American Linseed Co. v. United States

• Decision Date: 14 February 1930
• Docket Number: No. 7631.,7631.
• Parties: AMERICAN LINSEED CO. v. UNITED STATES.
• Court: U.S. District Court — Eastern District of New York

40 F.2d 657 (1930)

AMERICAN LINSEED CO. v. UNITED STATES.

No. 7631.

District Court, E. D. New York.

February 14, 1930.

Bigham, Englar, Jones & Houston, of New York City (Oscar R. Houston and James N. Senecal, both of New York City, of counsel), for libelant.

Howard W. Ameli, U. S. Atty., of Brooklyn, N. Y. (William E. Collins, Sp. Asst. to U. S. Atty., of New York City, of counsel), for the United States.

INCH, District Judge.

Libelant, under the Act of March 9, 1920 (46 USCA §§ 741-752), by this libel filed March 3, 1925, brings this suit against the United States to recover damages alleged to have been sustained in August, 1924.

The United States owned the steamship Anaconda, a merchant vessel, employed in the carriage of merchandise, between the ports of Rotterdam and New York. By reason of certain arrangements made by libelant, a large quantity (600 tons) of pure linseed oil, in bulk, in good order and condition, was shipped and placed on board said steamship, at Rotterdam, on or about August 15, 1924, the vessel sailing from Rotterdam August 18, and arriving at Brooklyn, N. Y., September 3, 1924.

Libelant paid approximately $104,000 for this oil. The freight paid was $4,543.14.

When this linseed oil was discharged at Philadelphia, a portion of it was found to be missing and a portion of that remaining was found to be seriously damaged by contact with sea water.

This oil had been carried in the double bottom tanks of the steamship. The fact that there were leaks sufficient to account for some loss and some damage was, in substance, conceded.

There seems to be no question about the jurisdiction of this court to hear the case. Johnson v. U. S. Shipping Board, 280 U. S. 320, 50 S. Ct. 118, 74 L. Ed. ___ (January 6, 1930).

The Anaconda is a twin screw steamer of 9,700 tons. She is 395 feet long, 55 feet beam, with five double bottom tanks for ballast in addition to fresh-water tanks. She was a coal burner.

The Anaconda had never before carried oil in her double bottom tanks. This was known to those in charge of her, and is a circumstance not to be overlooked. The captain of the ship was not a witness.

She had been dry-docked about six months before the trip in question to repair "certain collision and heavy weather damage," after which, according to Roberts, she had been reported seaworthy. Grace & Co. v. Panama R. Co. (C. C. A.) 285 F. 718. However, she did not necessarily have to be dry-docked before each voyage. The Sandfield (D. C.) 79 F. 371, affirmed (C. C. A.) 92 F. 663.

At Rotterdam, just before the oil was taken aboard and the voyage to New York undertaken, a leak had developed, at the junction of a vent pipe, in the double bottom tank. The water had flowed out over the tank top. This leak was repaired, according to the testimony of Chief Officer Jensen and Chief Engineer Stewart. Smith, the port engineer, says that this repair was "a workmanlike job."

The oil was then put into the tanks. Linseed oil, like other vegetable oils, is more difficult to carry than water. The Turret Crown (C. C. A.) 297 F. 766. It is thinner than water, and will gradually penetrate through rust and escape.

The character of this cargo therefore was of a nature requiring a corresponding degree of diligence from those accepting it and receiving the substantial freight money already referred to.

When the ship reached Philadelphia, a number of other leaks were found. There was a leak in the angle connecting the tank top, a leak in the seam in the tank top, a leak in the vent pipe on the port side of the No. 2 tank, and a leak in the shell plating of the No. 2 double bottom. There were about forty leaking rivets. Some of these were "squirting" leaks. While possibly some of these did not play a part in the loss and contamination of what is conceded to be lost and damaged oil, yet others certainly did so.

The issue therefore seems, according to the arguments of counsel in their excellent briefs, to be as follows: The libelant claims, and I think correctly, that sufficient has been shown to require the respondent to explain satisfactorily this loss and damage or submit to a decree.

The respondents contend that the proof shows due diligence on their part, and that these leaks were due to latent defects occasioned by a very rough sea voyage.

Seaworthiness and due diligence are questions of fact. The Capulin (D. C.) 298 F. 953.

The burden rested upon the respondent to prove that proper and reasonable tests, to make the ship seaworthy, had been made. If a doubt arises, the libelant should have the benefit of it. The Southwark, 191 U. S. 1, 24 S. Ct. 1, 48 L. Ed. 65.

The testimony here shows no unusually rough voyage, certainly not of extreme and unexpected violence. The Arakan (D. C.) 11 F.(2d) 791; The Rosalia (C. C. A.) 264 F. 285, 287; The Silvia, 171 U. S. 462, 19 S. Ct. 7, 43 L. Ed. 241. There is insufficient proof here that these leaks were latent and brought on by a marine peril.

The issue therefore becomes somewhat narrow. The conceded loss and damage to the oil was plainly occasioned by a leaking condition of the tanks. This condition was caused, according to libelant, by failure on the part of respondent to use due diligence, while respondent claims it did so.

What did the respondent do at Rotterdam to make the tanks safe? I have already referred to the leak that was found and repaired. While Savenije, representing the American Bureau, may have referred to a second water pressure test, it is far from clearly shown that this in fact took place. Smith, the port engineer,...