China Union Lines, Ltd., Mitsubishi International Corporation, Lan Jing-Chau, Armement Deppe, S.A. v. A. O. Andersen & Co., American Cyanamid Company

GEWIN, Before BROWN Circuit Judges, KILKENNY,* District Judge. KILKENNY, Judge: District story This is the maritime another tragedy resulting life, heavy loss of personal injuries property severe damage. 7, 1961, On November about Ship 11:00 P.M. the Chinese M/V (RELIANCE), UNION RELIANCE proceeding outbound, and the Nor- wegian Ship (BERE- BEREAN M/V AN), inbound, collided Ship east side Houston Channel night (Channel). clear, visibility good, northerly wind eight approximately per hour. miles caught ships fire, fire aboard extinguished the BEREAN was within hours, a matter of while the RELIANCE ablaze, blocking remained the channel until November 10th when it was towed Hinds, Stillwell, J. Donald D. H. Hous- to and anchored in Galveston Harbor ton, Tex., Deppe, for Armement S.A. Engineers. Corps the United States and others. THE LITIGATION Newton, Greenwood, Joseph E. V. Houston, Tex., Donovan, James J. New towage, After the the United States City, York for Mitsubishi International. against filed a libel in rem the RELI- ANCE, seeking the immediate sale of Eikel, Houston, Tex., Robert E. F. Pla vessel, recovery expenses incurred tow, City, New York S. East Clarence removing the vessel from the Channel ham, Houston, Tex., for China Union safeguarding and in her an- while at Lines. chorage. Lines, China Union Ltd. Schwartz, Tex., Houston, Newton B. (China Union), owner of the RELI- Jing-Chau. for Lan ANCE, petition exoneration, filed Atty., Shepherd, Jack Asst. S. liability, U. or limitation of and obtained Houston, Tex., customary prohibiting for the States. order * Oregon, sitting by designation. Of the District Court of against pending the is- prosecution a decision on such claims of claims vessel liability. owner, except in the limitation sues of her petition, proceeding. In the China entry trial, of detailed and the After its interest Union elected surrender conclusions, findings and en- freight pending to a vessel and her interlocutory directing, decree tered ap- appointed court court trustee. The among things, that: other salvage pointed a authorized master and (1) petition of Union for China steps necessary to to undertake the him of, from, or lia- exoneration limitation extinguish holds the fire in vessel’s denied; bility be discharge bring port (2) reimbursement made remaining cargo, preparatory to sale. Registry trustee, out of funds in proceedings, the same Court, the trustee’s reasonable against court, including attorney China filed libel expenses, Union trustee fees; & Co. the BEREAN. A. Andersen O. BEREAN, (Andersen), the owner (3) payment made claim appeared, an- claimed the vessel remaining from funds the United States against swered China in cross-libel Registry the sum Court Corpo- Union. Mitsubishi International interest; $27,219.38, ration, al, (Mitsubishi), et the owners nothing (4) Union recover China and dam- underwriters of lost cargo from the of the RELIANCE as aged cargo RELIANCE, filed aboard the general average; against and her owner. libel theretofore entered en- the order Likewise, Cyanamid Company American litigation against joining prosecution of (Cyanamid), the owner of the growing out China Union claim its libel lost aboard BEREAN filed vacated; of the collision be against the RELIANCE. Consul nothing (6) China recover Union Republic (Consul General China respondent Andersen sought General), recovery in- for the BEREAN, its be dismissed libel juries to, of, and and deaths the officers Andersen, cross- with costs and that Jing-Chau) (Lan of of the members crew libelant, recover from RELIANCE against the RELIANCE both vessels. Union, cross-respondent, the dam- China Lucy widow, (Duncan), ex- Duncan ages by consequence of sustained beneficiary Captain ecutrix and sole of casualty; Duncan, pilot, channel also killed as (7) sought recovery Mitsubishi, collision, other libel- such of result cargo ants, against parcels of of owners RELIANCE and her owners. against nothing RELIANCE, recover directly Separate libels were filed of the BEREAN or owner Andersen against Cyanamid, BE- as owner of the Cyanamid, that such libel be dis- Union; cargo, by the,own- REAN China costs; missed with of the aboard ers and underwriters (8) Cyanamid RE- recover from RELIANCE, par- other various China Union LIANCE and her owner filed were ties. These libels damages consequence sustained by theory acrylonitrile carried casualty, and that cross-libel dangerous BEREAN, of was such against Cyanamid by be China Union propensity as to render nature and costs, together with dismissed parties. shipowner liable to said intervening or cross-libels libels dismissed; against company libels, complexity of This General, (9) representing wisely issues, the Consul jungle consoli- of was (judge). Chinese sea- the next of kin of the dead by Prior the trial dated injured, recov- judge di- men and those were trial, hearing, against nothing salvage Ander- er BEREAN or payment claims certain rected of dismissed; sen, of the libel be and that the remainder action on and deferred engines coupled representative the de- sirable all four could be of (10) the give power recoyer injured shaft maximum crewmen ceased either ahead or This neither her owner astern. was the RELIANCE from consuming opera- damages a difficult nor a Union, time sustained all China accomplished them, tion and could petent com- one reduction less each 15% engine personnel room contributory a matter fault. approximately minute. one She surviving Duncan, wife (11) Lucy equipped hydraulic steering sys- with a Duncan, Captain recover D. O. tem, engine room, steering located in the China her owner RELIANCE and the Union, engine Hydraulic not in the main room. damages as sustained rams, equipped great with fluid under husband. of her reason the death pressure, actuated the rams and served Deppe, owner Armement to move the rudder in the direc- desired nothing LUXEMBOURG, recover SS separate steering systems tion. Two An- her owners from the BEREAN or through were available to' force the fluid & Co. dersen system rams, while Mitsubishi, China, General the Consul one inwas use the other served as. China, Republic Armement stand-by. principal unit of the steer- Deppe, appeal from the decree. S.A. ing system large pump powered was a utilizing pump h.p. electric a 50 FINDINGS electric auxiliary motor. A number findings and conclusions The detailed pumps available, and motors were twenty-five pages occupy only a “replenishing” pump so-called Putting certain aside the record. any importance. operation In normal background and formalities material hydraulic escaped sys- fluid from the significance appeal, particular on this tem and was sump tank, collected in the judge, approximately after a trial of then lifted “replenish- means following month, one found ing” pump to replenishing an overhead discussed, facts, with others to be later which, tank from by gravity, it was fed supported by substantial evidence. system back into the for further use. pump This powered by a small elec- THE VESSELS tric Approximately motor. gallons a steel motor The RELIANCE was required of fluid system. each fill ship, in the United States built While minor expected, leaks were in nor- length approximately and de- 496 feet operation mal quantities small signed cargo. carriage dry fluid required should be quite infre- engines designed ship’s The to were quent intervals. give per approximately revolutions The Norway BEREAN was built in existing gear which, with the minute and delivered April, to her owner in give approximately 80 ratio rev- should length, She pow- was 508 feet in per How- to the shaft. olutions ever, minute ered h.p. engine. one 9000 age, poor diesel and Her reason of wear navigating bridge engines maintenance, ca- not were part is in the forward efficiency. producing pable To of afterhouse, some feet from change power cargo the direction in which space the bow. Her is divided imparted shaft, propeller it to designed the stop tanks, equipped into 42 to and engines by necessary carry cut- many liquids. to varieties of bulk change ting supply, engaged off the fuel then had She in chemical setting engines. The following cam design and restart the her trade for several months matter, and, permitted collision, for that prior construction and engines contemplated pair carrying one petroleum prod- be various kinds kept running pair liquids. ahead and the other ucts and other flammable running kept ship astern at all times while skin outer constituted the pilot wing the vessel was waters. de- When wall certain tanks. These her operating properly, were protected cofferdams the anchors tanks were got underway at protective voids. lifted and the vessel or other approximately then P.M. Her crew 9:00 PRE- CARGOES AND MOVEMENTS repair attempted starboard steer- CEDING THE CASUALTY examination, ing system. On it was Following April, purchase in her on the elec- found that brushholder interests, RELIANCE Greek operated tric motor the starboard through Greece, Medi- sailed from steering pump out of order. Florida, Tampa, thence terranean to damaged repaired chief electrician part, There, captain her to New Orleans. replace part did not knowledge of the fact crew full engine. result, As steer- starboard repairs needed extensive were ing system opera- thereafter in was not engine room, particular over- sys- Apparently steering port tion. engine department. control haul functioning