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IN RE SKIBS A/S JOLUND

July 29, 1958.

Petition of SKIBS A/S JOLUND, in a cause of exoneration from and limitation of liability for damages arising out of a fire on board THE BLACK GULL on July 18, 1952; WURTTEMBERGISCHE UND BADISCHE VEREINIGTE VERICHER-UNGSGESELLSCHAFTEN A.S., Libelants,
v.
BLACK DIAMOND STEAMSHIP CORPORATION and Black Diamond Lines, Inc., Respondents; AMERICAN SMELTING & REFINING COMPANY, Atkinson Haserick & Co., Anglo Fabrics Company, et al., Libelants, v. BLACK DIAMOND STEAMSHIP CORPORATION and Black Diamond Lines, Inc., Respondents; Maria Angelina VERBEECK, Maurice Verbeeck, Simone Verbeeck and Lee Verbeeck, Libelants, v. BLACK DIAMOND STEAMSHIP CORPORATION and Black Diamond Lines, Inc., Respondents.



The opinion of the court was delivered by: DIMOCK

DIMOCK, District Judge.

These are four proceedings which arise out of a disaster in which the M/V Black Gull was destroyed by fire. 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, were 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 opinion, I have grouped both under the term "libelants" except where otherwise indicated.

The proceedings were tried before me and I granted the petition for exoneration and denied any recovery to libelants. D.C., 144 F.Supp. 47. I held that the fire must have been caused either by spontaneous combustion or external ignition. I found that libelants had failed to sustain their burden of proof that petitioner or respondent was negligent in accepting cargo in a condition susceptible to spontaneous combustion or in failing to stow it so as to inhibit spontaneous combustion. I assumed without deciding that the failure to cover the cargo of naphthalene with a tarpaulin was either negligent or in violation of a controlling statute or regulation. I held, however, that the failure to cover the stow with a tarpaulin could not have been a contributing cause of the fire.

 The Court of Appeals, 2 Cir., 250 F.2d 777, reversed the decrees and held that I was wrong in saying that the failure to cover the stow with a tarpaulin could not have been a contributing cause of the fire. The Court of Appeals made many findings of its own by which I consider myself bound but sent the cases back for further findings on two issues:

 (1) Was it negligent to fail to cover the cargo to protect it from the sun or from outside ignition? *fn1"

 (2) If so, was the negligence the cause of the damage?

 All parties have agreed to resubmit the cases on the same record.

 My ultimate findings on the questions submitted by the Court of Appeals are that libelants failed to sustain their burden to prove that any of them should be answered in the affirmative. Subsidiary findings in addition may be useful and I shall proceed to make some in the course of my subsequent discussion.

 I cannot, in the face of the discussion in the opinion of the Court of Appeals, say that there was no evidence of negligence. Indeed the violation of certain safety regulations prescribing tarpaulin covering for naphthalene constituted evidence of negligence. I am not, however, considering the question whether there was sufficient evidence to require its submission to a jury. My task is to decide whether the evidence, by a fair preponderance, indicated negligence. The burden was upon libelants to show what petitioner and respondent did that they ought not to have done or what they did not do that they ought to have done.

 Most of the discussion centered about tarpaulin covering.

 The use of tarpaulin covers would not have protected the naphthalene from the heat of the sun. Their use would have increased the temperature of the naphthalene. Even if the cover had been limited to the top of the stow the heat would have been increased in the center away from the edges.

 The Court of Appeals suggests other precautions such as "structural erections" and "awnings". Libelants have not sustained their burden of showing that such structural erections or awnings would have been feasible. The Court of Appeals stated its inability to say that there were no other feasible ways for protecting cargo from the sun. Libelants have had their opportunity to give evidence of any and have not produced it.

 Libelants have thus failed to sustain their burden of proving that petitioner and respondent were negligent in failing to cover the cargo to protect it from the sun.

 On the question whether petitioner and respondent were negligent in failing to cover the cargo to protect it from outside ignition, the findings of the Court of Appeals compel the conclusion that a tarpaulin cover would have been less inflammable than the bagging in which the naphthalene was contained.The Court of Appeals found that there was no evidence in the record that gases and creosote oil could have impregnated the tarpaulin as they would the bagging. ...


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