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Responsibility for Fire in the Carriage of Goods by Sea

(published in [2002] ETL 1-35)

William Tetley, Q.C.*

I. Introduction

1) Two methods of limiting or avoiding liability

2) "Fire exceptions" and "fire statutes"

3) The fire exception

4) The fire statutes

5) Definition of "fire"

II. Fire and the Order of Proof

1) Cause of the loss

2) Due diligence to make the ship seaworthy

III. Actual Fault of Privity of the Carrier — Art. 4(2)(b)

1) Burden of proving actual fault or privity

a) Where there is no fire statute — e.g. Canada

b) COGSA and the U.S. Fire Statute — burden of proof

c) U.K. Fire Statute — burden of proof — Hague/Visby Rules

d) Burden of proof — fault and privity — fire cases — France

e) Burden of proof — fault and privity — conclusion

2) Fault "of the carrier"

3) When the carrier is a corporation

4) More modern decisions

5) Omission or failure to know

6) Fault of an agent

7) Fault connected with the fire

IV. Care of Cargo After the Fire Has Started

V. "Due Diligence", "Fault or Privity" and "Care"

VI. The Order of Proof in a Fire Claim — (Other than U.S. and U.K.)

VII. Fire and Deviation

VIII. The Fire Statutes

1) Shipowners and charterers

a) The U.S. Fire Statute

b) The U.K. Fire Statute

2) Application of the fire statute and the fire exception

a) Under U.S. law

b) Under U.K. law

3) Differences between the U.K. Fire Statute and the fire exception of the Hague/Visby Rules

4) Conflict in the U.S. courts

5) Differences between the U.S. Fire Statute and the fire exception of COGSA

6) The order of proof in a U.S. fire cargo claim

7) The need for the fire statute?

IX. Fire under French Law

1) The former domestic law

2) The domestic Law of June 18, 1966

X. Hamburg Rules


RESPONSIBILITY FOR FIRE IN THE CARRIAGE OF GOODS BY SEA

William Tetley, Q.C.

I. Introduction


1) Two methods of limiting or avoiding liability

There are two methods by which carriers may seek to limit or avoid liability for marine cargo claims. The first way is by invoking the package or package-and-kilo limitations and the "exceptions" to liability provided to carriers and ships by the Hague, Hague/Visby and national carriage of goods by sea acts modelled on one or other of those international carriage by sea conventions.

The second method of limitation and exemption is traditionally called the "limitation of shipowners' liability", although, in most countries, the right to limit under this system has been extended to other parties, notably charterers. This limitation and exemption system exists by virtue of national laws, which usually prescribe rules and monetary limits based on one or other of the international limitation conventions[1] to which the State concerned is party. The limits are ordinarily calculated according to the tonnage of the vessel in question, as they are, for example, in the United Kingdom, France and Canada. The United States, however, is not party to any of the international limitation conventions. Its shipowners' limitation statute, enacted in 1851,[2] is based, not on tonnage, but rather on the value of the vessel and pending freight after the occurrence of the loss or damage.

2) "Fire exceptions" and "fire statutes"

Under Hague, Hague/Visby and Hamburg, the carrier and the ship may be totally exonerated from any liability whatever for cargo loss or damage caused by fire, under certain conditions specified in those Rules. Fire is therefore referred to as one of the "excepted perils" or "exceptions" under those Rules and the national statutes based on them. In addition, some shipowners' limitation statutes, notably those of the United Kingdom and the United States, contain provisions (confusingly called "fire statutes") which, where they apply, also exonerate their beneficiaries totally from liability for cargo loss or damage resulting from fire, just as the "fire exceptions" do under the Rules.[3] In consequence, where the cargo loss or damage is caused by fire, depending on the circumstances of the case, carriers, under U.K. or U.S. law, may be able to avail themselves of either the "fire exception" or the "fire statute".

Unfortunately, however, the "fire statutes" of the U.K. and the U.S., which predate the Hague and Hague/Visby Rules, are worded differently from the "fire exceptions" under those Rules. They also have a different scope of application. Unlike Canada and some other countries, neither the U.S. nor the U.K. repealed or amended its "fire statute" when adopting legislation giving effect to Hague and Hague/Visby. Indeed, the texts of those carriage by sea statutes, reflecting the provisions of the Rules which they implement, expressly provide that the Rules do not affect statutes in force relating to the limitation of shipowners' liability. The "fire statutes", being provisions of such statutes, are therefore preserved. This co-existence of the "fire statute" with the "fire exception" results in complications and confusion in the cargo liability law of the U.K. and the U.S. Moreover, the "fire statutes" of those two jurisdictions are no longer identical in wording and scope.

