WALTER E. HOFFMAN, District Judge.
With the exception of the claim of one A. Fantis involving a shipment of olive oil in tin containers, this action relates to claims by various tobacco interests alleged to have arisen by reason of shipments from Bulgaria, Turkey, and Greece to Newport News and Norfolk on the S. S. Anghyra during the early part of the year 1941. The claimants contend that the tobacco was in good order and condition when stowed aboard the vessel, but was discharged at the agreed ports of destination in damaged condition, thereby imposing liability on the carrier. Respondent relies, in the main, upon the doctrine of inherent vice as exonerating the carrier under the Carriage of Goods by Sea Act, 46 U.S.C.A. § 1304. The several bills of lading make no notation of apparent exceptions to the condition of the tobacco and, as the term is sometimes used in the trade, all shipments were on "clean" bills of lading
At the time of the outbreak of the war between Greece and Italy on October 28, 1940, when Greece was invaded, the American tobacco interests had substantial investments in Turkish tobacco.
In substance the claimants urge (1) that the tobacco was improperly stowed, (2) that the ventilation afforded was inadequate and not in use for a period of approximately 196 hours on certain nights while the vessel was at Port Said, Suez, Port Sudan and Mombassa, when, according to respondent, military blackout regulations were in effect, thus necessitating a shut-down of the dynamo with the result that the ventilator fans were not in operation, (3) that the ship was unseaworthy by reason of a poor quality of bunkers obtained at Bourgas (Bulgaria) and Suez, thereby delaying the progress of the vessel and causing her boiler tubes to become clogged, all of which resulted in her inability to keep up with the convoy and brought about delays, (4) that the vessel was improperly and inadequately manned by an inefficient crew over which the master maintained very little control which, in turn, reflected the inefficiency of the ship's officers, and (5) that the tobacco was not the subject of inherent vice or defect, but was loaded aboard the Anghyra in good condition and outturned in damaged condition upon arrival at the ports of destination.
Turkish tobacco is grown by many small planters scattered throughout the countries mentioned. It is purchased by the tobacco "sellers" from the planters who pack the tobacco into "village bales" after the same goes through a process of sun-curing
Tobacco undergoes a fermentation period which is a chemical reaction caused by the enzymes appearing in the tobacco acting on organic matter. With reference to this tobacco, the normal period of fermentation for the crop in question would take place during the months of April, May, June or July, 1940; the time varying according to the type and origin of the tobacco. As rapid fermentation may cause overheating and deterioration it is necessary, before and during fermentation, frequently to turn the bales for the purpose of airing. The tobacco in this case was baled in "tonga" form
The Anghyra is a coal-burning vessel constructed in 1923 with a gross tonnage of 2,447 tons and a net registered tonnage of 1,437 tons. She has five lower holds above all of which are 'tween desks; the lower holds being numbered 1, 2, 3, and 4, together with the cross bunker and engine room. The approximate dimensions of the holds with depths measured to the tank tops are as follows:
Hold Mean Mean BaleNo. Length Width Depth Capacity No. 1 55' 41' 22' 41,037 cu. ft. No. 2 55'6" 44' 20' 50,643 cu. ft. No. 3 51'6" 44' 18' 38,954 cu. ft. No. 4 48' 40' 20' 21,189 cu. ft.
