Union Carbide & Carbon Corp. v. United States, 110
| Decision Date | 05 January 1953 |
| Docket Number | Docket 22504.,No. 110,110 |
| Citation | 200 F.2d 908 |
| Court | U.S. Court of Appeals — Second Circuit |
| Parties | UNION CARBIDE & CARBON CORP. v. UNITED STATES. |
John W. Crandall, New York City (Myles J. Lane, U. S. Atty., Hunt, Hill & Betts, and Robert M. Donohue, all of New York City, on the brief), for respondent-appellant.
John J. Killea, New York City (Hill, Rivkins & Middleton, New York City, on the brief), for libellant-appellee.
Before SWAN, Chief Judge, and CHASE and CLARK, Circuit Judges.
Respondent's Liberty ship, the "Walter Raleigh," built about 1943, began a long voyage from New York on December 29, 1944, through the Mediterranean to India, Ceylon, and South and West Africa. At Takoradi, West Africa, on March 31, 1945, it took on 4,400 tons of manganese ore for transportation to Philadelphia, Pa., with libellant named as the ultimate consignee. At Port of Spain, Trinidad, on April 21 and 22, 1945, to which port it proceeded — in accordance with general directions of the War Shipping Administration for navigation during that war era — it filled its tanks with fuel oil, also pursuant to W.S.A. instructions. Upon arrival at Philadelphia, May 6, 1945, certain of the manganese was found contaminated by the oil so as to be rendered unfit for chemical use, as in the manufacture of storage batteries, although still fit for metallurgical use, as in the manufacture of ferromanganese. So the cargo owner brought this libel for the lessened value of the ore against the ship, its operating agent, and the United States as owner. The United States has assumed entire responsibility, and the action has been discontinued by stipulation so far as the agent is concerned. The parties made various stipulations, and most of the underlying facts are not disputed — though, as we shall see, enough controversy remains to leave this in the category of an appeal on the facts. Respondent concedes damage to the ore from the taking on of the oil at Trinidad, but holds the entire fault to be that occurring in the shipment of the oil, i.e., a fault of management only, for which the carrier is not responsible under the Carriage of Goods by Sea Act, 46 U.S.C. § 1304(2) (a). But the district court, while finding such faults of management, also found a concurrent cause of the damage in the failure of respondent to use due diligence to make the ship seaworthy in the two particulars hereinafter discussed and hence liable under 46 U.S.C. § 1304(1).
The district judge, 109 F.Supp. 781, wrote a careful and reasoned opinion giving the facts in detail, and we shall content ourselves with a generalized statement only. The oil was taken from a barge hooked up to the ship's main deck fuel oil filling line. This led to the ship's No. 3 port and starboard deep tanks, whence it gravitated into the No. 5 port and starboard and No. 6 fuel oil double bottom tanks. The level was controlled by an automatic equalizing line between the No. 3 tanks. But the ship's engineer discovered a leaky gasket in a valve in this line before reaching Trinidad. The engineer did not attempt repairs, since he deemed it a "yard repair" to be done in port at Philadelphia because of the inaccessibility of the valve. The equalizer was therefore unusable at the time because of the danger of oil fumes in the engine room. Moreover, the sounding tube leading to the No. 3 deep tank was jammed with a sounding rod or chain; it was plugged up, and attempts at clearing the tube before arriving at Trinidad were to no avail. During the filling of the tanks, the manhole covers on the tanks were taken off so that the flow of oil could be visually observed. The district court found that this was because the other means of testing were unavailing on account of the defects noted; and this is surely a justifiable conclusion. During the course of the filling the observing engineers found that...
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