Interesting developments are taking place in United States law as it relates to cargo damage by fire.

In an extraordinary piece of judicial legislation, Judge Kilkenny of the Ninth Circuit Court of Appeals recently attempted unilaterally to repeal the venerable old fire statute. This statute, 46 U.S. Code s. 182, passed in 1851, provides that no shipowner shall be liable for loss or damage to cargo by reason of a

of such owner”.

As all attorneys familiar with cargo cases in the U.S. are aware, fire cases have had a different history and involve different considerations than other cases involving carriage of goods by sea.

The decision in question is Sunkist Growers Inc. v. Adelaide Shipping Lines, 603 F. 2d 1327 (9th Cir. 1979), cert. den. 444 U.S. 1012 (1980). The facts were that a fire broke out in the engine room, caused by a leak at a joint in a fuel oil line near one of the ship’s generators. When the fire was discovered, the engine room crew apparently panicked. They neglected to turn off the supply of oil to the fuel line, they broke one of the fire extinguishers when attempting to use it, and permitted the fire to get out of control. The result was tragic. The chief engineer lost his life in the fire, and the master died from a heart attack several days later. The fire badly damaged the ship and cargo.

In the District Court, the Judge found some defects in the ship, particularly that the joint which failed in the oil line was an inadequate type of connection, but found no neglect or fault on the part of the owners. The Court of Appeals reversed, holding that the engineering superintendents or supervisory employees of the owner had failed to provide a proper flange joint and had failed properly to man and equip the vessel with a crew adequately trained in firefighting. This holding would have been sufficient for liability because of “design or neglect” following decisions in other cases. The Ninth Circuit, however, was not satisfied to stop there. Judge Kilkenny went on to write a lengthy dictum which is contrary to a great many years of established precedent.

Although the burden of proof seems to have had little importance in the case before him, the Judge devotes most of the opinion to that subject.