Pennsylvania RR Co. v. United States

• Decision Date: 29 July 1954
• Docket Number: Civ. No. 385-52,373-52,625-51,720-51,75-52,45,976-50,974-50,975-50,620-51,367-52,387-52,623-51,730-51,445-52,621-51,471-51,449-52,452-52,372-52,448-52,447-52,472-51,973-50,622-51,432-51,349-52,624-51,418-51,299-51,985-50
• Citation: 124 F. Supp. 52
• Parties: PENNSYLVANIA R. R. CO. v. UNITED STATES et al. A. & M. TRADING CORP. et al. v. UNITED STATES. RINN v. UNITED STATES. GEARY v. UNITED STATES et al. and related cases.
• Court: U.S. District Court — District of New Jersey

124 F. Supp. 52

PENNSYLVANIA R. R. CO. v. UNITED STATES et al.

A. & M. TRADING CORP. et al. v. UNITED STATES.

RINN v. UNITED STATES.

GEARY v. UNITED STATES et al. and related cases.

Civ. Nos. 385-52, 449-52, 973-50, 367-52, 974-50, 975-50, 976-50, 985-50, 299-51, 418-51, 432-51, 471-51, 472-51, 620-51, 621-51, 622-51, 623-51, 624-51, 625-51, 720-51, 730-51, 75-52, 349-52, 372-52, 373-52, 387-52, 445-52, 447-52, 448-52, 452-52, 453-52, 454-52, 457-52, 458-52, 459-52, 463-52, 465-52, 466-52, 467-52, 468-52, 469-52, 470-52, 471-52, 472-52, 473-52, 474-52, 475-52, 476-52, 479-52.

United States District Court D. New Jersey.

July 29, 1954.

Warren E. Burger, Asst. Atty. Gen., M. M. Heuser, Dept. of Justice, Washington, D. C., William F. Tompkins, U. S. Atty., Newark, N. J., Edward V. Ryan, Asst. U. S. Atty., Jersey City, N. J., for United States.

Carpenter, Gilmour & Dwyer, James D. Carpenter, Jersey City, N. J., for Pennsylvania R. R. Co. Stephen V. R. Strong, New Brunswick, N. J., Albert S. Schroeder, Philadelphia, Pa., Adrian J. O'Kane, Richard W. Palmer, New York City, of counsel; Thomas L. Morrissey, Milton A. Dauber, Jersey City, N. J., of counsel, on the brief.

Toner, Crowley, Woelper & Vanderbilt, Newark, N. J. and Wilentz, Goldman, Spitzer & Sills, Perth Amboy, N. J.; Kristeller & Zucker, Newark, N. J.; Stryker, Tams & Horner, Newark, N. J., and Louis J. Milano, South River, N. J., on the brief for A. & M. Trading Corp., and others.

Harry Green, Little Silver, N. J., for Ethel M. Geary.

Samuel M. Cole, Jersey City, N. J., for Frances Rinn.

FORMAN, Chief Judge.

In all there are forty-nine complaints pending in this court against the United States arising out of the explosion at the Port of South Amboy, New Jersey, on May 19, 1950. It is agreed in stipulations between the United States and all of the plaintiffs that the complaints in the above-entitled four actions are representative of all of the others and together they contain all of the allegations imputing liability to the United States for the negligent acts of its agents and employees. The United States has made motions under Rule 12 (b)(6) of the Fed.Rules Civ.Proc., 28 U.S.C.A., in the four cases to dismiss as to it the complaints filed therein on the ground that they fail to state a claim upon which relief may be granted. All of the parties have further agreed that the decision of the court shall be treated as its "decision with respect to the bases of legal liability of the United States" in all of the cases reserving their rights in connection with the form of order to be filed and appellate review.

The following are pertinent allegations from the complaint filed by the Pennsylvania Railroad Company against the United States and the other defendants in this case.

Prior to May 14, 1950, defendant, The Kilgore Manufacturing Company of Westerville and Newark, Ohio, manufactured, under contract with the Government of Pakistan, a large quantity of anti-tank mines and anti-personnel mines, and detonators and fuses for the said mines. Some of these articles contained high explosives, classified by the Interstate Commerce Commission and the United States Coast Guard as Class A explosives.

Prior to May 1st, 1950, the Government of Pakistan engaged the services of the defendant, National Carloading Corporation, to expedite the shipment of these articles from the factories of Kilgore in Ohio to Karachi, Pakistan, pursuant to which National Carloading engaged space on the SS Flying Clipper, owned by defendant Isbrandtsen Company, Inc., and expected to sail May 18, 1950, to carry from the Port of New York to the Port of Karachi, 8,000 cases of anti-tank mines and a thousand cases of anti-personnel mines.

For 30 years prior to May 19, 1950, the Pennsylvania Railroad Company operated on the Raritan River at South Amboy, in the area commonly known as the Port of New York certain piers, one of which was known as the Powder Pier and was the only pier in the entire Port of New York from which commercial shipments of explosives were permitted to be unloaded from freight cars and transported by water to their domestic or foreign destinations.

