Accinanto, Limited v. Cosmopolitan Shipping Co.

Decision Date07 August 1951
Docket Number3053,3037,No. 3028,3058,3035,3060.,3028
Citation99 F. Supp. 261
PartiesACCINANTO, Limited et al. v. COSMOPOLITAN SHIPPING CO., Inc., and five other cases.
CourtU.S. District Court — District of Maryland

COPYRIGHT MATERIAL OMITTED

Lord, Whip & Coughlan, and George W. P. Whip, all of Baltimore, Md., Bigham, Englar, Jones & Houston, Henry N. Longley, and James H. Simonson, all of New York City, for libellants.

Ober, Grimes & Stinson, and William A. Grimes, all of Baltimore, Md., Haight, Deming, Gardner, Poor & Havens, Wharton Poor, and Tallman Bissell, all of New York City, for respondents.

CHESNUT, District Judge.

These consolidated admiralty cases require consideration of sections 1303 and 1304 of the Carriage of Goods by Sea Act, (hereinafter sometimes referred to as C.G. S.A.) 46 U.S.C.A. §§ 1300-1315, and their proper application to the facts of the cases. I have separately made findings of fact including the more important evidentiary facts; but for the purposes of this opinion, in stating my conclusions of law, it will be sufficient to state only undisputed facts and the ultimate facts as found without evidentiary detail.

The libellants in the six cases were the shippers, consignees or owners of general merchandise cargo shipped from New York and to be discharged at Antwerp, Belgium, and LeHavre, France, on the Ocean Liberty, an American built Liberty ship of that usual type. The respondent A/S J. Ludwig Mowinckels (hereinafter called Mowinckels) is a Norwegian corporate ship owner which was the sub-charterer of the Ocean Liberty, owned by a Norwegian corporation and by it chartered to Saguenay Terminals, Ltd., which in turn sub-time chartered it to Mowinckels for the particular voyage. The ship was manned and victualed by its Norwegian owner. The other respondent, Cosmopolitan Shipping Company, Inc., is a Delaware corporation with principal office in New York City, acting as general agents in the United States for Mowinckels. Mowinckels operated other ships between United States North Atlantic ports and Antwerp and certain French ports under the trade name of "Cosmopolitan Line".

The Ocean Liberty was delivered to Mowinckels at Baltimore on June 28, 1947. Between that date and July 5, 1947 she was there loaded with 739 tons of ammonium nitrate fertilizer (hereinafter called Fgan) in lower hold No. 1; 1381 tons in lower hold No. 3 and 1189 tons in lower hold No. 5. No other cargo was stowed in these lower holds, but the ship also took on 1927 tons of general cargo at Baltimore. She then sailed to New York where 2551 additional tons of cargo were stowed on or under deck but none in the holds where the Fgan was stowed. She there cleared for the ports of Antwerp, Cherbourg, LeHavre and Boulogne to be visited in that order. On July 22, 1947 when about to enter the English Channel off Bishop's Rock, she was diverted by a radio message authorized by Mowinckels to go directly to Brest, France, a port to the west of Cherbourg. She arrived at Brest on July 23 and lay there at the dock until July 28th when a fire was discovered about 12/30 P.M. in lower hold No. 3 which contained ammonium nitrate fertilizer. The fire progressed rapidly, could not be extinguished by the local fire department, and while she was being towed out of the harbor, she stranded on a sand bar and about 5:30 P.M. exploded completely destroying the ship and all the cargo then on board, a considerable part of the general merchandise cargo consigned to Antwerp and LeHavre having been landed on the dock at Brest, in order to permit the unloading of certain gondolas (knocked down railroad cars) consigned to the French Government. The goods which had been unloaded on the dock were either destroyed or greatly damaged by the fire originating on the ship.

The libels in these cases were filed on behalf of shippers or owners of cargo wholly consigned to Antwerp or LeHavre. The suits are libels in personam with foreign attachment of a Mowinckels ship which was released upon filing of a stipulation for $400,000 only, the libellants in these cases claiming an aggregate amount of damages much in excess of that amount. The libels are in two counts of which the first, in contract only, alleged in substance the delivery of the cargo in good condition to the carrier and its failure to deliver to the shipper or other consignee. There is no charge of negligence against the carrier or its agents in that count. The second count in each case asserts that by virtue of the deviation from the destined course of the voyage to Antwerp, the carrier became an insurer of the cargo and is therefore liable for its full value.

The first defense asserted by Mowinckels, the carrier, is based on the well known American fire statute, 46 U.S.C.A. § 182, which in substance exempts the owner of a vessel from liability for damage to cargo by fire "unless such fire is caused by the design or neglect of such owner". As Mowinckels was not the owner of the Ocean Liberty it is not protected by this section 182 but its counsel calls attention to section 186 of title 46, which provides that "The charterer of any vessel, in case he shall man, victual, and navigate such vessel at his own expense, or by his own procurement, shall be deemed the owner of such vessel. * * *" It is suggested that there is no valid reason why a charterer of a ship should not be regarded as the owner and also that a subcharterer should be regarded as having procured the manning, victualing and navigation of the ship through its contractual obligation, but no authority is cited in support of this contention and I am unable to accept it. However its inapplicability to Mowinckels is perhaps not very important in view of the relevant provision in section 1304(2) (b) of C.G.S.A. which reads:

"Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from * * * (b) Fire, unless caused by the actual fault or privity of the carrier;".

