Petition of United States

Decision Date19 May 1952
Citation105 F. Supp. 353
PartiesPetition of UNITED STATES. Petition of ISBRANDTSEN CO., Inc. THE EDMUND FANNING.
CourtU.S. District Court — Southern District of New York

COPYRIGHT MATERIAL OMITTED

Lord, Day & Lord, New York City, for petitioner, Isbrandtsen Co., Inc., Thomas F. Daly, Henry C. Blackiston, Jr., New York City, of counsel.

Myles J. Lane, U. S. Atty., New York City, for claimant, United States, Edward L. Smith, Erwin Rossuck and Ruth Kearney, New York City, of counsel.

RYAN, District Judge.

This is a limitation proceeding by Isbrandtsen Company, Inc., seeking exoneration from or limitation of liability as chartered owner of S.S. Edmund Fanning with respect to claims arising out of fire and explosion occasioning the total loss of the vessel and her cargo in Genoa on March 13, 1947.

On September 4, 1947, Isbrandtsen Company, Inc. filed a petition in this Court for exoneration under the Fire Statute, 46 U.S.C.A. § 182 from any loss, damage or injury in any way arising out of or in consequence of the fire and explosion on board the Fanning, or, if it was to be adjudged liable, then that its liability be limited to the value of its interest, if any, in the Fanning after the fire.

The United States of America filed claim for the loss of ten locomotives and tenders, which were loaded on board the Fanning in Bremen, Germany, by the United States Army for shipment to Korea. All other claims filed on behalf of cargo interest and others have been settled and withdrawn or were dismissed at the conclusion of the trial.

The issues raised by the answer of the Government came on for trial on December 4, 13, 14, 17 and 18, 1951. I make the following

Findings of Fact.

Isbrandtsen Company, Inc. is a corporation organized and existing under the laws of the State of New York with its principal place of business at 26 Broadway, County, City and State of New York.

Isbrandtsen was the bareboat charterer of the S.S. Edmund Fanning, which was owned by the United States of America. Isbrandtsen, at all times hereinafter mentioned, manned, victualed, supplied, operated and controlled the Fanning and was her owner, pro hac vice and within the meaning of Section 4286 of the Revised Statutes of the United States, 46 U.S.C.A. § 186.

The Fanning was a steel vessel of the type commonly known as a Liberty ship, 422 feet in length, 57 feet in breadth, 35 feet in depth, 10,572 tons deadweight, 7,176 tons gross and 4,380 net tons burthen. She was engaged in the transportation by sea for hire of general cargo. She had three holds forward and two aft.

In December, 1946 Isbrandtsen decided to engage in freight service from Continental European ports via Suez to the Far East. The Fanning was assigned to that service and when it met disaster was on the first voyage of the service.

The Fanning, laden with a cargo of coal, departed from Philadelphia, December 23, 1946 for La Pallice, a port in northern France, where all the cargo was discharged and the voyage ended. The Fanning's next voyage, which ended in the disaster at Genoa, Italy, on March 13, 1947, included calls at ports in Western Europe and the Mediterranean. The following are her arrival and departure dates on that voyage:

                      Port             Arrival           Departure
                   Bremen          January 19, 1947    February 6, 1947
                   Rotterdam       February 8, 1947    February 13, 1947
                   Antwerp         February 14, 1947   February 22, 1947
                   LeHavre-Rouen   February 24, 1947   February 25, 1947
                   Bordeaux        February 28, 1947   March 1, 1947
                   Barcelona       March 8, 1947       March 9, 1947
                   Genoa           March 10, 1947         
                

The Fanning was scheduled to call at other ports in the Mediterranean en route on her voyage to the Far East via the Suez Canal.

On December 27, 1946, Isbrandtsen by its Vice President Matthew S. Crinkley, entered into a contract by telephone with the United States of America, acting by Colonel Thomas S. Lowry, Chief of the Ocean Traffic Bureau of the Office of the Chief of Transportation, United States Army, to transport as common carrier, 10 locomotives and tenders from Bremen to Pusan for $10,000 per unit of locomotive and tender; the Army to load and unload, and the carriage to be performed pursuant to the terms and conditions of a Government form of bill of lading. This contract of carriage was confirmed by an exchange of letters and the subsequent issuance of a Government form bill of lading.

After leaving La Pallice, the Fanning proceeded to Bremen. Under way the cargo holds were cleaned, preparatory to receiving other cargo. The Fanning arrived in Bremen January 19, 1947.

