Justice 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.

Mr. 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.

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 --

Justice Potter Stewart: You also have the --

Mr. Victor S. Cichanowicz: -- and that what caused this to break.

Justice Potter Stewart: You also have the weight of the boom on the topping-lift --

Mr. Victor S. Cichanowicz: That's right.

Justice John M. Harlan: Well, now --

Justice Potter Stewart: -- which is not on the runner.

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

Mr. Victor S. Cichanowicz: That's right.

Actually --

Justice Charles E. Whittaker: (Inaudible)

Mr. 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.

Justice Charles E. Whittaker: That was -- it found that two times the normal load, it were for six tons (Inaudible), is that it?

Mr. Victor S. Cichanowicz: That's right.

Yes.

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

Mr. Victor S. Cichanowicz: That's right.

Justice Charles E. Whittaker: (Inaudible) just like that.

Mr. Victor S. Cichanowicz: That's right.

Justice 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.

Mr. Victor S. Cichanowicz: That's right.

Justice Charles E. Whittaker: (Voice Overlap)

Mr. 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 --

Justice Charles E. Whittaker: Was directly over the hatch.

Mr. Victor S. Cichanowicz: Is directly over the hatch.

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

Justice Charles E. Whittaker: Not (Inaudible)

Mr. Victor S. Cichanowicz: This is what causes the all of the strain.

Justice Charles E. Whittaker: My question is, because they conceived -- applied the pressure against this timber after the timber was (Inaudible)

Mr. Victor S. Cichanowicz: Exactly.

Justice John M. Harlan: 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) --

Mr. Victor S. Cichanowicz: Well, it cut off around -- it cut off around there but you see, the forces then began to multiply in here.

Justice John M. Harlan: I don't care about --

Mr. Victor S. Cichanowicz: In other words --

Justice John M. Harlan: -- 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.

Mr. Victor S. Cichanowicz: No.

No.

Justice John M. Harlan: Is that -- is that what this all comes down to and as to Justice Brennan's question?

Mr. Victor S. Cichanowicz: I believe so.

I'm -- I'm a little hazy on --

Justice William J. Brennan: (Inaudible) -- what the cable under which has already (Inaudible) --

Mr. Victor S. Cichanowicz: Yes, sir.

Justice William J. Brennan: -- 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?

Mr. 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.

Justice William J. Brennan: That point.

And that's --

Mr. Victor S. Cichanowicz: That's right.

Justice William J. Brennan: -- because whatever is on the winch, the cable off the winch stays there.

Mr. Victor S. Cichanowicz: That's right.

Yes, because it's caught underneath.

Justice William J. Brennan: That's right.

Justice 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?

Mr. Victor S. Cichanowicz: No.

Justice Hugo L. Black: It wouldn't?

Mr. 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.

Justice Charles E. Whittaker: You're talking about the winch operater?

Mr. 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.

Justice 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?

Mr. 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.

Justice 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.

Mr. Victor S. Cichanowicz: It was proper because --

Justice 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.

Mr. 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 --

Justice 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?

Mr. 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.

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 --

Chief Justice Earl Warren: We'll recess now, Mr. Cichanowicz.

Mr. Victor S. Cichanowicz: Thank you.

Print this transcript Transcript: 

Argument of Victor S. Cichanowicz

Chief Justice Earl Warren: Number 61 and 62, John C. Crumady versus Joachim Hendrik Fisser, et al.

Mr. Cichanowicz, you may proceed.

Mr. Victor S. Cichanowicz: Thank you, sir.

If it please the Court, as I previously pointed out, there is uncontradicted testimony in this case that the cut off or circuit breaker was installed solely for the purpose of protecting the electric motor.

Now, in accordance with Mr. Justice Harlan's request, I wish to point out that this testimony appears on page 42 at the top, and that there is further testimony on this point at -- starting at the bottom of page 42 and continuing to the middle of page 43, and that also on page 44 at the top thereof commencing with the Court, there is -- such testimony.

That is the only testimony which is in the case as to the purpose of this circuit breaker.

Now, in the words of the chief mate of the vessel, who happens to be the only person here who had personal knowledge and personal experience with this mechanism, it was nothing more than what we know as a ordinary household fuse.

That was its sole purpose.

It had nothing to do with controlling the load.

It would of course be unfair to say that --

Justice William O. Douglas: How can you say that when the amount of the -- the size of the load in determining the amount of the power that goes into the (Voice Overlap) --

Mr. Victor S. Cichanowicz: That the load -- Your Honor, it was not installed for the purpose of controlling the load.

The only -- as I said -- was going to say, if the load --

Justice William O. Douglas: Amount of power.

Mr. Victor S. Cichanowicz: -- became excessive --

Justice William O. Douglas: The amount of power.

I read the parts of the record you refer to and --

Mr. Victor S. Cichanowicz: Yes.

Justice William O. Douglas: -- I get something quite different from them.

It seemed to me that that power, that the -- that the amount of the power being used by the machines depends upon the amount and the size of the load.

Mr. Victor S. Cichanowicz: Well, that does have some effect on it in order to -- in order to lift the loads, you have to have in effect --

Justice William O. Douglas: Some effect, it has a very -- I think some effect is understating it.

It seems to me they have -- have a very important effect.

The greater the load, the more power you use to lift it.

Mr. Victor S. Cichanowicz: Well, that's true.

But, that -- I mean, the thing --

Justice William O. Douglas: So you get to -- you get to your cut off at a certain load level?

Mr. Victor S. Cichanowicz: That is correct.

That is right.

But that was not the purpose of this mechanism.

In other words, we -- for instance, we have a -- take the household fuse, is there to prevent fires, but it certainly --

Justice William O. Douglas: You get an excess --

Mr. Victor S. Cichanowicz: -- doesn't control --

Justice William O. Douglas: Excessive load on the -- on the system.

Mr. Victor S. Cichanowicz: On the system.

That's all that this was intended to prevent and by preventing excessive load --

Justice William O. Douglas: One way of getting the -- one way of getting the excess load on the system is to put heavy weights on the booms.

Mr. Victor S. Cichanowicz: That is right.

That -- that -- that would happen incidentally but it's not -- it's not the purpose of this mechanism because we have in order to cut -- cut off the -- the mechanism, we have a lever furnished for that purpose and we also had a switch that was on the mechanism itself so that --

Justice William O. Douglas: So the exclusive purpose with -- I do -- I don't see how you can say it is not one of the purposes of it.

Mr. Victor S. Cichanowicz: No, I -- I am afraid that if I gave that impression -- I do not contend that but I say that that was not why it was installed.

Now, on the other hand, assuming that such a purpose could be attributed --

Justice Felix Frankfurter: (Voice Overlap) -- could it be -- if -- if saying -- what you've just said that that is also a purpose, then what is the bearing of that fact, if it be a fact on the conclusion that the sole -- that the sole causative factor of the accident was what the law -- what the stevedore concerned in.

Mr. Victor S. Cichanowicz: What effect that has?

Justice Felix Frankfurter: I mean, if -- if it be so, if one of the purposes of the cut off or whatever it's called, one of the consequences of it bears on the load then how can it be said -- well, the District Court found it that that -- that the negligence of the stevedoring company was the sole operating core of the -- of the engine?

Mr. Victor S. Cichanowicz: Well, this -- this was not -- this was not --

Justice Felix Frankfurter: I don't quite understand that.

Mr. Victor S. Cichanowicz: Yes.

This is not suppose to control the load.

When it controls the load, the longshoreman themselves and what this -- what -- it points out to them what the load is or what load they should lift is a marking which appears on the boom.

Its -- its international practice, every vessel has --

Justice Felix Frankfurter: When you say it is a (Voice Overlap) --

Mr. Victor S. Cichanowicz: -- three ton.

Justice Felix Frankfurter: You must say more than that, that it isn't supposed to, that it had no effect, that it wasn't an ingredient in the -- in the -- in the result.

Mr. Victor S. Cichanowicz: It was not an ingredient because of -- because this happens, sir.

At the motor, you have a current with this set off -- cut off, said as it was, you get a current quantity of six tons.

That is true.

But, by the time -- because of the nature on the operation of this mechanism, by the time you get down here to where the load is, you cannot lift a six-ton load because if you are lifting a six-ton load this would cut off.

You have a six-ton load here, it would never start up because -- I mean, this -- this is a machine and there are number of forces acting here which require a setting here, sufficiently high so that you can overcome inertia, you can overcome these other forces and raise a three-ton load at the end of the runner.

Now, if you had this set at three tons here so that the winch as soon as the current quantity which reads the winch was three tons, you would not lift (Voice Overlap) --

Justice Felix Frankfurter: (Voice Overlap) you say.

Mr. Victor S. Cichanowicz: You'd never lift a three-ton load.

You see, that's -- that's why a setting at six tons on the current here is not an unseaworthy condition.

It's not a condition that causes this accident because what happened here was this, when the longshoreman permitted the lumber to become caught under the coaming here and continued coaming.

What happened was this winch then started to pull.

It was exerting this power on here but this load was not then moving upward so that your current kept on building up.

It had to build up being caught here.

You actually have strange as it may sound, this was computed by the expert.

You have the force is actively doubling while up here.

Justice Felix Frankfurter: Are you saying -- are you saying that in the circumstances of what actually took place here, the fact that the lumber got caught and they couldn't tow up.

The -- the cut off at six, whether it was fixed or even more it could be, would be irrelevant.

Is that what they're saying?

Mr. Victor S. Cichanowicz: It's -- yes, it was irrelevant for this reason that if the longshoreman had not permitted this timber to become caught here.

And if after it had become caught, they did not continue to operate the winch.

The force would never have been built up here.

This equipment was not furnished for the purpose that these men were using, that they were trying to jam out a piece of timber that had become caught.

That obviously is not the purpose of it.

The purpose was to raise timber whether the boom was in this position or in this position that's originally had -- it was when the vessel came in.

They had operated this winch for one hour and have discharged lumber this vessel for one solid hour without any trouble at all.

One of the reasons was they weren't trying to pull the vessel apart.

That's why nothing happened.

