Armco International Corporation v. Rederi A/B Disa, 343.

• Decision Date: 22 August 1945
• Docket Number: No. 343.,343.
• Citation: 151 F.2d 5
• Parties: ARMCO INTERNATIONAL CORPORATION v. REDERI A/B DISA et al.
• Court: U.S. Court of Appeals — Second Circuit

151 F.2d 5 (1945)

ARMCO INTERNATIONAL CORPORATION v. REDERI A/B DISA et al.

No. 343.

Circuit Court of Appeals, Second Circuit.

August 22, 1945.

Herbert M. Statt and Haight, Griffin, Deming & Gardner, all of New York City (Herbert M. Statt and Maurice J. Smith, both of New York City, of counsel), for claimant-appellant.

F. Herbert Prem and Bigham, Englar, Jones & Houston, all of New York City, for libellant-appellee.

Wilbur H. Hecht and Duncan & Mount, all of New York City (Henry W. Dleck, of New York City, of counsel), for William Spencer & Son.

James V. Hayes and Donovan, Leisure, Newton & Lumbard, all of New York City (Carl C. Manderen, of New York City, of counsel), for Pitney and Gardner, trustees.

William E. Stevenson and Debevoise, Stevenson, Plimpton & Page, all of New York City, for Michael J. Carpinello.

Before L. HAND, AUGUSTUS N. HAND, and FRANK, Circuit Judges.

L. HAND, Circuit Judge.

Rederi A/B Disa, as claimant of the motorship "Astri," appeals from a decree in the admiralty, holding it liable for damage to a parcel of 1313 iron plates, part of the ship's cargo, upon a voyage from Philadelphia to Buenos Aires in February and March, 1940. The issues upon the appeal are: (1) Whether the libellant proved that the ship had stowed the plates negligently; (2) whether that part of the damage which occurred after the discharge at Buenos Aires was chargeable to the ship; (3) whether, if the ship was liable for any part of the damage, she should have a decree over, fixing final liability upon William Spencer & Son Corp., or Michael J. Carpinello; (4) whether in any event the libellant proved that it was the owner of the goods, or entitled to maintain the action. Most of the evidence was taken by depositions, although the judge heard two experts, and the testimony of one, Nigro, the receiving clerk of Sottnek & Co., who were the stevedores for the "Astri's" agent in New York — Thor-Eckert & Co. The testimony was not in dispute; the only questions of fact are as to what inferences should properly be drawn from it. The ship had four holds: two forward of the motor room, and two aft. The forward hatches — numbers one and two — were separated by permanent steel bulkheads; and the after hatches — three and four — by a wooden bulkhead, only in the lower hold. At Philadelphia the ship lifted 1313 iron plates, distributed as follows: 62 in number one hatch; 376 in number two; 663 in number three; 212 in number four. The injury which occurred on board was to the plates in the after holds. Those in number three were stowed evenly upon the ceiling to a height of about one and one-half to two feet on either side of the shaft tunnel. After leaving Philadelphia the "Astri" went to New York where she lifted her other cargo, among which were 23 iron drums of acetic acid, each weighing about 1200 pounds. The Central Railroad of New Jersey delivered these in a barge at the wharf alongside of which the "Astri" lay. They employed William Spencer & Son Corp., stevedores, to discharge the barge and put the drums on the wharf alongside the "Astri." At the time of their delivery to the stevedores the master of the barge called their attention to the fact that one of the drums was leaking; and the railroad notified Carpinello, a cooper, to send someone to mend it. Carpinello sent his son who examined it while it was still on the wharf, decided that it was impossible to mend, and so told Healy, the receiving clerk of the railroad. Spencer & Son Corp. did not lade the drum upon the ship; and, although the record does not disclose just who did do so, the inevitable inference is that the lading was by the stevedores, Sottnek & Co., employed by the ship's agent. The leaking drum was never repaired but was stowed with the rest on top of the plates in hold number three. That the ship had notice that the drum had been leaking was proved by a copy of the receipt which Nigro delivered to the ship, and which bore a notation in the handwriting of one, Conroy, Nigro's subordinate, that the drum had been leaking, but had been re-coopered. (That notation did not appear upon the original which Nigro delivered to the railway.) Furthermore, the ship knew that the drums contained acetic acid, for a document, known as the "booking report," made up by the ship's agents, so stated; and it was this report on which the ship's officers made up the stowage plan. It does not appear what assurance Conroy supposed that he had for saying that the leak had been repaired; on the record he merely so declared and Nigro and the ship's officers in charge of the stowage must have accepted his statement without investigation.

The "Astri" reached Buenos Aires on March 8, 1940, and six employees of the consignee together with members of the crew discharged the plates on the 12th and 13th, the consignee being an agency of the Argentine Government. Some of them were seen to be wet at the time with a liquid which smelled like vinegar; and Alessandro, an employee of the consignee, asked the tally clerk on the ship what this was, who answered that in fact it was vinegar. The consignee loaded the plates directly from the ship onto railroad cars, mixing all indiscriminately, regardless of the holds from which they had come. The railroad carried them a short distance to a warehouse where they were stacked, again indiscriminately, and where they remained for about two weeks — until March 25th — by which time the consignee had discovered the damage and for the first time advised the local agent of the libellant, who had until then, so far as appears, not even known that any of them had been wet at the outturn. Upon discovering that the damage was so serious, the consignee rejected the whole consignment and refused to pay the price; eventually the libellant accepted the rejection, and took back the plates; in July 1940, they were sold at public auction to the libellant's agent in Buenos Aires; and the claim is for the loss.

It appeared from expert testimony that acetic acid corrodes such plates, not only when it directly touches them, but also when its fumes surround them; and the judge found that the damage in this case was from both sources. The ship does not dispute that any acetic acid which actually reached the plates would damage them, but it denies that the fumes would do so, or did do so. We accept the finding, for the judge saw the libellant's expert, a well qualified metallurgist, who said that the fumes would corrode; and, although the ship's expert denied this, his experience in no sense gave him equal authority, and even if it had done so, the judge's preference would have been final. The ship answers that if the libellant's expert was right, the ship's frames in hold number three should also have suffered, and that they did not. The libellant rejoins that the fumes would not injure painted iron, and that the frames were painted; and so the judge found. It is true that we cannot find anything on the point in the record, but clearly we should not assume that they were not painted. The ship...