The opinion of the court was delivered by: DENNY CHIN, District Judge
On November 9, 1998, the M/V DG HARMONY was off the coast of
Brazil, en route from Miami. At approximately 7:20 a.m., the
vessel shuddered. Within moments, dense smoke covered the ship.
The master of the vessel, Captain Michael Balitzki, rushed to the
bridge. After checking the wind, he turned the ship starboard.
The wind cleared the smoke from the deck, and he saw flames
coming from cargo hold 3.
The chief officer, who had the watch, had already sounded a
general alarm and alerted the crew to assemble. The crew began
fighting the fire, wearing fire suits and using hoses and pumps.
The crew continued to fight the fire until late afternoon, when
the captain ordered most of the crew to abandon ship. A lifeboat
was launched at 6 p.m., carrying away fourteen crew members and
leaving only the captain and a handful of others behind. As the
fourteen crew members looked back from the lifeboat, they saw the
HARMONY ablaze, with flames and smoke rising high from approximately the middle third of the ship. One
of the crew members took a photograph:
(CX 110 at 1).*fn1
The captain and the others who remained aboard the HARMONY
continued to fight the fire and operate the vessel. They finally
abandoned ship at 2 a.m., after yet another explosion, when the
captain decided that it was no longer safe to remain on board.
The vessel had been on fire for more than eighteen hours, and
portions of her deck and side shell plating had turned red and
white hot. The captain collected the vessel's log books and
charts, and he and the remaining crew members evacuated, transferring from the HARMONY via a lifeboat to the SEALAND
URUGUAY, a northbound container ship that had been standing by
approximately half a mile away.
The DG HARMONY continued to burn for three weeks. Most of its
cargo was destroyed or damaged. The vessel itself was declared a
constructive total loss and eventually was scrapped.
Some eighteen lawsuits were filed in this Court, by cargo,
vessel, and other interests seeking recovery for damages suffered
as a result of the casualty. All claims have been settled except
for the claims of certain cargo and vessel interests*fn2
against defendant PPG Industries, Inc. ("PPG"), the manufacturer
of calcium hypochlorite hydrated ("cal-hypo"), a bactericide used
to purify water. Ten of the containers aboard the HARMONY
contained 120 drums each of cal-hypo, manufactured and shipped by
Plaintiffs contend that the cal-hypo in one (if not two) of the
containers decomposed and self-heated, resulting in "thermal
runaway," an explosion, and the fire that followed. Plaintiffs
assert theories of strict liability, breach of warranty, failure
to warn, and negligence, and proceed under the Carriage of Goods
by Sea Act ("COGSA"), 46 U.S.C. § 1304, general maritime law, and
New York law, as incorporated by general admiralty principles. PPG denies liability, arguing that plaintiffs are unable to
prove the origin and cause of the fire and that it is impossible
to determine where the fire started. PPG also argues that its
cal-hypo was not defective, it had no duty to warn, and, even
assuming such a duty existed, the duty was not breached. PPG
further argues that even if the fire did originate in the
containers of cal-hypo, the crew failed to properly stow the
cargo because it recklessly placed the containers of cal-hypo
next to a source of heat heated fuel oil bunkers. Finally, PPG
argues that the crew was negligent in its efforts to fight the
The case was bifurcated and the issue of liability was tried to
the Court, without a jury, from April 22 through May 18, 2004.
The parties also submitted extensive deposition excerpts. My
findings of fact and conclusions of law follow.
The DG HARMONY was a full container ship built as the HANSA
CLIPPER in West Germany in 1989. (DX 40 at 5; see Tr. 101,
197). The HARMONY was one of a series of sister vessels. (DX 40
at 5). It had an overall length of 176.57 meters and a breadth of
27.5 meters. (Id. at 4).
The vessel had three holds with numbered bays using odd numbers
from forward to aft as follows: Hold 1 Bays 1-7
(Id. at 12; Tr. 256; CX 31). The vessel could hold the
equivalent of 1,799 twenty-foot containers. (DX 40 at
12).*fn3 Hold 3 had twelve hatch covers (or "pontoons"),
each 40 feet long and 25 feet wide and weighing 22 tons. (Tr.