At Bremen, the Fanning began to take on cargo for her voyage to the Far East. Only the cargo stowed in No. 2 hold is of importance in this proceeding for it is undisputed that it was in No. 2 hold that the fire of March 13, 1947 broke out. United States Army stevedores loaded and stowed the ten locomotives and tenders, stowing 6 locomotives and 2 tenders in No. 2 lower hold on rail and timber beds secured by wire lashings, clips and turnbuckles. Four locomotives were stowed abreast fore and aft, to the aft of No. 2 lower hold; two tenders were stowed amidships, to the fore of No. 2 lower hold, and two locomotives were stowed one each to the wings of the tenders. The locomotives loaded on the Fanning were the property of the United States of America and were being sent by the United States Army in Germany to units of the Army stationed in Korea. The shipment was from parts of Germany occupied by the United States and was destined for parts of Korea occupied by the United Nations. The locomotives were "heavy lifts" each 85 tons dead weight and the tenders were 25 tons each.

No 2 lower hold was approximately 80 ft., 10 inches long, 54 ft. wide, 25 ft. deep and had a bale capacity of 92,008 cu. ft. The locomotives and tenders measured 31,698 cu. ft. and occupied slightly more than one third of the bale capacity of the hold, although it was the largest hold of the vessel.

At Rotterdam, the next port of call, additional cargo was taken aboard. In No. 2 hold were placed 225 bags of activated carbon, stowed between the tenders.

At Antwerp, on February 15, the Fanning started to load chemicals, along with considerable other cargo. There, 1,950 casks of chlorate of potash were stowed in broken stowage around, between and over the locomotives. At least 33 cases weighing 6 tons of sodium peroxide were stowed inside the tenders at the bottom of No. 2 lower hold. Separate partitions were then built around the locomotives, tenders and this cargo, and flooring laid over them (as shown in Claimant's Exhibit — 5C). It is important to note, too, that it was reported to Isbrandtsen that "about 12 tons of dunnage wood was shipped on board the S/S Edmund Fanning at Antwerp" and "that a large amount of this wood was used to make platforms between the locomotives and tenders" (Ex. 14-J-L55). The wooden platforms and partitions erected to make compartments in No. 2 hold were no small operation. The chlorate of potash was stowed on February 15, 17, 18 and 19; the sodium peroxide on February 15.

There was also loaded in No. 2 hold at Antwerp at least 94½ tons and 75 bags of 100 lbs. each of sodium nitrate. (Ex. 28, 14-J-L34).

The chlorate of potash is described in the bills of lading as contained in "barrels" and "kegs". It is fair to assume that they were of wood, in the absence of proof to the contrary. They were marked for "Special Stowage".

The sodium nitrate is scheduled as being shipped in "wooden barrels" and "bags".

Then, while still at Antwerp, 132 large iron drums of sulphuric acid were lowered into and stowed in No. 2 lower hold. It is not disputed that these drums weighed altogether 50 tons; they were overstowed and placed above the other chemicals.

Before the vessel reached Genoa, there had also been put into No. 2 hold, close to the sulphuric acid, 760 cases of wines and brandy, 4 cases of socks, 2½ tons of nitrate of soda in bags, 10 cases of rayon tissue; and above the rayon tissue were stowed 308 cases of brandy and 488 bundles of cotton tissue.

At Genoa, 1,400 rolls of iron wire, 820 small barrels of nails and 110 cases of hemp twine were stowed on top of the drums of sulphuric acid in No. 2 hold. This was the cargo in the hold when the fire was discovered.

Concerning the position of the stowage there was also offered, in addition to oral testimony, three cargo plans — Ex. 12A, 12B and Claimant's Ex. 5-C and 28 (the last two are photostats of the same original).

Ex. 12A and 12B were made up by the stevedores and checkers after the ship was loaded at Antwerp. The ship stopped at three other ports before arriving at Genoa. These plans were prepared to show the cargo in the holds when the ship left Antwerp. They did not represent the placement of the cargo or the position of the separate shipments with relation to each other. They were not intended to show where anything was stowed, or as was testified "what was stowed above what" (SM p. 364).

Claimant's Ex. 5-C was received in evidence, without objection, as part of the deposition of Robert Markley, who was third mate aboard the Fanning on her last voyage. He testified that he had made a cargo plan on orders from Captain Fitzgerald given to him in Antwerp to search out the cargo as best he could; that he had secured the information from which he made up the plan by going into the holds and also from Captain Praast's plan which he had in his room tacked at the bulkhead. He also gave evidence that Captain Fitzgerald saw the plan before the vessel left Antwerp, and that the Captain was preparing a plan of his own. Markley testified that after drawing up a cargo plan in Antwerp he tried to make notation of all additional cargo taken aboard at subsequent ports. However this cargo plan was lost at the time of the fire on the ship; Claimant's Exhibit 5-C was prepared by Markley with Captain Fitzgerald...

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