Opposition Brief — Accinanto, Ltd. v. A/S J. Ludwig Mowinckels Rederi

—a ¢ é nines ie Fo WL OP Ae rts ine Mie be ale IOLA SO AL TRIES

‘ .

Supreme Court of the United States

OCTOBER TERM, 1952

Accinanto Lrtp., et al.,

Petitioners,

vs.

No, 506

A/S J. Lupwic Mowixcxets Revert and

CosMOPOLITAN Surppinc Company, Inc,

Respondents.

BRIEF SUBMITTED IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI ON BEHALF OF

RESPONDENTS

Proceedings Below

Petitioners are cargo underwriters, consignees, ete., suing

to recover for loss or damage to cargo shipped on board

the S.S. Ocean Liberty, which was destroyed by fire and en-

suing explosion at Brest, France, on July 28, 1947 (R. 21,

r+ 6 i

Respondent, A/S J. Ludwig Mowinckels Rederi, a Nor-

wegian corporation, was the time charterer of the Ocean

Liberty, of the well-known “Liberty” type built in the

U.S A. in 1943 (A. 598).

Cosmopolitan Shipping Company, Inc., the other re-

spondent, with offices in New York, was the New York agent

* Numbers preceded by “R.” refer to the pages of Vol. 4 of the

printed record, the proceedings in the Court of Appeals. Numbers

preceded by “A.” refer to pages of Vols. I and II, the “Ship Ap-

pendix.” “Nitrate” or “ammonium nitrate” when used herein mean

“ammonium nitrate, fertilizer grade”. sometimes called “Fgan”.

IS AR PERT LAS A ALTAIR ODER Tat iG ASAI EMER EA RAE SAAT NE Son ln BS ina sek Ri Den cae ite a

2

of Mowinckels Rederi. It had no office in Baltimore and

none of its employees was present when the Ocean Liberty

was loaded there.

The libel alleges two causes of action: first, for non-

delivery of merchandise, against Mowinckels Rederi and

Cosmopolitan Shipping as joint carriers (A. 2); second,

for deviation in that the Ocean Liberty called at Brest

because of a strike at Antwerp (A. 4).

Prior to the trial, proctors for libellants discontinued a

suit to recover $345,000 for the loss of the nitrate (A. 44)

evidently because of the realization of their clients that

the claim of bad stowage was without merit.

The assertion that Cosmopolitan Shipping Company, Inc.,

was a carrier of the merchandise broke down and was

abandoned. Libellants shifted their ground at the trial,

and sought to sustain a cause of action against Cosmo-

politan Shipping Company on the ground of the latter’s

negligence, despite the absence of any assertion of negli-

gence in the libels,

The District Court resolved the controversy as follows:

(1) The libels against Cosmopolitan Shipping Com-

pany, Inc., were dismissed (A.-76),

Pit tee PRE FF

(2) The causes of action based on the theory of devi-

ation were also dismissed (A. 76).

(3) An interlocutory decree in favor of libellants and

against Mowinckels Rederi was entered (A. 76) on a

theory of “constructive” fault on the part of Mowinckels

in the face of the admission of libellants’ counsel that

“one cannot overlook the fact that Mowinckels is in

Norway and presumably knew nothing of the way this

ship was stowed” (A. 399).

Both parties appealed to the Court of Appeals which

reversed the interlocutory decree in favor of libellants,

directed a dismissal of the libels and affirmed the decision

below in all other respects (R. 36).

a

|. ie SOSA EMEA WANN yA TE SE ETN AIRONET AG ARR a

3

Petitioners then moved for a rehearing and for an amend-

ment of the Court of Appeals opinion (without specifying

the amendment desired). This motion was denied (R.

70, 71).

The case at bar is of interest only to the parties; there

are no “special and important” reasons why a writ of cer-

tiorari should be granted (Rule 38(5)).

The Court of Appeals decided this cause adversely to pe-

titioners on the ground that they had not shown negligence

in stowage, saying:

“We do not think, however, that there is adequate

support for the finding that there was negligence in

the stowage of the Fgan or for holding Mowinckels

lieble beeause of such stowage. In the first place, we

do not think that in the light of knowledge existing at

the time it ean be said that there was negligence or

lack of ordinary care in the stowage. * * * Even they

[ Petitioners’ experts] do not say that at the time of the

loading of the Ocean Liberty there was any scientific

teaching to the effect that Fgan was likely to heat be-

cause of its wax coating or that it was dangerous to

stow it in paper bags, or that it was customary to give

it anv creater ventilation than other bagged cargo”

(R. 22, 23).

“ * * * Surely they [the stevedores and earrier]| are

not to be held negligent when they seek and follow the

advice of expert and experienced agencies such as the

Coast Guard, the Fire Department and the Board of

Underwriters, instead of mapping out rules of their

own based upon consultation with academic experts”

(R. 28).

Again at R. 29:

“It would not be reasonable to hold the carrier or

the stevedore chargeable with knowledge that this

expert committee [the Interagency Committee, ap-

pointed by the Secretary of the Treasury ‘to study

every possible hazardous aspect of ammonium nitrate’

(It. 28)] did not have or with reaching conclusions

that it did not reach after careful study, or with negli-

gence in not adopting safety measures that the com-

mittee did not so much as suggest.”

+

This case cannot be a controlling precedent as respects

any other. All that was decided was the issue of due care

in the light of particular facts. There is no conflict with any

decision in another circuit nor with applicable local law.

vA RS Ee

Facts

The facts are summarized by the Court of Appeals (R.

18-29), and are restated here because of the distorted im-

pression created by the many incorrect and misleading

statements in the petition. The more serious errors and

omissions are specifically commented on, infra Point III,

pp. 16-27.

Relevant Dates

| The Ocean Liberty arrived at Baltimore on Saturday,

{3 June 28, 1947 (A. 28).

