Hanson & Orth, Inc. v. M/V JALATARANG

• Citation: 450 F. Supp. 528
• Decision Date: 24 April 1978
• Docket Number: No. CV475-131.,CV475-131.
• Parties: HANSON & ORTH, INC., MGC Commodity Corp., Langston Bag Company, Ludlow Corp., Heads and Threads Company, Division of MSL Industries, Inc., Plaintiffs, v. M/V JALATARANG, her engines, gear, tackle, et cetera, Scindia Steam Navigation Company, Ltd., Smith and Kelly Company and Georgia Ports Authority, Defendants.
• Court: U.S. District Court — Southern District of Georgia

450 F. Supp. 528

HANSON & ORTH, INC., MGC Commodity Corp., Langston Bag Company, Ludlow Corp., Heads and Threads Company, Division of MSL Industries, Inc., Plaintiffs, v. M/V JALATARANG, her engines, gear, tackle, et cetera, Scindia Steam Navigation Company, Ltd., Smith and Kelly Company and Georgia Ports Authority, Defendants.

No. CV475-131.

United States District Court, S. D. Georgia, Savannah Division.

April 24, 1978.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

James H. Simonson, Bigham, Englar, Jones & Houston, New York City, for plaintiff Hanson & Orth, Inc.

Edwin D. Robb, Jr., Bouhan, Williams & Levy, Savannah, Ga., for other plaintiffs.

Lamar C. Walter, Chamlee, Dubus & Sipple, Savannah, Ga., for defendant Shipowner Scindia Steam Navigation Co., Ltd.

Ralph O. Bowden, III, Hunter, Houlihan, Maclean, Exley, Dunn & Connerat, Savannah, Ga., for defendant Smith and Kelly.

Griffin B. Bell, Jr., Lee & Clark, Savannah, Ga., for defendant Georgia Ports Authority.

OPINION

Findings of Fact and Conclusions of Law

LAWRENCE, District Judge.

I

On the night of May 30, 1974, a fire broke out aboard the M/V JALATARANG while longshoremen were discharging bales of burlap and jute at Savannah. The vessel was owned by Scindia Steam Navigation Company, Ltd. and was of Indian registry. She had carried the cargo from various ports in that country. Part of it was discharged at the Georgia Ports Authority terminal where the vessel berthed. Smith and Kelly Company performed stevedoring services for the JALATARANG.

Plaintiffs are consignees of the burlap and jute which was damaged by a combination of fire, smoke and water. The defendants are the vessel; Scindia Steam Navigation Company, owner; Smith and Kelly Company, stevedore, and Georgia Ports Authority, wharfinger.¹

Scindia counterclaimed against the plaintiffs for general average expenses in extinguishing the fire in an effort to preserve the cargo and vessel. The shipowner also filed a cross-claim against Smith and Kelly seeking indemnity by reason of the latter's breach of warranty of workmanlike performance of its stevedoring obligation.

The action was brought under Rule 9(h) and is within the admiralty and maritime jurisdiction. It was tried before the Court on December 20-21, 1976, following voluminous discovery.

The basic questions are:

(a) whether Scindia and/or Smith and Kelly are liable to plaintiffs for the cargo loss and

(b) whether, if both the shipowner and stevedore are liable to the consignors, is the former entitled to indemnity from the stevedoring company because of a breach of its implied warranty of workmanlike service?²

II

Jute is a highly inflammable vegetable fiber. One of the expert witnesses, Dr. Reginald Milton, testified:

"A characteristic feature of the jute fiber is a lot of tiny, little hair-like protrusions occur over the staple lengths, so that if you produce an ignition at one of these staples — because they are so fine and because they are so dry — the fire very rapidly flies along the whole length of the fiber, and if you have a series of bales close together and you get an ignition point, very rapidly the surface of the fiber of the jute will be covered with flame because of the rapidity of which these little fibers transmit the flame from one to another and the whole of the surface can be quickly inflamed. . ." See deposition, pp. 7-8.

According to another expert, fire will "spread very quickly, particularly in raw jute, and because of the nature of that and burlap, it will eat into the heart of the bale and it is extremely difficult to extinguish by hoses." Testimony of Frank Rushmore, Tr. pp. 273-274.

Jute is officially classed as a hazardous substance. 46 CFR § 146.27-25(a). As such, it is subject to various regulations, including stowing and handling. 46 CFR § 146.27. They require that "Fire hose shall be connected" and that "pressure shall be maintained on the fire mains during loading, ready for instant use." Portable fire extinguishers shall be so placed as to be readily available. 46 CFR § 146.27-25(c)(4). However, the regulations do not require fire extinguishers in the holds unless lift trucks are in operation. 46 CFR § 95.50-10(a).³

The safety regulations of OSHA covering longshoring provide that "lighting wires and fixtures for portable lights shall be so arranged as to be free from contact with drafts, running gear, or other moving equipment." 29 CFR § 1918.29(b)(3). Coast Guard regulations require checking for and eliminating any source of spark. 46 CFR § 146.27-25(c)(3).