Each hold has a centerline steel bulkhead running fore and aft practically to the square of the hatch (but not across the square of the hatch), with notches or openings at the top where it crosses each overhead deck beam. These centerline bulkheads divide the holds into port and starboard halves, but do not run athwartships. The various dimensions of the longitudinal bulkheads fore and aft of the square of the hatch are:
Forward Square Aft Square
Hold No. of Hatch of Hatch
No. 1 21' 6'
No. 2 15' 15'6"
No. 3 14' 12'
No. 4 10' 16'
The hatch squares indicate the following measurements:
Height of
Hatch No. Length Width Coamings
No. 1 23'1-¼" 16' 2-½'
No. 2 27'3-½" 16' 2-½'
No. 3 27'3-½" 16' 2-½'
No. 4 23'1-¼" 16' 2-½'
Before discussing the stowage of the quantities of tobacco and the ventilation afforded, it is proper to consider the ship's movements, prior and subsequent to loading. There is no evidence contradicting the fact that, during the month of September, 1940, the Anghyra was drydocked in New York, where her hull plates were cleaned, scraped, surveyed, and painted. Her return voyage to Piraeus, Greece, consisted principally of a cargo of iron and the speed of the vessel was necessarily impeded by reason of the deadweight cargo. At Piraeus she discharged a portion of her cargo
Port Arrival Departure
Piraeus 1/9/41 1/14/41
Port Said 1/18/41 1/28/41
Suez 1/29/41 2/1/41
Port Sudan 2/5/41 2/12/41
Mombassa, So. Africa 2/27/41 2/28/41
Durban, So. Africa 3/10/41 3/11/41
Pernambuco, Brazil 4/1/41 4/2/41
St. Thomas, V. I. 4/13/41 4/13/41
Newport News, Va. 4/21/41 4/22/41
Norfolk, Va. 4/22/41
The entire voyage from Salonika to Norfolk has been approximated to be 13,000 miles. Time consumed was 123 days as contrasted with approximately two months (including the time of loading and other delays at Salonika, Bourgas, Cavalla and Piraeus) for a voyage via Gibraltar. Additionally, it is apparent that a trip via Gibraltar commencing at Piraeus would involve cool weather, whereas the voyage via Suez and the Cape of Good Hope brought with it the attendant hot weather in twice crossing the Equator.
A schematic diagram in evidence fairly discloses the location of the various shipments as loaded on the vessel. At Salonika a shipment of 1,773 bales for Brown & Williamson was stowed in the No. 3 'tween deck forward. Upon arriving at Bourgas, Bulgaria, the major portion of the entire shipment was loaded, which, with one exception, was stowed in the lower holds. As to this exception, the evidence discloses that a shipment of 1,306 bales for Brown & Williamson outturned "soft and mouldy" after having been stowed in No. 3 'tween deck aft. All other shipments in the 'tween decks originated from Salonika, Cavalla, Istanbul, and Piraeus, and outturned sound. This is of some importance as the testimony substantially bears out respondent's contention that Bulgarian tobacco has a higher moisture content than the tobacco grown in Greece or Turkey. Summarizing the loadings in the lower holds, including small quantities placed in these holds at Istanbul and Cavalla, we find the following
Owner and Approximate Lower Number of Condition Location Hold Bales on Arrival in Hold (a) No. 1 RJR 8185 bls. Damaged Foreward — top to bottom (b) No. 1 BW 5118 bls. Damaged Aft—top to bottom (c) No. 1 ATC 161 bls. Damaged Top center of stow— separating (a) & (b) (d) No. 2 RJR 6818 bls. Sound Foreward — top to bottom (e) No. 2 LM(B) 592 bls. Damaged Aft—lower level (f) No. 2 LM(B) 237 bls. Damaged Aft—center level (g) No. 2 LM(B) 4878 bls. Damaged Aft—upper level (h) No. 2 LM(T) 880 bls. Damaged Aft—upper level— adjacent to (g) (i) No. 3 LM(B) 6068 bls. Damaged Fore and aft—across entire lower hold (j) No. 3 BW 2846 bls. Damaged Foreward—top level (k) No. 3 RJR 2580 bls. Damaged Aft—top level (l) No. 3 ATC 135 bls. Damaged Top center of stow— separating (j) & (k) (m) No. 4 LM(B) 6440 bls. Damaged Entire lower hold excepting (n) (n) No. 4 ATC 196 bls. Sound Top center of stow over (m)
Upon arrival at Newport News and Norfolk, the focal point of heat damage was substantially determined to be as follows:
No. 1 Hold—Approximately in the square of the hatch,
near the center of the stow6 .
No. 2 Hold—Aft and starboard of the aft-starboard corner
of the hatch, approximately midway the
stow, in the lower portion of lot (g).
No. 3 Hold—Slightly aft of center of the square of the
hatch, approximately midway the stow, in
the lower portion of lot (k) above.
No. 4 Hold—Two focal points of heat damage; both of
which were approximately midway the stow;
the greater damage appearing slightly foreward
of the foreward-starboard corner of
the hatch; the lesser damage appearing at the
foreward-port corner of the hatch.
