A/S J. Ludwig Mowinckels Rederi v. Accinanto, Limited

Citation199 F.2d 134
Decision Date22 September 1952
Docket NumberNo. 6385.,6385.
PartiesA/S J. LUDWIG MOWINCKELS REDERI et al. v. ACCINANTO, Limited, et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Wharton Poor, New York City, and William A. Grimes, Baltimore, Md. (Ober, Grimes & Stinson, Baltimore, Md., Haight, Deming, Gardner, Poor & Havens, and Tallman Bissell, New York City, on brief), for appellant and cross-appellees.

Henry N. Longley, New York City, (Bigham, Englar, Jones & Houston, New York City, and Lord, Whip & Coughlan, Baltimore, Md., on brief), for appellees and cross-appellants.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

These are cross appeals in suits in admiralty brought by cargo owners to recover damages arising out of the fire and explosion which destroyed the steamship Ocean Liberty and her cargo at the port of Brest in France on July 28, 1947. Libelants are the owners of cargo consigned to Antwerp or LeHavre. Respondents are A/S J. Ludwig Mowinckels Rederi (hereafter called Mowinckels) the charterer of the vessel and its general agent, the Cosmopolitan Shipping Company (hereafter called Cosmopolitan). Recovery was asked on the grounds that the fire and explosion which caused the destruction of vessel and cargo were the result of spontaneous combustion due to negligence in the stowage of a portion of the cargo consisting of ammonium nitrate, fertilizer grade (hereafter called Fgan) in the vessel's hold and that there had been a deviation in the voyage rendering respondents liable as insurers of the cargo. Respondents denied that the fire and explosion were due to spontaneous combustion or to improper stowage of the Fgan or that they were liable as insurers and relied upon the provisions of the Fire Statute, 46 U.S. C.A. § 182, and the Carriage of Goods by Sea Act, 46 U.S.C.A. § 1304(2)(b). The District Judge found that there was no deviation but that there was spontaneous combustion of the Fgan due to negligence in its stowage for which there was liability on the part of Mowinckels but not on the part of Cosmopolitan. See D.C., 99 F.Supp. 261. From this decision both Mowinckels and the cargo owners have appealed. In the view that we take of the case three questions are presented for our consideration: (1) Was the fire and explosion which destroyed the cargo due to the spontaneous combustion of the Fgan? (2) If so, was this the result of negligence in the stowage of the Fgan for which Mowinckels or its agent Cosmopolitian are liable? (3) Was there a deviation in the course of the vessel rendering Mowinckels liable as an insurer of the cargo?

Mowinckels operates vessels between the United States North Atlantic ports and Antwerp and the Northern French ports, in a service known as the Cosmopolitan Line; and Cosmopolitan Shipping Company, Inc., is general agent for the line in New York. The Ocean Liberty was chartered by Mowinckels for one voyage and arrived in Baltimore on June 28, 1947, to take on cargo. The loading was done by Terminal Shipping Company, a competent stevedore company at the port of Baltimore which was employed for this purpose by Cosmopolitan.

Before the loading began, unusual precautions were taken because a large part of the cargo consisted of 3309 tons of Fgan, and a recent disastrous fire and explosion on ships at Texas City had given warning that danger from the handling of this material was to be anticipated. The ship was inspected upon her arrival in Baltimore by representatives of the United States Coast Guard, the Baltimore Fire Department and the Board of Underwriters of New York, and at their direction the holds of the vessel were thoroughly washed. Loading began on June 30 and was completed on July 5. The stowage of Fgan was done under the supervision and in accordance with the directions of the same authorities and in substantially the same manner as other ships had been loaded with Fgan under their direction. Large quantities of Fgan had theretofore been safely loaded at Baltimore and other United States ports and safely carried to foreign ports in Europe and Asia.1 The judge found that the directions of the fire preventive authorities were duly observed and that as the result of these precautions the stowage was sufficient to prevent fire from originating outside of the fertilizer, but that these extra precautions increased the danger from spontaneous combustion within the material.