Containers were placed into the vessel in "slots," running
lengthwise aft to forward. Each odd-numbered bay could hold a
twenty-foot container in each slot. A forty-foot container could
be placed across two slots and the combination of the two bays
would be referred to by the corresponding even number.*fn4
Rows of slots continued across the breadth of the vessel.
Containers could be stacked under deck up to the top of the hold,
just below the hatch covers. Each layer in the stack was referred
to as a "tier." Hence, each slot could be identified by a series
of three numbers indicating the bay, the row, and the
tier.*fn5 Containers could also be stacked on deck, on top
of the hatch covers, as many as six or seven containers high.
(Tr. 289-90, 315-16, 379; see CX 92). All three holds were ventilated by electric fans and were
designed to carry dangerous goods. All three holds had CO2
extinguishing systems, and hold 1 had a water sprinkler system as
well. (DX 40 at 13; Tr. 201-02). Each hold also had a smoke
detection system that would, upon detecting smoke, sound an alarm
and turn on a red light on a control panel on the bridge. (Tr.
203-05). The red light would indicate whether the smoke condition
was in hold 1, 2, or 3. (Tr. 205). The smoke detection system was
last inspected before the casualty on September 2, 1998, when it
was inspected by a surveyor from the Isle of Man. (Tr. 205-06; CX
The HARMONY had a fire control and safety plan, which was
posted in several places on board, in German and English. (Tr.
199-200; CX 95). The firefighting system included, in addition to
the features described above, two seawater pumps, an emergency
pump, a series of hydrants and hoses, fire extinguishers, and
firefighting suits. (Tr. 200-03). The crew generally conducted
fire and boat drills on Saturdays when the Harmony was at sea;
the drills included running the fire pumps and running water
through the hoses. (Tr. 211-14).*fn6
The HARMONY was originally registered in Germany. In September
1998, just two months before the casualty, the ownership of the
vessel changed as the HARMONY was acquired by Navigator Shipping, Ltd. ("Navigator"), a subsidiary formed for
this purpose by Safmarine and CMBT Lines N.V. ("SCL"). (Tr. 101,
106; see CX 14, 15). Upon the purchase, the registry of the
vessel was transferred to the Isle of Man. (See CX 14; Tr.
At the time of the purchase, the Harmony was on charter to
DiGregorio Navegacao Ltda. ("DiGregorio"), which had been
employing the vessel as a member of the Independent Carriers
Alliance (the "ICA"), a group of carriers (or "slot charterers")
engaged in a liner service between the east coast of the United
States and Brazil. The ICA included DiGregorio, Cho Yang Shipping
Co. ("Cho Yang"), DSR Senator Lines GmbH, Montemar S.A.
Pan-American Independent Line, Zim Israel Navigation Co., and
Hanjin Shipping Co., and it operated a tonnage center, where stow
planners prepared pre-stow and final stow plans. (Tr. 288-89,
832-33, 913-14). SCL did not have an immediate need for the
Harmony, and thus it decided to and did re-charter the vessel to
DiGregorio. (Tr. 106-08, 134; CX 16, 17). Around the same time
SCL entered into crew and ship management agreements with
Leonhardt & Blumberg ("L&B"), a reputable ship management
company. (Tr. 134-40; CX 18, 19).
At the time of the casualty, the DG HARMONY had a crew of
twenty, exceeding the number (seventeen) required by the Safe
Manning Certificate issued by the Isle of Man. (CX 22, 23; Tr.
218-19, 221). The crew included the captain, Michael Balitzki, from Germany;*fn7 the chief mate, Yuri Kovshel, from Russia;
and the chief engineer, Ulrich Hahnemann, from Germany. (CX 23).
Many of the crew members were from the Kiribati islands in the
South Pacific. (Id.).
Both Captain Balitzki and chief mate Kovshel were trained in
both firefighting and the handling of dangerous cargo and were
certified in the handling of hazardous materials. (Tr. 186-88,
191, 241-43, 276-77, 279; CX 24 at 436-40; CX 98). Although
Balitzki was ultimately in charge of ensuring the proper stowage
of dangerous cargo aboard the HARMONY, he delegated the
day-to-day responsibility for this task to the chief mate. (Tr.
The voyage commenced in New York on October 26, 1998, bound for
Newport News, Virginia. The HARMONY arrived in Newport News on
October 27th, where it took on the ten containers of cal-hypo.