Thus in summary, one may say that there are two methods of limiting or avoiding liability — package/kilo and shipowners' limitation. This second method of limitation, in the U.K. and the U.S., features a particular liability exemption, the "fire statute", which puts them out of joint with the rest of the world. This is unfortunate.

This article will study the defence of fire in marine cargo claims, under the "fire exceptions" of the Hague, Hague/Visby and Hamburg Rules and the national laws of the United Kingdom, the United States, Canada and France, as well as under the "fire statutes" of the U.K. and the U.S. It will be seen that there really is no further need for the "fire statutes" and that they could and should be repealed, in favour of the "fire exceptions".

3) The fire exception

Under the Hague and Hague/Visby Rules, carriers by water are not responsible for damage to cargo caused by fire. This is a special right, which is not given to land carriers or bailees, who usually have little defence for damage by fire.

The Hague and Hague/Visby Rules fire exception at art. 4(2) reads:

"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;"

The fire exception of the Hague and Hague/Visby Rules (and the national carriage of goods by sea acts based on them) benefits the carrier[4] and the ship.[5] "Carrier" includes the shipowner and charterer.[6] As an "exception", the fire defence, where applicable, completely exempts the carrier and ship from any liability for the fire-related loss or damage to the cargo, as opposed to merely limiting that liability to the quantum of the package or package/kilo limitation.

4) The fire statutes

Both the United States and the United Kingdom have "fire statutes" incorporated in their respective shipowners' limitation statutes, as well as the fire exceptions to be found in their respective carriage of goods by sea acts. Although, like the "fire exceptions", the "fire statutes" exonerate their beneficiaries totally from any fire-related cargo liability, responsibility of carriers under the "fire statutes" and the "fire exceptions" is different, and at times this difference causes considerable confusion.

The U.S. Fire Statute provides:[7]

"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."

Because the U.S. has adopted neither the Limitation of Liability of Owners of Sea-going Ships Convention of 1957[8] nor the 1976 Convention on the Limitation of Liability for Maritime Claims,[9] the U.S. Fire Statute does not benefit charterers, except demise charterers.[10]

The U.K. Fire Statute provides:[11]

"Exclusion of liability — (1) Subject to subsection (3) below, the owner of a United Kingdom ship shall not be liable for any loss or damage in the following cases, namely —

a) where any property on board the ship is lost or damaged by reason of fire on board the ship;"

The U.K. Fire Statute,[12] where applicable, benefits time and voyage charterers of United Kingdom ships,[13] as well as owners and part owners, demise charterers, ship managers and operators.[14]

The application, scope and full effect of the fire statutes will be dealt with further on in this article.

5) Definition of "fire"

"Fire" means a flame and not merely heat. "Mere heating, which has not arrived at the stage of incandescence or ignition," explained Wright J. in Tempus Shipping Co. v. Louis Dreyfus Co., "is not within the specific word 'fire'."[15] In the case of spontaneous combustion, however, where damage is done to cargo by heat for a period of time before fire breaks out causing further damage, both heads of damage are protected under the exception.[16] Damage due to smoke and water used to put out a fire on board a ship is also "damage by reason of fire".[17] Fire need not directly ignite the cargo. For example, where a fire damaged the ship's refrigeration control panels, causing a banana cargo to spoil, the fire was held to be the cause of the loss and within the fire exception of COGSA and the U.S. Fire Statute.[18] Damage caused by the failure to segregate undamaged cargo from fire-damaged cargo, however, is damage arising from failure to properly care for cargo under art. 3(2).[19]

II. Fire and the Order of Proof


1) Cause of the loss

In all jurisdictions lacking a U.K/U.S.-type fire statute, the carrier, in order to exculpate itself under art. 4(2)(b), must first prove the cause of the loss (i.e., how the fire started and that the fire caused the loss or damage).[20]

In the United States, where the Fire Statute has predominance over the fire exception of art. 4(2)(b),[21] the jurisprudence places the burden of proving the cause of the fire on the cargo claimant.[22] This is because the cargo claimant, under the Fire Statute, must prove that the fire was "caused by the design or neglect" of the owner. Nevertheless, no matter who has the burden of proving how a fire commenced, proof must be made by the best possible evidence available.[23]

Proving the exact cause of a fire by direct evidence is sometimes impossible. American courts have consequently held:[24]

"By the very nature of fire, its cause must often be proved through a combination of common sense, circumstantial evidence and expert testimony."

