The opinion of the court was delivered by: LEVET
OPINION, FINDINGS OF FACT and CONCLUSIONS OF LAW.
Plaintiff, Asbestos Corp. Ltd., and other shippers, plaintiffs in this action, seek to recover for cargo damage as a result of fire aboard the M/V Marquette, owned by defendant Compagnie De Navigation Fraissinet et Cyprien Fabre, while transversing the North Atlantic Ocean en route from Great Lakes ports to European ports.
The initial issue on liability here is whether the defendant
exercised due diligence before and at the beginning of the voyage to make the ship seaworthy so that the vessel was properly equipped and possessed adequate fire fighting equipment to fight an engine room fire. It is the contention of the defendant that it is exempt from liability under the Carriage of Goods by Sea Act, 46 U.S.C. § 1304(2)(b) and the Fire Statute, 46 U.S.C. § 182.
After hearing the testimony of the parties, examining the exhibits, pleadings and Proposed Findings of Fact and Conclusions of Law and post-trial memoranda submitted by counsel, this court makes the following Findings of Fact and Conclusions of Law:
1. The rights of the parties are governed by the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. § 1300 et seq. and the Fire Statute, 46 U.S.C. § 182. The provisions of the Safety of Life at Sea Convention (1929 or 1948) (SOLAS) do not control the rights of the parties herein. Compliance with SOLAS is insufficient to render the Marquette seaworthy. Compliance with SOLAS does not exempt the defendant from liability under COGSA § 1304(2)(b) or the Fire Statute.
2. Plaintiffs were holders of bills of lading for cargo shipped in apparent good order and condition aboard the Marquette at Great Lakes ports for transportation to European ports. (4, 50-51, 224-225, Ex. L.)
The bills of lading provide that the rights of the parties are subject to the terms of COGSA and the Fire Statute. (Ex. 1.)
The bills of lading provide:
"It is agreed that the custody and carriage of the goods are subject to the following terms which shall govern the relations whatsoever they may be, between the shipper . . . and the Carrier . . . in every contingency, wheresoever and whensoever occurring, and also in the event of deviation or of unseaworthiness of the ship at the time of loading or inception of the voyage or subsequently, and none of the terms of this bill of lading shall be deemed to have been waived by the carrier unless by express waiver in writing and signed by a duly authorized agent of the carrier:
"1. This bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States . . . which shall be deemed to be incorporated herein, and nothing herein contained shall be deemed a surrender by the Carrier of its rights or immunities or an increase of any of its responsibilities or liabilities under said Act. The provisions stated in said Act shall govern . . . throughout the entire time the goods are in the custody of the Carrier.
"16. Neither the carrier nor any corporation owned by, subsidiary to or associated or affiliated with the carrier shall be liable to answer for or make good any loss or damage to the goods occurring at any time and even though before loading on or after discharge from the ship, by reason or by means of any fire whatsoever, unless such fire shall be caused by its design or neglect."
3. The Marquette is a vessel of French registry owned and operated by the defendant. She was launched on October 4, 1952 and delivered to her owners fully outfitted on April 4, 1953. She was lengthened or "jumboized" during the period from January 15 to March 2, 1959. (6, 13, 44, 117, Exs. A, L.)
4. On July 21, 1964, at approximately 11:15 A.M., while transversing the North Atlantic Ocean, fire broke out in the engine room of the Marquette when a defective screw fell from an oil pump, causing oil to spray onto and become ignited by the manifold of an adjacent propulsion engine. (4, 15-18, 52, 59, 73, Exs. 1 and 2A.)
5. The fire spread slowly from the engine room into the living quarters of the bridge and the radio operator's room, then into the No. 4 cargo hold where the fire was observed six hours after the outbreak of the fire in the engine room, then into the No. 5 cargo hold and finally into the No. 2 and No. 3 cargo holds. (4-5, 83.)
The S. S. Pentillian came to the assistance of the Marquette and towed her to Brest, France, arriving July 29th. The fire which continued to burn was extinguished at Brest and so much of the cargo as was not totally destroyed was discharged under the supervision of a cargo ...