Asbestos Corp. Ltd. v. COMPAGNIE DE NAVIGATION, ETC.

• Decision Date: 15 June 1972
• Docket Number: No. 65 AD 785.,65 AD 785.
• Citation: Asbestos Corp. Ltd. v. COMPAGNIE DE NAVIGATION, ETC., 345 F.Supp. 814, 1972 A.M.C. 2581 (S.D. N.Y. 1972)
• Parties: ASBESTOS CORP. LTD., et al., Plaintiffs, v. COMPAGNIE DE NAVIGATION FRAISSINET ET CYPRIEN FABRE et al., Defendants.
• Court: U.S. District Court — Southern District of New York

345 F. Supp. 814

ASBESTOS CORP. LTD., et al., Plaintiffs, v.COMPAGNIE DE NAVIGATION FRAISSINET ET CYPRIEN FABRE et al., Defendants.

No. 65 AD 785.

United States District Court, S. D. New York.

June 15, 1972.

COPYRIGHT MATERIAL OMITTED

Bigham, Englar, Jones & Houston, New York City, for plaintiffs; James H. Simonson, John T. Kockendorfer, Thomas J. Hanrahan, New York City, of counsel.

Kirlin, Campbell & Keating, New York City, for defendants; Edward L. Smith, Enrico S. Sanfelippo, New York City, of counsel.

OPINION, FINDINGS OF FACT and CONCLUSIONS OF LAW.

LEVET, District Judge.

Plaintiff, Asbestos Corp. Ltd., and other shippers, plaintiffs in this action, seek to recover for cargo damage as a result of fire aboard the M/V Marquette, owned by defendantCompagnie De Navigation Fraissinet et Cyprien Fabre, while transversing the North Atlantic Ocean en route from Great Lakes ports to European ports.

The initial issue on liability here is whether the defendant¹ exercised due diligence before and at the beginning of the voyage to make the ship seaworthy so that the vessel was properly equipped and possessed adequate fire fighting equipment to fight an engine room fire.It is the contention of the defendant that it is exempt from liability under the Carriage of Goods by Sea Act, 46 U.S.C. § 1304(2)(b) and the Fire Statute, 46 U.S.C. § 182.

After hearing the testimony of the parties, examining the exhibits, pleadings and Proposed Findings of Fact and Conclusions of Law and post-trial memoranda submitted by counsel, this court makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

1.The rights of the parties are governed by the Carriage of Goods by

Sea Act (COGSA), 46 U.S.C. § 1300 et seq. and the Fire Statute, 46 U.S.C. § 182.The provisions of the Safety of Life at Sea Convention (1929 or 1948)(SOLAS) do not control the rights of the parties herein.Compliance with SOLAS is insufficient to render the Marquette seaworthy.Compliance with SOLAS does not exempt the defendant from liability under COGSA § 1304(2)(b) or the Fire Statute.

2.Plaintiffs were holders of bills of lading for cargo shipped in apparent good order and condition aboard the Marquette at Great Lakes ports for transportation to European ports.(4, 50-51, 224-225, Ex. L.)²The bills of lading provide that the rights of the parties are subject to the terms of COGSA and the Fire Statute.(Ex. 1.)

The bills of lading provide:

"It is agreed that the custody and carriage of the goods are subject to the following terms which shall govern the relations whatsoever they may be, between the shipper . . . and the Carrier . . . in every contingency, wheresoever and whensoever occurring, and also in the event of deviation or of unseaworthiness of the ship at the time of loading or inception of the voyage or subsequently, and none of the terms of this bill of lading shall be deemed to have been waived by the carrier unless by express waiver in writing and signed by a duly authorized agent of the carrier:

"1.This bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States . . . which shall be deemed to be incorporated herein, and nothing herein contained shall be deemed a surrender by the Carrier of its rights or immunities or an increase of any of its responsibilities or liabilities under said Act.The provisions stated in said Act shall govern . . . throughout the entire time the goods are in the custody of the Carrier.

* * * * * *

"16.Neither the carrier nor any corporation owned by, subsidiary to or associated or affiliated with the carrier shall be liable to answer for or make good any loss or damage to the goods occurring at any time and even though before loading on or after discharge from the ship, by reason or by means of any fire whatsoever, unless such fire shall be caused by its design or neglect."

3.The Marquette is a vessel of French registry owned and operated by the defendant.She was launched on October 4, 1952 and delivered to her owners fully outfitted on April 4, 1953.She was lengthened or "jumboized" during the period from January 15 to March 2, 1959.(6, 13, 44, 117, Exs.A, L.)