Where such indirect evidence adduced by cargo is sufficiently convincing, the courts do not hesitate to draw reasonable inferences as to the proximate cause of the fire.[25] The "proximate cause" does not exclude other possible contributory causes.[26] The indirect evidence from which the proximate cause is inferred must, however, be more than mere speculation.[27]

In the United Kingdom, the Fire Statute also takes precedence over the fire exception.[28] Under the fire exception, the cargo claimant has been held to have the burden of proving the cause of the fire,[29] as well as the carrier's actual fault and privity. Of course, the best evidence must be used to make the proof, regardless of which party, strictly speaking, bears the onus.

2) Due diligence to make the ship seaworthy

After proving the cause of the loss and of the fire, the carrier, in those jurisdictions that do not have a fire statute of the U.S. type, must show that it exercised due diligence before and at the beginning of the voyage to make the vessel seaworthy in respect of the loss. The leading case is still Maxine Footwear Co. v. Can. Government Merchant Marine Ltd.,[30] a fire case decided under the Canadian version of the Hague Rules, where the Privy Council held that:

"Article III, rule 1, [the due diligence to make the ship seaworthy provision] is an overriding obligation.[31] If it is not fulfilled and the non-fulfilment causes the damage, the immunities of article IV [e.g. fire] cannot be relied on. This is the natural construction apart from the opening words of Art. III, Rule 2. The fact that that Rule is made subject to the provision of Art. IV and Rule 1 is not so conditioned makes the point clear beyond argument."

The seaworthiness must be "in respect to the loss".[32] In S. S. Patricio Murphy[33] a Belgian Court of Appeal held that the carrier was merely obliged to prove due diligence to make the vessel seaworthy in respect of the loss; although the ship was unseaworthy, this had no bearing on the fire in question and therefore the carrier was exculpated. Similarly, in the Silvercypress,[34] the Second Circuit held that the vessel was unseaworthy when she sailed, but this was not shown to be causally connected with the fire and thus the carrier was not held responsible.

In the United States, however, because of the predominance of the Fire Statute, the jurisprudence in most circuits does not oblige the owner to prove due diligence as a prerequisite.[35] Early jurisprudence did so require[36] but it would seem to be right in equity and wrong in law, although it is still followed in the Ninth Circuit.[37] Under U.S. law, the time or voyage charterer/carrier should prove due diligence, however, being unprotected by the Fire Statute.

In the United Kingdom, the predominance of the Fire Statute results in the shipowner, charterer, manager or operator of a United Kingdom ship being relieved of liability for fire on board, even where that fire results from unseaworthiness, provided that the fire was not caused by that party's conduct barring limitation (i.e. a personal act or omission of the party concerned committed with intent to cause the damage or recklessly with knowledge that the damage would probably result).[38] It also appears that where the fire is caused by the failure of any such party (acting as a carrier) to exercise due diligence to make the ship seaworthy before and at the commencement of the voyage, the protection of the Fire Statute is not lost.[39]

III. Actual Fault or Privity of the Carrier — Art. 4(2)(b)


1) Burden of proving actual fault or privity


a) Where there is no fire statute — e.g. Canada

First the carrier must prove how the fire commenced, that fire (or water to extinguish the fire) caused the loss or damage to cargo, and that due diligence had been exercised in respect of the loss. Thereafter the cargo claimant is obliged to prove the actual fault or privity of the carrier.[40]

From a reading of art. 4(2)(b) as compared with arts. 4(2)(a) and 4(2)(c) to 4(2)(p), it is clear that the burden of proving fault and privity of the carrier is on the claimant. This is reinforced when one compares art. 4(2)(b) with art. 4(2)(q), which latter provision specifically places the burden of proof in respect of fault and privity on the carrier.[41]

b) COGSA and U.S. Fire Statute — burden of proof

As in the case of the U.S. Fire Statute,[42] American courts in COGSA fire cases place the burden on the claimant to prove the fault and privity of the carrier.[43] This burden includes showing how the fire started.

c) U.K. Fire Statute — burden of proof — Hague/Visby Rules

Since 1979, the U.K. Fire Statute,[44] no longer contains a fault and privity provision. Before 1979, however, there was such a provision and the carrier was obliged to prove that there was no actual fault or privity on his part.[45] Since 1979, the fault or privity provision in the U.K. Fire Statute has been replaced. The new provision, now sect. 186(3) of the Merchant Shipping Act 1995,[46] refers to art. 4 of the Limitation Convention 1976. It precludes a person from excluding his liability for loss or damage proved to have been caused by his personal act or omission committed with intent to cause the loss or damage, or recklessly and with knowledge that the loss or damage would probably result. The burden of proof of such an act or omission, under art. 4 of the Convention, lies with the party challenging the right to limitation.[47] In consequence, the burden of proof under sect. 186(3) lies on the cargo claimant, as the party who challenges the right of the carrier to exoneration from fire-related liability.

