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MCDANIEL v. THE M/S LISHOLT

October 15, 1957

James E. McDANIEL, Libelant,
v.
THE m/s LISHOLT, her engines, boilers, etc., THE A/S LISE, owner of said vessel, Claimant-Respondent



The opinion of the court was delivered by: EDELSTEIN

1. On February 6, 1954, libelant was a member of the Fire Department of the Panama Canal Zone Government. He was twenty-five years old and had been with the Fire Department for about six months.

2. The m/s Lisholt is a Norwegianflag vessel, built in 1949 at Malmo, Sweden. Its gross tonnage is 5,651. Its length is 462' 2' and its beam 61' 8'.

 3. At about 12:20 a.m. on February 6, 1954, while the m/s Lisholt was tied up at Dock 6, Balboa Docks, Panama Canal Zone, Light diesel oil was pumped from fuel tanks ashore through hoses into the No. 3 starboard double bottom fuel tank of the vessel. At about the time the flow of diesel oil ceased, or 12:45 a.m., oil overflowed out of the sounding pipe of the tank and ignited. Neither the cause of the overflow nor the source of ignition nor the seaworthiness or unseaworthiness of the m/s Lisholt's engine room equipment need be determined inasmuch as claimant-respondent has admitted that it was jointly at fault with the Panama Canal Company in starting the fire. This concession was made solely for the purpose of this trial.

 4. In the engine room at the time of the commencement of the fire were the ship's Third Engineer and a motorman. The Third Engineer attempted to fight the fire with a fire extinguisher, and the motorman went for assistance. The fire, feeding on highly inflammable oil and paint, quickly enveloped the engine room, driving the Third Engineer out.

 5. The foreman of the Panama Canal Company bunkering section called the Canal Zone Fire Department at 12:47, or one minute after he and others noticed the fire on the ship. The elapsed time between the commencement of the fire, which occurred at about the time the light diesel oil delivery ceased, or 12:45 a.m., and the giving of the alarm was therefore two minutes. At least one minute was consumed by the bunkering foreman from the time he noticed the fire until the time he gave the alarm.

 6. The vessel had a CO(2) fire extinguishing system for the cargo holds, but not for the engine room. There were five-gallon foam fire extinguishers in various alleyways and fire hose at various places throughout the ship. The engine room had several small foam extinguishers and one larger one. The fire hoses were inoperative because the vessel's pumping machinery in the engine room had been rendered unserviceable, except for the fire extinguisher used by the Third Engineer; the other extinguishers in the engine room could not be used because of the existence of the extensive fire in the engine room. The vessel had no fire-fighting system independent of the engine room.

 7. The Panama Canal Company Fire Department respondent promptly to the alarm and fought the fire in the engine room and in the superstructure, where it spread, until 5:30 a.m. on February 6, 1954, when the Fire Chief believed the fire to be under control. The fire was considered extinguished by the Chief at approximately 8 a.m. on that day. The majority of the firemen remained on the vessel until approximately 9:30 a.m. Two men were left by the Chief as fire watchmen, and a rig was left on the dock. The fire caused extensive damage in the engine room and in the vessel's superstructure.

 8. Some time between the time the fire was considered extinguished (8 a.m.) and the time the firemen left the ship (approximately 9:30 a.m.), an inspection or survey was made of the ship and compartments surrounding the fire and everything has found quiet. The Chief of the Canal Zone Fire Department said that one of his men entered 'the outer compartment of the reefer' or chill box and found on sign of any fire. Captain Jones of the Fire Department made an inspection of the passageway that led into the refrigerating rooms but did not go into the rooms themselves.

 9. The vessel's Chief Steward and Chief Cook entered the chill box and freeze box of the vessel between 9 and 10 in the morning for the purpose of checking the condition of the stores. They noticed 'gas or smoke or something' in both the chill and freeze rooms. Since there was smoke in the corridors, in other rooms and elsewhere on the ship after the fire, they did not take much notice of it and did not suspect any danger. The Steward was not sure of the identity of the smoke or gas, but he knew that the refrigerant was harmless freon gas. They also noticed that on the outside of the chill-box door the adhesive applied over the cork insulation (described as bitumastic) 'was running down'. The Steward was emphatic in pointing out that the adhesive, which Exhibit N annexed to Libelant's Exhibit 1 shows to be asbestos cement, was running down outside of the chill-box door. He attributed this condition to the heat and saw no evidence of burning. As shown, the Fire Department also made an inspection of the outer compartment or chill box and necessarily passed through the same door and found no signs of fire some time between 8 and 9:30 a.m. There is no evidence that anyone had any knowledge of a smoldering fire in the cork insulation of the chill or freeze boxes at the time of these inspections. It is therefore found as a fact that whatever progress any smoldering in the cork insulation could have made between 8 and 10 a.m., it was not apparent between those hours.

