Joseph R. Foard Co. of Baltimore City v. State of Maryland, to Use of Goralski

• Decision Date: 05 November 1914
• Docket Number: 1272-1275.
• Citation: 219 F. 827
• Parties: JOSEPH R. FOARD CO. OF BALTIMORE CITY et al. v. STATE OF MARYLAND to Use of GORALSKI et al.
• Court: U.S. Court of Appeals — Fourth Circuit

219 F. 827

JOSEPH R. FOARD CO. OF BALTIMORE CITY et al. v. STATE OF MARYLAND to Use of GORALSKI et al.

Nos. 1272-1275.

United States Court of Appeals, Fourth Circuit.

November 5, 1914

George Forbes, Joseph C. France, and W. Irvine Cross, all of Baltimore, Md., for Joseph R. Foard Co. of Baltimore City and General Stevedoring Co.

Charles Markell, of Baltimore, Md. (Gans & Haman, W. Calvin Chesnut and Daniel H. Hayne, all of Baltimore, Md., on the briefs) for Maryland Steel Co.

J Morfit Mullen, of Baltimore, Md. (George Dobbin Penniman, of Baltimore, Md., on the briefs), for Samuel Carter et al.

Thomas F. Cadwalader, of Baltimore, Md. (H. N. Abercrombie, of Baltimore, Md., on the briefs), for stevedores.

Samuel B. Plotkin, of Baltimore, Md., for Charles Davies.

Charles R. Hickox, of New York City (Convers & Kirlin, of New York City, on the briefs), for Alum Chine Steamship Co.

S. S Field and Alexander Preston, both of Baltimore, Md., for Mayor and City Council of Baltimore.

Charles S. Haight, of New York City (John W. Griffin and Haight, Sandford & Smith, all of New York City, on the briefs), for Munson Steamship Line.

Alexander Preston, of Baltimore, Md., for Maryland Steel Co. in Case No. 1275.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

WOODS Circuit Judge.

On the morning of March 7, 1913, a large quantity of dynamite exploded on the British steamship Alum Chine lying in the quarantine anchorage of the port of Baltimore on the Patapsco river. The ship was destroyed, more than 30 men were killed and a number injured, and other ships in the vicinity were damaged. The first indication of the disaster was a slight explosion or puff in or near a box of dynamite which Bomhardt, a stevedore foreman, was trying to force into position in a tier of boxes. The District Court heard together the 25 libels filed, and held in an elaborate and strong opinion that the explosion was due entirely to the negligence of the stevedore foreman in loading the dynamite, and not to fire originating in the coal from careless handling or other negligence on the part of the ship crew, and adjudged damages in favor of those who had suffered injury against Joseph R. Foard Company and the General Stevedoring Company as the independent contractors liable for the negligence of the foreman, their employe.

1. The District Court was clearly right in holding untenable the position taken by the Foard Company that the loading was done by the General Stevedoring Company as independent contractor and that it alone was responsible for any negligence in handling the dynamite. Whatever may have been the original design when the Foard Company caused to be organized the General Stevedoring Company, the evidence leaves no doubt that the stevedoring, whether done under one or the other corporate names, was in reality but a department of the business of the Foard Company as shipbrokers and agents. The two companies had the same officers; the Stevedoring Company handled no funds, except through the Foard Company; its losses were paid by the Foard Company and dealt with as if they were that company's own losses. All of the profits of the Stevedoring Company were kept by the Foard Company as a charge for managing the business. There are other like circumstances, but these are sufficient to show that the Stevedoring Company was organized and controlled and its affairs so conducted as to make it a mere instrumentality of the Foard Company. This being so, the two corporations must be regarded, as to the outside public, identical. Interstate Telegraph Co. v. Baltimore, etc., Co. (C.C.) 51 F. 49; Baltimore & O. Telegraph Co. v. Interstate Telegraph Co., 54 F. 50, 4 C.C.A. 184; In re Watertown Co., 169 F. 252, 94 C.C.A. 528; Chicago, etc., Co. v. Myers, 168 Ill. 139, 48 N.E. 66.

But, even if the usual current of business of the two corporations had been separate, in this instance the contract to load the vessel was with the Foard Company, and the evidence tends to show that it made no separate contract with the Stevedoring Company, but co-operated with and completely controlled it. The two companies, therefore, will be treated as one in this discussion, to be referred to as the Foard Company.

