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UNIVERSE TANKSHIPS, INC. v. PYRATE TANK CLEANERS

June 10, 1957

UNIVERSE TANKSHIPS, Inc., Plaintiff,
v.
PYRATE TANK CLEANERS, Inc., Defendant



The opinion of the court was delivered by: HERLANDS

In this action for property damages caused by an explosion aboard a supertanker, all of the crucial issues turn upon questions of credibility. The controlling evidence, for the most part presented in open court, is sharply conflicting.

Mindful of its fact-finding responsibility in this non-jury case, the Court has evaluated the reliability of the witnesses in terms of the inherent persuasiveness of their testimony and their relative credibility. In making such appraisal, the Court has closely considered the demeanor of the witnesses on the stand, their manner of testifying, their frankness or lack of candor, their partisanship or impartiality, and the testimonial effect of any motive or bias.

Plaintiff is the owner of the supertanker Bulkpetrol. Defendant is a professional tank cleaning company. The action seeks to recover damages for injury done to the vessel through an explosion in her No. 4 port wing tank (referred to in this opinion as 'the tank'), where defendant's employees were at work. The explosion occurred at about 8:05 p.m. on December 25, 1951.

 Commenced as an action at law, based on diversity, the cause was transferred to the admiralty side on plaintiff's motion, made at the beginning of the trial and granted at the close of plaintiff's case, after a motion to dismiss for insufficiency of proof had been argued and denied (3562, 3629-3630). Cf. W. E. Hedger Transp. Corp. v. United Fruit Co., 2 Cir., 1952, 198 F.2d 376, certiorari denied 1952, 344 U.S. 896, 73 S. Ct. 275, 97 L. Ed. 692; Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 409, 411, 74 S. Ct. 202, 98 L. Ed. 143; Pioneer Steamship Co. v. Hill, 6 Cir., 1955, 227 F.2d 262, 264; Cannella v. Lykes Bros. S.S. Co., 2 Cir., 1949, 174 F.2d 794, 797.

 At all of the material times plaintiff was (and is) the owner and operator of the Bulkpetrol. This steamship is a supertanker. It was built by plaintiff at Norfolk, Virginia and was completed in November 1948. It is classed A 1(E), Oil Carrier, with the American Bureau of Shipping. The vessel is about 629 feet long over-all; 84 feet in breadth; and approximately 44 feet deep (Exhs. 13, 22, 130; Shorrock, 291-292).

 Defendant was and is a professional tank cleaning company. It has been engaged since 1936 in the business of cleaning and gas-freeing petroleum tanks, including both marine and land storage tanks (Kennedy, 206).

 The basic factual issues may be spotlighted by stating the major questions:

 (1) The first involves the nature of the legal relationship between plaintiff and defendant before and at the time of the explosion. Plaintiff claims that defendant was an independent contractor and solely responsible for the proper performance of the tank-cleaning and gas-freeing job for which it was engaged. Vigorously disputing plaintiff's claim, defendant asserts it was either an employee of plaintiff or a joint venturer with respect to the tank-cleaning and gas-freeing project. The Court finds that defendant was an independent contractor at all material times.

 (2) The second question concerns the cause of the explosion. Plaintiff charges that the explosion was triggered by the exposure of the incandescent filament of an electric light bulb within defendant's defective droplight (Exh. 3), which was suspended by defendant in the tank by means of a cable (Exh. 69). Defendant argues that there is neither proof of the actual cause of the explosion nor of defendant's ownership of Exhibits 3 and 69. Moreover, it is defendant's position that the evidence is so inconclusive and speculative that the Court should find that the explosion might have been the result of any one of a large number of equally possible causes, none of which is attributable to defendant's negligence. The Court finds that plaintiff's contention as to the cause of the explosion is established by a preponderance of the credible evidence.

