American Tobacco Co. v. The Katingo Hadjipatera, No. 152

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtSWAN, FRANK and LEARNED HAND, Circuit
Citation194 F.2d 449
PartiesAMERICAN TOBACCO CO. et al. v. THE KATINGO HADJIPATERA et al.
Decision Date13 September 1951
Docket NumberDocket 21874.,No. 152

194 F.2d 449 (1951)

AMERICAN TOBACCO CO. et al.
v.
THE KATINGO HADJIPATERA et al.

No. 152, Docket 21874.

United States Court of Appeals Second Circuit.

Argued February 7, 1951.

Decided September 13, 1951.

Rehearing Denied February 20, 1952.


194 F.2d 450

Bigham, Englar, Jones & Houston, New York City (Henry N. Longley and John W. R. Zisgen, New York City, advocates), for libellants.

Nash, Ten Eyck, Maximov & Freehill, New York City (James E. Freehill and Andre Maximov, New York City, advocates), for petitioners.

Burlingham, Veeder, Clark & Hupper, New York City (Ray Rood Allen, Burton H. White, George F. Tinker and Roscoe H. Hupper, New York City, advocates), for respondent.

Before SWAN, FRANK and LEARNED HAND, Circuit Judges.

FRANK, Circuit Judge.

1. Other than as noted below, the facts are sufficiently stated in the opinion of the able trial judge, reported in D.C., 81 F. Supp. 438. Except as to matters discussed in the succeeding paragraphs, we think the evidence amply supports his findings, and that those findings justify his legal conclusions.

2. As to cargo proved to have been delivered to the ship in apparent good condition and out-turned damaged other than by the fire,1 the shipowners and the Charterer had the burden of proving that the loss was not due to their negligence.2 But different considerations govern concerning the goods damaged by the fire. No liability could be imposed unless the owners of those goods carried the burden of proving that the fire was caused by the shipowner's design or negligence3 or the carriers' actual fault or privity.4 Hoskyn & Co. v. Silver Line, 2 Cir., 143 F.2d 462. The trial judge, on the evidence, correctly held that this burden had not been carried with respect to the shipowners.

However, he held that it had been with respect to the Charterer. He found — on evidence which we think sustains his finding — that, with the exception of the added 139 bales of tobacco in No. 3 tweendeck — the stowage of this part of the cargo was proper. But he found that these 139 bales had been negligently stowed in that they blocked ventilation in No. 3 hold, and that without this negligence the fire would not have happened. This finding implies — and we do not understand Cargo to dispute it — that before the addition of these bales the ventilation was proper.

In reaching this finding, the trial judge seems to have been persuaded, at least in part, by his subsidiary finding that the ship's master had objected, on the ground of overloading, to taking on the additional 1552 bales of tobacco, which included the 139 stowed in No. 3 tweendeck. The trial judge was mistaken. The master's testimony makes it clear that his protest related not at all to overloading but solely to the extra expense that would be entailed in shifting the cargo on out-turn, and that he withdrew his protest when the Charterer declared in writing that this expense would be for its account.

It is true that the Charterer's managing director testified that, before the 1552 bales were taken on, the ship had all the cargo "she could properly carry." Since, however, he did not come on board to inspect or direct the distribution of the added cargo, there is no evidence that he knew the precise manner of stowing the 139 bales in No. 3 tweendeck. However, we shall assume, arguendo, that in the circumstances the Charterer became responsible for any fault in their stowage.

On that assumption, since the trial judge held that the fault consisted of blocking potential ventilation of the cargo in No. 3 hold through an opening in the stow in No. 3 tweendeck, the crucial question is this: Is there substantial evidence that the 139 bales were so stowed as to impede the presumably adequate ventilation existing theretofore? We think not. The 139 bales were but a small fraction of the total cargo stowed in No. 3 tweendeck.5 There

194 F.2d 451
is no evidence to show precisely how the cargo in No. 3 tweendeck was stowed6 or, particularly, where the 139 bales in No. 3 tweendeck were placed when the...

