16. Explosives 7-Evidence in action against stevedoring company for damages from pitch dust explosion held not to show established custom of concurrently using open lights and trimmers in loading pitch.

In action against stevedoring company for destruction of vessel and injury to and death of stevedores from pitch dust explosion, occurring while pitch was being loaded and alleged to have been caused by open flame lamps, or spark from electric trimmers, evidence held not to show an established custom to use open lights and trimmers concurrently in loading and trimming of pitch.

17. Explosives 7-Evidence held not to show that stevedoring company, loading pitch, was negligently liable, in that it had or could have acquired knowledge of dangerous character of pitch dust.

In action against stevedoring company for destruction of vessel and death of and injury to stevedores from pitch dust explosion, occurring while pitch was being loaded on vessel and alleged to have been caused by open flame lamps or spark from electric trimmers, evidence held not to show that stevedoring company was negligent, in that it actually knew about inflamma

ble or explosive tendencies of pitch dust, or might have known thereof, from its own experience with coal dust, or that it could have acquired additional knowledge through manufacturers of pitch, or from scientists or experts.

18. Explosives 7-Stevedoring company held not shown negligently liable for pitch dust explosion, in failing to sprinkle pitch being loaded on vessel by electrical trimmer.

Stevedoring company, loading pitch onto vessel by electrical trimmers, held not shown to have been negligently liable for pitch dust explosion by its failure to sprinkle pitch while being loaded, notwithstanding evidence of custom of sprinkling coal, since it would have to be shown that practice of sprinkling coal was resorted to with knowledge of hazard of coal dust explosions, and with intent to minimize such hazard, which fact was not shown.

19. Explosives 7-Stevedoring company held not negligent in using open flame lamps, causing pitch dust explosion, while loading pitch on vessel.

Use by stevedoring company of open flame lamps while loading pitch on vessel held not negligence, rendering it liable for pitch dust explosion ignited by lamps, where such lamps had been used for many years without disaster, and there is no claim that any of stevedores were careless in using them.

20. Explosives 7-Stevedoring company held not shown to have negligently maintained or operated electrical trimmers, rendering it liable for damages from pitch dust explosion.

In action against stevedoring company for damages from pitch dust explosion occurring while pitch was being loaded on vessel, and alleged to have been caused by open flame lamps or spark from electrical trimmers, evidence held not to show that stevedoring company was negligent in maintenance or operation of trimmers.

21. Explosives 7-To render stevedoring company liable for destruction of vessel and injuries to stevedores from pitch dust explosion, failure to furnish reasonably safe place or implements, knowledge thereof, and that such failure was proximate cause of explosion, must be proven.

In action against stevedoring company for destruction of vessel and death of and injury to stevedores from pitch dust explosion, occurring while pitch was being loaded on vessel, and alleged to have resulted from open flame lamps and electrical trimmers used by company, in order to recover of stevedoring company, it must be shown that place or implements which it furnished or used were not reasonably safe, that it knew such fact, or by exercise of reasonable care should have known it, and that failure to furnish such reasonably safe place or implements was proximate cause of explosion.

In Admiralty. Libel by Jules Emmanuel Denis Cornec, master of the French barque Richelieu, and others, against the Baltimore & Ohio Railroad Company, wherein the railroad company filed a cross-libel against the vessel and cargo, and impleaded the F. J. Lewis Manufacturing Company, and the owners of the Greek steamship Emanuel Stavroudis intervened. Decree in accordance with opinion.

George Forbes, of Baltimore, Md., for libelant Cornec.

Lord & Whip and Duncan K. Brent, all of Baltimore, Md. (George W. P. Whip, of Baltimore, Md., of counsel), for respondent Baltimore & O. R. Co.

Niles, Barton, Morrow & Yost, of Baltimore, Md., and William P. Hurley, of Newark, N. J. (Emory H. Niles, of Baltimore, Md., of counsel), for respondent F. J. Lewis Mfg. Co.

Glick & Schlossberg, of Baltimore, Md., for libelant Blake.

Harry O. Levin, of Baltimore, Md., for libelants Savage and others.

Henry L. Wortche, of Baltimore, Md., for libelants Le Feuvre and others.

Harry H. Goldberg and Harry Perlin, both of Baltimore, Md., for libelants Stevenson and others.

