The opinion of the court was delivered by: DIMOCK
This controversy arises out of a fire which occurred on the Norwegian M/V Black Gull, on July 18, 1952. As a result of this fire, the vessel became a constructive total loss and most of her cargo was either destroyed or damaged. Four members of the crew lost their lives. Other members of the crew and some of the passengers allege that they were injured and that they lost their baggage and personal effects.
Four proceedings have been instituted as a result of this disaster. The first is a proceeding for exoneration from or limitation of liability instituted by Skibs A/S Jolund, owner of the Black Gull. The second and third cases are suits for non-delivery of and damage to the cargo which was on board the Black Gull at the time of the fire. Libelants, in those two suits, are the owners or underwriters of that cargo. Respondent in those suits, Black Diamond Steamship Corp., was the time charterer of the Black Gull and issued the bills of lading for the cargo carried on that voyage. The fourth proceeding is one for wrongful death of a Belgian mess-boy, brought by his widow and children against the same respondent. I have not attempted to distinguish between libelants and claimants and for purposes of this memorandum, I have grouped both under the term 'libelants' except where otherwise indicated.
There is no real dispute about the facts leading up to the disaster. The vessel left Rotterdam on July 10, 1952, bound for United States east coast ports, the first of which was to be New York. She carried general cargo below decks which had been loaded at Bremen, Hamburg, Antwerp and Rotterdam. In addition, she carried on the weather deck approximately five hundred fifty tons of crude naphthalene in previously used jute or burlap bags which had been loaded in Antwerp and Rotterdam. The vessel on this voyage was manned by a crew of forty and carried nine passengers.
The crude naphthalene was stowed about six bags high. The stow covered both port and starboard sides of the afterdeck over an area of some 13-16 feet wide and approximately 90 feet long. The forward weather deck of the vessel, both port and starboard, contained an approximately similar stow of bagged crude naphthalene. In athwartship direction, the stow started just inboard of the bulwarks and continued to a line about three feet out from the sides of the hatch coamings. A dunnage fence kept the stow clear of the bulwarks and permitted a three foot wide passageway through which members of the crew could pass. This passageway also kept sounding plugs and hose connections available to the crew. The stow was secured in place by rope nets but was otherwise uncovered.
On the evening of July 18, 1952, the vessel passed the Nantucket Shoals Light on her way to New York. At about 11 o'clock, the deck officer, standing on the starboard wing of the bridge, heard what he described as 'a hollow dull dump' from the afterpart of the vessel. Looking in that direction, he saw smoke and a small flame coming from the after weather deck port side abreast number 4 hatch about 100 feet from his position on the bridge. After ordering water on deck, he went to the area in the vicinity of the smoke. He there saw fire in the middle of the top of the load and fire on the side of the load between the second and third tiers from the top.
Although an attempt was made to extinguish the fire, it was necessary to abandon the vessel about four and a half hours after the fire was discovered.
During the voyage, the temperatures ranged from a high of 77 degrees F. to a low of 61 degrees F. The last recording taken on the 4-8 p.m. watch on July 18th indicated a temperature of 72 degrees F. These temperatures were taken on the bridge and therefore indicated the temperature in the shade only.
Passenger claimants state in their brief that the fire was caused in one of two ways. They state that it was caused either by external ignition from something like a cigarette butt or spark or that it was caused by spontaneous combustion in the stow of naphthalene. They further allege that negligence of the petitioner or respondent was responsible for the disaster, whether the physical cause of the fire was external ignition or spontaneous combustion.
In order to recover, libelants must prove that the fire was caused through design or neglect of the petitioner or respondent. Automobile Insurance Co. v. United Fruit Co., 2 Cir., 224 F.2d 72.
Here, there are two possible causes of the fire. Passenger claimants expressly conceded this point in their brief filed subsequent to trial. While the libelants have attempted to rule out spontaneous combustion as a cause of the fire, the evidence clearly shows it to be chemically possible. There was testimony of a 'hollow dull dump' immediately before the fire was discovered. Dr. Purdy, respondent's expert, testified that a fire caused by ignition from a spark or cigarette butt on the top of the stow would probably not commence with such a sound. Since the bags were packed so closely together that no crevices remained between them, it is doubtful that an outside ignition source could have found its way below the top of the stow. In addition, the location of the start of the fire lends credibility to the possibility of spontaneous combustion. The first close investigation found the fire in the middle of the top of the stow and on the side of the stow between the second and third tiers from the top. Under cross-examination by the libelants, Dr. Purdy testified that a fire which started on the top of the stow would not naturally work directly downward; rather, he stated, it would be expected to flame over the surface and through the flow of melting naphthalene to distribute the fire. On the other hand, a fire which started within the stow would naturally work out to the side at that level and work up to the top directly above it. This is exactly the position of the fire when first investigated. Thus, since a fire resulting from spontaneous combustion would start within the stow, this lends further strength to that possibility in this disaster.
Dr. Purdy, the expert called by respondent, testified as to possibility of spontaneous combustion of the bagging having caused this fire. He stated that self-heating may cause a fire in previously used bags in which impurities from prior commodities might remain. In two tests he ran involving similar bagging, some self-heating resulted. From these experiments he stated that, without definitely knowing that no impurities were present in the bags on the Black Gull, spontaneous combustion was chemically possible. Both Dr. Purdy and Dr. Snell, the experts called by libelant, agreed that, once the bagging started to burn, the heat from the burning bagging would ignite the naphthalene.
There being no direct testimony as to an external ignition, spontaneous combustion of the bagging cannot be eliminated as a possible cause of the fire.
Libelants must prove that petitioner or respondent was negligent and that negligence was the cause of the fire whether it was started by external ignition or by spontaneous combustion. Without this proof, the fire might have been caused without any negligence on the part of petitioner. In that event, libelants would be barred from recovery. Automobile Insurance Co. v. United Fruit Co., 2 Cir., 224 F.2d 72, supra.
There are, therefore, two questions that are immediately before me. They are: (1) If the fire was caused by spontaneous combustion, did any negligence of petitioner or respondent cause the spontaneous combustion? (2) If the fire was caused by external ignition, did the failure to cover the stow of naphthalene with a ...