American Tobacco Co. v. The Katingo Hadjipatera

• Decision Date: 23 November 1948
• Citation: 81 F. Supp. 438
• Parties: AMERICAN TOBACCO CO. et al. v. THE KATINGO HADJIPATERA et al. (and sixteen other cases).
• Court: U.S. District Court — Southern District of New York

81 F. Supp. 438

AMERICAN TOBACCO CO. et al. v. THE KATINGO HADJIPATERA et al. (and sixteen other cases).

United States District Court S. D. New York.

November 23, 1948.

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

Burlingham, Veeder, Clark & Hupper, of New York City (Roscoe H. Hupper, George F. Tinker, Ray Rood Allen, and Burton H. White, all of New York City, of counsel), for respondent Hellenic Lines, Ltd.

Reid, Cunningham & Freehill, of New York City (James E. Freehill, and Walter T. Hughes, Jr., both of New York City, of counsel), for Hadjipateras Bros., etc.

RIFKIND, District Judge.

This proceeding is a consolidation of libels and petitions involving cargo damage which occurred during the voyage of the Greek S. S. Katingo Hadjipatera from Greece to the United States.

On the morning of October 28, 1940, the S. S. Katingo Hadjipatera lay alongside a wharf at Piraeus, Greece, laden with a general cargo, chiefly tobacco, ready to sail via Gibraltar to Newport News and Norfolk, U. S. A. She had been chartered on October 7, 1940, for that voyage, from her owners, J. C., N. C., and A. C. Hadjipateras, by Hellenic Lines, Ltd., had loaded cargo at Volos and Cavalla, Greece, Izmir, Turkey and other ports and had returned to Piraeus where she completed her loading.

At noon on October 28, 1940, upon requesting sailing clearance, her captain was ordered by the Greek Naval Staff not to sail, war having broken out between Italy and Greece. Since the war patently prevented the accomplishment of the scheduled voyage through the Mediterranean to Gibaltar, the charterer, the ship-owners, and many of the shippers entered into negotiations looking to a voyage by the only alternative route, via the Suez Canal and around the Cape of Good Hope. On November 2, 1940, at Piraeus, over the captain's protests, the charterer ordered the receipt and stowage of 80 additional tons of tobacco, consisting of 1552 bales. On November 3, 1940, The Greek Naval Staff ordered the ship to remove to an anchorage in the Gulf of Elefsis where she would be less exposed to damage from enemy air attack. On November 10th, 1940, immediately after a dispute between the charterer and the principal shippers over additional freight had been arbitrated by the Greek Ministry of Marine, the ship was ordered to and did sail in convoy to Suez, subject to the direction of the British Admiralty, which continued to direct her voyage.

Late in January, 1941, insects were observed coming out of all holds through ventilators and hatch openings, and this phenomenon continued until the ship arrived at Pernambuco, Brazil, on February 4, 1941, at which time heat was also observed ascending from No. 3 hold to a considerably greater extent than from the other holds. On February 17, 1941, smoke ascended through the ventilators of No. 3 hold, fire was diagnosed, and an attempt made to smother it by closing off all ventilation and employing patent fire extinguishers. Upon the failure of these methods, the No. 3 tweendeck hatch was opened, a space cleared through the tweendeck stow, and water pumped through the hatchway into No. 3 hold. The fire was extinguished. The tweendeck was then substantially restowed, leaving a passage for access to the hold below. During this same period, increased heat was felt from No. 1 hold, but no smoke or fire resulted. A sinking of the stow in No. 4 hold permitted access for inspection by the captain, who found nothing wrong.

The ship arrived at Newport News on February 26, 1941, and fire again broke out in No. 3 hold, but was quickly extinguished.

Upon outturn of the cargo, damage was revealed as follows:

Forepeak: Of 100 cases of cheese, one was missing and the remainder stained.

No. 1 hold: Of five lots of tobacco stowed over undamaged licorice root, all lots were damaged to varying extents by heating.

No.2 tweendeck: A lot of Saloniki tobacco was slightly damaged by sweat. A lot of Volos tobacco was 1/3 damaged by heating.

No. 2 hold: Izmir, Saloniki and Cavalla tobacco suffered minor sweat damage only.

Crossbunker: Olive oil drums were damaged, leaking and missing. Cases of cheese were badly damaged by loss of butter fat, and miscellaneous cargo stowed beneath the cheese was damaged by butter fat drippings, and by spoilage.

No. 3 tweendeck: All the tobacco was damaged by heat, fire and water.

