The opinion of the court was delivered by: RYAN
This is a limitation proceeding by Isbrandtsen Company, Inc., seeking exoneration from or limitation of liability as chartered owner of S. S. Edmund Fanning with respect to claims arising out of fire and explosion occasioning the total loss of the vessel and her cargo in Genoa on March 13, 1947.
On September 4, 1947, Isbrandtsen Company, Inc. filed a petition in this Court for exoneration under the Fire Statute, 46 U.S.C.A. § 182 from any loss, damage or injury in any way arising out of or in consequence of the fire and explosion on board the Fanning, or, if it was to be adjudged liable, then that its liability be limited to the value of its interest, if any, in the Fanning after the fire.
The United States of America filed claim for the loss of ten locomotives and tenders, which were loaded on board the Fanning in Bremen, Germany, by the United States Army for shipment to Korea. All other claims filed on behalf of cargo interest and others have been settled and withdrawn or were dismissed at the conclusion of the trail.
The issues raised by the answer of the Government came on for trial on December 4, 13, 14, 17 and 18, 1951. I make the following
Isbrandtsen Company, Inc. is a corporation organized and existing under the laws of the State of New York with its principal place of business at 26 Broadway, County, City and State of New York.
Isbrandtsen was the bareboat charterer of the S. S. Edmund Fanning, which was owned by the United States of American. Isbrandtsen, at all times hereinafter mentioned, manned, victualed, supplied, operated and controlled the Fanning and was her owner, pro hac vice and within the meaning of Section 4286 of the Revised Statutes of the United States, 46 U.S.C.A. § 186.
The Fanning was a steel vessel of the type commonly known as a Liberty ship, 422 feet in length, 57 feet in breadth, 35 feet in depth, 10,572 tons deadweight, 7,176 tons gross and 4,380 net tons burthen. She was engaged in the transportation by sea for hire of general cargo. She had three holds forward and two aft.
In December, 1946 Isbrandtsen decided to engage in freight service from Continental European ports via Suez to the Far East. The Fanning was assigned to that service and when it met disaster was on the first voyage of the service.
The Fanning, laden with a cargo of coal, departed from Philadelphia, December 23, 1946 for La Pallice, a port in northern France, where all the cargo was discharged and the voyage ended. The Fanning's next voyage, which ended in the disaster at Genoa, Italy, on March 13, 1947, included calls at ports in Western Europe and the Mediterranean. The following are her arrival and departure dates on that voyage:
Port Arrival Departure
//-- ////--- ///////--
Bremen January 19, 1947 February 6, 1947
Rotterdam February 8, 1947 February 13, 1947
Antwerp February 14, 1947 February 22, 1947
LeHavre-Rouen February 24, 1947 February 25, 1947
Bordeaux February 28, 1947 March 1, 1947
Barcelona March 8, 1947 March 9, 1947
Genoa March 10, 1947 ...
The Fanning was scheduled to call at other ports in the Mediterranean en route on her voyage to the Far East via the Suez Canal.
On December 27, 1946, Isbrandtsen by its Vice President Matthew S. Crinkley, entered into a contract by telephone with the United States of American, acting by Colonel Thomas S. Lowry, Chief of the Ocean Traffic Bureau of the Office of the Chief of Transportation, United States Army, to transport as common carrier, 10 locomotives and tenders from Bremen to Pusan for $ 10,000 per unit of locomotive and tender; the Army to load and unload, and the carriage to be performed pursuant to the terms and conditions of a Government form of bill of lading. This contract of carriage was confirmed by an exchange of letters and the subsequent issuance of a Government form bill of lading.
After leaving La Pallice, the Fanning proceeded to Bremen. Under way the cargo holds were cleaned, preparatory to receiving other cargo. The Fanning arrived in Bremen January 19, 1947.
