The opinion of the court was delivered by: BRIEANT
By complaint filed June 13, 1978, plaintiff Poliskie Line Oceaniczne ("Polish Ocean Line") seeks damages against Hooker Chemical Corporation, arising out of a shipment by defendant of sulphur dichloride on plaintiff's vessel, the M/V FRANCISZEK ZUBRZYCKI.
As an admiralty and maritime claim, this Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1333 and Rule 9(h), F.R.Civ.P.
The third party action was severed, and by stipulation of the parties, only liability was tried before this Court, without a jury, on October 16 and 26, 1979.
The following constitutes my findings of fact and conclusions of law on the issue of liability.
Defendant arranged to ship 58 drums of sulphur dichloride "house to house" to Cyanamid B.V. in Rotterdam. Pursuant to these arrangements, plaintiff released an empty container, which was approximately one year old and in good condition, to defendant. The drums were stowed by the defendant in the following general pattern:
[SEE ILLUSTRATION IN ORIGINAL]
The last seven drums were banded together with steel straps. Two seven and one-half foot long two by fours were nailed into the container floor against these last drums. No dunnage was placed in the spaces between the drums, or in the space at the rear of the container. A seal was affixed to the container, which was transported to plaintiff's Newark, New Jersey pier, where it arrived in apparent good condition.
Plaintiff loaded and lashed the container on the starboard side of the No. 4 hold hatch cover, middle tier, in a stack of three 40 ft. containers.
The vessel sailed from Newark on February 26, 1977 to Baltimore, Maryland and Wilmington, North Carolina to discharge and load cargo; however, there was no such activity in hold No. 4 after the vessel left the Port of New York.
The vessel sailed for Rotterdam on March 1, 1977. The weather was rough over the next few days. On March 4th, at sea, smoke, fumes and an odor of sulphur were found to be emanating from the container. Professor Gatos, a professor at M.I.T. in the Department of Material Science and Engineering testified that the release of sulphur dichloride will immediately lead to smoke and odor, particularly upon interacting with water vapor in the air, which produces hydrochloric acid, hydrogen sulphide and other acids containing sulphur. Some of these substances are severe irritants to the nose, eyes and lungs. (Tr. p. 150).
Upon opening the container, it was found that the drums had moved, and several drums were damaged and had leaked. Four drums were then thrown overboard. The rest of the drums were restowed by ship's personnel, with wedges and coconut mats.
On March 7th at sea vapors were noticed again, but the container was not opened. There was no further problem with the container until the ship arrived at Rotterdam.
In Rotterdam, severe problems ensued. The vessel's agents, two representatives from Cyanamid and government officials boarded the vessel. Mr. Adrianus Van Bedaf, safety inspector for Cyanamid, entered the container in a protective suit. He found heavy smoke, the bottom of the container was wet, the walls were covered with sulphur powder, which he said indicated that there had been heavy reactions in the container, drums were corroded on the bottom, and some were leaking. Soda ash was used to try to neutralize the chemical, but despite this remedial step, that evening there was an explosion within the container, producing fumes and smoke. The crew and passengers were evacuated and given medical treatment. The container was removed from the vessel and by direction of local port officials, was taken by barge to a location in the North Sea where the chemicals were disposed of by dumping.
In this action, plaintiff seeks damages resulting from the problems with the container of sulphur dichloride. Plaintiff urges that defendant is liable for such damages because the proximate cause of the difficulties was the defendant's improper stowage of the drums in the container.
I find initially that the defendant negligently stowed the container in violation of the Code of Federal Regulations (C.F.R.). Sulphur dichloride is classified as a hazardous material by 49 C.F.R. § 172.101, and as such, may not be transported by vessel unless it is prepared for transportation in accordance with the regulations contained in Title 49. 49 C.F.R. §§ 176.1, 176.3, 176.5. Section 176.76 requires that:
"(1) The material must be in proper condition for transportation according to the requirements of this subchapter;
(2) All packages in the ... container must be secured to prevent movement in any direction ...;
(3) Bulkheads made of dunnage which extend to the level of the cargo must be provided unless the packages are ...