THE SCHICKSHINNY

• Decision Date: 04 June 1942
• Docket Number: 465.,No. 464,464
• Parties: THE SCHICKSHINNY. JOHNSON et al. v. S. S. SCHICKSHINNY et al. LANCASHIRE COTTON CORPORATION LIMITED, et al., v. SOUTH ATLANTIC S. S. CO. OF DELAWARE.
• Court: U.S. District Court — Southern District of Georgia

45 F. Supp. 813

THE SCHICKSHINNY.

JOHNSON et al. v. S. S. SCHICKSHINNY et al.

LANCASHIRE COTTON CORPORATION LIMITED, et al., v. SOUTH ATLANTIC S. S. CO. OF DELAWARE.

Nos. 464, 465.

District Court, S. D. Georgia, Savannah Division.

June 4, 1942.

Hill, Rivkins & Middleton, of New York City, and Wm. Hugh Stephens, of Savannah, Ga., for W. H. Johnson and others.

Anderson, Cann & Dunn and Jas. P. Houlihan, Jr., all of Savannah, Ga., for Lancashire Cotton Corporation.

Lawton & Cunningham, of Savannah, Ga., for respondents.

LOVETT, District Judge.

Two groups of cargo-owners have brought these libels in admiralty, one in rem and the other in personam, against the S/S Schickshinny and her owner for damage to lumber and cotton being carried from American South Atlantic ports to Liverpool, England. They charge breach of contract to safely transport and deliver, in that, delivered to the ship in good order and condition, the bills of lading so reciting, the goods at destination were damaged.

The defenses are that the ship encountered very severe weather on the voyage, other cargo shifted and caused the damage, and Sec. 1304(2) (c) and (q) of the Carriage of Goods by Sea Act, 46 U.S. C.A. § 1300 et seq., is pleaded. This is the section which relieves the carrier and the ship from liability resulting from "perils * * * of the sea", etc., or arising from other causes without actual fault and privity of the carrier, its agents and servants.

The cases were heard and may be decided together.

If 150 barrels of "prime steam lard" on board the ship were badly stowed and, because of the fault of the ship in this respect, they shifted, broke loose and came adrift, liability for the consequent damage to the cotton and lumber with which it came in contact should be fixed on the ship; otherwise, not — for it was the lard that caused all the trouble.

The 150 wooden barrels, with oak staves and oak or ash heads, in which the lard in a liquid state was packed, each containing 395 pounds, were received without any exceptions noted, being stowed two tiers high, at Jacksonville, Florida, and were re-stowed on end at Charleston, South Carolina, whence the ship sailed for Liverpool in the early part of March. The method of stowage must be given in some detail to understand what happened to the cargo.

The lard was placed in the after part of No. 2 'tween-deck. Part of the cotton damaged was stowed in the forward part of the same compartment, some in No. 1 lower hold and the balance in No. 2 lower hold — the holds being below the 'tween-deck. The ship was equipped for refrigeration but the chilling apparatus was not in use. As a part of such equipment it had trunkways near the center of the 'tween-deck compartments, described as "similar to an elevator shaft", which extended from the weatherdeck through the 'tween-deck space, and enclosed hatches Nos. 1 and 2, respectively. The one in No. 2 'tween-deck measured fore and aft 25 feet and 3 inches, and port to starboard 27 feet and 9 inches, and was of steel construction, with about one foot of insulation. There were doors on the port and starboard sides of the trunkway, also insulated, opening towards the hatches. The hatches were not battened down. The 'tween-deck compartment was 7 feet and 5 inches high, 46 feet long and 48 feet wide. The wings on each side of the trunkway were 12 feet and 3 inches across.

The lard started at the aft steel bulkhead and went all the way across the ship and forward for seven or eight rows, one tier high, to within five or six feet of the trunkway. Forty pieces of heavy pine lumber¹ were stowed in the after part of No. 2 'tween-deck just forward of, and where touching flush with, the lard. This lumber extended all the way across the deck athwartships, abaft of the trunkway, and was chocked at the ends where it touched the skin of the ship. Other lumber was in the forward part, and some in No. 1 lower hold. The boards or planks immediately forward of the lard were 10 inches wide and 4 inches thick and were of random lengths varying from 4 to 18 feet. Where the boards of lumber touched the barrels of lard the stow was practically as high as the barrels, but from that point forward it was "stepped down" until at the trunkway it was only one plank high. Dunnage was piled on top of the lumber. The lumber and dunnage filled the space between the most forward row of the barrels of lard and the trunkway, and together were almost level with the barrel heads, but the wings on each side of the trunkway were empty. Though the lumber went all the way across the compartment from skin to skin of the ship, there was nothing immediately in front of that part of the lumber which was stowed aft of the two wings. At Savannah lumber was loaded on the forward end of No. 2 'tween-deck, — in the wings on each side of cotton received on board at Jacksonville. This lumber and cotton extended all the way across the deck and the stow came up to the deck above. There was vacant deck space in the wings of the trunkway between the cargo forward and the cargo aft.