The holds in which she was to load the nitrate were ex-

amined by a lieutenant of the United States Coast Guard,

Battalion Chief Trenner of the Baltimore Fire Depart-

ment and Captain Carter, surveyor to the New York Board

of Underwriters (A. 212). After washing, cleaning and

approval of these holds, loading commenced on June 30,

the nitrate bemg stowed in lower holds 1, 3 and 5 (A. 212.

529),

The Ocean Liberty, having loaded her Baltimore eargo,

left for New York on July 5 (A. 29).

At New York further cargo was loaded, and she sailed

from New York on July 11 (A. 30).

On July 23, she arrived at Brest and began to discharge

on the next day (A. 534).

Discharging continued normally until 12:30 P. M. Monday,

July 28, 1947, at which time slight smoke was noticed emerg-

ing from a starboard ventilator which served holds 2 and

3 and was situated between them (A. 523, 524, 525).

The Brest Fire Department was promptly notified, and

measures were taken to extinguish the fire which, however,

increased in intensity (A. 537-539). As the fire could not

SE ARORI IE,

5

be controlled, the Ocean Liberty was towed by French

government tugs into the outer harbor, where she grounded

(A. 541-542).

A French naval vessel thereupon cannonaded the hull of

the ship apparently in order to blow a hole in her side

so that her holds might be flooded (A. 544). At about 5.35

P. M., after having been on fire for five hours, the ship

exploded (A. 546).

Loading Precautions

Because of the fire and explosion on the Grand Camp

at Texas City on April 16, 1947, the loading and stowage

of the Ocean Liberty at Baltimore were kept under the con-

stant supervision and control of the Coast Guard, Fire

Department and Board of Underwriters (A. 29).

In particular, the following precautions were strictly

observed:

(1) Before loading, the compartments in which the

nitrate was loaded were thoroughly cleaned (A. 212,

328, 329).

(2) No other cargo was loaded in the same compart-

ments with the nitrate (A. 213, 29, 30).

(3) No bags were loaded at a temperature exceeding

100° F. (A. 29; R. 24).

(4) The bags were loaded directly into the ship

from the railroad ears so as to avoid any risk of con-

tamination (A. 270).

(5) The utmost care was taken to avoid loading any

broken bags (A. 185, 186) and to sweep up any nitrate

that might escape from the bags (A. 184).

(6) No smoking was allowed (A. 331).

(7) A fire hose was kept on deck running at all

times and a special fire watch employed (A. 170).

she aS ROOT SD IER

Re AR

6

Ventilation and “Bag on Bag” Stowage

The nitrate bags were stowed by the “bag on bag” method

(A. 191). Schmidt, a practical stevedore of long experi-

ence, called by libellant-petitioners, testified that this was

the best method of stowing paper bags and allowed ven-

tilation in the spaces between the ends of the bags (A. 155).

Mieskowski, a stevedore of equal qualifications, also called

by libellants, agreed with Schmidt’s testimony (A. 183).

When the Liberty ship, Henry T. Scott, was loaded with ni-

trate near New Orleans in May, 1947, the nitrate was

stowed in the same way, and Mr. G.S. Scott, a chemist, who

took temperatures in the stow on behalf of the United

States Bureau of Mines, testified that, as the bags were

rounded at the ends, there was a channel in between each

one (A. 409) and also that, as the temperatures taken by

him in the stow reflected the fluctuations in the open air

temperature, ventilation was taking place (A. 409).

Air Spaces at Top, Bottom and on All Four Sides

of the Stow

There was a space of about 21 2 to 3 feet between the top

of the bags and the deck beams (A. 339), Any warm air

would rise into this space and be blown out through one or

more of the four ample-sized ventilators (A. 335, 466)

which served this hold (A. 599).

On each side of the hold there were fitted batten boards

as customary, so that the bags did not rest against the side

or “skin” of the ship. There was a space of about 1’ 2” be-

tween the batten boards and the “skin” in which space air

could freely circulate (A. 587).

At the fore and aft bulkheads of the hold were so-called

‘stiffeners”, i.e., vertical steel beams which strengthened

the bulkheads. The distances between the bulkhead and

the outer edge of these “stiffeners” was 1’ 3” (A. 586); this

.

ate a talent nN Se, INE

7

space of 1’ 3” (at each end) allowed ventilation fore and aft

of the bags.

Under the bags was a double layer of dunnage (planks

about 2 inches thick). These planks were laid with inter-

stiees between them, allowing ventilation underneath the

bags (A. 339).

The lower hold in which the nitrate was stowed was, of

course, below the water-line. It was thus cooled by the sea

water outside the hull and was protected from the heat of

the sun by the ‘tween deck space and the cargo stowed there-

in (A. 465).

Temperatures taken in ammonium nitrate stowed on the

Liberty type ship, Henry T. Scott (substantially a sister

ship), showed that lower hold No, 3 was cooler than the out-

side air (A, 629).

%

4

|

;

Sy

4

i

;

oe

4

7

54

5

5

FIRST POINT

The Ocean Liberty was loaded and stowed without

negligence on the part of anyone.

The expert witnesses as to the propriety of the stowage

ean be divided into two classes:

(1) Witnesses well acquainted with problems of

stowage, including ventilation of cargo;

(2) Chemists unacquainted with stowage.

(1) The testimony of all the qualified witnesses in the

first class fully approved the stowage of the Ocean Liberty;

no one condemned it. Libellants called no qualified wit-

nesses to testify that the stowage should have been dif-

ferent.

Some of those who approved the stowage are:

Carter, chief Baltimore surveyor to the Board of Under-

writers of New York (A. 208). Captain Carter had studied

literature on the subject, had consulted Mr. McKenna, chief

Fit ELBE, OS EA Ee

8

chemist for the Association of American Railroads (A. 253)

and Captain Parker, Chief Surveyor of the Board of Under-

writers at New York (A. 266); and had attended a meeting

called to discuss the loading and stowage of IFgan by the

Baltimore & Ohio R. R. on May 22, at which were present

railroad representatives, steamship representatives and

chemists from the Association of American Railroads (A,

247, 270).

