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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1944
- **Citation:** 322 U.S. 735

## Text

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.

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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-

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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

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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

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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.

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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-

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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.

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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;

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA34806415_2030%3A2. Public record. Not legal advice.