Wm. H. Lawrence and George T. Mister, both of Baltimore, Md., for libelants Buck and others.

Briscoe & Jones, of Leonardtown, Md., for libelant Howe.

WILLIAM C. COLEMAN, District Judge. The question in this case is as to the liability for an explosion which occurred on the French barque Richelieu while lying at the Baltimore & Ohio Railroad Company's coal piers, Curtis Bay, Baltimore, on the late

the crew. The vessel herself was damaged to a great extent and sank at the pier. A large part of the cargo was destroyed or damaged. The vessel was being loaded by electrical trimmers owned and operated by the Baltimore & Ohio Railroad Company, which operation was supplemented by hand trimming performed by the stevedores, who were employed by and under the direct supervision and control of the railroad company. As a result of the disaster, the owners of the Richelieu libeled the railroad company for the damage to the vessel. Three of the vessel's crew and eight stevedores, who were injured, and the representatives of four of the stevedores, who were killed, also brought libels against the railroad and the vessel and cargo as well.

The railroad company filed a cross-libel against the vessel and cargo, at the same time impleading the F. J. Lewis Manufacturing Company, manufacturers and shippers of the cargo, as respondent, under the fifty-sixth admiralty rule, claiming that, whatever liability might exist for the disaster, the latter company, and not the railroad company, was responsible therefor. Lastly, the owners of the Greek steamship Emanuel Stavroudis intervened against the railroad company, the Lewis Company, and the ship and cargo, claiming reimbursement for salvage of the Emanuel Stavroudis, allowed by this court, and occasioned by the fact that this vessel was lying at the same pier in close proximity to the Richelieu, at the time of the disaster, and was towed to safety. See The Emanuel Stavroudis (D. C.) 23 F.(2d) 214. All of the suits (except that for salvage reimbursement) were consolidated and heard together.

The interrogatories and answers thereto are many and multifarious. The trial covered 29 days. Testimony of some 100 witnesses was taken, covering over 6,000 pages. In addition, there are depositions of 38 French sailors and others, who were aboard the Richelieu at the time of the explosion, and many photographs, drawings, and other exhibits. A model of the pier and trimmers, electrically operated, showing the Richelieu in the course of being loaded, was exhibited in the courtroom during the trial. At the

sel visited the pier, where a demonstration was given by the railroad officials of one of the trimmers loading coal into an open barge. Certain tests were also made, as to arcing and sparking of one of the trimmers, with samples of coal and also of pitch taken from the Richelieu.

The managing owner of the Richelieu at the time was the Société des Armateurs Français, the French republic having an interest in the vessel as a training ship of the Société des Navires Écoles Françaises. For this reason there were a number of cadets aboard. By the terms of the charter party, the vessel was under contract to carry a cargo of pitch, consisting of not less than 3,900 nor more than 4,400 tons, to Lorient, France, where it was to be used as a binder in the manufacture of briquettes. The manufacturers and sellers of the pitch, the F. J. Lewis Manufacturing Company, had a separate contract, with which the vessel had no connection, with the buyers, Robinson, Butler, Hemingway & Co., of New York, for Walter H. Brown & Co., London.

Summarized, the basis of the claim on behalf of the vessel and the various other libelants is that the railroad company was negligent in the means which it employed and the manner in which it loaded the cargo, or, more specifically, that the railroad company (a) undertook as stevedores to load the pitch safely into the vessel; (b) that in the loading it reduced much of the pitch to dust, rendering it highly inflammable and explosive; (c) that the reducing of the pitch to dust was by means of electrical trimmers, which, by reason of their imperfect design and run-down condition, produced arcs and sparks; (d) that either these arcs and sparks, or the open lights or torches which the railroad company's stevedores used in the dust area, or both, were the igniting agency for the explosion.

