The opinion of the court was delivered by: RYAN
These suits in Admiralty were filed as early as May, 1941; they come before us consolidated for trial in March, 1958. This opinion has been written after reviewing over 20,000 pages of depositions, 'condensed' by the proctors into an agreed digest of more than 2,000 pages; truly, the machinery of the law grinds slowly in our human attempts to accomplish justice.
The suits arise out of admitted and undisputed damage to cargo which was carried on the Steamship Ioannis P. Goulandris from Turkish and Greek ports, via the Suez Canal and the Cape of Good Hope, to Norfolk, Newport News and New York on a passage which began in October, 1940 and ended in May, 1941. Much of the factual background and some of the legal problems presented by the suits are similar to those dealt with in prior litigation conducted in this District Court in American Tobacco Co. v. The Katingo, Hadjipatera, D.C., 81 F.Supp. 438, modified and affirmed, 2 Cir., 194 F.2d 449 (certiorari denied, American Tobacco Co. v. Hadjipateras, 343 U.S. 978, 72 S. Ct. 1076, 96 L. Ed. 1370).
The first suit was filed by the American Tobacco Company for damage to four shipments totaling 9,302 bales of tobacco shipped at Izmir, Turkey and consigned to Newport News; by R. J. Reynolds Tobacco Company for damage to five shipments, totaling 18,397 bales of tobacco, 3,600 being shipped at Izmir, the remainder at Cavalla and Salonica, and all consigned to Newport News; and by Liggett & Myers Tobacco Company for damage to one shipment of 5,000 bales of tobacco, shipped at Izmir and consigned to New York. The damages sustained by the shipments involved in this suit are alleged to approximate $ 1,000,000.
The second suit was filed by Bank of Greece for damage to four shipments, totaling 7,350 bales of tobacco, 4,284 of which were shipped at Salonica, 1,956 at Piraeus, and all consigned to New York; by Lekas & Drivas, Inc. for damage to 315 packages of cheese shipped at Salonica and consigned to New York; by Pompeian Olive Oil Corporation for short delivery of and damage to a shipment of 315 drums of olive oil shipped at Izmir and consigned to New York; and by Victor Cory Company for damage to 500 drums of olive oil shipped at Izmir and consigned to New York. (As against General Steam Navigation Co. Ltd. of Greece, the Cory claim has been dismissed). The damages sustained by the shipments involved in this suit are alleged to exceed $ 150,000.
The third suit, a cross-libel was filed by the owners of the vessel against R. J. Reynolds Tobacco Company and Liggett & Myers Tobacco Company for contribution in general average to sacrifices of the vessel owners, alleged to have been made during the voyage.
The fourth suit, a cross-libel, was filed by the vessel owners against Bank of Greece and the other libelants in the second suit for the same purpose. The contributions claimed in the third and fourth suits total $ 184,213.36.
Each libelant had the individual or corporate status ascribed to it in the libels.
Libelants, except Pompeian Olive Oil Corporation and R. J. Reynolds Tobacco Co., were owners at the time of the loss and damage of the shipments with respect to which they have filed suit and are entitled to sue thereon.
Libelant R. J. Reynolds Co. was the party beneficially interested in, and we have found was entitled to sue for the damage for which it claims in the libel.
Proof of the right of libelant, Pompeian Olive Oil Corporation, to sue for damage to the shipments for which it makes claim has been expressly reserved by stipulation for future determination.
Respondents, Basil, Leonidas and Nicholas Goulandris, were brothers, residents of Greece and, at the times relevant, each owned a 30% interest, respectively, in the S.S. Ioannis P. Goulandris. A 10% interest in various shares in the vessel was owned by a number of other persons not parties to the cargo damage suits.
Goulandris Brothers (Hellas) Ltd. is a corporation organized and existing under the laws of the Kingdom of Greece which acted as agents and managers in Greece for vessels owned by the three Goulandris brothers and other persons. The firm of Goulandris Brothers (Hellas) Ltd. managed the vessel on the voyage in suit on behalf of and with the authority of the owners.
Respondent, General Steam Navigation Co. Ltd. of Greece (hereinafter referred to as 'Greek .line') is a corporation organized and incorporated in Piraeus in July 1939. 'Greek Line' acted as agent for the owners of the vessel for the collection of freight in connection with this voyage.
