The opinion of the court was delivered by: RYAN
Libellants, each by separate suit, seek to recover for loss and damage to cargo shipped at New York in November and December, 1948 aboard the S.S. Examiner for carriage to Bombay, India; the six suits filed, alleging total cargo losses of $ 233,375, have been consolidated for trial.
It has been stipulated that libellants were the owners of cargo and holders of bills of lading issued therefor, and that the cargo sustained damage. It is not questioned that the cargo was delivered to respondent in New York in good order and condition and that respondent accepted the shipments and agreed to carry them on its vessel, S.S. Examiner to Bombay for delivery there to the respective consignees, in accordance with the valid terms of the bills of lading issued by respondent.
When the S.S. Examiner arrived at Bombay, the cargo in suit was discharged into lighters which had been hired by respondent from a Bombay stevedore by written contract which provided for hire payment to the owner of the lighters at scheduled rates. Fire occurred on the lighters while moored alongside the S.S. Examiner at Bombay on January 24, 1949 and resulted in damage to the cargo for which recovery is sought.
The origin of the fire is not in dispute; it broke out on one of the lighters from several steel drums containing washed 35 mm. film, which exploded and spread throughout the cargo aboard and to an adjoining lighter. These drums of film were part of a consignment of 36 similar drums which had been taken aboard the S.S. Examiner at New York and some of which had been discharged, on to the lighters, after arrival at Bombay. The film shipment had been made by Cellofilm Corporation, which is not a party to any of the present suits. The explosion and fire occurred by reason of spontaneous combustion, resulting from the decomposition of the film.
Trial presented the factual issue whether respondent exercised due diligence in stowing, caring for and protecting the drums of film, as required by the Carriage of Goods by Sea Act, 46 U.S.C.A. § 1303(2) and the bills of lading; or whether it failed to do so thereby occasioning the fire and consequent cargo damage. From the resolution of this issue, the additional question arises whether, despite such failure, if found and, under the circumstances, respondent is released from liability under the fire exception of the Carriage of Goods by Sea Act, 46 U.S.C.A. § 1304(2)(b), or by virtue of the bills of lading.
The following facts are found as established by the evidence presented on trial:
1. The respondent owned and operated the S.S. Examiner as a general ship engaged in carrying cargo for hire from the Ports of New York and Baltimore to the Port of Bombay.
2. On November 30, 1948 the respondent issued its Dock Receipt to the Cellofilm Corporation for 36 drums which were delivered to the respondent on December 8, 1948, and on the day following it issued its Bills of Lading to Cellofilm Corporation covering this shipment which was described in the bill of lading as containing 'Waste film (washed scrap 35 mm. film)' for carriage aboard the S.S. Examiner from New York to Bombay. The 36 drums were stowed in the No. 4 port trunk on December 11, 1948.
3. The 36 drums shipped by Cellofilm Corporation contained nitrocellulosebase waste, washed scrap, 35 mm. film. The Cellofilm Corporation had never shipped unwashed film. The gelatine or emulsion was removed from the film to recover the silver salts; the films were then rewound in reel form; the reels stood on end and cut through from the outer edge to the center to mutilate them; then they were placed in the steel drums, which met specifications prescribed by the Interstate Commerce Commission. The drums were of 18 gauge steel, 3 feet high, 2 feet in diameter and weighed 500 pounds fully packed. The drums were painted, heads blue and length black or red, and the heads were fitted with a well nigh air tight locking device. All were of the same type and had been found satisfactory for 25 years. The Cellofilm Corporation, to keep the film cool in summer months, stored them in specially constructed vaults, which had 1 foot thick solid concrete roofs, and built so as to contain water which served to help keep out the heat of the sun. Experience showed that even the empty drums left to stand in the open at the Cellofilm Corporation yard on a hot summer day absorbed heat to such a degree that it was painful to retain one's hand upon one of them.
4. Each of the 36 drums of the shipment when stowed on board the S.S. Examiner had two yellow labels affixed to it, one on the top, the other on the side; the labels conformed to and met the requirements of the United States Coast Guard Regulations. These regulations entitled 'Explosives or Other Dangerous Articles on Board Vessels', designate moving picture film scrap as a hazardous cargo, to be shipped under a yellow label. The instructions given in the regulations, in respect of scrap film, are:
'Consists of trimmings, clippings, and other waste obtained in the manufacture of proxylin plastic articles, or the scrap obtained from motion picture film, X-ray film and photographic film.
'Being finely divided, it is more hazardous than the original materials.
'Stow well away from all sources of heat. Protect from temperatures exceeding 100 degrees F.' (p. N-209)
There is no specific provision in the Coast Guard Regulations as to the storage of 'waste' film. The regulations require that the described yellow labels be placed on 'containers of inflammable solids and oxidizing materials' (p. N-54). Film scrap is an inflammable solid. The yellow label, illustrated on page N-55 of the regulations, contains the following:
'Keep away from fire, heat, and open flame lights'.
There is no difference between waste, junk or scrap film in so far as chemical reaction to heat is concerned.
5. No. 4 port trunk in which the 36 drums were stowed is a cargo space on the port side just forward of the main house of the S.S. Examiner. The trunk itself measures from the top of the coaming about 12 X 14 feet and 10 or 12 feet high. The coaming is 3 feet high and made of steel. The deck plates are also steel. There was a wood hatch covered with tarpaulins. The sides of the hatch cover were 10 X 12 feet, or 120 square feet. The trunk way was 2 feet larger, or 12 X 14 feet, a total of 168 square feet. The difference of the 48 square feet of steel deck plating, plus the square of the hatch, served as a deck over the 36 drums. The sides of the trunk are made of steel. There is no direct ventilation into the port trunk but it is surrounded on three sides by ventilated compartments and on the port side by a passageway with an access door. Cargo stowed in No. 4 port trunk is accessible either through the hatch or through the door.
6. The vessel proceeded from New York on December 11, 1948, via the Mediterranean, Red Sea and Indian Ocean, arriving at Bombay on January 8, 1949. The temperatures during the voyage were taken on the bridge wing; the thermometer was enclosed in a louvered box which protected the thermometer at all times from the sun. No temperatures were taken at mid-day. The highest free air temperatures recorded on the ship's bridge during the period it was proceeding through the Red Sea and Indian Ocean and until the removal of the said 36 drums from the trunk space at Bombay on January 8th were:
December 28 81 degree F.
29 80 degree F.
30 82 degree F.
31 82 degree F.
January 1 83 degree F.
2 80 degree F.
3 70 degree F.
4 78 degree F.
5 61 degree F.
6 58 degree F.
7 73 degree F.
8 76 degree F.
7. The steel deck of a ship exposed to the sun in the tropics gets too hot to walk upon unless heavy solid shoes are worn.
8. The S.S. Examiner arrived at the Port of Bombay on January 8, 1949, at 6:15 a.m. The port was congested and the vessel was able to secure a berth at Alexandria Pier 13 only for the purpose of discharging mail which began at 11:30 that morning. In order to reach the mail which was stored in the port strong room it was necessary to lift the drums from No. 4 port trunk through the No. 4 hatch onto the main deck. 28 of the drums were placed on the portside of the deck and the remaining 8 on the starboard side of the deck. The foreman of the stevedores, who had lifted the drums and discharged the mail, planned to put the drums back in No. 4 hatch but he was directed by the Chief Officer of the S.S. Examiner not to do so, as in a couple of days the ship was expected to be back at the dock to discharge the drums.
9. The 28 drums on the port side were placed on end in a group abreast of No. 3 hatch and the balance abreast the No. 3 hatch on the starboard side. These drums remained there placed on the open steel deck without cover for 16 days from January 8 to January 23, 1949, exposed to the sun for the major part of each day.
10. After discharging the mail, the S.S. Examiner left the berth for an anchorage to await the availability of another berth to discharge the balance of her Bombay cargo. She stayed there until the 15th of January, 1949, when she moved to an open shed pier, west side of Alexandria Pier 17, inside the basin, and commenced discharging her deck cargo, but not the drums. Here, the vessel remained until January 17, 1949, when she moved to dock No. 5, a shed pier with crane suitable for the discharge of general cargo. She was moored here, starboard side to the dock, and cargo was discharged over the starboard side onto the dock by means of shore cranes. Other cargo was transferred over the portside onto lighters by ships tackle, from there to be discharged onto the dock for removal to the warehouse. In the afternoon of January 23, 1949, 8 drums on the starboard side were discharged by shore crane and placed in No. 5 shed, Alexandria dock. The remaining 28 on the portside were transferred from the main deck of the S.S. Examiner and loaded on the lighter Della Hill secured alongside on the portside of No. 4 hatch of the S.S. Examiner for subsequent discharge onto the same dock by dock cranes and removal thereafter to the warehouse. It was necessary to discharge the cargo over the portside directly onto the lighters; men were working in No. 3 and No. 4 hatches and to lift the cargo by slings across the deck to the quay side -- a distance of approximately 62 feet -- would have been too dangerous a manoeuvre.
11. With the loading of the drums on top of other cargo on the Della Hill on the afternoon of January 23, 1949, the last cargo destined for Bombay aboard the S.S. Examiner was discharged. When this was completed the lighter Della Hill was moved forward from the loading hatch to a position along the port bow to await its turn to discharge onto the dock.
12. In addition to the Della Hill, there were two other lighters lying off the port bow of the vessel -- the 5772 (not involved in these suits since there was no cargo aboard her) and the 5338 alongside the Della Hill. The cargo on the 5338 was damaged later when some of the burning film from the Della Hill fell ...