McGill v. Michigan S.S. Co.

• Decision Date: 19 March 1906
• Docket Number: 1,239.
• Parties: McGILL et al. v. MICHIGAN S.S. CO. et al. DOW et al. v. SAME.
• Court: U.S. Court of Appeals — Ninth Circuit

144 F. 788

McGILL et al. v. MICHIGAN S.S. CO. et al.

DOW et al. v. SAME.

No. 1,239.

United States Court of Appeals, Ninth Circuit.

March 19, 1906

The appeal in this case is taken from a decree in a proceeding to limit and determine the liability of the Michigan Steamship Company for injuries arising from the explosion of a fuel oil tank on its steamer Progreso, on December 3, 1902. During the summer of that year the steamship company, under a contract with the Fulton Iron Works, whereby the latter had agreed to convert the Progreso from a coal-carrying and coal-burning steamship into an oil carrier and burner, moored the Progreso at the dock of the Fulton Iron Works in San Francisco. The contract called for a complete reconstruction of the interior of the vessel, whereby it was to be divided into transverse partitions, consisting of a series of six tanks, of which the hull of the vessel was to form the bottom and the sides, and the tops were to constitute the main deck. It was during the progress of the work on this contract that the explosion occurred. The space between the tops of the tanks and the upper deck was dark, and was lighted during the repairing by both electric lights and candles, all of which were furnished by the iron works. One of the tanks was intended for fuel oil. It was the fourth tank from the bow, and was just forward of the engine room. It was constructed to be filled from the upper deck through an extension of the tank, which was called the 'extension trunk,' which extended from the lower deck to the upper deck from the center of the forward end of the top of the tank. Five days before the explosion the fuel tank had been tested for leaks and the leaks had been stopped, and the tank had been approved by the United States inspector as to the tightness of its walls. The ventilators for the tank had been ordered by the inspector and they were provided for in the plans and specifications for the work. The form of these ventilators and the precise places where they were to be attached to the tank does not appear from the testimony. A part of the work to be done on the ship consisted in putting in new boilers and an oil-burning furnace. The Fulton Iron Works furnished the parts of this machinery, and the employes of the Michigan Steamship Company installed them several days before the explosion. The steamship company desired to test this new machinery. It accepted the fuel tank from the Fulton Iron Works before the ventilators had been put in, and three days before the explosion it placed in the fuel tank about 400 barrels of fuel oil, partly filling the tank and leaving 1,200 barrels air space above the oil in the tank. By the contract of the steamship company with the iron works the latter was required to erect a stanchion to sustain the upper deck, which was to rest on the top of the fuel tank and to be secured to the under side of the upper deck and to the top of the tank by means of tap bolts. This required drilling through the top of the tank for the insertion of the bolts. The fuel oil was put in the tank before this was done. On the afternoon before the explosion Ferguson, the underforeman in the employment of the Fulton Iron Works, who knew that the oil was already in the tank and had examined the tank before the oil was received, sent McGinley, a driller, to drill the holes for the tap bolts of the stanchions. He partly completed the holes that afternoon using for light a candle which hung from a string on the drill frame. The following morning he continued his drilling and it would appear that on drilling through the top of the tank and withdrawing his drill a stream of oil gas from the tank was ignited by the candle, whereby the gas in the tank exploded, killing McGinley and about a dozen more, and injuring a large number. The claims presented to the District Court were for injuries to person and loss of life, and were of two general classes: First, those arising from killing and injuring sailors on the ship; and, second, those arising from killing and injuring employes of the Fulton Iron Works. The decree of the District Court limited the liability for all claims to the fund of $15,020 and interest. It allowed the claims of the heirs of sailors, but disallowed the claims arising from the death or injury to the employes of the Fulton Iron Works. The appeal is taken from that decree by certain of the employes of the iron works and their personal representatives.

William Denman, J. A. Watt, Sullivan & Sullivan, and F. R. Wall, for appellants.

Nathan H. Frank, for respondent.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

GILBERT Circuit Judge, after stating the case as above, .