properly she tem was until petitioner marine and a An officer of the surveyor started across the channel. York to New from New flew 6, 1961, On November the BÉREAN repairs. supervise these Orleans acrylonitrile loaded Good 1400 tons of underway, repairs those were While Hope, Louisiana. The officers engines opened found main were cargo placed vessel directed that repairs badly worn Since eroded. Acry- cargo most tanks. forward readily the old heads were not available gasoline lonitrile is ing burn- similar to report was A were full re-installed. explosive dis- A characteristics. made owners of the work gives tinguishing off feature is other work which was recommended fumes, highly rela- toxic fumes. engine surveyor place marine tively concentrations, ill- weak will cause Departing proper room in condition. long person exposed to a ness over proceeded New Orleans RELIANCE may single period exposure of time. A through Houston, the Panama thence cause ficiently high suf- illness or death there is a Taiwan, Canal, Japan thence to mate- concentration engine repairs were where additional symptoms poisoning rial. The engi- There, captain, made. chief her cyanide. similar those of Under Coast re- neers and others of her crew were acry- Regulations (Regulations) Guard placed and who the officers crew casualty, was, lonitrile at the time of the casualty were at aboard the time of the Regulations is, and still classified under discharged part of her took over. She cargo gaso- fluid, as a Grade C flammable as is Angeles at Los received and there line, benzine, naphtha and other such piston five of heads the number products. also The BEREAN carried repair properly main were needed to her liquids. a mixed of other bulk engines. However, heads approxi- She arrived at Galveston Bar She in Houston installed. arrived mately 9:15 P.M. 7th. on November discharged 5th, part November cargo of her pilot Lary as- Channel her and boarded 6:30 left Houston dock at navigation sumed active control by tugs, P.M. November 7th. Unassisted proceeded as she toward Hous- inbound proceeded outbound, she pilot with Channel ton. bridge. approxi- At Duncan at her mately buoy point From the 8:30 while she was sea to P.M. the vicinity Terminal, collision, beyond, passes Adams she suffered and the channel sys- through steering open the of Galveston failure the starboard waters dredged tem, Bay. The The channel was to which in use at the time. was feet, engines depth stopped, anchors were of 36 feet and a of 400 the width were brought straight relatively dropped rest. and it and to crosses the vessel ' steering Bay. practice port the It custom and Both the starboard and was the weather, systems vessels, to After a test most were disconnected. in favorable navigate system portion at port was channel had shown that the this of the except passing ahead,” unable to the “full when move wheel either direc- point buoy swing ships. to the tion and to under From sea she continued the setting. collision, Lary, Thereafter, pilot second mate that rudder did the she straighten BEREAN’S not were the her course. After her and a helmsman bridge captain, bridge. captain pilot quartermaster and deter- was Her although time, respond, major portion mined that of the would not wheel bridge engine her cabin the emer- to before notified the room he was gency. his only bridge speed shortly reduce and to He to his thereafter returned stop. The On watch third mate who moments before collision. was the captain ev- the wheel was ordered relieved at to find helmsman was ery duty engineer chief hour. It was his and advise him of hour engine proceed ship to rudder was of the failure. Her to to the bow room hour, give speed be- directed The to full astern. serve as a lookout another pilot returning RELIANCE, recognizing duty at fore to wheel. visibility danger, However, imminent ordered her first star- when weather shortly good proceeding dropped board anchor to were and the vessel was routinely, practice port thereafter anchor it was the custom ordered her dropped. point, approximately 10 to 15 min- for the to have a At this helmsman leaving P.M., ute “coffee 11:00 break” after RELIANCE sounded proceeding It the bow. three her wheel before to blasts on whistle. This was signal during the emer- Efforts this interval that whistle sounded. she gency Normally, passing steering to bridge her arose. transfer control on through being navigated by system the area from the telemotor customary BEREAN, gyro-pilot have to to failed and continued she standing swing by, in that port, completely an anchor watch to her out of con- emergency use an anchor there no occasion to trol. RE- Prior to the reaching engines Mor- to maneuver until had LIANCE’S four all gan’s Point, speed. coupled inward. some distance for maximum forward astern, power Under orders for full THE COLLISION engine room one two reversed set of navigating The RELIANCE was at engines coupled same to the ground, speed of over the 9-10 knots propeller give power. shaft astern when she Mile bend Five made This, however, did ves- not control the lights Each Point. vessel saw swinging port, sel’s head- with some other about time. BEREAN blew way headway she continued signal, one which not answered blast port until she collided with the side negotiating In RELIANCE. bow of the BEREAN. The remain- bend, navigated RELIANCE somewhat ing engines two were never reversed her starboard channel. side coupled findings, to the shaft. The other pilot of the BEREAN noted fault, fault, with reference to lack of upon commented How- maneuver. privity issues, and other we shall discuss ever, was, them, of little maneuver assignments in connection with significance did not cause the vessel error. bank, away to sheer from the starboard CREDIBILITY OF WITNESSES nor did it result in steering. control loss making the turn noted that several pilot RELIANCE ordered her rudder principal petitioner witnesses for degrees port. re- five sponded rudder impeached sub- connection with jects great to the movement wheel importance. pointed He port. turn report the vessel withholding important started to of an highly important point, At report the steer- petitioner, re- failed; ing gear of the RELIANCE approval captain. ceived the of the degree report inconsistent, with the frozen a five entirely rudder in in a was port position. quartermaster was respects, important number of the 1304(2) theory virtue of U.S.C. the RELIANCE. § advanced impeachment, (b), on 182. pointed and 46 U.S.C. § He also testimony, en- chief important I ASSIGNMENT gineers the RE- chief electrician appellants assignment, I. On this LIANCE. charge two violated OF ERROR ASSIGNMENTS stop, failing to of the Inland Rules1 discussion, signals proceed Putting proper cau- aside, later blow recognized, against Cyanamid claim or should tion after she first claims States, recognized, a risk summarize the that there was we have ensuing assignments error in the collision. fashion: BERE that the It is contended judge exonerat- I. That the erred in (1) I, blew when she Rule AN violated ing BEREAN, the record because port-to- signal, proposing a a one blast prop- stop, failed to blow shows that she port passing when those a time at signals proceed er with caution feasibility charge were in doubt as recognized a she first there was passing, a turned of such of collision. risk receiving a degrees or three before two judge That exonerat- signal. II. erred in III reply Rule to her one blast ing BEREAN, when the record say appellants, violated, when was proceed signal danger shows she failed to blow a BEREAN failed speed meeting up moderate a ves- engines immediately rate of and reverse her pass. that she sel was to seeing position in a the RELIANCE might her to sheer across force judge III. That erred in exon- Practically appellants' all channel. arguments erating BEREAN, record when the assignment are based on this keep shows that she failed to a lookout RELIANCE, assumption an proper on the or a lookout on bow and that did sheer off its bank starboard bridge. observed, such fact or should judge That exon- IV. erred in observed, by Lary of the Pilot erating BEREAN, record when the judge and observed BEREAN. The saw anchor shows that she failed have an Lary’s and chose witnesses believe drop watch and anchors. failed her the reasons version what occurred and n action, action, at the for his or lack judge That erred in exonerat- V. Lary position ing time. observed the BEREAN, While the record dis- when were unseaworthy the RELIANCE when vessels and at closed she was apart, approximately one mile he had poisonous, transporting fault for ex- feeling imminent that a collision plosive for- flammable in her RE wing until he heard whistles tank, ward ship. next the skin LIANCE and sound of the anchor recognized letting, at which time he denying judge VI. That erred in emergency gave speed full astern petitioner liability limitation of under engines hard on right BEREAN’S 183(a), U.S.C. all made claims § aground put rudder to against it. mud bank at his starboard side holding issues, VII. erred That the channel. On these petitioner liable and RELIANCE found that each vessel the other saw damage by making for loss and RE- fire to the when the RELIANCE was origi- Point, cargo, LIANCE time because the fire bend at Mile at which Five they approximately from nated the other vessel and because miles three carrier, petitioner, exempt apart. The BEREAN one blew a blast Lading liability signal under Bills answered Rule I. § 33 U.S.C. Rule III. § U.S.C.

779 negotiating we, judge, interpret both the turn and the must RELIANCE. navigated viewpoint pru- somewhat record from RELIANCE pilot This dent under the side of the channel. circumstances then the starboard up- existing. Lary’s and there noted and commented conduct must maneuver was judged by Lary, it of little he considered reference the circum- on by did not consequence. maneuver stances at the time not The cool away possible danger might sheer cause the RELIANCE to estimate of bank, not did cause be formed after the event. the starboard steering and did loss of control vessels, is conceded It in casualty. sight- precipitate Prior to channel, required pass port- this to-port are ing RELIANCE, approximately three meeting ap must vessels —that away, had navi- been miles gating proach by turning pass each other and making ahead” thir- at “full degrees. two starboard or three This observing knots. On teen to fourteen recognized judicially is in line with a bend, coming the RELIANCE out of Royal Navy custom in channel. speed reduced to the BEREAN’S Italy J., Standard Oil N. 27 Co. shortly one-half to “slow thereafter F.2d 331 Cir. The cases ahead.” It was at time this by assignment, appellants, cited on this signal by given BEREAN. one blast simply support position. do their signal was not an- While the one blast example, For in The decision Sand- fully swered, Lary expected to make a master, (2d 1939),2 105 F.2d 1009 Cir. port-to-port passing. He normal was dealt with a situation the Inland where watching apprehensive somewhat after special Rules and a were confused statute swing port RELIANCE pilot; this confusion led to a col slightly turned the BEREAN to star- involving judge lision three The vessels. negotiate board, expecting still there held that the channel rules narrow passing. Lary’s port-to-port order apply did not River, East a section of the speed full gines on en- astern the BEREAN’S Brooklyn Bridge, near but that put and a hard rudder were navigation governed section was in immediate effect. At this time the Obviously, the East River Statute. approximately vessels were one-fourth that decision is of no assistance. On the closing apart a mile each other. hand, the lower case which found that the BEREAN took Victory-Ply rely, court and BEREAN every avoid the reasonable means to col- mothian, 168 U.S. 18 S.Ct. pilot lision became aware sig (1897), compelling L.Ed. 519 is of danger the BEREAN was nificance. case are al The facts in that failing not at fault to undertake most rec identical the facts passing. starboard-to-starboard lengthy ord. A of that discussion de judge found that no reason to had she unnecessary. enough cision is It is anticipate might such a maneuver say that full the decision is in and com long until called for after the time plete support findings and conclu elapsed passing which such a sions of issue. Other might accomplished safety. have by appellants, cases cited Rich such as findings fully supported These Barnes, (2d ard J. Cir. F.2d and, particular, record the testi- 1940); Company Bull A. H. v. Unit S. S. mony Lary of the Pilot and the Mate 1929); States, (2d ed F.2d 614 Cir. Haugen. piercing searchlight of Melrose-Sandcraft, (2d 237 F.2d 884 hindsight, skillfully employed so 1957), sig others, crossed involved may appellants, point to other counsel change nals or a course one might been taken point maneuvers vessels. Those cases more are no However, Sandmaster, successfully by supra. BEREAN. than We conclude reported cisión 2. District nom Construction For statements see sub factual Aggregates Long opinion, F.Supp. This de Co. v. Court Island R. Co. findings proper of the not For that judge, and conclusions in the Channel. issue, supported matter, appellant practically on this Mitsubishi speed evidence. a substantial concedes below Mor- gan’s negligent Point act. be a II ASSIGNMENT event, district court has appellants resolved issue charge BEREAN Appellants and, view, our such resolution is failing proceed moderate at a clearly prudent speed, A un- erroneous. meeting speed RELI rate of circumstances, der the was an issue of C.F.R., ANCE, 207.- of 33 in violation § judge, Socony-Vacuum fact for the Oil 180(e) (ii).3 Appellants theorize Smith, (5th Co. v. F.2d 179 672 Cir. traveling kept at full BEREAN 1950). long subsequent speed to the time ahead Appellants’ fit do not our citations when, seeing RELIANCE Paine, instance, For A. facts. take Wm. position it was from which the bend (6th 1930), 39 F.2d 586 Cir. cited sheer, likely reduced should have she support China Union contention of its engines. speed her her and reversed statutory guilty that BEREAN findings judge’s direct con are in proceeding fault at 14 knots. 13 to appellants’ flict He assertions. interpretation The Paine involved an found that the BEREAN observed the regulations governing speed certain RELIANCE was in turn as she through Bay of vessels Maumee Channel away. miles channel about three regulation in the Great Lakes area. The thereto, BEREAN had been Prior prescribed speed per 10 of miles hour. navigating approxi ahead, at full regulation Here, our makes no mention observing mately 14 13 to knots. On speed. of a maximum no statu- There is bend, coming out RELIANCE tory speed applica- limit in the channel speed to “one- BEREAN’S was reduced ble to At the area of the collision. shortly half” and thereafter “slow Koel, time of the 65 collision Ditmar gave time the BEREAN ahead.” At this (5th 1933), F.2d 555 regulations governing the rules and Cir. signal, was not one blast which the use True the RELIANCE. answered provided speed channel for a maximum enough, pilot and watch officer per There, judge of 8 miles hour. the BEREAN the RELIANCE observed speed held that a of 9 knots was exces- her somewhat close to starboard bank finding. upheld sive and this circuit swing of the channel watched her statutory speed per 8of miles hour they port, at some which time became repealed by adoption apprehensive. BEREAN, what present Additionally, rules. the channel slightly time, turned to starboard. enlarged depth has been in width However, it BEREAN was not until since the Ditmar Koel decision. signal heard the three blast from the RE LIANCE, and heard the of the sound say Since we cannot letting go, pilot anchor findings judge clearly er emergency. recognized He an roneous, governed by we are them. At return, forthwith immediately three blasts in blew Lorentzen, kins v. 328 F.2d Cir. speed full astern on ordered George Jones, The decision in H. engines gave her a BEREAN’S (2d 1928), 27 nullify F.2d does not intending put rudder, hard judge’s the force or effect aground. Compliance with these orders findings against appellants on this issue. was immediate. The vessels were then III ASSIGNMENT nothing closing on There is each other. Appellants say in the record on could that the BERE speed keep proper find AN failed to of 13 to 14 knots was lookout proaeliing speed suffi- another vessel 3. "A vessel shall reduce its motion tied * * ciently prevent up, any damage ap- *.” when bow, an anchor bridge, the windlass to from the serve as well By failing, reason of the nature watch. Article in- violated so area, Rules, custo 221.4On in that was not U.S.C. channel mary Inland issue, § standing anchor watch the BEREAN found that normally by, failing occa because there was no have a lookout fault in was at sion to use an to maneuver until head 11:00 P.M. anchor on forecastle the Morgan’s reaching so Point. find After Other of the collision. until time the ings go finding, on the judge that into considerable detail to hold the went on cause, judge issue of lookout.5 The found that and did could this failure not. nothing to, a lookout “could have the colli caused contributed done have or Lary by pilot judge more” than was done the found that Pilot sion. away BEREAN under the circumstances RELIANCE same saw the several miles lights constantly conditions. there and and observed her after, by that, reason of his familiar Appellants’ again proctors, bril- recognized ity channel, the he the with light hindsight, have liant carefully of considered moment, danger possible at the earliest the lead- reconstructed events existing then circumstances. under the ing up argue to the collision and given only by He the heard the whistle Lary hap- Pilot could not seen what RELIANCE and took immediate action. pened and of a look- that the absence bow During Lary, period, sec Pilot the fact, was, out It funda- causative. is ond mate and helmsman were a judge did to mental that accept not have bridge. captain BEREAN’S Her was theory adopted by counsel, a bridge majority He a the time. testimony positive of Pilot shortly gone had to cabin his before Lary, tug Haugen the watch officer emergency bridge returned argued captain It Starkweather. only moments collision. It before the the location of the an- RELIANCE’S duty proceed was the helmsman’s to chors, following collision, demon- ship bow serve as a lookout extremely close strates that she moved being for one hour after relieved at port to her bank at the time her star- duty. returning wheel -before dropped board anchor was and that she However, general practice a was followed then moved back center of toward the BEREAN, permitted on the which port the channel before anchor was helmsman a to10 15 minute coffee break argument dropped. This shows re- leaving pro after ceeding the wheel and before appellants’ proctors, sourcefulness bow, weather visi prove it does not that a lookout bow bility permitted pro and the vessel was would have aid to the BEREAN. ceeding routinely. during It was this Obviously, had more faith in emergency Both interval that the arose. course, the channel as shown RE- ready anchors of the BEREAN were bow instruments, post LIANCE’S than in standing go, casualty theories, by proctors. had one to let but she advanced “Nothing Recognizing clanger, “21. these rules shall exonerate the imminent vessel, any pilot master or the owner or or or- UNION RELIANCE thereof, consequences dropped, crew any from the dered first her anchor starboard neglect carry light signals, shortly port or or thereafter her anchor lookout, any neglect dropped. keep proper point (approximately At neglect precaution p. m), or of the 11:11 UNION RELIANCE sound- ordinary practice may required by three ed blasts her whistle. was This seamen, special signal circum- whistle sounded UN- stances the case.” ION RELIANCE.” p. night every “37. on the I 5. “16. At m. find that BEREAN took 11:00 7, 1961, in this area the visi- reasonable means to November bility avoid collision clear, good, night pilot after