Petitioners Brief — American West African Line, Inc. v. "Huilever" S. A.

REOPEN VER RE IAA BN Re EOE EIA ORY AD

Be AEE

17

BRIEF IN SUPPORT OF THE PETITION FOR A

WRIT OF CERTIORARI.

Summary of Argument.

The petitioners’ first point applies to all the cargo

which was damaged. The succeeding four points, however,

deal only with the eargo which was carried in places out-

side of the No. 1 hold and tween decks.

Point 1 emphasizes the conflict in the circuits as to

what evidence is suflicient to make a finding acceptable on

appeal. It also discusses the conflict between this decision

and that in The Zarembo and shows how manifestly errone-

ous were the decisions of the lower Courts here (pp. 18-27).

Point IL discusses the necessity of showing a causal rela-

tion between the damage outside of the No. 1 compart- :

ments and the alleged unseaworthiness of the Otho and the %

burden of proof with respect thereto, in the light of the

1936 Act (pp. 28-384). In Point Il] we argue that all the

damage in the second category was proximately due to a :

sea peril, even though it may have been aggravated later i

when the vessel went by the head (pp. 34-37). Point IV is

concerned with Schnell v. The Vallescura, supra, and ques-

tions its applicability since the passage of the 1936 Act

(pp. 37, 38). In Point V we have pointed out the confused

state of the record, due to the Court’s failure to preseribe

a criterion by which a segregation of damages can be made

(pp. 39, 40).

TOD TEE ERIN A

18

POINT I.

The Circuit Court’s affirmance of the District Court’s

decrees, notwithstanding its affirmance of contrary de-

crees in the Zarembo, and its application of a different

rule from that prevailing in other circuits as to accept-

ing a trial Court’s findings, make a review of the pres-

ent cases by this Court advisable.

The anomaly presented by opposing decisions in the

same circuit in two cases whose facts to all intents and pur-

poses are identical is so unusual that it justifies, we submit,

a review of the cases at bar by this Court and the setting

aside of the findings of the lower Courts, in order that the

conflict may be resolved. A review is advisable further

because the rule applied here by the Circuit Court as to the

acceptance of the trial Court’s findings is opposed to the

rule in some of the other circuits, as we shall presently

show.

It would be difficult to find cases more on all fours with

each other than the Zarembo and the present cases.

The two ships were sister ships of the Isherwood design,

with longitudinal framing, and were about the same age.

Each was engaged on a voyage from Africa to New York

when the accident occurred. The Zarembo’s G-2 plate

cracked in two places and the Otho’s H-3 plate cracked

once. If there are any differences in the cases they lie in

favor of the Otho, for the storm which she encountered was

of catastrophic proportions, and her H-3 plate concededly

was a much better plate than the G-2 plate of the Zarembo.

The inspections of the two ships before their voyages

were in substance the same. (Note: References in this

paragraph to the Zarembo record, which is on file with this

Court, will be preceded by the letter ‘‘Z’’). The lower

Courts here made much of the fact that Sparrow and Gled-

hill, the petitioners’ marine superintendent and superin-

19

tendent engineer respectively, did not examine the shell

plating in the No. 1 hold of the Ofio from the longitudinals.

But neither did they in the Zarembo. They made their

inspections mostly on the outside, as they did here (Spar-

row, Z. R. 330, 331; Gledhill, Z. R. 305). Narter, surveyor

of the American Bureau, did examine the plating inside

the Zarembo’s No. 1 hold but used his testing hammer only

where he thought it advisable (Z. R. 263-266). Narter’s

examination was substantially the same as the examina-

tion which Paul, surveyor for the Bureau of Marine In-

spection and Navigation, made of the Otho (R. 914-937).

J. D. Wilson, American Bureau surveyor, inspected the

Zarembo’s plating outside (Z. R. 958-962), and Lucey, also

an American Bureau surveyor, did the same on the Otho

(R. 261-265). Kelly, the United States Inspector, only ex-

amined the Zarembo’s plating outside (Z. R. 1156, 1157),

whereas Paul inspected the Otho’s plating both outside

and inside. The master and chief officer of the Zarembo

inspected her No. 1 hold plating on the African coast from

the longitudinals, with the cargo battens up (Z. R. 868-

870), while Printzlau, the Otho’s chief officer, examined the

Otho’s inside plating from the longitudinals four times on

the African coast during cleaning and painting operations.

The cargo battens were down at the time (R. 446-450; 468-

476). More persons may possibly have seen the Zarembo's

plating outside, but there is little to choose between the ex-

aminations of the plating of the two vessels.

The District Court, in The Zarembo, 44 Fed. Supp. 915

(Kk. D. N. Y.), in holding that the petitioners here had used

due diligence to make the Zarembo seaworthy, said (p. 919) :

‘‘Libellant makes a point of the finding of the

wastage in plates F-1, and contends that by reason

thereof a more careful examination of the plates,

including the G-2 plate, should have been made, but

it seems to me that the finding of these F-1 plates in

the usual way shows that the examination was not

merely perfunctory, but of a kind to develop defects.

SE Es ine Soe Fe

Se a i

gers ODEPE LESS RT RAE MEL MRS ZS SRS oc

err Peal OE: a ABV amen

20

From the foregoing it seems clear that inspections

were carefully made in the usual and approved

manner.