At Bremen, the Fanning began to take on cargo for her voyage to the Far East. Only the cargo stowed in No. 2 hold is of importance in this proceeding for it is undisputed that it was in No. 2 hold that the fire of March 13, 1947 broke out. United States Army stevedores loaded and stowed the ten locomotives and tenders, stowing 6 locomotives and 2 tenders in No. 2 lower hold on rail and timber beds secured by wire lashings, clips and turnbuckles. Four locomotives were stowed abreast fore and aft, to the aft of No. 2 lower hold; two tenders were stowed amidships, to the fore of No. 2 lower hold, and two locomotives were stowed one each to the wings of the tenders. The locomotives loaded on the Fanning were the property of the United States of America and were being sent by the United States Army in Germany to units of the Army stationed in Korea. The shipment was from parts of Germany occupied by the United States and was destined for parts of Korea occupied by the United Nations. The locomotives were 'heavy lifts' each 85 tons dead weight and the tenders were 25 tons each.
No. 2 lower hold was approximately 80 ft., 10 inches long, 54 ft. wide, 25 ft. deep and had a bale capacity of 92,008 cu. ft. The locomotives and tenders measured 31,698 cu. ft. and occupied slightly more than one third of the bale capacity of the hold, although it was the largest hold of the vessel.
At Rotterdam, the next port of call, additional cargo was taken aboard. In No. 2 hold were placed 225 bags of activated carbon, stowed between the tenders.
At Antwerp, on February 15, the Fanning started to load chemicals, along with considerable other cargo. There, 1,950 casks of chlorate of potash were stowed in broken stowage around, between and over the locomotives. At least 33 cases weighing 6 tons of sodium peroxide were stowed inside the tenders at the bottom of No. 2 lower hold. Separate partitions were then built around the locomotives, tenders and this cargo, and flooring laid over them (as shown in Claimant's Exhibit- 5C). It is important to note, too, that it was reported to Isbrandtsen that 'about 12 tons of dunnage wood was shipped on board the S/S Edmund Fanning at Antwerp' and 'that a large amount of this wood was used to make platforms between the locomotives and tenders' (Ex. 14-J-L55). The wooden platforms and partitions erected to make compartments in No. 2 hold were no small operation. The chlorate of potash was stowed on February 15, 17, 18 and 19; the sodium peroxide on February 15.
There was also loaded in No. 2 hold at Antwerp at least 94 1/2 tons and 75 bags of 100 lbs. each of sodium nitrate. (Ex. 28, 140J-L34).
The chlorate of potash is described in the bills of lading as contained in 'barrels' and 'kegs'. It is fair to assume that they were of wood, in the absence of proof to the contrary. They were marked for 'Special Stowage'.
The sodium nitrate is scheduled as being shipped in 'wooden barrels' and 'bags'.
Then, while still at Antwerp, 132 large iron drums of sulphuric acid were lowered into and stowed in No. 2 lower hold. It is not disputed that these drums weighed altogether 50 tons; they were overstowed and placed above the other chemicals.
Before the vessel reached Genoa, there had also been put into No. 2 hold, close to the sulphuric acid, 760 cases of wines and brandy, 4 cases of socks, 2 1/2 tons of nitrate of soda in bags, 10 cases of rayon tissue; and above the rayon tissue were stowed 308 cases of brandy and 488 bundles of cotton tissue.
At Genoa, 1,400 rolls of iron wire, 820 small barrels of nails and 110 cases of hemp twine were stowed on top of the drums of sulphuric acid in No. 2 hold. This was the cargo in the hold when the fire was discovered.
Concerning the position of the stowage there was also offered, in addition to oral testimony, three cargo plans- Ex. 12A, 12B and Claimant's Ex. 5-C and 28 (the last two are photostats of the same original).
Ex. 12A and 12B were made up by the stevedores and checkers after the ship was loaded at Antwerp. The ship stopped at three other ports before arriving at Genoa. These plans were prepared to show the cargo in the holds when the ship left Antwerp. They did not represent the placement of the cargo or the position of the separate shipments with relation to each other. They were not intended to show where anything was stowed, or as was testified 'what was stowed above what' (SM p. 364).
