Actiesselskabet Ingrid v. Central R. Co. of New Jersey

• Decision Date: 02 July 1914
• Docket Number: 168.
• Citation: 216 F. 72
• Parties: ACTIESSELSKABET INGRID et al. v. CENTRAL R. CO. OF NEW JERSEY et al. [1]
• Court: U.S. Court of Appeals — Second Circuit

216 F. 72

ACTIESSELSKABET INGRID et al. v. CENTRAL R. CO. OF NEW JERSEY et al. ^[1]

No. 168.

United States Court of Appeals, Second Circuit.

July 2, 1914

[Copyrighted Material Omitted]

Convers & Kirlin, of New York City (J. Parker Kirlin, John M Woolsey, and Robert S. Erskine, all of New York City, of counsel), for appellants.

James T. Kilbreth, of New York City (Charles E. Miller, of New York City, of counsel), for appellee Central R. Co. of New Jersey.

William H. Button, of New York City (J. P. Laffey, of Wilmington Del., of counsel), for appellee E. I. Du Pont de Nemours Powder Co.

Charles J. Kelaher, of New York City, for appellee James Healing.

Before COXE and ROGERS, Circuit Judges, and MAYER, District Judge.

ROGERS Circuit Judge.

This libel was filed by the owner and master of the ship Ingrid to recover the sum of $30,162.65 damages caused by the explosion of a car load of dynamite, which occurred February 1, 1911, at pier 7 of the Central Railroad Company of New Jersey in Jersey City. The Ingrid had arrived from Buenos Ayres with a cargo of bones which was to be unloaded into the cars of the Central Railroad Company of New Jersey, hereinafter referred to as the railroad company, and was moored to the pier under the orders of that company, and for its own convenience, and was lying there discharging its cargo when the explosion took place. The Ingrid was a Norwegian sailing vessel, having a net tonnage of 1,217 tons and a rating in Lloyd's Register of 'Al (Star).' She was worth $25,000. The explosion completely wrecked the vessel. A survey was made of her and the surveyors recommended her sale as a wreck. The price paid for her at the auction was $4,375, which was practically the value of the scrap iron and of the supplies which remained in her after the explosion. The surveyors had reported it would cost $36,000 to put her in a state of repair, and that would have been more than she would have been worth.

The dynamite which caused the explosion had been shipped by the E. I. Du Pont de Nemours Powder Company, hereinafter called the powder company, and was consigned to itself at Jersey City and was shipped from Kenville, where the powder company had one of its plants, in the state of New Jersey, being transported in three cars which were hauled by the railroad company. These cars contained 1,493 boxes of dynamite in all; each box weighing at least 25 pounds. The dynamite which exploded was in car No. 91,442. That car contained 670 cases of dynamite weighing 38,975 pounds. The powder company had contracted with James Healing to remove the boxes of dynamite from car No. 91,442 to a steam lighter Katherine W., which he owned. The railroad company, the powder company, and Healing were all made respondents.

The Katherine W. was brought to pier 7 and there moored. The pier was about 1,000 feet long and 60 feet wide and had four tracks on it. Car 91,442 stood on one of the tracks and opposite the Katherine W. The captain and crew of that vessel were engaged in unloading the dynamite from the car to the boat by sliding the cases down a plank which ran from the door of the car to the forward deck of the boat at an incline of about three feet; the cases being passed down one at a time. During the progress of the unloading, the explosion occurred. Some of the witnesses testified they heard only one explosion, but others testified they heard two in rapid succession. The Katherine W. was completely demolished. Car No. 91,442 was also blown to pieces. The car standing next to No. 91,442 was lifted off the track and deposited upon an adjoining track, and a second car was blown off the pier and into the water. The Whistler, a boat also alongside the pier and near the Katherine W., was sunk, and everybody on board was killed. The pier itself was very badly injured, and the outer end of the pier and its crib were demolished. The shock of the explosion was felt in the office buildings of lower Manhattan.