The burden of proof of "actual fault or privity" in art. 4(2)(b) of the Hague/Visby Rules also rests with the claimant in the United Kingdom. In The Apostolis,[48] where the plaintiff alleged that sparks emitted by welding work carried out on hatch covers on deck had fallen into one of the vessel's holds during loading, causing fire damage to its cargo of cotton, Tuckey J. held:[49]

"Article IV, r. 2 says no liability for fire 'unless' caused by actual fault or privity.

"Mr. Glennie [attorney for cargo] submitted that the onus was upon the owners to bring themselves within the 'unless' exception. This accorded with the position under the Merchant Shipping Acts and made good sense since the relevant facts would only be known to the carrier. He was, however, unable to cite any authority in support of this submission and I am unable to accept it. The fault and privity provision is an exception to an express exemption and therefore, following general principles of construction, it is for the party alleging that the exception applies to establish it."

Although Tuckey, J.'s decision was overturned on appeal on other grounds, the Court of Appeal, without discussing the point, appeared to agree that the claimant had the onus of proving the carrier's actual fault or privity under art. 4(2)(b).[50]

d) Burden of Proof — fault and privity — fire cases — France

Countries such as France, which did not have fire statutes before the adoption of art. 4(2)(b) of the Hague Rules, tend to follow the U.S. example in their allocation of the burden of proof. One of the reasons is that the addition of the qualifying words "unless caused by the actual fault or privity of the carrier" after "fire" was introduced in the 1924 Brussels Convention as the result of U.S. representations and it is thought (although the words do not exactly mirror each other) to be a replica of the similar provision in the U.S. Fire Statute.[51] Some French authors[52] have argued that art. 4(2)(b) of the Rules should therefore be read in the light of U.S. precedents on the subject. French courts, like their American counterparts, do indeed place the onus of proving the actual fault or privity of the carrier upon the claimant.[53]

e) Burden of proof — fault and privity — conclusion

In any event, no matter who has the burden of proof, this is another case where both the claimant and the carrier should submit as much proof as possible with the evidence available to them.[54] In other words, the claimant, on one hand, should try to prove actual fault or privity and the carrier, on the other, should try to disprove it.

2) Fault "of the carrier"

The actual fault or privity of the carrier must be the fault of the carrier itself and not of an employee or agent. This 'is a conclusion one must draw not only from the use of the word "actual" but also after comparing art. 4(2)(b) with art. 4(2)(q) where the phrase "actual fault and privity of the carrier" is specifically followed by the words "or without the fault or neglect of the agents or servants of the carrier."

Of course, the carrier is not liable where the fault which caused the fire is that of the shipper, and is unknown to the carrier and beyond his control.[55]

3) When the carrier is a corporation

"Actual fault or privity" normally means fault or privity of a senior employee or officer of a corporation. In other words the "carrier" within the meaning of art. 4(2)(b) of the Rules "must be the person or persons with whom the chief management of the company resides."[56]

As Viscount Haldane L.C. explained:[57]

"... the fault or privity is the fault or privity of somebody who is not merely a servant or agent for whom the company is liable upon the footing respondeat superior, but somebody for whom the company is liable because his action is the very action of the company itself."

4) More modern decisions

Although "actual fault or privity" normally meant fault or privity of a senior employee or officer of the company, who is deemed to act as "the very ego and centre of the personality of the corporation",[58] a more modern trend has found that the fault of lesser servants did not protect the carrier.[59] Today, it is not uncommon for the corporate shipowner and/or the corporate ship manager to be found in "actual fault or privity" with respect to the fault of one of the company's lower-level employees, where the company's senior managers responsible for operations have failed to exercise adequate supervision over such servants.[60]

5) Omission or failure to know

In The Pocone,[61] the Second Circuit held the vessel owner responsible for the negligence of its port representative. The Court added that: "The measure in such cases is not what the owner knows but what he is charged with finding out."

