Great Atlantic & Pacific Tea Co. v. Brasileiro

• Decision Date: 03 February 1947
• Docket Number: Docket 20427.,No. 143,143
• Parties: GREAT ATLANTIC & PACIFIC TEA CO. v. Lloyd BRASILEIRO.
• Court: U.S. Court of Appeals — Second Circuit

159 F.2d 661 (1947)

GREAT ATLANTIC & PACIFIC TEA CO. v. Lloyd BRASILEIRO.

No. 143, Docket 20427.

Circuit Court of Appeals, Second Circuit.

February 3, 1947.

Before L. HAND, SWAN, and CLARK, Circuit Judges.

Henry N. Longley and Bigham, Englar, Jones & Houston, all of New York City (John W. R. Zisgen, of New York City, of counsel), for appellant.

Frank J. McConnell and Purrington & McConnell, all of New York City (James D. Brown, of New York City, of counsel), for petitioner Lloyd Brasileiro.

L. HAND, Circuit Judge.

These appeals are from a decree in a proceeding by a shipowner to limit its liability for damage by fire and water to the cargo of the ship, "Pocone." As the total claims are less than the conceded value of the ship, no question of limitation arises; and the first and chief issue is of the owner's liability under the fire statute:¹ that is to say, whether the fire was "caused by its design or neglect." A second and subsidiary issue is of the owner's liability for water damage, but, as will appear, this it will be unnecessary to decide. The facts, substantially as the judge found them, are as follows. In November and December, 1941, the "Pocone" lifted a cargo in Brazilian ports, consisting for the most part of coffee and castor beans. Her last port of call was Victoria, Brazil, from which she cleared on December 9th; but she put in at Recife for bunkers on the 13th and finally broke ground bound for New York on the 14th. She had been designed with a cross or thwartship bunker forward of the boiler room; but, because coal was scarce in Brazil, before she left the United States she also filled her "Reserve Bunker," which was the space just forward of the cross bunker, connected with the boiler room by a tunnel passing through the cross bunker. Before she began to lade any of her return cargo, the "Reserve Bunker," the coal from which had been burned on the voyage south, was thoroughly cleaned and made ready as stowage space; and, when she left Victoria, 8500 bags of castor beans in burlap were stowed in it. These bags reached up to the 'tween-decks above — about twenty-one feet — and filled the hold thwartships and fore and aft except for a space of about eight inches between the after end of the stow and the after bulkhead. The judge found that, through the working of the ship during the voyage, the stow had slipped so that some, if not all, of the after bags were either in actual contact with, or very close to, the after bulkhead. On the 19th — five days after the ship left Recife — the coal in the port cross bunker began to give off fumes and heat; but this quickly disappeared after the crew played water over the surface, and nothing further untoward happened until the 28th, when again the coal in the port cross bunker was found to have heated. By the afternoon of that day flames appeared on its surface, and although the crew intermittently wet it down, this fire continued to break out, and by the afternoon of the 29th, had extended to the starboard cross bunker. Flames played upon the surface after the ship berthed at her pier in Brooklyn at noon on the 30th, and until midnight of that day. The court concluded that below the surface the coal "must have been highly heated if not incandescent from December 28th to midnight of December 30th," and we accept the finding as an inescapable inference. The ship began to take out the coal which remained in the cross bunker on the afternoon of the 30th; and what was taken out had been so wetted that, although it was steaming, it neither flamed, nor was incandescent. By midnight on the 31st the bunker was substantially empty, the limber boards were exposed and so was the forward bulkhead. The limber boards over the port bilge, from the forward bulkhead aft nearly the whole length of the bunker had been burned; also a hole had been burned through the bottom of a wooden casing which protected a sounding pipe that ran down the side of the forward bulkhead to the port bilge. This casing was made up of three wooden sides which surrounded the sounding pipe, and after the fire at the bottom had burned the hole the casing apparently acted as a chimney, because, although the outside of the boards above the hole was not burned, on the inside about a third of their thickness had been charred away. For a distance of some five feet that part of the bulkhead, along which the pipe ran, had been warped; and this the court found was because of the flames within the casing.

The owner's general agent in New York was in Washington, and his duties devolved upon one, Zumsteg, its "traffic manager," who handled the movements of cargoes, set the schedules of the ship, made arrangements for lading and discharge, and oversaw all operations at the pier. Under him was a man named Borges, the "port engineer," whose duties were to board vessels on their arrival, to make all requisitions for repairs and arrangements with the shipyard if necessary, and whose words, so far as engineering and technical matters were concerned, was final. As was his duty, Borges boarded the ship on the afternoon of the 30th and talked with the master who told him that there had been a small fire in the coal for a couple of days. Thereupon Borges went below to the fire room with the master and engineer, and from there he went into the cross bunker, which was lighted, and walked over the coal and looked about; although, as we have said, there were intermittent flames on the surface until midnight of that day, apparently there chanced to be none while Borges was there, and the bunker looked normal. It was Borges who directed that a shore gang should relieve the crew on the morning of the 31st in clearing out the coal; but whether the work continued during the night of the 30th does not appear.

Castor beans are made up of a greasy pulp inside a shell, and the shell is apt to be crushed when the bags are stowed, in which event the oil spills out and stains the bags. About seven-thirty on the morning of January first fire broke out in the castor beans stowed in the "Reserve Bunker," whence it spread to the No. 3 'tween-decks above. Shortly thereafter the fire was reported to the master who ordered the hatch covers to be taken off No. 3 main deck hatch and from the hatch which led from the 'tween-deck to the "Reserve Bunker." The fire hose was connected up and water was poured into that bunker for fifteen or twenty minutes, but, as this proved ineffectual, a fire alarm was turned in, which the city fire department answered. Number 3 hold and 'tween-deck and No. 2 hold and 'tween-deck were flooded and eventually the ship was sunk at her pier. The cargo in both the forward and after holds was damaged by water, which made up most of the loss.

The judge found that the master and crew had been negligent in not recognizing the danger that the fire in cross bunkers might ignite the castor beans. It would have been a simple and practical operation, he thought, to discharge the cargo in the forward square of the hatch of No. 3 'tween-deck and then discharge all the cargo in the "Reserve Bunker," and that ought to have been done before the morning of the first. He found that it was the fire and heat in the cross bunker which had in fact caused the fire in the "Reserve Bunker," and that the bags had been charring and heating for a number of...