And that's -- that's the reason --

Justice Felix Frankfurter: Are you saying further that if they had stop trying to lift, to get the lumber from its -- from its snare, they'd stopped trying to lift it, it wouldn't have made any difference with what the cut off was and indeed that the -- whatever the cut off was, it had no effect on the power that's gathered up on the boom and on the wire, is that right?

Mr. Victor S. Cichanowicz: That's correct, yes.

Justice Felix Frankfurter: Is that what you're saying?

Mr. Victor S. Cichanowicz: In other words, the power that was built up was the power that was caused by this timber becoming caught here.

And that's what caused the build up of the power.

Justice Felix Frankfurter: And is -- do I get from Judge -- is Judge Hastie's opinion really an endeavor to make almost a mathematical demonstration of that kind?

Mr. Victor S. Cichanowicz: Well, I wouldn't say precisely but he does speak of mathematics and I think the mathematics he's referring to is this -- if there was tremendous amount of calculations.

There were many exhibits.

And one of the calculations was showing how when a timber is caught or when something is caught here, the power stops building up here so that it throws everything else out of filter.

I mean, it's -- it's not -- no other than (Voice Overlap) --

Justice Felix Frankfurter: Well I suppose that is genetically demonstrable, isn't it?

Mr. Victor S. Cichanowicz: It is, yes.

Justice Charles E. Whittaker: (Inaudible)

Mr. Victor S. Cichanowicz: Well, maybe I -- I might --

Justice Charles E. Whittaker: Well, let me ask you in another way.

Is it because it is pulled on the line by (Inaudible) to the portside?

Mr. Victor S. Cichanowicz: No, it's because this load -- when you're lifting a load (Inaudible) -- just for the little weight on here, you will notice that this -- the boom does move but as soon as it overcomes the weight, it moves smoothly.

In other words, I'm now applying three pounds -- say three tons to lift three tons here or only roughly.

So the sample point of course has to lift that three tons here.

When I -- when this becomes caught that I start pulling here, this is -- this was computed by an expert.

I'm not only having this boom that's pulling this down but this because it's not moving is also pulling it down so you are getting a build up of a force cork up here from this boom and this -- and the fact that this is not moving.

Justice Charles E. Whittaker: Let me ask you this, is this (Inaudible)

Mr. Victor S. Cichanowicz: Yes, it is.

Justice Charles E. Whittaker: (Inaudible) to this side, the port side here, to the port side, in combination are delivered to the topping-lift.

Mr. Victor S. Cichanowicz: That was an issue to which the --

Justice Charles E. Whittaker: The restrain on the runner and on this hook of the tie towards the left side, (Inaudible) is also delivered to that topping-lift.

Mr. Victor S. Cichanowicz: If it -- to some extent it is, (Inaudible).

Justice Charles E. Whittaker: Isn't that why you get this (Inaudible) on the topping-lift.

Mr. Victor S. Cichanowicz: Oh, that's right because of the fact in here.

He insist from coming over --

So --

Mr. Victor S. Cichanowicz: So that way -- that -- that way they part also.

In other words, what we have here is now a parallelogram of force (Inaudible)

And this is one triangle that we -- I remember in your computation, this was one triangle that was worked on and it develop stability, certain force established only by this triangle.

Then, there was additional force established in this triangle created by then.

Unknown Speaker: (Voice Overlap) --

Mr. Victor S. Cichanowicz: So that it's a --

Justice Charles E. Whittaker: Now, it wouldn't have -- would not allow if the tool -- tools was directly over (Inaudible) --

Mr. Victor S. Cichanowicz: No, that's true.

You would not have -- you might have some but it would be -- I would say minor.

Justice John M. Harlan: Could I ask you a question?

You say that before this accident happened, they had been hauling up logs for an hour.

Was there any evidence in the record to show that the weight of the logs that they were hauling at the time of the accident was greater than the amount they have been hauling during that previous hour?

Mr. Victor S. Cichanowicz: No.

In fact as I recall, it's not in this record.

The testimony was that the logs' total weight was about 1600 pounds.

Justice John M. Harlan: The maximum?

Mr. Victor S. Cichanowicz: That's -- that was the weight of the two logs that were being raised at the time.

It's not in this record here but it is the testimony of witnesses, about 1600 pounds.

Before that, they have been discharging lumber and the weight of that was never obtained but even the pieces of lumber that they piled up in there is another more than that weight.

The weight I would say was -- the pile, the graphs up on the woods rail and then what they were trying to lift at this moment here.

They made a -- that this is a special graph that they when they're -- when they're discharging lumber, they have but it's a certain height and a certain width.

So that they tried to keep more with up to what the working load of the gear is, but I don't have -- we don't have the weight of that load of the timber that they -- or lumber rather.

Justice Charles E. Whittaker: You say 1600 pounds?

Mr. Victor S. Cichanowicz: 1600 pounds was the testimony, yes, sir.

Justice Charles E. Whittaker: I figured out (Inaudible) 10 by 10?

It was 10 to 10.

Mr. Victor S. Cichanowicz: It was either 10 by 10 or 12 by 12, Your Honor.

And this was the heavy mahogany logs.

Now --

Chief Justice Earl Warren: May I ask one more question about -- about this as I understand you, the -- this circuit breaker is not a safety factor so far with the handling of these booms are concerned through the -- through these rotors and cables, bearing in mind the strength that they -- they checked.

Mr. Victor S. Cichanowicz: That's right, sir.

It wasn't installed for that purpose.

Chief Justice Earl Warren: All right.

Now, let me ask you this, you -- and you therefore -- you say that the fact that it is fixed at six tons cannot be negligence on the part of the shipowner?

Mr. Victor S. Cichanowicz: That's correct, sir.

Chief Justice Earl Warren: Suppose it was 16 instead of six, would that make any difference?

Mr. Victor S. Cichanowicz: It was set at 16 instead of six?

I would say that then it constituted an unsafe condition.

You mean, if it was set at 16 tons instead of six?

Chief Justice Earl Warren: Yes.

If it was set at --

Mr. Victor S. Cichanowicz: Yes.

Chief Justice Earl Warren: -- 16 instead of six.

Mr. Victor S. Cichanowicz: That's right.

Chief Justice Earl Warren: Well, then -- then wouldn't you have to say that if -- that there was a safety factor involved in at some place?

Mr. Victor S. Cichanowicz: There is a safety factor involved.

Chief Justice Earl Warren: Where would the -- when would that safety factor come into play?

Mr. Victor S. Cichanowicz: Well, according to the testimony of the experts and according to this Coast Guard regulation, the setting is permitted up to 250% of the safe working load, which in this case with a safe working load of three tons would mean seven and seven and a half tons.

Chief Justice Earl Warren: Yes.

Mr. Victor S. Cichanowicz: This was a little more than six tons, so we were well within the 250%.

Chief Justice Earl Warren: Yes.

Mr. Victor S. Cichanowicz: Now that -- that is a -- that is -- not only this is a Coast Guard regulation and also when this is installed, it's installed by an electrical contractor who is qualified to set these things up.

In other words, they're experts.

They set that up and it stays that way.

Nobody on a ship is permitted to or can make an adjustment on it.

In other words, this is -- once it's set, it's set on few some qualified person like in electrical contractor who deals in that particular type of equipment resets it or rechecks or test it.

Chief Justice Earl Warren: Yes.

Then as I understand you, if -- if they set the cut off above 75 -- seven and a half tons here, there would be a safety factor involved and to have done so would constitute negligence?

Mr. Victor S. Cichanowicz: I think it -- we would have a problem --

Chief Justice Earl Warren: Yes.

Mr. Victor S. Cichanowicz: -- then.

Yes, so far as to safety.

Chief Justice Earl Warren: But that's -- that's the dividing line.

According to your theory this would be seven and a half tons?

Mr. Victor S. Cichanowicz: That's right --

Chief Justice Earl Warren: Because of the tensile -- because of the three-ton load limit on the cables.

Mr. Victor S. Cichanowicz: That's right.

It's -- it's -- well, it's a three-ton working load --

Chief Justice Earl Warren: Working load --

Mr. Victor S. Cichanowicz: This is a --

Chief Justice Earl Warren: Yes.

Mr. Victor S. Cichanowicz: We have to remember this --

Chief Justice Earl Warren: As I -- I recall your --

Mr. Victor S. Cichanowicz: -- as a breaking strain --

Chief Justice Earl Warren: Yes.

Mr. Victor S. Cichanowicz: And actually they -- I understand that they compute the working load by taking a piece of cable and stretching it until it breaks and then when it -- whatever tonnage it breaks at, they usually take one-fifth of that and say that that is the safe working load.

Chief Justice Earl Warren: Yes.

Mr. Victor S. Cichanowicz: Now, there is still with a three-ton safe working load and this cable having a breaking strain of 15 tons, there's a safety tolerance of 12 tons.

If we go to six, there's still a safety tolerance as of nine tons.

So that in -- in order -- in permitting something like this to be built up was -- we are working with a safety tolerance.

I mean, we are way within that point where it becomes dangerous.

In other words, this is -- it's still safe.

We have a safety tolerance of nine tons before this thing will break and I dare say that within this wire cable, it's not like a piece of wood.

It starts breaking -- wire cable this actually a machine, this -- these are parts that move.

I mean if you can take a piece of wire cable, you'll see that they move.

They -- it's like a machine, they move over each other.

They don't break like the fibers do on a piece of wood.

So that by being used, by being subjected to, say in this case, occasional stresses of six tons and that happens very rarely incidentally.

It only happens when something like this occurs.

That doesn't weaken this cable.

In fact, the trial court found that the breaking strain of this cable had not been diminished, that the topping-lift was -- the safe working load of that topping-lift was at least 15 tons.

They didn't say -- this trial court didn't say it was just 15, it said it was at least 15 tons and the wire cable had been tested shortly after the accident occurred.

Justice Hugo L. Black: How could this man who was hit make that computation?

I don't quite understand that yet.

Mr. Victor S. Cichanowicz: No, the man who was -- couldn't -- he couldn't have made it but I am -- what I'm saying is that we're not talking about the breaking point of this wire here.

