EAC Timberlane v. Pisces, Ltd.

• Decision Date: 28 June 1983
• Docket Number: Civ. No. 78-0152CC,78-1408CC.
• Citation: 580 F. Supp. 99
• Court: U.S. District Court — District of Puerto Rico
• Parties: EAC TIMBERLANE, Subsidiary of East Asiatic Company, Inc.; Agencia Aduanal Gonzalez De Castilla, S.C.S.A. De C.F., Plaintiffs, v. PISCES, LTD.; Transportacion Maritima Mexicana, S.A.; Laeisz Maritime Trading Co., Ltd.; and the United Kingdom Mutual Steamship Assurance Association (Bermuda), Limited, Defendants, and Grolier Comercio E Importacao De Livros, Ltd.; Merck, Sharpe & Dohme De Mexico, S.A. De C.F.; Grolier, S.A.; Seguros La Provincial, S.A.; Seguros La Republica, S.A.; La Interamericana S.A. Cia. De Seguros; Enrique Barros Castelazo; Festo Pneumatic, S.A., Jose A. Rizo Padilla; Seguros La Comercial, S.A.; La Libertad Compañia General De Seguros, S.A.; Seguros La Equitativa Bch, S.A., Intervenors. In the Matter of the Complaint of PISCES, LTD., as Owner, and Transportacion Maritima Mexicana, S.A., as Bareboat Charterer of the Motor Vessel Eva Maria For Exoneration From or Limitation of Liability, Petitioners.

580 F. Supp. 99

EAC TIMBERLANE, Subsidiary of East Asiatic Company, Inc.; Agencia Aduanal Gonzalez De Castilla, S.C.S.A. De C.F., Plaintiffs, v. PISCES, LTD.; Transportacion Maritima Mexicana, S.A.; Laeisz Maritime Trading Co., Ltd.; and the United Kingdom Mutual Steamship Assurance Association (Bermuda), Limited, Defendants, and Grolier Comercio E Importacao De Livros, Ltd.; Merck, Sharpe & Dohme De Mexico, S.A. De C.F.; Grolier, S.A.; Seguros La Provincial, S.A.; Seguros La Republica, S.A.; La Interamericana S.A. Cia. De Seguros; Enrique Barros Castelazo; Festo Pneumatic, S.A., Jose A. Rizo Padilla; Seguros La Comercial, S.A.; La Libertad Compañia General De Seguros, S.A.; Seguros La Equitativa Bch, S.A., Intervenors.

In the Matter of the Complaint of PISCES, LTD., as Owner, and Transportacion Maritima Mexicana, S.A., as Bareboat Charterer of the Motor Vessel Eva Maria For Exoneration From or Limitation of Liability, Petitioners.

Civ. Nos. 78-0152CC, 78-1408CC.

United States District Court, D. Puerto Rico.

June 16, 1983.

As Amended June 28, 1983.

COPYRIGHT MATERIAL OMITTED

Antonio M. Bird, Bird & Bird, San Juan, P.R., for plaintiffs.

José A. Fusté, Jimenez & Fusté, San Juan, P.R., for defendants.

MEMORANDUM OPINION AND ORDER

CEREZO, District Judge.

On January 25, 1978, at approximately twenty minutes before midnight, a massive explosion shattered the hull of the motor vessel EVA MARIA severing its bow and eventually sinking it with all its cargo. Fortunately, there was no loss of life. This casualty originated the present consolidated cases which consist of a complaint, brought pursuant to the applicable provisions of the Carriage of Goods by Sea Act (COGSA) 46 U.S.C. Secs. 1300, et seq., and pertinent case law, for cargo loss by the consignees, shippers and owners of most of the lost cargo and their insurance companies¹ the plaintiffs and intervenors in Civil No. 78-0152 (herein referred to as either cargo interests, cargo, plaintiff-claimants and/or shippers). These cargo claims were filed against defendants Pisces, Ltd., the Liberian corporation owner of the vessel; Transportación Marítima Mexicana, S.A. (TMMex), the vessel's lessee and parent corporation of Pisces, Ltd.; Laeisz Maritime Trading Co., Ltd. hired by TMMex to navigate and operate the M/V EVA MARIA and their insurance company, United Kingdom Mutual Steam Ship Owners Assurance Association (Bermuda) Ltd. One of these defendants (hereinafter referred to as either defendant-petitioners or carriers) TMMex, filed a counterclaim to recover unpaid freight. Defendants Pisces, Ltd., as owner, and TMMex, as charterer of the M/V EVA MARIA, later filed a petition for exoneration from or limitation of liability under the Limitation of Liability Act (Limitation Act), 46 U.S.C. Secs. 181-189, Civil 78-1408, which was consolidated with the cargo claims.

The parties agree that the M/V EVA MARIA sank because of a massive explosion of a shipment of detonator caps it was carrying on board. The threshold issue to be determined is what activated the detonators that exploded. The theory of the cargo claimants is that they were activated by the impact of two adjacent road graders which came loose due to improper storage. The carriers attribute the detonators' activation to spontaneous self-heating in the cushioning material used in their packaging. Trial was held during the period of November 2 to November 6, 1981. After examining the evidence presented during trial, the transcript of the proceedings, the entire record before us and the extensive memoranda filed by both parties, the Court makes the following relevant:

FINDINGS OF FACT

1. The M/V EVA MARIA was a general purpose cargo ship built in the Federal Republic of Germany by the Seebeckwerft shipyards under the supervision of Det Norske Veritas surveyors, a Norwegian classification society. Upon completion of the hull in 1971, the ship was awarded the Det Norske Veritas' highest class designation and remained classed with said society all throughout its life. The M/V EVA MARIA was well maintained and repaired by both its owners; initially, a Norwegian shipowner, and, since 1975, by petitioner Pisces, Ltd. who registered the vessel under the Liberian flag.