In designating the several lots stowed in the lower holds as "damaged", it is not suggested that the entire lot was in that condition. In some lots the percentage of damage was relatively small. The evidence is not complete on this point due in some respects to a noncooperative attitude on respondent's part at the time of arival at Newport News. From the BW lots stowed in the No. 3 lower hold and 'tween deck, slightly more than 8% was found to be partially damaged and slightly less than 1½% was totally damaged. In the No. 1 hold, BW sustained a total damage percentage of 35½%, with approximately 52% being partially damaged and in need of reconditioning which reconditioning resulted in two-thirds of the aforesaid 52% being placed in sound condition. ATC had slight damage to its lots in the top of the Stow in the Nos. 1 and 3 holds which amounted to only approximately $1,100.00. The damage to the RJR lots in the lower holds was considerably more extensive in holds numbered 1 and 3, where in excess of 21% was totally destroyed and a large part of the balance was partially damaged. On an average basis the LM lots revealed approximately the same percentage of damage as the RJR lots. This evidence affords an effective argument to the claimants who urge that the tobacco was not subject to an inherent vice as otherwise there would have been a greater percentage of damage.
The testimony leads to the inevitable conclusion that the tobacco was properly stowed in accordance with accepted practices then prevailing for a trip via Gibraltar with the ventilation afforded through the medium of air intractors and extractors. There remained, for a normal voyage, sufficient unused bale capacity indicating that the cargo was loosely stowed with air spaces permitting a reasonable amount of circulation to and from the holds. With one exception
The effect of the war cannot be divorced from the facts of this case. Claimants' desire to transport their tobacco to the United States in order to protect their investments is appreciated. Certain risks, however, were common to all in negotiating the longer voyage around the Cape. Other risks, including the shortage of coal in Greece and the conscription of a portion of the vessel's crew at Piraeus, were directly attributable to the war effort. It became necessary to load bunkers at Bourgas under primitive methods causing a delay of approximately four days, and thereafter at Suez the vessel was required by action of the British Navy to take on additional coal of a poor quality. The shortage and poor quality of coal, as well as the conscription of the crew, were incidents of war which could not be avoided by respondent and delays resulting directly therefrom should not be chargeable to the carrier. The respondent has clearly met the burden of proof imposed by the Carriage of Goods by Sea Act, 46 U.S. C.A. § 1304, in that the normal incidents of war are tantamount to "any other cause arising without the actual fault and privity of the carrier and without the fault or neglect of the agents or servants of the carrier". Due diligence was undoubtedly exercised as to these factors and this is all the law requires.
We turn, however, to the delays occasioned at Port Said, Suez and Port Sudan when the ventilating fans were turned off during the night hours due to the shutting off of the dynamo. At the outset it should be noted that respondent's general manager recognized the need for adequate and continuous ventilation when he instructed the master by letter as follows:
On January 20, 1941, the British Admiralty at Port Said advised the master that lights had been observed on board the vessel the night of January 19-20 and, due to blackout regulations, the master was told that if lights were seen again, the Admiralty would open fire on the vessel. Returning to the vessel at approximately seven p. m. the master shut off the dynamo and the electric ventilation was not used thereafter from five p. m. to seven a. m. for a period of twelve consecutive nights. The electric fans in the ventilators were also shut off while at Port Sudan, Mombassa and Durban. It appears without contradiction that for at least 196 hours, including 168 consecutive night hours, the fans were not in operation.
The electric fans were installed within the ventilators and, when not turning, would tend to obstruct rather than aid the flow of air. During the daytime hours, with the temperature reaching as high as 87°, the hot air naturally accumulated in the lower holds as the fans in operation of necessity threw the hot air into these holds thereby building up the temperature. Had the fans remained in operation during the cooler hours of the night, the warm air would have been forced through the air extractors with the cooler air replacing it.
The British Admiralty did not order that the dynamo be cut off. The Master could have accomplished the same objective by removing the light bulbs from their sockets. Nor is there evidence tending to show that the master conveyed to the crew the seriousness of the situation. Undoubtedly the master was disturbed by reason of the non-cooperative attitude of certain members of his crew, but he likewise exhibited evidence of lack of ability to discipline his crew.