The fire originated in the fertilizer in No. 3 hold. This hold was 47'6" fore and aft between stiffeners, 54'7" athwart ship between cargo battens, and 24'3½" in depth. There was a hatch opening 20' square from the hold into the 'tween deck space. In this hold were stowed 1381 tons of Fgan contained in 30,480 multiwall paper bags weighing about 100 pounds each and occupying a space of 1.6 cubic feet per bag. In addition 739 tons of Fgan were stowed in lower hold No. 1 and 1189 tons in lower hold No. 5. No other cargo was placed in these holds and after the nitrate was loaded the holds were closed and none of the 'tween deck hatches were thereafter opened.

The bags were placed solidly tier upon tier to the number of 20 or more in hold No. 3. There was dunnage separating the bags from the cargo battens and a layer of dunnage underneath. This dunnage was employed to keep the bags from coming in contact with iron work and from being torn and spilling the contents, and also to protect the bags from condensation of moisture. There was an air space of 2 feet between the top tier of bags and the ceiling of the hold. The whole mass of bags, however, was completely surrounded with heavy paper on all sides placed over the wooden dunnage and also with waterproof paper over the top of the mass so that the only possible circulation of air in the hold was within the space above the bags or in the space between the battens and the skin of the ship. Thus, hold No. 3 contained a solid mass of stowage of Fgan from the forward bulkhead to the after bulkhead and from the batten boards on one side of the ship to the batten boards on the other side of the ship. The ship was equipped with a standard ventilation system communicating with the holds but there was no free circulation of air through the mass of the nitrate.

After the lower holds of the ship were loaded with Fgan, the vessel proceeded to New York where she took on additional cargo. She left New York on July 11 with a total cargo of 7787 tons on board of which 850 tons were to be discharged at Antwerp and the balance at French ports, and it was expected that her first port of call would be Antwerp. A wildcat strike of longshoremen, however, broke out at Antwerp on July 18, 1947 and was not over until July 31. If the vessel had proceeded first to Antwerp, she would have arrived on July 24 when the strike was at its height, and the discharge of the vessel would have been practically impossible. On July 22 the French government, for which a great part of the cargo was shipped, directed that the ship should discharge the cargo intended for French ports, first at Brest and then at Cherbourg. Because of this order and of the strike at Antwerp the ship proceeded to Brest where she arrived on July 23.

A considerable part of the Antwerp cargo and some of the Havre cargo were first discharged in order to facilitate the discharge of other cargo required by the French government. The discharge proceeded until July 28, 1947 when at 12:30 P.M. a yellowish smoke was seen to be issuing from the starboard ventilator which opened into both No. 2 and No. 3 holds. Very soon thereafter smoke was seen emerging from ventilators connected with No. 3 lower hold and 'tween deck only. The officers of the ship put on steam in the fire smothering apparatus in the No. 3 hatch and covered the ventilator of the hatch. Since an explosion was feared the hatchboards on the fore end of the starboard hatch were opened and immediately yellow smoke came out of the hatch with suffocating gas. The fire became worse and worse and the men were ordered to abandon ship. A tug boat towed the ship out of the harbor and it was grounded on a sand bank. The cargo continued to burn vigorously until about 5:35 P.M. when an explosion took place which totally destroyed the ship with the exception of a small part of the stern.

The District Judge found that the cause of the fire had not been proved beyond a reasonable doubt but that the preponderance of the evidence fairly established the conclusion that the fire originated by spontaneous combustion of Fgan in No. 3 lower hold. That the fire began in this hold is convincingly shown by entries in the ship's logs and by the testimony of carrier's witnesses to the effect that heavy yellow smoke with suffocating gas came out of the hold, when the fire was first discovered, and also by testimony of these witnesses that it was not possible for the fire to have entered from the outside because the hatches were tightly closed and the ventilators were covered by two layers of fine steel mesh.

There is considerable doubt as to whether the fire was due to spontaneous ignition or combustion or, if so, whether this was the result of lack of ventilation in the stowage; but, in the light of the expert testimony given in the case as to the danger of spontaneous ignition of Fgan when stored in large masses without adequate ventilation, we think that this furnishes the most plausible theory of the origin of the fire that has been advanced. At all events we do not think that we would be justified in holding that the finding of the trial judge to that effect is clearly wrong and consequently accept that finding.

We do not think, however, that there is adequate support for the finding that there was negligence in the stowage of the Fgan or for holding Mowinckels liable because of such stowage. In the first place, we do not think that in the light of knowledge existing at the time it can be said that there was...

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