 (3) The third question is whether defendant had reasonable ground to believe that it would be extraordinarily hazardous to risk the exposure of a burning electric bulb filament in the tank by the use of its droplight (Exh. 3) on the evening of December 25, 1951, under the conditions and circumstances then prevailing in that tank. Plaintiff claims (and defendant denies) that defendant had reasonable ground to foresee the danger of exposing a burning electric bulb filament in the tank. The Court finds that plaintiff's claim is clearly sustained by the weight of the reliable evidence.

 (4) The fourth question is whether defendant took ordinary care with respect to its equipment, methods and personnel, to prevent the exposure of the burning filament in the explosive, gaseous atmosphere of the tank. The Court finds that defendant was negligent in the respects indicated; and that such negligence was the proximate cause of the explosion.

 (5) The final question is raised by the defense contentions that, in any event, plaintiff is barred from recovery because (a) plaintiff was guilty of statutory fault in violating an applicable Coast Guard regulation, (b) plaintiff was contributorily negligent, and (c) plaintiff assumed the risk of the explosion. The Court rejects all of these defenses as without merit in point of fact and law.

 Two over-all groups of findings and conclusions may be summarized as follows:

 I.

 Defendant provided a defective droplight (Exh. 3) in the tank. This droplight was used by two of defendant's muckers, Ohlsen and Hofstetter, who were negligently permitted by defendant to work in that gassy tank at a time when the tank had not been properly tested for its toxic and explosive gas content.

 The disturbance of the droplight by Ohlsen (as he fell while in the tank) and by Israelson, another of defendant's employees (who, while stationed at the hatch opening to the tank, was simultaneously pulling on the cable in order to raise the droplight) were added links in the chain of causation. Ohlsen's and Israelson's acts, operating singly or conjointly, resulted in a moving blow of the defective Pyrex glass bowl on defendant's droplight against one of the nearby steel structures located inside the tank.

 This impact cracked or smashed the glass bowl and the lighted electric bulb within the bowl. As a result, the incandescent filament was exposed to the explosive gases in the tank. Instantly, there was an explosion.

 Ohlsen had slipped and fallen because he was made dizzy by the toxic gases in the tank. Defendant should not have permitted Ohlsen to enter the tank before it had been properly gas-tested. Ohlsen's fall was facilitated by the slippery, oily surface on which he was walking. These events and conditions were reasonably foreseeable by defendant. The consequences of these happenings could have been avoided if defendant had not used a defective droplight.

 Thus, the explosion was the proximate result of defendant's failure to use that measure of care with respect to its personnel, equipment and methods of work which a person of ordinary prudence would have exercised as necessary and appropriate under the circumstances prevailing on December 25, 1951 in No. 4 port wing tank.

 II.

 Plaintiff's witnesses, both lay and expert, were impressively reliable and persuasive. Their testimony established all of the material elements of plaintiff's case. The Horvitz, Stewart and Phillips expert testimony, in particular, was clear and convincing.

 On the other hand, defendant's major lay witnesses -- Allen, Kennedy, Lane and Lamanna -- gave testimony which, to the extent that it differed with that adduced by plaintiff's witnesses, was unreliable. Such defense testimony appeared quite clearly to the Court to have been custom-tailored to meet the exigencies of defendant's case. The Court has substantially discounted such testimony.

 Defendant's two witnesses who were called as electrical experts revealed a lack of qualification and expertise. They were but poorly disguised advocates for defendant. Their testimony in this case lends clinical support to the criticism of 'expert evidence' voiced by Professor Morgan and to the remedial recommendations contained in the Model Code of Evidence drafted by the American Law Institute. American Law Institute, Model Code of Evidence (1942) pp. 34-36, 198-216. Cf. 43 A.B.A. Journal (Feb. 1957), Explosion Damage Cases: Insurance Procedure and Expert Witnesses, 135, at 137.

 We turn now to the detailed findings and conclusions.

 On December 21, 1951, the Bulkpetrol arrived at Marcus Hook with a cargo of Kuwait crude oil. This cargo was discharged at the Hog Island dock of the Gulf Oil Corporation (Philadelphia) between 9:20 p.m. on December 21, 1951 and 6:40 p.m. on December 22, 1951 (Deck Log, Exh. 22; Bird, 1347).