It is the contention of the appellants that the Michigan Steamship Company was negligent in using oil of the quality of that which it used, and especially in putting oil into the fuel tank before the installation of ventilators in the tank, and that, if the tank had been supplied with the ventilators universally used in such fuel oil tanks, there could have been no explosion under the circumstances disclosed in the evidence, and that the employes of the iron works had the right to rely on the belief that the tank was properly ventilated, and that otherwise oil would not be placed in it. The undisputed evidence is that an inflammable gas rises from all of the crude oils used for fuel purposes, and that such gas will rise more or less rapidly, irrespective of the temperature of the body of the oil, or of its flashing point; that the gas unmixed with air is not explosive; that, when mixed with a certain proportion of air, it is highly explosive; and that as that proportion is departed from in either direction, whether by excess of air or excess of gas, the combination of gas and air is still explosive, but with diminishing force until a point is reached where the air is so much in excess of the gas, or the reverse, that no explosion will occur. The evidence shows, also, that the explosive combination of gas and air will not explode unless it is brought in contact with a spark or a flame, or is heated to a temperature of approximately 800 degrees. The testimony shows, further, that the gas rising from fuel oil is slightly heavier than air, and that ventilator tubes are ordinarily fixed in the top of closed fuel oil tanks, so as to permit the overflow of the gas after it has risen and occupied the space in the tank above the oil. But the testimony leaves it extremely doubtful whether the presence of such ventilators in the tank in question would, at the time of the accident, have rendered the gas in the tank nonexplosive. The oil had been in the tank about three days when the explosion occurred. During a portion of that time the cover to the trunk of the tank was off, leaving an opening about 3 feet 6 inches long by 1 foot 6 inches wide exposed to the air. The cover was off, according to the testimony, from six to eight hours on the day preceding the explosion. The ventilators which were to be placed in the tank, and which were approved by Lloyd's surveyor and by the government inspector of steam vessels, consisted of tubes rising from the top of the tank through the upper deck and extending above it.

The testimony is, without contradiction, that there is no danger of explosion in a tank tightly closed and unsupplied with ventilators. Prof. O'Neill, who is shown to be a qualified expert, testified that the removal of the top of the trunk of the fuel oil tank would probably not ventilate the tank so as to avoid the accumulation of dangerous gases, and that such a ventilation would not be safe. Mr. Ransome, an expert witness, testified that as long as the tank does not leak 'you do not need ventilation.' Capt. Metcalf, who was Lloyd's surveyor, testified that ventilators were not used to prevent explosions, but for utility. He said:

'There is no place safer in a ship than for the gas to be retained in the tank itself; and, if it was not necessary to admit air and allow air to be expelled in filling and emptying, you could not have it better than to have it air tight absolutely.'

Prof. O'Neill suggested a method of ventilation which would be absolutely safe-- a method by which a current of air might be forced into the tank by the use of a centrifugal blower or fan connected with a pipe leading from the blower into the tank. This device, however, does not appear to have been used on board any of the numerous ships that use oil for fuel. We do not overlook the testimony in regard to the adoption of such a blower on board the San Pablo after the accident to the Progreso; but that blower was not connected with the fuel tank. The fuel tank was placed in the hold, and it was in order to prevent the accumulation in the hold of gases escaping from the tank that a pressure fan was installed in the bottom of the hold, connected with a canvas hose to one of the portholes, through which it blew the gas, not from the tank itself, but from the hold. The use of that device was not required by the supervising inspector, and, according to the testimony, that officer has not at any time required fuel tanks to be ventilated in that manner. We do not think that the steamship company was bound to adopt this device, or any device not dictated by their own knowledge and experience, or that of others, or that its failure to do so was negligence. Nor does the evidence in regard to the probable utility of ventilator tubes rising from the fuel tank through the upper deck and discharging gases into the air carry the conviction that, had such ventilator tubes been installed in the fuel tank in question, the explosion could not have occurred.

The whole question of the explosibility of the contents of the tank above the oil,...