Blanchard, Superintendent of the United States Lines

Company, graduate of the University of Glasgow with a

Bachelor of Science degree, who had consulted a leading

firm of Baltimore chemists on the carriage of Fgan (A.

274, 275).

Carroll (A. 317), steamship agent and stevedore.

Weglein, Baltimore surveyor to the Board of Under-

writers under Captain Carter (A. 327, 331, 335) ; he testified

specifically that the stowage fully complied with the rules

of the Board of Underwriters (A. 331).

Neilson (A. 432), stevedore superintendent, who loaded

a number of vessels with Fgan at United States Gulf ports

both before and after the Ocean Liberty.

Schmidt and Mieskowski of Terminal Shipping Co., re-

ferred to supra, page 6.

Trenner, Battalion Chief of the Fire Department in

charge of Fire Prevention (A. 101 ). Chief Trenner testified

that the Fire Department had issued regulations as to

storage and stowage of Fgan (A. 108) which were the same

as those recommended by the National Board of Fire Under-

writers (Liblt.’s Ex. 1; A. 612); that “at no time” did

he find any treatment of the Fgan in the stowage that was

against any regulations or against any instructions or

against what he thought was proper practice (A. 128),

The stowage complied with all rules and regulations of

the U. S. Coast Guard, Board of Underwriters of New

York, National Board of Fire Underwriters and Baltimore

Fire Department (R. 27).

(2) Testimony of chemists unacquainted with stowage,

_—_ ——— 5 org EG Bite LALIT ist a Ped Ee wera, * Ron ee RENE

9

Mr. Scott, who was with the Bureau of Mines, specializing

in gaseous explosions research (A. 400) was the best quali-

fied expert. He had had experience of 400 cases of spon-

taneous ignition in coal (A. 413). After the explosion of

the Grandcamp, some undamaged bags of nitrate were col-

lected and sent to the Bureau of Mines (A. 693), and Scott

| took part in experiments made with respect to them (A.

413).

Mr. Seott and Mr. Burns were in charge of the large-

| scale experiment made on the S.S. Henry T. Scott which

| loaded a full cargo of Fgan at New Orleans in May, 1947

(A. 400). Their instructions were to install thermocouples

throughout the cargo and determine if there was any

“spontaneous heating”. Their report states that no spon-

taneous heating could be observed (A. 629, 665).

Still later Scott prepared a resume of all available pub-

| lications on Fgan; his compendium was issued by the Bu-

reau of Mines and is at A. 645-683; he consulted and ab-

stracted no less than 115 publications on the subject (A.

683).

He testified that the investigations made disproved the

possibility of self-heating of Fgan when stowed under ordi-

) nary conditions, as in the case at bar (A. 417, 418).

Dr. Kistiakowsky, libellants’ leading expert, when

under retainer by the Monsanto Chemical Co., visited their

plant at Texas City soon after the explosion and was

“briefed” with the “facts”, among which was the absolutely

false assertion that some of the nitrate was “so hot that

longshoremen had to use asbestos gloves to put it on the

ship” (italies ours; A. 381).

The testimony as to the heat of the bags is directly to the

contrary and is that the Texas City longshoremen wore no

cloves at all (A. 479); no bags were more than slightly

warm (A, 499).

Dr. Kistiakowsky was misguided by this definitely false

premise that the bags were so hot that they had to be

handled with “asbestos gloves”.

sae ae TONS

10

Two years later, Dr. Kistiakowsky experimented with

an unexploded portion of the Fgan which had been in a

warehouse at Texas City in April, 1947 (A. 351). In the

two-year interval, due to changes in humidity, ete., the

paper bagging doubtless became impregnated with nitrate.

In laboratory experiments, with an area of contact be-

tween the Fgan and the paper, (wenty-five times as great

as was the case when the Fgan was packaged in the usual

way (A. 371), Dr. Kistiakowsky found that there was no

self-heating so long as the temperature was not raised

above 190° F. But when he raised the temperature to

200° F. a fire due to self-heating resulted (A. 354).

The District Court found, and this finding was confirmed

on appeal, that the temperature of the nitrate loaded on

the Ocean Liberty was not more than 100° F. (A, 29: R.

24).

The temperature of the Fgan on the Ocean Liberty was

therefore, even on the basis of these laboratory experiments,

100° too low for self-heating to be initiated.

The Interagency Report, which was issued on August

20, 1947 (R. 28), stated that:

“Limited tests and experience indicate that am-

monium nitrate fertilizer of the type involved in the

Texas City disaster stowed as cargo in holds of ships,

does not heat spontaneously when the temperature

of the fertilizer at the time of loading does not exceed

140 degrees Fahrenheit” (A. 696).

Dr. Kistiakowsky said he would accept this (A. 393-4). He

also testified that he considered the Henry T. Scott well

ventilated (A. 392). The Ocean Liberty was stowed in the

same way.

Dr. Kistiakowsky was not asked any hypothetical ques-

tion based on the actual facts relating to the loading and

stowage of the Ocean Liberty. It is obvious that, if such

a question had been put to him, he would have answered

that self-heating could not be the explanation and that no

negligence on anyone’s part was involved.

ge Phebe esas —

k

il

The above facts clearly show an absence of negligence

on the part of anyone connected with the loading or stow-

age of the Ocean Liberty.

It is obvious, of course, that the issue of negligence

vel non must be judged according to the existing state of

knowledge at the time.

The Titania, 19 Fed. 101, 107;

The Cabo Hatteras, 5 F. Supp. 725, 734;

Boston Ins. Co. v. Metro. Redwood Co., 197 Fed. 703,

C. ©. 8;

F. O. Bradley & Sons, Ltd. v. Fed, Sim. Nav. Co.

[House of Lords], 137 Law Times Rep. 266;

The Australian Star, 67 Lloyd’s List L. R. 110.