In my view the phrase "actual fault or privity" contained in C.G.S.A. is to be construed as substantially equivalent to "design or neglect" in the fire statute.

The first important question of fact is to determine, in the language of the Act, whether the fire in this case was caused by the "actual fault or privity" of the carrier. I have found, as stated in the findings of fact at some length, that the fire in this case originated in lower hold No. 3 from spontaneous combustion of the Fgan. The first evidence of the fire was the yellow smoke pouring from the deck ventilators of No. 3 hold. Counsel for Mowinckels argues that it might have originated in the tween decks of No. 3 hold. But it appears that only general cargo, not subject to spontaneous combustion, was there stowed. The tween decks hatch to the lower hold and the deck hatch to the No. 3 tween decks were tightly fastened down at the time the fire was discovered. As I have said in the findings of fact it probably could not be said to have been proven beyond a reasonable doubt that the fire originated in the ammonium nitrate but my ultimate conclusion of fact is that a preponderance of the evidence sufficiently establishes that it did. This conclusion is based on all the evidence in the case, including the scientific evidence (not really controverted by the respondent), the color of the smoke, the obnoxious fumes emanating from the hold when a few hatch boards were removed, by the evidence of eye witnesses as to the rapid progress of the fire, by a minor explosion which very soon occurred, and by the utterly destructive explosion which occurred a few hours later when the ship had been towed some distance away from the dock. The latter explosion not only destroyed the ship and its remaining cargo but unfortunately killed several persons on shore or nearby, including the master of the ship.

The important question in the case is whether the fire was due to the actual fault or privity of the carrier. On the evidentiary facts separately stated I have concluded that it was. The actual fault of the carrier in this case was in authorizing the carriage of the ammonium nitrate fertilizer in large quantities in the lower holds of the ship without adequate provision for ventilation, the necessity for which could and should have been learned by the carrier if proper inquiry had been made before accepting the Fgan for carriage. The great importance of such inquiry should have been apparent to the carrier in view of the terrible disaster which had occurred about two months earlier at Texas City, Texas, where a ship then being loaded with Fgan caught fire and exploded with great loss of life and damage to property. This event was a great disaster of nearly world wide importance and especially noteworthy to the shipping industry. While the susceptibility of ammonium nitrate fertilizer to spontaneous combustion was I think not definitely or precisely known generally when the Fgan was loaded on the Ocean Liberty, nevertheless the lesson plainly taught by the Texas City disaster was that the carriage of ammonium nitrate fertilizer was fraught with hazard by virtue of its dangerous character.

While common carriers by water are no longer legally liable as insurers of the cargo by reason of applicable amending statutes, it is still the law in this Circuit, as illustrated by numerous cases, that a carrier is charged with the responsibility of making proper inquiry as to the characteristics of the cargo that it accepts. If proper inquiry had been made by the carrier it should have been learned by it not only that very great care and caution should be taken in transporting Fgan, but also that it was under certain conditions susceptible to spontaneous combustion especially if stowed in large masses for a considerable period of time in the hold of a ship without unusually good ventilation. As stated in some detail in the findings of fact the extra care and precaution which was taken in stowing...

To continue reading

Request your trial
8 cases
  • A/S J. Ludwig Mowinckels Rederi v. Accinanto, Limited
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • September 22, 1952
    ...Fgan due to negligence in its stowage for which there was liability on the part of Mowinckels but not on the part of Cosmopolitan. See D.C., 99 F.Supp. 261. From this decision both Mowinckels and the cargo owners have appealed. In the view that we take of the case three questions are presen......
  • Gibboney v. Wright
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • August 22, 1975
    ...Corp. v. Compagnie de Navigation Fraissinet, S.D.N.Y., 1972, 345 F.Supp. 814, 1972 A.M.C. 2581; Accinanto Ltd. v. Cosmopolitan Shipping Co., D.Md., 1951, 99 F.Supp. 261, 1951 A.M.C. 1464. In any event it seems clear that privity or knowledge must turn on the facts of the individual case. Co......
  • Petition of United States
    • United States
    • U.S. District Court — Southern District of New York
    • May 19, 1952
    ...had an obligation to make certain that the necessary precautionary steps were taken to insure maximum safety. Accinanto, Ltd. v. Cosmopolitan Shipping Co., D.C., 99 F.Supp. 261. By its failure to fulfill that obligation, Isbrandtsen became liable for the damage resulting from the negligent ......
  • Petition of Republic of France, 1870.
    • United States
    • U.S. District Court — Southern District of Texas
    • March 9, 1959
    ...in the harbor at Brest, France, July 17, 1947, was attributed by the trial court to spontaneous ignition (Accinanto, Ltd. v. Cosmopolitan Shipping, Inc., D.C., 99 F. Supp. 261, affirmed A/S J. Ludwig Mowinckels Pederi v. Accinanto, Ltd., 4 Cir., 199 F.2d There is much scientific and technic......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT