The opinion of the court was delivered by: DAWSON
This is an action in admiralty, seeking damages for contamination of certain petroleum products. It is alleged and not denied that respondent, American Tankers Corporation of Delaware, was the charterer in possession of the tanker S/S 'Kaposia' and that certain petroleum products were delivered to this tanker by the libelant at Baton Rouge, Louisiana, for transportation to the Harkness Point Terminal of libelant at Philadelphia, Pennsylvania. The cargo consisted in part of Essoheat Medium (a heating oil), in part of diesel oils, and in part of gasoline. It is alleged that upon delivery of the cargo, damage resulted to the libelant from commingling of the heating oil with the gasoline, and that this also resulted in the contamination of some previously sound Essoheat Medium in one of libelant's shore tanks.
The fact that contamination occurred is undisputed. The principal issue is whether the contamination occurred by reason of acts of employees of libelant or by reason of acts of employees of respondent.
The Court finds the following facts:
1. Libelant delivered to the respondents at Baton Rouge the following products in good order and condition:
Net 42 U.S. Gal.
Cargo Bbls. at 60 deg. F.
Esso Gasoline 31,673.12
Unleaded Gasoline 19,800.57
Diesel 208 8,830.52
Diesel 210 33,385.71
Essoheat Medium 10,662.34
2. The cargo was carried pursuant to the terms of a charter party, which provided in part as follows:
'The cargo * * * shall be pumped out of Vessel * * * but at the risk and peril of the Vessel only so far as the Vessel's permanent hose connections, where the delivery of the cargo shall be taken by the Charterer or its Consignee. * * *' Clause 20 provides:
'* * * The Vessel shall not be responsible for any admixture if more than one quality of oil is shipped, nor for leakage, contamination or deterioration in quality of the cargo unless the admixture, leakage, contamination or deterioration results from * * * (b) error or fault of the servants of the Owner in the loading, care or discharge of the cargo.'
'The Vessel, her Master and Owner shall not, unless otherwise in this Charter especially provided, be responsible for any loss or damage arising or resulting * * * from any other cause of whatsoever kind arising without the actual fault or privity of the Owner.'
3. When the cargo arrived at Philadelphia, the products in the several tanks on the tanker were tested by the libelant and no contamination was found. There was no evidence that any contamination occurred during the voyage.
4. The tanker arrived at libelant's terminal at Philadelphia on July 25, 1951, and arrangements were made to pump the cargo from the ship to libelant's shore lines which connected with libelant's tanks at the terminal.
5. The steamer dock, which was controlled by libelant, had three rubber hoses which connected to pipes on the dock. Each pipe led to a header which directed the cargo to the field conduits which emptied into the storage tanks. The header itself functioned as a switch board. Built into the header were three valves which controlled the direction of the product. To send the product into a particular conduit it was necessary to open the appropriate valve. In other words, if gasoline was discharged into one of the headers from the ship and was destined for a gasoline tank, it would be necessary to open the plug valve connecting the header with the gasoline line. So also, if heating oil were in a header and was to be sent to a heating oil tank, it would be necessary to open a plug valve connecting to the line leading to the heating oil tank. The control of these plug valves was in the hands of employees of libelant. Before each product reached the header, it passed through a pipe with a sample cock from which samples could be taken for testing.
6. The tanker had three systems for storing the products and three pumps for discharging them. These systems were known as the Starboard, Center and Port Systems, and on the voyage in question, ...