itself this is not proof that there was no negligence which caused the accident, but the burden is on claimants to prove the opposite, which has not been done.
We conclude from the evidence presented at trial, which came for the most part from petitioner, that petitioner should be exonerated under the Fire Statute.
This determination leads us to the issue of general average expenses. After the fire, an agreement was entered into by the various parties in this action that the expenses of towage from Chester to Wilmington, discharge of the cargo and storage for a reasonable time would be allowed in general average as general average expenses. It was added that this did not prejudice the right of cargo interests to contest the vessel owner's right to obtain general average contribution.
The vessel owner's right to general average contribution is governed by the "Jason Clause" in the bill of lading. It requires contribution by cargo interests when "the Carrier is not responsible by statute or contract or otherwise" for an "accident, danger, damage or disaster". In the present case, after contest by the cargo interests, the shipowner has been exonerated under the Fire Statute and the cargo interests must be held liable for general average contribution.
Claimants, however, also assert that the shipowner was responsible for aggravation of the damage to the coffee while the ship was berthed at Sun Shipyard in Chester, Pa. They argued that the surveyor for the ship's owner did not make sufficient effort to get the ship to a berth where it could be quickly unloaded. The testimony of shipowner's surveyor, Mr. Worman, however, indicated that constant effort was made throughout March to obtain a suitable docking area. This was not adequately challenged by Mr. Wiley, claimant's surveyor, who indicated he was unaware of much that occurred during March.
Claimants also urge a finding that the damage to the coffee from smoke was aggravated by the failure of the shipowner to properly care for the cargo while the ship was at Sun Shipyard. Mr. Wiley testified that the cargo areas were improperly ventilated and that the condition of the coffee worsened during the month it sat in the holds.
Mr. Worman, who was concerned with the entire process of salvaging the cargo, testified that everything possible was done to maintain and improve the condition of the coffee while it was awaiting unloading. He gave several good, uncontroverted reasons why the coffee could not be unloaded prior to arriving at Wilmington, such as the lack of covered storage space. He testified that the holds were ventilated by leaving them open to the air as much as possible. It was his conclusion that the condition of the smoke damaged coffee had improved by the time of discharge on April 4 in Wilmington. Mr. Wiley, who had not examined the coffee prior to April 7, could not make any comparison with its condition on March 3 when the ship arrived at Sun Shipyard. We find that there was no aggravation to the cargo damage for which petitioner is liable.
The present action for exoneration and limitation was instituted after other actions were filed by claimants against petitioner for damages arising out of the same events. Those actions were enjoined in accordance with 46 U.S.C. § 185 after this proceeding began. The purpose of § 185 is to permit all actions to be consolidated in one action which will dispose of all claims. See The Quarrington Court, 102 F.2d 916 (2 Cir.), cert. den. Court Line v. Isthmian, 307 U.S. 645, 59 S. Ct. 1043, 83 L. Ed. 1525 (1939). In this case the decision that the petitioner is exonerated under the Fire Statute disposes of the claims in the other suits.
Charterers, Panawaco, Inc., claim that a decision in favor of petitioner is dispositive of any claims by cargo interests against it. Claimants assert that the charterer is not properly before the Court and claims against it cannot be decided. Charterer has not established that it comes within the provisions of 46 U.S.C. § 186,
permitting it to receive the same treatment as the shipowner in an exoneration and limitation proceeding. See G. Gilmore & C. Black, The Law of Admiralty 673 (1957). Charterer had not filed any answer in this Court prior to the conclusion of trial and we are not satisfied that charterer is properly before us.
CONCLUSIONS OF LAW
1. This Court has jurisdiction of the parties and the subject matter of the action.
2. The owners of the CALDAS are free of any design, neglect or privity in connection with the fire on board that vessel on February 27, 1967 and the CALDAS was seaworthy at all material times.
3. The fire on the CALDAS occurred without the design, neglect or privity of her owners, directors or managing agents.
4. The officers and crew of the CALDAS were regularly drilled and well trained and the fire started without the negligence of any of them.
5. Cargo claimants have failed to prove that the fire was started by any cause for which owners, directors or managing agents of the CALDAS could be chargeable.
6. The Anderson Clayton interests and Leon Israel interests are liable for their total General Average contributions, with interest, arising from the fire, port of refuge and forced discharge expenses.
7. There was no aggravation of the damage to cargo as a result of the cargo remaining in the vessel from March 2 until April 5.
8. The cargo was discharged from the vessel with reasonable speed in all the circumstances.
9. Petitioner is entitled to exoneration from all liability, with costs.
10. All cargo claims subject of Civil Action No. 42243 should be dismissed with costs as they relate to petitioner. The claim of Luis Sanchez should be dismissed.
11. Leon Israel and Anderson Clayton should be held liable for all general average expenses identified in the General Average Statement (P-48), the amount of such liability shall be determined at a hearing on damages, if the parties are unable to agree thereon within ninety (90) days from the date of the entry of judgment herein, with costs and interest from the date of fire.