Motion and Brief of Nogres Reder for Bund The Norwegian Shipowners Assn for Leave to File a Brief as Amicus Curiae — Black Diamond Steamship Corp. v. American Smelting & Refining Co.

Supreme Court of the Anited States

October Term, 1957

No. 800

In the Matter of the

Petition of SKIBS A/S JOLUND, in a cause of exoneration from or limita-

tion of liability for damages arising out of a fire on board the BLACK

GULL on July 18, 1952.

BLACK DIAMOND STEAMSHIP CORP.,

Petitioner,

vs.

AMERICAN SMELTING & REFINING COMPANY, ¢t¢ ai.

Respondents.

BLACK DIAMOND STEAMSHIP CORP.,

Petitioner,

vs. _

MARIA ANGELINA VERBEECK, et ai,

Respondents.

No. 815

In the Matter of the

Petition of SKIBS A/S gy as owner .f oe M/S BLACK GULL

for exoneration from or limitation of liability.

SKIBS A/S JOLUND,

vs.

AMERICAN SMELTING & REFINING COMPANY, ATKINSON

HASEBRICK & CO., et ai.

Respondents,

Petitioner,

MARIA VERBEECK, ¢t al.

Respondents.

MOTION AND BRIEF OF NORGES REDERFORBUND

(THE NORWEGIAN SHIPOWNERS’ ASSOCIATION)

FOR LEAVE TO FILE A BRIEF AS AMICUS CURIAE

— E UNDERWOOD,

roadway,

. New York 4, N. Y.

HAROLD M. KENNEDY,

HERVEY C. ALLEN,

of Counsel.

INDEX

Motion of Norges Rederforbund (The Norwegian

Shipowners* Association) .............00000000.

Brief for Norges Rederforbund (The Norwegian

Shipowners’ Assoviation) ...................05.

Rene ALAR T ESO OES \ + NIRS Se eae

Cases Cited

Adamastos Shipping Co., Ltd. v. Anglo Saxon Petro-

leum Co., Ltd. (1958), App. Cas. (not yet officially

veported) ; London Times, March 7, 1958, p. 15....

Commercial Molasses Corporation v. New York

Barge Corporation, 314 U.S. 10t ...........0...

Consumer’s Import Co. v. Kabushiki Kaisha, 320

eS FS 0h) eee eee

Ocean Liberty, The, Rep. of France, Tribunal de

Commerce de la Seine (ist Div., Paris), 1952 A. M.

ee ada s cs oade cada ehbcehoaw ci.

Sampson v. Channell, 1 Cir., 110 F. 2d 754, cert. den.

Se Oe a hone hi bcs oo dove hs Gik ais oes skis cs

Searburgh y. Compania Sud. Americana De Vapores,

2 Cir., 1960; 174 F. 2d 423, 424 ow. cee ccc ees

Strathdon, The, 2 Cir., 101 Fed. 600, 606 ...........

Other Authorities Cited

Carver's Carriage of Goods by Sea, 10th Ed. 1957,

PI i EE oS ekie pba COs eb ion's ode we

Dor, Bill of Lading Clauses & The International Con-

vention of Brussels, 1924 (Hague Rules), 1956,

RE Misdcawisetsheannaabiced io wih Sespiaie heed a we

PAGE

8,

“I

~]

~)

~!

ii

PAGE

International Convention for the Unification of Cer-

tain Rules Relating to Ocean Bills of Lading,

signed at Brussels August 25, 1924, 5) Stat. 233. . 6

Knauth on Ocean Bills of Lacing, 1953 Ed., pp. 118-

SP Nena Chan asds ke iekun eWeneguecadenies 7

The Varriage of Goods by Sea Act, 1936, 49 Stat.

1207-1213, 46 U.S. C. Sees. 1360-1315 . 0.00.0... 6

46 U.S. C..Sees. 1900, 1312 ....... ccccccccccccces

Oe Wa Fs Rs BOD ik bn os cv cin Waceevcecccas 6

IN THE

Supreme Court of the Anited States

October Term, 1957

i >

ati

No. 800

In the Matter of the

Petition of Sxiss A/S Jotunp, in a cause of exoneration

from or limitation of liability for damages arising out

of a fire on board the Biack Gui on July 18, 1952.