The S.S. Ioannis P. Goulandris was a 3 island type vessel, having a raised fore-castle and poop and a bridge housing amidships. The vessel was a single screw coal-burning cargo vessel of 2,223 net registered tons and 3,750 gross tons, built in 1910 at Stockton, England. She was equipped with Scotch boilers and a triple expansion engine. She was 362 feet long with a beam of 51 feet and a molded depth of 26 1/2 feet, and had a speed of 8 knots, fully loaded, under normal conditions with good weather and good coal.
The vessel was classified 100A1 by Lloyd's in February, 1940.
The vessel had 5 holds, Nos. 1 and 2 and the crossbunker forward of the engine room, and Nos. 3 and 4 aft of the engine room. A 'tweendeck space over the No. 2 hold extended partly over the No. 1 hold and a 'tweendeck space over the No. 3 hold extended partly over the No. 4 hold.
The No. 1 hold was 58 feet long with an after beam of 51 feet, a forward beam of 18 feet 4 inches and a mean depth of 23 feet, 6 inches. The No. 2 'tweendeck extended forward 13 feet 4 inches over the after part of the No. 1 hold.
The No. 2 hold was 76 feet, 6 inches long with a mean beam of 51 feet and a mean depth of 20 feet 6 inches. The No. 2 'tweendeck began 13 feet 4 inches forward of the forward bulkhead of the No. 2 lower hold and extended aft to the wooden thwartship partition consisting of 3-inch thick planking, caulked with cotton and covered with glued paper which divided the after 'tweendeck and main deck hatches in half.
The No. 3 hold was 60 feet long with a mean beam of 51 feet and a mean depth of 20 feet 3 inches. The No. 3 'tweendeck began at the forward bulkhead dividing it from the engine space and extended aft to approximately 14 feet aft of the thwartship bulkhead separating the No. 3 from the No. 4 hold.
The No. 2 and No. 3 'tweendecks were approximately 40 feet wide and 8 feet high.
The No. 4 hold was 59 feet 6 inches long with a forward beam of 49 feet 6 inches, a mean beam of 27 feet and a mean depth of approximately 20 feet. The No. 3 'tweendeck extended over the forward part approximately 14 feet.
The poop was a small compartment with a cubic capacity of 6,222 feet, a height of 10 feet and with a large hatch 14 feet by 11 feet 11 inches.
Each hold had a centerline, removable, wooden bulkhead running fore and aft but not across the square of the hatch. The centerline bulkheads divided the holds into port and starboard halves except for the hatch square. The centerline bulkheads were constructed of 10-inch boards, 2 1/2 inches thick, running fore and aft with spaces between the boards of 1/4 to 1 inch. The bulkheads extended in the Nos. 1 and 2 holds from the tank tops to points varying from 1 foot to 3 inches from the undersides of the overhead deck beams. In the No. 3 hold the bottom of the centerline bulkheads rested on top of the shaft tunnel and the section of the bulkhead aft of the hatchway was about 6 feet long with the top about 6 feet from the overhead deck beams because there were no boards in this part. Many of the boards of the centerline bulkheads were broken and chipped, leaving open spaces in the bulkheads.
The Nos. 2 and 3 'tweendecks had centerline, removable, wooden bulkheads constructed like those in the holds running fore and aft, but not across the hatch squares, which divided the 'tweendecks into port and starboard halves. The bulkheads touched the overhead deck beams at some points and at others were separated by at least a foot.
The depth of the vessel's frames in all cargo compartments was 10 inches, to which were attached 1-inch temporary, wooden, cargo battens about 1 foot apart, fastened by means of cleats on the frames. All cargo was thus at least 1 foot from the vessel's skin or shell plates.
There were no permanent wooden ceilings over the double bottom tanks except in the square of the hatch in No. 2 hold. The bottoms of Nos. 1, 2 and 3 holds, except as stated above, were covered with crisscross dunnage of a total thickness of 3 inches.
No. 1 hold had vertical stiffeners on the after bulkhead and the No. 3 hold had vertical stiffeners on the forward bulkhead extending 13 1/2 inches into the hold and spaced 28 inches apart. No. 1 also had a horizontal beam at the center of the No. 1 after bulkhead extending 16 inches into the hold. There were no bulkhead stiffeners in No. 2 hold. Under the corner of each hatch in Nos. 1, 2 and 3 holds were 'I' beams, 10 inches by 8 inches, supporting the 'tweendeck.
