Hellenic Lines Ltd. v. Brown & Williamson Tobacco Corp.

• Decision Date: 23 March 1960
• Docket Number: No. 7931.,7931.
• Citation: 277 F.2d 9
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: HELLENIC LINES LIMITED, respondent and claimant of THE S.S. ANGHYRA, her engines, boilers, etc., and The West of England Steam Ship Owners Protection & Indemnity Association, Limited, Appellants, v. BROWN & WILLIAMSON TOBACCO CORPORATION, Libellant, Liggett & Myers Tobacco Company, R. J. Reynolds Tobacco Company, The American Tobacco Company and A. Fantis, Intervening Libellants, Appellees.

277 F.2d 9 (1960)

HELLENIC LINES LIMITED, respondent and claimant of THE S.S. ANGHYRA, her engines, boilers, etc., and The West of England Steam Ship Owners Protection & Indemnity Association, Limited, Appellants, v. BROWN & WILLIAMSON TOBACCO CORPORATION, Libellant, Liggett & Myers Tobacco Company, R. J. Reynolds Tobacco Company, The American Tobacco Company and A. Fantis, Intervening Libellants, Appellees.

No. 7931.

United States Court of Appeals Fourth Circuit.

Argued November 4, 1959.

Decided March 23, 1960.

James E. Freehill, New York City (Seawell, McCoy, Winston & Dalton, Jett, Sykes & Coupland, Norfolk, Va., Hill, Betts & Nash, Francis P. Kelly, New York City, Leon T. Seawell and R. Arthur Jett, Norfolk, Va., on the brief), for appellants.

John W. R. Zisgen, New York City (Edward S. Ferebee, and Bigham, Englar, Jones & Houston, New York City, on the brief), for appellees American Tobacco Co., R. J. Reynolds Tobacco Co. Liggett & Myers Tobacco Co. and A. Fantis.

Stuart Sprague (Baird, Crenshaw & Lanning, Norfolk, Va., Sprague & Peck, New York City, and Francis N. Crenshaw, Norfolk, Va., on the brief), for appellee Brown & Williamson Tobacco Corp.

Before HAYNSWORTH and BOREMAN, Circuit Judges, and R. DORSEY WATKINS, District Judge.

HAYNSWORTH, Circuit Judge.

The principal question is responsibility for heat damage to a cargo of tobacco shipped in 1940-1941 from Bulgarian, Turkish and Grecian ports via the Suez Canal and the Red Sea around the Cape of Good Hope to Newport News and Norfolk. The District Court placed responsibility upon the ship because of failure to operate ventilating fans during hours of darkness while the ship was at anchor, under black out regulations, at Port Said, the Grand Lake, Suez and Port Sudan.¹

We are of the opinion that the failure to operate the fans, under the circumstances, was not a fault for which the ship is responsible. We do not consider, therefore, the several preliminary questions which occupied the attention of the District Court.

Aromatic, or "Turkish," tobacco, grown in Turkey, Bulgaria and Greece normally moves to the United States in the winter months via Gibraltar. In the fall of 1940 that route was closed to Greek shipping. Germany had completed her conquest of Norway, Denmark, Belgium, The Netherlands and France, and was firmly in control of the midcontinent and in possession of bases on the Mediterranean Sea. On October 28, her ally, Italy, invaded Greece, and effectively closed the short, cool route via Gibraltar to Greek vessels.

In December, 1940, the Greek vessel, S.S. Anghyra, was moored at Thessaloniki (Salonica). She had been requisitioned as a troop carrier. At the behest of representatives of two American tobacco companies, she was released for the purpose of a voyage to the United State laden, principally, with tobacco and returning with war material. Most of her resulting cargo of tobacco out-turned sound after a long, hot voyage around the Cape of Good Hope, the only route available or in contemplation, but some of the tobacco was entirely carbonized, and some partially damaged, by heat which had formed in pockets in each deep hold.²

American tobacco companies were substantially interested in 1939 crop "Turkish" tobacco stored in warehouses in Greece, Turkey and Bulgaria. Turkish tobacco, purchased by American tobacco companies, usually moved to the United States in the second winter after its harvest. Such tobacco, after its initial curing and its first summer's fermentation, with proper care, had its moisture content reduced to a level which permitted its safe transport to the United States during the cool months of the second winter via Gibraltar. The development of the war forced them to attempt shipment of cargoes susceptible to self-heating in hot weather, via Suez, twice crossing the equator.³

After loading tobacco in Thessaloniki, Burgas, Istanbul, Kavalla, and Piraeus, the Anghyra sailed from Piraeus on January 14, 1941. She was in convoy under the control of the British Admiralty. She arrived at Port Said on the 18th and remained there, awaiting a convoy, until the 28th.