According to the existing state of knowledge in July, 1947,

ammonium nitrate, fertilizer grade, was not known to be

self-heating when stowed under the conditions prevailing

on the Ocean Liberty; it is not known to be self-heating

today (R. 24).

It has been claimed that an inquiry made of a competent

chemist would have disclosed that Fgan was self-heating,

with the result that “rice ventilators” would have been used.

Mr. Wise, Sr., President of Terminal Shipping Co., at-

tended a meeting at Baltimore addressed by a chemist,

but nothing was said thereat about risk of spontaneous

combustion (R. 27).

Chemists were consulted by Captain Carter, Baltimore

Surveyor of the Board of Underwriters (A. 233), and by

Captain Blanchard of the United States Lines (A. 280, 281).

Neither was informed that Fgan was self-heating.

Mr. Wise, Sr., died before the trial (A. 84), and it does

not appear if he pursued his inquiry further. If he had ob-

tained Circular No. 719 of the United States Department

of Agriculture (A. 722), he would have read therein that

self-heating in Fgan was not to be feared (A. 741, 742).

In a publication of the Bureau of Mines, published May 21,

1947. it was stated that Fgan packed in the ordinary type

LPNs NI WIT cel

12

of paper bag at 199° F. did not heat further (A. 666, re-

ferring to Note 56 at A. 677). When the temperature was

raised to 302° F. there was spontaneous ignition in 5 or

6 hours (A. 666).

The stowage of the Ocean Liberty was under the super-

vision and control of the Coast Guard, Fire Department and

Board of Underwriters. They all approved it; no more

skilled experts could have been picked.

By 46 U.S. C. §170(7)(a), the Coast Guard is required

to

“Establish regulations with respect to the * * * stow-

age * * * of * * * dangerous articles or substances.”

By Sub-paragraph ‘(b) :

“The * * * stowage * * * of such dangerous articles

or substances shall be in accordance with the regula-

tions so established, which shall * * * be binding” (upon

all parties concerned).

Having stowed the Ocean Liberty in accordance with the

regulations and with the approval of public officers (Coast

Guard) charged with a duty in the premises, fault cannot

be imputed to the respondents.

Panama Mail S.S. Co. v. Davis, 79 F. (2d) 430, C.

©. A. 3s

The Annie Faxon, 75 Fed. 312, 315, C. C. A. 9;

The South Coast, 71 F. (2d) 891, 894, C. C. A. 9;

Ryan v. Feeney & Sheehan Bldg. Co., 239 N. Y.

43, 47.

There was no negligence with respect to the stowage be-

cause there was used

“the degree of care which persons of ordinary intel-

ligence and prudence, engaged in the same kind of

business, commonly exercise under like circumstances.”

(Canad. Nor, Ry. v. Senske, 201 Fed. 637, 644, C. C.

A. 8.)

eae 2 cerita inltiaaniinatel m “ Be il AAPA OR aS SB eb RD PSSA TID

13

Waddell v. A. Guthrie Co., 45 F. (2d) 977, 979, C. C.

A. 10;

Shankweiler v. B. & O. Ry., 148 Fed. 195, 197-8,

C. C. A. 6.

The Ocean Liberty was stowed like all of the other ships

carrying ammonium nitrate (R. 20).

SECOND POINT

It is “established law’ that cargo interests are subject

to “the onerous burden of proving the cause of a fire and

that the negligence of a managing representative of the

carrier is related to the fire” (admitted in Petition, p.

14). This “onerous burden” was not sustained.

Petitioners’ admission is supported by the following au-

thorities, among others:

American Tobacco Co. v. Katingo Hadjipatera, 194

F. (2d) 449, C. A. 2;

The Strathdon, 89 Fed. 374, aff’d 101 Fed. 600, C. C.

A.

Hoskyn & Co. v. Silver Line, Ltd., 143 F. (2d) 462,

©. ©. A. 2.

The origin and cause of the fire in the case at bar is

necessarily a guess.

All that is known is that smoke was seen coming out of

a ventilator between holds 2 and 3; this ventilator was con-

nected with four different compartments—lower holds 2

and 3 and the like-numbered ’tween deck spaces. Fire

initiated in any of these spaces might have been later com-

municated to lower hold 3.

Even if the fire began in lower hold 3, it does not follow

that it resulted from spontaneous combustion of the nitrate.

The fire might have been accidentally introduced from

outside through the ventilators or the mast house. Fires

set by malicious persons are not uncommon. There are

other possibilities.

pa ERP ENLNEESRI RGIS LVR SRB N CGP AE MERE ASE TR that BREEN Sing hae SEN We We CDSE RPG BMY RP asco as is

14

The theory which petitioners seek to sustain is that 1381

tons of Fgan (R. 20) in No. 3 lower hold increased gradu-

ally in heat from 100° F. (R. 24) on July 5 to the ignition

point of over 302° F. (A. 666) on July 28.

If ignition had occurred in this way, the nitrate in No. 3

hold must have been at a temperature of about 250° F. for

several days and at approximately 300° F. on the day of the

fire. Noisome fumes would have been emitted (A. 271) and

the extreme heat could not have escaped notice of those

on board.

Nevertheless, the evidence is undisputed that everything

was normal until 12.30 P. M. on July 28, just after Bois

made his round of the ship (A. 524, 582).

On July 28, stevedores were working in holds 2 and 4

from 6 A. M. until the fire broke out at 12.30 P. M. (A. 522,

523). It is inconceivable that men working in No. 2 sep-

arated from No. 3 only by a thin partition, would not have

noticed a temperature of 300° F. in 1381 tons of nitrate

in the adjoining hold and that heat and fumes would not

have affected the men just outside No. 3 working on the

deck (A. 523).