6) Fault of an agent

A carrier in a fire case is not responsible for the fault of his agent,[62] except before and at the beginning of the voyage, at which time he has the obligation to exercise due diligence to make the ship seaworthy (art. 3(1)). In consequence, the carrier is responsible for the thawing of frozen pipes by an acetylene torch, which causes the vessel to be on fire at the beginning of the voyage.[63] If the employee or agent made the same error during the voyage, however, the carrier could then be exculpated under art. 4(2)(b), provided there was no actual fault or privity on its part.[64]

7) Fault connected with the fire

The fault of the carrier must be directly connected with the fire; an unconnected fault is insufficient.[65]

IV. Care of Cargo After the Fire Has Started

Finally, it should be noted that, once a fire has been discovered, the carrier may still be held responsible if it is negligent in extinguishing the fire, because such negligence is, in effect, negligence in the care[66] and custody of the cargo.

In Asbestos Corp. v. Cyprien Fabien (The Marquette),[67] a fire started in the engine room during the voyage and it was not claimed that this ignition of the fire was caused by any negligence on the part of the carrier. Nevertheless, the fire spread to cargo holds a few hours later because the ship was unseaworthy, not having proper fire-fighting equipment. For the same reason, once the fire had started, it could not be extinguished, because all the fire-fighting equipment was either located in or controlled from the engine room. The Second Circuit held the carrier responsible.

As in all cases where the carrier has failed to properly care for cargo under art. 3(2), the burden of proving lack of proper care (i.e. failure to put out the fire once it started) is on the claimant.[68]

V. "Due Diligence", "Fault or Privity" and "Care"

After a reading of decisions on fire under the Hague and Hague/Visby Rules and the fire statutes, one soon realizes that "due diligence" and "fault or privity" and "care" and their proof are interconnected. Some courts put the emphasis on proof being made of "due diligence" to make the vessel seaworthy in respect of the fire; other courts emphasize the "fault or privity" of the carrier, and still other courts insist that the carrier prove "care" of cargo. The same set of facts usually lends itself to all three approaches and usually results in the same conclusion.

Liberty Shipping Lim. Procs.[69] is a decision which applied all three approaches. Thus the Court said in respect to "due diligence":[70]

"The Don Jose Figueras was unseaworthy and improperly manned, and Liberty [the vessel owner] did not exercise due diligence to make the vessel seaworthy or to man it properly."

and later on in respect to "fault or privity":[71]

"The failure of Liberty to use due diligence to provide a trained, competent and informed crew constitutes privity and neglect of the owner."

Finally in respect to "care" of cargo after the fire, the Court stated:[72]

"Every carrier has a duty to take all reasonable precautions for the protection of cargo against all kinds of damage, including fire

....Where there is personal neglect or negligence of the carrier in failing to control and extinguish a fire, the carrier is liable for all damage attributable to such personal negligence."

"Reasonable care" by the carrier in preventing a shipboard fire depends, of course, on the circumstances of each case.Regulatory requirements respecting such matters as cargo stowage are one important element to consider in determining whether the carrier has met this reasonable standard.[73] Reasonable care can also be proven by showing that the practices followed by the carrier were customary in the industry or in conformity with custom, coupled with a long safety record.[74]

American decisions on cargo fire claims have repeatedly stressed that only the carrier's lack of due diligence to prevent or correct an "inexcusable" (as opposed to an "excusable") condition of unseaworthiness which causes the fire or prevents its extinguishment will render the carrier liable for the resulting loss or damage.[75] This distinction does not change the law on due diligence in respect of seaworthiness in fire cases, however, because "inexcusable" unseaworthiness has been defined as an unseaworthy condition which "existed because of the carrier's lack of due diligence".[76]

VI. The Order of Proof In a Fire Claim — (Other than U.S. and U.K.)

In jurisdictions without fire statutes resembling those of the U.S. and the U.K., proof should be presented in accordance with the basic principles of proof of the Hague and Hague/Visby Rules:[77]

1) The claimant proves his loss, e.g. that he owned the cargo, that the value lost was so much, etc. (See Chaps. 8 to 13).

2) The carrier then proves the cause of the loss, e.g. how the fire started and that the fire actually caused the loss or damage to cargo. (See Chap. 14).

3) Thereafter, the carrier proves due diligence to make the vessel seaworthy in respect of the loss, e.g. that the ship was not on fire before or at the beginning of the voyage, the crew were trained to fight fires, the ship was equipped with firefighting equipment. (See Chap. 15.)

