Opinion
CIVIL ACTION NO. 01-0227, C/W01-3189, SECTION "N" (3)
October 20, 2003
ORDER AND REASONS
This matter was tried before the undersigned on July 28 and 29, 2003. Following trial, both plaintiffs and defendants filed post-trial memoranda on August 8, 2003. The following conclusions of facts and law are rendered, and to the extent any statement of law contains facts, they are so found.
I. STATEMENT OF THE FACTS
A. The Parties
Mammoet Goedkoop B.V. ("Mammoet Goedkoop" or "Mammoet"), at all pertinent times, was a foreign corporation with its primary place of business located in Amsterdam, the Netherlands. Mammoet Goedkoop was the owner of the M/V PROJECT EUROPA ("the vessel"). chartered the vessel from Mammoet Goedkoop, pursuant to a bareboat charter agreement, and was the charter/operator of the M/V PROJECT EUROPA on the subject voyage.
Ambraco, Inc. ("Ambraco") is a corporation in the business of importing sisal baler twine into the United States. Ambraco normally acts as a wholesaler, and typically sells baler twine to retail outlets. Twine Master USA, Inc. ("Twine Master") is also a corporation in the business of importing baler twine. Twine Master also acts as a wholesaler, and sells to retail outlets.
B. The Vessel and Its Cargo
The vessel is an oceangoing cargo vessel. Its design is generally referred to as a "roll on/roll off, or "ro/ro." A roll on/roll off vessel is typically designed with a ramp that allows machinery, vehicles or other equipment to be driven into the cargo hold and stored for ocean transport. The vessel was designed to carry heavy lift or project cargo, or containerized cargo. Heavy lift cargo is considered large single pieces of cargo weighing many tons. The baler twine owned by the plaintiffs is made from the sisal plant, similar to hemp. Sisal is a natural fibrous material, and when made into twine, is considered to be a Class 4.1 combustible solid, as set forth in the IMDG (International Maritime Dangerous Goods) Code.
The original booking for this cargo was offered to Spliethoff. Mammoet is a subsidiary corporation of Spliethoff. Spliethoff did not have a vessel available at that time, and a manager in charge of booking for Spliethoff contacted Mammoet. Managerial employees of Mammoet decided to accept the booking, and confirmed the booking with Spliethoff. Management officials of Mammoet also decided to use the vessel to ship this cargo. Based on the evidence introduced into the record, this Court finds that Mammoet made this decision based on the fact that the vessel would be empty, and it was near the Port of Cabadelo.
This vessel has two fire-fighting systems that are at issue in this case. The vessel has pumps and water hoses, which were designed to reach any part of the vessel. Presumably, this system is designed so that the system could extinguish a fire on any portion of the ship. The vessel also has a C02 fire-extinguishing system. A CO2 system is designed to extinguish a fire in the cargo hold, main deck and engine room. A C02 system could be very effective when used on a fire that occurs in cargo that would be typically carried by this vessel, such as machinery or heavy-lift cargo. However, the C02 system is incapable of extinguishing a fire in the hold of the vessel when the vessel is loaded with palletized sisal baler twine from port to starboard and fore to aft. The vessel did not have any type of sprinkler or other water system in the hold of the vessel that could have been used to extinguish a fire.
CO2 is a gas that is heavier than air. As the CO2 is introduced into the hold, it displaces oxygen. Once a certain percentage of oxygen is displaced throughout the hold, the fire does not have enough oxygen to continue burning and is extinguished. The CO2 system is designed so that an eleven-minute discharge will completely fill the `tween deck of the hold, lower the oxygen level below 10%, and extinguish the fire.
In December of 2000, the M/V PROJECT EUROPA loaded bales of twine and similar products on pallets in Cabedelo, Brazil, bound for New Orleans, Louisiana. During the loading, it was necessary to recooper certain of the pallets. After the cargo was booked and Mammoet selected the vessel for the voyage, the vessel traveled to the Port of Cabadelo and arrived on December 22, 2000. Stevedores at the Port began loading the vessel on the same day. Loading stopped on December 23, 2000 for the Christmas holidays, and resumed on December 26, 2000.
On December 26 and 27, 2000, certain pallets were noted to be damaged. Each pallet contained 50 bales of twine. Each bale contained two spools. The bales were wrapped with three plies of paper wrapping and were stacked on the pallet. The pallets were wrapped in "shrink-wrap", which typically is wrapped around the sides and top of the pallet, covering all of the cargo in the pallet, except for the bottom of the pallet, which is open and can allow air to flow into the twine. An open flame can be used to shrink the pallet wrap.