The fact that no heat or fumes were noticed prior to

the actual outbreak of fire conclusively shows that the fire

could not have resulted from mass heating of the nitrate

as contended by petitioners.

A far more likely cause is the accidental introduction of

fire through a ventilator on the morning of July 28 when

two very heavy half hulls of barges were being discharged

from the deck by the use of an “enormous crane” belonging

to the French navy (A. 523).

Even if there was spontaneous ignition, it may have been

occasioned by some error in the manufacture of the six-

ply bags (not the nitrate) or even in some of the nitrate

or by contamination before the bags reached Baltimore.

As properly conceded by petitioners’ counsel in their brief

filed in the Court of Appeals, page 11:

| cs GED AAS APSR Bh in SAI at ING NRE N Gi inASTS LABEL ARE AARNE ie

15

“Of course a carrier is not obligated to take steps to

obviate dangers presented by a latent characteristic

of cargo, the existence of which no reasonable inquiry

would expose.”

That the stowage was not negligent is proved over-

whelmingly (supra, pp. 7-8), but even if there had been neg-

ligent stowage, petitioners’ case would fail unless they

further established that the bad stowage caused the fire

(Hoskyn & Co. Ltd. v. Silver Line, supra, p. 13; The

Chester Valley, 110 F. (2d) 592, C. C. A. 5).

Proof that the loss may have occurred from any one of

several causes, for many of which no liability would exist,

is not sufficient.

New York Central R. Co. v. Ambrose, 280 U. S. 486,

490.

Whenever an issue of negligence is raised, the proof must

necessarily show not only negligence, but also that more

care would have avoided the loss (Peltola v. Whiting, 132

F. (2d) 857, C. C. A. 2; Overton v. Wenatchee Orchard Co.,

183 Pae. (2) 473). That also, is not shown in the case at

bar.

The District Judge’s finding that the preponderance of

the evidence was that the fire was caused by spontaneous

ignition of the Fgan was due to his palpable error in

believing that 25° Centigrade was equal to 102° F. (A.

45). Twenty-five degrees Centigrade is easily changed to

Fahrenheit by multiplying by 1.8 and adding 32° so that

the correct Fahrenheit temperature is 77°, a moderate

temperature. It is not true therefore that the Ocean

Liberty lay at Brest “for four successive days in unusually

hot weather” and that this was “the final straw” (A. 44)

that caused the ignition.

STING AP Be TEER OB AIR Sa oe SRL al abe I LS ENE Ie 3 oct ucnpn i a Sa

16

THIRD POINT

Erroneous and misleading statements in the petition.

1. The petition states, page 7, that the only interest of

Cosmopolitan Shipping Co. was to ascertain if the ship-

ment of Fgan was prohibited or if burdensome restric-

tions were imposed.

The above statement is untrue. After the Fgan had

been booked by the French government Cosmopolitan Ship-

ping consulted the U. S. Lines which had carried enormous

quantities of Fgan without accident, the Board of Under-

writers of New York and the Coast Guard (A. 444-5).

The Board of Underwriters, an inspection agency main-

tained by the principal marine underwriters (A. 209, 211),

specializes in safe methods of stowage and issues written

instructions thereon (A. 263, 614).

The Coast Guard is charged by statute with the duty

of establishing regulations with respect to the stowage of

dangerous substances, supra, page 12. Their regulations

of over 150 pages include all kinds of dangerous cargo.

Both the Board of Underwriters: and the Coast Guard

are unquestionably familiar with the chemical constituents

and characteristics of the shipments with which they deal.

The Baltimore Fire Department is of course familiar with

fire prevention and had especially studied Fgan (A. 109, 113,

272).

The position of the Cosmopolitan Shipping Co. is mis-

conceived by petitioners. Cosmopolitan Shipping Co, did

not undertake to load and stow the Ocean Liberty.

It was the duty of Cosmopolitan Shipping Co. to solicit

and book outward cargoes and to arrange for the delivery

of in-bound, being compensated by a percentage of. the

freight. A ship’s agent does not lead and stow the ship;

loading and stowage is performed by the stevedore: the

functions of agent and stevedore are entirely distinet. The

7

Picqua, 97 Fed, 649, 651. In all such matters the final

decision lies with the master, Olsen v. U. S. Shipping Co.,

13 Fed. 18, C. C. A. 2; The Colima, 82 Fed. 665.

2, The petition states, page 8, that prior to the stowage of

the Ocean Liberty there was “extant a mass of recognized

authorities warning of the danger of spontaneous ignition”

of Fgan when stowed as on the Ocean Liberty. The peti-

tion cites District Court findings 20 (A. 34), 23 (A. 28)

and 26 (A. 41) which fail to support the assertion.

District Court Finding No. 20 quotes the compilation of

authorities prepared for the Bureau of Mines by Mr.

Scott in which it is stated that “there is no recorded in-

stance of spontaneous heating in pure ammonium nitrate.

*** The paraflin-type coated materials used in the manu-

facture of ammonium nitrate fertilizer apparently make

little or no contribution to spontaneous heating. * * * Ac-

cording to plant experience, fertilizer packed in the multi-

walled paper bags at 93 degrees C. (199 degrees F.) does

not heat further.”

Department of Agriculture Cireular 719, cited in Find-

ing 20 (A. 36), stated that no evidence of spontaneous

heating in Fgan could be found (R. 23). To the same effect

is the Scott report, supra, page 9.

Finding 23 quotes the recommendations in the report

of the National Board of Fire Underwriters, but overlooks

the fact that paragraph 3, which is quoted, relates solely

to storage in a warehouse, this paragraph being under

the head. g “Storage” and paragraphs 5-11 being headed

“Handling” (A. 612).

As stated supra, these recommendations were adopted

as Rules of the Baltimore Fire Department and were

meticulously complied with when the Ocean Liberty was

loaded, supra, page 8.

