Edmond Weil, Inc. v. American West African Line

• Decision Date: 12 January 1945
• Docket Number: No. 119.,119.
• Citation: 147 F.2d 363
• Parties: EDMOND WEIL, Inc., v. AMERICAN WEST AFRICAN LINE, Inc., et al.
• Court: U.S. Court of Appeals — Second Circuit

147 F.2d 363 (1945)

EDMOND WEIL, Inc., v. AMERICAN WEST AFRICAN LINE, Inc., et al.

No. 119.

Circuit Court of Appeals, Second Circuit.

January 12, 1945.

John W. Crandall and Hunt, Hill & Betts, all of New York City (Helen F. Tuohy, of New York City, of counsel), for appellants.

Robert E. Hill and Hill, Rivkins & Middleton, all of New York City (Robert J. Andrews and Stanley S. Green, both of New York City, of counsel), for appellee.

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

L. HAND, Circuit Judge.

The respondents appeal from a decree in the admiralty, holding the ship, "West Kebar," liable for damage to a cargo, lifted in African ports in December, 1940, and discharged at Boston and New York in the following January. The judge held the ship for a part of the damage and excused her for the rest. Edmond Weil, Inc., v. SS "West Kebar," D.C., 53 F.Supp. 763. Since the libellants filed assignments of error, Rule 38(c), both parties have in effect appealed. The "West Kebar" was 427 feet long, of the "three well" type, with five holds: Nos. 1 and 2 — 'tween-decks and holds — forward of the engine-room; No. 3 over the engine-room; Nos. 4 and 5 — 'tween-decks and holds — aft of the engine-room. All the sea water damage in suit was in Nos. 4 and 5 — 'tween-decks and holds — and in a "port bunker," to be later described. When on December 26, 1940, the ship cleared at her last port of call in Africa — Freetown, Sierra Leone — there were stowed on her after well deck 200 empty ammonia cylinders, weighing about 200 pounds each, and mahogany "curls" (the root of the tree), weighing from 200 to 1,000 pounds each. The stow was on both sides of the No. 5 hatch, the cylinders forward and the "curls" aft. The cylinders were stacked in pyramids about five feet high, lashed together by chains, taken up by turnbuckles; net slings were placed over them, and other chains were then stretched over the top and made fast at each side of the stow. The "curls," irregular in size, were fitted together as well as could be, and stowed to a height of about three and a half feet. They, too, were covered with net slings and secured by six chains on each side. The ship, although an oil burner, had port and starboard coal bunkers forward of the No. 4 'tween-deck. A water-tight door with a ten-inch sill led from the 'tween-deck to the port bunker, but it was left open and was blocked by cargo when the ship broke ground at Freetown. Originally the electric wiring had been carried in conduit pipes; but the wiring had been removed, and the stumps of the old conduit pipes, called "kick tubes," which had not been removed, protruded about six inches above the after well deck. These were about one and a half inches in diameter, and had been capped so as to be water tight; there were eleven of them scattered about the deck. Some time before noon on January 11, during either a "strong" or a "whole" gale (No. 9 or 10 on the Beaufort Scale), while the vessel was taking seas over her starboard quarter, one of the ammonia cylinders in the starboard pack began to slip out, and not long afterwards a large part of the stow was adrift, followed by the "curls." The cylinders plunged about the deck, struck a number of "kick-tubes," and broke them off. These openings let sea water into the 'tween-decks in Nos. 4 and 5, whence it flowed over the hatch coamings into the lower holds, and over the sill of the open doorway into the port bunker.

A steward's storeroom had been made out of the enclosed shelter deck compartment; it was directly over the port bunker. It was formed by wooden bulkheads forward, aft, and inboard; but these did not hold back water; and all water which entered the enclosed shelter deck compartment anywhere would flow over the bottom of the store-room. Water did enter through two eight-inch "gooseneck" vents situated on the deck above, sometimes called the bridge deck, and part of this water leaked down into the port bunker through cement blocks set between the frames at the skin of the ship and at the well deck level.

The libellants asserted that the ship was unseaworthy because of the "kick-tubes," but the judge exonerated her for any damage caused by the water which entered after they had been knocked away, because "any potential danger" from them had never been "brought to the notice of the vessel." He did, however, hold her for the damage caused by the water which entered No. 4 'tween-deck and hold, because of some zinc concentrate in that hold, which he found to have been improperly stowed, and to have so clogged the scupper pipes that the bilges could not be pumped. We need not describe the stowage of this zinc for reasons which will appear.

The first question is whether the ship was unseaworthy. Arguendo, we will assume that the "kick-tubes" did not make her so if she had carried no deck cargo; and, perhaps also, even when she carried certain kinds of deck cargo. Indeed, we might go still further, and assume that she was seaworthy, just as she rode, for a summer voyage, for example in the Mediterranean. But she was to cross the Atlantic in January, ending in latitudes over 40°; and the question is whether, with the deck cargo she actually did carry and the "kick-tubes" in her deck, she was reasonably fitted for such a voyage. The Silvia, 171 U.S. 462, 464, 19 S.Ct. 7, 43 L.Ed. 241; The Southwark, 191 U.S. 1, 9, 24 S. Ct. 1, 48 L.Ed. 65; Societa Anonima, etc. v. Federal Insurance Co., 2 Cir., 62 F.2d 769, 771; The Smyrna, 4 Cir., 62 F.2d 1048, 1050; The J. L. Luckenbach, 2 Cir., 65 F.2d 570, 572; The Galileo, 2 Cir., 54 F.2d 913, 914. The fact that the "kick-tubes" had caused no trouble in the past was relevant, but far from conclusive; it took only a minimum of foresight to perceive that they would stand up against very little violence. True, as they were placed on the deck, they were out of the way; set either close to the bulkhead, alongside the hatch coamings, or around the mast. It would take a direct hit to break them off; but it would not take a heavy hit, and each one, if broken, would open a hole over an inch in diameter directly into the 'tween-deck. An ammonia cylinder, weighing 200 pounds, free to plunge about on an open deck in a heavy seaway, was an engine before which such a fragile obstacle was no better than an eggshell. The safety of the cargo stowed below deck was therefore absolutely dependent upon the continued solidity of the pack; and, in the way the cylinders were made fast, that solidity depended upon each one's keeping its position in the pyramidal stack. As soon as one slipped out from between its fellows, the hold of the rest upon each other was lost, and all would inevitably escape. There were the nets, to be sure, but these did not go clear to the deck, and could not be expected to hold if they had, once the pack broke up.

The consequences of any such break being so great, the least care that could be demanded was that the cylinders should be made fast against all but the most unexpected and "catastrophic" storms; and such care the ship did not in fact bestow as the event proved. During the watch between 4 a. m. and 8 a. m. on January 11, the "West Kebar's" log records a wind force of 8 on the Beaufort Scale — 39 to 46 miles — and for the watch from 8 a. m. to 12 M., "9-10." Nine is a "strong gale" — 47 to 54 miles —; 10 is a "whole gale" 55 to 63 miles. Kimball, the expert of the Weather Bureau upon such matters, computed that, at noon on the 11th, the "West Kebar" was 300 miles from the storm centre. (The master put her further away.) The storm itself Kimball thought was "about 125 miles across, and the area of gales extending out from the center was...