Westinghouse Elec. Corp. v. M/V Leslie Lykes

• Citation: 734 F.2d 199,1985 A.M.C. 247
• Decision Date: 14 June 1984
• Docket Number: No. 82-3128,82-3128
• Parties: WESTINGHOUSE ELECTRIC CORPORATION, et al., Plaintiffs-Appellees Cross-Appellants, v. M/V "LESLIE LYKES", etc., Defendant, Lykes Bros. Steamship Co., Inc., Defendant-Appellant Cross-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 199

734 F.2d 199

1985 A.M.C. 247

WESTINGHOUSE ELECTRIC CORPORATION, et al., Plaintiffs-Appellees Cross-Appellants, v. M/V "LESLIE LYKES", etc., Defendant, Lykes Bros. Steamship Co., Inc., Defendant-Appellant Cross-Appellee.

No. 82-3128.

United States Court of Appeals, Fifth Circuit.

June 14, 1984.

Terriberry, Carroll, Yancey & Farrell, Alfred M. Farrell, Jr., New Orleans, La., for defendant-appellant, cross-appellee.

Bigham, Englar, Jones & Houston, James H. Simonson, New York City, Montgomery, Barnett, Brown & Read, Henry J. Read, New Orleans, La., for plaintiffs-appellees, cross-appellants.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before BROWN, WISDOM and JOHNSON, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

This is a suit by a shipper of cargo against an ocean carrier for damage to cargo resulting from a fire aboard ship. One issue concerns the effect of an unseaworthy condition on the burden of proof in a carrier's defense under the Fire Statute, 46 U.S.C. Sec. 182, which requires that the fire be caused by the "design or neglect" of the owner, and under the Carriage of Goods By Sea Act, 46 U.S.C. Sec. 1304(2)(b). After a traditional bench trial, the District Court held that the carrier was not entitled to the exoneration provided by the Fire Statute, because it found the fire to have been "attributable to the management level of Lykes." Because the District Court's factfinding was influenced by a view of the Fire Statute that we reject, and its findings did not center on the essential element that the fire must have been caused by the "design or neglect" of the shipowner, we reverse the decree in favor of Cargo. We also reject Cargo's purported cross-appeal of the trial court's conclusion that the Master's decisions in fighting the fire were not attributable to the owner under the Fire Statute.

Facts and Decision Below

In August of 1976, Westinghouse Electric Corp. (Cargo ) shipped several large electric rotors aboard the SS LESLIE LYKES (LESLIE) owned by Lykes Brothers Steamship Co., Inc. (Carrier). The LESLIE was an ocean-going steamship used to transport break-bulk or general cargo.

The LESLIE contains six cargo holds. The No. 3 hold is divided into three horizonal compartments. The bottom compartment is the lower hold, also referred to as the dry cargo hold. Above the lower hold is the lower tween deck (LTD), in which the fire occurred. The top compartment is the upper tween deck, which is immediately below the main deck or weather deck. Each deck has a MacGregor hatch cover, which opens in accordion fashion, consisting of panels attached by hinges, positioned on rollers. The hatch covers are activated hydraulically.

The No. 2 hold, which is immediately forward of No. 3 hold, has the same overall structure as No. 3. Both No. 2 and No. 3 contained a vertical ladder running the depth of the ship. At each level or compartment was a manhole for entry into the next deck via the ladder. One purpose of these accessways was to allow the crew to take periodic checks to confirm the security of the cargo. The accessway manhole in the No. 3 hold was at the forward bulkhead between No. 3 and No. 2 holds. The accessway in the No. 2 was aft, also at the bulkhead between No. 3 and No. 2 holds. The entrance to No. 3 manhole is at the top of the motor/generator house located on the weatherdeck.

The No. 4 hold was situated immediately aft No. 3 hold. Unlike holds No. 2 and No. 3, hold No. 4 was divided into three vertical compartments so that containers could be stowed within the hold. The vertical divisions ran fore and aft. The accessway in No. 4 was located at the forward bulkhead between the No. 4 and No. 3 holds.

On the voyage in question (Voyage 64), two Westinghouse rotors were being shipped in separate containers in No. 4 hold. In addition to this cargo, bags of flour were stowed in open spaces in No. 4 hold.

Among the cargo stowed in the No. 3 LTD were bales of cotton. Cotton is flammable and, if ignited, is very difficult to extinguish. Baled cotton can smolder indefinitely, even under water, because there is a source of oxygen within the cotton fibers themselves. Between the starboard bulkhead and the cotton was a stow of drill pipe running fore and aft. The pipe stow was secured properly by chains, which were tightened by turnbuckles.

The LESLIE sailed from her last port of call (Charleston, South Carolina) on the evening of August 27, 1976. On August 29th, the vessel encountered rough weather, the seas rolling heavily due to the fact that the vessel was sailing on the edge of a hurricane. Though the weather was rough, it was not unusual or unexpectable.

