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January 19, 1956

Matter of the Petition of AMERICAN DREDGING COMPANY, as owner of THE ARTHUR N. HERRON, for exoneration from or limitation of liability

The opinion of the court was delivered by: KIRKPATRICK

On the evening of November 18, 1952, between 10:00 and 11:00 o'clock, the tug Arthur N. Herron was going down the Schuylkill River, with a tow consisting of a loaded mud scow made up on her port side. As she was passing the refinery of the Gulf Oil Company, the men on board her heard a rumbling sound and, without other warning, the surface of the river around the tug suddenly burst into flames, enveloping the tug and barge in a sea of fire, with flames rising to a height far above the deck of the tug and completely shutting off the view of those on board in every direction. The tug caught fire and portions of it, including the entire wheelhouse, were destroyed.

Two men lost their lives. Their widows, together with at least one of the crew who suffered burns in the fire, have claims for damages against the American Dredging Company, owner of the tug. The matter comes before the Court upon a petition for exoneration from or limitation of liability filed by the Dredging Company.

 In proceedings of this nature, the burden of proof is upon the petitioner. If he can show that the disaster was due to no fault of his and no fault on the part of the ship or its crew, he is entitled to exoneration. If he fails to meet this burden or if it appears affirmatively that there was negligence, causing or contributing to the loss, on the part of the master or crew, the limitation phase comes under consideration, and here, fault having been proved, or presupposed from the petitioner's having asked for limitation, the petitioner's burden is to show that the fault was without his privity or knowledge.

 The cause of the fire was the ignition of highly inflammable vapor lying above an extensive accumulation of some petroleum product spread over the surface of the river, which was touched off by an open flame kerosene lantern carried on the deck of the scow at its rear port corner.

 The lantern was not more than three feet above the water instead of eight feet as required by Section 80:16, subsection (h), *fn1" of the Coast Guard Regulations, and there is evidence, consisting of expert opinion, that the vapor would not have been ignited if the lantern had been carried at a height of eight feet. However, that fact being an element of liability in this case, the claimants were not bound to prove it, but the petitioner had the burden of disproving it, and has failed to do so.

 The petitioner contends that section (h) does not cover the case of a barge or scow towed alongside, as was the one which the Herron was towing, but I think that it does. Subsection (e) also deals with alongside tows but expressly applies only to such barges as have deck houses or which are carrying cargo piled so high as to obscure the side lights of the tug. In such case the barges must carry on their outward sides red or green lights corresponding to the light of the tug obscured by the tow, but need not carry any white light.

 Subsection (h) applies to scows 'not otherwise provided for'. Alongside tows without obstructing structures or cargo on them are not provided for in section (e) or anywhere else. The mud scow involved in this case had nothing on it except its low-lying cargo of mud, hence, subsection (e) did not apply to it and subsection (h) did. *fn2"

 However, I am of the opinion that the violation of the Coast Guard regulation in respect of the height at which the lantern was carried does not constitute negligence per se, nor is it evidence of negligence. 'A statute or ordinance may be construed as intended to give protection against a particular form of harm to a particular interest. If so, the actor cannot be liable to another for a violation of the enactment unless the harm which the violation causes is that from which it was the purpose of the enactment to protect the other.' Restatement, Negligence, Section 286h, page 756. '* * * if none of the consequences which the statute or ordinance was intended to guard against has ensued from its violation, such violation does not amount to negligence, even though some other injurious consequence has resulted; but in such case the liability, if any, must rest solely on common-law negligence.' 65 C.J.S., Negligence, § 19, p. 423.

 It seems to me to be beyond all question that the Coast Guard regulation had to do solely with navigation and was intended for the prevention of collisions, and for no other purpose. In the present case there was no collision and no fault of navigation. True, the origin of the fire can be traced to the violation of the regulation, but the question is not causation but whether the violation of the regulation, of itself, imposes liability. There seems to be no disagreement among authorities that it does not.

 The same considerations apply to unseaworthiness. Whether the violation of the regulation be called negligence or be said to make the flotilla unseaworthy is merely a question of words. In either case the liability stems exclusively from the violation of a regulation designed for a specific limited purpose and in either case the injury was of a kind not contemplated or intended to be guarded against by the regulation.

 This brings us to the question whether, apart from any question of failure to observe a regulation, there was common-law negligence or unseaworthiness under the general maritime law. The lanterns carried were open flame kerosene lights of a proper and suitable type. It is true that the Schuylkill River has on its banks several refineries and facilities for oil storage and for loading and unloading petroleum products, but there is no evidence that the river at this point is, or ever has been, considered a danger area, so that it would be negligent for a ship to carry open flame lanterns at a height of three feet above the water, and I find that there was no negligence in doing so. It should be noted that not only are open lights carried, but internal combustion as well as steam engines are used, vessels and tugs have galleys, men smoke aboard the boats and, in addition, many small boats with open lights ply up and down the river. Beside this, the Penrose Avenue bridge with a constant stream of automobiles and pedestrians passing over it spans the river at a point very near that of the accident.

 Although I have not predicated liability upon it, it does appear as a fact that there was a violation of a regulation pertaining to lights, and I think that, inasmuch as the case may be appealed, the claimants are entitled to a finding as to the knowledge and privity on the part of the petitioner. Upon this issue, like the other issues, the burden is upon the petitioner to disprove, rather than upon the claimants to prove. The petitioner called one of its captains who was in charge of the tug part of the time and who testified that there was a supply of eight-foot steel rods with lantern arms on board. He, like Captain Taylor, never used them when towing a single barge alongside. In view of the length of time during which the tug had been operating, and the number of trips up and down the river it must have made, it is not improbable that the petitioner was aware of the fact that the poles were not used. The petitioner was not an absentee owner but was in the towing business conducting it actively and daily on the Schuylkill River and in the port of Philadelphia. However, still bearing in mind the petitioner's burden, the significant thing is that no officer or employee of the petitioner appeared who denied such knowledge or the opportunity to obtain it. I, therefore, find that the petitioner had knowledge of the statutory violation and was privy to it.

 The questions of Captain Taylor's competency and whether or not his conduct during the emergency constituted negligence contributing to the injury remain to be considered.

 In critically appraising Captain Taylor's conduct, one should remember that one is attempting to judge a man instantaneously and without warning plunged into a situation of danger of a kind almost unique in peacetime navigation. This was not the case of a fire breaking out on board -- even a swiftly spreading fire. Proceeding along a quiet river, the crew of this tug suddenly, probably in less than a second, found themselves practically in the heart of a furnace. The entire episode, from the first burst of fire until the flames died down to patches on ...

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