The mere fact that there may have been an un-

observable defect in the G-2 plate, due to its having

thinned more than 25% of its original thickness,

does not entitle the libellants to recover, as it was

to relieve a ship or its owner from such a situation,

that the Harter Act and the Carriage of Goods By

Sea Act were enacted, which give exemptions from

such liability if due diligence was exercised to make

the vessel seaworthy.

Of course the duty to exercise due diligence can-

not be delegated, nor is there any attempt to do that

here, but it is difficult to understand how the ship,

or her owner, could have been more diligent. It

would be difficult to suggest more competent persons

to make such inspections than the surveyors of the

American Bureau of Shipping, the United States

Government Inspectors of the Department of Com-

merce, the Port Engineer and Marine Superintend-

ent of the claimant, and the officers of the ship itself,

all of whom, without exception, say that they saw no

excessive corrosion or groove, in the G-2 plate, and

of course the thinness of the plate could only have

been found by drilling, which certainly could not

have been required, unless something appeared to

the eyes which required it.”’

The Court further held (p. 920) that the condition in

the Zarembo’s G-2 plate which led to the fracture was a

latent defect not discoverable by due diligence.

The Cireuit Court, considering the Zarembo case (136

Fed (2d) 320), said (p. 321):

‘‘There is no doubt that in fact the ship was un-— ff

seaworthy at the time she sailed. Her plating where

it eracked was worn thin in excess of 75 per cent.,

though, of course, this is hindsight; the maximum

wear considered safe is 25 per cent. Only if due

diligence was exercised to make the ship seaworthy

can her owner be exculpated from liability.’’

After referring to the inspections of the Zarembo which

we have mentioned, the Court said further (p. 321):

‘“What would thus appear ordinarily sufficient

as an exercise of due diligence disclosed no flaws,

with the exception of some corrosion on the plate

adjacent to the one which cracked; the survey report

of January, 1939, recommended its renewal within a

year. But from this and from a warning of the

American Bureau of Shipping, dated May 20, 1937,

to all surveyors, that longitudinally framed ships

like the ‘Zarembo’ should be watched for grooving

and corrosion, libellants contend that yet more strin-

gent tests should have been applied. No practical

tests, however, are proposed. And as the district

court not unreasonably suggested, the warnings, in

so far as they are given any effect, probably spurred

the surveyors on to exercise even more care in the

tests actually employed. In any event we need not

go further into the niceties of examinations for sea-

worthiness, for enough has been said to show that

the district court’s findings of due diligence were by

no means clearly erroneous.’’

The District Court here was influenced (R. 1202) by the

circular which the American Bureau issued on May 20,

1937 (R. 1200, 1201), cautioning its surveyors to be on the

lookout for corrosion and grooving along the tops of the

longitudinals of Isherwood ships, because of one or two

fractures which had shortly before developed in the shell

plating of ships of this type. But as the Cireuit Court com-

mented in the Zarembo, the effect of this cireular un-

doubtedly was to spur the Bureau surveyors on to exercise

even more care in the tests applied. As the Court re-

marked, no practical tests, beyond those already used, were

proposed. And neither were any proposed here.

The problem of discovering in advance conditions which

may lead to plate fractures in ships has been a peculiarly

baffling one. These fractures are due principally to panting,

which produces fatigue in the steel. When a vessel is mov-

RAE os

mn iers

Cee et BEALE OEY BER ALE ICL IME

near

CAST ow ec

PEIN RUE NY

oir

8 FRO NOES

22

ing ahead in the seas her bow pitches down into the water

and then emerges, causing an alternate pressure and release

of pressure, which, combined with the ship’s forward mo-

tion, produces an inward and outward movement of the for-

ward shell plating which is called panting. In Isherwood

ships the plates flex above and below the longitudinal frames

(Jordan, R. 298; Haight, R. 735, 736; Wilson, R. 827).

The alternating cycles of stress produce fatigue in the

forward plates. The stresses are intensified at the ful-

crum, which is the frame, and there is thus an uneven dis-

tribution of the stresses through the plate, which sets up

differences of electro-potential. With sweat or other mois-

ture providing the electrolyte a multitude of minute gal-

vanic batteries is created, bringing about corrosion through

galvanic action. The fracture was caused by corrosion

fatigue, which is fatigue combined with corrosion, and it

is much more severe than ordinary fatigue (Stoughton, R.

638-650; Butts, R. 706-722; Wilson, R. 843-866).

The problem of panting in ships is one to which classifi-

eation societies throughout the world have devoted much

time and study. In efforts to solve the problem various

expedients have heen tried, the latest one being the use of

thicker plating in the forward area, which it is hoped will

prove to be the final solution (Wilson, R. 828).

Wilson, who is the assistant chief surveyor of the Ameri-

can Bureau, said that the Bureau has not yet been able to

discover the effects of panting along a longitudinal mem-

ber, but is confident that a method of doing so will sometime

be found (R. 867). The Bureau suddenly faced the problem

of failures of ships’ plating in the way of the No. 1 hold

along the longitudinals about 1937 (Wilson, R. 867, 868).