Respondent points out that no witnesses testified that the cargo suffered
Carrier suggests that, even if negligence of the master be assumed with damage resulting therefrom, there can be no liability imposed as the act was in "the management of the vessel" for which the carrier is exonerated by § 1304, Subd.(2) (a) of the Carriage of Goods by Sea Act as follows:
It is urged that the primary purpose of the dynamo was to supply electricity for the operation of the ship and only incidentally for the ventilator fans and, under the "primary purpose" rule, the master's act in shutting down the dynamo was an act "done for the safety of the ship herself and not primarily done at all in connection with the cargo"—it was, according to respondent, an act in the management of the vessel. The fallacy of this argument lies in the fact that there is an insufficient showing that the safety of the ship was impaired and that the act was indeed essential. Furthermore, while the primary purpose of the dynamo may have been associated with the operation of the ship under normal circumstances, it may be that the primary purpose changed when the vessel was at anchorage under blackout orders. Respondent relies upon the English case of Rowson v. Atlantic Transport Co., 2 K.B. 666 (1903), which is somewhat analogous to the present case, but the Rowson doctrine has been expressly rejected in The Jean Bart, D. C., 197 F. 1002, 1005, wherein it is said:
The Jean Bart significantly points out the carrier's duty on "the longest commercial voyage of the modern world" and suggests that conduct reasonably prudent under one set of circumstances may be grossly negligent under another. Under the circumstances presented in the instant case we are required to examine with care the carrier's obligations.
The doctrine enunciated in The Jean Bart, supra, has been approved in Schnell v. The Vallescura, supra, Andean Trading Co. v. Pacific Steam Nav. Co., 2 Cir., 263 F. 559, The Samland, D.C., 7 F.2d 155, Philippine Sugar Centrals Agency v. Kokusai Kisen Kabushiki Kaisha (The Naples Maru), 2 Cir., 106 F.2d 32, and other authorities too numerous to cite. Clearly the Rowson rule is not recognized in this country.
Finally as to this point, the evidence discloses that the master acknowledged the primary purpose in using the dynamo when he stated to the British Admiralty that he was "obliged to keep the dynamo working * * * for the ventilation of the cargo we have on board". When we consider the fact that the master could have removed the light bulbs or, in the alternative, pulled only one of the five main switches to eliminate the possibility of light in the crew's quarters, in which event approximately 90% of the ventilator fans would have continued in operation, the negligence of the master in disregarding the safety of his cargo is rather apparent.
What may have been normal stowage under normal atmospheric conditions with adequate ventilation, may quickly resolve itself into improper stowage under adverse weather conditions and a cessation of ventilation for long periods of time. One need only study the schematic diagram to note that tobacco stowed in the 'tween decks was substantially undamaged with the exception of 1,306 bales for Brown & Williamson stowed in No. 3 'tween deck aft. As to this exception, there is no showing of inherent vice in the tobacco—the evidence merely discloses that it outturned "soft and mouldy". Even as to this lot it appears that the damage was not serious and is probably explained by the fact that it was stowed in an enclosed storage locker where the ventilation was retarded to some extent. In fact, respondent's witnesses indicate that any damage to the 1,306 bales was minimal. Nor is there any showing that greater damage was evidenced in the less expensive grades of tobacco; the resultant damage being comparable in each instance. Bearing in mind all of the circumstances surrounding this shipment, it is inescapable that the lack of ventilation constituted a substantially contributing cause of the heat damage to the tobacco.
Experts approximated the normal amount of moisture content in Greek and Bulgarian tobacco after fermentation to be from 12% to 15%, all of which is conceded to be within the safety factor. The respondent's witness, Dr. Turner, testified that moisture content in excess of that amount is likely to cause self-heating, but admits that this percentage is not necessarily the optimum content. On cross-examination Dr. Turner was questioned at length as to his testimony given in the Exmoor case
The witness, Dr. Turner, stated that, assuming he had so testified in 1938, he would not now adhere to his former statement. Even so, the prior testimony gives rise to the belief that the optimum moisture content for safety is not confined to 15%. The evidence reveals that the moisture content of the tobacco in terms of weight or volume was not precisely determined prior to shipment, but approximately seven of the fifteen lots outturned either wholly sound or damaged by heat from other lots. As to the remaining eight lots, portions outturned sound or were damaged by heat from other lots. As respondent's expert, Dr. Turner, further stated that the optimum moisture content was dependent upon a combination of factors including temperature, time and nutriment elements, and as the rate at which fermentation progresses undoubtedly increases where the heat is confined, the importance of continuous adequate ventilation cannot be overlooked.