No. 3 hold: The bottom stow of licorice root was water-damaged, and the remaining stow of tobacco damaged by heat, fire and water.

No. 4 hold: One lot of Volos tobacco was 1/3 damaged by heat, and the remainder of the stow, all tobacco, very slightly sweat damaged.

Poop: Olive oil stowed on top was damaged by leakage, and currants stowed below were sugary from heat.

Deck cargo: Barrels of olives in brine were badly damaged by brine leakage through warped and shrivelled staves, and olives were lost from broken barrels.

The cargo owners promptly instituted proceedings against the ship, her owners, and her charterer. They attributed the damage to the ship's unseaworthiness with respect to stowage and ventilation of cargo and to lack of due diligence in care of cargo en route. Several of them also claimed breach of contract and deviation. Respondents denied these allegations, pleaded due diligence, claimed that the harm was generally caused by the unavoidable climatic conditions encountered on the long tropical voyage, that the heat and fire damage to tobacco was caused by the inherent vice of two particular lots of tobacco, that of the Brown and Williamson Tobacco Corporation shipped from Cavalla and that of The American Tobacco Company shipped from Volos, and that with respect to the cargo damaged by fire, they were relieved of liability by the Fire Statute. The shipowners petitioned for exoneration from or limitation of liability, and sued for contributions in general average. They and the charterer sued each other for indemnification should they be found liable to the cargo owners. A belated claim by charterer for demurrage has not been pursued. All libels and claims are consolidated in the limitation proceeding.

The multiplicity and varied nature of the claims here asserted makes it advisable to deal first with the principal allegations of fault, to fix the liability for such faults as are found, and then to deal with the miscellaneous claims.

The seaworthiness of the vessel.

There is no question but that the vessel before stowage was in all respects seaworthy, properly manned and equipped and cargoworthy for the purpose for which she was chartered, the carriage of general cargo to the United States via Gibraltar. She was rated 100A1 by Lloyds, fully manned, her officers licensed and experienced, her equipment proper and in accordance with the law of her flag. Like very many other vessels, some of which carried tobacco, she had but two ventilators per hold. This suffices. The Hog Island, D.C.E.D.N.Y.1930, 43 F.2d 243, affirmed 2 Cir., 1930, 48 F.2d 101. Libellants do not seriously maintain that her structural ventilation was inadequate safely to carry any tobacco. Their allegation of improper structural ventilation for the quantity of cargo stowed is no more than an inversion of the real complaint — that too much cargo was stowed to permit proper ventilation with the facilities available.

Care of cargo en route.

There is no claim that the captain undertook any affirmative action which was improper. The uncontradicted evidence proves that the cargo was properly cared for and ventilated by trimming ventilators and removing hatchboards whenever the weather permitted. Any delays during the course of the voyage which resulted in the prolongation of the period during which the cargo was confined were due solely to the exigencies of war. That windsails either could or should have been rigged over the hatches to increase the circulation of air, as libellants contend, or that such a device was customarily employed, was not proved. Nor was it shown that due diligence required the captain to discharge cargo at Pernambuco or Santa Lucia, tropical ports, to permit inspection of the stow. It was not even shown that physical facilities for such action were available. The deck cargo was well tended and wetted down until the bursting of some barrels made continued hosing inadvisable. Due diligence in cargo care en route was exercised.

Stowage.

Libellants' chief complaint is that their cargo was so stowed as to render the ventilating facilities ineffectual and to prevent the dissipation of heat. Since each cargo space was separately ventilated, the stowage of each will be separately considered.

Forepeak. — Credible testimony showed that this space was, because of the absence of ventilating facilities, an undesirable place to store so perishable a commodity as cheese, and that it was not customary to stow cheese there.

No. 1 hold. — As in the other holds containing tobacco, a block stowage system was here employed. The expert testimony disclosed this to be quite customary and certainly not unusual. As in the other holds, there was in No. 1 hold a permanent fore and aft bulkhead separating the hold into port and starboard halves except in the square of the hatch. No. 1 hold was 58' 11" long, 40' wide, and 27½ deep (mean). Licorice root was stowed to an average height of 8' in the bottom of the hold, on top of which tobacco was stowed to an average height of about 16½', leaving an average space of 2' between the stow and the deck-beams above. There was a space of 6' between the forward bulkhead and the beginning of the stow, free of cargo except for a few bales of tobacco which may have tumbled down. The stow was elsewhere separated from the ship's sides and bulkheads by 10" frames and battens, the combined breadth of which totaled one foot. Where a bulkhead lacked stiffeners, it was...