Spang Chalfant & Co. v. Dimon SS Corporation

• Decision Date: 18 April 1932
• Docket Number: No. 312,313.,312
• Parties: SPANG CHALFANT & CO., Inc., v. DIMON S. S. CORPORATION. THE PACIFIC FIR. DIMON S. S. CORPORATION v. SPANG, CHALFANT & CO., Inc., et al.
• Court: U.S. Court of Appeals — Second Circuit

57 F.2d 965 (1932)

SPANG CHALFANT & CO., Inc., v. DIMON S. S. CORPORATION.

THE PACIFIC FIR.

DIMON S. S. CORPORATION v. SPANG, CHALFANT & CO., Inc., et al.

Nos. 312, 313.

Circuit Court of Appeals, Second Circuit.

April 18, 1932.

Bigham, Englar, Jones & Houston, of New York City (Henry N. Longley and James N. Senecal, both of New York City, of counsel), for appellants.

Harold V. Williams, of New York City (Harry D. Thirkield and Raymond E. Stefferson, both of New York City, of counsel), for appellee.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

The libelants libeled the claimant's ship Pacific Fir for damage to parcels of the cargo of that ship, on a voyage from Baltimore to Los Angeles; the claimant countered with a cross-libel in general average. The damage was incidental to putting out a fire which started in charcoal stowed in the same hold with the libelants' goods. Under section 182 of title 46, U. S. Code (46 USCA ? 182), the ship would have a defense if the fire was not caused by "design or neglect," and that would be a preliminary issue. But it is not material to the cross-libel. Under the Irrawaddy, 171 U. S. 187, 18 S. Ct. 831, 43 L. Ed. 130, the ship cannot recover in general average, unless she be without fault, though she be excused under the Harter Act (46 USCA ?? 190-195). Not so, if she provides in the bill of lading for general average in that event. The Jason, 225 U. S. 32, 32 S. Ct. 560, 56 L. Ed. 969. The bill of lading did have such a clause; that is, the ship stipulated for general average in the case of any "damage or disaster resulting from * * * unseaworthiness," if due diligence had been used to make her seaworthy and properly to equip her. The bill did not, however, reserve the same right in the case of fire which was not the result of the neglect of the owner, and the cross-libel cannot therefore succeed, merely upon showing that in this case the fire was so caused. Whether a clause worded to cover such a case would be equally valid we need not say. Nor can the cross-libel succeed under the clause just quoted so far as the fire was the result of unseaworthiness, for that, if it existed at all, was due to the ship's design and known to the owner. Therefore at least as regards the cross-libel, the bills of lading may be disregarded, and the case is open on the merits. Since in our opinion it must succeed, it carries with it an affirmance of the decree so far as it also dismissed the libels.

The fire started in hold 4, just abaft the engine room. In this the ship had stowed a quantity of charcoal at Norfolk, the 'tween decks being already full. The whole stow of this hold was in four blocks; the first, abaft the bulkhead which separated off the engine room, contained a part of the charcoal. Next came a block of baled cotton waste and general cargo, stowed up to within three feet of the 'tween decks, the after end of which came under the square of the hatch. Three feet abaft this, the rest of the charcoal was stowed in the third block, under the square of the hatch; and the after end of the hold was filled by a fourth block which may be disregarded, for the fire started in the charcoal of the third. At the bottom of this were "grinding balls," above which were cases of copper sheets, and on top of these barrels of soda ash, stowed on end, coming up to a point a little above the level of the tunnel shaft. The charcoal, in particles of about the size of a pea, was packed in paper bags covered with jute, and stowed upon dunnage, laid fore and aft upon the top of the barrels. It filled the ship from wing to wing, five bags high amidships, and twelve at the wings; leaving a space of three feet above the top of the stow at the wings, and seven feet amidships. There was a space of some sixteen inches between the skin of the ship and the sides of the stow. The fire started in the center of the stow, in the first or second tier from the surface.

The block of cotton waste was protected at its after end by two tarpaulins, meant to keep off charcoal dust. The libelants bear heavily upon the master's direct testimony that these ran across the hold from batten to batten, close up to the 'tween decks, effectively cutting off ventilation through the top of the hold. It is, however, entirely plain that this was not the case, but that at the center the lapped ends of the tarpaulins lay upon the top of the block, being held in place by some boilers. Indeed, the master's direct testimony is consonant with this conclusion. They did not therefore substantially obstruct the ventilation. Charcoal is a substance subject somewhat rarely to spontaneous combustion. Its chief period of danger is within three days after it is made, when it absorbs gases and generates heat, especially if in powdered form. The larger the pieces, the less the danger. It did not appear how old this charcoal was when shipped, except that it had come to Norfolk by rail; or whether it had been wet en route, which makes it more combustible; but it had been on board for ten days before the fire broke out in the Pacific.

The first fault charged is that it should not have been shipped in the hold at all, but in the 'tween decks. Master mariners testified both ways as experts, but the judge who saw them was not convinced by those who said that the hold was worse, and the record does not show that he should so have found. It is indeed doubtful ? priori whether the hold is not the better place, at least in the tropics, though there are indeed substantial ...