In the absence of evidence conclusively establishing the moisture content at the time of shipment, we look to the condition of the tobacco upon arrival at its destination. There is a sharp conflict as to cause of the heating and, while there are some inferences that the heat commenced in the heart of the stow, there are likewise inferences to the contrary. More significant is the fact that the weight of the testimony leads to the conclusion that the damage had a tendency to progress from the outside of the bale toward the center, thus indicating that inherent vice was not a predominant factor.
As the claimants have presented evidence to the effect that the tobacco, when loaded on the vessel, was in "apparent good order and condition", the burden as pronounced in this Circuit apparently rests upon the carrier to explain the cause of damage, or, in the alternative, to show freedom from negligence. Philippine Sugar Centrals Agency v. Kokusai Kisen Kabushiki Kaisha (The Nichiyo Maru) supra. The controlling decision in this Circuit has been the subject of some difference of opinion by reason of authorities from the Second Circuit. The Niel Maersk, 2 Cir., 91 F.2d 932,
Tobacco Damaged During Loading Operations
Three bales of Brown & Williamson tobacco and one bale of Liggett & Myers tobacco were dropped overboard during loading operations. They were recovered, forwarded to destination, and delivered in damaged condition. The defense that such action was due to the negligence of the longshoremen, not directly under the employ of respondents, is untenable. The Carriage of Goods by Sea Act, 46 U.S.C.A. § 1303(2), requires the carrier to "properly and carefully load" the goods carried. This duty was never fulfilled. The claimants are entitled to a decree in their favor as to the damaged bales dropped overboard by the longshoremen.
Tobacco Damaged by Sweat
A minor claim involves sweat damage to nine bales owned by American Tobacco Company which had been stowed in the No. 1 'tween deck. It is obvious that such damage was caused by steam from the heated bales of the other lots. There is no evidence that the damage resulted from one of the specified causes referred to in § 4 of the Carriage of Goods by Sea Act, and the "omnibus" clause is applicable. As the Court has heretofore determined that respondent is liable for heat damage, it follows that similar liability must be imposed for sweat damage.
Damage to Olive Oil in Tins
The intervening libellant, A. Fantis, has filed a claim for damage to three shipments of olive oil in tins, packed in cases, and shipped from Piraeus, Greece. The bills of lading are "clean" and there is no suggestion that the shipments were leaking at the time of loading. While an examination of the 29 damaged cases did not take place until the shipments reached New York, following transshipment from the Anghyra, the evidence abundantly establishes that the leakage was first noticed on the Anghyra.
There is a conflict in the testimony as to whether the cases containing the tins of olive oil were stowed on deck or in the cross bunker. The bill of lading contained no notation as to the place of stowage and, if the shipments were on deck, the carrier would be liable as for deviation. The Delaware, 14 Wall. 579, 20 L.Ed. 779.
We do not, however, reach the point of determining the place of stowage. The condition of the tins at the time of shipment is not revealed by the evidence and, of course, could not be readily observed as they were packed in wooden cases. At the point of destination the tins were buckled and dented in places, and olive oil had escaped from ends of the tins at split or cut seams. There is an intimation that the soldering or construction was not of the best, but there is no evidence supporting this view. It is at least as probable that the damage was due to rough handling. Once again the
Damage to Tobacco in No. 1 Hold by Sea Water
Upon discharge of 42 bales of R. J. Reynolds tobacco from the bottom tier of the No. 1 lower hold, on either side of the fore and aft bulkhead, it was noted that the bales were wet and tests revealed the same to be due to salt water. Survey of the vessel after the voyage disclosed that approximately 100 rivets at the forepeak were "weepy" but not slack or wasted, and only needed caulking. The evidence rather conclusively shows that the vessel was seaworthy at the commencement of the voyage; it having been drydocked in New York in September, 1940, where her hull plates were cleaned, scraped, surveyed and found to be tight and in good condition. The cargo of wheat discharged at Salonika on December 3, 1940, was "dry and in good order". The bilge soundings were normal throughout the voyage until the vessel ran into abnormally heavy weather in the South Atlantic on April 5, 1941.
There is authority to the effect that where damage is confined to one part of a vessel and the remainder withstands like strains, this is evidence of unseaworthiness as to the part which fails. Southwestern Sugar & Molasses Co. v. Artemis Maritime Co., D.C., 92 F.Supp. 631, affirmed 4 Cir., 189 F.2d 488. Such evidence is not, however, conclusive, and the high seas and gale winds on the day in question point to a near hurricane. The cargo on board approximated 3,200 tons and, as such, the vessel was lightly loaded, thus bringing her bow high out of the water. The stress and strain on the rivets in the vicinity of the forepeak and No. 1 hold is understandable. In any event due diligence was exercised by the carrier in making the vessel seaworthy prior to entering upon the voyage. There is no liability upon the carrier for the damage to the 42 bales referred to herein.
Respondent's Claim for Demurrage on Cross-Libel
The bills of lading issued to Brown & Williamson, Liggett & Myers and A. Fantis contain provisions that the carrier is entitled to demurrage for delays of the vessel due to action of governmental authorities. The cross-libellant agreed with The American Tobacco Company and a subsidiary of R. J. Reynolds Tobacco Company that it would not enforce this provision of the bills of lading against them. Demurrage of all the cargo owners is alleged to be $44,100.00, but recovery is sought only as follows:
From Brown & Williamson $ 7,290.00 From Liggett & Meyers 17,130.00 From A. Fantis 305.00
The cross-respondents point out that such an agreement constitutes a preference which is prohibited by the Shipping Act (46 U.S.C.A. § 812, 815, 816) and by the Carriage of Goods by Sea Act (46 U.S.C.A. § 1308, 1309), citing in support of their argument the following cases: Compagnie Generale Transatlantique v. American Tobacco Co., 2 Cir., 31 F.2d 663; Hays v. The Pennsylvania Co., C.C., 12 F. 309; Sullivan v. Minneapolis & R. R. Ry. Co., 121 Minn. 488, 142 N.W. 3, 45 L.R.A.,N.S., 612; Cook & Wheeler v. Chicago, R. I. & P. Ry. Co., 81 Iowa 551, 46 N.W. 1080, 9 L.R.A. 764.
The carrier counters by stating that the Anghyra was a "tramp" vessel specifically exempt from the provisions of the Shipping Act (46 U.S.C.A. § 801) but, if not a "tramp", this Court is without jurisdiction to determine the issue as exclusive jurisdiction of such a matter rests with the Federal Maritime Board, formerly the United States Shipping Board. United States Navigation Co. v. Cunard S. S. Co., 284 U.S. 474, 487, 52 S.Ct. 247, 76 L.Ed. 408; Far East Conference v. United States, 342 U.S. 570, 574, 576, 72 S.Ct. 492, 96 L.Ed. 576. As any complaint alleging discrimination must be filed with the Board within two years after the date of the alleged violation (46 U.S.C.A. § 821), the time has
The cross-respondents filed exceptive allegations to the cross-libel setting forth the defense of laches, and that the cross-libel fails to state a cause of action for the reason that the transportation of cargo therein referred to was subject to the Carriage of Goods by Sea Act reading in part as follows (46 U.S. C.A. § 1304(3)):
Cross-respondents further state that the cross-libel affirmatively alleges that damage resulted from acts of public authorities.
Cross-libellant, Hellenic Lines, Limited, proceeded to file replies to the foregoing exceptive allegations which, in substance, point out that no unreasonable delay occurred in asserting the claims set forth in the cross-libel; that, prior to the institution of the original action by the shippers, communication with Greece was cut off by the German occupation of Greece; that limited communication was not permitted until late 1944; and that until the general manager of Hellenic Lines reached the United States in October, 1945, it was impossible for proctors adequately to discuss the pending litigation with cross-libellant.
