The opinion of the court was delivered by: BONSAL
This case began as an ordinary cargo damage action in which two cargo interests sought to recover for damage to their cargo by fire while aboard the ship on January 26, 1976. Following extensive discovery, the two cargo interests sued a third cargo interest claiming that its tort caused the fire, which claim the ship gladly espoused, and cross-claimed against the third cargo interest.
In February 1976, plaintiff Alfa Romeo, Inc. ("Alfa-Romeo"), an Italian automobile manufacturer, sued the S.S. "TORINITA" (hereinafter sometimes referred to as "the ship") and her owner, A/S Uglands Rederi ("Uglands"). Subsequently, Modern Classic Motors, Inc. ("Modern Classic") was joined as a party plaintiff. Thereafter, in late 1976, plaintiffs amended their complaint to sue Fiat Soc. per Az. ("Fiat") and Fiat Motors of North America, Inc. ("FMNA") in tort, claiming that the fire was due to the defective design and manufacture of a particular Fiat automobile which was on board the ship. Uglands cross-claimed against Fiat for damage to the ship by reason of the fire. In 1977, FMNA sued Uglands and the ship in admiralty for cargo damage. The actions were consolidated and were tried to the court. Following the trial, the parties submitted factual and legal memoranda.
The TORINITA was built in Hamburg, Germany in 1970 by Blom & Voss, A.G., as a drive-on-drive-off oceangoing automobile carrier. Its design was approved by Lloyds Registry, which classified the ship as 100-A-1, and by the Norwegian government, under whose flag it operates. The TORINITA is owned by A/S Uglands Rederi and managed by J. M. Ugland. The TORINITA's history from the date it went into service until January, 1976 had been uneventful.
The TORINITA was designed and constructed with the knowledge of Fiat Soc. per Az. and was built with the carriage of Fiat automobiles in mind. Indeed, Fiat required as a condition of its use of the ship that the ship be powered by Fiat-built engines.
The design of the ship includes free, open access and ramps between car decks to enable automobiles that have been delivered dockside to be driven onto the ship via a ramp connecting the dock to deck six, and then to be driven over a series of internal ramps for stowage on one of the ten cargo decks. This design is typical of roll-on-roll-off car carriers.
The TORINITA was equipped with conventional firefighting equipment for the fighting of smaller fires. However, a sophisticated carbon dioxide (CO 2) system was installed to extinguish any fire that could not be successfully fought with conventional equipment. Under the standards of Lloyds Registry, a ship relying on a CO 2 system must carry enough CO 2 to flood the largest compartment of a ship to a thirty percent concentration. The TORINITA's system was capable of providing a forty-five percent concentration, a substantially higher level, due to the requirements of the Norway Sea Control, for the reason that the TORINITA would carry cars with fuel in their tanks and with their batteries connected. The TORINITA carried forty tons of CO 2, substantially more than similar type vessels. The TORINITA had a smoke detection system with the smoke detector cabinet located in the CO 2 room, using the same pipes to detect smoke and to distribute CO 2.
All of the crew members of the TORINITA were certified as having had firefighting training. The officers received extensive training, which included courses on firefighting, as a requisite for their licenses. The owner had sent the officers and crew to supplemental courses, including courses dealing with firefighting. Monthly fire drills were held on the ship. A fire drill was held on January 24, 1976, two days before the fire. When the ship was carrying automobiles, fire watches of the cargo decks were held hourly during the night and at less frequent intervals during the day.
In January, 1976, the TORINITA was chartered by Fiat, Alfa Romeo and Modern Classic to transport a cargo of automobiles from Savona, Italy to Los Angeles, California to be sold in the American market. The cars were loaded aboard from 10:10 a.m. until 7:50 p.m. on January 19 and from 6:10 a.m. until 11:25 a.m. on January 20.
Thirteen Ferraris, 359 Alfa Romeos, and 2,162 Fiats and Lancias were loaded onto the TORINITA. During the loading, Captain Leonardo Aschire, the port captain for Uglands, was in attendance on board. The stowage plan was prepared by Captain Aschire and approved by the chief officer of the TORINITA. The automobiles were transported by truck from the assembly plant to a storage silo at Savona. Longshoremen drove the automobiles to the pier and then on board the TORINITA, where they parked the vehicles at locations designated by the ship's crew. The longshoremen were instructed to leave open the window on the driver's side when they parked the automobiles. The car keys were then removed and put in the glove compartment or on the seat or attached by a string to the steering wheel. Other longshoremen then lashed the cars into place by means of chains. The batteries were not disconnected and each car carried a small amount of gasoline in its tank. On-board, clean bills of lading were issued by the TORINITA to Fiat, Alfa Romeo, and Modern Classic covering the cargo.
