Petition of Skibs A/S Jolund

• Decision Date: 29 November 1957
• Docket Number: Docket 24481.,No. 353,353
• Citation: 250 F.2d 777
• Parties: Petition of SKIBS A/S JOLUND as owner of THE M/S BLACK GULL for exoneration from or limitation of liability. AMERICAN SMELTING & REFINING COMPANY, Atkinson Haserick & Co., et al., Libelants-Appellants, v. BLACK DIAMOND STEAMSHIP CORP., Respondent-Appellee. Maria VERBEECK et al., Libelants-Appellants, v. BLACK DIAMOND STEAMSHIP CORP., Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

250 F.2d 777 (1957)

Petition of SKIBS A/S JOLUND as owner of THE M/S BLACK GULL for exoneration from or limitation of liability.

AMERICAN SMELTING & REFINING COMPANY, Atkinson Haserick & Co., et al., Libelants-Appellants, v. BLACK DIAMOND STEAMSHIP CORP., Respondent-Appellee.

Maria VERBEECK et al., Libelants-Appellants, v. BLACK DIAMOND STEAMSHIP CORP., Respondent-Appellee.

No. 353, Docket 24481.

United States Court of Appeals Second Circuit.

Argued May 13, 1957.

Decided November 29, 1957.

Rehearing Denied January 16, 1958.

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Abberley Kooiman & Amon, New York City, for passenger-claimants-appellants; John J. Abberley, New York City, and James D. Gordon, Brooklyn, N. Y., of counsel.

Pyne, Brush, Smith & Michelsen, New York City, for petitioner-appellee, Skibs A/S Jolund; Warner Pyne, Dudley C. Smith, and Vincent J. Ryan, New York City, of counsel.

Bigham, Englar, Jones & Houston, New York City, for cargo and death claimants-libellants-appellants; Henry N. Longley and John W. R. Zisgen, New York City, of counsel.

Dow & Stonebridge, New York City, for respondent-appellee; Daniel L. Stonebridge and Raymond W. Mitchell, New York City, of counsel.

Before CLARK, Chief Judge, and SWAN, and POPE, Circuit Judges.

POPE, Circuit Judge.

The proceedings in the court below grew out of a fire which occurred on the Norwegian M/S Black Gull on July 18, 1952, while she was on a voyage from North European ports to New York. Four members of the crew lost their lives; most of the cargo was either destroyed or damaged, and the vessel became a constructive total loss. These proceedings were three in number: the first was one for exoneration from or limitation of liability instituted by Skibs A/S Jolund, owner of the Black Gull; the second was a suit for nondelivery of and damage to the cargo which was on board at the time of the fire (the libelants in that suit are the owners or underwriters of the cargo, and the respondent was Black Diamond Steamship Co., time charterer of the Black Gull, on its own behalf and on behalf of the Master); and the third proceeding was one to recover for the wrongful death of one of the lost seamen brought by his widow and children against the Black Diamond Steamship Corp.

The facts leading up to the fire and the loss are set forth in the second amended memorandum of the trial judge, as follows: "The vessel left Rotterdam on July 10, 1952, bound for United States east coast ports, the first of which was to be New York. She carried general cargo below decks which had been loaded at Bremen, Hamburg, Antwerp and Rotterdam. In addition, she carried on the weather deck approximately five hundred fifty tons of crude naphthalene in previously used jute or burlap bags which had been loaded in Antwerp and Rotterdam. The vessel on this voyage was manned by a crew of forty and carried nine passengers.

"The crude naphthalene was stowed about six bags high. The stow covered both port and starboard sides of the afterdeck over an area of some 13-16 feet wide and approximately 90 feet long. The forward weather deck of the vessel, both port and starboard, contained an approximately similar stow of bagged crude naphthalene. In athwartship direction, the stow started just in-board of the bulwarks and continued to a line about three feet out from the sides of the hatch coamings. A dunnage fence kept the stow clear of the bulwarks and permitted a three foot wide passageway through which members of the crew could pass. This passageway also kept sounding plugs and hose connections available to the crew. The stow was secured in place by rope nets but was otherwise uncovered.

"On the evening of July 18, 1952, the vessel passed the Nantucket Shoals Light on her way to New York. At about eleven o'clock, the deck officer, standing on the starboard wing of the bridge, heard what he described as `a hollow dull dump' from the afterpart of the vessel. Looking in that direction, he saw smoke and a small flame coming from the after weather deck port side abreast number 4 hatch about 100 feet from his position on the bridge. After ordering water on deck, he went to the area in the vicinity of the smoke. He there saw fire in the middle of the top of the load and fire on the side of the load between the second and third tiers from the top.