And after the accident occurred, it was taken to a testing laboratory and a test was made where the testing laboratory, by means of a testing machine which they have which applies pressure to this cable showed that this cable broke, if I recall correctly, under a pressure of 19,600 pounds which indicates --

Justice Hugo L. Black: But what I was -- what I was wondering about is -- probably because I have my mechanical mind is a little lacking, I admit it readily.

What I'm wondering is this, you have a winch there or a circuit breaker and it's marked three tons, if that's what the mark.

There's a man working down in this place, a log falls -- the boom falls on him because this wire breaks.

What did he do wrong there himself?

Mr. Victor S. Cichanowicz: Well, he himself --

Justice Hugo L. Black: What could he have known that he -- should have called (Voice Overlap) --

Mr. Victor S. Cichanowicz: He himself probably could not have done anything about that other than -- he was one of the men who had put the wire sling around this and had attached it to this runner and have to stand -- he was standing there, another man was giving signals to the winchman to go ahead so that --

Justice Potter Stewart: There's no issue --

Mr. Victor S. Cichanowicz: -- he himself --

Justice Potter Stewart: There was no issue of contributory negligence in this case?

Mr. Victor S. Cichanowicz: No, we -- we have not raised any issue of contributory negligence but he --

Justice Potter Stewart: I understand that --

Mr. Victor S. Cichanowicz: It's up to his employer.

I -- I --

Justice Hugo L. Black: If somebody figures that besides the people who had that winch and had this safety, this -- this device there --

Mr. Victor S. Cichanowicz: Well I --

Justice Hugo L. Black: Well, what -- what --

Mr. Victor S. Cichanowicz: It's his employer's fault.

I mean actually it's his employers fault because they were stevedores --

Justice Hugo L. Black: That the -- (Voice Overlap) --

Mr. Victor S. Cichanowicz: They are experts.

They know --

Justice Hugo L. Black: That's their other plea.

Do you say that's in --

Mr. Victor S. Cichanowicz: That's right.

Justice Hugo L. Black: -- pleading?

Mr. Victor S. Cichanowicz: That's right.

Justice Hugo L. Black: Is that the other pleading here, the --

Mr. Victor S. Cichanowicz: That's right.

Justice Hugo L. Black: And you say it was his fault in not doing what?

Mr. Victor S. Cichanowicz: In that operation --

Justice Hugo L. Black: Could we have changed --

Mr. Victor S. Cichanowicz: In that -- in that --

Justice Hugo L. Black: -- the setting?

Could you have changed the setting?

Mr. Victor S. Cichanowicz: No, nobody could have changed the setting but this --

Justice Hugo L. Black: But if he looked at that (Voice Overlap) --

Mr. Victor S. Cichanowicz: These longshoremen were at fault because they tried to pull out -- I mean, I think it's common sense when a timber becomes jammed, you should stop it but they continued pulling it.

That's where the whole fault lies.

Justice Hugo L. Black: They continued.

How could they have stop pulling it?

Mr. Victor S. Cichanowicz: Only had -- he had a lever on this winch by means at which he was applying the power.

He was pushing to lever ahead.

All he had to do is pull it back into --

Justice Hugo L. Black: If giving the power and was there a notice on that, it said anything about when he was to stop by reason of the fact that this thing might break or that --

Mr. Victor S. Cichanowicz: No, he could -- he could see that the timber was caught.

He should know that something was going to break when this timber is not moving and its caught here.

Something is going to break.

You can't -- I mean it's --

Justice Hugo L. Black: Your argument is --

Mr. Victor S. Cichanowicz: It's obvious that something is going to break when he -- when this -- when the power is continued to be applied to the winch.

They're trying to pull this thing up, it's not moving, something has to break.

Justice Hugo L. Black: Well I was getting down that or where I think maybe I can understand it and maybe when the other man argues with.

As I understand now, what you are saying is that the evidence shows without dispute that the asserted fact which made it necessary for this -- the employer of this man to refrain from pulling or putting that power on any further.

Mr. Victor S. Cichanowicz: That's right, it's --

Justice Hugo L. Black: And he had no right at all to depend on the fact that there was of marked limitation of the capacity in connection with the lifting?

Mr. Victor S. Cichanowicz: No, he didn't have any right.

In fact, he says he didn't even know that this existed.

Justice Hugo L. Black: He didn't know that there --

Mr. Victor S. Cichanowicz: That there was a cut off on here.

Justice Felix Frankfurter: You said --

Mr. Victor S. Cichanowicz: He had --

Justice Felix Frankfurter: -- earlier that it was irrelevant.

I'll stick to that word.

That -- that the cut off, the six, was irrelevant to what happened to the -- of course, to the question that --

Mr. Victor S. Cichanowicz: That is correct because --

Justice Felix Frankfurter: -- Mr. Justice Black is asking there.

Justice Hugo L. Black: That's what I'm trying to found out.

Now, the -- what you say, I gather is, how could the employer know --

Mr. Victor S. Cichanowicz: Well, the employer knows --

Justice Hugo L. Black: -- how much weight was being put on there?

What -- what signal was it?

What kind of safety device did you have on that?

Mr. Victor S. Cichanowicz: Well, we have --

Justice Hugo L. Black: So, that it will work --

Mr. Victor S. Cichanowicz: There's a marking.

Justice Hugo L. Black: -- and would know that it was reaching a point where it might break.

Mr. Victor S. Cichanowicz: On the first place, there's a marking on the boom that you shouldn't lift more than three tons.

That's international practice.

It's recognized by all (Inaudible)

Justice Hugo L. Black: Well, we're they limiting --

Mr. Victor S. Cichanowicz: The second thing is this, Your Honor, that when this became caught here, anybody should know that you can't pull it out if it's jammed.

Justice Hugo L. Black: (Inaudible)

Mr. Victor S. Cichanowicz: I mean, that's what I was saying, they should have stopped.

Justice Hugo L. Black: Is that the main issue between you and the employer of this man?

Mr. Victor S. Cichanowicz: No, that's -- that's one of the issues.

Yes, on the claim over that they -- that their negligence was what --

Justice Hugo L. Black: Do you would claim that it's due -- it's their negligence.

And your claim is that they were negligent because of what in simply (Inaudible) --

Mr. Victor S. Cichanowicz: Because in not stopping --

Justice Hugo L. Black: (Inaudible)

Mr. Victor S. Cichanowicz: The winch after this timber became jammed and it became perfectly obvious that they couldn't get it out by continuing to apply power of the winch.

Justice Hugo L. Black: You say that that was the sole cause.

They had no right to depend on the fact that there was a limitation for the -- as to the amount of power that should be turned loose on that winch?

Mr. Victor S. Cichanowicz: That's -- I say, that's the sole cause of the accident and there should be no responsibility on the vessel either under these facts, that they are the ones who caused the accident.

This cut off had nothing to do with the occurrence of the accident.

They didn't rely on it.

They had no business to rely on it.

It was not intended for that purpose.

Now, to see --

Justice John M. Harlan: Could I ask one question, on page 32 of the record (Inaudible) that contains the findings of the District Court, approximate cause of the accident with the negligence of the stevedoring company.

How do you reconcile that finding with the finding above, immediately above, reliability of the vessel where the District Court says on the basis of the facts has found that the winch cut off device at the time that the winch was turned over libellants, fellow employees for operation rendered the respondent vessel unseaworthy?

Under those (Inaudible) --

Mr. Victor S. Cichanowicz: May I say, Your Honors, not reconcilable because (Voice Overlap) --

Justice John M. Harlan: Whenever they they stack together.

Mr. Victor S. Cichanowicz: I beg your pardon?

Justice John M. Harlan: They don't stack, is that what you --

Mr. Victor S. Cichanowicz: No, they don't because if the approximate cause of this accident was the negligence of the stevedores in the way they tried to discharge this vessel, then that's what caused the accident.

It's not some other condition.

In fact, later on in the -- discussing the indemnity claim, the Court says that -- in fact it's on page 33, said that they find to -- they find that it's failed to exercise, it mean Nacirema.

They exercised that degree of care and that as a result thereof, it brought into play the unseaworthy condition.

In other words, it's saying, "Well, if this thing failed to commence with a backdoor and stopped this accident."

That is in effect what the District Court is saying and that's why it held us responsible.

In other words, because our equipment did not prevent these people from being negligent, therefore, the vessel was unseaworthy.

That is the reasoning of the District Court which I submit is erroneous.

Justice Hugo L. Black: Do I understand what you concluded, meaning holding by end that the Nacirema was negligent that brought this harm?

Mr. Victor S. Cichanowicz: That's what the District --

Justice Hugo L. Black: But nevertheless, there was some kind of non-delegable duty on the part of the shipowner to see that this employee wouldn't hurt them --

Mr. Victor S. Cichanowicz: That's what the --

Justice Hugo L. Black: -- which made it (Voice Overlap) --

Mr. Victor S. Cichanowicz: -- the District Court -- that's what the District Court says but actually, Your Honor, it find me being negligent, they create a condition.

Then, anything that the vessel furnishes can't be operated or used for the purpose for which it's intended because we now have something entirely different and apart from what this thing is intended to be used for or the operation.

Instead of -- if they -- if they were purely discharging timber and this thing broke we would -- in fact, we wouldn't be here.

Justice Hugo L. Black: Was the ship's officers there?

Mr. Victor S. Cichanowicz: They -- at the time this happened, they weren't there.

There was an officer who was in charge.

This is a two-hatch vessel incidentally.

The officer went between the number one hatch and the number two hatch was just back off the housing that's in the middle of the ship.

He had been here for some 15 or 20 minutes before the accident happened.

He then went back to number two hatch.

He was there for a period of time and while he was there this accident occurred, so that he was not aware of what has been going on.

Justice Hugo L. Black: Suppose they had turned it over to Nacirema with all of these parts that you talked about in the position that you say brought them out, the dangerous condition.

That's the way to turned it over to Nacirema.

Would you say that then when they turned it over to him before he did anything at all, that this vessel would have been unseaworhty?

Mr. Victor S. Cichanowicz: No, it would not have been unseaworthy.

It couldn't have been unseaworthy.

