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The shackle was a forged U-shaped bar of mild steel about one and three-quarter inches in diameter, pierced at the two ends to take a cross-bar. The defect which caused it to break was a cavity known as a pipe, located in the center of the bar just at the bend of the U extending longitudinally a distance of possibly three-quarters of an inch. From this pipe a crack or seam, also longitudinal, extended to the outer surface of the U at the crown or bend. The separation or parting line at the surface of the shackle was "a couple of thousandths of an inch wide"an estimate which I accept in default of accurate instrumental measurements. The defect occurred in the course of forging the shackle. After forging, as part of the process of manufacture, the entire shackle was galvanized. Before it came into the hands of any of the defendants, it was painted. It is unlikely that the crack was visible to the naked eye, even without galvanizing or painting, but certainly when the shipowner got the shackle as part of the ship's equipment it had been effectively concealed and was entirely invisible. I find further, not only from the testimony but from my own examination of the shackle, that its surface was not perfectly smooth anywhere and that there was no exceptionally large raised area at the line of the fracture which would *727 call attention to it or which is noticeably different from other unevennesses on its surface. The crack was not welded after forging nor "doctored" in any way and there was nothing on its surface to suggest that it had been. To sum up, when the ship was turned over to the Seas Shipping Co., no visual inspection of the shackle, however close, would have disclosed anything to indicate that it was defective.
The plaintiff's expert testified that, even without other pieces to use as a standard, tapping a piece such as the one in question will produce a dull sound which will reveal that it is defective, "if the fracture is bad and if it is transverse" and he further said that, in his opinion, this particular shackle would have given a dull sound. Of course, it may be accepted that if a crack is very large it will cause the bar to give a dull instead of a ringing sound. Parenthetically, the crack in this shackle was longitudinal, not transverse and, of course, any fracture in a shackle is bad in one sense. I do not, however, accept the testimony of the plaintiff's expert that this particular shackle with a hair line crack of two one-thousandths of an inch would have given out a tone so noticeably dull as to indicate any thing to the listener. He was shown to be so completely wrong in his very definitely expressed opinion that the crack had been doctored and a layer of metal added and the whole welded with an acetylene torch, that I am unwilling to accept his guess at the kind of sound which this particular shackle, before it was broken apart, would have given out. Rejecting his opinion, I find that there is no evidence to the effect that, striking this shackle, by itself and without others like it for comparison, with a piece of metal would have disclosed anything wrong with it.
But apart from the fact question and assuming that the shackle, if suspended and tapped, would have given out a suspicious sound, I am of the opinion that under the circumstances of this case the shipowner was not required by law to make such a test or to do more than he actually did. The question involves the extent to which a shipowner, who is not the builder of the ship nor the manufacturer of its gear, is under an affirmative duty to discover unknown and invisible defects in a ship's equipment.
These defendants are shipbuilders on a large scale and it is to be assumed that they have adequate and complete plant and equipment, including forge and metal shops, as well as experts familiar with metals and all the practices of forge shops and are expert in the examination and testing of metals. A measure of diligence in searching for and discovering defects which would be entirely unreasonable in case of a shipowner, might quite properly be exacted from the builder. It is undisputed that the X-ray test would have disclosed this defect. Perhaps that is more than should be required, but this particular shackle was a key piece in the largest boom tackle on the ship and a link, the breaking of which might cause as much or more damage as that of any other piece of steel on the ship. However that may be, I am satisfied and so find, that the test, by tapping or striking with a piece of metal, if performed as the plaintiff's expert said it should be that is, by suspending a number of pieces of the same size and contour and striking one after the other and comparing the tone given outwould have disclosed, to the ear of an expert, something which would have put him on notice. 2b1af7f3a8