The stevedores at the Port repaired the damaged pallets by restacking the bales and applying pallet wrap. The pallet wrap was heated by an open flame, and shrunk around the twine. These pallets were loaded aboard the vessel on December 26 and 27, 2000. At no time did anyone, including Mammoet's surveyor and the crew members aboard the vessel, note any problems with the cargo in any way related to fire, heat or smoke damage. All cargo was accepted aboard the vessel, and with few exceptions, clean bills of lading were issued. None of the bills of lading in any way suggest damage to the cargo related to fire, heat or smoke.
Prior to loading cargo in the hold, the circuit breakers for the halogen lamps in the hold were switched to the "off" position, and the switches for the lamps were taped in the "off"position. There is no record nor any witness recollection of these lights being turned on at any pertinent time.
C. The Voyage and the Fire
The ship departed Cabadelo at 1400 hours on December 27, 2000. Chief Officer Gerrit Oldenburg monitored the temperature in the cargo hold daily, to determine whether ventilation was necessary. No unusually hot temperatures were detected by Oldenburg. The vessel proceeded to Forteleza for bunkering, and arrived on December 28, 2000. The vessel did not report any problems with the cargo, and in particular, did not report any fire or smoke in the cargo during bunkering. After leaving Forteleza, the vessel proceeded to New Orleans. The crew conducted an abandon ship and fire drill on December 30, 2000.
During the voyage, Gerrit Oldenburg, the chief officer on the vessel, made regular inspections of the cargo hold. Oldenburg normally worked the morning watch, and would inspect the cargo at approximately 0800 hours before he had breakfast. In order to inspect the hold Oldenburg would first enter the fore-ship section of the cargo hold and take readings for both temperature and humidity. He would then enter the aft-ship portion of the hold, and also take readings for temperature and humidity. Readings were taken on both the `tween deck and the lower deck. The evidence shows that Oldenburg did not report any unusual humidity or temperature readings during the voyage. The humidity readings averaged between 65 and 70%.
At approximately 0830 hours on the morning of January 2, 2001, the boatswain reported smoke coming from the main cargo hatch. Captain Orsel sounded the general alarm, and the crew began to investigate the fire, and also began taking steps to extinguish the fire. Certain crew members obtained hoses and proceeded to the aft-ship cargo hold near an opening to the `tween deck. Chief Officer Oldenburg descended to the `tween deck level, and observed a fire in the cargo, some four to five meters forward of the aft bulkhead of the cargo hold. A fire hose was run down the manhole and to the doorway, where efforts were made to extinguish the fire using water. Oldenburg descended to the lower hold level, and crawled atop the cargo to try to ascertain the conditions in the cargo hold. The crew reported to Captain Orsel that they were unable to control the fire using the fire hose.
At this point, the only way to extinguish the fire using a water hose would be to lift the hatch. However, this process presented several problems. First, the hatch is extremely heavy and must be lifted by the ship's crane. The hatch can only be safely lifted when the vessel is in a safe port and in calm waters. Any wave action will cause the hatch to swing. Also, the crew believed that the introduction of additional oxygen into the hold may cause the fire to burn hotter. Therefore, the crew was reluctant to lift the hatch and allow additional oxygen to enter the hold.
At 0840, Captain Orsel ordered the hold sealed and admitted C02 into the cargo hold. The initial discharge of C02 was for eleven minutes, as specified by the system's instructions. (An eleven minute discharge should have been sufficient to displace enough oxygen to suppress a fire in the `tween deck of the hold if it is empty of cargo.) Because the fire was not extinguished, Captain Orsel ordered the crew to spray water on the deck to hold down the temperature inside the hold. When the deck temperature seemed to be rising, additional C02 was admitted into the hold. The lengths of time of these additional discharges of C02 were decided by Captain Orsel, after consultation with Chief Engineer Campen. After Captain Orsel ordered the initial eleven minute discharge, the tank should have contained only 4,746 kilograms of C02. That amount would have been enough for additional discharges totaling 12.49 minutes (the remaining 4,746 kilograms discharging at the rate of 379.91 kilograms per minute). The facts show that the Captain made several additional discharges totaling at least 31 minutes.
CO2 was admitted to the hold within ten minutes of the detection of the fire. The CO2 system uses the same piping and nozzles as the smoke detector system, and once the system is switched to admit CO2, the smoke detection system is no longer operable. The smoke detection system was in working order on arrival in New Orleans, and in fact, sounded an alarm as the result of a forklift operating in the hold emitting excessive exhaust.
Captain Orsel ordered another CO2 discharge from 0910 to 0915 hours, and again from 1020 to 1025 hours. He ordered a third discharge from 1155 to 1200 hours. All of these subsequent discharges were less than eleven minutes. At 1200 hours on January 2, Captain Orsel had already made four separate discharges totaling 26 minutes (including the initial eleven minute discharge).