When the ship arrived at Charleston, where the master expected to completely fill No. 2 'tween-deck with other cargo, he was informed by the stevedore that there was no other cargo to receive except the 40 large pieces of lumber, and the stevedore suggested that the lard be re-stowed one tier high, which was done. The lard remained aft in the compartment as before, though necessarily as re-stowed it occupied more deck space, and was stowed wing to wing hard up against the after bulkhead. It took up all of the space to within about five or six feet of the trunkway and that space was filled in by the 40 pieces of lumber taken aboard at Charleston, which, as stated, were of random lengths and were stepped down from the lard to the trunkway. The wings on each side of the trunkway remained empty. In stowing the barrels from wing to wing there was a space of two or three inches from the barrels to the wings which was filled by shoring it off with regular hardwood dunnage boards usually used by ships. The barrels were hard up to each other but, tapering at each end, cordwood was dropped between the barrels where they did not touch, inserted at the top horizontally. Neither the barrels nor the lumber just forward of them were "tommed" by putting pieces of wood from the top of the stow to the ceiling of the deck. Nor were they buttressed fore and aft except by the trunkway. The lumber was to serve as a bulkhead forward for the lard. Long pieces of the lumber were put at bottom; shorter lengths on top.

According to the chief officer, the bottom boards did not move during the voyage. Lumber laid fore and aft, or when a complete, full stow, stows itself. This lumber, however, was athwartships. The chief officer and the third mate (a brother of the master) carefully inspected the stow at Charleston after completion, because one of the ships of the line previously had loaded lard which became damaged through seepage on board. They considered the cargo well stowed. Other like cargo consisted of tar in drums, turpentine, rosin and tobacco in barrels or hogsheads, stowed on the sides, none of which shifted on the voyage.

On March 30th, about 7:30 a. m. when the ship was one day out from Liverpool, the chief officer was sent by the master down to No. 2 'tween-deck, where an odd noise had been heard. All he could see was "lard, staves, hoops and bands, swishing back and forth." The barrels had completely broken up and the loose lard in liquid form was three or four feet deep on the deck²; a door in the trunkway was sprung and partly open, and some of the insulation was broken off. The cotton and lumber in the compartment with the lard were completely covered by it. All of the cargo in that space had shifted.³ The lard also had leaked into the trunkway, through the open door, down the hatch and into the lower holds, damaging more cargo there. On discovering this condition water was taken from the forepeak tank causing the stern to go down 12 or 14 inches in an unsuccessful effort to run the lard down the scuppers in the after part of No. 2 'tween-deck into the bilges. Nothing could be done at that time about re-stowing the cargo.

On the previous day, March 29th, one of the sailors heard a noise in the No. 2 'tween-deck and went down to ascertain the cause of it. He found one of the small doors on an air-duct had come off its latch, and he fixed it. He reported everything otherwise was in order.

The ship sailed from Charleston March 18th at two o'clock a. m., and arrived at Liverpool at eight o'clock a. m. on April 1st. The voyage normally took eleven to twelve days — this voyage took more than 13 and one-half days. The third officer, the master's brother, testified the bad weather was not any worse than was to be expected at that time of the year on that run. Yet severe weather was encountered. March is a bad month, a bad part of the year, in the North Atlantic. The master and the chief officer, each with 22 years experience at sea, in characteristic fashion⁴ described it as one of the most severe storms they had ever witnessed⁵. A pipe guard on the forward well deck was broken, four or five feet washing away, and a bulwark or ship's plating was cracked about 15 by 18 inches on the forward starboard side of the ship. No other part of the ship was damaged, and no other cargo shifted except the lard, lumber and cotton in 'tween-deck No. 2. Because of high winds and high seas the Schickshinny, on March 30th from 7:30 a. m. to 4:40 a. m. of March 31st, was on reduced speed and hove to. According to the smooth log, on March 30th the wind, which on the previous day had been blowing fresh gale force, rose in the forenoon to whole gale force, Beaufort scale 10, which means 55 to 63 miles per hour. At 4 a. m. and 8 a. m. the force was 10 (55 to 63 miles); at noon 11-12 (64 to 75 miles and above); at 4 p. m. 11 (64 to 75 miles); and at 8 p....