 About a week or ten days prior to December 21, 1951, at the solicitation of defendant, plaintiff engaged defendant, as an independent contractor, to clean and gas-free the vessel and prepare her for a periodic overhauling at the Bethlehem Baltimore shipyard (212; 1344-1345). The contract was oral. It was entered into in New York (4285-4286), between Kennedy, defendant's secretary and business solicitor (211-212, 778-780), and Walling, plaintiff's marine superintendent (4282). It was agreed that defendant would provide the necessary labor, materials, equipment and supervision (Kennedy, 212, 780; Walling, 4289, 4312), and that the work would be done on a cost-plus basis (Kennedy, 792; Walling, 4286; Exh. 11).

 Pursuant to the contract, in the evening of December 22, 1951, several of defendant's employees, including its general foreman for the job, Lamanna, and its pumpman, Doyle, boarded the vessel, with their equipment, which they had brought with them by truck from defendant's headquarters at Bayside, New York (Lamanna, 3728-3730; Doyle, 3632-3633; Deck Log, Exh. 22; Hansen 511).

 Defendant's equipment which was put aboard the vessel included, among other things, eight droplights with cables and plugs, junction boxes, adapters, two water blowers, hose, lines, aluminum pails and shovels, rubber boots, flashlights, and other articles required for defendant's work (Exh. 66; Shorrock, 316; Allen 852-853; cf. Kennedy, 217-218; Lane, 3955-3956). Defendant's equipment included 'everything * * * needed to clean that type of ship' (Kennedy, 242). Defendant's equipment included some Russell & Stoll droplights (Kennedy, 219).

 Plaintiff's representative aboard the vessel was Shorrock, a shore pumpman in plaintiff's regular employ, who had been assigned by plaintiff to act as the liaison between defendant's representatives and the personnel of the vessel, in order to facilitate defendant's operations, and in order to inspect the results of defendant's work (Shorrock, 274, 317; Walling, 4315-4316; Bird, 1450-1451). Shorrock's duty was to see that the results were satisfactory; it was not his duty to supervise the personnel, methods and equipment used by defendant (Walling, 4315-4316).

 Shorrock, as well as the officers and crew of the vessel, were duly informed that defendant, as an independent contractor, had undertaken to clean and gas-free the vessel in preparation for the Bethlehem shipyard (Bird, 1344-1347; Shorrock, 315; Hobein, 1266).

 The ship's pumpman, Hobein, familiarized defendant's pumpman, Doyle, with the vessel's piping system and with the manner of operating the pumps (Doyle, 3640-3641, 3644; Hobein, 1159, 1266-1267, 1280, 1289-1291).

 Doyle (cf. 3684-3686, 3651, 3680) thereupon assumed and performed the duties for which defendant had assigned him to the vessel; and he operated the pumps and the piping valves (Lamanna, 3845-3846; Hobein, 1265-1266; Doyle, 3689; Hansen, 461).

 About 10 p.m. on December 22, 1951, defendant's employees commenced washing (variously described as 'machining' and 'Butterworthing') the vessel's tanks (Deck Log, Exh. 22).

 From the time when defendant's men arrived on board until after the explosion, plaintiff and its employees at no time failed or refused to provide any facility, equipment or service requested of any of them by defendant or any of defendant's employees (Lamanna, 3848).

 During the night of December 23rd, defendant's mucker foreman, Hansen, boarded the vessel with a crew of sixteen men (Hansen, 450) and reported to Lamanna (id., 457).

 During the evening of December 24, 1951, Allen, defendant's treasurer and manager of operations (Kennedy, 206) came aboard the vessel (Allen, 965-972). A considerable number of defendant's employees had quit work or had been discharged (Hansen, 458, 502); Lamanna had taken two employees from the mucking gang, in charge of defendant's mucker foreman, Hansen, and the latter had only seven muckers left (Hansen, 459; cf. Lamanna, 3840). Allen found that the mucking was considerably behind the washing (Allen, 844).