her danger.” became aware of slight running, flood the wind tide northerly approximately per 8 miles hour.” doubtedly, would not Furthermore, judge could well have Fourth Circuit holding position testimony in that have reversed. The basic believed general tug’s lookout found case was starboard anchor was in which the posi- inadequate special lookout and that this was did not indicate that said can be The most that anchor at the time needed.6 tion of the Again,' dropped. failure to maintain we observe of Maluco is that first statutory equivalent opportunity to see lookout is not the fault, strong give in- satisfied rise to a We are but does the witnesses. observe analysis His of the evidence. fluence that such failure contributed his with finding imposes to have a look- on the vessel the failure incident and heavy show, cause con- and could not out did not cause burden clear supported to, vincing evidence, con- it did not so contribute the collision findings Here, judge’s evidence. tribute. substantial permissible conclusions were within the (19 Pennsylvania, Wall. The 86 U.S. limits of that feel that the decision. We 125, (1873)), other 22 L.Ed. 148 of the in United decision same circuit compel appellants, cases not cited do Soya Atlantic, F.2d 330 States v. 732 SS Appellants a different would result. (4th 898, (1964 1964) A.M.C. af- Cir. give every rule, have us to a birth firming 7, F.Supp. 1964), rendered a 213 guilty statutory vessel of a fault has Maluco, applica- days few is more establishing burden fault There, ble to case before us. by any imagina not, could stretch of the court ings find- held that the district court tion, relation to have a causal binding clearly unless errone- collision, speculative, no matter how im lookout, ous and that having a absence probable Pennsylvania or remote. The duties, no other is not a basis for go does far not and this court so finding bridge actually a of fault if the Compania stated in Queenston De Maderas v. The observes a have what lookout should seen. (5th Heights, 220 120 F.2d appellants urges One of no one 1955), 824, Cir. cert. 76 denied 350 U.S. serving aboard the BEREAN was as (1955). 52, Appel Ct.S. 100 L.Ed. 736 solely capacity lookout in such and with- Zigler lants’ reliance on G. B. Co.v. Bark out other him. Circle duties distract Barge Line, (5th er F.2d 167 676 Cir. Sightseeing Yachts, City Line Inc. v. 1948), Bacon, and Smith 194 F.2d 203 v. York, supra, New is cited. The distin- (5th 1952), place Cir. them on tenuous guishing feature of Circle Line is that grounds. Zigler The decisions in finding court lower to make failed placed Bacon been molded and lookout, on whether the with no other du- proper perspective by later decisions ties, bridge could have seen earlier Forest, & Parker Bros. v. De 221 F. Co. or, and either avoided accident at (5th 1955), 2d 377 Cir. and Atkins v. least, severity. Here, diminished its go Lorentzen, supra. appellants Nor can previously mentioned, trial court outside the circuit find comfort in found, as a fact that the of a absence authorities such as Esso Oil Standard bow lookout not did not cause the Tug Maluco, Co. v. Oil Screw The 332 collision, not but could have caused (4th 1964), F.2d 211 Line Cir. or Circle contributed it. Sightseeing City Yachts, Inc. v. of New (2d analysis A York, 283 F.2d 811 Cir. discussion and pilot, by appellants, Maluco the to our contrast situa cases cited The tion, lights Oregon, 186, 804, could not see the 158 15 ma U.S. 39 S.Ct. approaching (1895); If, Taussig, neuvers L.Ed. 943 vessel. The Felix Maluco, 5 1925), had found that F.2d 612 Cir. cert. denied pilot everything saw which 269 vessel U.S. L.Ed. 412 S.Ct. pilot seen, (1925); Poling a bow lookout could have un- Russell Inc. United v. general special needed, if a “But lookout lookout in order to her bur- meet tug plead adequacy must of her den.” 332 F.2d 214. (2d 1952), obey States, the order. Before he reached the 196 F.2d 939 aground Corp. go bow felt BEREAN and River Terminals he (E.D.La.1954), bearing States, F.Supp. and observed the RELIANCE enlightenment nothing port add to the down on the bow of his vessel validity profession presented nor to the manner which inevitable try reason, For that he our conclusions. collision. did drop ran anchor. proper question lookout aground on her side of the starboard from all to be determined one fact channel, immediately either or at before on the basis the circumstances impact. time, the time of At such being prudence, fixed common there little, headway. any, she had if Like- requirement maintain a vessel wise, the RELIANCE had lost most cir lookout” under the facts and “bow speed argu- Appellants’ time. this finding presented. cumstances here if ment that watch, the BEREAN had an anchor of ly trial issue clear dropped he could have forthwith The evi within the realm of reason. stopped the anchor and thus the BERE- beyond dence established doubt that the directly collision, AN and avoided nothing absence bow lookout had findings opposed judge. whatsoever to do with the collision. little, any, sup- There is evidence to port argument. matter, For that IV ASSIGNMENT great weight evidence substantive appellants The claim that the drop- is such a contention. The judge exonerating erred in BERE the ping of an anchor when a mak- vessel is AN, record she when the shows that ing would, record, 9 8 or on knots the to failed have and failed an anchor watch good seamanship. violate Most of the drop her anchors. experts drop- the view the ping supports judge’s record find- of an The anchor or anchors from a ing proceeding more, that the BEREAN was not at fault vessel to five knots or failing prior stopping slowing in with an anchor a watch view of or even collision, vessel, highly dangerous to or at the time of the failing or in would be drop probably her and starboard anchor as futile. a maneuver Such pilot. ordered her The evidence is would burn the brake bands and at a speed clear that it of 8 to the custom 10 knots would result ships breaking to maintain an anchor watch anchor No chain. witness portion dropped question, channel in testified he ever an anchor particularly expert under testimony when the had suf- such vessel circumstances. The power, had, subject ficient as the BEREAN was not convincing, readily Furthermore, maneuver. but in line what with judge good found would that even if anchor of seem to common sense. dropped the BEREAN had been when Typical by appel of the eases cited ordered, pilot procedure Virginia, (2d lants are The F.2d 623 slowing little, any, have had effect on 1928); Corp. Cir. River Terminals prevented vessel would not have States, supra, and the Mariblanca words, collision. other Navegacion, Co., A. v. Panama S. Canal quickest took the and most certain meth- F.Supp. (D.C.C.Z.1956), aff’d running losing headway by od of aground. ap F.2d 729 shows, As record and the The judge plied found, cause, that when facts of this the BEREAN’S those recognized pilot give emergency nothing or- cases us substance. engines dered the a hard Mariblanca full astern involved a defective steer ing gear rudder, drop he ordered the failure to likewise anchors gov dropped. starboard anchor Panama The star- Canal. That area bridge specific statutory board erned require officer who pilot immediately with the ment that anchors be in state started of readi- Congress judge early letting go.7 There, As as 1871 the ness legislation danger took an interest in was caused that the accident held steering articles or substances commerce.8 mechan- ous failure of the vessel’s legislation person- The in effect at the time of the vessel’s ism and failure casualty9 empowered directed promptly orders nel to execute Guard, engines respect and the commander of Coast pilot to the provisions analysis, effective order against secure final this case anchors. In the life, health, limb merely proposition hazards stands for property explosives oth appellate or created or not set aside an finding court will to, dangerous substances, “clearly er articles or er- unless by regulation, define, describe, Virginia name “com- roneous.” involved a dangerous classify explosives all edy errors.” third officer go establish anchor, articles or and to but substances sent to let forward necessary might regulations wrong dropped re- anchor. This provisions of the quired to make effective third officer to run forward respect descriptive section drop to the forecastle head anchor. legislation did, name, pro dropped etc.10 The further he This the starboard stowage transportation, thereby pull- port vided instead anchor ing or use of di- such articles substances the vessel so that she sheered regula rectly ship should be accordance with the she toward with which regula statutes, appellate court, tions. These collided. on this issue, promulgated thereunder,11 merely it finding make tions affirmed the judge. Following duty placed clear that the on the Coast pattern the same examine, analyze properly Corp., is the decision supra. Guard in River Terminals cargoes classify There, here all such as the one found might type dropping question. It did so examine this anchors have avoided drop it C and classified as Grade collision—that the failure to being pre contributing liquid, placed, them was at flammable least factor viously casualty. mentioned, in the classifi same gasoline, benzine, naphtha and cation as A discussion of other cases cited other such It not clas substances.12 was appellants only lengthen opin- poison “extremely sified as a gerous” dan either which, ion said, with much left is to be dangerous,” or “less or already beyond the Pale. having has lethal It characteristics. said, rightfully so, been that these ASSIGNMENT V regulations promulgated statutes Union, Jing-Chau, China and Lan et thereunder amount to much more than charge al that the BEREAN was unsea- prohibitions punitive a of set sanc worthy by cargo dangerous of reason They care. tions. establish a standard of being tank, placed wing Inc., Lines, in a forward Marshall v. Isthmian ship. F.2d 131 next of This as- skin signment to, is but must be dis- related The found that the BEREAN assignment tinguished from, these of carrying acrylonitrile was not at fault in Cyanamid appellants fault wing ship in her had forward tank. The failing the BEREAN warn engaged chemical trade cargo. Later, qualities we following lethal her several months construc- charge tion, prior of China treat carried shall of that to the collision standing questions. petroleum products various kinds of raise these Union’s 11. 46 C.F.R. 146.01. 7. 4.41. 35 C.F.R. 12. 45 C.F.R. 146.21-100.

