The opinion of the court was delivered by: LEIBELL
On February 21, 1946, Union Carbide and Carbon Corporation filed a libel in rem and in personam against the S.S. 'Walter Raleigh', the American-West African Line, Inc., as operating agent,
and the United States of America, as owner. The libel alleges that 4400 tons of manganese ore were delivered to respondents, as common carriers, at Takoradi (West Africa) on March 31, 1945 in good order and condition for transportation to a United States Atlantic port, and that when the ore was delivered to libelant (the assignee of E. J. Lavino & Co., the consignee named in the Bill of Lading) at Philadelphia, on May 11, 1945, it was seriously damaged as a result of having come in contact with fuel oil. The damages sustained are estimated to be about $ 20,000.
The respondents filed an answer, October 1, 1948, which contained denials and certain special defenses. The first and second defenses were amended February 1, 1950. The first defense, as amended, alleges that:
'Eighteenth: If there was any damage to the said ore as a result of the contact with the oil it was due to the acts or neglect or default of the aforesaid members (Walsh, Gillis and Reed) of the engineering personnel of the Walter Raleigh in the management of the ship, to wit, their failure either to observe with sufficient diligence the inflow of the oil into the said deep tanks (the No. 3 port and starboard deep tanks) or to make adequate use of the hand operated equalizing valves on the fuel oil filling line or to notify the pumpman to slow down or stop the pump far enough in advance to insure against an overflow of the oil, and the respondent consequently is exempted from liability therefore by the Carriage of Goods By Sea Act, 46 U.S.C.A. § 1304(2) (a).'
The second separate defense alleges the neglect of the engineers as above quoted, and that:
'Twenty-First: As soon as it was observed that the manhole had overflowed, the second assistant engineer ordered the pumpman on the lighter to stop the pumping, but the pumpman was slow in carrying out the order, resulting in additional oil overflowing through the manhole.
'Twenty-Second: If it should be found that the manganese ore was damaged as a result of contact with the oil, and that the acts and/or omissions of the said pumpman caused the said damage, the respondents are exempted from liability therefor under Title I, Section 4, paragraph 2(q) of the Carriage of Goods By Sea Act, 46 U.S.C.A. § 1304(2) (q), the alleged damage having been due to causes arising without the actual fault or privity of the carrier and without the fault or neglect of the agents or servants of the carrier.'
The third defense alleges that:
'Twenty-Fourth: The respondents were informed by the consignee, E. J. Lavino and Company, after the discharge of the ore at destination, that the ore had been imported for use in the manufacture of electric batteries, which is a chemical and not a metallurgical use, and the damage complained of is based upon the alleged unfitness of the ore for such chemical use and not for its metallurgical use in general. The alleged damage is therefore special damage.
'Twenty-Fifth: Prior to shipment and the making of the contract of carriage the respondents were not advised by the shipper or consignee and did not know that the ore was being imported for the special chemical use subsequently disclosed and therefore are not liable in any event for the damages claimed in the libel, which are special damages.'
The fourth defense is a partial defense and alleges:
'Twenty-Seventh: On the ship's arrival at Philadelphia the said Lavino Shipping Company undertook to and did discharge the ore from the vessel through its stevedoring division. Although the contact between the oil and the ore, for the reasons previously alleged, was confined to the forward port side of the No. 4 lower hold, the stevedores, although aware of conditions, made no effort to keep that ore separate and apart from the ore in the after part of that section of the hold or from the ore on the starboard side of the hold, which was separated from the port side by the shaft tunnel, but, as the respondents are informed and believe, intermingled all the ore from both sides of the No. 4 hold when discharging and loading it into railroad cars.
'Twenty-Eighth: If the ore on the forward port side of the hold was damaged by contact with the oil, which is not admitted, the libellant's alleged damages were aggravated by the said negligence of the stevedores. Should the respondents be found liable herein, liability being expressly denied, a corresponding reduction should therefore be mad in the award of damages.'
The third and fourth defenses relate to the issue of damages and need not be considered at this time, because a Commissioner will be named for that purpose. The first and second defenses claim exemption from liability by reason of certain provisions of the Carriage of Goods By Sea Act, 46 U.S.C.A. § 1300 et seq., as applied to respondents' version of the facts in this case.
Although the trial originally terminated on March 10, 1950, it was found necessary to reopen the case twice and receive additional proof.
On January 10th, 1950 the proctors for the respective parties entered into a stipulation of certain facts as follows:
'1. That at the times stated in the libel, the libelant was the owner of the cargo described therein, had the legal status alleged therein, and is entitled to maintain this action.
'2. At the times stated herein the U.S.A. was the owner of the steamship Walter Raleigh, and if liability is found to exist herein it is solely responsible to Union.
'3. This action in so far as the respondent, American-West African Line, Inc. (hereafter called 'A.W.A.') is concerned, is to be discontinued without costs.
'4. The original appearance entered herein and all pleadings filed on behalf of the respondents are deemed to be an appearance and pleadings on behalf of U.S.A.
'5. The manganese in question was loaded in apparent good order and condition at Takoradi, West Africa, after which the Walter Raleigh, under the orders of War Shipping Administration (hereafter called 'W.S.A.') proceeded without convoy to Port of Spain, Trinidad, for bunkers where she arrived on or about April 21, 1945, in the morning.
'6. At the time in question and due to war conditions and the shortage of fuel oil on the Atlantic coast because of the large number of tankers which had been torpedoed, the W.S.A. ordered all vessels navigating through waters in the vicinity of Trinidad to fill up their bunkers with fuel oil there.
'7. Pursuant to the custom and practice and orders of the W.S.A. aforementioned, the steamer Walter Raleigh loaded the fuel oil at Port of Spain, Trinidad, in this instance. On her arrival at Port of Spain, she had aboard 2,460 barrels of fuel oil, and took aboard there 8,546 barrels of fuel oil. On her arrival in Philadelphia, on or about May 7, 1945, she had aboard 9,007 barrels of fuel oil, 1,561 barrels having been consumed on the voyage from Trinidad to Philadelphia via Guantanamo Bay, Cuba.
'8. On the Walter Raleigh's arrival in Philadelphia, she discharged her cargo of manganese ore. Some of the manganese ore which was stowed in the ship's No. 4 lower hold came into contact with the fuel oil loaded at Port of Spain, Trinidad, due to an overflow of the No. 3 port deep tank during loading operations. It is conceded that such manganese sustained some damage as a result of the contact with the fuel oil, the amount of such damage, however, not being conceded by the U.S.A., which makes the aforesaid concession without prejudice to its claims herein.
'9. The Walter Raleigh discharged no fuel oil at Philadelphia and took out with her on her next voyage all the fuel oil she brought into Philadelphia, less what may have been consumed while she was at that port.'
On May 7, 1951 another stipulation was entered into which cancelled Article 9 of the stipulation of January 10th and substituted for it the following:
'It Is Hereby Stipulated and Agreed by and between the proctors for the libellant and the respondent, United States of America, as follows:
'That Article 9 of the stipulation herein, dated January 10, 1950, having, as it recently developed, been entered into without complete knowledge of the facts, and consequently being a partially incorrect statement with respect to fuel oil on the Walter Raleigh, be and the same hereby is cancelled and ...