Justice Hugo L. Black: He thought it dangerous and turned it over and suppose they did that and he -- there was these logs down and he was to lift them up.

You'd still say that it was not have been unseaworthy and that -- what seems to be -- intended to be, they have normal place on one of these parts that down there, whatever they are.

Mr. Victor S. Cichanowicz: Well, this -- this still we -- we get away from what the proximate and in fact in the words of the District Court, the sole cause of the accident was that was trying to lift this timber after it had become jammed behind the coaming.

Justice Hugo L. Black: You always come back to that one thing --

Mr. Victor S. Cichanowicz: You have to because --

Justice Hugo L. Black: (Inaudible)

Mr. Victor S. Cichanowicz: Yes, because --

Justice Hugo L. Black: -- I was just trying to get an preference --

Mr. Victor S. Cichanowicz: Yes.

Because you have to.

You -- this couldn't possibly have happened, all the other things are purely conditions that exist.

Justice Felix Frankfurter: May I ask you a question?

Mr. Victor S. Cichanowicz: I'm sorry --

Justice Felix Frankfurter: May I ask you first Mr. Cichanowicz, I don't mean to be obsessive on to point but you said a little while ago they had no business to rely the cut off instead of six, instead of three.

The question isn't whether they had any business to rely if in fact that entered into the occurrence and if in fact have -- have served a safety purpose, then it would be immaterial whether they relied on it or not.

You must go to the position which I tried to express boringly several times that it was irrelevant to the occurrence that the percentage takes.

Not that they had --

Mr. Victor S. Cichanowicz: That's --

Justice Felix Frankfurter: -- no business to rely on it.

Mr. Victor S. Cichanowicz: I say --

Justice Felix Frankfurter: And it had -- know that it was not a contributing factor or ingredient, or call it what you will, that it didn't enter into the result which gives rise to the claim.

Mr. Victor S. Cichanowicz: That I -- that is my position, sir.

It does not answer into it because it -- if -- if the longshoreman did not try to lift this timber after it had become caught in there, this thing would never have come into play.

That's what -- you have to go back to that again and again in order to get the explanation of this accident --

Justice Felix Frankfurter: In other words, any --

Mr. Victor S. Cichanowicz: -- anything else that occurred afterward or it may have come into play does not have anything to do with the occurrence of the accident.

It would have occurred no matter what.

It would not have occurred if the -- if that jamming had not occurred and these people have not tried to jam it out.

Justice Felix Frankfurter: It wouldn't have made any difference if it has been fitted, what they wanted it to be fitted.

Mr. Victor S. Cichanowicz: That's right.

The setting is not -- as I say, the setting is irrelevant.

Justice Felix Frankfurter: All right.

Justice Hugo L. Black: I don't -- I don't quite understand that.

I thought you said, I gathered from all the arguments, it would have been difference.

Because if it had cut off before that, this thing couldn't have happened, irrespective of every -- of the Necirema's negligence.

If it had cut off at the place where it said there, it wouldn't have happened, would it?

Mr. Victor S. Cichanowicz: No, it cut off at -- it was -- it didn't reach the point or it cut off at the place where it was said, but this -- it occurred sometime after the accident happened or it occurred at the same the accident happened.

Justice Hugo L. Black: If this had been limited, if this set off, if this thing had worked in a way and when it got three ton pressure on it, or a tension, or whatever you call it, it cut off, then this wouldn't have happened, wouldn't it?

Because they couldn't have kept pouring the power.

Mr. Victor S. Cichanowicz: It's likely it did -- that -- that is right.

It's likely that it couldn't have --

Justice Hugo L. Black: (Voice Overlap) it couldn't have done it, could it?

Mr. Victor S. Cichanowicz: Not -- no.

It's likely that it wouldn't.

Justice Hugo L. Black: (Inaudible) power in it, it couldn't happen.

Mr. Victor S. Cichanowicz: It's likely that it wouldn't happen because we still have this other factors developing even with a three-ton load, but that's -- now -- now lifting a three-ton load, applying this power of three tons.

I -- I can't -- I mean, I would concede if I could that that is so, but I can't because there were other factors involved here which make it so.

I would say that probably if it was set at three tons, this might not have happened, but I can guarantee that it wouldn't have happened --

Justice Felix Frankfurter: But didn't you give --

Mr. Victor S. Cichanowicz: -- because --

Justice Felix Frankfurter: -- the impression that if it has been set at three, they couldn't have lifted any lumber?

Mr. Victor S. Cichanowicz: They -- you can't, then you can't lift.

You can't lift it.

You couldn't lift a three-ton load --

Justice Felix Frankfurter: All right.

Mr. Victor S. Cichanowicz: -- at the end of the runner here then.

Justice Felix Frankfurter: All right.

Mr. Victor S. Cichanowicz: I am sorry to say I have not gotten to my course --.[Laughter]

Justice Hugo L. Black: -- it's my fault (Inaudible)

Chief Justice Earl Warren: Mr. Monigan, you may proceed.

Argument of John J. Monigan

Mr. John J. Monigan: Mr. Chief Justice, may it please the Court.

I'm in a position that so far as the merits of the controversy in which I find myself engaged, nobody has mentioned it.

Justice William J. Brennan: You went either way, don't you, Mr. Monigan?

Mr. John J. Monigan: Well, that is a desirable result as far as I'm concerned.

Justice William J. Brennan: Well, I mean if whether -- whether his liability and the shipowner because of the defect or because solely the negligence of Nacirema.

Aren't you out of it?

Mr. John J. Monigan: Well, I'm out of it, Mr. Justice Brennan.

If the decision of the Court of Appeals is correct for whatever reason then because we won't reach my problem and that the ship is exculpated.

Justice William J. Brennan: But suppose -- suppose that they were not correctly respectively cut off about it?

Mr. John J. Monigan: If -- then I'm out as well I believe.

I -- I think that if the vessel was cast in liability for being unseaworthy because of this cut off device then I'm out because the vessel contributed to the mischief.

Justice Felix Frankfurter: Well, are you out?

Then we have to consider Ryan.

Mr. John J. Monigan: Well, I think not, Your Honor, because our contract in this case was not with the vessel within the terms of Ryan.

Our contract was with the charter of the vessel and the suggestion has been made that -- and I don't know whether, Your Honors, want to get into this aspect of it currently or not because the problem then presents itself as to, can a party to a stevedore contract -- a person not a party to a stevedoring contract avail himself of the principles annunciated by this Court in Ryan.

It is our contention that to do so is lacking any support.

Particularly, we don't have to reach the main argument even -- so long as the vessel has done something at fault even if a person can be the beneficiary of a contract to which he is not a party within this framework.

Nevertheless, I'm quite confident that no court would construe any part of warranty under Ryan to exculpate a person from fault which he himself has committed.

Justice Felix Frankfurter: Doesn't that the -- doesn't that -- if I may say so, answer the problem sitting here?

Because after all that was the Ryan argument that why should the -- there too, Ryan was at fault -- I mean, the ship was at fault.

The whole question is, this business of primary, subsidiary main ship culpability --

Mr. John J. Monigan: Well --

Justice Felix Frankfurter: -- as against the person on whom the burden rest to see that the job is done.

And I don't -- you make me -- you give me the impression that you think it's all one has to do to state your proposition, that's all there is to it.

Mr. John J. Monigan: Well --

Justice Felix Frankfurter: It seems to me as clear as that.

Mr. John J. Monigan: Well, then so far as that aspect to the matter is concerned, Ryan certainly does not hold that a -- that a person, not a party to the stevedoring contract can avail himself of the principle of implied undertaking.

Justice Felix Frankfurter: I know, but we have them very widely accepted doctrine, a third party beneficiary.

Mr. John J. Monigan: That is so, Your Honor.

Except that this Court has determined that as between a charterer of -- that a charterer is not a third party beneficiary of a contract to repair a vessel made between the owner of the craft and a ship repair company, so to make it possible for a -- time charterer who was deprived of the profits of his charter by reason of the improper conduct of the ship repair organization as a consequence of which the propeller was damaged and the vessel was out of commission, so that the time charterer could not make his profits.So, this Court stated --

Justice Felix Frankfurter: And when -- when would that be?

Mr. John J. Monigan: That Mr. -- Mr. Justice Holmes decided that case.

It's referred to in our brief.

Justice Felix Frankfurter: The reason I asked is because a lot of law is coming through current, Buick against MacPherson and all of that kind of stuff.

Mr. John J. Monigan: Yes.

Well, of course if I may suggest this, Mr. Justice Frankfurter, the -- our problem of MacPherson lies in negligence.

The problem in MacPherson, the theory of recovery in MacPherson was not upon a third party beneficiary but upon --

Justice Felix Frankfurter: I know but --

Mr. John J. Monigan: -- primary negligence.

Justice Felix Frankfurter: But it does deal with who can rely on a remote contractually unrelated person's negligence.

And either you have a finding of the District Court that the sole, almost exclusive cause of this unfortunate episode with your client.

Mr. John J. Monigan: Well, the finding of the District Court was that the craft was unseaworthy because of this winch cut off which was supported by testimony --

Justice Felix Frankfurter: Well, --

Mr. John J. Monigan: -- and other which McAllister was --

Justice Felix Frankfurter: If -- if that is so, then there's a (Inaudible) of the matter?

Mr. John J. Monigan: Yes.

Now, so far however as the situation on indemnity which is presented in the matter, the principles of Equating Act has been passed as negligence and in this circumstance doesn't apply.

Now, the counsel to the vessel has suggested that this matter was caused by the negligence of the longshoreman.

Now, the whole principle which is -- somewhat, I'm concerned to some degree in this matter as to whether or not the accident was caused by any mischief of the longshoreman regardless -- of course, if this Court is lead to the conclusion that the craft was not unseaworthy for whatever reason, then I don't have to concern myself about why, so long as it is considered that it is not unseaworthy.

However, if it is determined to be unseaworthy then we have to determine upon what theory is this vessel unseaworthy.

Now, there was a considerable mention yesterday and this morning about these parallelograms of forces in the vertical and component effects.