Before those failures occurred, it had been extremely dif-

ficult, if not impossible, for the Bureau’s surveyors to find

any evidence that would enable it to predict the location or

time of a plate failure. It was then assumed that there

must de a sharp grooving at the top of a longitudinal frame

Ne ie Wer ite ee SR ee ee Eee ee

23

that could easily be located in anticipation of a failure, be-

cause after the fracture occurred there was an obvious de-

terioration at the edge of the crack which indicated that

the plate might have been grooved prior to its failure.

The Bureau therefore instructed its surveyors to search

carefully for such evidence, and the surveyors tried to chip

the plates to see if there was any accumulation of dirt or

other substances that would conceal such corrosion. But

the problem was not solved. The surveyors could not find

any such grooving (R. 869, 870, 883-887).

Wilson said the corrosion fatigue cannot be seen (R.

897); that even when it is progressing through the wall

structure of the steel the steel can be chiseled and still pre-

sent a bright appearance (R. 870). After an exhaustive

study of panting and plate fractures, he came to the conclu-

sion that a groove, as distinguished from the ordinary wast-

age ina plate, which he characterized as a fillet, comes after

and not before the fracture. After the fracture has occurred,

the material at the edge of the crack, due to the softening

effect of the water flooding the ship, disappears and leaves

a chisel-like edge in the plate (R. 883, 884).

The Cireuit Court laid stress on an examination which

Narter made of the plating inside the No. 1 hold after the

Otho’s arrival, and on which he found grooving in a number

of plates along the longitudinals (R. 1272; Narter, R. 358-

364). It concluded from this that it was not unrea-

sonable for the District Court to infer that the defect in

the H-3 plate could have been detected by the exercise of

greater care in examining the No. 1 hold before the voyage

(R. 1272). In so concluding the Court apparently dis-

regarded entirely the fact that Narter’s inspection was

made under entirely different conditions from those exist-

ing when the plating was previously inspected. The hold

had been full of water from January 13th until January

21st. This water unquestionably had attacked the sound

metal underneath the surface seale, which, although hard

NRL AFD RAGE “4

a aes dit eo ing te Ra ae a F

eae en

————-

SES BRST RTM NS!

Pele verse

NE

BE LIES IE RAR RO LOTT LN A I FG I REE IPE EPI REL ROT LEI OEY SACRE OE

24

and adherent, was slightly porous, and forced it off, so that

grooves were exposed to view. Narter conceded that the

soaking of the plates in the salt water had loosened the scale

and made the grooving much easier to detect. A substantial

number of the plates he referred to as grooved appeared to

be entirely sound until he had dug out a hard flint-like sub-

stance with the pointed end of his hammer and this, it

should be remembered, was only after the soaking of the

plates in water for many days (Stoughton, R. 648, 649;

Butts, R. 713; Wilson, R. 849, 850; Narter, R. 376-381).

The question, of course, is not what Narter could see or

find on the shell plating after it had been soaked in water

for over a week, but what Printzlau and Paul could see on

the plating under normal conditions.

Counsel for the respondents have argued, and the Dis-

trict Court seems to have been unduly influenced by the

argument (R. 1202), that the accident to the Zarembo was

a warning to the petitioners, which should have impelled

them to do still more than was done in the way of inspect-

ing the Otho before the voyage. The basis of the argument

is that what was sufficient to constitute due diligence in the

case of the Zarembo was insufficient in the case of the Otho

because of the prior accident. This argument is highly fal-

lacious and treats the Zarembo case as though it was the

first instance of a plate fracture in a ship. This was far

from being so (Wilson, R. 867, 868). During the ten years

preceding the trial Wilson had personally investigated

about two dozen cases of plate fractures, some before and

some after the Zarembo (R. 885, 886). If ‘‘warning’’ is

the correct word, the Zarembo accident was no more of a

warning than were the plate fractures preceding the Za-

rembo. The American Bureau, as we have shown, was

very much on its guard from the start, and its surveyors

made determined efforts to discover conditions which might

lead to fractures, but unsuccessfully. The problem, which

our opponents try to oversimplify, was in reality an ex-

tremely difficult one.

RS Re eee Cae TREE

25

The issue as to whether the fracture developed before

or after the storm, which the lower Courts also decided ad-

versely to the petitioners, is really not the crucial point in

the cases, for in the final analysis they narrow down to the

question as to whether the defect in the plate was latent

or not. We should point out, nevertheless, that the Dis-

triet Court’s finding that the crack started to develop

and was causing some leakage into the No. 1 starboard bilge

before the storm flies squarely in the face of the testimony

of the respondents’ only metallurgist, Tour. He said that

the development of the crack was in length and not in

depth; that when it was a few inches long it was some thou-

sands of an inch wide; that there was no gradual penetra-

tion through the width of the plate; and that laterally the

fracture took place all at once (R. 981, 982). And the great

influx of water, which put the ship by the head on January

13th, fixes the time when the plate cracked through. The

District Court’s finding No. 25 (R. 1209) that the plate

was cracked and water was entering the No. 1 hold before

the storm is therefore absolutely contrary to the evidence.

From our recital of the facts, the error of the lower

Courts in finding that the defect in the Otho’s plate was not

a latent one appears plain. The error stands out even

more clearly when the finding is contrasted with the Za-

rembo finding that the defect was latent, it being conceded

that the Zarembo’s plate was in nowhere near as good con-

dition as the Otho’s plate was.