A steel shaft tunnel about 8 feet 3 inches high ran through No. 3 and No. 4 holds without any steam pipes in the tunnel.
Hatch No. 1 was 30 feet 4 inches long and 18 feet wide. No. 2 forward hatch was 28 feet long and 22 feet wide. No. 2 after hatch was 13 1/2 feet long and 20 feet wide, with two trimming hatches 22 x 30 inches in the corners of the 'tweendeck leading to the lower hold. Hatch No. 3 was 32 feet 6 inches long and 22 feet wide, with four trimming hatches 22 x 30 inches in the 'tweendeck leading to the lower hold; one in the forward, starboard corner 11 feet aft of the forward, thwartship bulkhead and 9 feet 6 inches from the skin of the vessel; another in the forward, port corner 6 feet 6 inches aft of the forward, thwartship bulkhead and 4 feet 9 inches from the skin of the vessel; another in the after, starboard corner about 8 feet forward of the thwartship bulkhead and 8 feet 10 inches from the skin of the vessel; and the fourth in the after, port corner about 8 feet forward of the thwartship bulkhead and 9 feet 6 inches from the skin of the vessel. Hatch No. 4 was 30 feet 4 inches long and 18 feet wide.
No. 1 hold and 'tweendeck had four ventilators; two forward on port and starboard, 20 inches in diameter and extending 7 feet 3 inches above the weather deck to a 36-inch cowl, 12 feet 4 inches from the skin of the vessel and 5 feet from the forward bulkhead; two aft ventilators 20 inches in diameter, one on starboard side extending 8 feet 5 inches above the weather deck with a 35-inch cowl and a 14-inch telescopic tube extending into the lower hold with a 3-inch annular opening into the 'tweendeck; another on port side extending 8 feet 9 inches above the weather deck with a 35-inch cowl, each 5 feet 5 inches from the skin of the vessel and 17 feet 4 inches from the centerline bulkhead and 2 feet from the after bulkhead.
No. 2 hold and 'tweendeck had two forward telescopic ventilators 20 inches in diameter, one on the starboard side extending 8 feet 7 inches above the weather deck to a 35-inch cowl; the other on the port side extending 8 feet 11 inches to a 33-inch cowl and telescoped through the 'tweendeck with a 3-inch annular opening into the 'tweendeck, each against the forward bulkhead and 14 feet from the skin of the vessel.
No. 3 hold and 'tweendeck had four ventilators, two on either side, forward and aft, 20 inches in diameter. The forward starboard ventilator extended 8 feet 1 inch above the weather deck to a 33-inch cowl with a 14-inch telescopic tube extending into the lower hold with a 3-inch annular opening into the 'tweendeck. The forward port ventilator extended 8 feet 5 inches above the weather deck to a 36-inch cowl, 11 feet from the skin of the vessel and 3 feet from the forward bulkhead with a 14-inch telescopic tube extending into the lower hold with a 3-inch annular opening into the 'tweendeck. The after starboard ventilator extended 8 feet 5 inches above the weather deck to a 34-inch cowl and to the lower hold by a telescopic 14-inch tube with a 3-inch annular opening into the 'tweendeck and 5 feet 10 inches from the skin of the vessel and 2 feet 5 inches from the after deck bulkhead. The after port ventilator extended 8 feet 9 inches above the weather deck to a 33-inch cowl 16 feet 8 inches from the centerline, 6 feet 8 inches from the skin of the vessel and against the after bulkhead and not telescoped.
No. 4 hold had four ventilators; two at the forward end, the port had a 14-inch trunk and the starboard had a 20-inch trunk, and two at the after end, port and starboard, of the hold leading from samson posts on the poop, which ventilators had 14-inch trunks and were equipped with large cowls.
All ventilator cowls were well above decks and accessible to a free flow of air, and were not impeded by any obstruction, except for the aft ventilators of No. 4 hold the upper ends of which had been closed. The poop had no permanent ventilators.
The hatchboards for the after three-quarters of the square of the No. 2 forward 'tweendeck hatch and all of the hatchboards for the No. 2 after 'tweendeck hatch were removed at the inception of the voyage and remained off throughout the voyage.
The vessel's ventilating facilities in Nos. 1, 2 and 3 holds and Nos. 2 and 3 'tweendecks were adequate for the carriage of tobacco from Greek and Turkish ports to the United States via Gibraltar in the fall of the year. The Nos. 1, 2 and 3 holds and the Nos. 2 and 3 'tweendecks were in all respects proper places for the stowage and carriage of the tobacco.