Now, we, this morning from the Congressional Library got a couple of books on rigging which I don't know -- I -- these are not cited in my brief, but possibly they will explain this for persons who are not a physicist, and I'm not, as to how this comes about.

One is called Handbook of Rigging by Rossnagel, R-O-S-S-N-A-G-E-L at pages 57 and 58.

It has a Library of Congress Number TJ1350R58.A

nd the other one is Mechanics for Engineers, Seely and Ensign, E-N-S-I-G-H which bears Library of Congress Number QA809.54, 1952.

Now --

Justice Felix Frankfurter: Mechanics of what?

Mechanics of what?

Mr. John J. Monigan: Mechanics for Engineers.

Unknown Speaker: And who are the authors?

Justice Felix Frankfurter: Seely.

Mr. John J. Monigan: Seely, S-E-E-L-Y, and Ensign, E-N-S-I-G-N.

Justice Hugo L. Black: What does this serve you now?

Tell us, what it is you are referring on, what it's about in plain language.

Mr. John J. Monigan: Yes, sir.

If -- if we can.

Now, counsel -- this case is taken a -- it's a steam -- a motor ship and it's not a sailing craft, but -- and I was about to say however that this case has taken very many texts during the course of its procedure through the courts.

When the unseaworthiness theory which was first asserted below was that there were certain pieces of wire introduced in evidence called L13 that comprised this gadget called the topping-lift which is the portside of the craft.

Everybody agreed that if this -- that is when I say everybody, all the experts and everybody agreed that these horrible L10 and L13 exhibits, if they were part of the topping-lift clearly made the craft unseaworthy and that would let -- that would resolve the cause of the accident.

However, that was not the finding of the trial court.

We're not concerned about facts here.

The trial court --

Justice Felix Frankfurter: Do you think -- what did you say, that everybody agreed?

Mr. John J. Monigan: That (Voice Overlap) --

Justice Felix Frankfurter: The trial court found the opposite?

Mr. John J. Monigan: No.

Everybody agreed that the wire that was introduced as to this exhibits was --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. John J. Monigan: -- incorrect wire.

Justice Felix Frankfurter: Oh.

Mr. John J. Monigan: And if it were on the topping-lift then at the time it would've -- by its own defects without considering anything else about winch, cut offs, and (Voice Overlap)

Justice Felix Frankfurter: And what did the District Court find?

Mr. John J. Monigan: Found, however, that these pieces of wire did not in fact comprise the topping-lift.

Justice Felix Frankfurter: I see.

Mr. John J. Monigan: And there was a conflict in the testimony as to that.

So, that's --

Justice Felix Frankfurter: In other words, the experts testified about something that wasn't in the case.

Is that it?

Mr. John J. Monigan: Well, there was a conflict in the testimony as to whether these pieces of wire were on it.

We rather thought that we had the edge factually on that but the trier of fact resolved that against --

Justice Felix Frankfurter: Would you mind parenthetically, telling me to what point, not just plain, but to what proposition are you expounding what you're about to explain?

Mr. John J. Monigan: Well --

Justice Felix Frankfurter: What is your -- what position are you -- are you taking in what you're going to tell us?

Mr. John J. Monigan: I don't know that I understand your question Mr. Justice Frankfurter.

What I'm about to say is that --

Justice Felix Frankfurter: Are you -- are you -- are you concerned to prove there was unseaworthiness or there wasn't?

Mr. John J. Monigan: No, All that I would like to --

Justice Felix Frankfurter: Are you disinterested to the expenditure of a complicated and --

Mr. John J. Monigan: Well --

Justice Felix Frankfurter: -- confiscated situation?

Mr. John J. Monigan: Well, my degree of interest depends upon the resolution of the basic question, except that I am to some extent impartial, not I hope to the extent that my impartiality shall cause the liability to be visited by my client.[Laughter]

Justice Charles E. Whittaker: (Inaudible)

Mr. John J. Monigan: I'm sorry, Mr. Justice Whittaker.

Justice Charles E. Whittaker: Do I understand you to say (Inaudible)

I don't understand how you do it.

(Inaudible)

Mr. John J. Monigan: Well, now that leads us to where we were going before, to the -- in the opinion of the Court of Appeals of course didn't reach the legal propositions for which I believe there is sufficient authority to justify my exculpation from liability.

Now, so far however as the unseaworthiness aspect of this craft is concerned, the forces which are assessed and I believe in the question to counsel, Mr. Justice Whittaker, you suggest that that the rotation of this pole has an effect upon this matter and it does.

And the position also of these matters here was for the guy -- preventer also have a factor.

Now, the reasons that this matter becomes important is that the theory of -- on theory of act of negligence which the trial court suggested in the matter was predicated upon the assumption that the location of these two guy and preventer was established without factual contradiction in order to have this astronomical strain which was in the vicinity of the 19 -- 17 to 19 tons.

Not alone does one have to assume a contingent pulling, but he also has to assume certain locations as to these ropes.

Now, there -- as a matter of fact, our longshoreman testified that rather than be in the position which was shown here and which was testified too, by the vessel, these matters were -- those -- that being their position.

Our witnesses testified that in fact they were in a position opposite the block at the base of the mast, so to create this position.

Now, as a consequence of that, all of the parallelograms of forces and factors and he adds up -- effect upon alters considerably.

So that in this position and there is a conflict in the testimony as to that which conflict --

Justice William J. Brennan: (Voice Overlap) --

Mr. John J. Monigan: I'm sorry.

Justice William J. Brennan: What's the -- what the trial judge find as a fact as to --

Mr. John J. Monigan: The trial court found as a fact --

Justice William J. Brennan: As to the location of (Inaudible)

Mr. John J. Monigan: That it appeared without contradiction that the position of this was and originally demonstrated.

And as a matter of fact, there was a short conflict assessment.

So, if unseaworthiness in the present case is to be predicated upon this protection for a location of the preventer then our interest in the matter is solely to determine whether that factual controversy should not be resolved because counsel for the vessel today has suggested that the continued hold is the factor after the wire became or the logs became jammed if they did become jammed.

There is a finding of jamming by the trial court, but the effect of the jamming is projected by the trial court upon the combination of that assumed location of the preventer as being without contradiction.

Now, it is our submission that the movement of that in order -- and all this testimony at the trial court as to which was referred to upon the several hypotheses was projected upon the theory that two things, and this the trial court found that the winch was bad.

The combination of the winch and the gear caused the craft to be unseaworthy, but that was triggered by this movement of the guy and preventer.

But that movement of the guy and preventer can have no effect upon the stresses which are imposed unless the position is such that mathematically on this parallelogram of forces that there would be those assumed locations.

Now, the -- as a consequence then that this Court should be inclined to consider that the unseaworthy, that the craft was unseaworthy because of some action of the longshoreman in moving gear.

Then we submit that that movement cannot be predicated upon the trial court's opinion because the trial court overlooked the fact that the longshoreman testified the one position for the gear and the vessel officer testified to another.

So, it was not without contradiction.

Chief Justice Earl Warren: Was it your position that the ship was unseaworthy or was not unseaworthy?

Mr. John J. Monigan: I don't know, Your Honor.

Chief Justice Earl Warren: I beg your pardon.

Mr. John J. Monigan: I don't know the answer to that question.

I think that --

Chief Justice Earl Warren: I don't care so far as your -- you --

Mr. John J. Monigan: Well, if the --

Chief Justice Earl Warren: (Voice Overlap)

Mr. John J. Monigan: All right.

All right, as far as my personal position is concerned, if it were resolved that the vessel was not unseaworthy, then I shouldn't have to worry about anything else.

Chief Justice Earl Warren: Yes.

Mr. John J. Monigan: Now -- now, assuming that the vessel is unseaworthy because of something the vessel itself has done, then I submit that the -- it's -- it then leads us into the possibility that we are again exculpated, although Mr. Justice Frankfurter suggest the question is not that easy, but -- so --

Justice William J. Brennan: So, the District Court held you liable?

Mr. John J. Monigan: The District Court did.

The District Court's opinion in that respect, I regard as being incorrect and it certainly is incorrect upon the theory that it was asserted.

Now, the indemnity argument has to be based upon contract either expressed or implied.

An expressed contract does not exist here because our contract was with the charter of the vessel and not with the vessel itself.

Justice William J. Brennan: Does the record show what kind of a charter this was (Voice Overlap)

Mr. John J. Monigan: At the time, it's a time charter and the vessel's crew -- officers and crew were aboard.

Now, there's no -- because of the immunity under Section 5 of the Longshoreman's Act as -- was pointed out by this Court in Ryan -- in Ryan and the rest of them, that unless we have voluntarily done something by way of a contract to enlarge our Section 5 or to destroy our Section 5 Longshoreman immunity, we are immune.

Now, -- so, we don't have a question of equating negligence between act to confess if negligence --

Justice Felix Frankfurter: But the whole question is whether this contract could be something -- isn't for something.

I think that -- I think there's a question.

I don't mean to give the answer.

Mr. John J. Monigan: No, I understand.

The --

Justice Felix Frankfurter: May I ask this, this very question, this very question.

Has that been adjudicated in the lower court, did it come up?

I don't mean in analogous cases.

I don't mean argumentative decisions, but in the situation like this, are there any lower court case who have rendered this?

Mr. John J. Monigan: In the -- in the lower court?

Directly, no.

There was one that was decided in the District Court of Maryland that it's not -- it's dicta really, but the dicta is bearable.

It says that -- and also in the Ninth Circuit, although we have the Third Circuit and the Ninth Circuit pretty well --

Justice Felix Frankfurter: From the Third Circuit it opened?

Mr. John J. Monigan: Well --

Justice Felix Frankfurter: That is --

Mr. John J. Monigan: Well --

Justice Felix Frankfurter: -- he explicitly said that he doesn't have to reach this theory as well?

Mr. John J. Monigan: Well, I think they reached it in their earlier decisions, not in this particular case.

But the -- this whole manner of -- of the -- well, I say this is as far as the beneficiary of the undertaking is concerned, the Third Circuit in the case that is cited on page 20 of our brief.

Well, it's not an identical situation.

