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STANDARD COMMER. TOBACCO CO. v. THE M/V "RECIFE"

July 21, 1993

STANDARD COMMERCIAL TOBACCO CO., INC., UNIVERSAL LEAF TOBACCO COMPANY, INC., CENTURY TILE CO., INC., NEW HAMPSHIRE INSURANCE COMPANY and THE INSURANCE COMPANY OF NORTH AMERICA, Plaintiffs,
v.
THE M/V "RECIFE", her engines, machinery, etc., In Rem, SAFBANK LINE LIMITED, ARGONAUT SHIPPING, INC. and THE BANK LINE, LIMITED, Defendants.


SWEET


The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, D.J.

 This admiralty action brought by Standard Commercial Tobacco Co., Inc., Universal Leaf Tobacco Company, Inc., Century Tile Co., Inc., New Hampshire Insurance Company, and The Insurance Company of North America (collectively the "Cargo Interests") against the M/V RECIFE, her engines, machinery, etc., in rem, Safbank Line Limited, Argonaut Shipping, Inc. and The Bank Line, Limited (collectively the "Defendants" or "RECIFE") arises out of an explosion and fire which occurred on the RECIFE on September 7, 1991. Upon all the proceedings previously had and upon the evidence and authorities adduced at trial, and the findings of fact and conclusions of law set forth below, judgment will be granted in favor of the RECIFE dismissing the complaint with costs.

 Prior Proceedings

 This action was commenced by the Cargo Interests by the filing of a complaint on April 17, 1992, in which a recovery of damages in the amount of $ 948,360.45 was sought. Issue was joined and discovery proceeded. In the course of trial by the court from March 22 to March 25, 1993, eight witnesses testified and numerous exhibits were admitted. Final submissions were completed on May 5 and final argument took place on June 8. Admiralty jurisdiction under Rule 9(h), Fed.R.Civ.P. and 28 U.S.C. § 1333 is conceded.

 FINDINGS OF FACT

 The Parties

 The Cargo Interests were the owners and subrogated insurers of shipments of tobacco and tile shipped aboard the RECIFE, a self-sustaining containership with capacity to move containers with its own gear. The Cargo Interests are the real parties in interest.

 Defendant Safbank Line, Limited is a corporation or other legal entity with a place of business c/o its general agent Gulf and Atlantic Maritime Services, Inc., 99 Wood Avenue, South Iselin, New Jersey. It is a common carrier of merchandise by water for hire, and owned, operated, managed, chartered and controlled the RECIFE as a common carrier of merchandise by water for hire.

 Defendant Argonaut Shipping, Inc. is a corporation or other legal entity formed and existing under the laws of the Republic of Panama, with a place of business at South African Marine Corp., Ltd., Room 1100, BP Centre, Thibault Square, Cape Town 8001, South Africa. It is a common carrier of merchandise by water for hire and owned, operated, managed, chartered and/or otherwise controlled the RECIFE as a common carrier of merchandise by water for hire.

 Defendant The Bank Line, Limited was and now is a corporation or other legal entity with a place of business c/o its general agent Gulf and Atlantic Maritime Services, Inc., 99 Wood Avenue, South Iselin, New Jersey.

 The vessel M/V RECIFE was and now is a general ship employed in the common carriage of merchandise by water for hire, and was within this district during relevant times and submitted herself to the jurisdiction of the Court for purposes of this action as did Safbank Line, Limited, Argonaut Shipping, Inc. and The Bank Line, Limited.

 The Shipments

 On July 20, 1991 at the port of Durban, South Africa, Stancom Tobacco Co. (MW), Ltd. delivered to the RECIFE a shipment of 3,417 cartons of "unmanufactured threshed Malawi Burley Tobacco" in good order and condition. The RECIFE accepted the shipment and issued Bills of Lading numbers SFLLI 929, SFLLI 965, SFLLI 962, SFLLI 935 and SFLLE 382, and for agreed freight charges undertook to carry the shipment to the ports of Wilmington, North Carolina, and thence to Richmond, Virginia, pursuant to the terms and conditions of the bill of lading.

