The opinion of the court was delivered by: KNIGHT
Libellant alleges it is a Delaware Corporation and that the respondent is a corporation and a common carrier of merchandise by water between ports of Duluth/Superior and Buffalo and controlled the steamship James E. McAlpine; that on June 14, 1948, it delivered to and respondent received in good condition 277,000 bushels of No. 3 yellow corn; that respondent loaded same on said steamship and undertook to transport it to port of Buffalo, N.Y., and there deliver it to libellant in same good condition as when shipped; that said steamship, on June 18, 1948, arrived at Buffalo, where cargo was discharged and delivered and a part thereof 'was delivered heated, charred and damaged by contact with smoke and/or contact with other deleterious substances, all by reason of the unseaworthiness of the said steamship * * * and/or by reason of the lack of care exercised by respondent or by its servants or by those in charge of the steamship * * * with respect to the care and custody of said shipment'; that libellant owner thereof has performed all conditions of contract of carriage and has sustained $ 20,000 damages.
The answer, besides general denials, has four separate defenses, to wit (1) that alleged damage 'resulted from fire which occurred without the actual fault or privity of the respondent'; (2) that a bill of lading was issued and the alleged damage resulted from fire without actual fault or privity of respondent; (3) that alleged damage 'arose from inherent defect, quality or vice of said corn'; (4) that it resulted 'from an act, neglect or default of the master or servants of the respondent in the navigation or management of said Steamship.'
The bill of lading is entitled 'American Form 1936 Lake Grain Bill of Lading' and is dated June 14, 1948. It recites:
'Shipped in apparent good order and condition by Cargo Carriers, Inc. as agents and forwarders * * * on board the Str. McAlpine * * * now in the port of Duluth/Superior and bound for Buffalo, New York the following property as herein described (277,000 Gross Bushels 3 Yellow Corn) * * *. It is understood and agreed with respect to this shipment the carrier and ship have not and do not hold themselves out as transporting cargo for the general public and only transport cargo as private carrier under private contract. The liability, which the carrier assumes with respect to this shipment, is subject to the following terms and conditions:
'1. This shipment is and shall be subject to the terms and provisions of and all the exemptions from liability contained in the Act of Congress approved April 16, 1936, and known as the 'Carriage of Goods by Sea Act' * * *.'
Libellant chartered the full capacity of this steel bulk carrier, which is 432 feet long, 58 feet wide and 28 feet deep. The cargo space is about 300 feet long, divided into 4 compartments, each containing 6 hatches, and having a total carrying capacity of 285,000 bushels of corn. Each hatch is lighted by 2 electric 100-watt lights protected by a vapor globe about 10 inches long.
The steamship reported at Superior, Wisconsin, on June 14, 1948, with a cargo of soft coal, which was unloaded. Her cargo holds were then swept and she was visited by an inspector who approved her for loading the corn, which began at 1:50 P.M. Compartment 1 was first about half filled with corn, then compartments 2, 3 and 4 were filled. The loading of compartment 4 was completed about midnight and her hatches were battened down. The vessel left her dock on June 15, 1948, at 1:50 A.M., and arrived at the port of Buffalo in the evening of June 18, 1948.
The hatch lights were not turned off until 3 A.M. of June 15, 1948. About 10 A.M. of that day, there was an odor and some mist or haze in the dunnage room just forward of the forward cargo compartment. It disappeared after the forward scuttle hatch was opened. At night there was an odor in the fire hold just aft of the after cargo compartment. It too disappeared when a scuttle hatch was opened. On June 17, 1948, when the ship had reached Lake Huron, the odor became intenser and smoke was seen rising from some of the hatches. During the night the deck on starboard side above hatch 22 was warm.
The hatches were opened at Buffalo shortly after 8 A.M. on June 19, 1948. Discharge of the corn began a half hour later. After about 10,000 bushels had been removed from hatch 22, a core of charred, darkened corn appeared on the starboard side under the electric light. This core extended about 10 1/2 feet from under the light to the main deck shelf and 3 or 4 feet deeper. Top of core was loose and easily dislodged but near the shelf it was so solid that it had to be dislodged with pickaxes.
When the core was exposed, burning embers were noticed which soon burst into a flash flame, extinguished with a fire extinguisher. Later in the morning, as the unloading proceeded, the smoke became so dense the grain shovelers quit work and water from the ship's hose was sprinkled on the core. Notwithstanding this, flames again burst out and were extinguished. After unloading was suspended in the evening, a watchman stationed on deck twice saw glowing embers and smoke and used the ship's hose to prevent fire.
Section 182 of 46 U.S.C.A. in effect at time of this loss, provided: 'No owner of any vessel shall be liable to answer for or make good to any person any loss or damage, which may happen to any merchandise whatsoever, which shall be shipped, taken in, or put on board any such vessel, by reason or by means of any fire happening to or on board the vessel, unless such fire is caused by the design or neglect of such owner.'
Section 188 thereof made this non-liability apply 'to all vessels used on lakes or rivers or in inland navigation, including canal boats, barges, and lighters.'
The term 'fire' is not defined in the statute.
In The Buckeye State, D.C., 39 F.Supp. 344, in part similar to the case at bar, this Court said: "Fire' is caused by ignition or combustion, and it includes the idea of visible heat or light. 'No definition of fire can be found that does not include the idea of visible heat or light, and this ys also the popular meaning given to the word. * * * the internal development of heat never at any time became so rapid as to produce a flame or a glow, and hence, * * * there was no fire.' Western Woolen Mill Co. v. Northern Assurance Co. of London, 8 Cir., 139 F. 637, 639, certiorari denied 199 U.S. 608, 26 S. Ct. 750, 50 L. Ed. 331. * * *.' 39 F.Supp. at page 347. - In the instant case chemist Hall testified: 'Oxygen is necessary for combustion. It is the reaction of oxygen with carbon, hydrogen, nitrogen, phosphorus, and so forth, which we see as combustion. That is reaction. When it reaches the point where it glows or it is a flame, then we call it fire.'
No flame was seen at any time until after part of the core in hatch 22 had been uncovered and exposed to the air. The ship's master and others on the boat who perceived the odor, haze and smoke did not suspect any fire in the cargo. Witness Butler, dangerous cargo engineer, testified: 'My opinion is there was no fire on that cargo ...