On January 20th, after the second night at Port Said, the Anghyra's captain was summoned by the British Admiralty. He was told that a light had been seen aboard his vessel the night before and that it was not to occur again. Air attacks were being mounted against targets in the area, and the British naval officers regarded the showing of a light with such concern they told the captain that British batteries would open fire on his ship if another light was seen aboard her. They suggested that he shut down his dynamos. The captain testified he explained the need to ventilate the cargo by using the ventilating fans, but he was told "cut off this dynamo and be quiet about this and avoid trouble," for the next time a light was shown he would be shelled.

The captain returned to his ship at 7:00 o'clock that evening. He ordered the dynamos to be stopped off. Thereafter, the dynamos were shut down, during the black out hours, 5:00 o'clock P.M. to 7:00 o'clock A.M., each night when the Anghyra was at anchor in a black out port. These included Port Said, the Grand Lake, Suez, Port Sudan and Mombasa. Altogether, the dynamos were shut down for 196 hours, and 168 of them accumulated on successive nights.

The Anghyra had served the citrus fruit trade. She was equipped with forced draft ventilation for each of her deep holds and 'tween decks spaces. Two ventilators to each space were equipped with electric fans, the pitch of the blades of one being in contrast to the pitch of the blades of the other. Thus, one ventilator to each space served as an intractor of fresh air while the other was an extractor of stale air. (No. 2 hold had two intractor ventilators and one extractor ventilator.)

The ship now asserts that operation of the ventilating fans could not have helped the situation, or, at least, that there is no evidence that failure to keep the fans operating during the nighttime while at anchor in black out ports damaged the cargo. An agent of the owners, however, had instructed the captain to keep the fans in continuous operation and he believed their constant use was desirable, if not necessary, to guard against the propensity of the tobacco to self-heat. The District Court found that this nighttime interruption of the operation of the fans "at least planted the seeds of damage" to the cargo. Since we conclude that the interruption was not a fault for which the ship is responsible, we may accept the finding without examination of the premises upon which it was based or the conclusions to which it led. It suffices to say that the District Court found no fault with the ship with respect to the major cargo, except that, when ordered by the British Admiralty to shut down the dynamos, which supplied power to the fans, during the nighttime in black out ports, the ship obeyed.

Cargo strenuously argues that the ship was not ordered formally to shut down the dynamos. It was only told that if a light was shown again, it would be sunk by British gunfire. The captain did say he was not ordered to shut down the dynamos, but that the naval officers pointed to that as the means of compliance with the orders that no light be shown. He testified that even "suggestions" from the men with the guns were received as orders.⁴

It is suggested that the captain could have removed all of the light bulbs. The captain testified he thought of doing that, but rejected it. Aside from the uncertainty that every light bulb aboard ship could be secured each night and placed beyond reach, the ship was required to be in readiness to get under way at all times. Such a state of readiness would not exist if all of the light bulbs were removed. Furthermore, two policemen aboard to guard against sabotage reminded the captain of the need of available lights if the ship was called upon to participate in rescue operations following an air raid.

Next, it is said that the captain could have shut off the lights in the forecastle by pulling one of the switches on the electric control panel and this would have cut off the power to only one of the ventilating fans. This procedure, however, would have left the current on in the crew's quarters aft, occupied by the engine-room personnel, the donkeyman, the steward and apprentices, in the officers' quarters and in working spaces. There was as much reason to cut off the power to the crew's quarters aft as to those forward.

Before sailing from Piraeus, more than half of the ship's crew was conscripted into the Greek army. The captain was forced to accept replacements from the labor pool. Most of his crew was thus new and not of his selection.

One member of the crew intentionally, or inadvertently, had permitted a light to be shown. The captain had been told forcefully to take steps to assure that a member of his crew did not again open a door inadvertently, or inadvertently leave a light on behind him when opening a door. The naval officers had not temporized with him. Threatened with destruction of his ship and crew, it was no time for him to temporize with his crew or his cargo.

We think the orders of the British Admiralty required him to take steps which would assure certain compliance, not probable compliance, with the black out regulations. Certainty could be achieved only by cutting off the dynamos. That is what the Admiralty suggested, and under the circumstances, the captain not unreasonably took the suggestion as an order.⁵

The captain's action did not deprive the cargo of ventilation during the night hours in black out ports. It reduced the amount of ventilation when power to the fans was cut off, but air could still move through the ventilators. In an effort to compensate for the reduction of the amount of ventilation, the weather deck hatches were opened each night when the power was off. This may not have been the equivalent of forced...