Both plates were examined together in the presence of

the Court at a session of the trial held at the Pier Machine

Works in Brooklyn. The petitioners’ experts pointed out

that the grooving in the Zarembo plate was deeper, more

extensive and much more pronounced than the grooving on

the Otho plate (Stoughton, R. 554; Haight, R. 586, 587; see

also, Butts, R. 706; Wilson, R. 842). The respondents’ ex-

perts were present but never contradicted the above testi-

mony. As a matter of fact the Otho plate, before the frac-

Seen era

Pee ree es

ture, would not have been subject to condemnation by the

American Bureau, as deterioration had not progressed to

a point where renewal was called for by the Bureau’s rules

(Wilson, R. 899, 830-838).

The Circuit Court, in deciding these cases as it did after

holding the opposite way in the Zarembo, said that it ap-

plied the same rule in both cases with regard to accepting

findings of fact by trial Courts and that, as an Appellate

Court, it could not insure uniformity in the decisions of the

District Courts on issues of fact, even though the facts in

two cases might be identical (R. 1272). But we do not

believe that there can be any justification for a rule or prac-

tice which would lead to the present anomalous situation,

where the defects in the two plates were due to the same

cause and yet the defect in the inferior plate was found to

be latent while that in the better plate was found to be

patent. There were many witnesses who testified in both

cases. Surely they could not all be right in one case and

wrong in the other. Furthermore, in view of the compari-

son of the plates to which we have just alluded, it

verges on the absurd to say that the corrosion fatigue de-

fect was invisible in one plate and visible in the other.

If 15 men could not find the defect in the Zarembo plate,

surely no one could be expected to find one in the Otho

plate. The discovery of corrosion fatigue in a plate did

not become any easier after the Zarembo accident. In

short, the decision of the District Court in the Zarembo

was supported by the weight of the evidence while here

it was just the other way.

There is undoubtedly a conflict in the circuits as to the

effect to be given to trial Court’s findings on appeal.

In the Third Circuit the Court, in Kuhn v. Princess Lida

of Thurn & Taxis, 119 Fed. (2d) 704 (C. C. A. 3), stated the

rule in this way (p. 705):

27

‘‘So long, therefore, as a finding of fact is sup-

ported by evidence and is not clearly erroneous it is

to be accepted on appeal as verity.’’

On the other hand in the First Cireuit the Court, in

Fleming v. Palmer, 123 Fed. (2d) 749, stated the rule in

these words (p. 751):

‘A finding of fact is clearly erroneous if it is

against the clear weight of the evidence. It does not

suffice that it be supported by evidence.’’

The rule as last stated also prevails in the Eighth Cir-

euit. State Farm Mut. Automobile Ins. Co. v. Bonacci,

et al., 111 Fed. (2d) 412, 415 (C. C. A. 8).

The Circuit Court, in the cases at bar, seems to have

followed the Third Circuit rule. Again and again it said

that the District Court’s findings will be sustained if they

are *‘supportable.”? They must be more than ‘‘support-

able,’? we submit. They must be supported by the clear

weight of the evidence and they were not so supported here.

On the contrary, they were, we believe, plainly against the

clear weight of evidence.

Because of the conflict in the circuits just mentioned

and because of the Circuit Court’s unjustified acceptance

of findings which were clearly erroneous and its refusal to

follow its decision in The Zarembo, we respectfully submit

that these cases should be reviewed by this Court on cer-

tiorari, in order that these errors may be rectified.

mt etree i |

RCP RRS URINAIRE ENR eS Ro re tes

ee ace

Ne feo

YE eC SP A SAS Yet ahs hE HA

13)

rae

POINT II.

The Court below erred in failing to hold that the

respondents, under the Carriage of Goods By Sea Act,

had the burden of showing a causal relation between

the alleged unseaworthiness of the Otho and the cargo

damage outside the No. 1 compartments and that they

failed to sustain this burden.

A most important fact to bear in mind in connection with

this damage is the date when the Oiho went by the head. The

respondents’ proctors contended that it was on January

11th. Printzlau, the chief officer, so testified at first, but

did so under a misapprehension and corrected his testi-

mony and said that it was on the morning of January 13th

when the Otho was found to be by the head and was ob-

served to be acting sluggishly (R. 509-511). The District

Court accepted January 13th as the date (R. 1192, 1193;

Finding No. 24; R. 1208). If the Otho had gone by the head

earlier her officers of course would have noticed it.

Although the full force of the storm did not strike the

Otho until the 12th, the weather was bad all day on the 11th,

The seas in fact were rough through most of the night of

January 10th/11th (Raymond, R. 535, 536; Printzlau, R.

453; Smith, R. 233). The storm center passed the Otho in

the late forenoon of January 11th at a distance of 50 miles

(Kimball, R. 786, 806). The liner Santa Rosa, which was

320 miles away from the Otho at noon (Bogdan, R. 419) was

forced by the heavy seas to heave to at 8:34 A. M. (Brion,

R. 207). The decks of the Otho, which was fully loaded,

were therefore awash all day of the 11th.

We shall now consider the four classes of damage in this

category.