Mammoet decided to find a safe berth and to hire SMIT TAK, a salvage company, to assist the crew in the fire-fighting efforts. Eventually, Mammoet selected Curacao as a safe berth. Mammoet felt that the island of Curacao, because of beer-brewing facilities located on the island, would have sufficient quantities of C02 to help fight the fire. Accordingly, the Mammoet office suggested the vessel deviate to Curacao as a port of refuge.
During the voyage to Curacao, the crew continued to cool the deck with fire hoses, and Captain Orsel ordered additional C02 discharges. At 1809 hours, he admitted CO2 into the `tween deck for six minutes. He again admitted C02 from 1930 to 1935 hours. The deck temperatures were not dropping by any significant amount, and smoke was continuing to come from the hold. Therefore, Captain Orsel ordered another C02 discharge to the `tween deck from 2250 to 2255 hours. Assuming all discharges totaled 42 minutes, the rate of discharge is calculated at 212.5 kilograms per minute, far less than the designed rate of 379.91 kilograms per minute. As described in further detail below, firefighting experts (RISC) nonetheless later determined, after testing the oxygen levels in the hold of the vessel after the admission of the C02 using the ship's piping, that the levels of oxygen were nonetheless sufficiently low to prevent an open flare-up of the fire. Indeed, the fire did not flare up following the introduction of C02 into the hold.
When the M/V PROJECT EUROPA arrived at Curacao on January 3, 2001, the local harbor master refused to permit the vessel to proceed to a swell-free berth, instead requiring the vessel to moor at a berth in Caracas Bay. As a result of the swells in Caracas Bay, the M/V PROJECT EUROPA was unable to open her hatches to assess the extent of the fire. Fire-fighting experts, RISC, were retained by SMIT, which was in charge of the operations in Curacao. On January 6, fire experts from RISC arrived to further assist the vessel in its fire-fighting efforts. On January 8, almost six days after the fire was first discovered, the vessel was allowed to enter a safe berth. At approximately 0320 hours on January 3, Captain Orsel ordered the last discharge of C02. Captain Orsel did not note the length of this discharge.
On January 9, 2001, approval was obtained for the vessel to berth at a sheltered area known as Bryant's Wharf After the vessel arrived in Curacao, its owners ordered additional C02. C02 trucks arrived at the dock, and pumped even more C02 into the vessel's C02 tank, which was then discharged into the cargo hold.
Once at the sheltered berth, the No. 3 hatch was lifted, and the fire was extinguished in minutes. Burned and smoldering pallets of twine were removed from the vessel and left on the dock. After the fire was extinguished and all burning cargo removed from the cargo hold, the vessel made repairs to equipment damaged in the fire, and proceeded to the Port of New Orleans. After arriving at the Port of New Orleans, stevedores removed all remaining cargo in the hold. All parties retained surveyors, and other experts, and the process of determining damages was started.
D. Claims of the Parties, and Damages
After the claim was investigated and adjusted by all parties, Ambraco calculated loss to its cargo at 52,977,430.00. That loss includes 12,900 bales that were destroyed in Curacao and five bales short on tally to Colley Warehouse, totaling 5227,047 for the bales destroyed at Curacao, and 588 for the shortage on the tally sheet. An additional 237,095 bales were found to be damaged. However, Ambraco retained those bales at $6 per bale, and thus the total loss for those bales was $2,750,302. All bales were insured at $17.60 each, or the invoice price plus freight to Ambraco, plus 10%. The Court accepts the insured value as the market value in this case. Furthermore, Ambraco also incurred surveying fees of $26,915.99 and expert fees of 524,424.31. The adjustment of Twine Master's loss revealed that 14,600 bales had soot and smoke damage, and were retained by Twine Master at a salvage price of 56 per bale. The insured value of Twine Master's cargo was $14.206754 per bale, resulting in a loss to Twine Master's cargo of $119,819.00.
As a result of the fire, Mammoet incurred approximately EUR 600,000.00 in general average expenses. The general average adjuster, Ton Schoutens, has determined that cargo's portion of the general average is fifty percent. In this case, the PROJECT EUROPA carried cargo for three shippers — Cosibra (consignee Ambraco), Brasbibra (consignee TwineMaster) and NeutraNuts (consignee unknown), in the following respective percentages of tonnage: 94.32%; 5.39%; and 0.29%. Cargo's share of 50% of the general average expenditures would be EUR 300,000, divided by these percentages. Hence, the claim against Ambraco is EUR 282,960.
The record reveals that Mammoet asserted no general average claim against plaintiff TwineMaster.