4) The claimant then proves a) the fault of the carrier or b) the carrier's privity or knowledge, or his condoning of the fault of some other person for whom he is responsible, which fault caused the fire.

5) The carrier tries to overcome the claimant's evidence as to fault or privity.

6) The claimant may then try to prove the carrier's lack of care of the cargo, e.g. that the crew did not try to put out the fire, or only tried to save the ship, or only attempted to avoid expense for the owners, or was negligent in its efforts to put out the fire.

VII. Fire and Deviation

A deviation will displace the carrier's rights under the fire exception only if there is a causal connection. In Drew Brown v. The Orient Trader,[78] a vessel deviated from Hamilton, Ontario to Toronto. During discharge a fire broke out. The Supreme Court of Canada held that there was an unreasonable deviation in sending cargo from Toronto to Hamilton by road but added, after making a detailed review of American law, that:

"The weight of the authorities, both Courts and text writers, would seem to be that the Fire Statute exemption is lost in the case of an unreasonable deviation only where the ensuing fire resulting in the loss of cargo is causally connected with that deviation."

There was no causal connection in The Orient Trader and so the carrier benefitted from the Fire Statute.

In The Ocean Liberty,[79] it was held that the exemption from liability provided by the U.S. Fire Statute was lost in the case of an unreasonable deviation only where the ensuing fire resulting in the loss of cargo was causally connected with that deviation.

VIII. The Fire Statutes


1) Shipowners and charterers

The United States and the United Kingdom not only have the fire exception in their versions of the Hague Rules and Hague/Visby Rules respectively but have ancient fire statutes as well. Canada, France and most other nations do not have fire statutes.[80]

a) The U.S. Fire Statute

The United States Fire Statute adopted in 1851, reads as follows:[81]

"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."

It is noteworthy that fire "caused by the design or neglect" of the U.S. Fire Statute has been deemed to have the same meaning as "actual fault and privity" of COGSA.[82]

b) The U.K. Fire Statute

The United Kingdom Fire Statute, now found at sect. 186(1)(a) of the Merchant Shipping Act 1995, reads[83]

"Exclusion of liability — (1) Subject to subsection (3) below, the owner of a United Kingdom ship shall not be liable for any loss or damage in the following cases, namely —

(a) where any property on board the ship is lost or damaged by reason of fire on board the ship;"

The United Kingdom Fire Statute, at sect. 186(5), not only benefits shipowners, but also "any part owner and any charterer, manager or operator of the ship" because the United Kingdom ratified the 1957[84] and then the 1976 Limitation of Liability Convention[85] and put them into national law.[86] The provision extends to Her Majesty's ships (see sects. 186(4) and 192(1)).

There is no longer a "fault or privity" provision in the U.K. fire statute. Rather sect. 186(3) states that a person's liability for fire damage will not be excluded "for any loss or damage resulting from any such personal act or omission of his as is mentioned in Article 4 of the Convention set out in Part I of Schedule 7." That Convention is the Limitation Convention 1976.[87] Art. 4 of that Convention precludes a person from limiting his liability "if it proved that the loss resulted from his personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result". This shipowners' limitation rule is an "almost unbreakable limit"[88] consistent with of the Hague/Visby Rules arts. 4(5)(e) and 4 bis (4) and of the Hamburg Rules, arts. 8(1) and 8(2).The burden of proof of such a "personal act or omission" barring limitation has been shifted to the cargo claimant.[89]

2) Application of the Fire Statute and the fire exception


a) Under U.S. law

The U.S. Fire Statute applies even when COGSA is applicable, in virtue of sect. 8 of COGSA which refers specifically to Revised Statutes sect. 4282, i.e. the Fire Statute. Sect. 8 reads:[90]

"LIMITATION OF LIABILITY

The provisions of this Act shall not affect the rights and obligations of the carrier under the provisions of the Shipping Act, 1916, or under the provisions of sections 4281 to 4289, inclusive, of the Revised Statutes of the United States, or of any amendments thereto; or under the provisions of any other enactment for the time being in force relating to the limitation of the liability of the owners of seagoing vessels."

b) Under U.K. law

Art. 8 of the U.K. version of the Hague/Visby Rules (being art. 8 of the Hague and Hague/Visby Rules) reads:[91]

"The provisions of these Rules shall not affect the rights and obligations of the carrier under any statute for the time being in force relating to limitation of the liability of owners of seagoing vessels."