 Prior to Allen's arrival, Shorrock had asked Lamanna whether defendant could obtain additional men from New York (cf. Hansen, 458). Lamanna deemed that impossible because the next day was Christmas (Lamanna, 3740, 3840). Lamanna inquired of Shorrock whether members of the ship's crew might be engaged to work as muckers during their off-duty time (id., 3740). Shorrock promised to see what he could do (id., 3841).

 While Allen was on board the vessel in the evening of December 24th, he inquired of Shorrock whether defendant could engage crew members to work as muckers. Shorrock endeavored to reach plaintiff's office by telephone. When not successful in that telephone call, Shorrock consulted the master of the vessel, Captain Bird, who authorized defendant's employment of crew members during their off-duty hours, provided they were kept in separate gangs and their pay turned over to the master for disbursement to them (Shorrock, 322-324; Bird, 1355-1358).

 Allen arranged through the ship's pumpman, Hobein, to engage crew members who were willing to work for defendant during their off-duty time; and he agreed to pay them at the rate of one dollar an hour for their services (Allen, 844, 969-972; Hobein, 1167-1171).

 Allen placed all of the crew members so employed on defendant's pay roll, and subsequently charged plaintiff for their services at defendant's regular billing rate (Allen, 2340-2343; Exh. 11). Plaintiff's officers, who were similarly hired and paid by defendant, were under the direction, control and supervision of defendant. When such officers were so employed, they in turn gave orders to the crew members; and in so doing they were executing defendant's orders (Shorrock, 325, 1023-1027; Exh. 34).

 Shortly after defendant began working, Shorrock informed Lamanna that tanks which had contained Kuwait crude oil could be washed more effectively with cold water than with hot water. Lamanna changed to cold water washing (Shorrock, 318-322).

 Where tanks have contained Kuwait crude oil, cold water is at least as effective; and, in plaintiff's experience, had been more effective than hot water washing (Bird, 1365, Exh. 75; Shorrock, 1058-1059; Mercer, 4551-4552).

 The need for ventilating the tanks after they have been washed and the amount of ventilation required is substantially the same whether the washing is done with hot or with cold water (Mercer, 4530, 4547-4549; Murray, 6667-6670; Bird, 1336-1337; Shorrock, 1112-1113; Purdy, 3203-3204).

 There was not, at any time, any order given by Shorrock or any other representative of plaintiff to Allen, Lamanna or any other representative of defendant with respect to whether defendant should use cold water or hot water or with respect to any other detail of defendant's work (Shorrock, 321-322; Allen, 972-978).

 After Lamanna, defendant's general foreman, had caused the No. 4 port wing tank to be washed in the morning of December 25th, he inspected it on several occasions and was dissatisfied with its appearance; he considered that it might be mucked after a blower or windsail had been used in it (Lamanna, 3749-3753, 3825-3838). It does not appear, however, that he informed Hansen, defendant's mucker foreman, that he thought the tank would require further ventilation; and he could not remember whether the tank had theretofore been ventilated (3826); but, after his final inspection of the tank about 2 p.m., Lamanna told Hansen that the tank was finished (3827).

 Cleaning operations had begun in the night of December 22nd, shortly after the vessel finished discharging cargo, and were continuously in progress down to the time of the explosion. The vessel remained at her discharge berth until 7:20 a.m. on December 24th, when she undocked with the assistance of a tug and proceeded to Marcus Hook, where she anchored at 8:41 a.m. (Deck Log, Exh. 22; Bird, 1348).

 When it appeared that defendant's cleaning work was sufficiently advanced to be completed on the way to the Baltimore shipyard, the vessel left her Marcus Hook anchorage at 1:26 p.m. on December 25th, and proceeded down the Delaware River bound for Baltimore (Deck Log, Exh. 22; Bird, 1350-1351). About 6 p.m. she encountered fog; and at 6:57 p.m., she dropped anchor in thick fog to the northwestward of Overfalls Light Vessel (Bird, 1382-1384).