On May 8, 1950, Rear Admiral Ed H. Smith, Commanding Officer of the Third United States Coast Guard District, in charge of the supervision of the movement and shipment of explosives in said district, issued the following directive:

"Due to the hazardous conditions which are deemed to exist in connection with explosives loading in Gravesend Bay and at South Amboy, N. J., the Commander, Third Coast Guard District has found it necessary to put into effect certain limitations with regard to Class A explosives.

"In accordance, therefore, with a directive from the Commander, Third Coast Guard District, effective this date, no permit will be granted by the Captain of the Port, New York, for any vessel to load or discharge Class A explosives in an amount in excess of 125,000 pounds in Anchorage 49-C, Gravesend Bay, and no permits will be granted for the loading or discharging of any amount of Class A explosives at South Amboy, N. J.

"The Class A explosives referred to above are those defined as such in the booklet Explosives Or Other Dangerous Articles On Board Vessels promulgated by the Commandant, U. S. Coast Guard, pursuant to 46 U.S.C. § 170.

"Class A explosives in amounts not exceeding 500 pounds may be handled, loaded, discharged, or transported without a permit from the Captain of the Port, subject to Federal, State, and local laws and regulations."

The above directive was published and each of the defendants received notice of it immediately after it was issued.

The Reading Company maintained and operated facilities at Artificial Island, below Wilmington, in the Delaware River, for the loading of explosives and other dangerous articles, which was known to all of the defendants.

On May 5 and 9, 1950, respectively, Kilgore, at the special instance of National Carloading, requested defendant, The Baltimore and Ohio Railroad Company, to place five cars at Vanatta, Ohio for loading of explosives and on May 10 and 12, ten freight cars were selected, approved and certified at Vanatta for the transportation of said explosives.

On May 11, 1950, defendant James Healing Company, agent of defendant National Carloading, for the purpose of receiving the shipment and transporting it by lighter or barge for loading on the SS Flying Clipper, applied to the Commandant of the Navy Depot at Earle, New Jersey, for permission to allow the said shipment to go to the SS Flying Clipper through the facilities of the United States Navy at Earle, New Jersey, but on May 13th the request was denied.

On May 13, 1950, Kilgore, at the special instance of National Carloading, presented to The Baltimore and Ohio Railroad Company shipping orders and bills of lading made out by the defendant Kilgore, as directed by defendant National Carloading, for seven cars consigned to James Healing Company, c/o United States Navy, Earle, New Jersey for loading on the SS Flying Clipper and said seven cars were started over the lines of the defendant The Baltimore and Ohio Railroad Company on said May 13, 1950, at 10 p. m.

On May 14, 1950, Kilgore turned over three more cars loaded with mines and explosives to the defendant The Baltimore and Ohio Railroad Company consigned, on instructions of defendant National Carloading, to the same consignee and over the same route as the seven cars. They started toward their destination on May 15, 1950.

Both National Carloading and Kilgore knew when the bills of lading were in process of preparation for delivery to defendant The Baltimore and Ohio Railroad Company that no permission or authority had been issued by the United States Navy to receive ten carloads of ammunitions at Earle, New Jersey, for loading on the SS Flying Clipper and it is charged that the said bills of lading were prepared and the carloads of explosives started in interstate commerce with the purpose and intent on the part of National Carloading to divert them in transit to some other destination for trans-shipment in the SS Flying Clipper in the event the United States Navy should not permit the cars to pass through its facilities at Earle, New Jersey.

On May 15, 1950, defendant National Carloading sent a letter to Rear Admiral Ed. H. Smith in which said defendant represented that the manufacturer of said explosive mines "was ordered to route the cars here (to New York) and to defer their movement until yesterday (May 14), the latest possible date to connect with this vessel", which was represented as leaving New York on May 18. Said letter further stated that:

"Through a misunderstanding some of the cars were shipped earlier and may be in New York by tomorrow (May 16).

"As the Leonardo (Earle) facilities are definitely unavailable for commercial shipments, we respectfully request that in view of the shortness of time and the natural desire of our government to assist a friendly government, you permit this one shipment to be treated as an `emergency' shipment and allow it to move through the facilities heretofore considered satisfactory.

"This would contemplate the cars moving to the Munitions pier of the Pennsylvania Railroad at South Amboy, New Jersey, and then lighted to such anchorage as you designate."

It is charged that statements in the said letter referring to the order to Kilgore to route cars to New York and to defer their movement until May 14th and the reference to the misunderstanding whereby some of the cars were shipped earlier and might be in New York by May 16th, were false to the knowledge of National Carloading. In addition, National Carloading gave a copy of the said letter to Isbrandtsen Company, Inc. and communicated with officers of the United States Coast Guard making the same false representations and urging a speedy decision by the United States Coast Guard on the request contained in its letter upon the...