Piack DiaMoxp SteaMsuip Corp.,

Petitioner,

V8.

American SMe tine & Rerixixe Compaxy, ef al.,

Respondents.

Biack DiaMonp StreamMsuip Corp.,

Petitioner,

Vs.

Maria Anceuixa Verseeck, ef al.,

Respondents.

No. 815

In the Matter of the

Petition of Skins A/S Jotunp, as owner of the M/S Brack

Gvuu for exoneration from or limitation of liability.

Sxras A/S Jouiunp,

Petitioner,

Vs.

American Sarectise & Rerixixe Company, ATKINSON

Hasesrick & Ce., ef al.,

Respondents,

Maria Versecck, ef al.,

Respondents.

aff hon

—

MOTION OF NORGES REDERFORBUND (THE NOR-

WEGIAN SHIPOWNERS’ ASSOCIATION) FOR LEAVE

TO FILE A BRIEF AS AMICUS CURIAE

Norges Rederforbund (Norwegian Shipowners’ Asso-

ciation) hereby respectfuily moves for leave to file a brief

amicus curiae in support of the petitions for certiorari in

these cases, limited to the question of the interpretation of

the Fire Statute and the fire exemption clause of the Car-

riage of Goods by Sea Act. So limited, this motion con-

cerns only the petitioners and respondents, American Smelt-

ing & Refining Company, et al., the cargo claimants below.

The petitioners have consented to this motion. The said

respondents have failed to cousent.

Norges Rederforbund is an association of 395 ship-

owners, constituting almost all of the Norwegian ship

owners trading in foreign commerce, whose vessels total

134% million deadweight tons. Much of the trade carried

on by members of the Association is with the United States.

For example, in the year 1957 there were 1,366 arrivals of

Norwegian flag vessels at the Port of New York, 353 at

San Francisco, $44 at Los Angeles, 811 at Hampton Reads,

#29 at Baltimore, 147 at Seattle, 538 at New Orleans, and

447 at San Fedro. In all, Norwegian vessels in 1957 made

well in excess of 5,000 calls to United States ports.

Artiele IV 2(b) of the Brussels Convention of 1924, com-

monly called *‘The Hague Rules"’, is identical to the fire

exemption contained in Section 4(2)(b) of the United

States Carriage of Goods by Sea Act. Norway has ad-

hered to this Convention and, by Act of February 4, 19°38,

effective January 1, 1939, enacted the Convention as a part

of ity Navigation Law.

The members of this Association also maintain exten-

sive trade with Belgium, Denmark, Finland. France, Great

Britain, Italy, Portugal, Spain, and Sweden, all of which

have also made the Brussels Convention part of their pri-

vate law.

The interest of the moving party in these cases is, there-

fore, twofold:

3

1. To arrive at a uniform interpretation of the fire

exemption, so that the obligation of its members to cargo

owners may be cerfain and definite; and

2. In particular, to protect its miembers from the

extraordinary burden which, perhaps inadvertently, the

unprecedented decision of Court below imposed upon the

carrier anc shipowner in these cases.

Petitioners, being only a single shipowner and a single

charterer respectively, may not be in a position to present

adequately to this Court the importance of this question

to the entire shipping industry and to the members of this

Association in particular.

Respectfully submitted,

Evoeene Unperwoop,

Counsel for Amicus Curiae

Norges Rederforbund, ©

26 Broadway,

New York 4, New York.

Harotp M. Kennery,

Hervey C. ALLEN,

of Counsel.

IN THE

Supreme Court of the United States

October Term, 1957

ray

Vv

No. 800

In the Matter of the

Petition of Skins A/S Jo_unp, in a cause of exoneration

from or limitation of liability for damages arising out

of a fire on board the Brack Gut on July 18, 1952.

Biack DraMonp SteaMsuip Corp.,

Petitioner,

vs.

AMERICAN SMELTING & Rerinixe Company, et al.,

Respondents.

Brack DiaMonp STEAMSHIP Corp.,

Petitioner,

VS.

Maria ANGELINA VERBEECK, ef al.,

Respondents.

No. 815

In the Matter of the

Petition of Skins A/S JoLtunp, as owner of the M/S Brack

Guu for exoneration from or limitation of liability.