E. The Experts: Contentions of the Parties
In the instant case, the cause of the fire remains unknown. James Mazerat, Ambraco's expert in the field of fire causation, fire suppression, and fire prevention, testified that, in his opinion, the fire was caused by a halogen light in the aft bulkhead of the cargo hold. Ambraco and TwineMaster argue that because the C02 system did not extinguish the fire, the PROJECT EUROPA was somehow inappropriate to carry this type of cargo. Plaintiffs further argue that it was solely defendants' decision to use this vessel to carry a cargo of "vegetable fibres-dry", which readily ignites, and then loaded such cargo into the hold such that the pallets obstructed the fire detection system. Plaintiffs further argue that, under the International Convention for the Safety of Life at Sea ("SOLAS"), which applies to the M/V PROJECT EUROPA, this vessel was inadequate in several respects, including the sealing of the hold and the lack of a fixed pressure water-spraying system.
Mammoet's expert, Dr. Robert Watt, qualified as an expert in the field of cause, detection, and fire-fighting of marine fires, opines that the cause of the fire likely was smoldering resulting from the application of shrink wrap on certain broken pallets that had to be recoopered prior to loading in Cabadelo. Defendants further contend that, under the U.S. Fire Statute, 46 App. U.S.C. § 182, a plaintiff cargo owner cannot recover when the origin of the fire is a matter of speculation. Moreover, defendants assert that the vessel crew was prudent in its actions taken to control/extinguish the fire, and did not act negligently. Even so, argues defendant, Mammoet as a ship owner is still protected by the Fire Statute. Defendants further argue that the firefighting equipment on board the vessel was appropriate for that class of vessel, and was in conformity with the industry standard. Accordingly, defendants have asserted liability against the cargo for 50% of the general average expenditures. II. LAW AND ANALYSIS
A. Plaintiffs' Claim for Damages to Cargo
1. Applicable Law
"In a maritime cargo claim, the initial burden is on Cargo (shipper) to prove `good order-bad order' — that he delivered the goods to the carrier in apparent good order and condition and that, upon return, they were damaged." Westinghouse Elec. Corp. v. M/V Leslie Lykes, 734 F.2d 199, 206 (5th Cir.), cert. denied, 469 U.S. 1077 (1984). "Once Cargo has done so, the burden shifts to the Carrier to prove that the harm was caused by one of the statutorily excepted causes." Id. "Loss resulting from fire is one of these perils excepted (more so than other perils) from the general liability of the carrier for damage sustained while the goods are in his possession." Id. This exemption from liability for fire loss is protected in both the Fire Statute and the Carriage of Goods by Sea Act ("COGSA").. See 46 App. U.S.C. § 182, 1304(2)(b)). "Once the Carrier shows that the loss or damage was caused by fire, the burden of proof shifts back onto Cargo to prove that the fire was `caused by the design or neglect' of the shipowner." Westinghouse, 734 F.2d at 206. "Thus, the burden is on the Cargo to identify by a preponderance of the evidence the cause of the fire, and also to establish that the cause was due to the `actual fault or privity' of the Carrier." Id., "Once a fire exists, the defense of fire also protects the Carrier from losses resulting from steps taken to extinguish the fire, provided there is no actual fault or privity of the owner concerning the firefighting efforts." Id.
The Fire Statute provides:
No owner of any vessel shall be liable to answer for or make good to any person any loss or damage, which may happen to any merchandise whatsoever, which shall be shipped, taken in, or put on board any such vessel, by reason or by means of any fire happening to or on board the vessel, unless such fire is caused by the design or neglect of such owner.46 App. U.S.C. § 182.
The COGSA fire exemption provides:
(2) Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from —
(b) Fire, unless caused by the actual fault or privity of the carrier;46 App. U.S.C. § 1304(2)(b). "The Carriage of Goods By Sea Act specifically incorporates and carries forward the terms of the Fire Statute." Westinghouse, 734 F.2d at 205 n. 3. Moreover, COGSA "expressly provides that other provisions of the Act . . . shall not affect the rights and obligations of the Carrier under the Fire Statute." Id.
"Cargo's burden is not satisfied by proving that the fire was caused by the negligence of the master or crew." Id. "`Neglect of such owner' means personal neglect of the owner, or, in case of a corporate owner, negligence of its managing officers or agents." Id. at 206-07. Thus, to penetrate the fire defense of COGSA and the Fire Statute, the negligence must be that of a managerial officer or agent with a "broad range of corporate authority." Id. at 211. Without such negligence, neither improper stowage nor any other unseaworthiness will defeat the carrier's right to the fire exemption. Id. at 209-212. Likewise, a Carrier may be liable for inadequate extinguishment only "where the `design or neglect of the owner prevented extinguishment of the fire." Id. at 215. Even where there has "been a violation of safety regulations, this [will] not deprive the shipowner of its defense under the Fire Statute, unless Cargo prove[s] that the shipowner or his managing agents were personally negligent in causing the violation that caused the fire damage." Id. at 212.