Reference to the fire statute is not as specific under the U.K. version of the Hague/Visby Rules as under COGSA and seems only to refer to the right of shipowners and others to limit liability in general.

This is rectified, however, by sect. 6(4) of the U.K. Carriage of Goods by Sea Act 1971, as amended, which reads:[92]

"(4) It is hereby declared that for the purposes of Article VIII of the Rules section 186 of the Merchant Shipping Act 1995 (which entirely exempts shipowners and others in certain circumstances for loss of, or damage to, goods) is a provision relating to limitation of liability."

One may therefore conclude that in the U.K., as in the U.S., the Fire Statute applies even when the Hague/Visby Rules govern the contract of carriage.[93]

3) Differences between the U.K. Fire Statute and the fire exception of the Hague/Visby Rules

There are significant differences between the U.K. Fire Statute and the fire exception of art. 4(2)(b) of the Hague/Visby Rules, which apply in the U.K. by virtue of the Carriage of Goods by Sea Act 1971:[94]

a) The U.K. Fire Statute applies only to ships registered in the United Kingdom,[95] whereas the fire exception applies to all vessels regardless of their nationality.[96]

b) The Fire Statute applies to the limitation of liability of owners, part owners, charterers (demise, time and voyage), managers and operators,[97] while the fire exception applies to the "carrier", including the shipowner and charterer, as well as to the ship itself.[98]

c) The Fire Statute applies only to loss or damage caused by fire "on board"[99] to property "on board", whereas the fire exception, being part of the Rules, applies from tackle to tackle.[100]

d) The limitation under the Fire Statute is lost by proof that the owner, charterer, operator or manager committed a personal act or omission with intent to cause the loss or damage or recklessly with knowledge that the loss or damage would probably result.[101] The benefit of the fire exception is lost where the actual fault or privity of the carrier causes the fire.The burden of proof in both cases has been held to fall on the claimant.[102]

e) Under the Fire Statute, absent proof of any such a disqualifying "personal act or omission", the owner, charterer, manager or operator may invoke the exclusion of liability even where their failure to exercise due diligence caused the fire.[103] By comparison, under the Hague/Visby Rules, a fire caused by the carrier's failure to exercise due diligence to make the vessel seaworthy before and at the commencement of the voyage, constituting as it does the violation of the "overriding obligation"[104] of art. 3(1), results in the carrier's loss of the protection afforded by the fire exception of art. 4(2)(b).

4) The conflict in the U.S. courts

The anomalies arising from the existence side by side of both the Fire Statute and COGSA in the law of a single nation have resulted in controversy in United States courts.The controversy has raged, in particular, between the Ninth Circuit, on the one hand, and the Second, Fifth and Eleventh Circuits, on the other.

In Sunkist Growers v. Adelaide Shipping Lines,[105] the Ninth Circuit found that, where the fire was caused by a condition of unseaworthiness, there was an overriding obligation on the part of the carrier to prove due diligence to make the ship seaworthy before it could invoke the fire exception or the Fire Statute.[106] In trying to solve the conflict between the 1851 Fire Statute and COGSA, the Ninth Circuit realistically but improperly relied on Canadian jurisprudence applying Canadian law, which does not contain a fire statute.

The Ninth Circuit reiterated its position that lack of due diligence to make the vessel seaworthy, resulting in fire damage or loss, precludes application of the COGSA fire exception or the Fire Statute, in Hasbro Industries, Inc. v. M.S. St. Constantine,[107] again in Complaint of Damodar Bulk Carriers, Ltd.[108] and, more recently, in Nissan Fire & Marine Ins. Co. Ltd. v. M/V Hyundai Explorer.[109] The Nissan Marine Court also held that, in cases of fire caused by unseaworthiness, due diligence is a "delegable" duty.In consequence, for the purposes of the COGSA fire exception and the Fire Statute, and contrary to the principle applicable to the other COGSA exceptions, fire is defeated as a defence of the shipowner only where it results from some personal want of due diligence on the latter's part to make the ship seaworthy.[110] The fire defences under COGSA and the Fire Statute therefore protected the bareboat charterer in this case, despite proof that the fire had been caused by the failure of a crewmember to repair properly a compression coupling on a fuel oil line, because the owner proved its personal due diligence in respect of seaworthiness.[111] In effect, this approach means that only a want of due diligence on the part of someone occupying a managerial position within the corporate structure of the shipowner or bareboat charterer can deprive the owner of the benefit of sect. 4(2)(b) of COGSA and the U.S. Fire Statute.[112]