 It was the duty of defendant's mucker foreman, Hansen, no less than that of its general foreman, Lamanna, to determine whether the tank was in condition for mucking (Lamanna, 3830; cf. Doyle, 4398; Kennedy, 4659-4660).

 After the No. 4 port wing tank had been washed, a windsail was rigged over the hatch, perhaps by or with the assistance of a member or members of the ship's crew; and a copus blower was put in the tank (Von Der Decken, 716-718; Doyle, 3683; Hansen, 468-469; cf. 532).

 In addition to the two water blowers provided by defendant for ventilating the tanks (Exh. 66), four copus blowers and several windsails, all a part of the vessel's equipment, were available to defendant on request; and at least some of them were in use prior to the explosion (Bird, 1333; Shorrock, 423; Von Der Decken, 699, 717).

 Neither Shorrock nor any other employee of plaintiff agreed, promised or undertook at any time to ventilate the tanks or to assume responsibility for anything else inherent in defendant's obligation to wash, clean and gas-free the vessel (Shorrock, 1138-1140, 1145-1146; Von Der Decken, 730; Bird, 1465, 1466, 1521-1522).

 Members of the ship's crew employed by defendant were grouped in one and sometimes two gangs, depending on how many were off watch at the time (Hansen, 459). They reported to defendant's mucker foreman, Hansen, who gave them directions, as to which tanks to muck (Hansen, 462).

 Between four and five o'clock p.m. on December 25th, a gang of off-duty ship's personnel, for whom Hobein was spokesman, reported for duty to Hansen, defendant's mucker foreman, who sent them to muck the No. 4 port wing tank (Hansen, 462; Hobein, 1171).

 The gang of ship's personnel entered the No. 4 port wing tank and started mucking; shortly afterward they became dizzy; and one of their number had to be helped out of the tank (Hobein, 1171-1172; cf. Hansen, 462, 465).

 Hobein reported to Hansen and Lamanna that the No. 4 port wing tank was gassy; Hansen remarked that Hobein's gang was not accustomed to gas; and he directed them to take the No. 5 port wing tank (Hobein, 1172; cf. Hansen, 464).

 Hobein's gang entered the No. 5 port wing tank, as Hansen directed; but before doing any considerable amount of work, they found that tank also to be gassy and came out of it, Hobein telling Hansen that a windsail should be put in before his gang went in again (Hobein, 1172-1173; cf. Hansen 465).

 After Hobein's gang came out of No. 5 port wing tank, and complained of its condition to Hansen, the latter directed them to take the ballast tanks, which run athwartship immediately after of the No. 5 tanks (Hansen, 466-467; Exh. 13; Hobein, 1173).

 The explosion occurred about 8:05 p.m. on December 25, 1951, while the Bulkpetrol was anchored in fog off Overfalls Light Vessel in Delaware Bay (Deck Log, Exh. 22; Bird, 1355, 1359, 1381-1384; Exh. D).

 A few minutes before the explosion, Ohlsen and Hofstetter, two of defendant's employees, at the direction of Hansen, their foreman, entered the No. 4 port wing tank, taking with them one of defendant's Russell and Stoll drop lamps, which was suspended by its conductor cable and had a guide line attached to it so that the men below could move it laterally in the tank (Hansen, 476-479; Lane, 3981-3982; Hobein, 1174-1175, 1182).

 The two men entered the tank through a small hatch on the deck, from which a steel ladder led almost perpendicularly to the bottom of the tank, 44 feet below. There were numerous steel beams in the tank, three of them running athwart the tank less than four feet from the face of the ladder (Court's Exh. II; Joyce, 2681, corrected at 5411, and see 6843, 6847, Exh. 172).

 The cable to the lamp was being handled from the deck by one of defendant's employees named Israelson (Hansen, 475; Israelson, 2483-2485).

 Rain, sleet or snow was falling. While the foreman in charge was giving his attention to covering defendant's junction box, where the cable to the drop lamp was plugged, the explosion occurred (Hansen, 476, 482, 485-486), killing Ohlsen and Hofstetter, the two men in the tank, injuring other of defendant's employees on deck, and doing substantial damage to the vessel.