8. 16 Stat. 440. 146.25-5; 170a, 170b. 46 C.F.R. 146.25-10. 9. 46 U.S.C. §§ (a). 170(7) § 10. 46 U.S.C. Regulation suggested by liquids parently in her forward other flammable stowage shell, skin, covering

wing or The or tanks. “flammable having ship liquids outer wall of certain constitutes the combustible charac- lethal wing protective appellants cof- tanks. No her teristics.” concede that The Regulations, these tanks. ferdams or voids surrounded time of effect at the Regulations casualty, tanks pertinent classify those Under did not chemical carry may or liquid used to “flammable not be as a flammable combustible hav- having liquids ing char- lethal combustible lethal characteristics. 14 Acrylonitrile is acteristics.” similar distinguish Regulations properly gasoline burning explosive in its highly which flam- between chemical is toxic, addition, it characteristics. highly mable and a chemical which gives poisonous These off fumes. having or one toxic lethal characteristics. exposed persons fumes cause illness to course, may Of both flam- chemical relatively thereto in weak concentrations and, sufficiently toxic, mable and toxic if may prolonged period over a of time and placed should be in a different classifi- single cause illness or from a ex- death cation than one which is flammable. sufficiently high posure in a concen- if kept To be in mind is the fact that Symptoms poison are tration. of this Lading Bill of issued Andersen to cyanide. similar to those of Cyanamid, specifically car- described the Appellants claim that the Coast Guard go Regula- acrylonitrile, and that classifying acryloni- error classify tions did not chemical as an poison- trile in the same classification as explosive, poison. A, C as a Class B or having gases, or lethal ous with those During negotiations the course characteristics, as to different leading up Bill issuance of regulations apply. It is said that such manager Lading, Cyanamid export for- should not be carried representatives furnished Andersen tanks, ward void or that a cofferdam or “Handling-Stor- pamphlet entitled, space provided should have been between age-Analysis Acrylonitrile.” ship. rule the tank and the A skin physical properties in- chemical type should not be material cluding explosive limits, fact that carried in forward ves- tanks flammable it was toxic and that it was destroy probably sel would a substantial pamphlet. This is are set forth in the segment carrying capacity of most However, it is conceded Andersen. fact, fact, tankers. be a that “a argued owner, ship, large majority of collisions are on the rely on the classifications of of bows vessels” mean does not that pursuant Coast Guard made part forward of a vessel should not be regulations, a stow- statutes and that purpose transporting used of age cargo in accordance with such liquids acrylonitrile. such as cus- No regulations, and her insulates the vessel usage tom support or is advanced to this against charge owner a of unseaworthi- argument. Regulations No were vio- negligence with ness connection cargo placing lated in the forward Although language stowage. matter, regulations tanks. For that Lines, Inc., used Marshall v. Isthmian 15 procedure of the Coast Guard invited the speaking supra, 134, p. 334 135 F.2d which was Regulations, employed followed BEREAN in in con- stowage distinguishable cargo. charge factually of this nection with a The cargo background, think rule there should been stowed have we applied cofferdam, ap- sound, tanks is with a stated and should be void, punitive 14. estab- 46 C.F.R. Part tions with sanctions. It 39. of care to which all lishes standard bound, including 134, 15. those who 334 F.2d concerned are not, statutory do, do to com- “The whole scheme some- and those who wish is thing prohibi- ply.” much more than a set of 786 cargo charge in a which of flammable manner BEREAN and An- stowing approved methods of of the same violated dersen. Another statement legal safety duty naphthalene as principle has delineated in the that official is regulations pre- legally performed. so Coast law Guard