It's quite similar and which they was held that the charterer or a vessel -- of a vessel was not the beneficiary of a stevedoring contract made between a stevedoring company and avoids charterer, so to permit the time charterer to sue the stevedoring company for damages sustained by reason of the failure to discharge a cargo when there was a work stoppage.

But --

Justice Felix Frankfurter: On the other hand, Mr. Monigan, am I wrong in having a -- I'm going to say a vaguish impression in the past readings that there are instances where -- where a third party could avail of an arrangement, not made directly to himself in this maritime situation?

Mr. John J. Monigan: Well, they suggest in that obscurity of action as a ground --

Justice Felix Frankfurter: Well --

Mr. John J. Monigan: -- as a (Voice Overlap) --

Justice Felix Frankfurter: But whether -- all that this is -- is something -- the hole so deep in admiralty law that the ship is the thing, that this binds the ship.

Mr. John J. Monigan: Well -- well, that it's true if -- if there were a situation where a lien was asserted against the ship, of course there was -- this action was initially started by a ammunition and ram but a stipulation for value was filed so that there is no lien problem here.

So, as between -- on general principles, for example, I submit that the general admiralty law in respect of liens is not applicable to help us to resolve the question.

Justice Felix Frankfurter: I think you've said enough to perhaps even persuade you that there's something for discussion in this problem that it isn't to be dismissed (Inaudible)

Mr. John J. Monigan: Well, the reason I -- the reason I suggested originally that there was not a situation of a third party beneficiary.

There -- as far as an intended beneficiary is concerned, there is no question at all that ordinary mercantile considerations of profit caused charterers to charter vessels and owners to hire them to charterers.

The time chart -- now, this is not a bareboat charter and the time charterer, when he enters into a contract to cause his hired vessel to be unloaded is not concerned about benefiting the owner of that vessel by reason of that contract.

What he wants to do is get the cargo discharged and get the ship on her way.

Justice Felix Frankfurter: Non-concept that the owner may not have an eye to the arrangement made by the charterer?

Mr. John J. Monigan: That's so and that he could put in his --

Justice Felix Frankfurter: The charter.

Mr. John J. Monigan: That he could put in his charter partner if he so desired and --

Justice Felix Frankfurter: I don't -- and it raises the whole question of what is and what isn't implied in the contract.

Mr. John J. Monigan: Well, there -- as far as an implied contract is concerned there certainly isn't any illegal obligation employed -- visited upon charterer which he is advised to discharge in anyway which would so far as his cargo discharged is concerned.

As far as the negligence is concerned, he doesn't owe any -- duty in negligence to his employees, so there's no basis for an employment agreement.

And so far as security of action is concerned that will arise only if the charterer is liable to the owner, and in this case there is no possible way for us to resolve that question because the ship was a German vessel.

The charterer was a South American company.

The charter party is not before the Court.

We don't know even by what law is to be determined of obligations under the charter party.

So, as far as security of action is concerned --

Justice Felix Frankfurter: Where is the vessel chartered?

Mr. John J. Monigan: I don't know.

Justice Felix Frankfurter: It's not in the record?

Mr. John J. Monigan: No, sir and --

Justice Hugo L. Black: (Inaudible) -- excuse me.

May I ask you, suppose if we would affirm what the District Court -- what the Court of Appeals said, then you would be out according to your argument, would you?

Mr. John J. Monigan: I would.

Yes.

Justice Hugo L. Black: And suppose we should not affirm and we revert?

Mr. John J. Monigan: Yes.

Justice Hugo L. Black: And we were called on the reason this question of the right -- of the right.Is it your contention that we should decide it here or send it back to the Court of Appeals?

Mr. John J. Monigan: Well, I would answer that by saying it depends upon whether the ground which the -- the affirmance or rather the reversal might take.

If the Court is inclined to predicate unseaworthiness upon a presumed movement of these two pieces of rope that's tied in the preventer, I think that would be incorrect to resolve that question without a remand, so we can find out where they are.

And -- and in the -- an appraisal of the conflict in the testimony in that respect which we never had.

Justice Hugo L. Black: And I suppose --

Mr. John J. Monigan: Yes.

Justice Hugo L. Black: I'm planning to get down to what -- what your point is.

Let's suppose now that we're not going to affirm it.

So, you've got to state your the position on something and you have indicated that the Court made a bad finding at least on its ground.

The Court had said that it made its finding on undisputed evidence as to where this guy and --

Mr. John J. Monigan: Yes.

That's right.

Justice Hugo L. Black: -- and --

Mr. John J. Monigan: Yes.

Justice Hugo L. Black: -- preventer were.

Mr. John J. Monigan: Right.

Justice Hugo L. Black: So now, let's suppose that that's not it.

When do we reach the point where you would take the position or when you did take the position in the court below on how this thing happened and why you're not allowed before --

Mr. John J. Monigan: Well --

Justice Hugo L. Black: -- outside of that one thing.

Mr. John J. Monigan: Well, my position in the trial court was as I indicated earlier was that we believe that this wire, L13, was the one.

Justice Hugo L. Black: Was defective?

Mr. John J. Monigan: Yes.

Justice Hugo L. Black: It was defective?

Mr. John J. Monigan: Yes.

But that we -- that we lost --

Justice Hugo L. Black: (Voice Overlap) --

Mr. John J. Monigan: That we lost on in the trial.

Justice Hugo L. Black: And you're not asked as to change that?

Mr. John J. Monigan: No, it would be -- I can't do that.

Justice Hugo L. Black: What's your other position?

Mr. John J. Monigan: The only other position is that if the craft is unseaworthy because of this cut off device --

Justice Hugo L. Black: Well, are you raising that question?

Are you arguing it?

Did you take a position on it?

Mr. John J. Monigan: Oh, yes, I did.

In --

Justice Hugo L. Black: What is -- what was your position?

Mr. John J. Monigan: Our position is -- as outlined in -- pages 22 to 25 of our brief.

Justice Hugo L. Black: What is it?

Mr. John J. Monigan: That if the vessel did anything with this cut off device, if that cut off device contributed to this accident, so that it was a causative factor in producing the result that it achieved, then even if it is not necessary for a party to -- even if it's not -- even if the fact that our contract was with the charterer and not with the vessel, it is not a bar to recovery on the implied --

Justice Hugo L. Black: Well, let's get away from the "ifs", I can't understand your position here because of your "ifs".

Mr. John J. Monigan: Well --

Justice Hugo L. Black: Well, you -- did you challenge the law or do you challenge here the statement that this cut off had nothing to do with it and there was no defect --

Mr. John J. Monigan: Oh.

Justice Hugo L. Black: -- in the way it was set?

Mr. John J. Monigan: Oh.

I think that the cut off cannot be ignored, that it did have something to do with it.

Justice Hugo L. Black: Of what?

Mr. John J. Monigan: It had something to do with it because there's a theory which is projected by the vessel here that the reason the whole affair happened was because there was a constant hold by the longshoreman on the cargo runner because it was jammed.

That that could not have continued to operate if the cut off device had ceased at three ton --

Justice Hugo L. Black: All right --

Mr. John J. Monigan: -- which was then the duty of the gear.

Justice Hugo L. Black: What right did you have to rely on that?

What findings were made by the Court with reference to that?

And if there are no findings made with reference to it, what do you point as to the (Inaudible), that that was -- you had a right to rely on that, you're not putting all -- of -- being the cut off if it reached the three-ton threshold?

Mr. John J. Monigan: Well, the right to reliance, there is nothing on and whether -- and I submit that whether we are or whether we should or should not have relied is not material on trying to determine what caused the accident.

That leads us to the question of liability.

I said in reflect to Your Honor's question that I thought the three-ton cut off device was a factor in producing the accident.

Justice Hugo L. Black: Now, what I'm asking you for, are you basing it on findings of facts on evidence, as on finding of facts where all of these are based on evidence.

Where is it?

Mr. John J. Monigan: Well, I'm not -- the testimony of the experts that -- of the witness Byrne at 86 and 87 says that the effect of this combination of the cut off device is drastic upon the safety factor.

Justice Hugo L. Black: What page -- what part of page 86?

Mr. John J. Monigan: 86 about halfway, just before the cross examine notation.

The -- well, it starts actually at the top of the page of 86 and continues over to 87.And he further says at 60 -- 67, the witness, Simons testified that --

Justice Hugo L. Black: The other one at page 67.

Mr. John J. Monigan: Sir?

Justice Hugo L. Black: I'm reading one on 86 where the witness says that (Inaudible) on the gear having a safe working load of three tons could be (Inaudible)

Mr. John J. Monigan: Yes.

Then the top of 67, the witness Simons said that it was not safe practice to have a rig designed for three-ton and a winch with a cut off at six.

Justice Hugo L. Black: Who was Simons?

Mr. John J. Monigan: Simons was witness that we called.

Justice Hugo L. Black: Was he an expert?

Mr. John J. Monigan: He was, yes.

He was a marine architect and designed topping rings -- rigs and so forth.

But we -- we had two -- we had two experts, Simons and Byrne.

Those were the two references that I invited to Your Honor's attention too.

Justice Hugo L. Black: And the Court -- the Court made no finding on this particular issue?

Mr. John J. Monigan: Well, it did to this extent.

As we referred before to 31 and 32 or rather 32.

The Court concluded that on the basis of the facts, it has found that the setting of the winch cut off device rendered the vessel unseaworthy.

Justice Hugo L. Black: Now, is that consistent with what he found above unless you go to the -- instead of saying that even though your people -- the negligence brought about an unsafe position.

The ship was directly liable on the unseaworthiness premise.

Mr. John J. Monigan: Well, I think that's -- that's true, except that there isn't anything in the -- in the testimony that says this.

But there's no question at all from -- from physical factors that if the cause of this accident was pulling the gear apart as counsel showed that the gear couldn't have been pulled apart if the -- there had been exerted upon the gear no more than three -- no more than something plus three tons of strain.

Now, whether or not it's designed for that purpose or not, it is the fact that this machinery which they had on the ship and about which we knew nothing was capable of putting whether it was putting on this additional load which even if the timber was jammed could not have been done if the -- if the energy transmitted to the cargo runner by this electric winch could not have generated sufficient energy to increase it over the safe working load of the gear.