From there the HARMONY traveled to Savannah and then to Miami. It
departed Miami on October 30th, bound for Rio de Janiero, Santos,
and other ports in Brazil. (Tr. 222-23; CX 84 at 08210, 08211; CX
103 at 11816, 11825). 4. The Fire
On November 9, 1998, at approximately 7:20 a.m., as the HARMONY
was off the coast of Brazil, Balitzki was in his bedroom when he
felt the vessel shudder two or three times. (Tr. 224). Within
three or four seconds, his phone rang. He went to the phone,
which was located next to a window, looking forward. As he
reached for the telephone, he looked out the window and saw
dense, white, dirty smoke. He could see nothing else. The chief
mate, who had the watch, was on the phone, shouting into the
phone. (Tr. 224-25, 312, 314; Kovshel Dep. 247-48, 351).
Balitzki got dressed and immediately went to the bridge,
arriving at approximately 7:26 a.m. The chief mate was the only
other person present. Again, the captain saw dense, white, dirty
smoke. The general alarm had been sounded, alerting the crew that
something was wrong and that therefore they should assemble. The
smoke detection system indicated that there was smoke in hold 3
and the engine room. The captain sent the chief mate to the
muster station, where the crew was gathering, and also instructed
him to check the main deck. (Tr. 226-29; Kovshel Dep. 248-49,
Balitzki checked the ship's course, the weather conditions, and
the wind. He turned the ship to the starboard side, to clear the
smoke from the deck. He then saw the flames for the first time.
The vessel's speed had been reduced automatically because smoke
had been detected in the engine room. (Tr. 227-28; see Kovshel
Dep. 249-50). Communicating by walkie-talkie, the chief mate reported to
Balitzki that the vessel was on fire, in bay 26, the forward part
of hold 3, on the port side. He also reported that one hatch
cover was missing; the 22-ton hatch cover had been blown off by
the force of the explosion.*fn8 Balitzki then checked the
dangerous goods list and dangerous goods stowage plan, and saw
that the fire had broken out approximately where the ten
containers of cal-hypo had been stowed. (Tr. 228-29; Kovshel Dep.
The crew immediately started fighting the fire, using all three
firefighting pumps at maximum capacity, all hydrants, and all
available fire hoses. They even took some hoses from the engine
room. It quickly became clear, however, that the fire could not
be extinguished with just water. (Tr. 229-31; Kovshel Dep.
248-50; see CX 110 at 2).
After approximately an hour, the port side fuel oil tank in
hold 3 breached. The smoke, which had changed in color gradually
from white to gray, turned to black. The fire started to spread,
including onto the deck. At some point, the crew used the C02 system to try to extinguish the fire. The captain did not
believe the C02 would work because a hatch cover had been blown
off, but he tried it anyway. It did not work. (Tr. 231-33, 321;
Kovshel Dep. 253). Approximately three hours after the fire
started, Balitzki sent a distress signal, to a rescue center on
land to coordinate rescue measures and send firefighting
equipment. (Tr. 232, 324). Another ship had offered help within
the first hour or so, but the captain had declined assistance
because he thought he could bring the fire under control. (Tr.
322). Other ships also offered assistance, but Balitzki declined;
he needed foam to fight what had become a petroleum fire, and he
did not want to risk having a tanker come alongside the burning
HARMONY. (Tr. 323; see Kovshel Dep. 395).
At approximately 3 p.m., Balitzki decided that most of the crew
should abandon ship. He and five others, including the chief
engineer and the chief mate, were to remain on board. The other
fourteen crew members abandoned ship in a lifeboat at 6 p.m.,
while it was still daylight They were picked up by a German
containership, the SEALAND URUGUAY, that had been following the
HARMONY about a mile behind since noon. (Tr. 233-34, 322; Kovshel
Balitzki and those who stayed behind took all the remaining
fire hoses and nozzles and fixed them to railings and other
extensions with the pumps running, intending to create a water
curtain to protect the super-structure and engine area. At
approximately 1:30 a.m., there was another explosion, on the starboard side of the vessel.*fn9 Balitzki decided it was no
longer safe to remain on board, and at 2 a.m. he and the five
others abandoned ship, transferring via a lifeboat to the SEALAND
URUGUAY. (Tr. 235-36). The HARMONY continued to make speed, as
its engine continued to run. (Tr. 236).*fn10
Three or four days later, Balitzki re-boarded the HARMONY, to
release both anchors. (Tr. 236-38). The ship was still on fire,
although the fire had "calmed down a little bit." (Tr. 238). The
fire continued to burn, and did so for a total of approximately
three weeks. (Tr. 239-40).