"Actual fault or privity" as contained in the COGSA fire exemption "has been held to be substantially equivalent to `design or neglect' in the Fire Statute." Union Oil Co. of California v. M/V Point Dover, 756 F.2d 1223, 1228 (5th Cir. 1985)', see also Westinghouse Elec. Corp. v. M/V Leslie Lykes, 734 F.2d 199, 204-05 (5th Cir.) ("It has long been held that the COGSA fire exemption and the Fire Statute exemption are the same . . ."), cert. denied, 469 U.S. 1077 (1984).
Here, there appears to be no genuine dispute that the goods appeared to be in good order when they were delivered to the Project Europa, that they were damaged in route, and that the loss was caused by fire. Thus, the remaining question for the Court is whether plaintiffs have carried their burden of proving that Mammoet's actual fault or privity either caused the fire or prevented its being extinguished
2. Analysis
Plaintiffs assert several theories of negligence against Mammoet. The Court will address each in turn.
a. Cause of the Fire
Plaintiffs rely on the expert testimony of Mr. James Mazerat, who has extensive experience in the field of fire causation, fire suppression, and fire prevention. In his years of experience, he has only investigated two fires on ocean-going ships, including this one. He hypothesized that the cause of the fire was a halogen light in the aft bulkhead of the cargo hold, on the starboard side. Mazerat employed a process of elimination to exclude other hypothetical causes of the fire, but conceded that certain facts seemed to contradict this theory as well. Mazerat could not explain how the circuit breakers for the halogen light were switched on, and then how the "on/off switches on the bridge could be switched on, when the uncontradicted testimony of the crew was that the lights were not turned on for any reason. Mazerat further could not explain why the fire was the strongest not by the halogen light and its fixture, but rather several meters away into the hold.
Indeed, a chart of temperatures measured over the time of the fire at various locations on and around the hold cover clearly shows that the hottest spot under the hold, which was consistent with area of greatest fire damage of the cargo, was several meters away from the area of the halogen light.
Like Mazerat, Dr. Watt employed a process of elimination to arrive at his conclusion. Dr. Watt originally inspected the vessel at Curacao after a portion of the cargo had been removed and placed dockside. He could find no explanation for the fire until two days later, when he learned of the repackaging of the twine cargo. From that information, Dr. Watt believes that two possibilities exist: either a cigarette was negligently tossed into the cargo by an unknown person during the loading process, or the flame employed in the shrink wrap process somehow instigated a smoldering fire, which later blossomed into that which the crew discovered while at sea. Thus, like Mazerat's, Watt's testimony fell within the realm of speculation. There were also facts which Dr. Watt candidly conceded seemed contrary to his theory.
Although the Court finds Dr. Watt's theory to be more likely than Mr. Mazerat's, this Court cannot find that either expert proved the likely cause of the fire by a preponderance of the evidence. Accordingly, since the plaintiff cargo owner has the burden of demonstrating, by a preponderance of the evidence, that the cause of the fire was by the design or neglect of the owner in order to overcome the fire statute, plaintiffs' claim on this issue must fail.
Even if the evidence did support plaintiffs1 theory as to fire causation, which it does not, plaintiffs' claims would fail nonetheless. Based upon the evidence presented in this case, none of the hypothetical negligent acts associated with the halogen light theory — either stowing cargo too close to the light, leaving the light oh after loading, or switching it on at sea — are attributable to Mammoet's "actual fault or privity." See Washington, 737 F.2d at 206, 209-215 ("Cargo's burden is not satisfied by proving that the fire was caused by the negligence of the master or crew."). Although plaintiffs argue that the light was improperly designed, they presented no evidence in this regard.
b. Inadequate Training
Plaintiffs also assert that the crew was insufficiently trained to fight this type of fire arising from this type of cargo. The evidence does not support this claim, however. To the contrary, even Mazerat conceded that the crew did what they were supposed to do under the circumstances, and that their actions were not unreasonable, given that the vessel was at sea, the cover for the hold was heavy and could only be lifted by dockside crane, and that removal of the cover might well have caused an inflammation of the fire upon its exposure to open air. Moreover, from the testimony of the various crew members, this Court finds that they possessed sufficient fire-fighting knowledge for their positions of responsibility. Hence, plaintiffs cannot recover on this theory. c. Improper Storage
Plaintiffs also assert that the loading of the pallets of baler twine into the cargo prevented both detection and extinguishment of the fire. Plaintiffs concede that the cargo was loaded in the only method available, i.e. against the bulkheads, such that the cargo would remain stable during the voyage. Plaintiffs argue, however, that this means of loading the cargo against the bulkheads blocked the C02 nozzles, which serve not only as the points of distribution of C02 into the hold in the event of fire, but also as the fire detection system itself. These nozzles were located 1,99 meters above the `tween deck. Plaintiffs theorize that the placement of the pallets blocked the fire detection system from sounding an alarm, and then obstructed the nozzles thereby preventing sufficient discharge of C02 into the hold.