And for that reason, the integration, all of these things are integrated into one working machine and when one puts into that one working machine a device which creates energy greater than the rig can stand, that is a cause of the factor which -- without which the accident would not have happened.

And as a consequence of which, the indemnity claim can -- if we get that far, would be necessary to construe a contract which did not exist between the parties as indemnifying the vessel --

Justice Hugo L. Black: (Voice Overlap) --

Mr. John J. Monigan: -- against its own --

Justice Hugo L. Black: (Inaudible)

Mr. John J. Monigan: Sir?

Justice Hugo L. Black: You're going now --

Mr. John J. Monigan: Yes, against its own ruling, yes.

Justice Hugo L. Black: Are you -- did you have any evidence that show that the -- or indicates an occurrence that the people who were doing the work you were doing had the right to depend on the fact that the power that was applied to you would not be enough to break a good wires unless the timber falls?

Mr. John J. Monigan: I -- there's nothing in the evidence except this that we -- that every piece of the equipment that's there has on a three-ton capacity.

We have -- I assume the right to rely upon the fact that the integration of machinery together would be such that it too would not be capable of generating more power than the gear safely could bear.

Justice Felix Frankfurter: That depends on what that means that every -- that -- it said three -- three-tons.

Mr. John J. Monigan: It -- it means --

Justice Felix Frankfurter: Then what that means and then the equipment in view of the Coast Guard saying on -- to say the least not clear in my mind what it does mean.

Mr. John J. Monigan: Well, the Coast Guard thing, I think that -- that there are two factors which the Court of Appeals mentioned two facts and I think it's quite true.

There is the factor of two and a half times power which this -- mentioned in the Coast Guard regulation which quite obviously has nothing to do with this affair, I think, I submit.

Because in the first place the vessel was built in Bremerhaven and it was not connected with the Coast Guard affair on -- on that.

Justice Felix Frankfurter: And on concept that the Germans may not have the same process taken.

Mr. John J. Monigan: They might -- they might very well.

But in any event, there are the suggestions that that is put in to safe the -- the motor from burning out.

But it also has the effect of transmitting enough energy to pull the six-ton and it is -- it is that creation of the energy sufficient to pull the six with gear that only could stay in three which is the predicate for the contributing aspect of -- to the accident and -- and the consonant with the finding of the trial court.

Justice John M. Harlan: What do you -- what do you do with Judge Hastie's statement where he expressly says that there is nothing in the record that would justify a finding, the setting was cut off at six tons was -- rendered the ship unseaworthy.

Mr. John J. Monigan: Well, there were these references which I -- I gave --

Justice John M. Harlan: I've --

Mr. John J. Monigan: -- to Mr. Justice Black.

Justice John M. Harlan: -- characterized the statement correctly, haven't I?

Mr. John J. Monigan: Yes.

Justice John M. Harlan: Do you quarrel with that statement?

Mr. John J. Monigan: Well, not -- not actively except that -- I think what we're doing is we're getting into a question of what is -- there is nothing that expressly says that but I think possibly if we say that's a drastic combination, it's not safe practice and so forth, we must predicate the thought that at least in the opinion of those witnesses who testified to that that they believe that it did have a contributing factor and into that it is the inference from that testimony which perhaps Judge Hastie didn't think.

Justice John M. Harlan: Well, did you intend that we would be justified in saying that the Court of Appeals was mistaken on this record saying that the finding of the District Court that the setting of this cut off at six was unseaworthiness, the Court of Appeals had no right to do that?

Mr. John J. Monigan: Well, I think that there is testimony which would justify the view that the trial court's finding was supported by testimony, so to -- to cause the reviewing revealing court under McAllister to affirm, to be obliged to affirm.

But there again, that perhaps is saying that it -- that true this condition existed but it wasn't triggered by -- by that combination.

Now, in order to determine what triggers it, we have to determine exactly the circumstances of the gear and so forth which I think has not been reviewed by the -- or has not been resolved and proved.

Justice Hugo L. Black: Is there any witnesses who disputed what your two experts said of this being standard practice, state practice?

Mr. John J. Monigan: Well, the vessel's people said that -- that drawing the lines of the argument that it wasn't designed to having to deal with the cut off.

Justice Hugo L. Black: They said it wasn't designed but it -- was there any evidence which refuted specifically the statement of bad practice (Inaudible)?

Mr. John J. Monigan: I don't recall it, Your Honor.

It -- it's quite possible that the ship's officers had said that they did not regard it as unsafe.

Justice Hugo L. Black: Now, I see here there are holes in the side --

Mr. John J. Monigan: Yes.

Justice Hugo L. Black: Where you put the guy over the preventer.

Mr. John J. Monigan: Yes, sir.

Justice Hugo L. Black: Were those holes that was placed by the vessel said that the longshoreman fastened them at the time the Court has found it to be negligent?

Mr. John J. Monigan: That was the position that -- yes.

Justice Hugo L. Black: Where they placed it --

Mr. John J. Monigan: But not --

Justice Hugo L. Black: Where they placed it there which were invitational insofar as fastening the guy rope is concerned or could the -- could they just put them anywhere?

Mr. John J. Monigan: No, they were --

Justice Hugo L. Black: There were holes here.

Mr. John J. Monigan: They were invitational but it is conceited that this exhibit does not correctly represent --

Justice Hugo L. Black: Oh, I understand it.

Mr. John J. Monigan: Yes.

Justice Hugo L. Black: I'm trying to find out if there were holes or something which they --

Mr. John J. Monigan: Yes, well -- well, there's what they called a clincher stiffeners on the rail which -- no -- which no more invites a particular spotting in this area than anyone else except that it does it for the matter.

Justice Hugo L. Black: Each -- each one, each one as to the (Inaudible).

Mr. John J. Monigan: Yes, where -- where --

Justice Hugo L. Black: They're just the same?

Mr. John J. Monigan: Yes, that's right.

Its not -- it's not particularly more one way or another.

Justice Hugo L. Black: Any kind of notice or any evidence or any kind of notice or anything about where they would be put in connection with the three-ton, whether it's six-ton or whatever?

Mr. John J. Monigan: No.

Actually, it wouldn't make -- the position wouldn't make any difference, so far as the three or six ton is concerned.

If it were put in the optimum position, which is -- where our longshoreman said it was that would -- would of course result in a transmittal of less force if it were three than six.

But, it will still be for a minimum.

Now, actually this other position is the worst position you could assume and which no sensible longshoreman including the witnesses who testified on our behalf, said that that was a completely unrealistic picture which was assumed by the trial court to have existed without contradiction.

Justice Charles E. Whittaker: Would that assume -- that would assume that position?

Mr. John J. Monigan: No, assumed to be established without contradiction.

Justice Charles E. Whittaker: (Inaudible)

Mr. John J. Monigan: Well, he made -- he made the finding that it appeared without contradiction.

Justice Charles E. Whittaker: (Inaudible)

Mr. John J. Monigan: Well, I think it would be -- I think it would be manifestly erroneous which would cause an appellate court correctly to -- to direct that -- that controversy which is apparent in the record and which is apparent from the printed portions of the record which are referred to in our brief on this -- this point which is concerned with the testimony of Mr. Costa which begins at page 52 and goes through to 57.

Justice Hugo L. Black: You take the position that that would show that he didn't have his mind on it, he didn't understand?

Mr. John J. Monigan: That's right.

I think -- I think that's --

Justice Hugo L. Black: That's in both ways.

Mr. John J. Monigan: Yes.

Justice Hugo L. Black: You would challenge the finding on that basis?

Mr. John J. Monigan: On that -- that aspect (Inaudible)

Justice Felix Frankfurter: May I ask wholly irrelevant question?

Is there any -- is there any -- am I -- is there any doubt that Nacirema is liable under the Longshoreman's Act?

Mr. John J. Monigan: No question (Inaudible).

Chief Justice Earl Warren: Mr. Freedman.

Argument of Abraham E. Freedman

Mr. Abraham E. Freedman: May it please Court.

In view of the limited amount of time which I have, may I have lead to file a reply brief to answer quite a number of the comments which have been made, which I believe are contradicted in the record.

I would like to specifically point out those portions in the record which are inconsistent with what my good friend over here has stated.

I -- I don't have time to do it now.

I would -- unless, Your Honors, ask me specific questions.

However, I would like to summarize very briefly --

Chief Justice Earl Warren: You may do it and counsel may answer it, provided you --

Mr. Abraham E. Freedman: Of course, sir.

Chief Justice Earl Warren: -- do it promptly.

Mr. Abraham E. Freedman: I -- I think it would be an order that he should have an opportunity.

Chief Justice Earl Warren: Yes.

Mr. Abraham E. Freedman: It is our position, sir, that this Court has established the beyond to venture that the shipowner has a non-delegable duty to provide a safe place to work, on board the ship for the longshoreman as well as the seaman.

That he may not delegate that duty although he may delegate the job and if the job is performed improperly then the shipowner is liable.

We had not go insofar in this case as to state that for negligence alone the shipowner is responsible, although I think that we would be completely justified in taking that position on the basis of Mr. Justice Harlan's opinion in the case of the Dixon versus United States where, Your Honor, passed aside the question of whether unseaworthiness is involved and said that the shipowner is liable on the basis of his non-delegable duty to the people on the vessel for the negligence of an independent contractor.

However, what we say here is based more on the Petterson case which Your Honors handed down following the decisions in Sieracki and in Hawn and Mahnich versus Southern Steamship Company.

Justice Felix Frankfurter: Is Mahnich the map case?

Mr. Abraham E. Freedman: Mahnich?

No, sir.

Mahnich is the case where --

Justice Felix Frankfurter: What's the map case?

Mr. Abraham E. Freedman: The map case?

Justice Felix Frankfurter: Yes, the obsolete map that was in the draw.

And they have a good map but they used an old map.

Isn't that Mahnich?

Mr. Abraham E. Freedman: No, that was not the Mahnich case, Your Honors.

That was -- I think that case was associated with Ron where there were a number of weather request missing too in a Court, this Court or rather a lower court held the vessel unseaworthy because she was not properly equipped with the proper charts and so on.