The railroad company's reply is that all that was required of it was ordinary care in the handling of the cargo, and that it exercised such care; that, as a result of this disaster, pitch is now known to be highly inflammable, much more so than coal, but that such was not previously known to be true; and that, therefore, conceding that both the trimmers and the open lamps are dangerous instrumentalities to use with pitch, and conceding, further, that the open lamps were the igniting agency in the explosion, nevertheless, the railroad company is without liability, because the danger was neither known to it at the time, nor to the lay or

scientific mind; and therefore that, if there was any negligence in relation to the disaster, such negligence was that of the vessel, or of the shippers of the cargo, or both-of the former on the ground that the vessel was not properly constructed, fitted, and supervised by her master at the time of loading; and of the latter, because the pitch, when delivered, was inherently dangerous and vicious, and contrary to the railroad company's contract. The Lewis Company, on its part, denied that the product which it delivered was not pursuant to contract, or that it was inherently vicious and dangerous, and that whatever liability might exist for the disaster was the liability of the railroad company because of improper handling of the cargo.

When libelants and the railroad company had concluded their testimony, the court found that the evidence was legally insufficient, for reasons hereinafter fully discussed, to warrant a finding that the Lewis Company was in any way responsible for the disaster, and so dismissed that company.

At the outset, a clear understanding of the exact nature of the cargo which was being loaded into the Richelieu at the time of the disaster is essential, as is also a clear understanding of the type of the vessel herself and the method employed in receiving and loading the cargo.

First, as to the cargo: This was coal tar fuel pitch, which is a by-product of coal. Crude coal tar, the raw material from which pitch is made, is produced by the carbonization or destructive distillation of high volatile coal, either in by-product coke ovens or in gas retorts. It appears that about 80 per cent. of the coal tar made in the United States is produced in by-product coke ovens, the principal products of these orens being metallurgical coke; the tar being the nonacqueous portion of the vapors that are distilled off the coal. The crude tar thus obtained is then placed in large storage tanks, where the free water separates and is drawn off. From these storage tanks the tar is pumped to the still, where the oils are condensed and taken off; the first of these being known as light oils, containing benzol and other solvents of that series. Next in the distillation comes the creosotes-that is, the coal tars-and, depending upon the grade of pitch desired, the distillation is prolonged or stopped, the amount of oil varying in proportion to the hardness of the pitch; that is to say, the harder the pitch, the greater the amount of oil that must be taken off the tar in the form of a distillate.

When the proper grade of pitch is thus obtained, it is run into a cooling tank, and then into bays or vats, where it is seasoned. By this time the pitch has changed from a viscous liquid to a solid mass, and is ready to be broken up for shipment.

For the manufacture of fuel briquettes, in which this particular pitch was to be used, the European process consists of grinding the pitch, then mixing it with pulverized coal in the proportion of approximately 93 per cent. coal and 7 per cent. pitch, and the mixture is then heated and by means of presses run out into briquette form. The briquetting industry abroad is very extensive, more so than in this country—a great deal of such fuel being used in the larger sizes in Europe for railroad locomotive fuel; in the smaller ones for domestic fuel. The exportation of briquette pitch from the United States to Europe is small, relatively speaking, and such as has been exported has, to a very large extent, passed through the port of Pensacola, Fla. England supplies the bulk of the export business to the European continent. The Baltimore & Ohio Railroad Company's tariffs, and the tariffs of carriers generally, provide for this commodity under the generic term "pitch." The tariff under which this particular cargo was handled provided that it would be accepted only after prior arrangement which, as will be hereafter referred to, had reference, not to hazards in handling, but because it was desirable to give coal shipments preference at the piers. Pitch was not then classified in any of the effective tariffs or bulletins issued by the carriers, or allied agencies, as being dangerous. The melting point of this particular pitch was approximately 180° Fahrenheit, and its content of volatile combustible matter approximately 69 per cent.

Next, as to the type of vessel into which the cargo was being loaded: The Richelieu was a steel barque, built in 1919 in Hamburg, Germany, 323 feet long, 47 feet beam, 25 feet draught, with a gross tonnage of 3,216 tons. Her lower hold was entirely open from stem to stern bulkheads, broken only by three webs, and by a temporary wooden bulkhead placed between No. 1 and No. 2 hatches, 'tween-decks. Between the main deck and the 'tween-decks was a clearance of approximately 7 feet, and from the 'tween-decks down a depth of approximately 20 feet. There were four hatches, varying in size from 8 feet 3 inches by 8 feet 5 inches to 24 feet 10 inches by 14 feet, which latter dimensions are those of No. 2 hatch, with which, as will hereinafter appear, we