The evidence does not support plaintiffs' argument. The testimony of the vessel's crew indicated that C02 indeed was transmitted from the tank through the piping system into the hold of the vessel to some degree, and the temperature readings from the top taken from the hold cover indicate that the heat level in the hold sufficiently decreased after several C02 discharges were made. Moreover, as stated earlier, when the firefighting experts from RISC used the vessel's piping to admit C02 into the hold, prior to opening the hatch, levels were found to be sufficiently low to prevent the fire from flaring up. Accordingly, the Court finds it unlikely that placement of the cargo prevented the C02 from entering the hold. d. Inappropriate Fire-Extinguishing System
Even if the evidence did establish improper stowage as an impediment to fire detection and/or extinguishment, which it does not, plaintiffs' claims would fail nonetheless, for the evidence does not bring the stowage within Mammoet's "actual fault or privity." See Westinghouse, 734 F.2d at 206, 209-215 ("Cargo's burden is not satisfied by proving that the fire was caused by the negligence of the master or crew."). Here, Mammoet entrusted the master with creating a stowage plan, which he did with help from his first mate and other crew members. There is some evidence that an employee in Mammoet's operations department might have seen a copy of the master's stowage plan after the ship was underway. However, even if proved, this fact would not rise to the level of personal negligence on the part of Mammoet. See Westminster. 734 F.2d at 211-12 (evidence that stowage plan was designed by employees in the layout department held "not sufficient to defeat the Carrier's defense under the Fire Statute"). Nor have plaintiffs established that the decision to entrust the master with stowage was a negligent one.
Finally, plaintiffs assert that the fire detection and extinguishing systems on the M/V PROJECT EUROPA were insufficient and inappropriate for this type of cargo. Plaintiffs assert that a fixed pressure water spraying system in the hold was appropriate under regulations of the International Convention for the Safety of Life at Sea (SOLAS). However, the regulation cited by plaintiffs, Regulation 53.2.2.2, applies only to Ro/ro cargo space "not capable of being sealed." Here, crew members' testimony indicated that, in fact, this cargo space was capable of being sealed and was sealed with duct tape throughout the C02 distribution exercise. Thus, Regulation 53.2.2.2 is not applicable.
Plamtiffs also rely on Regulation 53.2.2.1, which applies to Ro/ro cargo space capable of being sealed. Plaintiffs contend that the CO2 system was insufficient because it could not provide a minimum volume of free gas equal to 45% of the gross volume of the largest such cargo space which is capable of being sealed. Plaintiffs contend that Dr. Watt, the defendants' expert, testified that the vessel required only a minimum volume of CO2 equal to 30% of the gross volume of the largest cargo space, and thus Dr. Watt was wrong as to the minimum qualifications of the CO2 system. Nevertheless, the initial discharge of C02 made over an eleven minute time span is deemed sufficient to displace enough oxygen to suppress a fire in the `tween deck of the hold, if it is empty of cargo. Several subsequent discharges were made thereafter. Thus, absent the blockage of the vessel's piping, such CO2 should have been more than enough to impact or extinguish the fire, regardless of the minimum volume of CO2 required under the SOLAS regulations. Even if Dr. Watt were incorrect as to the requisite minimum, the facts of this case indicate that more than enough CO2 was available for this fire.
Plaintiffs offered no expert testimony in the field of general vessel design, or the design of the fire prevention/extinguishment system on this type of vessel. Mr. Mazerat's testimony was rather directed to the (non)performance of the CO2 system on this vessel. As discussed above, the facts show that the system did work. Thus, the record contains no competent evidence to support plaintiffs' argument that the fire detection and extinguishing systems on the vessel were inadequate and/or inappropriate for this type of cargo.
Nor did plaintiffs produce any competent evidence that the PROJECT EUROPA was in any respect inappropriate to carry the cargo in question. Indeed, the evidence is to the contrary on both of these points. Dr. Watt testified that CO2 systems such as that aboard the PROJECT EUROPA are the industry standard, and are approved by classification societies such as Germanischer Lloyd, including for general cargo vessels. Dr. Watt further testified that, according to Germanischer Lloyd, the PROJECT EUROPA was in class, without restriction and, therefore, properly certified to carry any solid general cargo, including the palletized sisal twine that is the subject of this case. Accordingly, the Court finds no negligence on the part of Mammoet either in equipping the vessel or in accepting the twine as cargo. Mammoet is therefore entitled to judgment dismissing the claims against it.