District Court Finding 26 (A. 40-42), without citation

of supporting evidence, states that the earrier is liable

ee ' —— . _ Eee

18

because it “relied too largely on only inspection of the

loading by public officials.”

This disregards the rule that when duly promulgated

governmental regulations are complied with under the

supervision of the officials charged with their enforcement,

the party so complying cannot be charged with negligence

hecause of his compliance, supra, page 12, R. 28.

3. The petition states, page 8, that the 6-ply paper bags

in which the nitrate was packaged would necessarily be-

come torn, with resulting increase of danger of fire. This

risk was practically non-existent, since the Interagency

Report states that, in the six years preceding 1947, 1,440,000

tons of Fgan had been produced and transported, more

than half of which were shipped by vessels in export (A.

694). Each vessel carrying Fgan was, in substance, a

giant test tube.

4. The petition states, page 8, that the fire in Fgan

on the Grandcamp at Texas was “spontaneous,” in support

of which Dr. Kistiakewsky is cited, and the findings of the

District Court (later reversed by the Court of Appeals)

in the Texas City litigation.

It has already been pointed out that Dr. Kistiakowsky

had been incorrectly informed that the Fgan when loaded

was so hot that it could be handled only with “asbestos

gloves” (supra, p. 9), and this induced an erroneous

conclusion.

Fire broke out on the Grandcamp before the loading had

been completed, and when the bags had heen in stow in

the hold for only 3 or 4 days. The Coast Guard found the

probable cause of the fire to be careless smoking, and that

¢ finding was concurred in by the Interageney Committee

ei (R. 24).

——

g LRAT S83

CURRED RG Ti KL ta REEO R rege eee Se ae i Y

19

In the Texas City case, a District Court finding is:

“The evidence does not enable me to state the exact

process which produced the fire in the F ertilizer, but

it was in the nature of spontaneous combustion or

spontaneous ignition.” (Italics ours.)

The statement, that the process which produced the fire

was “in the nature of” spontaneous combustion or ignition,

covers a broad range of possible causes. There is no defi-

nite finding that the fire was due to spontaneous combustion

of the Fgan.

Furthermore, the decision of the District Court was

unanimously reversed by the Court of Appeals (197 F.

(2d) 771). Hutcheson, C.J., with whom Borah, C.J. con-

curred, said, page 785:

“Because, however, of the way the case was tried,

because, too, of the too sweeping nature of the findings

and conclusions, I agree with the appellant that the

findings are contrary to the truth and right of the case

and clearly erroneous, and that the judgments should,

therefore. be reversed and the cause remanded for

trial anew.”

It is obvious, therefore, that this erroneous finding of

the District Court cannot be relied upon as establishing

that the fire on the Grandcamp was due to spontaneous

ignition.

5. The petition, at pages 8 and 9, refers to the report of

the National Board of Fire Underwriters. This report

was sent to the Baltimore Fire Department and all of its

recommendations were meticulously followed in the stowage

of the Ocean Liberty (supra, p. 8). In view of the

above, it is obviously unimportant that no copy was re-

ceived by Cosmopolitan Shipping Co., Inc., particularly

because there was nothing in that report “specifically stat-

ing that the fertilizer was subject to spontaneous com-

bustion” (Fdg. 26, A. 42).

20

6. The petition on page 9 contains a number of incor.

rect statements, such as that no representative of the Cos-

mopolitan Shipping Co., Inc., consulted with any qualified

person concerning the loading and stowage of the F gan.

These erroneous statements have, we believe, been suffi-

ciently dealt with (supra, p. 16).

‘. The petition, at page 9, states that lower hold No. 3

was the hottest compartment of the vessel which is not

correct (A, 465). The record contains a list of carefully

taken temperatures in lower hold No. 3 of. the Henry

T. Scott (A. 633-637), which loaded Fgan near New Or-

leans in the latter part of May, 1947, about a month

prior to the Ocean Liberty. The Henry T. Scott was a

Liberty ship resembling in all essential characteristies the

Ocean Liberty (A. 624, 598). The readings of thermo-

couples inserted in the stow indicated that the temperature

in the hold was not increasing. The average temperature

in the stow, when the last reading was taken, was 82° F

(A. 635). Petitioners’ leading expert testified that F gan

would not begin to heat spontaneously until it had reached

a temperature of over 190° F, (supra, p. 10).

It is said that the bags were packed together tightly.

“Tight” stowage meant merely that “the ship could take

the cargo to sea and the vessel would be seaworthy” (A,

332). Tight stowage did not prevent ventilation (A. 140,

409). “Loose” stowage would have caused unseaworthiness.

Nor is it correct to state that the bags were completely

“encased” in paper (A. 145). The method of the stowage

is deseribed supra, pages 6, 7.

8. The petition states at page 10 that, when the Ocean

Liberty reached New York, the officers of the Cosmopolitan

Shipping Co. became familiar with how the F gan had been

stowed at Baltimore and made the situation worse by util-

izing the ’tween deck space, by stowing cargo therein and

by battening down the hatch on the weather deck.

CASE) SVT OMAR AD Bl MPR LRN Ii SENG ER

21

It is not true that Cosmopolitan’s own officers became

familiar with how the Fgan had been stowed at Baltimore.

Cosmopolitan Shipping Co., Inc., learned from the stow-

age plan that ammonium nitrate and no other cargo had

been stowed in lower holds 1, 3 and 5. They were not ad-

vised, however, as to the method of stowage or whether

any extraordinary means of ventilation had been used.

Kerwin, “Operating Manager” of Cosmopolitan Shipping

Co., Inc. (Cargo App. 72), but not an officer, and Bentson,

Assistant Operations Manager (Cargo app. 105) knew

there was nitrate in hold No. 3, but did not know of the

method of the stowage because the hatch was not open

(Cargo App. 91, 93, 115).

