The opinion of the court was delivered by: CANNELLA
After a bench trial, plaintiffs are entitled to compensation from defendants in general average for the damage done to their cargo in extinguishing shipboard fires on the vessel Export Champion.
The case is within the admiralty and maritime jurisdiction of this Court. 28 U.S.C. § 1333.
The liability issues were tried to the Court on July 22-23, 1976. At the conclusion of the testimony, the Court adjourned the case so that defendant could either produce the ship's Captain or take his deposition. The deposition was taken on September 2, 1976 and filed with the Court on October 7, 1976. Shortly thereafter both sides rested. The following are the Court's findings of fact and conclusions of law. Fed. R. Civ. P. 52(a).
Plaintiffs were the owners of certain cargo shipped from the Far East on board the defendant vessel Export Champion. This cargo was stowed in the forward end of No. 2 orlop deck
/ when the ship departed the Port of Inchon, Korea on the morning of September 9, 1973.
Approximately eight minutes out to sea, at 8:52 a.m., the Chief Mate noticed light smoke coming from the No. 2 hatch exhaust fans and immediately reported to the Captain. The Captain sounded the fire alarm, ordered the Chief Mate to secure all ventilation to hatch No. 2 and to close the exhaust vents from the hatch, and ordered the engine room to supply water pressure to the deck. The crew assembled on the deck and brought hoses to the No. 2 hatch. The hatch cover was opened at 8:55 a.m., but, due to heavy noxious smoke, the crew was unable to direct water onto the fire.Consequently, at 9:06 a.m. the hatch cover was closed, outside ventilation was secured, and the crew inserted rags between the hatch cover and hatch opening in order to form a seal. At 9:13 a.m. twelve 100-pound bottles of carbon dioxide were discharged into the No. 2 lower hold and orlop deck.
/ At 9:30 a.m. four additional bottles of carbon dioxide were discharged into the No. 2 orlop deck and lower hold.
During the time the firefighting efforts were proceeding on deck, the Captain remained on the bridge, reduced the vessel's speed and maneuvered the ship into anchorage clear of all traffic lanes. At 9:40 a.m. the S.S. Export Champion anchored approximately five miles from P'almi Do Island. At 9:55 a.m. two additional bottles of carbon dioxide were discharged into the No. 2 orlop deck. Another two bottles were discharged at 10:25 a.m.
After the ship anchored, the Chief Mate went to the bridge to discuss the situation with the Captain. They examined the cargo plan and boat notes to determine what cargo was stowed in the area of the No. 2 orlop deck. The 120 tons of cargo stowed in this area consisted of canned goods, plastic sandals with rubber soles, and rubber shower slippers. The Captain concluded there was no immediate danger since the fire in the No. 2 hold was apparently contained and under control. He determined that the ship should continue to her next scheduled port, Pusan, Korea. As the ship sailed, the Captain sent the following cable to defendant shipowners, American Export Lines:
PUSAN SMALL FIRE TWO LOWER HOLD DEPARTING INCHON EXTINGUISHED WITH CO2 ARRANGING SURVEY PUSAN.
During the 24-hour run from Inchon to Pusan, crew members periodically checked the sealed No. 2 hatch and noticed no smoke escaping. They tested the bulkhead in the No. 3 lower hold immediately adjacent to the No. 2 orlop deck and found it remained cool. Immediately forward of the No. 2 orlop deck, in the No. 1 lower hold, were ballast tanks filled with salt water. The bulkhead in the No. 1 lower 'tween deck, above and forward of the No. 2 orlop deck, was found to be very warm. At 2:00 p.m., and again at 7:00 p.m., four more bottles of carbon dioxide were injected into the No. 2 orlop deck and lower hold.
The S.S. Export Champion arrived and docked at Pusan, Korea at approximately 11:00 a.m. on September 10, 1973.
At the request of the Captain, a cargo surveyor came on board at approximately 1:00 p.m. With the crew standing by on deck with three hoses, the No. 2 hatch was opened. The Chief Mate and a junior officer donned oxygen breathing apparatus and turned on the ventilation to the No. 2 hatch to clear out the carbon dioxide and smoke that had been sealed inside the hatch. They entered the No. 2 hatch proceeding from the ship's deck to the upper 'tween deck, and thence to the lower 'tween deck, immediately above the orlop deck. In attempting to open the lower 'tween deck hatch covers, a hydraulic line ruptured, spraying oil over the hatch and allowing only a partial opening of the lower 'tween deck hatch covers. Upon exposure to air, the fire in the No.2 orlop deck cargo regenerated. The crew sprayed the fire with two hoses from the ship's deck; a third hose was passed down to the Chief Mate to spray the fire from his position on the lower 'tween deck. In twenty minutes these efforts successfully extinguished the fire.
The cargo in the No. 2 orlop deck was allowed to cool and a cleaning gang was sent into the hold to sort and segregate the fire-damaged and water-soaked cargo. The cargo was periodically wetted down during the course of the sorting operation to make sure the fire was out.The cargo surveyor's report listed cargo that was neither touched by fire nor charred by smoke, but was damaged by the extinguishing sea water.
In this trial on the issues of liability only, the parties have stipulated:
Plaintiffs' cargo was damaged as the result of efforts used to extinguish the fire and/or as a result of the fire itself, but the extent thereof is to be an issue in a damage trial.
The question before the Court is whether the damage to plaintiffs' cargo, caused by the means used to extinguish the fire,
/ was a general average loss which should have been shared ...