B. Defendants' General Average Claim
1. Applicable Law:
The doctrine of general average "requires all parties to a sea adventure-cargo owners as well as shipowner-to share the costs of sacrifices and extraordinary expenses necessary to save the ship and its cargo." Hughes Drilling Fluids v. M/V Luo Fu Shan, 852 F.2d 840, 841 n. 1 (5th Cir. 1988); Usinas Siderugicas de Minas Geras, Sa-Usiminias v. Scindia Steam Nav. Co., Ltd., 118 F.3d 328, 330 (5th Cir. 1997) ("The principle of general average provides that losses for the common benefit of participants in a maritime venture be shared ratably by all who participate in the venture."). A general average act occurs when an "`extraordinary sacrifice or expenditure is intentionally and reasonably made or incurred for the common safety for the purpose of preserving from peril the property involved in a common maritime adventure.'" Deutsche Shell Tanker Gesellschaft mbH v. Placid Refining Co., 993 F.2d 466, 469 (5th Cir. 1993) (quoting York/Antwerp Rule A (1974)). Although derived from an ancient doctrine, general average concepts are now "subject to the Carriage of Goods by Sea Act" Hughes Drilling, 852 F.2d at 842 (5th Cir. 1988) (quoting Orient Mid-East Lines, Inc. v. A Shipment of Rice onboard S/S ORIENT TRANSPORTER, 496 F.2d 1032, 1035 (5th Cir. 1974)).
See also LESLIE J. BUGLASS, MARINE INSURANCE AND GENERAL AVERGE IN THE UNITED STATES 308 (3d ed. 1991) ("A general average arises when a sacrifice or expenditure is intentionally made or incurred in time of peril by one of the parties to the adventure (usually the shipowner) — not for his own benefit alone, but for the benefit of all concerned in the enterprise, i.e., ship, cargo, and freight. For example, it might become necessary, consequent to an accident, for a vessel to put into a port of refuge not on her scheduled voyage in order to effect repairs which the master deems necessary to enable the voyage to be safely prosecuted."); THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW 386 (3d ed. 2001) ("general average refers to certain extraordinary sacrifices made or expenses incurred to avert a peril that threatens the entire voyage").
"Peril" is a flexible concept, "If the danger be real and substantial, a sacrifice or expenditure made in good faith for the common interest is justified, even though the advent of any catastrophe may be distant or indeed unlikely." Deutsche Shell Tanker Gesellschaft mbH v. Placid Refining Co., 993 F.2d 466, 469 n. 15 (5th Cir. 1993).
Ambraco apparently does not contest that a general average act occurred. Rather, it argues that Mammoet should be denied general average contribution because it was at fault in causing the peril that necessitated the general average acts. Generally, a "vessel owner at fault is not able to collect a general average contribution from the cargo owner." Usinas Siderugicas, 188 F.3d at 330. However, where, as here, the carriage contract includes a "New Jason Clause," the cargo interest is required to contribute to general average expenditures "even if the carrier is negligent unless the carrier is found liable under the Carriage of Goods by Sea Act.1' Id. at 331; see also Deutsche Shell, 993 F.2d at 468 (footnote omitted) ("A standard `New Jason clause' requires general average contribution even if the carrier is negligent, unless the carrier is responsible for the damage under the Carriage of Goods by Sea Act.").
The "New Jason" clause provides in pertinent part:
In the event of accident, danger, damage or disaster before or after commencement of the voyage, resulting from any cause whatsoever whether due to negligence or not, for which or for the consequence of which the Carrier is not responsible by statute, contract, or otherwise, the Merchant shall contribute with the Carrier in General Average to the payment of any sacrifice, losses or expenses of a General Average nature that may be made or incurred, and shall pay salvage and special charges incurred in respect of the goods. See Bills of Lading, Exhibits 16, 22.
The New Jason Clause in this case, like others of its type, is drafted so "as to take advantage of every immunity granted by Cogsa or by any other statute." GRANT GILMORE, CHARLES L. BLACK, JR., THE LAW OF ADMIRALTY 267 (2d ed. 1975); see also SCHOENBAUM, supra at 393 (The New Jason Clause "is designed to ensure that the vessel interests can recover general average even though there is fault, as long as they are immune from liability under COGSA or any other statute."). Thus, "[t]he effect of the combination of the new Jason Clause and the Carriage of Goods by Sea Act is that once a general average act within `traditional bounds' is established, cargo will be required to contribute in general average even if the general average loss is due to a cause . . . attributable as negligence to the carrier, if it is determined that the carrier would not be responsible to cargo under the Act for loss resulting from such cause." Orient Mid-East Lines, Inc. v. Shipment of Rice on Board S.S. Orient Transporter, 496 F.2d 1032, 1041 n. 17(5th Cir. 1974), cert. denied, 420U.S. 1005 (1975). "The ultimate inquiry in this regard, therefore, concerns whether or not the carrier is entitled to the benefit of one or more of the exemptions from responsibility provided in the Act." Id. In other words, "the ship's right to recover general average contribution from cargo . . . presents precisely the same question as [where] cargo [is] seeking to hold the ship liable for damage to cargo's goods." Id. This is because, under a New Jason Clause, "the ship is entitled to recover general average damages in just exactly the same cases as those in which it would have been immunized against cargo claims." GlLMORE BLACK, supra at 267. "[I]f any claim for damage to cargo would fail, it follows under the terms of the new Jason clause that owner's claims for contribution to general average would succeed." LESLIE J. BUGLASS, MARINE INSURANCE AND GENERAL AVERGE IN THE UNITED STATES 308 (3d ed. 1991).