 On July 20, 1991, a containerized shipment of "Klorman Chlorine Replacement Cartridges" was received aboard the RECIFE at the port of Durban, South Africa, pursuant to bill of lading SFLLD 197, issued by the RECIFE in consideration of certain agreed freight, for carriage to Savannah, Georgia. The cartridges contained calcium hypochlorite, a powerful oxidant which is used for, among other things, water purification and water treatment in swimming pools. The purpose of adding calcium hypochlorite to water is to destroy organic materials.

 The Klorman Chlorine Replacement Cartridges were manufactured in South Africa by "Control Chemicals d/b/a Deatrick & Associates" of Alexandria, Virginia, and consisted of round pellets approximately three inches in diameter, packed ten to a plastic tube, *fn1" four Klorman Cartridges per box, four boxes per carton, and 1,005 cartons totalling over sixteen thousand individual cylinders of calcium hypochlorite packed into the container on the M/V RECIFE with a total mass of 11,000 kilograms.

 The Freight container IEAU 2071028 ("the "Container") in which the chlorine cartridges were shipped was placed in a stowage location designated "11-08-84" aboard the RECIFE, on deck, at the forward edge of the forwardmost hatch, in the extreme outboard row, and on the top tier of containers on the port side of the vessel in proximity to the cargo of the Cargo Interests.

 After laboratory testing of comparable pellets there was insufficient evidence to establish that there were impurities in the calcium hypochlorite. The chemical content analysis on Klorman samples shipped in a roughly comparable period revealed traces of inorganic impurities with a corresponding negligible effect on stability. The raw materials used to make calcium hypochlorite are subjected to extreme temperatures and pressures during manufacture, a process which customarily drives out or oxidizes any trace metals.

 On August 19, 1991 at the port of LaGuaira, Venezuela, Balgres, C.A. delivered to the RECIFE a shipment of 2,814 boxes of glazed ceramic tile in good order and condition, and the RECIFE accepted the shipment and issued Order Bill of Lading number BKLU 9191, and for agreed freight charges undertook to carry the shipment to the port of Baltimore, Maryland, and thence to Lombard, Illinois, pursuant to the terms and conditions of the bill of lading.

 The Voyage

 The RECIFE remained in port in Durban South Africa from July 20 to July 23 when she got underway for Walvis Bay where she arrived on July 28 and then departed for LaGuaira, arriving on August 11. She then departed for New Orleans arriving on August 22 and remaining in the New Orleans area until August 29 when she departed for Houston, arriving on September 1, departing Houston for Beaumont, Texas on September 4. During this voyage the outside ambient temperature rose from 17 degrees - 20 degrees to 28 degrees - 31 degrees C.

 The Container

 The steel roof of the Container reached temperatures of 70 degrees C (158 degrees F) due to solar heating during the voyage. During partial and full sun conditions, the temperature of the air inside the container would range between 26 and 38 degrees C above the outside air temperature. The temperature of the air in the Container periodically exceeded 120 degrees F (49 degrees C) and on some days exceeded 140 degrees F (60 degrees C). On a day of full sunlight, the inside air temperature in the Container was approximately 156 degrees F (68 degrees C). Heat did not flow out of the Container through the roof during periods of sunlight although it would at non-sunlight hours.

 As a consequence of the temperature range of the ambient air adjacent to the cargo, a heat transfer process called "heat pumping" took place as described by Cargo's expert in the following terms:

 
Daily cycling of peak heat input can readily cause "heat pumping" depending on contents of the container and its construction, which results in the continuous increase of the temperature of the container's internal atmosphere and contents, particularly during a long voyage where daily ambient temperatures are high, as was the case in the voyage of the RECIFE.

 Pl.'s Mem. of Law at 29; also Pl.'s Ex. W-1 at 5; Pl.'s Ex. AQ.

