" Id. at 1326 (citation omitted). See also Hanson Orth, Inc. v. M/V Jalatarang, 450 F. Supp. 528, 540-41 (S.D.Ga. 1978) (evidence that a shipowner was negligent in relation to a fire aboard his ship was too speculative); Thomas v. Young, 282 F. Supp. 52, 55 (E.D. Wis. 1968). The line between "reasonable inferences" and mere speculation is impossible to define with any precision.
This must be done, of course, under the compunction of the Court's words that "contracts purporting to grant immunity from, or limitation of, liability must be strictly construed and limited to intended beneficiaries . . .," 359 U.S. at 305, 79 S.Ct. at 771, 3 L.Ed. at 825. See Grace Line, Inc. v. Todd Shipyards Corp., 500 F.2d 361, 1974 A.M.C. 1136 (9th Cir. 1974) (involving not only the $500 per package limitation, but the one-year statute of limitation); 46 U.S.C.A. § 1303(6) (unseaworthiness not caused by want of due diligence); 46 U.S.C.A. § 1304(1) (fire damage not caused by actual fault or privity); 46 U.S.C.A. § 1304(2)(b) (immunity for liability not caused by actual fault or privity); 46 U.S.C.A. § 1304(2)(q); 46 U.S.C.A. § 1304(2)(a) (errors in navigation); Hanson Orth, Inc., MGC Community Corp., et al. v. M/V Jalatarang, 450 F. Supp. 528 (S.D.Ga. 1978) (fire statute exemption). In the main, the Himalaya clause has been upheld by the various Courts of Appeals including the Fifth Circuit; Secrest Machine Corp. v. SS Steamship Tiber, 450 F.2d 285, 1971 A.M.C. 2332 (5th Cir. 1971), unlike some other cases, extended the $500 per package limitation to a Stevedore under a clause which described the beneficiaries as "the Carrier's agents, servants and employees and of any independent contractor . . ."
Certainly in a time, as opposed to bareboat, charter, the shipowner and captain are in the ideal position where matters involving management and control of the vessel are involved. Dow Chemical Co. v. Dixie Carriers, Inc., 463 F.2d 120, 1972 AMC 2137 (5th Cir.), cert. denied, 409 U.S. 1040, 93 S.Ct. 525, 34 L.Ed.2d 490, 1973 AMC 539 (1972). Cf. Nitram, Inc. v. Cretan Life, 599 F.2d 1359, 1366-67 (5th Cir. 1979); Hanson Orth, Inc. v. M/V Jalatarang, 450 F. Supp. 528, 541 (S.D.Ga. 1978); Camiolo v. Felicitas-Rickmers Line K.G. Co., 449 F. Supp. 18, 19-21 (S.D.N.Y. 1978); Klishewich v. Mediterranean Agencies, Inc., 302 F. Supp. 712, 713, 1969 AMC 359, 360 (E.D.N.Y. 1969). The protest clause in this case covered matters relating to the control and management of the vessel, matters assigned ordinarily to M.O.N.T. under the provisions of the charter party.
A stevedore has a duty to use reasonable care and ordinary diligence in the loading and stowage of cargo. E.g., Hanson Orth v. M/V JALATARANG, 450 F. Supp. 528, 536 (S.D.Ga. 1978). Plaintiff must prove a violation of this duty by a preponderance of the evidence.
This seemingly nice distinction has been used to justify the denial to third parties of COGSA protection where only the language of ¶ 1(a) appeared in the bill of lading. See Hanson Orth, Inc. v. M/V Jalatarang, 450 F. Supp. 528 (S.D.Ga. 1978) (Stevedore which negligently caused fire on vessel during unloading held not entitled to protection of either COGSA or the Fire Statute (46 U.S.C. § 182) under bill of lading provision identical to ¶ 1(a) in the document now under consideration, since stevedore was sued strictly in capacity of stevedore, not in capacity of carrier or bailee). The inclusion of ¶ 1(b) effectively cuts off the contention successfully raised by the consignees in Hanson.
The burden rests on the cargo claimants to establish that the fire resulted from the personal fault and neglect of the vessel owner. Hanson, Orth, Inc. v. M/V Jalatarang, 450 F. Supp. 528 (S.D., Ga.); American Tobacco Company v. Goulandris, 173 F. Supp. 140, 178 (S.D., N.Y.), aff'd 281 F.2d 179 (2nd Cir.); Fidelity-Phenix Fire Ins. Co. of New York v. Flota Mercante del Estado, 205 F.2d 886 (5th Cir.), cert. den. 346 U.S. 915, 74 S.Ct. 275, 98 L.Ed. 411. 6.
The court in a non-jury case must be guided by the same principle.'" Hanson Orth, Inc. v. M/V Jalatarang, 450 F. Supp. 528 (S.D.Ga. 1978), citing Jaramillo v. United States, 357 F. Supp. 172, 175 (S.D.N.Y. 1973). A court can certainly base its decision — and a plaintiff could sustain its burden of proof — by relying on reasonable inferences.