 According to defendant's general foreman, Lamanna, he had washed the tank with cold water early in the morning of the 25th, had inspected it at 10 a.m., at noon, and at 2 p.m., and after his last inspection had turned the tank over to his subordinate, the mucker foreman, in the belief that it would be ready for mucking in about two hours (Lamanna, 3749-3753, 3825-3838).

 The mucker foreman, Hansen, whose duty it was to determine when the tank was in condition for mucking (Lamanna, 3830; cf. Doyle, 4398; Kennedy, 4659-4660), testified that he had inspected the tank about 3 p.m. (468). As already pointed out, between 4 and 5 p.m., he directed a gang of off-duty crew members (hired by defendant) to work in the tank; but after working a short while the gang came out and reported the tank to be gassy (Hansen, 462-465; Hobein, 1171-1172). Thereafter, Hansen inspected the tank again, by smelling it. He had used a gas tester on other ships, but he did not use or ask for one on the Bulkpetrol (471), although the vessel's gas tester was available on request (Shorrock, 419, 421; Bird, 1371-1372; Von Der Decken, 755-756; cf. Lamanna, 3855-3856).

 Hansen found the tank, 'Not good but not bad enough not to be mucked. It didn't smell too bad' (473).

 Both windsails and blowers were at hadn for ventilating the tank (211-214); in fact, Hansen testified that he may have removed a windsail from the tank when he inspected it about 3 p.m. (468-469, 526); but, upon his final inspection, he decided that further ventilation was unnecessary or useless until after the tank had been mucked (473).

 When the smoke cleared from the vicinity of the hatch, and while the injured men were receiving attention, it was discovered that the ladder was gone and that the side of the ship in the way of the tank had been blown off. The bottom of the tank was filled with the wreckage wrought by the explosion and there was no sign of the two men who had been there. The cable to the drop lamp was hanging in the hatch, but the lamp was gone, the lower end of the cable broken (Shorrock, 343; Hobein, 1178-1179; cf. Hansen, 523).

 The vessel obtained a pilot and proceeded back to Marcus Hook, anchoring on the way for several hours, presumably on account of fog, and arriving at Marcus Hook at 9:10 a.m. on the 26th (Deck Log, Exh. 22).

 Israelson, the man handling the lamp cable at the time of the explosion, had been injured, mainly by the concusion through the deck (2490-2500). He had been taken to a bunk in the officers' quarters, where he was administered aspirin and whiskey (Shorrock, 422). Upon the vessel's arrival at Marcus Hook, he was removed to a hospital in Chester (2493-2494).

 Defendant's managing officers, Allen and Kennedy (4631) arrived from New York after learning of the explosion, and boarded the vessel at Marcus Hook about 2 p.m. on the 26th, taking with them or being joined there by an attorney (Allen, 854-855, 896, 911; cf. Kennedy, 246).

 They interviewed defendant's foremen and other employees. They examined what was pointed out to them as the cable from which defendant's droplight had been suspended in the tank (Allen, 855, 896, 898, 916-923, 957-958; Kennedy, 2625-2639). Later in the day, Lane, defendant's maintenance manager, who was in charge of all of defendant's electrical equipment (and who had come by truck from defendant's headquarters in Bayside, New York, brining two other workmen and a load of additional equipment) arrived on the vessel. Allen and Kennedy showed him the broken cable, which he examined. At their direction, he cut notches in it for identification purposes. When he left the vessel next evening, he took the cable with him. All three of those witnesses identified the cable as Exhibit 69 (Allen, 916-924, 943; Kennedy, 2637-2638; Lane, 3963-3965).

 In investigating the circumstances of the explosion, Allen heard that Israelson was reported to have made a statement describing the occurrence (2283-2296; Hansen 489). Accompanied by an attorney, Allen visited Israelson in the hospital about one o'clock in the morning of the 27th and took a written statement from him (Allen, 2292-2296).