 10. After the Chief Steward and Chief Cook inspected the meat in the freeze box and found it to be still frozen and found ice on the pipes, it was their opinion that the meat could be kept until Monday morning, February 6th being Saturday. The Steward reported to the Captain that there was nothing wrong with the meat, that there was still ice on the pipes, and that the meat looked hard. The Captain agreed, according to the Steward, that the meat could be left until Monday. The Master, who left the ship around 11 a.m. after being up for thirty hours, stated that the Steward reported to him that there was smoke or something that the Steward did not know in the chill and freeze boxes. The Master also testified that he talked with the Chief Officer, the Steward and the agent prior to 11 a.m. (when he left the ship) and that it was decided to take the provisions off as soon as it was safe, but that the time to do so was not decided. The Master believed at that time that there was so much smoke in the chill and freeze boxes that nobody could go down there.

 11. It is conceded that neither the Master, Chief Officer nor the Chief Engineer or any other ship's officer made an inspection of the chill or freeze boxes on February 6, 1954, between the fire and explosion. The Chief Steward and the Chief Cook made the initial inspection and the Steward said the other officers did not concern themselves with the stores but left the matter to him.

 12. Some time during the morning of February 6, 1954, a discussion took place between Kinsman, assistant to the superintendent, Terminals Division, Panama Canal Company, and Hignett, representative of C. Fernie & Company, general agents for the vessel in the Canal Zone about the removal ashore of the ship's refrigerated stores. Kinsman suggested that the meat be taken ashore inasmuch as his experience was that if it decayed the removal would be very difficult. Hignett requested Kinsman to supply a gang to remove the cargo of meat and vegetables. At about 11:30 a.m. Kinsman and Lorenzo Garay, a stevedore sub-foreman, and two other workmen opened the outer chill box, and Garay went in and found the box cold. A slight refrigerant odor was detected. The meat was still frozen. Kinsman then went out on the pier and told a group of men from the Industrial Division of the Panama Canal Company that he had noticed a freon odor or gas in the refrigerator room. He asked them if this was injurious to his men, inflammable or poisonous to the meat. He was answered 'no' to each question and was advised that that was the reason why freon refrigerant was used. Hignett was present at that time and testified that Kinsman was advised that freon was harmful neither to man nor beast. Previously, after the fire had been considered extinguished, Kinsman had asked the Chief of the Fire Department if everything was all right and had been told that everything was, that the Chief was removing all the fire equipment except one rig and would leave two men standing by.

 13. Around noon Kinsman told the Chief Steward that he was going to unload the provisions in the refrigerator rooms. The Chief Steward told Kinsman that they were not to do so until Monday, but was advised by Kinsman that authority had been given.

 14. At approximately 2 p.m. the vessel was shifted from Dock 6 to Dock 14.

 15. A stevedore sub-foreman entered the inner or freeze box at about 2:30 p.m. and reported to Kinsman that the meat was hard as a rock. About 3 p.m. the discharging of the stores from the provision and chill rooms commenced. Kinsman remained on the ship until about 4:15 giving instructions about the way to handle the work. He left the pier at 4:30 p.m.

 16. The Chief Steward also supervised the removal of the stores from the provision and chill rooms. He did not enter the freeze box during the afternoon, the door being closed and dogged but not locked throughout the day. The Chief Steward left the area about a half hour before the explosion and turned over his duties to the Chief Cook, who left shortly before the explosion. Both men said they smoked in the provision and chill rooms and that others among the workmen smoked there too.

 17. Meanwhile, at approximately 4 p.m., libelant returned to the vessel as a fire watchman. He was assigned there by the Fire Department of the Canal Zone Government. There is no evidence that he reported to the ship's officers when he came aboard. He relieved the fireman then on duty, who reported to him that all was quiet. It was libelant's job to make a top-to-bottom inspection of the ship for any rekindling or hidden fires. The fireman he had relieved had the same duty.

 18. The Chief of the Canal Zone Fire Department and the former Chief of the New York City Fire Department, Harold J. Burke, called as an expert witness by respondent, agreed on the duties of a fire watchman. Chief Burke testified that in his experience both in civilian life, through all grades of the New York City Fire Department including the Marine Division, and in the United States Navy as head of its fire damage control program from the time of Pearl Harbor to the cessation of hostilities in 1945, the duties of a fire watchman are to guard against any rekindling of the blaze and to take care of any sign of hidden fires which might have been overlooked or hidden and not found. No distinction can be drawn between a fireman and a fire watchman. A fire watchman has to fight the fires he can ...


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