Appeal from the District Court of the United States for the Eastern District of Pennsylvania; William H. Kirkpatrick, Judge.
Before BUFFINGTON, DAVIS, and BIGGS, Circuit Judges.
BUFFINGTON, Circuit Judge.
In the final analysis this case, with its record of eight hundred pages, centers into a few decisive facts. In the court below, sitting in admiralty, the Atlantic Refining Company, owner of the oil tanker W. D. Anderson, petitioned for exemption of liability and, in case that was denied, for limitation of liability. The court referred the matter to a master, who recommended the petition be granted. On hearing, the court denied the petition as to exemption of liability, but allowed the petition as to limitation of liability. Thereupon Atlantic took this appeal.
The case grows out of an explosion on board the W. D. Anderson, wherein several men were killed and a number of other injured. The representatives of the dead brought suit in a state court, as did also the surviving injured. After proofs and final hearing, the trial judge filed a lengthy opinion which discussed the evidence and the law bearing on the case. After full consideration by this court, we find no error on his part and we might well limit ourselves to affirming its decree on his opinion. In view, however, of the importance of the case, we discuss it at further length, although doing so is but an attempt to clothe in different language what has been already stated in the opinion below.
From the proofs it appears that some months before the explosion, the W. D. Anderson was damaged by grounding. She, however, continued in her trade as an oil tanker until it was determined to have her injuries repaired by the shipyard corporation (hereafter called shipyard). Accordingly, she delivered, steam up, by Atlantic to shipyard on the morning of June 7th, and the explosion occurred six or seven hours later. The proofs tended to show that the Anderson's foremost compartment, known as the "forepeak", had no port holes or ventilation, carried no oil, but at times water ballast. This forepeak was lined with cement which was an oil absorbent. The compartment immediately after the forepeak was an oil cargo tank. After the grounding of the Anderson, it had been found, on sounding, that this oil tank compartment showed a loss of half a foot of oil and that the missing oild had gone from the oil compartment into the forepeak water tank. Thereafter this oil was not removed from the forepeak, but, on discharge of cargo, most of the oil had drained back into the cargo oil tank. On further investigation by Anderson's officers, it was found a rivet was missing in the wall between the two tanks. This left a hole some seven-eights inches in diameter and somewhat above the tank bottoms. The hole was then plugged and cemented, but the oil below the level of the hole, which could not drain back, remained on the forepeak floor. In addition, the cement lining would absorb the oil. In that regard the proof is:
"Q. And you heard the testimony of the captain that in March, of 1934, there was a seepage of oil from the number 1 deep tank into the forepeak tank. Now, Doctor, if that was permitted to drain out by gravity back into the number 1 deep tank, would that or would that not drain out cleanly? A. No, sir, it would not drain out clean.
"Q. What would it leave? A. It would leave there an adherent surface of oil on every surface that the oil came in contact with during the voyage of that vessel from the time at which a leak developed until the point at which number 1 deep tank was emptied. That film would be considerably thicker and deeper in all portions of the forepeak tank that had the cement wash, because from my practical knowledge I know that oil will be soaked up by cement. In fact, it doesn't take expert opinion for that. We see it all over the country roadsides, that ordinary lubricating oil is dropped on the cement, and while it is exposed to all sorts of weather conditions, the rain and high temperatures of the direct sunlight, that oil works in the concrete and is never entirely removed."
Pertinent thereto, the chief engineer testified:
"Q. How did you dispose of that inch and a half below the level of the hole? A. I didn't dispose of that.
"Q. What was done with that? A. I don't know.
"Q. As far as you know, you went away and left it."
The master gave orders as follows:
"Q. I understand you after the oil ran out you wiped the forepeak? A. I gave those orders to the chief mate, yes, sir.
"Q. You don't know whether it was ever done, do you? A. I took for granted it was, sir.
"Q. You didn't examine to see? A. No, sir.
"Q. What efforts did you make to clean out that four to five inches in that one compartment of the forward compartment? A. I mentioned the fact to the chief officer to have it ...