been The Government, presented Board of Public Instr. Bre- the Dutch sumes. Osburn, County v. 101 F.2d 919 the facts in Petition of Skibs vard A/S 1957), (2d (5th 1939); Jolund, Bank & 250 F.2d Cir. Continental 777 Cir. (5th Brandon, appeal 269 F.2d 928 reaffirmed on Trust Co. 297 F.2d second 68, 933, 1962); 78 S.Ct. v. Chemical denied 356 U.S. Cir. States cert. United 14-15, 772, (1958). Foundation, Inc., 1, That case 47 2 L.Ed.2d 272 U.S. 763 interesting (1926). dissertation S.Ct. 71 L.Ed. 131 offers signifi type liability, here do We not believe of In Re cance. The can said same inquire required to and Andersen were Litigation, City 197 F.2d Texas Disaster validity into of the classification Dalehite, 1952) (5th al. 771 Cir. et by the Coast Guard the chemical made States, 73 v. 956, 346 S.Ct. U.S. experts. ship applied and her As (1953). deci L.Ed. 1427 Such nothing Cyana owner, there was remotely support appellants’ sions do require pamphlet mid dif may not store that a tanker contention ferent result. cargo tanks. in her bow flammable Again, point, we are judge Again, we have an issue which faced distinguishable. that are with of authorities line against appellants. The evi resolved for instance Take finding. supports dence his Co., Petition of Oskar Tiedemann VI ASSIGNMENT (3d ques 289 F.2d 237 Cir. judge Appellants tion whether the Consul before Mitsubishi and Gen- Union, part company owners of could limita eral a tanker claim with China liability they judge tion her to allowed the latter’s contention that emptied denying sail tanks erred in bility it a limitation lia- petroleum, cargo 183(a). but contained under U.S.C. § found fumes. The court flammable analysis Our record con dangerous fumes than the liquid more were vinces us that was correct did not and that the vessel denying China Union limitation and gas-freeing proper apparatus negligence holding that its own was, therefore, unseaworthy. Again, knowledge privity and contributed to findings of this judge ease where RELIANCE unseaworthiness upheld. In C. Dick Tow J. were and the collision as follows: ing (S.D. Leo, F.Supp. Co. v. gear (a) steering her unsea- 1951), F.2d Tex. aff’d 202 ; worthy gasoline explosive 1953), or some other (b) engines her main were unsea- liquid into the had been allowed leak ; worthy barge. of a section was end section This cargo. held intended for engineer (c) captain and chief charge vessel those not were to the effect that instructed negligent properly inspecting the in not might engines all four of main her allowing tow in the rake tank to be and astern; coupled and in that it a menace such a condition was (d) telephone her communication course, no is and there a hazard. Of system bridge, engine between finding That the existence before us. steering engine room and room was gasoline explosive fumes, in or of other unseaworthy. designed ship for that an of a area unseaworthy already dealt, length, We have purpose, condi an creates prob judge’s findings tion, fault of the No such no doubt. we have stowage findings negligent RELIANCE. Those are but- lem us. The confronts by adequate permit thorough inspection To tressed an record. here would not findings steering gear repeat repeti- ship of would be while the those Many spare in parts, in tive Taiwan. extreme. normally would be carried on a vessel of knowledge Privity and are type, missing and, particu were deemed to the owner had exist where lar, parts in essential with the connection knowledge or, as otherwise the means of steering apparatus missing. This, stated, knowledge where would have been evidence, fully supports and other inspection. obtained from reasonable judge’s finding16 privity of and knowl Knowledge privity supervisory of edge gear steering of a defective charge personnel shore sufficient part Likewise, judge’s owner. corporation. holding findings unseaworthy vessel was knowledge privity there was and on the respects privity other with the part denying Union limi China and in knowledge fully of China Union tation well standards within supported by City evidence. Towing applied in Avera v. Florida Camden, (3d 1923), 292 F. 93 Cir. cited Corp., (5th 322 F.2d 155 Cir. Union, China lends neither substance showing the un Instead support nor to its On contention. steering gear seaworthiness hand, principles in that stated privity RELIANCE was without findings are in full case accord knowledge Union, China its witnesses proof here under attack. The burden provided damaging testimony clearly privity as to the absence knowl showing all, contrary. edge First Coryell was on China Union. Nationals, by Greek whom the vessel was Phipps, 406, 409, 291, 317 U.S. 63 S.Ct. Union, permit sold to China would 363, 87 L.Ed. States S. S. Co. v. United thorough inspection of the vessel States, 1958), 259 F.2d representative. On the limited in 933, 316, cert. denied 358 U.S. 79 S.Ct. spection made, many he he found condi (1959), rehearing 3 L.Ed.2d 305 denied engine tions room which were sub 359 U.S. 79 S.Ct. 3 L.Ed.2d survey standard. On his the RE (1959); Admiralty, Law LIANCE, found Black, he the door the steer Gilmore & 705.17 ing engine room locked. On arrival of question We do not soundness of Orleans, vessel New first chief cited authorities China Union on engineer company recommended to the assignment. Yet, attempt by auxiliary engineering equipment that all apply the doctrines stated those opened, inspected overhauled. background eases our factual is en- Nothing done on this recommenda tirely unsuccessful. claim that Her Union, evidently tion. China in an effort the channel RELIANCE’S sheer across expenses, to save did in not make such navigating spections, caused too close breakdown or overhaul. The testimony quite to her clear China starboard bank is Union foreclosed inadequate maintenance; wear, 16. “The owners UNION RELIANCE negligent failing were at fault the almost constant difficulties en- engine, complete inspec- pru- have had careful countered with the main steering system anticipated prior tion of her dent owner would dif- inspection steering system, collision. Such no doubt ficulties steps protect against would have disclosed the use have taken their of the wooden blocks, leakage (F. 31, 5133-5134.) excessive and loss of malfunction.” R. large quantities (another of telemotor oil shipown- 17. “It reasonable that seems possible casualty), per- cause of the er, Act, who invokes the Limitation haps other difficulties. view proving should bear burden of knowledge which the owners even be- knowledge: privity or absence of as accepting delivery fore RE- of UNION moving that branch of the the case he is engine LIANCE her main that room was party peculiarly and the facts are with- deplorable age, knowledge.” in a state from excessive his carriage would re- finding was in a contract judge’s sheer that the ship gear. from lia- steering or unseaworthy lieve carrier by caused bility damage, in con- findings for loss or to or that district court’s The arising goods, from engines with the un- nection were main RELIANCE’S seaworthy obligations duty or fault failure captain and chief and that her by imposed engineer properly the Act. 46 U.S.C. § instructed were not (8). places 1304(1) on the along Section prevent those a successful assault proving due dili- carrier gence burden there is China Union states that lines. damage loss results support or when the no evidence whatsoever provisions finding from unseaworthiness. judge’s These RELIANCE’S finding by system the part of unsea- telephone between communication RELI- worthiness on the ANCE, of the bridge, engine and the room petitioner beyond places steering unseaworthy. This room protective provisions The clearly wrong. of the Act. record The statement particular the actual fire “caused contains uncontradicted evidence privity fault with CG emergency the carrier.” RE- on the when the arose escape no SA offers China Union. LIANCE, to be and communications had they bridge Even if issues doubtful were and the en- made between cargo. gine bridge should be resolved of the room, favor between the Southwark, steering engine room, 24 S.Ct. U.S. this was ac- (1903); messengers 48 L.Ed. 65 Maritime complished sending Artemus run- Co., Sugar Inc. v. & Mo- ning Southwestern ship, about the than at- rather Co., Inc., lasses tempting powered F.2d to use sound strong Certainly, phones. creates a this presumption phones out CLAIM AGAINST CYANAMID of order. This and the infer- evidence China Union and the Consul General therefrom, clearly ences to be drawn complain action of the support judge’s finding dismissing against Cyanamid. the libel condition contributed to collision subject Aside under discussed phone there no direct means Assignment V, appellants pose two important communication these between assignments against Cyana- additional Obviously, stations vessel. (1) procedure dismissal, mid: on the steering prompt telephone en- call to the (2) Cyanamid and edge, had actual knowl- gine might astern, speed room for full or the exercise of reasonable well have averted the collision. diligence known, should have of the dan- assign- no There is substance to gerous, poisonous and lethal character- ment. acrylonitrile, istics of of which the Coast knowledge. Guard and BEREAN ASSIGNMENT VII outset, grave At the we must stress the assignment, appellant On this China doubts we entertain on whether China theory liability disclaims Union on the standing press Union has signments. as- these originated fire from the other damage to RELIANCE it, carrier, pro- vessel and that as by fire, and its was caused Lading under its and the tected Bill of poisonous qualities toxic Fire Statute. gasoline chemical. Since products explosive provisions flammable of CGSA18 re acrylonitrile diligence: such other quired since China Union to exercise may products legally (b) seaworthy; in for- (a) ship carried make tanks, ship, ward next to man, supply skin of properly equip relationship it would seem that no nulli causal ship. Act Subsection agreement toxicity clause, between the of that chem- exists fies covenant seq. et § 18. 46 U.S.C. 1300 damage dismissal, verdict, ical and to China Union’s or the fire for a directed as cargo. argued by sig- property, appellants, or its one is of no nificance. (1) point one of first procedure, dismissal, On for than substance. the motion rather the during proctor Cyanamid argued shows that the for record course that the trial, judge parties conclusively if asked all evidence the the almost demon- evidence, damages, except all as to had strated that the crew Chinese men died against Cyanamid. injured presented raging or After were as a result of the parties fire, respective indi for on counsel the the and on the RELI- water they cated that additional evi ANCE. Proctor dead and in- for the company, jured against seamen, hand, argued dence to that on offer the .proctor from, its Forty pages a dismissal.19 that the moved men died in- were jured by, poisonous devoted of the record are the toxic and effects arguments transcription Cyanamid pointed a proctors of the the chemical. young No claim was the this motion. evidence of a lieutenant of made that additional evidence there was Coast Guard who testified that he subject. For mat offer on the that and his men at the hatch worked ter, precise cargo ap particular loaded, raised on this where issues peal argued fully judge. fought At and from were fire with no there arguments, the conclusion of mo ill effects. A number the members tion was taken under advisement and crew the testified following they fought was not morn decided until the went forward ing, judge at which time the found in fire with no ill effects. The master Cyanamid.20 Obviously, tug favor of boat said that he was there judge findings fighting made on the issues then of the crew fire. Members findings, before him. formal of fighting on the RELIANCE were foredeck passing photo- he made it clear Most fire. liability.21 graphs decedents, exception, We must issue of the with one findings view this record disclose faces and bodies that were “bad- ly presented. major exception on the issues then charred.” The one findings, clearly erroneous, picture Those unless was the of a Chinese second though informal, binding mate, even evidently us. who died cabin Myles Quinn Fisheries, burned, Menhaden deck washroom. was not nor He anything F.2d 146 The fact that was there else observed which findings pointed made on a motion for of his death. The to the cause please, 19. loaded, Honor “Mr. Waesclie: If Your EAN was to which tanks cargo carried, forth, in that event like to I con- we would move and so against dismiss action American sider that to be a fault the vessel Cyanamid, grounds Andersen, shipper.” on the the libel- not of 3454.) (R. ants have establish a cause of failed to against (R. 3413.) action them.” “ * * * petitioner’s 21. At the close of Cy- case, parties of American all “As the motion the Court afforded Company judgment opportunity anamid con- to introduce evidence case, petitioner’s liability bearing clusion of the I think on the issue grant- Cyanamid Company; the motion is well taken and will American shipper ed. As the manufacturer toas advised all counsel dangerous against Cyanamid inherently commodity, of an claim American impose solely produced I understand the law on them rested on the evidence duty by petitioner. to warn advise others who The Court was of the may petitioner come contact with of its dan- view that had failed to show gerous propensities. Cy- against I think the evidence a cause of American action clearly done, RELIANCE, shows here that that was anamid on behalf of UNION fully others, interests, the carrier advised of the and dis- dangerous cargo, characteristics missed re- libels question, deciding spondent.” (R. (Emphasis supplied.) and without way 5118.) there be fault the BER- 790 personal and in evidence, found that the deaths photograph and the testi- juries fire.22 this caused While shows, pilot was were mony Duncan the that finding specific the recognition. not made beyond was burned ruling Cyanamid’s motion for time position, proctor support of his In dismissal, no was additional evidence decedents, injured atten- called the subject. produced that mat For the body of the second tion to the unburned ter, Cyanamid the as final dismissal -to washroom, that found mate was interlocutory part is a cree, of the main de oiler-wiper body was who of the the prose appeal is from which this main deck who found above the course, dismissal, cuted. This seriously,” the and to