 On the 26th and 27th, one of plaintiff's attorneys boarded the vessel to investigate the casualty; he took a statement from defendant's mucker foreman, Hansen; and on the 27th, after Israelson had been visited by Allen and defendant's attorney, he also took a statement from Israelson in the hospital (2543).

 Defendant resumed work on the 26th, the day after the explosion. In the afternoon of the 27th, defendant was notified that the vessel would shortly get under way for Baltimore, and that the cleaning which remained to be done would be completed by the shipyard. Accordingly, defendant was instructed to remove its men and equipment; and it did so (cf. Kennedy, 4658; Lamanna, 3743-3744).

 Meanwhile, on the 27th, plaintiff informed defendant by telegram that the latter would be held accountable for the damage done by the explosion (Kennedy, 243).

 On arriving at the Bethlehem shipyard, the vessel was moved to a floating dock in the morning of January 2nd; her No. 4 tanks were pumped out; and at 6 p.m. on that day the bodies of the two missing men, Ohlsen and Hofstetter, were removed by a police boat. At 11 a.m. next day, the vessel ws refloated. In the morning of January 4th, she was shifted back to a floating dock and her No. 4 tanks were again pumped out by the shipyard (Deck Log, Exh. 22).

 On January 5th, the remains of a drop lamp, from which a broken piece of cable protruded, were recovered by a shipyard worker in the No. 4 port wing tank and were handed over to one of plaintiff's proctors (Chester, 106, 116, 121-122).

 The identity and defendant's ownership of the drop lamp were thoroughly established. Allen, Kennedy and Lane engaged in numerous equivocations in an effort to avoid a frank admission of its ownership (cf. Allen, 899, 904-909, 910, 916-926, 939-943, 2304-2312, 2314, 2317-2327; Kennedy, 261, 222-224, 2623-2624, 3319-3320, 4700-4711; Lane, 3985-3990, 4054-4059).

 The Court also regards as unworthy of belief other testimony offered by defendant in an effort to discredit the authenticity of the lamp -- the testimony of Foley (that Exhibit 3-A was the base of a 100-watt bulb, whose condition could be reproduced by throwing a bulb in the fire (4836-4837, 4861)), and the testimony of Katsigris (5589-5595) that he had found on the Bulkpetrol, over five years after the casualty, a 30-foot coil of cable, identical with Exhibit 69, the 57-foot length of cable which defendant had removed from the vessel. The testimony of these two witnesses was manifestly unreliable (Foley, 5108-5113, 5162-5164, 5167-5168, 5252-5253; Katsigris, 5699-5705; see 5738-5843, 5763-5764, 5803-5808).

 The lamp (Exh. 3 and its appurtenances), as well as the cable (Exh. 69), were examined at the New York Testing Laboratories in the presence of representatives of both parties. Horvitz, the technical director of the laboratory, and Stewart, its chief engineer, testified at the trial. They expressed the opinion that the explosion was caused by the breaking of the Pyrex glass bowl and the glass envelope of the bulb, thus exposing the burning filament to a gaseous and explosive atmosphere (Horvitz, 2854-2854a, 2893, 2915, 2951; Stewart 3040).

 Horvitz and Stewart stated that the primary reasons for their opinion were: the presence of the metallic globules in the Edison base; the boule at the end of the lead wire; and the almost complete absence of glass within the Edison base (Horvitz, 2847a, 2854-2854a, 2855, 2893, 2915, 2959; Stewart, 3372-3373, 3377).

 Because definite indications of arcing between the mutual ends of the cable conductor wires on Exhibit 3 and those on Exhibit 69 (where the wires were parted) were absent, Horvitz and Stewart expressed the view that the circuit had been broken before the tensile break in the cable occurred, but after the explosion had been set off and after the flow of current had been stopped by the destruction of the filament (Horvitz, 2800-2801, 2803, 2902-2903, 2937a; Stewart, 3380).

 The Horvitz-Stewart testimony impressed the Court as clear, reliable and convincing. The Court finds, as a fact, that the explosion was caused by the factors and under the circumstances encompassed within the ...


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