At 2315 hours on August 31, 1976, a clanking noise was heard by members of the crew, which they believed at the time had come from the No. 4 hold. No attempt was made by the crew to investigate the clanking sound at that time, even though there was access into No. 4. At the time the noise was heard, the vessel was still sailing in rough seas.

At 1212 hours on the following day, roughly twelve and one-half hours after the clanking was heard, smoke was observed from the bridge by Captain Metcalf, master of the vessel, coming from the kingpost forward of the No. 3 hold. The smoke detector system indicated that a fire was in the No. 3 LTD. Although an access way was provided in No. 3 hold, access could not be obtained into No. 3 LTD because bags of flour had been stowed over the manhole cover in No. 3 upper tween deck.

A thermometer was placed in the No. 4 hold at the hottest spot on the bulkhead between No. 4 and No. 3, in order to monitor the temperature and status of the fire. The thermometer placed at the starboard side of the forward bulkhead of No. 4 hold originally indicated a temperature of 130 degrees. The bulkhead temperatures indicated that the fire was in the vicinity of the starboard aft section of No. 3 LTD, where the cotton and drill pipes had been stowed.

The vessel was equipped with a CO2 injection system in each hold. Therefore, the weatherdeck hatch of the No. 3 hold was sealed with tape to prevent as much as possible the leakage of CO2 . Also, the blowers of the vessel's ventilator system were shut off and taped to avoid providing the fire any ventilation.

Captain Metcalf ordered the release of 24 bottles of CO2 into No. 3 LTD, in accordance with the directions provided by the manufacturer of the CO2 system. Pursuant to those instructions, the crew continued to introduce CO2 into No. 3 LTD until the vessel arrived at El Ferrol, Spain, at which time the thermometer that had been placed on the bulkhead indicated the temperature had dropped to 110 degrees.

Soon after the introduction of CO2 , the smoke abated, as indicated by the smoke detector. Neither the smoke detector nor the kingpost ventilator revealed any indication of smoke from September 1st until the opening of the No. 3 weatherdeck hatch at El Ferrol on September 8.

The vessel had left Charleston with 72 full cannisters of CO2 . By the time it reached El Ferrol, only 2 cannisters remained full. Due to the concern that the supply of CO2 might run low, steam was introduced into No. 3 LTD, in addition to the insertion of CO2 into the compartment. This was accomplished by drilling five 1/2- to 3/4-inch holes in the bulkhead of No. 4 hold just above the location of the stow of drilling pipes located in No. 3 LTD. Steam lances were inserted into the holes.

While at sea, Captain Metcalf discussed the events taking place with Lykes' managing personnel at New Orleans by radiotelephone each day, from the time fire was first detected. He considered and followed some suggestions for fighting the fire made by Lykes' vice-president in charge of maintenance and repair, Joseph Bernstein.

Mr. Lucian Castro, then a supervisory port engineer for Lykes in New Orleans, was sent to meet the vessel at El Ferrol for the purpose of rendering the master any assistance and advice that he could. Castro was sent because he was considered to be knowledgeable and experienced in cotton fires. Castro prepared himself for the journey and task by reviewing the stowage plan for the voyage, the vessel's CO2 system, and bringing available foam and other chemicals for extinguishing cotton fires.

When the vessel arrived at El Ferrol on September 6 at about 1818 hours, Captain Metcalf held an informal meeting in his cabin to discuss what action would be taken. Numerous Spanish firefighting authorities and port officials, including representatives of the Spanish Navy and the Navy's firefighting school, were present. Also attending were Castro and the ship's chief engineer.

Captain Metcalf decided at the conclusion of the meeting that an access hole would be cut in the bulkhead between No. 3 and No. 4 holds, at the point of highest temperature. This was done in order to see into the No. 3 LTD, inspect the status of the fire and, if necessary, fight the fire from its own level through the access hole.

The access hole was cut in the same location on the bulkhead where the steam lance holes had been drilled, beneath an athwartship walkway which ran along the forward bulkhead in No. 4 hold. In order to cut the hole, which was accomplished by drilling several contiguous holes, bags of flour stored in the No. 4 hold were moved to provide sufficient work space. A cover was made for the approximately 18" by 24" access hole in an attempt to keep the compartment as airtight as possible.

After the access hole was completed, on September 7th, Castro and John Ebanks, the boatswain, attempted entry through the access hole in order to assess the status of the fire. Hoses were run from the vessel's compressed air supply, through a makeshift filter consisting of paper and a miner's type mask, in order to afford them adequate air supply.

Ebanks successfully entered No. 3 LTD and Castro partially entered. After entering the hold, Ebanks stood on top of the...