Here, the claim for damage to cargo does fail. As found in the preceding section, none of the damage was "caused by the actual fault or privity of' Mammoet, as required to impose liability on Mammoet under COGSA and the Fire Statute. Because the peril in question is fire, this "fault or privity" analysis is the sole inquiry under the New Jason Clause. Because it has been answered in Mammoet's favor, Mammoet is entitled to general average contribution from Ambraco.
46 App. U.S.C. § 182, 1304(2)(b)). As discussed above, the "actual fault or privity" standard in COGSA' s fire exemption has been held to be substantially equivalent to the "design or neglect" touchstone in the Fire Statute. See e.g., Westinghouse Elec. Corp. v. M/V Leslie Lykes, 734 F.2d 199, 204-05 (5th Cir.) ("It has long been held that the COGSA fire exemption and the Fire Statute exemption are the same . . . "), cert. denied. 469 U.S. 1077 (1984); see also BUGLASS, supra at 313 ("[F]or all practical purposes the words "design or neglect" used in the so-called Fire Statute . . . have a similar meaning as the phrase "fault or privity" in the Carriage of Goods by Sea Act. The protection against losses by fire afforded the shipowner by both statutes is therefore identical.").
The unseaworthiness/due diligence analysis, which often is at issue in non-fire COGSA cases, e.g., Deutsche Shell, 993 F.2d at 468-69, is not applicable where the immunity in question is the fire defense. See Westminster, 734 F.2d at 206-09 (although due diligence to make the ship seaworthy is a condition to securing immunity from liability for certain non-fire losses, it is not a condition of immunity for fire loss; nor does unseaworthiness discoverable by due diligence preclude immunity for fire loss; rather, immunity for fire loss turns exclusively on the whether the owner's personal fault or privity caused the fire and/or prevented its extinction). Thus, contrary to Ambraco's assertions, such analysis has no place in determining Mammoet's claim for general average contribution under the New Jason Clause. See, e.g., BUGLASS, supra at 314 (In a fire case, the "burden is on cargo to prove that the carrier's negligence either caused the fire or prevented its being extinguished. *** What then are the circumstances in which there can be no doubt that the carrier can successfully enforce general average contributions against cargo interests? For all practical purposes, the list is a very short one and comprises: (b) Fire unless caused by the actual fault or privity of the carrier . . .").
Ambraco has presented no argument or evidence undermining the details of Mammoet's general average claim. Accordingly, the Court finds that Mammoet is entitled to contribution from Ambraco in the full amount claimed: EUR 282, 960, to be converted to United States dollars on the date of judgment. Within five days of entry of this Order and Reasons, Mammoet shall submit to chambers a competent affidavit attesting to the conversion rate effective on the date the affidavit is sworn, which shall be submitted to counsel for Ambraco before submission to the Court. Upon receipt of such affidavit, counsel for Ambraco shall inform the Court immediately as to whether Ambraco has any objection to Mammoet's proposed conversion rate. III. CONCLUSION Accordingly, IT IS ORDERED that:
(1) the Clerk shall enter judgment in Civil Action No. 01-3189 against plaintiff, Twine Master USA, Inc., and in favor of defendants, Mammoet Goedkoop B. V., Mammoet Shipping B. V., and the M/V Project Europa, her engines, tackle, furniture, apparel, appurtenances, etc., dismissing the claims of Twine Master USA, Inc. with prejudice and costs; and
(2) the Clerk shall enter judgment in Civil Action No. 01-227 against plaintiff, Ambraco, Inc., and in favor of defendants, Mammoet Goedkoop B.V., Mammoet Shipping B.V., and the M/V Project Europa, her engines, tackle, furniture, apparel, appurtenances, etc., dismissing the claims of Ambraco, Inc. with prejudice; and against defendant-in-counterclaim, Ambraco, Inc., and in favor of plaintiffs-in-counterclaim, Mammoet Goedkoop B.V. and Mammoet Shipping B.V., in the amount of United States dollars equaling TWO HUNDRED EIGHTY-TWO THOUSAND, NINE HUNDRED SIXTY AND 00/100s EUROS (EUR 282, 960), to be converted on the date of judgment, with costs and with interest thereon at the judicial rate from the date of judicial demand.