First: The damage to the residue of the palm oil in the

deep tanks. This oil was impregnated by salt and fresh

29

water. The salt water entered through rivets in the shell

plating which were loosened by the vessel’s straining in the

heavy seas (Jordan, R. 296, 297; Cocks, R. 427). The fresh

water came through the joints of the steam heating coils

where a leak developed, again as a result of straining in the

heavy weather (Cocks, R. 428). All deep tanks had been

thoroughly tested before the oil was loaded and were cer-

tified to be in a fit condition to carry palm oil (Printzlau,

R. 482-484; Log entries (Ex. W.) for December 2, 3 and 6,

1940).

Second: Salt water damage in the No. 2 tween decks

and lower hold. This damage was due to the tearing of the

No. 2 hatch tarpaulins, which occurred on January 12th.

When the launch was smashed by the heavy seas that day

its after section, while pounding around, tore the tarpaulins

on the No. 2 hatch. They were ripped and chafed through

on the after port side of the hatch so that sea water got in

and damaged the cargo in that hatch (Finding No. 73, R.

1221; Smith, R. 239; Printzlau, R. 456, 463; Hull, R. 1093 ;

Cocks, R. 423-426).

Third: Sweat damage in the No. 2 compartments. Some

of the damage in the No. 2 tween decks was caused by sweat

which, as is well known, is produced by the difference in

temperatures inside and outside of a ship’s hold and is com-

mon in the winter when ships pass from warm to cool

weather (Cocks, R. 425; Printzlau, R. 464).

The No. 2 hold was equipped with three ventilators, one

forward and two aft, which telescoped into the tween decks.

On Sunday morning, January 12th, the after ventilator of

the No. 1 hold and the forward ventilator of the No. 2 hold

were unshipped and the stumps were plugged with wooden

plugs and covered with canvas. They were lashed at the

base of the foremast. One was washed overboard the same

day and the other two days later (Hull, R. 1096, 1097;

Bower, R. 1110, 1115; Maier, R. 1117; Smith, R. 243;

atoms ea a |

SRL SINS IMR TIN ER ANE SEE ROS ME GD ROO TOM MEAL ISSR MAE EIT Pek TINE ET oe TR

30

Printzlau, R. 463, 464). The removal of the No. 2 ventilator

prevented the free circulation of air through the No. 2 com-

partments, and this, combined with the sea water which en-

tered No. 2, accelerated the formation of sweat (Cocks, R.

431; Printzlau, R. 464). Since it was a sea peril which pre-

vented the proper ventilation of this cargo, the sweat dam-

age was due to a sea peril. The Zarembo, supra; Clark v.

Barnwell, 12 How. 272; Wessels, et al. v. The Asturias, 126

Fed. (2d) 999 (C. C. A. 2).

Fourth: Damage to cargo in the bridge deck. Two con-

signments of chillies (peppers) stowed in the bridge deck

were damaged by sea water which entered through the

bridge deck doors when they were sprung by the heavy seas

on January 12th (Finding No. 74; R. 1221; Smith, R. 240;

Jordan, R. 293; Cocks, R. 431).

The District Court held that the stowage of the cargo

in the No. 2 compartments and in the bridge deck was

proper (Findings Nos. 76 and 77; R. 1221). No question of

stowage arose with respect to the palm oil in the deep tanks.

We have, then, a situation where the originating factor

in these four classes of damage (the storm) came into

operation before the Otho went by the head on January

13th. The sea water poured into the No. 2 hatch and the

bridge deck and sweat was forming in No. 2 tween decks

on January 12th. If the weather on January 12th was

severe enough to cause all the structural damage which

was done that day (supra, p. 3), it obviously was heavy

enough to loosen the shell plating rivets adjacent to the

deep tanks and the deep tank heating coils.

The District Court’s view, drawing the best inference

we can from its vague remarks about an apportionment

(R. 1203), presumably was that sea peril was the first cause

of this damage and that subsequently the damage was

aggravated when the ship went by the head. The puzzling

thing about it all is that the Court, in Finding No. 71 (R.

31

1220), wherein it held the sweat damage in No. 2 attributable

to the Otho’s unseaworthiness, deliberately excluded the

salt water damage in that hatch. There is no finding

relating this salt water damage to the cracked plate. Then,

strange to say, the Court found a causal relation between

_ the fracture and the damage in the bridge deck (No. 72, R.

1220, 1221), although the No. 2 hatch tarpaulins and the

bridge deck doors were damaged at about the same time.

The District Court was clearly right in excluding the

salt water damage in No. 2 from its findings as to causal

relation. But, equally clearly, it was wrong in finding a

‘ausal relation in the case of the other damage, for there

was no reason for any distinction between the classes and

the Court gave none.

While there was a causal relation between the cracking

of the plate and the damage to the cargo in the No. 1 com-

partments and the jettisoning of the palm oil, the respond-

ents utterly failed to show that the damage to the cargo

outside of No. 1 resulted from the plate fracture. And the

burden was on them to do so, we submit, under the Carriage

of Goods By Sea Act.

This Court was not yet decided whether the 1936 Act

changed the law established in May v. Hamburg etc. Ge-

sellschaft (The Isis), 290 U.S. 333, which held that it was

unnecessary for a cargo-owner to show a causal connection

between unseaworthiness and cargo damage in order to hold

the carrier. In the absence of a pronouncement by this

Court, however, it seems to be generally agreed that the

Isis rule no longer prevails.