Justice Felix Frankfurter: And that's what I mean.

The charts, that's what I (Voice Overlap) --

Mr. Abraham E. Freedman: Charts, yes, sir.

Justice Felix Frankfurter: I should have said chart.

Mr. Abraham E. Freedman: Weather -- weather maps and so on.

Justice Felix Frankfurter: They had -- they had the right ones there but they also had some old ones and the old ones were used and that was deemed unseaworthy there.

Mr. Abraham E. Freedman: Your Honor, that's exactly what the Court held there.

Now here, following Your Honor's decision in the Petterson case in which, Your Honors, will recall that the shipowner was held liable for a defective block which had been brought aboard, supplied and brought aboard by the longshoreman.

Following that in the case of Grillea, Judge Hand speaking for the Second Circuit had this set of facts before him.

There were -- the longshoremen were engaged on that vessel at that time and replacing the hatch boards.

And after some of the hatch boards had been replaced, some of the men who were engaged in that very practice stepped on one of the hatch boards which was set on top of the pot-eye and therefore unsteady, and down he went into the hole.

It was conceded that it was a negligent act in putting it there by this very longshoreman.

However, the Court there held that pursuant to Your Honors decision in the Petterson case, it was an unsafe condition for which the shipowner was responsible regardless of whether the condition was created by the longshoreman or by the ship -- the ship itself.

Now, similarly here, sir, we say that the condition which was created here whether it was by the ship or whether it was by the longshoreman was a terribly dangerous and unseaworhty one.

Aside of the cut off device completely, let me cite to Your Honors, Judge Hastie's decision or part of his decision which he sets forth on page 113 of the record.

My friend here has said that the exclusive and sole factor which was the approximate course of the accident was the negligence of the winch operator in continuing to apply pressure.

As a matter of fact neither courts so held, neither courts so find.

Here is what Judge Hastie said which was the -- as to what was the deciding factor, “The decisive fact -- this is the second paragraph about down in the middle of the page in record, page 113, “The decisive fact as the Court found it was that the employees of the Nacirema had so changed the position of the head of the boom as to seriously distort the normal composition of forces which is presented by a straight lifting operation.

It was for this reason that the topping-lift was subjected to an enormous, abnormal, and unanticipated strain.”

It was on a basis of that unsafe condition therefore and we urge Your Honors that on a basis of that alone there should be liability in this case.

And my friend's contention that the courts below --

Justice Charles E. Whittaker: (Inaudible)

Mr. Abraham E. Freedman: Liability on the ship.

Justice Charles E. Whittaker: (Inaudible) what Nacirema did in moving the boom?

Mr. Abraham E. Freedman: Exactly, sir.

Any unsafe condition.

Your Honor -- Your Honors said it Petterson versus Alaska Steamship Company that the ship has the non-delegable duty.

It may delegate the work but it cannot delegate that duty.

If it engages Nacirema or any other independent contractor to perform the work, it is responsible for the unsafe conditions which may be created.

Justice Felix Frankfurter: But Mr. Freedman, the most --

Justice Charles E. Whittaker: (Inaudible)

Justice Felix Frankfurter: I beg your pardon?

But the most perfect, the most seaworthy boat can be twisted out of shape and out of gear by some conduct of -- of negligent or misconducting people.

Mr. Abraham E. Freedman: Sir, when a ship --

Justice Felix Frankfurter: Isn't that true?

Isn't that true?

Mr. Abraham E. Freedman: Well, I -- if Your Honor -- I -- I would like to understand Your Honor's question.

If Your Honor is saying that while a ship is in the control of the vessel owner or while the ship was being manned by its crew and it engages an independent contractor to perform certain work, let us say, it engages instead of just normal stevedoring work.

Let's say it engages a caterer to conduct the services in the stewards department.

And that caterer obtains a very bad food as a result of which the crew is poisoned.

This ship, let us say, was entirely careful in selecting a good caterer, a reputable caterer and even a (Voice Overlap)

Justice Felix Frankfurter: I'm not talking about that case.

I'm talking about the physical ship, the gear, the booms, all the components that a make ship what we call seaworthy.

And every expert would say and you would say it was seaworthy.

But it could be twisted out of shape.

It could be contorted, couldn't it, by some misconduct of those who handle it.

And therefore, your proposition is that whenever any non-crew members do these things that negligence per se renders the ship unseaworthy.

Mr. Abraham E. Freedman: Yes, Your Honor --

Justice Felix Frankfurter: That's almost your proposition.

Mr. Abraham E. Freedman: As a matter of a fact, that was the -- that was almost the bare statement which this Court made in Mahnich.

In the old days under the general maritime law before the Jones Act was handed down, there were numerous cases where the courts, this Court included in the -- in the Wily, and the others as they are out -- set out in the Mahnich case where the courts predicated liability on really negligence, although it was the negligence of a fellow servant which created an unsafe condition.

So that although there could not be a recovery on the basis of pure negligence of a fellow servant.

The Supreme Court in many instances as is outlined in the Mahnich case, allowed recovery where that negligence created an unsafe condition.

The Court has held that there would -- there need not be any scienter.

There was no notice.

The Court has held that it is an absolute duty.

Justice Felix Frankfurter: That's your proposition.

That's your proposition.

Mr. Abraham E. Freedman: I need not go so far here, sir.

Justice Felix Frankfurter: That any kind of negligence that -- that whenever through the negligence of stevedores, an otherwise seaworthy ship is twisted out of shape or contorted, damage is done to it, that makes the ship -- it then becomes unseaworthy.

Mr. Abraham E. Freedman: I -- I would say, Your Honor, that Your Honor's statement is --

Justice Felix Frankfurter: (Inaudible)

Mr. Abraham E. Freedman: -- much, much in general of course --

Justice Felix Frankfurter: -- (Inaudible) there's a lot of them, talk in Mahnich but it doesn't stand for that proposition.

Mr. Abraham E. Freedman: But your -- when --

Justice Felix Frankfurter: And Chief Justice Stone had a great deal of difficulty in explaining away, not overruling, in explaining away -- I forgot what's the name of the case.

Mr. Abraham E. Freedman: The Pinar del Rio.

Justice Felix Frankfurter: Yes.

Mr. Abraham E. Freedman: No, he did overrule it.

Justice Felix Frankfurter: What?

Mr. Abraham E. Freedman: Did overrule it, sir.

He overruled it --

Justice Felix Frankfurter: He overruled it?

Mr. Abraham E. Freedman: He overruled specifically the Pinar del Rio.

Justice Felix Frankfurter: Well --

Mr. Abraham E. Freedman: The Pinar del Rio -- and here were the facts, Your Honor.

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Abraham E. Freedman: In that case --

Justice Felix Frankfurter: You mean in terms, it was overruled?

Mr. Abraham E. Freedman: In that case, Your Honor --

Justice Felix Frankfurter: Was it overruled in terms?

Mr. Abraham E. Freedman: Yes, Your Honor.

Justice Felix Frankfurter: All right.

Mr. Abraham E. Freedman: My recollection is that he specifically overruled it.

Here were the facts.

In the --

Justice Felix Frankfurter: I know what the case is very well --

Mr. Abraham E. Freedman: -- under the -- well under the --

Justice Felix Frankfurter: -- because (Voice Overlap) --

Mr. Abraham E. Freedman: Well, under the old law -- under the old law, there could be no recovery for the negligence of a fellow servant.

In the Mahnich case, a mate and a bosun selected a defective piece of rope from a group of rope which was an abundant supply of rope which was entirely satisfactory and they rigged the scaffold with it.

And the man went up on the foredeck and started to paint and down he came because of the defective rope.

It was their contended on the basis of the Pinar del Rio case that the ship could not be responsible because actually it was the negligence of the mate and of the bosun which created this condition.

And therefore, there could be no liability.

The Supreme Court said no, that rope was defective.

It didn't make any difference.

If it was an abundant supply of good rope, if there was an abundant supply of good rope, there had to be liability because it was an unsafe scaffold which had been rigged.

And the Court there specifically overruled the Pinar del Rio which had held expressly to the contrary.

Justice Hugo L. Black: I don't think they used the words overruled.

Mr. Abraham E. Freedman: I'm sure we didn't overrule it.

Justice Hugo L. Black: What he said was this although I'm -- but my stand point is much the same thing.

Justice Felix Frankfurter: Yes.

Justice Hugo L. Black: That the statements from the Pinar del Rio relied upon by the two courts below could be taken to support their decision.

Only on the assumption, either that the presence of sound rope under which scaffold afforded an excuse for the painter to provide a safe staging or that anteceded negligence of the mate in directing the use of defective rope relieve their owners from liability to furnishing their barge, thereby rendered unseaworthy.

But as we have seen neither assumption is tenable in the light of our decisions before and since the Pinar del Rio.

So far as this statements supports these assumptions, it is disapproved.

We cannot follow it.

Also --

Justice Felix Frankfurter: (Inaudible)

Justice Hugo L. Black: -- followed the (Inaudible) and the Carlisle Packing Company --

Mr. Abraham E. Freedman: Well, I take that to mean that they -- when they disapproved a decision in Pinar del Rio.

Justice Felix Frankfurter: When you disapprove some language in a case --

Mr. Abraham E. Freedman: Well --

Justice Felix Frankfurter: -- you don't overrule the decision in a case.

Mr. Abraham E. Freedman: Well, sir, I -- I don't know --

Justice Felix Frankfurter: I know I have constantly learned new law but I thought that that's still is good, that by over -- by saying we disapprove a specific statement in an opinion, we don't overrule the decision.s

Mr. Abraham E. Freedman: Well, it was a holding in the Pinar del Rio which was disapproved.

However, in any event --

Justice Felix Frankfurter: What's with the holding?

You keep on saying the holding.

It was language in talk.

Chief Justice Earl Warren: Mr. Freedman, I'm afraid we'll have to conclude this case.

Mr. Abraham E. Freedman: I -- I do want to express my appreciation for the additional time and the consideration which is given.

And I will file my brief right -- my memory in great copy, sir.

Chief Justice Earl Warren: Thank you.

Mr. Abraham E. Freedman: Thank you, sir.