not “burned too testimony findings entry entered the that director of the funeral Cyanamid Therefore, and conclusions. re- he which were examined five bodies find entitled to benefit of each Bay, over week one covered Galveston ing on which decree is based. casualty. he testified that after the He any de- not find “to noticeable did gree.” burns If, fact, said it could be puffed These bodies were finding failed to make a swollen to such an extent that examina- or in the issue of cause death tion was difficult. thought The undertaker juries, nevertheless, proof the burden death of that the each of these on that issue was on the Consul General. by drowning. men was caused Consequently, not all facts embraced sup- do Even death certificates regarded specific findings should be port theory that death could have having proved party as poisonous caused ef- the toxic or Rubens, proof. Shapiro burden of 166 v. of the fects chemical under observation. (7th 1948); F.2d Container 659 Cir. gave Five of the cause certificates Stant, Corp. Patents F.2d “drowning, jumping of death as due to 1944), 734, cert. 323 U.S. denied overboard”; gave certificates five Appellant S.Ct. 89 L.Ed. 588. “suffocation, cause of death 2nd as finding specific if he to seek degree burns,” & 3rd and one certificate so desired. gave “septisemia, the cause of as death Any finding by judge, on other major body due to thermal burns.” Even him, the record before based on as to the decedents whose deaths were pure speculation guess This work. drowning, attributed di- the funeral Brieger, principal is conceded Dr. rector conceded there were burns witness for its dead China Union and on the bodies. injured members, crew testified who any event, In both in testi autopsy required an would be before mony theory argument, and on the expert express opinion an an even could fully presented Consul General was men on whether of these died to, one explored by, judge. trial the able acrylonitrile.23 exposure analyzing evidence, from With After all of he autopsy 23. “An would show whether 22. “As a caused result fire man, fire, collision, Ship in addition to effect Channel Pilot Houston acry- quantities large following has absorbed Duncan and the crew members which, lonitrile, told, I have will be as Lan of UNION RELIANCE were lolled: cyanide, easy very Jing-Chau, Hsing- Teh-Yao, af- into converted Chen Wu fair; spectro- Shih-Ming, Fuh-Gen, Huang Rei, can be shown Wu Pao otherwise; photometer Ting Chea-Fah, Ah-Tong, Ah-Wang, if such Hu made, autopsy Sing-Wang, Linn-Ken, whether can state one Yuan Hsia quan- Kuang-Yan; following absorbed this individual had Koo and the acrylonitrile they injured: Mang in them- Han- tities of Hau Wen-Tsai and addition, Ying. man. But have killed selves would this much only (principally a state- can he done —such RELIANCE UNION vessel) proper au- ment can he made the forward holds of if personal topsy made, lost, hlood has been as well if 5130.) (R. effects the crew.” record, reject opinion a trial them he felt reasons given support than at no conclusion thereof were unsound. could arrive applicable judge, in his This rule is had failed to a Consul General trial injury showing jury. well as a trial that death Sartor v. Arkansas burden 620, 627-628, Corp., of the Natural Gas toxic effects U.S. caused acrylonitrile. (1944). Also, 64 S.Ct. 88 L.Ed. 967 opportunity had the to see and disregarding Completely ef pass hear the witness his credi- finding controlling that fire fect of the bility. personal the cause of deaths was injuries, Beyond that, printed record of this the Con both China Union testimony presents portrait witness’ a of testimony again point in to General sul part considerable doubt on to his as dicating in practice in the chemical wrong Guard, fact, whether the Coast space dustry cofferdam to construct fully classified the final chemical. its dangerous chemi around tanks which analysis, testimony this witness’ does transported that one cals are to be require finding knew, Cyanamid purposes construction of such diligence or exercise reasonable prevent escape of such chemicals known, should have that the Coast Guard in the mony of a collision. Other testi event classification of the chemical was in it was a common indicates that significance, though error. Of not con danger industry carry practice in trolling, casualty is the fact that oc away ous from the skin chemicals November, curred in 1961. There was ship. Brieger that suf testified Doctor investigation. an immediate Coast Guard bodily acrylonitrile ficient contact acrylonitrile classification has would, opinion, his death cause been reviewed the Coast Guard on at ingestion of its fumes. inhalation casualty least three occasions since He, likewise, opined acrylonitrile and remains in the same classification. poisonous was much more than a five legal principles applied in Whorton percent hydrocyanic dilution of acid Loving Co., T. A. & 344 F.2d 739 which, by Regulations, Coast Guard Cir.1965), sound, the factual but classified, transportation purposes, background there is so far re discussed poison. thought as a Class B He that the moved from principles ours that such Cyanamid’s statement literature that applied. cannot be purpose here For the acrylonitrile produces symptoms “similar opinion, of this we have assumed that produced by hydrogen cyanide” to those liability Cyanamid would attach to if the thought was incorrect. His was that the duty, evidence disclosed breach tor symptoms same, precisely but tious or contractual. play words, a mere and not of substance. He also believed rat everything else, Aside from it tests had been made the Coast Guard appear proximate would cause chemical, probably with the injuries would death seamen, category been classified in a B Class damages, that matter all other poisonous toxic or in nature. The acrylonitrile, not the inherent nature of accept apply was not bound to nor these manufacture, lack of care in its opinions. give He was giving bound to to nor in poison notice of its toxic or weight thought they them such he de qualities, ous stowage nor its location liberty entirely served and he was at ship, unanticipated was the bright red; simpler that’s a much (1) 146.21-100, p. 172, § C.F.R. method. It would indicate 146.25-200, p. 495-694; (2) § 46 C.F.R. large very man has indeed absorbed 146.10-100, p. 20, § 146.25-200, p. § 220- quantities large quantities acry- 256; Register, 24, Federal December lonitrile, develop- the consecutive 248, pp. Vol. No. 18163-18168. cyanide.” ment of (Emphasis supplied.) (R. 2129.) wrongful RELIANCE action the vessel be towed directed crossing wrong side of the channel in Bolivar the channel and anchored Roads, adjacent against, propelling like ax bow channel. through substantially tank vessel, After removal the chemical was stowed. asking libel, for the sale States filed a (cid:127) remarkably pictures in evidence clear vessel,25 pay the cost of removal rup- RELIANCE demonstrate expenses. proceed- and ing This incidental EREB AN and ad- tured the skin of the 29, 1961, enjoined, on November approx- depth of hull vanced into the petition for a limita- China Union’s Obviously, imately the inside 14 feet. liability. granting in- tion of junction, After would have been skin of cofferdam judge required China Union not have ruptured a dam and such pay into court cost removal prevented escape chemical. the weight $8,582.00. Other in the sum of vessel assault, a cof- the of this Under proceedings, allowances, and outlined provided no more ferdam would have Cyanamid in Co. in detail American v. protection tissue of than would a sheet (5th Lines, China Union Cir.1962), 135 306 F.2d paper. proceeding in which the cir- sug- jurisdiction, cuit court refused but CLAIM OF UNITED STATES gested might the district challenges the claim Union China alone findings presented. make on the issues consists of The claim the United States. issue, On first the Gov the separate of three items: statutory prevail. ernment must right It had a removing (1) expense and re- of cargo, dispose to hold the and vessel $8,582.00, anchoring RELIANCE, the public from sale and deduct thereof proceeds $8,582.00, expenses of the the (2) expense shipkeepers sim- of could removal. the While Government property, expenses preserve the ilar against proceed personam, China $6,031.38,and Union, United States v. Bethlehem Steel tug prevent (3) expense stand-by of Cir.1963), Corp., 319 F.2d 512 cert re-blocking moving and vessel 484, 966, 375 11 denied U.S. 84 S.Ct. channel, $21,188.00. (1964) 415 L.Ed.2d Zubik, and United v. States RELIANCE, as a re (3d Cir.1961), That the 295 F.2d 53 we flaming casualty, sult became must remember that China Union it was very imperiled seeking exist injunction derelict which which was and a liability. ence of and obstructed other watercraft limitation of It to its prevented navigation advantage of the chan advantage, un and the of its beyond nel, argument. derwriters, The owner RELIANCE of to free the statutory lien, to control the underwriters were unable and se Government’s emergency pro Acting judge, injunction. under fire. cure the decree of requiring visions U.S.C. to make this § China Union special Engineer, payment, equities recognized States District after investigation, made a determination were with the Government danger special RELIANCE was first in time Government’s lien was owner, navigation and, right.26 prior notice to after court order of the scrap $109,100.00. charge against as Sold nec- the vessel—was essary surrendered before she could be * * * 26. “Had intervened this Court not Hence, proceeding. un- in a limitation might have Government sold 46, U.S.C.A., fix I of Title § der cargo. does The statute vessel and her $8,582.00 an additional sum as right exists It not make this conditional. deposited with this Court to be amount right irrespective Petitioner’s Petitioner, benefit the use and may deprive limit. Petitioner necessary States, of the United of its of sale United States carry provisions of Title § out undertaking vessel. to surrender 1963.) January 28, (Order, payment release U.S.C.A.” this sum—and judgment per- safety, casualty place did not amount to a but to a merely petitioner, sonam reasonable should also and all cover required expense to do what China Union incidental the removal expense process, should first instance. have done enforcement such as the safeguarding. expense This is con- 3, 1962, re On December templated statute. Petitioner’s ceipt of of the Court of the mandate arguments tug $21,188.00 hire Appeals, supplemental held illusory legitimate expense, is was not a hearing, testimony was at which time discloses the extreme. The record taken and exhibits introduced in connec weighed many considerations tion with reasonableness the nature and tug having by, rather favor stand of the Government’s and other claims. using than two The District anchors. Eighteen hear at this witnesses testified Engineer, after consultation Coast ing support is solid there evidence officers, one Guard decided to use finding in favor of the Government. tug by, anchor and so stand finding judge’s The fact that the avail- its immediate assured subject, is included under his conclusions ability in not hold. case anchor did law,27 significance. Compania of no making Those opinion the decision were Petroleo, Transcontinental de S.A. might foul two anchors al, Co., Mexican Oil et Gulf 292 F. vessel, (2) the anchor windlass (2d Cir.1923); Arkansas Amusement subjected supporting the deck it had been Corp. Kempner, (8th v. 57 F.2d fire, (3) “upper of to shots” severe the finding in Even of the absence subjected to the chain had been anchor fact, being of novo, de a trial we (4) heat, area was severe the Galveston compelled say would be to that the record changes subject to in weather severe fully supports pertinent provisions the of (5) exceptionally conditions, the tide was interlocutory enough, the decree. True anchored, and where the was swift vessel specific amounts are not in mentioned anchors, (6) vessel, with dual the even finding. However, no there can be might slip channel. well into the back misunderstanding amounts, in as to the eventually enough, found True the court that claim, the division of the Government’s necessary keep tug to the in both the exhibits and the testi anchorage, and at its the RELIANCE mony, precise. They was uniform and point Union on China this is the figures forth, are the which are set Here, principally mischievous the relies. exactness, interlocutory decree. validity the of aura which lurks behind again hindsight presented. veil of is It is our view item Engineer original the action of District of the Government’s claim is also covered by, tug ordering when in to stand the provisions the 415, of 33 U.S.C. § light pro- obligation to in of his viewed that the lien RELIANCE for the without tect traffic in the channel the prior item also first time and unduly jeopardizing and its the vessel right. contemplates The statute cargo, quite is understandable. the Government hold said vessel for ordering judge’s subsequently action, in period thirty days, of after notice to the tug dismissed, after more the taken owner, and thereafter until It is sale. experience in than two of actual weeks logical Congress to assume that in holding does not anchor. It the vessel at tended proper Government take use; disapproval previous imply of its during possession. of care the vessel indeed, own wise of because his doubtless “expense removing,” opinion, in our hindsight, governed reluctance precise should be not be cost limited removing pass judge expressly place from refused to vessel subject Lines, 27. “9. China Union matter of Ltd. liable incident and is made to the United States of America for the claim of States.” the United expenses incurred in connection with this they necessary expenses question time. The record should at that developments Specie subsequent Bank Yokahama no allowed. reveals Cir.1940); weighing against approval Wang, his 113 F.2d ultimate charge. The Trans- Palmer v. Burns Bros. No. 77 Cir.1949). (2d 7, fer No. 176 F.2d 950 On November standing judge tug from dismissed the OTHER CLAIMS day, and, on that the RELIANCE payment claims a China Union placed pending shipkeepers aboard salvage expenses its own out the same court. At further order theory fund, on that the limitation custody time, was taken the vessel limitation value be surrendered court Marshal and the States proceeding owner’s value Earlier, possession. was thereafter immediately after interest the vessel Engineer, 24th, the District November casualty. Here, we call attention acting States on order the United ruling fact reserved Attorney’s shipkeepers office, caused particular time on this issue and at one employ placed aboard and the cost position of indicated that he favored clock, ing shipkeepers, round the those provisions China Union.28 One is, order the court both before interlocutory crystal makes it decree major part, Govern the basis passing clear $6,031.38. Union claim of China ment’s limi- claimants the issues between charges Government was validity petition- tation fund.29 The longer possession vessel including salvage claims, er’s its claim to this allowance. This claim not entitled $8,582.00, and for the refund of said validity, is without view whether we reg- previously paid other sums into the statute, performed as service under istry, subject orders” “further court to the or as an allowance of the District Court.30 expense in con incurred Government vessel, of protecting interest L27] after The assessment nection originally only against by on the Our China Union Marshal. seizure any freights, prepaid was a matter allowance unlisted of doubt is whether area judge. day period sound of the within the discretion made for the three should be proceeded tug in claim 24-27, also Petitioner’s when the November withholding good faith, standing by. appear in this the utmost It does not weigh- freights, subject “over-lapping” be called to the attention charge by may in to take ed and considered want of the and he proceeding. Obviously, he of felt look at feature another this petitioner’s action, in proceedings con consistent- hereafter must be which ly attempting by off claimed em to set its him. We believe ducted salvage charges against ployment shipkeepers the amount on and after of the freight interest, prepaid 27th, as and an the arbitrary should treated November be unnecessary. pref justice” record and The “expense entitled supports An Co. York Dock this interest. New assessment erential treatment. recognized 117, Poznan, in La allowance of Bourgogne, 47 S.Ct. interest is 274 v. S.S. U.S. Cir.1905); Paul, (2d (1927); 139 482, The F. 433 955 St. 71 L.Ed. Bourgogne (Deslions La Com- (2d Cir.1921). La v. these Since F. 265 271 5148.) sup- (R. (Emphasis January 28, Order, Court." 1963. 28. plied.) payment "(3) Trus- That Union, provided, 30. China fault was sole expenses, whose hereinabove tee’s casualty, may Ameri- not be entitled cause States claim of salvage, provided paid a claim for Clarita make The hereinafter shall be ca remaining Clara, 1, 18, L.Ed. 90 U.S. The 23 following which funds 146, (1874). registry re~ 150 the Court shall pending this orders main further