The exemptions in Section 3 of the Harter Act (46 U.S.

C. A. § 192) were conditional. But those provided by See-

tion 4, paragraph 2 of the 1936 Act are unconditional.

Section 4, paragraph 1, of the 1936 Act (46 U.S. C. A.

§ 1304(1)) provides in part as follows: ‘Neither the earrier

nor the ship shall be liable for loss or damage arising or

a

OST

WL

ERA ADAGE RIEL PLT RMN TERI ASD ANG RIFT AA IE NE DEINY SERRE e2 DTME SHEENA 9 SNE NAIA TO ig TY

32

resulting from unseaworthiness unless caused by want of

due diligence on the part of the carrier to make the ship sea-

worthy.’’ This section is discussed in ‘‘Knauth on Ocean

Bills of Lading,’’ 1941 Edition, pages 124-126.

Deutsch, in his book entitled ‘‘ Model Ocean Bill of Lad-

ing,’’ states (p. 6):

‘‘In any event, assuming that the Carriage of

Goods By Sea Act provides that the carrier shall not

be liable for loss caused by unseaworthiness, unless

the loss is caused by the carrier’s want of due dili-

gence to make his vessel seaworthy, the statute makes

this important change in the American law in favor

of the carrier. In other words, prior to the enact-

ment of the Carriage of Goods By Sea Act, under the

decision of the Supreme Court in the case of the Isis,

supra, the carrier was liable for loss or damage to

‘argo, if he had failed to use due diligence to make his

vessel seaworthy, whether the loss had any causal

connection with the unseaworthiness or not. Under

the generally accepted construction of the Carriage

of Goods By Sea Act, the carrier is not liable in that

‘ase unless there is an actual causal connection be-

tween the lack of due diligence and the loss.’’

Furthermore, in the eases which have construed the Act

to date, it has been held that the cargo-owner has the bur-

den of showing that unseaworthiness in the ship caused the

damage to his cargo.

In The Aakre, 31 Fed. Supp. 8 (S. D. N. Y.), affirmed 122

Fed. (2d) 469 (C. C. A. 2), the Court, considering a case

arising under the Canadian Water Carriage of Goods Act,

1936, stated (p. 12):

“It follows, and I hold, that under the provisions

of the contract of carriage herein the burden was on

the cargo to show that the ship was unseaworthy in

some specified respect, which caused or contributed

to the loss from one of the excepted statutory perils

relied on by the ship-owner—which in this cause was

a’

—— “

stranding—an accident of the sea—due to negligent

navigation.”’

In The Temple Bar, 45 Fed. Supp. 608 (D. C. Md.), the

Court, comparing the Harter Act and the Carriage of

Gioods By Sea Act, said (p. 613):

‘*By the 1936 Act, the vessel owner, while re-

quired to exercise due diligence in furnishing a sea-

worthy vessel, incurs no liability for loss arising

even from unseaworthiness unless such is caused by

lack of due diligence to make the vessel seaworthy.

In short, the later Act, unlike the earlier one, does

not condition its exemptions upon due diligence to

make the vessel seaworthy, but only liability for loss

due to unseaworthiness is so conditioned. * * *

Therefore, to summarize, the following principles

seem clear from the language of the Act: (1) The

shipowner has the burden of proving that the vessel

was seaworthy when she sailed, or that he had ex-

ercised due diligence to make her so; but (2) even

if the shipowner fails in this proof, the claimant still

cannot recover unless he sustains the burden of prov-

ing that the unseaworthiness did, in fact, cause the

loss or damage in question.’’

See also, The Thomas J. Howard, 1943 A. M. C. 1263,

1273.

33

The word ‘‘unless”’ in Section 4 is particularly signifi- &

cant as showing where the burden lies. The Fire Statute,

R. S, 4282 (46 U.S. C. A. § 182), provides an analogy. It

exempts the ship-owner from liability for loss or damage

arising by fire on the ship unless such fire is caused by the

design or neglect of the owner. Under that statute the bur-

den is upon the cargo-owner to show design or neglect.

The Salvore, 60 Fed. (2d) 683 (C. C. A. 2); The Older, 65

Fed. (2d) 359 (C. C. A. 2).

Therefore, under the 1936 Act, as interpreted so far,

the respondents had the burden of showing that this dam-

age resulted from the crack in the plate. In order to sus-

tain this burden, they at least had to show that the Othe

Tata Ts Cte

SR il NAMIE PPCM OR PPR TOES) RAEI iy MEME IE NOT AIM PORES OO RY PAGAL LOE NSF ee es a

34

was by the head before January 12th, when the full force

of the storm struck her and did the damage to the ship

(supra, p. 3) which let the water into the places where this

cargo was carried and made it necessary to reduce the ven-

tilation in No. 2. They failed to meet their burden. The

Otho went by the head on the 13th. The petitioners there-

fore in any case should have been exonerated from liability

for the damage to all this cargo outside of No. 1.

POINT III.

The Court below, in failing to hold that the proxi-

mate cause of all the damage to this particular cargo

was a peril of the sea, has rendered a decision which

is in conflict with applicable decisions of this Court.