The ventilating facilities in No. 4 hold and of the poop were not adequate for the carriage of the cheese stowed in it for a voyage from Greek ports to the United States via Gibraltar in the fall of the year, stowed as it was at part of loading.
The cargo spaces were equipped with temporary wooden cargo battens 1 inch thick at the sides of the vessel about 1 foot apart in horizontal fore and aft positions with vertical dunnage overlaid and all over-hung with loosely-woven, straw mats. All thwartship bulkheads in compartments where tobacco was stowed were dunnaged and hung with loosely-woven, straw mats.
There was no permanent wooden ceiling over the double bottom tanks in any hold where tobacco was stowed with the exception of the square of the hatch in No. 2 hold. The remaining area in No. 2 hold and the entire bottom of No. 1 and No. 3 holds where tobacco was stowed on the bottom over the double bottom tanks was covered with crisscross dunnage 3 inches in thickness over which was laid clean, dry, loosely-woven straw mats.
There were loosely-woven straw mats between the tobacco and the fore and aft centerline bulkheads. Loosely-woven straw mats were placed on the 'tweendeck hatchboards in No. 3 'tweendeck and on the forward part of No. 2 'tweendeck hatchboards before the tobacco was stowed there.
All trimming hatches were 22 X 30 inches and covered by dunnage boards 1 inch thick, about 4 inches wide and separated by about 4 inches with a single layer of loosely-woven straw mats laid over them. Tobacco was stowed over the straw mats over the trimming hatches in No. 3 'tweendeck and in the forward part of No. 2 'tweendeck.
There was no permanent sheathing around the shaft tunnel. Prior to loading of cargo, the shaft tunnel was covered with wooden dunnage upon which was laid one or more layers of loosely-woven straw mats with small openings through their surfaces.
All holds and 'tweendecks were swept and cleaned between Spalato and Izmir, Turkey, where loading and stowage of tobacco commenced on October 16, 1940. All bilges were dry before loading commenced.
The block system of stowage was used for bales of tobacco throughout holds Nos. 1, 2 and 3 and in Nos. 2 and 3 'tweendecks. All bales were loosely-stowed with about 1 inch between the rows of bales. There were spaces all around the bales and at the stanchions. The bales were stowed about one foot from the sides of the vessel and with about one-foot spaces between the dunnaged and matted forward and after bulkheads except where the hold was divided by the centerline bulkhead.
At the bottom of No. 1 lower hold 3,600 bales of tobacco were loaded at Izmir; immediately above that lot, 8,837 bales of tobacco were loaded at Cavalla; and above that lot, two shipments of 2,550 and 2,280 bales of tobacco were loaded at Salonika. All of the said four shipments were made by Glenn Tobacco Company. At Salonika 1,401 bales of tobacco of a 1,425 bale shipment of tobacco, made by A. Michaelides (Tobacco Company) S.A. were loaded in No. 1 hold; 24 bales of this lot were stowed in the No. 2 'tweendeck. There was an empty space of about 1 1/2 feet between the top of the stow and the overhead deck beams. Forward and aft, the stow of tobacco in No. 1 hold extended from the ship's side battens on each side to the center line bulkheads; and in the way of the hatch opening the stow extended from the battens on one side to those on the other. Vertically, the stow extended from the dunnage over the tank tops to within about 1 1/2 feet of the overhead deck beams, a distance of 20 or 21 feet aft and 24 or 25 feet forward. There were no rice ventilators in the stow and no athwartships trench.
At Izmir, 850 steel drums of olive oil were loaded at the bottom of No. 2 hold upon the dunnaged ceiling. The drums were stored fore and aft on their sides, 3 tiers high except in the after third of the hold where they were stowed 1 tier high. The drums rested on a wooden platform of 2 layers of 1-inch boards spaced 4 to 5 inches apart, running thwartships and fore and aft over which were laid straw mats.
There were also loaded at Izmir in No. 2 hold 2,524 bales of tobacco of Shalom Brothers in the forward third of the hold over the drums of olive oil. Over that lot were loaded at Izmir two lots of 172 and 356 bales respectively. Over those lots were loaded at Salonica 2,064 bales of tobacco of Herman Spierer. The stow of the bales in this forward part came to within 1 foot of the overhead deck beams.
