Sunkist Growers, Inc. v. Adelaide Shipping Lines, Ltd.

• Decision Date: 08 March 1979
• Docket Number: No. 76-3112,76-3112
• Citation: 603 F.2d 1327
• Parties: SUNKIST GROWERS, INC., Plaintiff-Appellant, v. ADELAIDE SHIPPING LINES, LTD., Claimant-Appellee, and Salen Reefer Services AB, and M/V Gladiola, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1327

603 F.2d 1327

SUNKIST GROWERS, INC., Plaintiff-Appellant, v. ADELAIDE SHIPPING LINES, LTD., Claimant-Appellee, and Salen Reefer Services AB, and M/V Gladiola, Defendants-Appellees.

No. 76-3112.

United States Court of Appeals, Ninth Circuit.

March 8, 1979.

Rehearing Denied April 19, 1979.

Stephen H. McReavy (argued), of Hall, Henry, Oliver & McReavy, San Francisco, Cal., for plaintiff-appellant.

Frederick W. Wentker, Jr. (argued), of Lillick, McHose & Charles, San Francisco, Cal., for claimant-appellee.

Appeal from the United States District Court, Northern District of California.

Before DUNIWAY and KILKENNY, Circuit Judges, and McGOVERN, District Judge. ^*

KILKENNY, Circuit Judge:

This is an appeal in admiralty from a judgment dismissing appellant's complaint In rem And In personam against appellees for cargo damage aboard the vessel GLADIOLA.

FACTS

The facts are not seriously in dispute. Appellant (Sunkist) is a California corporation engaged in packing and shipping citrus fruit. Claimant (Adelaide) is a corporation organized and existing under the laws of Great Britain and is the owner of the vessel GLADIOLA, a general cargo vessel of 11,890 tons carrying capacity. Salen is a corporation organized and existing under the laws of the country of Sweden and at all times relevant herein was the charterer of the GLADIOLA.

During the last week of August and the first week of September, 1974, at the Port of Long Beach, California, a cargo of 58,464 cartons of fresh lemons in good order and condition, owned by Sunkist, was loaded on board the GLADIOLA for refrigerated transportation to Gdansk, Poland. Sunkist and Salen conducted their shipping transactions pursuant to a three year contract. Salen provided the vessels once or twice a week to transport Sunkist's citrus cargoes. Occasionally, Sunkist would not fill the entire vessel with its cargo and in those instances, and under the terms of the contract, Salen could arrange for additional cargo to be shipped and would make stops en route to load this extra cargo. Employees of Sunkist and Salen were in daily contact by telephone and telex. When additional cargo was to be transported, Sunkist was informed by telex of the type of cargo that would be loaded and the additional stops that would be made in order to pick up the extra cargo. As long as the additional loading stops did not unduly delay the ship's arrival in Northern Europe, nor adversely affect the citrus crop shipped by Sunkist, it did not object to deviations from a direct course to Northern Europe. In this instance, Sunkist was informed by telex that the vessel would be stopping in Ecuador to load bananas. It did not object. The GLADIOLA departed Long Beach on September 2, 1974, for Ecuador, arriving and anchoring in Guayaquil Harbor on September 10th.

On that day, at approximately 5:50 P.M., a fire broke out in the engine room. This room was automated and normally in unmanned status, as it was at the outbreak of the fire. The cause of the fire was a separation of a Serto compression pipe fitting and an Ermerto ferrule in the low pressure diesel fuel line of the vessel's number 1 generator. The diesel fuel sprayed on to hot surfaces of the numbers 1 and 2 generators.

Cummings, an extra third engineer in charge of answering alarms from the unmanned engine room, upon hearing the fire alarm, picked up his ear muffs and went to the engine room where he proceeded to the generator flat. He observed a break in the fuel line and oil splashing onto the hot exhaust turbo chargers of the numbers 1 and 2 generators. At that time there were no flames. Then occurred what might well be described as a Shakespearean comedy of errors, with a result akin to one of his tragedies. Because he had no training in The fire spread rapidly to the oil in the bilges and along the inflammable butyl insulated electric cable, thus filling the engine room with dense smoke. Within minutes the vessel blacked out and the engine room had to be evacuated. It was then determined that the chief engineer was still on the refrigeration flat. While attempting to locate the chief engineer, Cummings stumbled over his body. He appeared to be dead. After attempts to save the engineer failed, the captain finally ordered the remotely controlled CO 2 fire extinguisher system in action, but the fire was out of control and could not be extinguished by the use of this system. Three days later, on September 13, 1974, the fire was extinguished, but the damage was very extensive. The chief engineer died in the fire and the captain suffered a fatal heart attack a couple of days later.