III

The evidence as a whole leaves no real doubt concerning the origin of the fire that broke out in No. 3 hold on May 30, 1974. The JALATARANG was scheduled to depart Savannah at 9:30 P.M. that day. The discharge of No. 4 hold was completed around 8:45 P.M. The longshoremen of Smith and Kelly were then directed to complete the unloading of the 20 to 25 burlap bales remaining in the wing of the No. 3 starboard aft deep tank.

Richard Lexley, Jr. was the "header" of the gang of the longshoremen working in hold No. 3. Illumination of the wing of the deep tank where the bales were stowed was supplied by a cluster light. There is no permanent lighting in the cargo holds and drop lights are commonly used in stevedoring work. Tr. pp. 141, 174-175. The lamp involved was attached to a rubberized 70 to 75-foot length of cord which was plugged into a receptacle located in the masthouse on the weather deck. The drop light and cord is ship's equipment. It was lowered into the hold and was positioned in the deep tank by the longshoremen. The cord was pulled under the coaming of the deep tank and tied by rope to the ship's structure. It was at the starboard aft corner of No. 3 deep tank so as to see into the aft parts thereof. Tr. pp. 35, 42-43, 93-95, 124-125, 128, 141, 175-176, 207, 280. According to Larry Hadwin, the stevedore foreman of Smith and Kelly, the light was safely positioned in the "most out of the way place." Tr. p. 141.

The unscaled drawing below represents a cross-section of hold No. 3, showing the position of the light and other relevant features.

The fire in the deep tank broke out around 9:25 A.M. Richard Lexley, the header of the gang, testified that he was "looking right dead up at the wire." He referred to the steel wire or "runner" leading from the block to a rope sling made up of eight ropes with cargo hooks. Four bales of burlap were attached. The hooks are placed under the bands. The bales weigh from 500 to 600 pounds each. Lexley testified that "the wire hit the electric cord and cut it." That produced a spark which dropped 8 to 10 feet onto the jute. The steel runner became entangled with the light cable, cutting it near the coaming of the deep tank, according to Lexley. The resulting fire spread very fast. Tr. pp. 44-46, 58-59.

Willie Stevens who was also working in the deep tank testified: "We was making a pull around this extension (stanchion) down there out of this tank, and . . . this cable hit this steel comb up there. And a spark lit up and hit the floor . . . on top of this jute." He said that the spark fell from near the coaming. Deposition, pp. 5, 10.⁴

IV

The basic version of the eyewitnesses is supported by other evidence as well as by the testimony of experts. What the longshoremen refer to as a "spark" is technically known as an "arc." (See Tr. pp. 245-246). Mr. Frank Rushbrook described it as "an intensely hot spark over three thousand degrees Fahrenheit" which "instantly cuts off the supply of electric current . . . butts off a section of wire and fuses the ends of the wire into a typical situation which is a molten blob of metal . . .." Tr. p. 230.

Cargo is discharged by means of a gantry crane on the shore-side. The equipment in question is owned and operated by Georgia Ports Authority. The boom is connected by two crane cables to a large pulley block containing a hook. The block is too heavy to be positioned by the longshoremen under the top of the deep tank. The procedure used is to attach a rope sling to the hook on the block. Tr. pp. 33-36. It is attached to the block by means of a steel cable or runner approximately 15 feet long. When the bales are pulled out of the wing by the gantry crane, the runner makes a right angle turn upward toward the coaming, scraping against it until the draft reaches the square of the hatch of the tank from which point it is lifted vertically from the hold. Tr. pp. 33-34, 36, 47-48.

When the bales are hooked to the sling, the header signals a flagman stationed on deck. He relays it to the operator of the gantry crane. When the slack was taken up by the pull, the runner was under great pressure due to the weight of the bales and the steel cable scraped hard against the underside of the coaming where the light cord was. The bales stowed close to the overhead of the deep tank cannot be lifted without the runner scraping the coaming, according to Lexley. Tr. pp. 39-40. Apparently it slid sideways across the bottom of the coaming and because of the upward force of the draft the insulation was torn.

A short circuit resulted forming an arc of molten copper.

The drop light and cord were retrieved on the day following the fire. At a point three feet from the lamp the insulation of the wire was torn almost completely through. Both the plus and minus wires in the cord were cut. Approximately a one-inch section of both had burned away.⁵ Tr. pp. 230-232. Mr. Rushbrook, a fire consultant, who testified for plaintiffs, said that "as the wire splits, the electricity jumps the gap created by the broken wire and then it cuts away, it burns away instantly a section of wire which drops glowing white hot to the ground from wherever the cut occurred." Tr. pp. 230-236.

The plaintiffs' expert witness was "absolutely convinced" that the cause of the fire was a direct short circuit on the cluster light cable which caused molten metal to drop on the jute or gunnies. Tr...