Aft of the forward lots and occupying the center third of No. 2 hold there were stowed at Piraeus over the drums 5 lots of baled tobacco and over those 5 lots were stowed at Piraeus 1,956 bales of tobacco of Papastratos Brothers. The top of this stow was about 10 feet from the overhead 'tweendeck beams.
At the after end of No. 2 hold over the single tier of drums were stowed at Salonica 1 lot of 600 bales of tobacco of A. Camaras & Company and over this lot were stowed at Salonica 3,524 bales of a lot of 3,684 bales of tobacco of Papastratos Brothers. The top of this stow was about 11 feet below the overhead 'tweendeck beams except for the top of the stow directly under the after hatch square where there was empty space right up to the underside of the maindeck hatchboards. On top of the Papastratos lot were stowed the 24 bales of the 1,425-bale Michaelides lot for which there was no room in No. 1 hold. Forward and aft of the hatch opening the tobacco in the No. 2 lower hold was stowed from the battens on each side of the ship to the center line bulkhead. In the way of the hatch opening it extended from the battens on one side of the ship to those on the other. There were no rice ventilators in the stow, and there was no athwartships trench.
In No. 2 'tweendeck there were loaded at Izmir 2,072 bales of tobacco of Gary Tobacco Company, stowed all around the 'tweendeck and on the forward quarter of the forward hatch square. No bales were stowed on the after threequarters of the forward hatch square and none were stowed on the after hatch square.
No cargo was stowed in the lower cross-bunker.
In No. 3 hold were first loaded at Izmir 4,614 bales of tobacco of the Yerli Urunler, S.A., shipped to American Tobacco Company at Newport News. Next loaded were two shipments of 291 bales and 138 bales of Yerli Urunler, S.A. for American Tobacco Company at Newport News. Over these lots were loaded 4,159 bales of American Tobacco Company of the Orient, Inc. The stow extended up to within 1 or 2 feet of the overhead deck beams, some 19 feet or more.
Fore and aft of the hatch opening, the stow in No. 3 lower hold extended from the side battens on either side to the center line bulkhead, and in the way of the hatch opening it extended from the battens on one side to those on the other. There were no rice ventilators in the stow, and there were no thwartships trench.
In the No. 3 'tweendeck there were loaded at Izmir 100 bales of tobacco of Yerli Urunler, S.A., stowed on the starboard side, aft, and 2,928 bales of tobacco of Gary Tobacco Company stowed in the after half of the compartment.
There were loaded forward of these two lots in No. 3 'tweendeck at Cavalla 1,110 bales of tobacco of Pialoglou Freres and there were loaded at Salonica 160 bales of tobacco of Papastratos Brothers stowed over the 1,110 bales of Pialoglou Freres. The bales were stowed all around the 'tweendeck and on the hatch square but in the place of the regular hatchboards, there were set wooden planks laid on top of the beams and those planks were separated by spaces varying from 4 to 6 inches and were overlaid with loosely-woven straw mats. The stow extended up to within 1/2 foot of the overhead deck beams.
In the after part of No. 4 hold were loaded 67 cases and 7 barrels of cheese of Lekas & Drivas.
In the poop were stowed 10 lots of cheese consisting of 945 cases altogether, 241 cases of which were the property of Lekas & Drivas, Inc. The poop was filled from forward to aft, from side to side and from top to bottom with the cheese.
The drums of olive oil shipped by Pompeian Olive Oil Corp. were stowed in the usual and customary manner in No. 2 lower hold.
All shipments were booked with the expectation that the vessel would proceed to the United States via Gibraltar. The block stowage system used in Nos. 1, 2 and 3 holds and Nos. 2 and 3 'tweendecks with respect to bales of tobacco was a customary and proper method of stowage for a voyage from the ports of loading to the United States by way of Gibraltar.
In all cargo compartments, dunnage and matting were employed in the customary and proper manner to protect the cargo. Dunnage and matting were employed against the battens on the ship's sides and against the fore and aft bulkheads in all compartments in a proper manner to protect the cargo from sweat. The use of maps on the longitudinal center line bulkheads fore and aft of the hatch openings was proper. The use of matting over the trimming hatches, over the forward quarter of No. 2 'tweendeck hatch, and over the entire No. 3 'tweendeck hatch was also proper.