"Although an attempt was made to extinguish the fire it was necessary to abandon the vessel about four and a half hours after the fire was discovered."

The libel of the cargo owners against Black Diamond Steamship Corp. (here called Black Diamond), after referring to the shipments, and bills of lading therefor, alleged: "The shipments described on Schedule `B' either have not been delivered at all to the persons entitled thereto or have been delivered to them short, slack and seriously injured and damaged, and such parts of said shipments as have been delivered were, at time of delivery, subject to alleged liens for salvage and other charges not contracted for in the said bills of lading."

Black Diamond asserted non-liability under the Carriage of Goods by Sea Act (U.S.C.A. Title 46, § 1304(2)), which provides that the carrier shall not be responsible for loss or damage from fire "unless caused by the actual fault or privity of the carrier." These cargo owners, appellants here, claim there was fault or negligence on the part of Black Diamond's managing agents, in failing to protect or cover the deck stow of bagged naphthalene from the direct rays of the sun so as to avoid heating and to protect from the foreseeable possibility of ignition from sources such as sparks, lighted cigarettes or cigar butts.

The court made no finding as to whether Black Diamond was guilty of negligence in these respects for it held that any failure to cover the bags of naphthalene could not have been a contributing cause of the fire; that coverage of the stow would not have prevented the fire. In its Finding 36, that there was lack of proof that any such failure to cover the stow was a proximate cause of the fire, the court said: "Even if it be assumed that failure to cover the stow of bagged naphthalene with a tarpaulin was either negligence or in violation of controlling statute or regulation, libellants have not proved that that failure was a proximate cause of the fire." Its key findings as to lack of causation are its Nos. 29 and 35, as follows: "29. The sun's rays could not have caused or contributed to the cause of the fire." "35. The failure to cover the bags of naphthalene on the `Black Gull' with a tarpaulin was not and could not have been a contributing cause of the fire." Findings 30 to 34 inclusive were evidently intended to be explanatory of one reason for the court's finding of lack of proof of causation,¹ stated in the court's second amended memorandum as follows: "2. In discussing this possibility of outside ignition, I shall assume, without deciding the question, that the failure to cover the stow with a tarpaulin was either negligent or in violation of a controlling statute or regulation. I therefore turn to the question whether this failure to cover the stow with a tarpaulin proximately caused the fire.

"Libelant's argument that a tarpaulin would have prevented ignition from an external source runs something like this. The danger of ignition of crude naphthalene is increased by heating. As the temperature rises, greater amounts of readily-ignitable gases are given off. Since the temperature in the area of the stow was in excess of 120° F., the naphthalene was giving off a substantial quantity of gases which impregnated the bagging and made the bagging susceptible to ignition from a spark or cigarette butt. In addition, the bagging was impregnated with creosote oil from the crude naphthalene which is also readily ignitable. From these allegations libelants argue that a tarpaulin would have protected the stow from heating by the direct rays of the sun and would have prevented contact between a spark or cigarette butt and the bagging impregnated with creosote oil and gases.

"I cannot accept libelants' contention. First of all, the testimony is overwhelming that the sun's rays could not have caused or contributed to the cause of the fire. Both Dr. Purdy, respondent's expert, and Mr. Aeby whom libelants assert to be `the leading European authority on dangerous cargo,' unequivocally state this conclusion. Therefore, the presence of a tarpaulin, by protecting the stow from the sun's rays, would not have prevented this fire.

"Nor would a tarpaulin have afforded protection from ignition due to creosote oil or gases. A tarpaulin could have done so only if the creosote oil and gases could not impregnate the tarpaulin or if the tarpaulin was itself not inflammable. Neither is the fact. Libelants' Exhibit 38, an order issued by respondent that naphthalene must not be stored on hatches contains the sentence `This material permeates tarpaulins and hatch boards and in a recent instance damaged cargo and necessitated replacement of ceiling.' Thus the creosote oil and gases could impregnate the tarpaulin and thereby make the tarpaulin as inflammable as the impregnated bagging."

If we assume, as did the trial judge, that the failure to cover the stow was negligence, it is our opinion that the quoted findings to the effect that the failure to cover the naphthalene could not have been a contributing cause of the fire, were clearly erroneous. Noting the court's reference, in the portion of the opinion last quoted, to the testimony of Dr. Purdy and Dr. Aeby, it seems probable that the trial judge misinterpreted what they said. In the quoted portion of the opinion the court found that the temperature in the area of the stow was in excess of 120° F. Dr. Aeby, testifying on deposition as an expert witness for the cargo owners, stated that even at 70° to 75° F. particles of naphthalene gas would be liberated into the air, and (as the court found), that "as the temperature rises...