The libel and intervening libels were filed in 1941, but the cross-libel was not filed until February 25, 1946. The bills of lading, upon which the claims for demurrage are predicated, were issued in December, 1940, and January, 1941, but the shipments did not arrive in the United States until April, 1941. The applicable state statute of limitations in Virginia is five years. Code of Virginia, 1919, § 5810; Code of Virginia, 1950, § 8-13. The time begins to run "after the right to bring the same shall have first accrued". In the instant case more than five years had elapsed from the date of the issuance of the bills of lading to the date of the filing of the cross-libel, but less than five years had passed if the right of action first accrued when the cargo arrived at its destination. The clauses of the bills of lading in controversy contain the following:
Under this provision of the bills of lading it would be impossible to determine the amount due thereon until the vessel arrived in the United States. The right to bring any action thereon first accrued when the vessel arrived at Newport News on April 21, 1941. Hence the cross-libel was filed within the limitation period as prescribed by the laws of Virginia.
Courts appear to be reluctant to hold a party guilty of laches where the period is shorter than the applicable state statute of limitations; the latter being the prima facie test of the measure of staleness in admiralty. Each case must rest upon a proper exercise of discretion and, in this proceeding, it cannot be successfully urged that cross-respondents have been unduly prejudiced in defending the claims in the light of the war conditions prevailing. True, the cross-libellant appeared by its proctors in defense of the original and intervening libels and much testimony was taken in the interim period, but upon the narrow issue as presented by the cross-libel the defense of laches cannot be sustained.
Indeed it should be noted that the exceptive allegations were overruled by District Judge Hutcheson on November
Assuming arguendo that the Court should properly consider the defense of "preference" interposed by cross-respondents in their briefs, it is not clear that the provisions of the Shipping Act (46 U.S.C.A. § 812, 815, 816) are applicable to the Anghyra in view of its probable status as a "tramp" vessel. The original definition of a "tramp" is revealed in a report of the United States Shipping Board Bureau of the Department of Commerce, 1 U.S.M.C. 470, 498, wherein it is said:
Tested alone by these principles, the Anghyra would not meet the definition of a "tramp" vessel, but thereafter the Maritime Commission modified this ruling on pages 2 and 4 of its report to Congress, House Doc. No. 520 (1938), 3rd Session, 75th Congress, in the following respects:
The foregoing definition was confirmed in 1943. See 2 U.S.M.C. 681-683.
It may be argued that, prior to the outbreak of the war, the cross-libellant had expressed an intention to establish a service to carry tobacco to this country via Gibraltar. Despite these intentions, the war disrupted these plans and the carrier at no time established a service to United States via the Suez Canal. The vessel's release from requisition was only for one trip via Suez. It is the opinion of this Court that the Anghyra was a "tramp" vessel, and therefore not subject to the provisions of this Shipping Act relating to "preferences".
It is unnecessary to discuss the interesting questions presented by proctors for the parties relating to the jurisdiction of the Court, and whether the matter of a "preference" must first be considered by the Federal Maritime Board as a condition precedent to action by this Court. In addition to the authorities heretofore cited, the following cases are of interest on these points. Prince Line v. American Paper Exports, 2 Cir., 55 F.2d 1053, 1056; Texas & Pacific Ry. Co. v. Interstate Commerce Commission, 162 U.S. 197, 16 S.Ct. 666, 40 L.Ed. 940; Compagnie Generale Transatlantique v. American Tobacco Co., 2 Cir., 31 F.2d 663; American Union Transport v. River Plate & Brazil Conferences, D.C., 126 F.Supp. 91;
Reserving for further consideration the amounts due by the cross-respondents on the cross-libel, a decree in favor of the cross-libellant is in order.
Proctors for the libellant and intervening libellants will prepare a decree in accordance with this opinion, which is adopted by the Court as its findings of fact and conclusion of law pursuant to General Admiralty Rule 46½, 28 U.S. C.A. with the right of all proctors to submit any other specific inquiries which may have been omitted herein. Matters of damages, interest and costs are reserved.
The decree will be entered upon presentation following endorsement of the several proctors.
FootNotes
ATC—American Tobacco Co.—Greek tobacco shipped from Cavalla
BW—Brown & Williamson—Bulgarian tobacco shipped from Bourgas
LM(B)—Liggett & Myers—Bulgarian tobacco shipped from Bourgas
LM(T)—Liggett & Myers—Turkish tobacco shipped from Istanbul
RJR—R. J. Reynolds—Bulgarian tobacco shipped from Bourgas
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