The TORINITA sailed from Savona on January 20, 1976 under the command of Captain Thorlief Midberg, who had served as her master since November 18, 1975; before that, he had served for three months as master of the TORINITA's sister ship, the SAVONITA. Captain Midberg had previously served with Uglands as a chief officer and at lower ratings.
Shortly before the fire broke out on January 26, 1976, a fire watch was conducted by able-bodied seaman Martinez. According to Martinez' deposition, he left the bridge at 1310, went down from deck one to deck ten, and then back up to deck six, from where he telephoned the bridge at 1330 to report: "Everything is okay."
At 1442, the smoke detection alarm sounded on the bridge. The first officer on watch on the bridge, Per Byholt, directed seaman Martinez to go to the car decks to investigate the source of the smoke; the first officer then telephoned the engine room ordering the electrician, Sollie, to go to the CO 2 room to check the source of the smoke or to ascertain if there was a malfunction of the smoke alarm. Before Martinez reached the car decks, the electrician, Sollie, reported seeing smoke on deck six while on his way to the CO 2 room. At 1445, the first officer sounded the fire alarm and the crew assembled near the lifeboats.
The chief mate, the chief engineer, and the boatswain went into the cargo holds to deck six; the boatswain had an air-breathing apparatus with him which he did not use. On arrival at deck six, they observed smoke billowing towards them from the direction of the bulkhead separating section 6-B and reported this to the captain, who had arrived on the bridge immediately after the fire alarm was sounded. At 1448 a radio was sent from the ship: "We are on fire. CO 2 equipment released."
The ship's engines were stopped at 1455. At that point, the chief mate went to the bridge and advised the master that the fire was on deck five or deck six. At 1456, the captain having ascertained that all of the crew were accounted for, ordered CO 2 into decks six and seven. Nineteen minutes later, at 1515, the captain ordered CO 2 for all the cargo decks. At 1520, canvas covers were ordered over the ventilators and fans. At 1535, the CO 2 system was shut down, and shortly thereafter crew members began to check the cargo decks. By 1630, the crew was able to use hoses in the cargo spaces to cool off the steel decks. The fire was declared out at 1745.
The TORINITA continued her voyage, arriving at Freeport, Texas on February 3, 1976. Representatives of the New York Testing Laboratory met the ship at Freeport and made an inspection on behalf of FMNA. The ship then continued through the Panama Canal to Los Angeles, arriving on the evening of February 14, 1976, nineteen days after the fire.
Three fire investigators boarded the TORINITA shortly after it arrived in Los Angeles. These were Frank Rushbrook, retained by Alfa Romeo and Modern Classic; Joseph F. Connor, retained by the ship; and John F. Connell, retained by FMNA. Each of these investigators was of the opinion that the fire originated in a 1976 Fiat Spyder, Serial No. 10106642 ("the target car"), which was stowed on deck six, section B. Both Mr. Rushbrook and Mr. Connor testified at trial that they thought the fire was caused by a failure in the electrical system of the target car. They based their conclusions on their elimination of other causes of the fire. Mr. Connell testified that the fire could not have been of electrical origin since he found no physical evidence of an electrical fire. All of the experts called during the course of the trial expressed differing opinions as to whether some physical evidence, such as the "beading" or melting of copper, will always be found when a fire is of an electrical nature.
The target car was manufactured in Italy in December, 1975. The electrical system, which included all of the wiring in the car, was produced at two different plants. When the target car and all other Fiats were assembled, they were subjected to a quality control process, documented by a white card and a green card. The white card lists the tests performed on all cars, and the green card the special tests required for models to be sent to the United States. Mr. Mauro Pallito, an employee of Fiat, testified that he had seen both cards and that they showed that the target car had passed all the tests in the quality control process. The original of the white card was produced at depositions in Italy, but all that remains of it is a photocopy, and the green card was not produced. Mr. Pallito explained that the green cards were normally kept for six months and then discarded.
Although plaintiffs Alfa Romeo and Modern Classic sued Fiat, the ship and Uglands, they have devoted their entire effort to Fiat, charging that the fire started in the target car. The ship in turn bases its cross-claim against Fiat on the evidence that plaintiffs have introduced. The claims are based upon the expert testimony that the fire originated in the target car. Rushbrook, Connor, and Connell, the three fire experts who boarded the TORINITA upon its arrival in Los Angeles, testified that in their opinion the target car was the point of origin of the fire. Fiat's expert, Antoine Jasich, who examined the target car some two years later and examined photographs of the wreckage ...