Cosmopolitan Shipping Co., Inc. did know that the

Fgan had been stowed at Baltimore by a most reliable

stevedoring firm under the direct supervision of the Coast

Guard, Board of Underwriters and Fire Department, all

of whose instructions had been complied with, and further

knew that the stowage met with the approval of the mas-

ter and officers of the vessel (A. 446-7).

The claim that no cargo should have been stowed in the

‘tween deck space, so as to allow ventilation through the

hatches, is fantastic.

The lower hold of a ship is not ventilated through the

hatches. The Ocean Liberty was equipped with four

very large ventilators, one at each corner of the hold,

and these ventilators would afford all of the ventila-

tion that could by any possibility be needed. It has been

held that even two ventilators to a hold are sufficient.

Spang Chalfant v. Dimon S.S. Co., 57 F. (2d) 965, 967, C.

(. A. 2. No witness, expert or otherwise, even so much as

snegested that cargo should not have been loaded in the

‘tween deck space.

The recommendations of the Board of Underwriters re-

quired that all ventilators and pipe exits be covered with

fine wire mesh (A. 614), and this could not have been done

if the weather deck and ‘tween deck hatches had been left

open, in addition to which the ship would have been un-

seaworthy because of the serious risk of taking a sea on

board in a storm.

22

9. The petition states, page 10, that the master should

have been warned of the danger of the Fgan and also that

the Fgan could not be examined to ascertain if it was

heating.

As to the first point there is no duty to instruct a master

as to the care of cargo or ship unless the owner is in pos-

session of information which the captain does not have.

Tempus Spg. Co. v. Dreyfus (1931), 1 K. B. 195, 204, aff'd

(1931) A. C. 726. The master had been at Baltimore

throughout the loading period, and had received instruc-

tions from the Fire Department; the care exercised by the

master at Baltimore, New York and Brest show that the

master well understood what was required (A. 536, 574).

The Fgan in the lower hold could have been easily ex-

amined by entering the hold through the masthouse (A.

590). Mr. Scott entered No. 3 hold of the Henry T. Scott

after the ship sailed (A. 629),

10. The petition quotes, at page 11, an extract from the

opinion of the Court of Appeals (R. 35), to the effect that,

if there was any negligence in the stowage, it was that of

Terminal Shipping Company and would not constitute the

“actual fault or privity” of the carrier, i.e., the respond-

ent A/S J. Ludwig Mowinckels Rederi.

The Court of Appeals, in a previous part of its opinion,

had held that there was no negligence in the stowage of

the Fgan on the part of Terminal Shipping Company or

anyone else (supra, p. 3).

That part of the opinion criticized by petitioners was

not a necessary part of the decision and is to be considered

as dictum.

In any event, the above conclusion of the Court of Ap-

peals is entirely sound and not “shocking” as character-

ized by petitioners.

Petitioners have eoneeded (supra, p. 2, A. 399) that there

is no personal fault on the part of respondent Mowinckels,

but seek to attribute to Mowinckels alleged negligence on

the part of either Cosmopolitan Shipping Co, or Terminal

Shipping Company.

23

In Boston Marine Ins. Co. v. Metropolitan Redwood

Lumber Co., 197 Fed. 703, 709, C. C. A. 9, the Court of Ap-

peals held that a shipowner, in order to avail himself of

the limitation of liability statutes, was not required to

“acquaint himself with the science of navigation or ac-

quire expert knowledge concerning his vessel, its

equipment, its machinery, or the necessary crew there-

for, or * * * place between himself and the master an

ee ange who shall possess such knowledge, * * * ”

(p. 709).

The respondents knew that the Ocean Liberty was to

load ammonium nitrate but they were not required to be-

come Super-Scientists and know more about ammonium

nitrate than did the skilled organizations which supervised

and approved the stowage. If there was negligence in fail-

ing to make an adequate study of the characteristics of

Fgan on the part of the Coast Guard, the Board of Under-

writers, the Fire Department or Terminal Shipping Co.,

this would not impose any liability on either of the re-

spondents. The Annie Faxon, supra, p. 12; Petition of

Canadian Pacific R’way Co., 278 Fed. 180, at p. 189, and

cases cited: The Columbia, 25 F. (2d) 516, affirmed 25 F.

(2d) 518, C. C. A. 2.

11. The petition, at pages 12 and 13, quotes extracts

from the dissenting opinion and from the opinion of the

District Judge.

In the dissenting opinion, it is said that there was an

onerous duty to use due care as to the nature and qualities

of Fgan.

Conceding, for the sake of argument, that such a duty

existed, it was fully performed as shown by the extraordi-

nary precautions taken when the Fgan was loaded and

stowed (supra, p. 5).

With reference to the extracts from the opinion in the

District Court, quoted in the petition, it should be pointed

out that the Disriet Judge disabled himself from reaching

2 correct conclusion by his insistence on deciding the ease

Pe nee ee

wn .

IEERS POSS BOSE

rg

ann NEI

Hitt DRE. ay “i 2 . aa

24

without waiting for the testimony to be typed (Typewritten

Record, p. 1006, not printed in either Appendix). As the

Trial Judge did not have before him the text of the expert

testimony, erroneous conclusions were almost unavoidable;

for the same reason counsel were unable to refer to this

expert testimony with any exactitude in the briefs submit-

ted at the close of the trial.

12. The petition further states, page 16, that “Cosmo-

politan gave no directions to Terminal to consult with a

chemist and ascertain what dangers should be guarded

against”. This is a trivial point because Terminal Ship-

ping Co. did consult a chemist (supra, p. 11).

The Assistant Operating Manager of Cosmopolitan did

write to Terminal on June 11th, notifying Terminal ‘y

“consult the U. S. Coast Guard, who must be notified «nd

under whose direction this commodity is loaded.”

