Before PARKER and GOODRICH, Circuit Judges, and BARD, District Judge.
This is an action for personal injuries. Plaintiff, a longshoreman, sued on the law side, Seas Shipping Co., Inc., owner of the steamship, Robin Sherwood, to recover damages for injuries he sustained while loading the vessel. Seas Shipping Co. impleaded the two Bethlehem companies whose connection with the facts is described below. The plaintiff then amended his complaint to include the claim against each of the two third-party defendants. The trial was to a court with a jury but before the testimony was completed it was stipulated that the plaintiff's damages were $9,500 and that the court should determine liability as though a jury trial had been waived at the outset. The District Court decided in favor of the plaintiff against the Bethlehem companies and in favor of Seas Shipping Co., Inc. The plaintiff appeals, at No. 8722, from the judgment against him and in favor of Seas Shipping Co., Inc.The Bethlehem companies, at No. 8706, appeal from the judgment against them in favor of the plaintiff. The appeals were heard together. The following statement of the basic operative facts is taken from the opinion of the Court below [57 F.Supp. 724, 725]:
"The defendant, Bethlehem Steel Company, was awarded a contract by the United States Maritime Commission to build the steamship Robin Sherwood. That company subsequently sublet a portion of the job to the defendant, Bethlehem Sparrow's Point Shipyard, Inc. The latter undertook to assemble and install on the vessel, among other things, certain cargo gear and particularly, the ten-ton boom and tackle at number 5 hatch.
"Upon the completion of the vessel in June of 1941, the ten-ton boom was tested by lifting a dead weight of twelve and a half tons, and the vessel was then turned over to the defendant, the Seas Shipping Co., Inc., which had purchased it from the Maritime Commission.
"The vessel was in service approximately eighteen months when it called at the port of Philadelphia on December 23, 1942, to load parts of freight cars for shipment abroad. The plaintiff was one of a number of longshoremen who were engaged to load the cargo into the vessel. After rigging the gear on the ten-ton boom, which had never been used up to this time, the longshoremen lowered one piece of freight into the hold of the ship and were engaged in stowing away the second part of the freight car, the weight of which was not in excess of 8.2 tons, when the shackle which supported the ten-ton boom broke, causing the boom and tackle to come down and injure the plaintiff."
I. Liability of the Bethlehem Companies.
The Bethlehem Steel Company constructed the ship on contract with the United States Maritime Commission, which in turn sold it to Seas Shipping Co. Bethlehem Sparrows Point Shipyard, Inc. was a sub-contractor which installed the defective equipment. As the Court below stated, the case is one of maritime tort. Atlantic Transport Co. of West Virginia v. Imbrovek, 1914, 234 U.S. 52, 34 S. Ct. 733, 58 L. Ed. 1208, 51 L.R.A.,N.S., 1157. Nevertheless, the principles in MacPherson v. Buick Motor Co., 1916, 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, Ann.Cas.1916C, 440, are broadly applicable, that law having become so widely accepted as to be construed as a part of the general law of torts, maritime as well as common law. They are summed up in Restatement, Torts § 395 as follows:
"A manufacturer who fails to exercise reasonable care in the manufacture of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing substantial bodily harm to those who lawfully use it for a purpose for which it is manufactured and to those whom the supplier should expect to be in the vicinity of its probable use, is subject to liability for bodily harm caused to them by its lawful use in a manner and for a purpose for which it is manufactured."
That the appliance here in question was one concerning which great precautions were necessary in order to comply with the requirements of reasonable care is clear. It is found as a fact that the defendants all knew that the shackle in question was to be used to support the ten-ton boom. The failure of this shackle to support the boom and any load which it might at the time be hoisting would thereby endanger human life as well as property. It is equally clear that plaintiff was one of the persons within the ambit of the protection of the duty imposed when he was assisting to load the ship. He was engaged in the very thing for which the apparatus was designed and was one of those "whom the supplier should expect to be in the vicinity of the probable use * * *".
Neither of these points is questioned by the defendants Bethlehem. It is urged, however, that the evidence is insufficient to establish negligence on their part. It appears that the shackle in question was purchased by the Bethlehem companies from the MacMillan Company. The latter company did not manufacture the shackle, but purchased it from some other company whose name has not been disclosed. That fact was also present in MacPherson v. Buick Co., supra, and the legal conclusion expressed in that case concerning it is also found in Restatement, Torts 400. The purchase of this article, which became a component part of the ship, from outside sources does not relieve the defendants from liability as manufacturer.
The argument for the Bethlehem companies stresses the point that they took all the precautions and safeguards customarily used in the shipbuilding industry to guard against defective material and cargo gear purchased from others. But the Court found as a fact that "There is no evidence as to what inspections or tests are usually made upon such shackles in shipyards generally." That seems to us to dispose unfavorably for the Bethlehem companies of the argument that they should not be liable because they followed the common and usual precautions. Furthermore, even if they had, that would not necessarily excuse them for while usage is relevant in determining whether reasonable care is exercised it is not conclusive in (with one or two exceptions) establishing compliance with the legal standard. Texas & Pacific R. Co. v. Behymer, 1903, 189 U.S. 468, 23 S. Ct. 622, 47 L. Ed. 905; The T. J. Hooper, 2 Cir., 1932, 60 F.2d 737, certiorari denied, 1932, 287 U.S. 662, 53 S. Ct. 220, 77 L. Ed. 571; Bohlen, Francis H., Some Recent Decisions on Tort Liability, 4 Tulane Law Review 370 (1930); 2 Wigmore on Evidence (3d Ed.) § 461.
The trial judge concluded that sufficient care had not been used. He pointed out that an x-ray test would have disclosed the defect (a "pipe" inside the metal) and pointed out that this particular shackle was a key piece on the largest boom on the ship. He also found that a test by tapping or striking with a piece of metal would have disclosed, to the ear of an expert, something which would have put him on notice. This conclusion, as would be expected, was not received with enthusiasm by the Bethlehem companies. Nevertheless, we think it is sound. So far as it appears, the only test to which this shackle was subjected was the lifting test which was made upon the completion of the vessel. The piece of apparatus was critical and the defect in it subjected life and property to great danger. ...