It is certain that the District Court, as evidenced by its

remarks about sea peril and an apportionment of the dam-

ages (R. 1203), and its deliberate exclusion of the sea water

damage in No. 2 from Finding No. 71 (R. 1220), was of the

opinion that part of the present damage was proximately

due to sea peril. The Court’s reason for holding the peti-

tioners liable for all this damage undoubtedly was due to

its mistaken idea that Schnell v. The Vallescura required

a segregation at the trial (/uyfra, p. 39).

But the District Court’s fundamental error, we believe,

lay in its failure to hold that a sea peril was the proximate

cause of all this damage, for it was the sea peril which first

paved the way for the water to enter the No. 2 hatch, the

bridge deck, and the deep tanks, and which necessitated the

precaution of unshipping the two ventilators. If the dam-

age was later increased when the vessel went down by the

head, the proximate cause of all the damage, within the

decisions of this Court, was nevertheless a sea peril.

——_~ ie, oe, 6h 6: :hlU ei 6

35

In The G. R. Booth, 171 U. S. 450, the situation was just

the reverse of the one here. There cargo was damaged by

sea water which entered the ship through an opening pro-

duced by an explosion of 20 cases of detonators in the hold

and the question was whether or not the loss was due to a

peril of the sea. This Court held that the explosion, and

not the sea water, was the proximate cause of the damage.

It said (p. 460):

‘‘In the case at bar, the explosion of the case of

detonators, besides doing other damage, burst open

the side of the ship below the water line, and the sea

water rapidly flowed in through the opening made

by the explosion, and injured the plaintiff’s sugar.

The explosion, in consequence of which, and through

the hole made by which, the water immediately en-

tered the ship, must be considered as the predomi-

nant, the efficient, the proximate, the responsible

cause of the damage to the sugar, according to each

of the tests laid down in the judgments of this court,

above referred to. * * * There being two concur-

rent causes of the damage—the explosion of the de-

tonators, and the inflow of the water—without any

appreciable interval of time, or any possibility of

distinguishing the amount of damage done by each,

the explosion, as the cause which set the water in

motion, and gave it its efficiency for harm at the time

of the disaster, must be regarded as the predominant

cause.’’

In Insurance Co. v. Boon, 95 U. S. 117, goods in a store

in Glasgow, Mo. were insured under a policy exempting the

insurer from liability for any loss or damage by fire hap-

pening by means of any invasion or of any military or

usurped power. An armed Confederate force attacked the

city and the commander of the Union forces set fire to the

City Hall in order to prevent military stores therein from

falling into the possession of the invaders. The fire spread

from one building to another until it reached the store con-

taining the insured goods and destroyed them.

LIE RT IRS,

BBercrravsrserscomeentteie

36

This Court held for the insurers. It said (p. 133):

‘‘In the present case, the burning of the city hall

and the spread of the fire afterwards was not a new

and imdependent cause of loss. On the contrary, it

was an incident, a necessary incident and conse-

quence, of the hostile rebel attack on the town,—a

military necessity caused by the attack. It was one

of a continuous chain of events brought into being

by the usurped military power,—events so linked to

vether as to form one continuous whole. * * °

lfence it must be concluded that the fire which de-

stroyed the plaintiffs’ property took place by means

of an invasion or military or usurped power, and

that it was excepted from the risk undertaken by

the insurers.”’

In Insurance Co. v. Transportation Co., 12 Wall. 194,

Court said (p. 199):

Hot, when there is no order of succession in time,

*oen there are two concurrent causes of a loss, the

~jominating efficient one must be regarded as the

«mate, when the damage done by each cannot be

hed. * * * And certainly that cause which

in motion and gave to it its efficiency

t the time of the disaster must rank as

me Co vy. Tweed, 7 Wall. 44, cotton in a ware-

| awainst fire by a policy, which provided,

es, that the insurer should net be liable

sion. An explosion took place in one

« « fre which spread to a second ware-

, third warehouse which contained the

(ourt held that the loss of the cotton

S Wall. 153; The Munaires, 1

The Strathdon, 89 Fed. 374

37

Because of the conflict between the decision below and

those of this Court in the respect mentioned, and because

of the Court’s failure to exonerate the petitioners and the

Otho from liability for this damage on the ground that it

was all proximately due to a peril of the sea, we submit that

a writ of certiorari should issue to correct the error.

POINT IV.

The petitioners, in view of the change in the burden

of proof made by the Carriage of Goods By Sea Act,

should no longer be required to segregate exempt

damage from non-exempt damage at the risk of being

held liable for all, and the lower Courts erred in so hold-

ing.

Both lower Courts were of the view that the petitioners

must apportion these damages or pay for everything, under

Schnell v. The Vallescura. We do not think that this is so

since the 1936 Act, which made a sweeping change in the

law as to a carrier’s liability where vuseaworthiness is

charged. It is therefore open to sericus question whether

the rule laid down in The Vallescura has survived the Act,

at least insofar as a situation like this is concerned.

The Circuit Court of Appeals, in deciding The Val-

lescura, 70 Fed. (2d) 261 (C. C. A. 2), held that since the

decay which damaged the onions came within a bill of lad-

ing exemption, the burden of proving negligence was on the

cargo-owner, and therefore the cargo-owner was obliged to

show what part of the decay was due to the carrier’s neg-

ligence.