2. The next issue in sequence is whether the dynamite was exploded by the negligent act of Bomhardt, a stevedore foreman, in striking with a bale hook, or otherwise handling with violence, a box containing dynamite, or by a fire originating in the ship from spontaneous combustion, due to the negligent storing of coal, or from other negligence in the management of the ship. If the former was the cause, the Foard Company is liable; if the latter, then the Foard Company is free from liability, since it is not charged that it had control of anything on the ship except the dynamite.

There was some evidence to the effect that the dynamite was not brought on the ship in the safest way; that the men employed were only the ordinary stevedores, when safety required men specially selected and trained; and that they wore leather shoes, with tacks, instead of the safer rubber shoes. But all this, if true, is not material, for there is no evidence whatever that anything done or omitted by the Foard Company had any connection with the explosion, except the use of a bale hook and the violent handling of a box of dynamite by Bomhardt. The dynamite was stored tier on tier in a specially prepared framework placed in the hold of the ship on a level surface of coal. It was necessary to fit the boxes closely, so as to guard against the danger in transportation of explosion by concussion. The loading of the entire cargo of 300 tons had been almost completed.

That the first explosion was at or in a box of dynamite when Bomhardt was trying to force it into its place between two other boxes is proved by the testimony of all the witnesses who had opportunity to observe, including Bomhardt himself. The only variance is as to whether the explosion immediately followed a violent blow on the box with a bale hook, or came after Bomhardt had discarded the bale hook and was trying to force the box in by 'marrying'-- that is, by placing two boxes in the shape of an A and forcing them down by pressing hard on the apex.

The District Judge has found the overwhelming preponderance with the large number of witnesses who testified that the explosion was coincident with a violent blow with the bale hook, and against Bomhardt and the one other witness who testified that Bomhardt did not have a bale hook when the explosion occurred. No further statement of the facts is necessary to show that this conclusion has not only reasonable, but very strong, support in the evidence, and cannot be disturbed.

There is as little doubt that any violent handling of dynamite or other act producing considerable concussion or friction is dangerous, and, except when required by necessity, negligent. It may be true, as contended, that a bale hook might be used so gently as to be a safe implement; but, since dynamite is known to explode from concussion, it is perfectly plain that the violent striking of a box containing such a destructive explosive with an instrument as heavy and inflexible as a bale hook would tend to prove negligence. Even if the danger of explosion be slight, such an act would still be evidence of negligence, for due care is care proportionate to the consequences to be apprehended. The evidence shows that the danger of the use of such implements in handling dynamite is generally recognized, and that the Foard Company made some effort to prevent its men from using them.

It is contended, nevertheless, on the part of the Foard Company, that neither the first nor the final explosion could have resulted from handling or striking the box of dynamite, and that both explosions were due to a fire on the ship originating in some other way. In support of this position it is insisted: (1) That according to scientific opinion the dynamite, being frozen, could not have been exploded by a blow which did not drive the point of the hook through the box to the dynamite, and that it was demonstrated that the point of the hook could not have gone through the box; (2) that, if the fire had originated from a slight explosion of a small quantity of the dynamite, it is scientifically certain that the explosion of the mass would have followed immediately, and not, as it did, after the lapse of 10 or 12 minutes; (3) that these scientific inferences are supported by the testimony of witnesses who saw smoke coming from a different part of the ship after the first explosion.

At the time of the explosion the temperature was 21 degrees Fahrenheit, while the freezing point of dynamite is 52 degrees Fahrenheit. In transportation there had been considerable variation in temperature. Inclosed as it was in paper and packed in close wooden boxes, the more exposed surfaces would probably be frozen, while the protected interior would not. That some of the dynamite was less sensitive, due to freezing or other cause, is indicated by the fact that a considerable quantity was found intact after the explosion. On this the two expert witnesses agree. They also agree in saying that dynamite which has been frozen and partly thawed is peculiarly liable to explode, and that its action is erratic. On this point Dr. Munroe, the expert called by the Foard Company, testified:

'The occasion for that greater sensitiveness of this frozen dynamite which is being thawed lies in the fact of the exudation of the nitroglycerine from the material, so that we have a film with the liquid nitroglycerine upon the surface of the stick, and that liquid nitroglycerine is more sensitive to heat and shock than the compound mixture is.'

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