Skins A/S Joiunp,

Petitioner,

vs.

AMERICAN SMELTING & ReFinine Company, ATKINSON

Hasesrick & (o., ef al.,

Respondents,

Maria Verseeck, ef al,

Respondents,

ray

5 4

BRIEF FOR NORGES REDERFORBUND (THE

NORWEGIAN SHIPOWNERS’ ASSOCIATION)

IN SUPPORT OF PETITIONS

oe az,

The facts and questions presented have been stated by

the two petitioners and need not be repeated here.

We urge that the decision below be reviewed because it

substantially weakens, and casts doubt upon, the protec-

tion uniformly afforded to carriers by all major maritime

nations, as weil as others, against liability for fire dam-

age to cargo by their adoption of ‘‘The Hague Rules’’

(International Convention for the Unification of Certain

Rules Relating to Ocean Bills of Leading, signed at Brus-

sels August 25, 1924, 51 Stat. 233), made part of United

States Law by enactment of The Carriage of Goods by Sea

Act, 1936 (49 Stat. 1207-1213, 46 U. S. C. Sees. 1300-1315),

commonly and hereinafter referred to as ‘‘cocsa’’.

Although we consider the Court of Appeals’ decision

wrong, we shall here emphasize the considerations which

demonstrate the importance, both here and abroad, of the

questions presented, and make it particularly appropriate

for this Court to exercise its discretionary review jurisdic-

tion.

It is inevitable that our Courts’ treatment of the cogsa

fire exception [49 Stat. 1210, 46 U. S. C. 1304(2)(b)] in

this case will have an impact, virtually worldwide in scope.

The Act itself is applicable by its own foree to bill of lad-

ing contracts for the carriage of goods by sea ‘‘to or from"’ ©

United States ports, in foreign trade (49 Stat. 1207, 1212,

46 U. S. C. Sec. 1300, 1312). Thus, in litigation abroad

arising out of trade with the United States, courts of other

countries may be expected to apply, or endeavor to apply,

the cocsa fire exception in the same manner as American

courts; indeed, they have done so in the past. The Ocean

Liberty, Rep. of France, Tribunal de Commerce? de la Seine

(1st Div., Paris), 1952 A. M. C. 925, 922-933.

In addition, it is significant that cocea e tpresses the

United State’s adherence to the above-mentioned Brussels

Convention of 1924, the purpose of which was to develop

internationally uniform rules governing the relations of

7

ocean carriers and their cargo. Scarburgh v. Compania

Sud, Americana De Vapores, 2 Cir., 1949, 174 F. 2d 423,

424; Knauth on Ocean Bills of Lading, 1953 Ed., pp. 118-

132, 136. This purpose has now in large measure been

achieved by virtue of all major maritime nations having

made The Hague Rules part of their private law either

by ratification, proclamation or enactment of domesti¢

legislation. A list of these countries, besides Great

Britain, was recently published in Carver's Carriage of

Goods by Sea, 10th Ed. 1957, Appendix 5, p. 1072. Japan

has since ratified the Convention, effective January 1,

1958 (1957 A. M. C. 1695). In addition, shipowners of

other countries have themselves voluntarily incorporated

the Rules in their bills of lading, with result that. the

Rules have been aptly deseribed as constituting a sort of

‘international commor law”? fer carriage of goods under

hills of lading. Dor, Bill of Lading Clauses & The Inter-

national Convention of Brussels, 1924 (Hague Rules),

1956, p. 147. Indeed, even in the private carriage of bulk

eargoes under chaiter these Rules are important, it now

being common for the parties to make coasa or the Rules

themselves part of their contract. See, e.g., the recent

decision of the House of Lords in. Adamastos Shipping

Co., Ltd. v, Anglo Saxon Petroleum Co., Ltd. {1958] App.

Cas.—(not yet officially reported); London Times, March

7, 1958, p. 15.

Besides these international aspects, an equally import -

ant reason for this Court’s reviewing now the questions

here presented is the economic one suggested by this

Court’s recognition in Consumer's Import Co. v. Kabushiki

Kaisha, 320 U.S. 249, 254-256 (194%), that the statutory

immunity of carriers from liability for fire damage is

necessarily reflected in the freight rates they charge.