At each loading port prior to the outbreak of war, representatives of the tobacco shippers, excepting A. Camaras & Company, inspected the vessel's stowage compartments respecting suitablity, cleanliness, dunnaging and matting. They did not disapprove of the stowage or make any suggestions, or issue any special instructions with respect to the stowage of the tobacco.
All the vessel's officers were properly licensed and competent. The master Polemis (who left the vessel at Piraeus) personally had experience in carrying tobacco from Egypt to North European, Continental ports; the other officers had had experience in the stowage and care of perishable cargoes such as rice and grain which are susceptible of self-heating if they contain excess moisture. The ship's officers did also receive suggestions from the tobacco shippers at the ports of loading respecting the care of the tobacco during the voyage.
The tobacco in the 3,684 bale shipment made by Papastratos Bros. from Salonica (3,524 of which were stowed in the No. 2 lower hold and the remaining 160 in the No. 3 'tweendeck) was of the 1938 crop. 700 bales of the 1956 bale shipment made by Papastratos Bros. from Piraeus, stowed in the No. 2 lower hold, were of the 1936 crop. All of the other tobacco involved in the litigation was of the 1939 crop. All tobacco had been purchased from Turkish and Greek planters between January and May, 1940.
The tobacco had been grown on hundreds of small farms; it had different characteristics such as leaf texture, burning rate and moisture content because of differences in the soil, rainfall and temperature of the locations where grown.
The tobacco had been picked when green, exposed to the sun to dry for about 2 weeks and then hung in sheds until it had suitable moisture for baling as determined by each farmer; after baling, the farmers' bales remained with the farmers until transported to the buyers' warehouses between January and May, 1940. The bales were stored thereafter in the buyers' warehouses for several weeks 2, 3 or 4 tiers high until manipulation commenced; the farmers' bales were then broken down and the tobacco leaves separated according to size, color and quality and then picked into new bales. Manipulation occurred between the middle of February and September, 1940, and after baling, the bales had been covered on 3 sides with hessian cloth and pressed into shape and then stored in warehouses awaiting shipment.
There were three types of bales; (1) basma bale measuring about 29' X 12' X 5' and weighing 39 lbs., consisting of the more carefully packed tobaccos; (2) the Macedonian tonga bale measuring about 22' X 19' X 10' and weighing 50 to 52 Ibs.; and (3) the Izmir tonga bale measuring about 26' X 19' X 15' and weighing 120 ibs.
Fermentation commenced in May and June, 1940, with the advent of warm weather and lasted from 2 weeks to 1 month. During fermentation, the tobacco self-heated, and to prevent it from overheating, molding and rotting, the bales were kept loosened so air could circulate through the leaves, and each bale was separated from the other. The position of the bale was changed regularly to throw off the heat so generated and to gradually reduce the moisture content.
The factors creating fermentation are moisture, temperature, time and the nature and condition of the tobacco, and since the character of the tobacco varied, the fermentation process was not always uniform. Some bales heated to a greater extent than other bales during the fermentation process and therefore required special attention such as loosening of the lacing and the wrapping for aeration, and in some instances the bales had to be set aside and more carefully watched.
Excessive moisture content in Turkish or oriental leaf tobacco is a significant causal factor in the self-heating of such tobacco when baled. No convincing proof was adduced of the moisture content of the tobacco shipments here involved.
The process which culminates in spontaneous ignition of tobacco consists of two phases. The first phase is a bacteriological or enzymatic process, of long duration, during which heat is evolved slowly; and if the heated tobacco is confined to such a degree that the rate of generation of the heat exceeds the rate of its dissipation, the temperature within the bulk rises. The temperature achieved by this process does not exceed the range of 130 to 150 degrees F. The second phase is a process of chemical decomposition, of much shorter duration, during which the temperature rises rapidly; and if the heat is confined, this results ultimately in ignition if sufficient oxygen is present to permit that, or in reduction of the tobacco to a charcoal-like mass if there is insufficient oxygen present to permit actual ignition.
During the first phase, tobacco sustains no damage, unless its subjection to the highest attained temperatures continues for a long period of time. The ignition temperature of tobacco is in excess of 350 degrees F. Tobacco becomes of no commercial value for smoking purposes when subjected to temperatures exceeding 260 degrees F. but below 350 degrees F.
The methods of manipulation, storage, preparation for shipment and examination before shipment employed by the shippers of tobacco on the vessel were safe and proper for the transportation of the tobacco on the originally contemplated voyage from ports of shipment to the United States via Gibraltar if the tobacco was properly and carefully stowed and cared for during the voyage.