2. The M/V EVA MARIA was the Seebeck type 36L model, a medium size cargo ship of approximately 491 feet in length having an approximate gross registered tonnage of 9900t. The vessel had five cargo holds which, together with the engine room, for purposes of illustration could be said to have divided the hull into six parts of more or less equal proportion. Cargo hold number one was the closest to the ship's bow. It was immediately followed in a bow to stern direction by hold number two and so on until hold number five. Right on the stern of the vessel and immediately after hold number five were the engine room, bridge and crew's quarters. The ship had various cranes and masts on deck between the cargo holds. Each of the holds had a tween deck which communicated with the lower portion of the hold and with the deck by folding McGregor type metal hatch covers.

3. There is no dispute that the EVA MARIA at the time of the explosion had adequate fire fighting equipment and a functioning fire alarm system. Its other equipment and machinery, including its cargo holds ventilating system, were also adequate and functioning properly. It was also shown that the stability or metacentric height of the vessel was not of a value that would produce any unusual rolling or motion of the ship during its ocean voyage.

4. The ill-fated voyage of the EVA MARIA started on January 6, 1978 when it left the port of Santos, Brazil destined to the Mexican ports of Veracruz and Tampico via San Juan, Puerto Rico. After an uneventful trip where it encountered mostly slight to moderate swells of three to five feet, moderate breezes of eleven to fifteen knots and temperatures which never exceeded 31°C, the vessel entered San Juan Bay on January 16, 1978.

5. While docked in San Juan, the United States Coast Guard boarded the vessel for an inspection specifically related to the cargo of detonators. The Coast Guard fined TMMex for violations of 33 CFR 124.14(a)(1) (failure to give advance notice of arrival to a U.S. port of a vessel laden with explosives) and 49 CFR 179.30(b) (failure to list commodity on dangerous cargo manifest in the English language). The Coast Guard made checks for proper stowage and separation of the explosives and found everything else in compliance. It should be mentioned that the forward portion of the number two tween deck containing 38,415 bags of yellow corn was emptied and off loaded in San Juan. Before leaving San Juan on January 20, 1978 a change of command took place—Capt. Peter Lunau replaced Capt. ULF E. Mahnke for the San Juan-Veracruz leg. On the voyage to Veracruz, aside from a brief mid-ocean stop to repair the engines, there were no particular incidents until the 25th of January.

6. On the morning of January 25, 1978, a boat and fire drill was carried out by the crew and performed without incident. At about 1600 hours the ocean swells and wind speed started picking up. According to the logbook annotations, the waves were scale six, a condition described on the logbook's Sea Disturbance Scale as "rough," wave height crest to trough, 8-12 feet, and the wind was scale 7 or of near gale intensity (27-33 knots) per the Beaufort scale. At 1900 hours the recording officer noted: "Ship is rolling heavily (max. 20°) in NNW'ly swell and seas, sometimes seawater on deck and deck cargo." The ship's chief officer later explained that the wave and wind activity decreased substantially after the 1900 annotation.

7. At 23:40 the ship was violently shattered by a massive explosion. The explosion practically severed the vessel's bow from the number two hold onward. According to the officer's testimony, they heard a loud explosion which damaged parts of their quarters and immediately saw a huge wall of fire higher than the remaining middle mast extending athwart over the entire deck. Nothing forward of hold number four could be seen because of the flames. Contemporaneously with the blast, the vessel's forward section went down in a jerky manner and the rest of the hull started to take in seawater. The officers assessed the damage immediately and tried to fight the fire. It was hopeless. The crew was gathered and put to lifeboats where they watched the EVA MARIA burn and gradually take in water. On January 26, 1978 at 11:20 the vessel rolled over completely on its side and sank. The crew drifted in their lifeboats for two days until they sighted the lights of a Mexican oil drilling platform and reached it safely. There is no question that the evacuation of the vessel was performed diligently and that there was no way of controlling the fire or of saving the ship.

8. The shipment of detonators which exploded consisted of one million aluminum cylinders about 1¾ inches long and ¼ inch in diameter, closed at one end. Each cylinder or cap was partly filled in its closed end with explosive powder consisting of a base charge of 7.7 grams of P.E.T.N. with about 8% TNT to provide stabilizing effect and a primer/ignition charge of a mixture of 4.6 grains of lead azide and lead styphnate (75% and 25%, respectively). The detonators were designed to be activated by fire in the following manner: a fuse is inserted into the cylinder until it makes contact with the explosive powder and it is then clamped with a special tool that bends the cylinder slightly. The fuse is then lit and starts burning until it reaches the cylinder and activates the explosives.

9. The detonators were manufactured by Industrias Quimicas Mantiqueiras, S.A. of Lorena, Brazil.² Said firm was visited by defendant-petitioners' attorneys and experts about nine months after the casualty. On this first visit the carriers' explosives expert, Mr. Dolph Campbell, noticed several irregularities at the...