Claimant's Ex. 5-C was received in evidence, without objection, as part of the deposition of Robert Markley, who was third mate aboard the Fanning on her last voyage. He testified that he had made a cargo plan on orders from Captain Fitzgerald given to him in Antwerp to search out the cargo as best he could; that he had secured the information from which he made up the plan by going into the holds and also from Captain Praast's plan which he had in his room tacked at the bulkhead. He also gave evidence that Captain Fitzgerald saw the plan before the vessel left Antwerp, and that the Captain was preparing a plan of his own. Markley testified that after drawing up a cargo plan in Antwerp he tried to make notation of all additional cargo taken aboard at subsequent ports. However this cargo plan was lost at the time of the fire on the ship; Claimant's Exhibit 5-C was prepared by Markley with Captain Fitzgerald and the second mate in a hotel room in Genoa after the disaster. To assist in the drawing of the cargo plan Captain Fitzgerald wired to all the ports of call for manifests and from these as well as the recollections of those he gathered with him the cargo plan Claimant's Exhibit 28 was drawn. We find that it is a correct representation of the cargo stowed in No. 2 hold and the relative position of the cargo at the time of the disaster.
No witness has testified from actual and personal observation as to the origin of the fire in No. 2 hold. We have been informed that the hatch of No. 2 hold was closed and covered over with a tarpaulin when smoke was first observed coming from the ventilator leading to the hold; no one was below at the time. It is not claimed that any of the cargo stowed in the hold was subject to spontaneous combustion or required special care and stowage to provide ventilation. This is not a case where the fire and the resulting loss were the result of spontaneous combustion due to improper ventilation.
The Government contends that
'Sulphuric acid draining from a leaking or ruptured drum onto the potassium chlorate would cause intense fire and, if it leaked on the sodium peroxide, would cause explosion. Such explosion or fire would further derange the stow, increase the admixture of the chemicals and intensify the resultant fire and explosion. No other explanation for this disaster has or can be offered.'
Isbrandtsen urges that the evidence does not lead irresistibly to the conclusion that the fire originated in the way advanced by the Government, and that the proof does not fairly or reasonably exclude any other explanation for it. Isbrandtsen suggests that it is reasonably probable that the fire and subsequent explosion occurred in the following manner rather than in the way contended by the Government; that
'One or more of the longshoremen were smoking in the lower No. 2 hold during the early morning of March 13, 1947; that a lighted cigarette or cigarettes or match or matches was or were discarded; that they came in contact with one or more of the bags containing the nitrate of soda or some other inflammable material in the vicinity thereof; that the fire smoldered on from that time until the hatch was opened by one of the longshoremen just previous to the outbreak of the fire; that the opening of the hatch created a strong circulation of air, which fanned the smoldering fire into flame, which grew in volume and spread to the bags of nitrate of soda- if the fire had not already started there; that after some minutes and when the fire had obviously gained great headway, water was forced into the upper part of the No. 2 lower hold through the ventilators which ended at the top of No. 2 lower hold and that the water came in contact with the nitrate of soda, which resulted in a small hydrogen explosion. Hence the rumbling; and then, as more hydrogen was released, the large explosion followed.'
No suggestion has been made of sabotage, or any other cause; nor has any evidence been presented from which a finding might be made that the fire was due to any other than the two suggested causes. In any consideration, it is argued that the evidence here presented leaves the court in a position where it cannot decide how the fire was either caused or started. Cf. Hoskyn & Co., Inc., v. Silver Line Ltd., 2 Cir., 1944, 143 F.2d 462.
Since it is not in dispute that the ship and cargo of the Government were destroyed by fire, the burden is upon the Government to show by a fair preponderance of evidence that the fire which damaged the Government's locomotives and tenders was caused by Isbrandtsen's neglect.
Section 4282 of the United States Revised Statutes (46 -U.S.C.A., § 182, the American Fire Statute, March 3, 1851), commonly known as the 'Fire Statute' provides that:
'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.'
To sustain its burden the Government must establish: (1) That the stowage of the cargo in No. 2 hold was negligent and improper; (2) That the improper stowage was occasioned by and was due to the neglect of Isbrandtsen; and (3) That ...