4.On July 21, 1964, at approximately 11:15 A.M., while transversing the North Atlantic Ocean, fire broke out in the engine room of the Marquette when a defective screw fell from an oil pump, causing oil to spray onto and become ignited by the manifold of an adjacent propulsion engine.(4, 15-18, 52, 59, 73, Exs. 1 and 2A.)

5.The fire spread slowly from the engine room into the living quarters of the bridge and the radio operator's room, then into the No. 4 cargo hold where the fire was observed six hours after the outbreak of the fire in the engine room, then into the No. 5 cargo hold and finally into the No. 2andNo. 3 cargo holds.(4-5, 83.)

The S. S. Pentillian came to the assistance of the Marquette and towed her to Brest, France, arriving July 29th.The fire which continued to burn was extinguished at Brest and so much of the cargo as was not totally destroyed was discharged under the supervision of a cargo surveyor appointed by the Commercial Court of Brest.(4-7, Exs. 3A, N.) 6.The Marquette was equipped with ten pumps for all purposes.(61.)Of these ten pumps the Marquette had one fire pump, one bilge pump and one ballast pump; all of which could be used for fighting fires.(16, 60-66, 106.)All pumps are located in the engine room.(61-62.)All pumps are controlled from the engine room and to operate such pumps it is necessary to enter the engine room.(57, 61-62.)The Marquette was also equipped with one stationary foam extinguisher, five portable extinguishers (three containing CO2 and two containing foam) and two boxes of sand for fighting fires.All of this fire fighting equipment was located in the engine room.(75-76, 112.)The crew of the Marquette could not fight the fire as the fire pumps had become inaccessible by reason of the fire and there were no controls external to the engine foom for starting the fire pumps.(9, 16, 57-58, 149, 197-198.)Furthermore, no emergency fire pump or fire fighting system had been provided outside the engine room in the event fire should make inaccessible the fire pumps located in the engine room.(16, 61-62, 196-197.)

7.The Marquette further maintained a steam smothering system for fighting fires.This system had outlets in the engine room.Two valves opening and closing the outlets were also located in the engine room.It takes an able seaman about forty-five seconds to open these two valves.When the steam smothering system is operating properly steam is forced through the outlets to smother any fire in the engine room.However, this system could not be used to fight the fire because the valves were never opened to made the system operational.The valves were closed when the fire broke out and could not be opened because of the fire.A steam smothering system with valves for opening the engine room outlets located in the engine room is not an adequate fire fighting system.(12, 16-17, 63, 75-88, 115-118, 228, 237.)

8.About ten minutes elapsed after the loss of the screw and the start of the fire.(87-88.)The mere outbreak of the fire did not force the immediate evacuation of the engine room.For several minutes thereafter the four crew members on watch in the engine room remained, shutting off vital components.(88, Exs. V. Z.)The chief engineer went down to the engine room through an escape tunnel to see if any crew members were still in the engine room.(56, 74, 113, 119.)From the escape tunnel the chief engineer ascertained that it was impossible to enter the engine room and open the valves for the steam smothering system because of the fire.(78, 113, 119.)After remaining in the escape tunnel for ten to fifteen minutes the chief engineer returned to the bridge.(77-78, 198.)On the bridge, the chief engineer informed the ship's captain that it was impossible to fight the fire.³Thereafter, in a last attempt to fight the fire, by cutting off its oxygen supply, a tarpaulin was placed over the top of an air funnel leading into the engine room.This maneuver was unsuccessful for the tarpaulin quickly caught fire.(78-79.)

9.Engine room fires are dangerous and likely to spread rapidly by reason of the presence within that compartment of large quantities of oil and numerous hot surfaces of sufficiently high temperature to ignite oil coming into contact with them.However, engine room fires can be successfully extinguished if they are quickly attacked.(159-162.)Putting all fire fighting equipment inside the engine room without external controls is inadequate fire protection (155, 159.)A ship may maintain an alternative means for fighting fires such as a steam smothering system but the system aboard the Marquette was inadequate for fighting the fire because the valves for opening the outlets leading into the engine room were located inside the engine room.(156.)An emergency fire pump, either water, CO2, foam, or one of like character, located outside the engine room could have been used to fight the fire.In like manner, an emergency fire system with controls located outside the engine room could have been used to fight the fire.(173-176, 184-188, 196-198.)The fire could have easily been fought from the emergency tunnel leading into the engine room by using a water hose with a spray nozzle.(149, 162.)It is reasonably certain that any one of these methods could have extinguished the engine room fire aboard the Marquette.

10.In summary I find that:

1.COGSA and the Fire Statute govern the rights of the parties.

2.The Marquette maintained a steam smothering system for fighting fires.However, this system could not be used to fight the engine room fire because the valves regulating the system were located in the engine room and could not be opened because of the fire.

3.All equipment...