fighting engine room fire and no one had instructed him on what to do in such an emergency, Cummings failed to use the diesel oil turn off screw two or three feet below the joint, nor, for the same reason, did he turn off another valve some twenty to twenty-five feet from the generator on the main diesel oil supply line. This valve could have been closed by pulling a pin on a quick release mechanism. The second engineer arrived at the scene about this time but, inasmuch as his fire fighting training was no better than Cummings', he also failed to close either valve. After reporting the fire to the control room, Cummings returned to stop the generator, but when he returned the flames prevented him from getting close enough to the valve. While the fire was still confined to the number 1 generator and the area immediately above it, the second engineer attempted to use the 50 kilogram fire extinguisher but turned the control valve on the extinguisher in the wrong direction and broke it, rendering the extinguisher completely inoperative. The valve on this fire extinguisher was activated by screwing the value clockwise, rather than counterclockwise. Cummings wasn't even aware of the location of this "left-handed monkey wrench." While the second engineer was rendering the large fire extinguisher inoperable, Cummings went back to the control room and reported the generator on fire. It was not until then that he shut off the fuel to the pumps on the number 1 generator by means of a simple switch.

Although the lemons had not been damaged in the fire, the destruction of the refrigeration equipment made it necessary to find local refrigerated storage, local markets, or transshipment of the lemons. All of these efforts failed and it became necessary to give the lemons to the military authorities for distribution to the people. ^** The value of the lost lemon crop was stipulated at $350,784.00.

ISSUES ON APPEAL

From a decision of the district court holding that both appellees were protected from liability by the fire exemption statutes, appellant appeals and raises three issues:

I. Were appellees required to exercise due diligence to make the GLADIOLA seaworthy as a prerequisite to claiming a fire exemption under the Carriage of Goods by Sea Act of 1936, 46 U.S.C. §§ 1300, Et seq.?

II. Was there a lack of due diligence on the part of appellees either in connection with the defects in the vessel which caused the fire and contributed to its spread or in failing to man the GLADIOLA with a crew properly trained in fighting fires in ships' engine rooms?

III. Did the GLADIOLA'S deviation to Guayaquil deprive the appellees of the fire exemption?

DISTRICT COURT'S FINDINGS AND CONCLUSIONS

In its findings of fact, the district court found, among other things, that the GLADIOLA "(1) The butyl lining on the electrical cables could have been sheathed in metal to reduce a blinding smoke in the event of fire;

prior to the commencement of the voyage, could have been made safe in the following respects:

(2) A flange joint, rather than a compression joint, could have been used on the fuel pipe leading into the generator, making a stronger connection;

(3) Fewer joints could have been designed in the pipe to reduce the possibility of leaks;

(4) Protective shields could have been placed around the generators to reduce the spray of hot fuel in the event of a leak;

(5) A SERTO ferrule could have been maintained in the particular fuel pipe joint that caused the leak, rather than the ERMERTO ferrule replacement that had been inserted;

(6) Barriers and fire dampers could have been placed along the electric cabling to control the spread of fire throughout the ship;

(7) Suits of protective fire clothing could have been maintained on board." 1976 A.M.C. 2597, at 2602.

After making these findings, the court went on to say that a prudent vessel owner and/or charterer would Not necessarily have made most of these modifications, including a statement that although a Serto ferrule should have been maintained in the particular joint, "A failure to maintain the proper ferrule would be the fault of the crew in failing to report ferrule replacement, rather than the fault of the owner in failing to notice that a replacement had been made." Similar findings were made with reference to the other deficiencies mentioned by the court.

The court also found that the crew should have been given specific instructions on the proper way to deal with engine room fires and the exact method of handling fire extinguishers. Nonetheless, the court went on to say that a reasonable vessel owner and or charterer, in preparing to deal with fire, would have relied on the certification of its crew members, along with their prior fire fighting experience and training, ship drills and equipment labelled with instructions for use.

Based on its findings of fact, the district court concluded, among other things:

" * * *

4. In a fire loss case under the Carriage of Goods by Sea Act, or the Fire Statute, The owner or charterer has the burden of proving that the loss resulted from the fire. The burden then switches to the shipper to show that the fire was the result of the design, neglect, fault, or privity of the owner or charterer. And I rely on the case of Asbestos Co. Limited v. Compagnie de Navigation, 1973 AMC at 1683, ...