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64 practice notes
  • C. ITOH & CO., ETC. v. Hellenic Lines, Ltd., No. 78 Civil 1695.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 4, 1979
    ...aff'd mem., 562 F.2d 39 (2d Cir. 1977); American Tobacco Co. v. The Katingo Hadjipatera, 81 F.Supp. 438, 445 (S.D.N.Y.1948), aff'd, 194 F.2d 449 (2d Cir. 1951), cert. denied, 343 U.S. 978, 72 S.Ct. 1076, 96 L.Ed. 1370 (1952). 4 General Foods Corp. v. The Troubador, 98 F.Supp. 207, 209 (S.D.......
  • Westinghouse Elec. Corp. v. M/V Leslie Lykes, No. 82-3128
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 14, 1984
    ...the context of the Fire Statute. The Ocean Liberty, 199 F.2d 134, 142-44 (4th Cir.1952); American Tobacco Co. v. The Katingo Hadjipatera, 194 F.2d 449, 450 (2d Cir.1951), cert. denied, 343 U.S. 978, 72 S.Ct. 1076, 96 L.Ed. 1370 (1952). For similar holdings on fires resulting from non-stowag......
  • British West Indies Produce, Inc. v. S/S ATLANTIC CLIPPER, No. 68 Civil 4966.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 8, 1973
    ...(S.D. N.Y.1971). 20 Demsey & Associates v. S. S. Sea Star, 461 F.2d 1009 (2d Cir. 1972); American Tobacco Co. v. The Katingo Hadjipatera, 194 F.2d 449, 451-452 (2d Cir. 1951), cert. denied, 343 U.S. 978, 72 S.Ct. 1076, 96 L.Ed. 1370 (1952); see Bulkley v. Naumkeag Steam Cotton Co., 65 U.S. ......
  • United States v. Masiello, No. 336
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 18, 1956
    ...Indian Evidence Act (1872), 38, 41-46; 1 Wigmore, Evidence (3rd ed.) Section 25; American Tobacco Co. v. The Katingo Hadjipatera, 2 Cir., 194 F.2d 449, 451; N. L. R. B. v. Universal Camera Corp., 2 Cir., 190 F.2d 429, 432 (concurring opinion); Wabash Corp. v. Ross Electric Corp., 2 Cir., 18......
  • Request a trial to view additional results
64 cases
  • Westinghouse Elec. Corp. v. M/V Leslie Lykes, No. 82-3128
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 14, 1984
    ...the context of the Fire Statute. The Ocean Liberty, 199 F.2d 134, 142-44 (4th Cir.1952); American Tobacco Co. v. The Katingo Hadjipatera, 194 F.2d 449, 450 (2d Cir.1951), cert. denied, 343 U.S. 978, 72 S.Ct. 1076, 96 L.Ed. 1370 (1952). For similar holdings on fires resulting from non-stowag......
  • C. ITOH & CO., ETC. v. Hellenic Lines, Ltd., No. 78 Civil 1695.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • May 4, 1979
    ...aff'd mem., 562 F.2d 39 (2d Cir. 1977); American Tobacco Co. v. The Katingo Hadjipatera, 81 F.Supp. 438, 445 (S.D.N.Y.1948), aff'd, 194 F.2d 449 (2d Cir. 1951), cert. denied, 343 U.S. 978, 72 S.Ct. 1076, 96 L.Ed. 1370 (1952). 4 General Foods Corp. v. The Troubador, 98 F.Supp. 207, 209 (S.D.......
  • United States v. Masiello, No. 336
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 18, 1956
    ...Indian Evidence Act (1872), 38, 41-46; 1 Wigmore, Evidence (3rd ed.) Section 25; American Tobacco Co. v. The Katingo Hadjipatera, 2 Cir., 194 F.2d 449, 451; N. L. R. B. v. Universal Camera Corp., 2 Cir., 190 F.2d 429, 432 (concurring opinion); Wabash Corp. v. Ross Electric Corp., 2 Cir., 18......
  • British West Indies Produce, Inc. v. S/S ATLANTIC CLIPPER, No. 68 Civil 4966.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 8, 1973
    ...N.Y.1971). 20 Demsey & Associates v. S. S. Sea Star, 461 F.2d 1009 (2d Cir. 1972); American Tobacco Co. v. The Katingo Hadjipatera, 194 F.2d 449, 451-452 (2d Cir. 1951), cert. denied, 343 U.S. 978, 72 S.Ct. 1076, 96 L.Ed. 1370 (1952); see Bulkley v. Naumkeag Steam Cotton Co., 65 U.S. (2......
  • Request a trial to view additional results

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