795 Transatlantique), this and for I pagnie purpose, 210 extent believe Generale 95, 664, case and remand- L.Ed. 973 should be reversed U.S. S.Ct. ed. (1908). penalty, the as a Even viewed facts under the interest exaction “Assignment V,” accept I As to justified. case proposition shipowner is entitled rely on the mate- classification CONCLUSION stowage requirements pre- rial and the case, admiralty appeal in an On by regulatory agency, scribed here by appellate is bound find court however, may, the Coast Guard. There they ings will not of the trial court and acquires come so a time when a carrier seeking party be set aside unless knowledge peculiar much char- about them overturned demonstrates

have cargo, particular which acteristics they supported credible evi are not known, generally are not it can dence, or were induced an erroneous longer solely rely af- on the insulation Corp. In view of the Trinidad law. by reading applying forded Coast (5th Towing Co., dian 293 F.2d 107 regulations fact Guard which it knows in 1961), 82 S.Ct. cert. denied U.S. wrong incomplete. aim are either 19; Line, 8 L.Ed.2d Ohio Inc. Barge law, regulations, aim of Co., Transport v. Oil F.2d promote safety, especially in- Cir.1960). members, parties nocent third —crew record, On the vessels, entire to considerable longshoremen, persons on other reference, specific of which we made have public, members of others —who judge’s findings we hold that trial likely exposed to the hazards amply supported substantial evi- product normal course clearly dence, erroneous. distribution, We transportation, han- firm dling. hardly conviction that each That aim is achieved parties impartial a fair and an shipowner received absolute which declares that nothing trial. of may ignore We find the brief hazards not disclosed Lucy striking justify Duncan to the same Regulations, but of it knows from the by prudence. file. motion is denied. knows how to minimize every long making way This is a interlocutory decree is affirmed. chemist, shipowner physicist, his own Judge BROWN, JOHN R. Circuit day physical chemist, like in this or the (concurring dissenting part scientific marvels new esoteric part): products. fully very I concur in all of ex- opinion Cyanamid no prepared But is in such favored cellent Court position. Judge Kilkenny and except por- It is manufacturer as to some supplier “Assignment can a it knows tions in the of chemical that section entitled Cyanamid’s V” as to and kill. awesome ob- which I does have some reservations ligations liability day products part Against and that in this entitled “Claim Cyanamid” Acrylonitrile goes when to sea no less I is which to be believe errone- rely My on —and ous. As to I than on land. It cannot latter dissent. remotely begin change proof not difference would result does even would, rely suggest did, RELIANCE, to as it ever between BEREAN and Cyanamid Cargo knows on —the Coast Guard. between RELIANCE’S and RE- enterprise LIANCE, huge injured/decedents it —a industrial between the owners, pre-eminence proudly in and which RELIANCE claims and injured/decedents denial of on Coast relief to this chemical field —relied laboratory fa- Guard its limited BEREAN. It would afford development, injured/deceased RELIANCE for its and the cilities research damages go right bankrupt. it Coast Guard victims would to show that might never, aggravated it, injuries to it would come caused or never, go simply Cyanamid’s neglect to Guard To to Coast of its duties. Cyanamid qualifications which eminent what the characteristics ascertain challenged not chall product could are. never its own hazards —indeed suggests, enge.31 If, his Court law affords to while the So testimony occasionally guarded, hes faulty accept Guard Coast itant, was, quoted it as the reference Cyanamid classification, no claim can (see 23) just reveals, autopsies an note pam- published privilege. Its such own proof com scientific other clear his “Handling-Storage-Analy- phlet entitled again, petence. he made and time Time Acrylonitrile,” as an introduced sis of study plain, upon based lifetime opinion exhibit which the Court’s and to very experience com industrial with this was, refers, as Dr. it clear that it makes pound, that for afloat seamen be Brieger testified, than a having Acrylonitrile no toxic less film water poison toxic the surface almost certain B it was more mean Class since Cyanamid’s dilution death.33 And that is what than the standard test 5% hydrocyanic Brieger pre- pamphlet had terms.34 acid. Dr. own vivid reflected 32. In 31. Dr. 33. trile. lonitrile fumes Acrylonitrile spilled ports BEREAN was killed mitted Cyanamid, warns: to those lision event was an untoward with the And explains: vapors: As to Ironically As lonitrile letin tank a man on the cause available to those gained tanks. sources of harness line to “Protective “The should be ** properly er cover-alls, eye goggles, year within.” ruptured. All emphasized Acrylonitrile, Brieger pump resulting are the results of the should precautions handling type * do collision, cleaning concentration has knowledgeable This Cyanamid. Acrylonitrile during suggests performed the record reveals that ventilated nothing handling ignition.” room. No this of equipment toxic life line equipment gas from a outside person working collision, tanks provided No. and flammable nature set mask out into the made tests but handling operations of the 226 tons chemical, entering [storage] stored, Cyanamid period. attached. forth in this bul- which were one, and free by Acrylonitrile watch the work- outset, about very should be made areas which port end of the life required should storing with certainly gas small experience wing Master chemical’s Cyanamid It should Acryloni- post-col- surprise channel. a Station include masks. differs Acry- Acry- about body tank sub- leak be- re- And in waste Cyanamid breathe And body: hour effects threshold limit less, hydrogen seamen p.p.m.) million toxic “the by absorption lonitrile level Although 2% Acrylonitrile “Acrylonitrile vomiting. Absorption headache, above ditions and symptoms pose “Use this vapor) fresh-water produced be treated water similar sive contained tolerable “Acrylonitrile “Poisoning by Acrylonitrile produces $<< if oral employed.” the chemical regimen exposure vapor than carbon tetra danger disposal, parts that describing 16%. afloat, but supplies vapors, ^[*] liquid through cyanide (10 ingestion. symptoms. limit will danger by hydrogen ik sneezing, oxygen only which are similar “aquatic of inhalation has type use of fish can tolerate an the last of treatment Otherwise vapor who will both absorb is air,” oxygen chemical stream effluents fish: “the or to through slightly been demonstrated [Emphasis is 20 is toxic to downstream of canister locations or air manufacturer which toxic depend an extent streams.” * * content abdominal parts life” p.p.m.) proper currently * * aquatic p.p.m., the skin causes to minimize cyanide. concentration a mask with self less toxic enough large makes happens of chloride supply * on local con- [by is methods where life. inhalation, vapor per Neverthe- weakness, skin, pain, less produces original] amounts accepted (organic it so Exces- human should warns physi- actual public eight- Acry- those must to more than ** than they (25 be

797 question ordinary is not because the whether so-called care prudent loading Acrylonitrile person at fault itself calls for which care unprotected by extraordinary is tanks cofferdams. principles skin or because of Cyanamid liability. question Indeed, teaching is know- strict whether knowingly ing does, City load of could Texas what it was not to the in- lost Cyanamid’s 'judicial know- dustrial or BEREAN at terminal world because the going ing into also Government as the manufacturer FG liability respect Cyanamid escaped peculiar AN skin tanks. governmental “discretionary it owed duties that transcended those function” exemption, which, States, Andersen or BEREAN Dalehite v. United 1953, 15, 956, supposes, perhaps 346 Court showing it satisfied U.S. 73 S.Ct. L.Ed. 97 1427, stringent pamphlet. or the the Master the blue limitation duty scope literally It world—at the FTCA to owed “novel and exclude unprecedented” cases, reading least that world within the reach and protection shortly repudiated. Rayonier jurisprudence, was American States, land-based, 1957, 315, 319, amphibious. salt water 352 U.S. port 1 It had S.Ct. to have in mind workers at L.Ed.2d 354. place loading, crew members Judge really But the trial never faced carrying vessel, crew members up to this issue. Nor does this Court. tugs, accessorial owners and crew mem- Rather, equates Cyanamid’s obliga- each carrying bers of vessels with which the carrying tions with those the vessel BE- might vessel come contact collision REAN owed to others. As to the BE- otherwise, port officials, or in- customs REAN, regulations the Coast Guard so

spectors, immigration officers, maritime long they as BEREAN did not know personnel, service members faulty, adequate were an insulation. But public. The duties owed to this limitless public in relation to members of group protectees require as a mini- others, Cyanamid could not fall back on knowingly participate mum that it not problem the Coast Guard. The was real- handling transport a method of or which ly not whether the Coast Guard classifi- imprudently imperil would the lives Brieger error, cation inwas Dr. tried people. suggest these I do here Rather, to demonstrate. what it was Cyanamid, manufaeturer-supplier- Cyanamid actually ought knew and shipper, liability insurer, has the of an product have known about its own certainly far-reaching has the awe- knowing that, prudence what consider- prod- some liabilities now associated with ing high extremely these could hazards Mfg. liability. City ucts Putman v. Erie ought minimize,35 to be done Co., Cir., 1964, devastating 338 F.2d eliminate, Restate- not quences conse- ment, casualty. Torts is 388. When the material foreseeable § fraught danger, with so much lia- approach This was a basic error may Judge. bilities either the District And almost absolute our efforts be. * * Acrylonitrile poi- liquids or cian] recommended for covers “Poisonous solids soning cyanide poisoning.” A, poisons, is other than ot D Class C ways places pamphlet In several which are known toxic to man to be so during equates Acrylonitrile Hydrogen Cy- to afford a hazard to health (Hydrocyanic Acid). transportation.” anide Rat and § This is a 146.25-10. poison, ingestion, absorption 146.25-5, A and inhalation § Class defined as rabbit prescribed. “poisonous gases liquids of such test standards are thereafter nature Brieg- very gas, There Dr. small amount evidence refute dangerous testimony Acrylonitrile liquid, with air er’s mixed fail these tests. life.” As such it is listed with poisons, military three which are through 35. BEREAN had main tanks poisonous gases. And footnote 1 to by longitudinal bulkheads afford- divided permits Hydrocyanic Acid dilute solu- ing fully a series of 16 inboard tanks exceeding strength tions by wing to be separated ship’s 5% hull poisons. each, port starboard, B B classed as Class Class tanks on side. resting bility plainly deficiency questioning the manu- now so overcome the facturer-supplier-shipper of a commer- standing to assert of China Union cially valuable, useful, law chemical indeed a matter to hold as claim and compound proof causation which carries death be that there could utility. injured/deceased as to the claims recall that must will not suffice. We further I reverse for would therefore ca- case, maritime all extensive as are hearing appropriate claims as stages being tastrophies, in two tried owners, and the RELIANCE and her damages. —liability This is the against Cyanamid. injured/decedents example, my knowledge, time, to first death, gen- certificates, issued in which erally by people whose in Texas competence office is the lowest

judicial hierarchy prove cause — agree I not been death. the issue has damages proved. more so was the No cargo. or its sustained al., Appellant, et Ruben S. HERRERA later. to China come As That liability phase standing, at Union’s Warden, WILSON, etc., E. say Lawrence only, fumes had the is to who Appellee. cargo not have been from this lethal forming by rupture No. 20455. freed of the hull sides, on RELIANCE tank action Appeals United States Court of might not different? have been Circuit. Ninth Judge record, have On this should Aug. 1966. against Cyanamid prima held that as Cyanamid case had out. facie been made proof put to its should have

refute, could, charac- if it the hazardous

teristics, prudence would and on what

require manufacturer-supplier- deadly po- shipper product such of a Judge

tential.36 would then Cyanamid usual had the

decided whether liability products chemical of a land-based If he declared

manufacturer. affirmative, proof any— damages, if

and I do not minimize the —would damages. stage opened for a second led, admiralty followed. has responsi-

But dilutes the here salt water 39.01-1, point Guard .05-1. § 36. the Coast etc. 46 C.F.R. Indeed at might Cyanamid significance regulations not be of such tests would turn on classifying Acrylonitrile prescribe as Mar standard. Cf. establish an absolute Inc., Cir., Lines, Guard was inflammable the Coast shall v. Isthmian 196 Brieger Rather, If, so since Dr. as such. erroneous 344 F.2d pre accepted stoutly maintained, tests rat tests manufacturer knows what significance reveal, (see 146.25-10(1) note would be would § scribed shipper bring Acrylonitrile supra) with manufacturer forbid the disclosing undisputed shipment poisons, without it is tender B then Class knowingly having liquid these lethal all characteristics for a combustible loading shipment participate B defined as a Class characteristics knowledge, which, poison, it knows must be with such C Class 170(10). dangerous. independent § Cf. U.S.C.A. which are carried in tanks cofferdams, hull, separated ship’s

Case Details

Case Name: China Union Lines, Ltd., Mitsubishi International Corporation, Lan Jing-Chau, Armement Deppe, S.A. v. A. O. Andersen & Co., American Cyanamid Company

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Oct 7, 1966

Citation: 364 F.2d 769

Docket Number: 21367

Court Abbreviation: 5th Cir.