The methods of manipulation, storage, preparation for shipment and examination before shipment employed by the shippers of tobacco on the vessel were not safe and proper for the transportation of the tobacco on the voyage actually made from ports of shipment to the United States via Suez and the Cape of Good Hope even when the tobacco was properly stowed and cared for during the voyage.
The less the height to which tobacco is stowed, the greater the length of time that is required for heat which develops spontaneously to reach a temperature which damages the tobacco. Spontaneous heating of tobacco is progressive and the rate at which it develops increases with the passage of time.
On the voyage in suit the temperature of the stow was not taken by thermometers at any time; no member of the vessel's personnel entered or could enter No. 3 lower hold at any time between the vessel's sailing from Salonica and her arrival at Aden, nor between her departure from Aden and her arrival at Barbados.
None of the vessel owners or any person of authority connected with them, other than the master, had personal knowledge of the details of the stow.
The vessel owners took no personal part in the stowage, had no knowledge of the details of the stow and had no reason to know or be familiar with the stowage.
On October 26, 1940, the vessel arrived at Piraeus, Greece, having on board the shipments described above laden at Izmir, Cavalla and Salonica, stowed as hereinbefore described. She was expected to sail within a few days via Gibraltar to Newport News, Norfolk and New York.
On October 28, 1940, Italy attacked Greece, and the vessel was requisitioned by the Greek Government, and proceeded under Greek Government orders on a military mission to the Corinth Canal, from which she returned to Piraeus on November 8, 1940. She was released from requisition at 9:00 a.m. on that date. Thereafter and before she was again requisitioned sometime on November 9th 1940 she loaded upon instructions of the Greek Government the balance of her Piraeus cargo, which was put in No. 2 hold.
The advent of war between Italy and Greece prevented the accomplishment of the expected voyage via Gibraltar by the S.S. Ioannis P. Goulandris, a vessel of Greek registry. It was obvious that if the voyage were made at all it would have to be made by way of Suez and the Cape of Good Hope.
Subsequent to requests of the American Tobacco Company, Glenn Tobacco Co., Inc. and Papastros Brothers, the Greek Government on or about November 9, 1940, again issued orders to requisition the vessel to complete her voyage to the United States via Suez, and on Sunday morning, November 10th, 1940, owners' clerk, Firios, was called to the office of the Director of State Maritime Transports where he and the general manager of the operator of the S.S. Katingo were told that unless the owners of the vessel agreed to arbitrate the extra freights to be paid by libelants to complete the voyage via Suez, the vessel, as well as the S.S. Katingo, would be continued under requisition and ordered to proceed via said route.
Firios informed the government official, in the presence of representatives of some of the libelants, that he was without authority to consent to an alteration of the vessel's route or to bind her owners by an agreement to arbitrate the additional freights to be paid, that the owners were not then in Greece, and that he wanted an opportunity to consult with them. Despite his protest and a refusal to allow him time to communicate with the owners, Firios did sign a document embodying a proposed consent to arbitrate contingent upon the vessels not being ordered to sail until (1) the additional freights fixed were paid by the shippers demanding arbitration, and (2) an opportunity was given to communicate with the other shippers. The government official refused to accede to these conditions and appointed a committee to arbitrate. Within a few hours thereafter, before the arbitration was held or any of the conditions met, the Greek Government ordered the vessel to sail from Piraeus in convoy to Port Said and instructed the Master to follow the orders of the British Admiralty throughout the voyage.
Thereafter the Greek-Government-appointed Committee in view of the greater length of the Suez voyage, the resultant increase in expense, the more difficult weather conditions which would be encountered, the increased likelihood of delays on the voyage on account of weather, war conditions, additional coaling stops, waiting for the formation of convoys and delays in convoy, and the interests of respective parties, awarded extra freight amounting to 88% of the original freight. Respondents and the three shippers who were represented at the arbitration hearing (the American Tobacco Company of the Orient, Inc., Glenn Tobacco Co., Inc. and Papastratos Freres) had agreed in advance to accept the award of the arbitrators. The extra freight was paid and accepted.
Thereafter, and throughout the voyage, the owners had no control over the vessel and were unable to communicate directly with her Master because the vessel was sailing under confidential orders and in convoy.