It is matter of common knowledge that dynamite has been generally used and transported as an article of commerce for more than a quarter of a century. The evidence shows that during the year in which this explosion occurred upwards of 260,000,000 pounds of high explosives were manufactured and consumed in the United States. They are transported by the common carriers generally in car load lots. During the year of this explosion, if the high explosives manufactured that year be reduced to car load lots of 30,000 pounds each, there was an average of more than 33 car loads per day moving over the highways of commerce in this country alone. These high explosives have become a real commercial necessity, and they serve important public interests. The great industries of the country are in a high degree dependent upon the use of these explosives for their successful promotion. It is very important, if not absolutely essential, to employ them in the construction of the great tunnels, subways, aqueducts, and canals which are so vital to the commercial development and welfare of the country. Congress has recognized the necessity for their transportation as legitimate articles of commerce by providing proper regulations therefor.

The testimony showed that the dynamite shipped was what was known as 75 per cent. gelatine dynamite; that it was manufactured in the proper way, and packed in boxes in the usual manner in cartons with proper parchment paper in the boxes and sawdust in the bottom; that no instance had been reported where gelatine dynamite had ever leaked through the box; that gelatine dynamite is less sensitive to shock than nitroglycerine dynamite; that all dynamite is exploded by concussion; that it may be exploded by fire, but is more readily exploded by concussion than by spark; that powder is exploded by a spark, and that on the morning of the explosion, and prior to putting on board the dynamite, there had been placed on the Katherine W. 100 barrels of black blasting powder; that it would require great concussion to set off gelatine dynamite.

The testimony also showed that the Katherine W. was used exclusively to transport high explosives around New York; ships not being allowed to take on board explosives at any of the docks in Manhattan Island and city of New York. The transfer of explosives to ships for export had to be made at Gravesend Bay. The mode employed to transfer the dynamite from the car to the Katherine W. was the usual mode by which such transfers were made. The owner of the boat, the respondent Healing, had been engaged in the transportation of explosives for 25 years and had three boats engaged in the work at the time of the explosion. The men employed on the boat were experienced men and accustomed to handling high explosives. And Healing testified that during the whole 25 years he had been engaged he had never before had an explosion. Healing hired and paid and controlled his men, and they were subject to his exclusive orders. They were frequently assisted in loading and unloading by the men connected with the powder company or with the boats of the company.

The station and freight agent at Kenville, who had been employed there for 25 years, and during that time had been receiving shipments of explosives, testified that he had never had an accident there; that more than 15,000,000 pounds of dynamite were shipped from that station a year; that from one to ten cars a day were loaded there with dynamite each day in the week except Sundays and Saturdays; that 3,000 boxes of dynamite on the average were shipped a day; that the cars were loaded by the men belonging to the powder company; that car 91,442 was loaded in exactly the same way the cars were usually loaded; that the car after it was loaded was examined by the inspectors and found all right; that the boxes shipped on the car 91,442 were marked 'High explosives Dangerous' and 'This side up.' Two other cars were loaded at the same time, one containing 783 boxes of dynamite and the other 40 cases. It was conceded the cars were properly loaded and placarded.

The explosion occurred a short time after the work of transferring the dynamite from the car to the lighter commenced. All the men who had been at work in the car, alongside the plank or upon the lighter, were killed. A large part of the dynamite was in the car and in possession of the railroad company at the time of the explosion. Some portion had been removed and was alleged to have been in the possession of the powder company through the medium of its agent Healing, who had been employed by it to load it upon the Katherine W.

There is no evidence which shows just what caused the dynamite to explode.

Upon this state of facts the libelants contend that the explosion of the dynamite, while in the custody and possession of the respondents, gives rise to a presumption that the accident was due to their fault, and we are asked to decide the case upon the principle of liability announced in the case of Rylands v. Fletcher, L.R. 330, 339 (1868). It was decided in that case that, if the owner of land brings upon his land anything which would not naturally come upon it and which is in itself dangerous and may become mischievous if not kept under proper control, he will be liable in damages for any mischief thereby occasioned, even though he may have acted without negligence.

'If a person brings or accumulates on his land anything which, if it should escape, may cause damage to his neighbors, he does so at his peril. If it does escape and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage.'

The doctrine of Rylands v. Fletcher has been the subject of considerable discussion in the state courts, some of which...