Eventually, the vessel was declared a total loss. The HARMONY
had been purchased for $16.43 million but the estimated cost of
repairs was more than $18 million. Hence, the decision was made
to scrap the vessel. (Tr. 116; CX 67).
The various interests retained fire investigators shortly after
the incident. For approximately two days in January 1999 and three days in February 1999 six fire
investigators inspected the HARMONY in Curacao. These included
Dr. Geoffrey Philip Bound, retained by the cargo interests and
vessel owners, and Dr. Roger McCarthy, for PPG. In general, the
investigators viewed the fire scene as a group, taking
photographs and videos as the debris was removed, bit by bit. The
investigators were permitted to walk around on the vessel,
getting close to objects, including the remains and burnt-out
ruins of containers. (Tr. 498-504). Eventually, the containers
(or their remains) were removed and examined, with the
investigators observing and inspecting each container during the
process. (Tr. 547). Fluorescent spray paint was used to mark the
container numbers on the containers (or ruins thereof) as they
were removed; the various investigators conferred and agreed on
the container number before the number was painted onto the
container. (Tr. 553). As Dr. Bound testified:
Investigating a containership [fire] is like taking
apart a 3-dimensional jigsaw. You only get one chance
to look at the evidence as it becomes
uncovered. . . .
(Tr. 501). The investigators focused their attention on hold 3
and, in particular, the area in hold 3 where the containers of
cal-hypo had been stowed.
Cal-hypo is a bactericide used to purify water. It is a
molecule containing calcium chlorine and oxygen in a form that is a "fairly high-energy material." (Tr. 599). When it
decomposes, it liberates oxygen and chlorine. Cal-hypo will
decompose at room temperature. The higher the temperature it is
exposed to, the greater the rate of decomposition. (Tr. 599;
Simmons Dep. 21). When cal-hypo decomposes, it liberates heat and
heats itself up. Cal-hypo reacts faster when it gets hot. (Tr.
600, 1312-13). When cal-hypo is stored in a drum, heat is
retained inside the drum. The larger the mass, the harder it is
for the heat to escape, and the decomposition is likely to
increase. Similarly, the higher the ambient temperature (the
temperature of the atmosphere surrounding the drum), heat loss
becomes more difficult and the temperature inside the drum will
increase. (Tr. 601-03, 1313-14).
When cal-hypo reaches "decomposition temperature," there is a
rapid breakdown of the material, liberating oxygen. The rapid
decomposition throws white particulate material around, which has
the appearance of fine smoke. A great deal of heat is also
liberated, which can ignite materials in the immediate vicinity,
which may result in a white or cream-colored smoke. The term
"critical temperature" or "critical ambient temperature" (or
"CAT") refers to the ambient temperature at which the heat from
the material inside the drum cannot escape fast enough, heat is
retained inside, and the material in the drum becomes hotter,
increasing to the point of self-decomposition. The reaction
becomes circular and "runs away" the material explodes, decomposes, and a fire ensues. (Tr. 603-04).*fn11 The term
"self-accelerating decomposition temperature" (or "SADT") is used
in the United Nations testing procedures, and is the ambient
temperature at which the bulk of the material in a specific
package (once it is within 2°C of the ambient temperature) will
rise by a temperature of 6°C within the period of seven days.
(Tr. 605-06, 676). CAT and SADT are similar, but the SADT does
not necessarily result in thermal runaway while the CAT does.
The placement of drums of cal-hypo adjacent to each other will
make it more difficult for the heat to dissipate. Hence, the
critical temperature for a stack of drums will be lower than for
an individual drum, because it is harder for the heat to
dissipate. (Tr. 604-05, 643-44, 1316). A container stuffed with
drums creates a double risk the stacking of a larger number of
drums creates more heat and the container walls inhibit the
ventilation of the drums. A containerized stack of drums is
likely to have a lower critical temperature than the same stack
of drums not stuffed in a container. (Tr. 605; see also
Simmons Dep. 239 ("the mass of the material in the package is a
factor" in ...