Similarly, such immunity is an important factor in the

determination of the rates charged by underwriters for

insuring cargo as well as in the determination of the

rates charged by those underwriters who insure carrier

liability. An. whittling down of the carrier’s fire immunity

8

is therefore bound! to be of economic importance to all

interests concerned, whether on the cargo or the carrier

side, and uncertainty alone as to the extent of the carrier’s

immunity is encugh to make maintenance of a proper

freight or insurance rate structure impossible.

Although the major error below iay in misplacing the

burden of proof this was error in matter of substance, not

mere procedure. The whereabouts of the burder of proof

and rules as to what must be proved by the burdened party

in order to succeed seriously affect, and often determine,

the outcome. Sampson v. Channell, 1 Cir., 110 F. 2d 754,

cert. den. 310 U. S. 650. This is inevitably true in cases

involving shipboard fires and their causes, since, as suc-

cinctly pointed out in The Strathdon, 2 Cir., 101 Fed. 600,

606, ‘‘the occult causes of fire are as numerous as they

are mysterious.”’

Nor is it any answer to the present applicatious that

the District Court conceivably may yet find in this case

that there was no negligence or that, if there was. it was

not the proximate cause of the fire. Such an outcome cannot

remove the doubt cast by the Court of Appeals’ decision

on the long line of cases holding that in order to avoid

the fire exception cargo must affrmatively prove the cause |

of the fire and that it was due to the negligence of a manag-

ing agent of the carrier. The cases are cited in Black

Diamond’s petition, p. 13 and in Skibs A/S Jolund’s peti-

tion, p. 11. In substance, notwithstandinz a District Court

decision in the carrier’s favor in this particular caee,

uncertainty and a lack of definitive guidance wi!l continue

to prevail until this Court settles the questions here pre-

sented, once and for all.

Finally, the decision below is contrary to this Court’s

decision in Commercial Molasses Corporation v. New York

Barge Corporation, 314 U. S. 104. There the District Court

held that the cause of the accident had been left in doubt

but decreed recovery. The Court of Appeals and this Court

9

both held that with the evidence in balance the libellant

must fail. In the case at bar the District Court found:

36. Even if it be assumed that failure to cover

the stow of bag naphthalene with a tarpaulin was

either negligence or in violation of controlling stat-

ute or regulation, libelants have not proved that that

failure was the proximate cause of the fire (italics

ours).

This is a stronger finding for petitioners than the ‘in

doubt’’ finding in Commercial Molasses. Therefore, in

reversing the decision despite such a finding the Court of

Appeals has, in effect, overrated this Court’s Commercial

Molasses decision.

CONCLUSION

For the foregoing reasons it is respectfully submit-

ted that these petitions for writs of certiorari should

be granted.

Dated: New York, New York, March 15, 1958.

Evcene Unperwoop,

Counsel for Norges Rederforbund

(The Norwegian Shipowners’ Asso-

ciation), Amicus Curiae,

26 Broadway,

New York 4, N. Y.

Harotp M. Kennepy,

Hervey (. ALLEN,

of Counsel.

10

Certificate of Service

I, Eveesr Uxprrwoop, counsel for Norges Rederfor-

bund (The Norwegian Shipowners’ Association) certify

that on the 14th day of March, 1958, I served a copy of

the foregoing motion and brief on the following attorneys

by mailing a copy to each of them in duly addressed, first-

class, postage prepaid envelopes to their respecti.’ ad.

dresses noted below, said attorneys representing all the

parties to the captioned proceedings:

Pyst, Brusn, Sarru & MiIcHELSEN

116 John Street

New York 38, N. Y.

Biouam, Exorar, Jones & Hovustos

99 John Street

New York 88. N.Y.

ABBERLEY, Kooriman & Awon

do Liberty Street

New York 5, N.Y.

Dow & SyMMERS

70 Pine Street

New York 5, N.Y.

Tuomas H. Wanker, Esq.

United Fruit Company

Pier 9, North River

Ncw York 6, N. Y.

Jacon Rassxer, Esq.

15 Park Row

New York 7, N. Y.

Coorrer, Ostrix & DeVarco

655 Madison Avenue

New York 2], N. Y¥.

Evcent Unperwoop