On October 28, 1940 a few hours after the Greek-Italian was broke out, Basil and Leonidas Goulandris had conferred in Athens and decided to cable Goulandris Brothers, London, Ltd. to look after the interests of Goulandris Brothers according to their best judgment in the event that communications were interrupted. They telephoned to Firios at Piraeus, and instructed him to dispatch the necessary cables. After November 10, 1940, it became impossible to communicate from Piraeus directly with ships at sea or in foreign ports, and Goulandris, London, Ltd. received and transmitted all such communications. The Master of the vessel reported to Goulandris, London, Ltd. from Port Said, Suez, Aden, Durban and Barbados, and received communications from Goulandris, London, Ltd. at those ports.
Throughout the voyage from Piraeus the vessel was obliged to follow the orders of the Greek and of the British Admiralty as to her courses, ports of call and military protective measures. Both at Aden and at Barbados, Goulandris, London, Ltd. instructed the Master to be guided by the recommendations of Lloyd's agents.
The intervention of war and governmental orders made it impossible to discharge the cargo at Piraeus or to restow it or to have it returned to the various ports at which it had been loaded.
The vessel sailed from Piraeus on November 10, 1940 and arrived at Port Said in convoy on November 15, 1940, where she was required to wait for government orders until December 1, 1940; she had condenser leakage en route. During this waiting period at Port Said a shipyard made some repairs to the condenser which was put under a hydrostatic test and found tight and free of leakage.
On December 1, 1940, the vessel proceeded through the Suez Canal and anchored in Great Bitter Lake where she joined a convoy. Upon leaving Great Bitter Lake on December 4, 1940 the water was observed to be muddy in the vicinity where the propeller was working.
The vessel proceeded in convoy from Great Bitter Lake through the southern end of the Suez Canal, down the Red Sea until December 11, 1940, when because of strong head winds, moderately rough seas and poor quality of coal which was on board when she commenced loading at Izmir, she was unable to maintain the convoy speed of 8 knots although the engineer increased his engine revolutions from 58 to 62, which was above normal.
On December 12, 1940, it was observed that an excessive amount of water, along with shreds of packing, was passing through the stern gland into the shaft tunnel and that the tailshaft had begun to vibrate. A few hours later, the temperature of the tunnel or line bearing began to rise and the wooden wedges under that bearing slackened. The nuts controlling the flow of water had been tightened up without result.
On December 13, 1940, so much water entered the after well through the stern gland it could not be controlled, and the Master, fearing that the vessel might sink, turned the vessel toward Aden where she arrived on December 14, 1940, and anchored in the roadstead. This was after the chief engineer had found and reported to the Master that it would be necessary to enter port for repairs to the tailshaft assembly.
Aden was a British Naval Base and all its shipyard facilities and marine supplies were under control of the British Admiralty which gave top priority to its vessels over private cargo vessels; no drydock large enough to take the vessel was available.
To draw the tailshaft for inspection while afloat, it was necessary to tip the vessel down by the head by discharging the cargo from the No. 4 hold and poop, from the No. 3 'tweendeck and about 65% of the tobacco from the after end of No. 3 hold, and to put coal on the forepeak weather deck; said cargo was discharged between December 19 and 24, 1940, into lighters and covered with tarpaulins.
When the tailshaft was drawn at Aden, it and the related parts were inspected by a Lloyd's surveyor. His findings, including the work done, were as follows:
(a) The lignum vitae staves of the stern tube were scored circumferentially over the whole surface with greater wear evidence on the staves of the top half of the lignum vitae bearing. The top half of the lignum vitae staves were badly worn and the surveyor recommended that the worn lignum vitae be renewed, which was done before completion of the repairs and reassembly of the tailshaft.
(b) There was some chipping at the fore and after ends of the lignum vitae staves, which in the opinion of Lloyd's Aden surveyor occurred from rough handling in drawing the shaft.
(c) The neck ring and gland ring bushes were worn and required repair. They were rebushed and thereafter fitted in the stuffing box and gland ring.
(d) The packing was shredded and worn and required and was replaced with new packing.
(e) The coupling bolts were all tight and in good condition and were later reused after their ends had been dressed up.
(f) All holding-down bolts and wedges of the after tunnel bearing were slack (some to a slight extent and some 3/4 of a turn) but in good condition and did not require renewal.
(g) The tailshaft liner was slightly rubbed in way of the stern tube bearing.
(h) The white metal in the after tunnel bearing was in good condition and nothing was done to it ...