This Court reversed the Circuit Court on the ground

that the state of the proof was such as to show that the

damage was due either to decay, an excepted peril, or to

the carrier’s negligence and therefore the carrier must

se SE ce aac |

38

bring itself within the exception or show that it had not

been negligent.

Here the respondents charge unseaworthiness. But

under the cases we have cited (pp. 32, 33) they must show

that the unseaworthiness caused their damage. They are

therefore in the position of a cargo-owner before the 1936

Act, whose damage was within an excepted cause, which

required him to prove negligence on the part of the car-

rier. That was the basis on which the Cireuit Court de-

cided The Vallescura.

The reason why this Court decided The Vallescura as

it did seems evident from the emphasis it laid on The Fol-

mina, 212 U.S. 354, as a precedent. In The Folmina, cargo

was damaged by sea water but the carrier failed to show

how the water entered the vessel. It was held there that

the carrier must show that the water came in as a result

of a sea peril and that where the cause of the entry was

not explained the carrier was liable.

Since the 1936 Act, as construed up to the present time,

places the burden on the cargo-owner to show that his

damage has resulted from the ship’s unseaworthiness,

where seaworthiness is the issue, there is a very serious

question whether The Vallescura rule now applies to cases

like those at bar. If we are correct as to this, the Courts

below should have exonerated the petitioners from liability

as to this cargo because the respondents failed to prove

what part of the damage, if any, was traceable to the frac-

ture in the plate.

The question presented under this point is clearly of

sufficient interest and importance to merit review by this

Court on certiorari.

= oa a a

39

POINT V.

The lower Courts, by failing to establish a criterion

under which the damage can be segregated, have made

it impossible for the petitioners, if the burden of mak-

ing a segregation is still theirs, to secure exoneration as

to any of the damage outside the No. 1 compartments.

This manifest error should be corrected by this Court.

Should this Court disagree with all of our preceding con-

tentions, the problem of apportionment would still remain.

The District Court held the petitioners liable for all

this damage under the mistaken idea that they were re-

quired to separate the various classes of damage at the

trial. This was plainly erroneous, for, as we pointed out

on the appeal, the segregation question, on which The Val-

lescura was decided against the carrier, did not really come

up until it was found impossible to segregate the damages

before the Commissioner. The Circuit Court agreed with

us, saying that the opportunity to make an apportionment

will still be open to the petitioners before the Commis-

sioner (R. 1273). But neither Court gave any clear in-

dication as to which damage was considered exempt and

which not. No general principle was laid down, so there

is no way of knowing what to segregate. The record, in

fact, is in a badly confused state on this point.

We are completely in the dark as to what the District

Court had in mind when it said that it was unable to make

an apportionment because of insufficient evidence (R. 1203).

We do not know whether it was thinking about an appor-

tionment as between the sweat and salt water damage in

No. 2, or an apportionment as between damage caused by

sea peril and any aggravation of such damage caused by

the vessel’s going by the head, or to all of them. The con-

fusion was deepened by the Court’s findings and conclu-

sions, which remained unclarified in spite of our efforts to

have them clarified.

40

In dealing with the damage in No. 2, for example, the

Court found that only the sweat damage therein was at-

tributable to the unseaworthiness of the Otho (Finding No.

71, R. 1220). The salt water damage was deliberately

omitted, making the inference irresistible that the Court

considered that damage to be due to sea peril.

In spite of its exclusion of the salt water damage in No.

2 from Finding No. 71, the Court proceeded to find that the

sea water damage in the bridge deck was attributable to

the cracked plate (Finding No. 72, R. 1220, 1221), although

the damage to the bridge deck doors and the No. 2 hatch

tarpaulins was caused by the seas at about the same time.

In Conclusion of Law No. 8 the Court held that all the

damage involved in the litigation was caused by the Otho’s

unseaworthiness (R. 1222, 1223). And in Conclusion of

Law No. 12 it said that the petitioners’ failure to use due

diligence to make the vessel seaworthy resulted in the dam-

age to the cargo stowed outside the No. 1 hold (R. 1223).

In our petition for a rehearing in the Circuit Court we

pointed out the inconsistency between the various findings

dealing with this cargo and between Conclusions Nos. 8

and 12 and Finding No. 71 and also asked for a modifica-

tion of the decrees to provide some clear basis for making

an apportionment. But the Court denied our petition.

If this Court should disagree with our argument as to

proximate cause in Point III (pp. 34-37) we respectfully ask

that a writ of certiorari issue in any event and that the lower

Court’s decree be modified so that we may know where the

line of demarcation is between the petitioners’ liability and

non-liability for the damage to the cargo outside of the No.1

compartments, and be enabled to make an apportionment

before the Commissioner accordingly.

41

CONCLUSION.

It is respectfully submitted that this petition for a

writ of certiorari to review the decree of the Circuit

Court of Appeals for the Second Circuit should be

granted.

Dated March 24, 1944.

Joun W. Cranpnaty,

Counsel for Petitioners.

Geo. WuITeFIELD Betts, Jr.,

HeLten F. Tvony, :

“Of Counsel,

BE PUTTS

PVE Hs UTR IS SS “

Baers