 Therefore, the air inside the Container continued to heat until its temperature exceeded that of the outside air, at which point heat began to flow out through the sides of the Container. Because the inside air (heated by the sun on the metal roof) was initially much warmer than the mass of cargo, heat flowed from the inside air into the cargo. This process continued unless solar input was removed from the roof.

 When the roof and outside air cooled, when the temperature of the roof and outside air dropped below that of the inside air, heat flowed out of the Container and the cargo gave up its heat. However, the rate at which the cargo lost heat was appreciably lower than the rate at which heat was introduced, resulting from the smaller temperature differentials at night.

 The approximate critical temperature of a close-packed stow of Klorman Cartridges can be calculated by the use of a mathematical equation developed by D. A. Frank-Kamenetskii. *fn2"

 The critical temperature of calcium hypochlorite (the temperature at which runaway thermal decomposition occurs) depends inversely upon the size of the sample; as the mass increases, the critical temperature decreases. A mass of calcium hypochlorite will generate heat in direct proportion to its volume.

 The critical temperature of a single pellet of calcium hypochlorite is approximately 180 degrees C. For a larger mass of calcium hypochlorite, the Frank-Kamenetskii equation enables the user to calculate the temperature required at the surface of the mass in order for the temperature of a small portion at the center to be 180 degrees C.

 The temperature necessary at the outer surface of the stow of Klorman Cartridges for a small portion of calcium hypochlorite at the center of the stow to achieve runaway decomposition was 52 degrees C (126 degrees F) which was reached fifty days after the commencement of the voyage.

 The Fire

 On Saturday, September 7, 1991 while the RECIFE was at sea bound for Wilmington, North Carolina, at 0048 (48 minutes after midnight), the log entry states: "IMO 5.1 Container IEAU 2071028 in position 11-08-84 explodes engulfing hatch 1 in smoke and flames" (the "Fire"). The Fire was preceded by an explosion in container IEAU 2071028 which blew open the container doors of the container of calcium hypochlorite that was stowed in the forward part of the vessel, top tier, port side.

 The Fire caused substantial property damage to containers and their cargoes in the vicinity of the Container. The crew successfully extinguished the Fire, and the voyage continued.

 The Code And Practice Under The Code

 Title 49 of the United States Code of Federal Regulations, October 1, 1990 Edition, provides that stowage requirement for calcium hypochlorite UN No. 1748 to be "keep cool and dry."

 Hazardous materials are separated into nine classes in the IMDG Code. Calcium hypochlorite is classified within the IMDG Code as an oxidizing substance, Class 5.1.

 The specific entry relating to U.N. No. 1748, Calcium Chloride also states as follows:

 
Critical ambient temperature of decomposition may be as low as 60 degrees C.
 
May cause fire in contact with organic material or ammonium compounds.

 The general introduction to this Class describes the properties of all oxidizing substances as follows:

 
Substances of Class 5.1 in certain circumstances directly or indirectly evolve oxygen. For this reason oxidizing substances increase the risk and intensity of fire in combustible material with which they come into contact.

 (IMDG Code, P. 5101, Amdt. 25-89), emphasis added.

 The first instruction in the Stowage chapter of the General Introduction states, "substances, materials and articles should be stowed as indicated in the individual schedules in the various classes . . ." (IMDG Code § 14.2). The first precaution set forth in the "Stowage" section of the Introduction to Class 5.1 says: "Oxidizing substances should be stowed as indicated in the individual schedules . . ." (IMDG Code § 3).

 Under the heading "Stowage," this section of the IMDG Code requires that calcium hypochlorite be stowed "away from sources of heat."

 A Class 4.1 "Flammable Solid," is defined, in part, in the introduction to this class as covering:

 
Substances which are self-reactive, i.e., liable to undergo at normal or elevated temperatures, a strong exothermic decomposition caused by excessively high transport temperatures or by contamination.

 For 4.1 substances that are "self-reactive," the IMDG Code states in the introduction to the class as follows:

 
General Stowage Precautions for ...

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