By the U. S. Statute, the Coast Guard was given juris-

diction over the loading of Fgan (supra, p. 12), and

that jurisdiction was exercised in this case. The Coast

Guard had conducted a lengthy investigation as to the fire

at Texas City (A. 258), and the Chairman of the Inter-

agency Committee was the head of the Coast Guard’s Haz-

ard Prevention Section, Merchant Vessel Inspection Divi-

sion (A. 692, 693). The presumption applies that the Coast

Guard adequately performed it duty of investigating the

cause of the fire on the Grandeamp, and such character-

istics of Fgan as might render it hazardous. U. S. v. Chemi-

cal Foundation, Inc., 272 U. S.1,15:U. 8. v. Rock Royal Co-

operative, 307 U.S. 533, 567, 568. In addition to the Coast

Guard, the Poard of Underwriters was also consulted as

a matter of course.

13. The petition cites, at page 16, some eases which did

not involve fire damage to cargo, as did the case at bar.

and also Great Atlantic & Pacific Tea Co. v. Lloyd Brasi-

leiro, 159 F. (2d) 661, C. C. A. 2. In that case, the s/s

Pocone came into New York, having had a fire in her coal

| —— SES BREA EERE UEP EL SON TONNE DE: Sein TES SSS

25

bunkers while at sea. An officer of the shipowner was noti-

fied that the coal bunkers had been on fire but failed to

make an adequate investigation. This was held to be the

neglect of the shipowner. Obviously, the case is entirely

different from that now under consideration.

At page 17, the petition cites Cornec v. B. € O. RR. Co.

(The Richelieu), 48 F. (2d) 497, C. C. A. 4, in which case

an explosion had occurred during the loading of pitch on

a French vessel. The explosion was due to a cloud of pitch

dust being set on fire by the emission of sparks and flashes

from the worn electrical machinery of the railroad. This

was held to be negligence on the railroad’s part because of

the “general and common knowledge existent as to the ex-

plosive character of carbonaceous dusts in general.” In

fact, just before the explosion, pitch dust had been ignited

by electricity on two separate occasions, 48 F. (2d) at

page 502.

i4. The petition, at page 20, states the following as its

second point:

“IT, Does the fire exception of the Carriage of

Goods by Sea Act provide a carrier with an exemption

from liability for damage to cargo discharged on shore

after an unjustifiable deviation?”

The above point is not difficult to answer.

(a) There was no deviation. The District Court so held

(supra, p. 2), and this conclusion was affirmed by the Court

of Appeals (R. pp. 35, 36; see too the opinion of the Dis-

trict Court at A. 56 through A. 63). The petition does not

challenge the correctness of these conclusions, but makes

merely the bald statement that there was a deviation.

(b) Petitioners admit that there is nothing in their devi-

ation point in so far as the cargo on board the Ocean Lib-

erty is concerned, but endeavor to draw a distinction with

respect to the comparatively small amount of cargo, slightly

injured by fire while on the dock.

4s

26

The distinction sought to be drawn is that, while, by stat-

ute, all liability was eliminated so long as the cargo was

on board the ship, this statutory protection ceased the mo-

ment the cargo was placed on the wharf, even though it

was hoped that the cargo would be reloaded as soon as

the discharge of the French Government cargo (not in-

cluded in this litigation) had been completed.

This is not a correct construction of the statutes involved.

The Fire Statute, R. S. 4282, 46 U. S. C. 182, covers loss

or damage to merchandise “which shall be shipped, taken

in or put on board any such vessel by reason or by means

of any fire happening to or on board the vessel * * *.” In

the present instance, the “merchandise,” damage to which

is claimed, was put on board the vessel, and the fire hap-

pened to or on board the vessel. The fire did not originate

on shore; the fire on the vessel proximately caused the fire

damage to the merchandise.

The Carriage of Goods by Sea Act (quoted, R. 30) should

be construed in the same way. By that Act, the term “ear-

riage of Goods” covers the period from the time when the

goods are loaded on to the time when they are discharged

from the ship, 46 U. S. C. 1301(e). The term “discharged”

when so used does not mean a mere temporary putting of

the goods ashore, with the expectation that the vovage may

he resumed. The “discharge” referred to in the statute

obviously means a discharge at the port of delivery where

the earrier’s liability is terminated.

(c) However, even were the above conclusions incorrect,

it would be immaterial because the contract of carriage

provides :

(1) that the “provisions of the Carriage of Goods

by Sea Act are to govern after the goods are dis-

charged from the ship * * *” (A. 20);

(2) that the carrier is not to be liable to answer for

or make good any loss or damage to the goods, even

after discharge of the ship by reason or by means of

———E— WAC Tht ARO a ¥ re

27

any fire whatsoever, unless such fire shall be caused

by its design or neglect (A, 23).

Furthermore, by the terms of the contract of carriage,

the above provisions are binding

“in every contingency, wheresoever and whensoever

occurring, and also in the event of deviation * * *”

(A. 19). (Italies ours. )

Consequently, even if there were a deviation, which is

denied, there can be no liability on the part of the carrier.

15. The petition, at pages 23-27, proposes “additional

questions to be urged if the petition is granted.” As these

questions are not of sufficient importance to justify the

granting of a petition for certio ‘ari, it is inappropriate for

respondents to discuss them at the present. time.

s

16. The petition, at pages 27-28, lists six alleged reasons

for the granting of the writ. While the general statement

is made that the decision is in conflict with the rules in

other cireuits, this is not in fact the case and no authorities

are adduced in support of petitioners’ contention.

The case at bar was decided on the basis of its particular

facts, which showed that there was no negligence on the

part of anyone concerned, and it is not of actual interest

to any litigants other than the parties thereto.

LAST POINT

The petition for a writ of certiorari should be denied.

Dated, January 5, 1953.

Harotp S. Demrnc,

Wituiam A, Grimes,

Counsel for Respondents.

Wuarton Poor,

TALLMAN BissELL,

of Counsel.

ene ee ees