The decision in Nissan Fire & Marine Ins. Co. means that, in fire loss cases in the Ninth Circuit, the burden of proof is quite different, depending on whether the fire is the result of a condition of unseaworthiness or of some other cause. In the first case, the cargo claimant must first prove that an unseaworthy condition caused the fire.[113] After cargo makes that proof, the shipowner must then prove its "personal" due diligence, by showing that its managing officers and agents exercised due diligence to make the vessel seaworthy before and at the commencement of the voyage in respect of that fire loss and that the unseaworthiness which caused the loss was due to the negligence of others (e.g. the master or crew).[114] Where some cause other than unseaworthiness accounts for the fire, however, the traditional burden of proof applies.The shipowner is then merely required to prove that the fire caused the loss or damage. Cargo must then prove that the fire resulted from some "neglect or design" on the part of the owner.[115]

A different understanding of the burden of proof in fire loss claims applies in the Second, Fifth and Eleventh Circuits of the U.S. Court of Appeals.In Ta Chi Navigation (Panama) Corp. S.A.[116] and Westinghouse Electric Corp. v. M/V Leslie Lykes,[117] the Second and Fifth Circuits held that where both the Fire Statute and the COGSA fire exception applied, the carrier was not obliged to prove due diligence to make the vessel seaworthy.Rather, the carrier needed merely prove that fire caused the loss or damage, after which the cargo claimant had the onus of proving that the fire had been caused by the design or neglect, actual fault or privity of the carrier.[118] The cargo claimant typically makes such proof by showing that the negligence of the carrier caused the fire or prevented its extinguishment.[119] These two decisions illustrate the contradiction between the U.S. Fire Statute and the Hague Rules (COGSA) fire exception. Under the Fire Statute, lack of due diligence of the master and crew to make the vessel seaworthy in respect of the loss is not sufficient. The unseaworthiness must be the "personal neglect of the owner, or, in case of a corporate owner, the negligence of its managing officers or agents".[120] Westinghouse Electric Corp. v. M/V Leslie Lykes[121] relies in particular on the U.S. Supreme Court in Earle & Stoddart v. Ellerman's Wilson Line.[122]

Ta Chi Navigation (Panama) Corp. S.A. and Westinghouse Electric Corp. v. M/V Leslie Lykes would seem to be the correct, albeit unfortunate, resolution of the contradiction between the terms of the COGSA fire exception and the U.S. Fire Statute. They also illustrate that the U.S. Fire Statute of 1851 is no longer necessary, particularly because the 1851 Limitation Act[123] allows the shipowner and demise charterer to limit liability provided there is no fault and privity. A solution to the problem would be to insert a due diligence provision into the Fire Statute.[124]

The Eleventh Circuit has sided with the Second and Fifth Circuits in this controversy, holding, in Banana Services Inc. v. M/V Tasman Star:[125] "We find the reasoning of the Second and Fifth circuits to be persuasive, and hold that COGSA does not require carriers to demonstrate due diligence as a condition precedent to invoking the fire defense of §1304(2)(b) and the Fire Statute."

In EAC Timberlane v. Pisces, Ltd.,[126] the First Circuit, incidentally, equated the fire exception and the Fire Statute to the COGSA (q) exception. Under the (q) exception, however, the carrier must first prove due diligence to make the vessel seaworthy and the fault and privity is of the carrier and the servants and agents of the carrier.[127]

The present division in the United States on the burden of proof in fire cases as between the Ninth Circuit, on the one hand, and the Second, Fifth and Eleventh Circuits, on the other, can only be resolved by legislation or by a U.S. Supreme Court decision establishing a uniform interpretation of the onus of proof rules applicable to cargo loss by fire under COGSA and the U.S. Fire Statute.[128]

5) Differences between the U.S. Fire Statute and the fire exception of COGSA

There are a number of differences between the application of the U.S. Fire Statute and the application of the fire exception of COGSA which closely resemble those between the U.K. Fire Statute and the fire exception of Hague/Visby:

a) COGSA applies to all ships, not merely to American ships.

b) COGSA protects the ship and the carrier, which includes the shipowner and charterer, including a time and a voyage charterer, who enters into the contract of carriage. The U.S. Fire Statute protects only the ship, shipowner and demise charterer, but not other charterers and operators.[129] In other words, the obligation of the charterer and the shipowner could be different under a Fire Statute claim.[130]

c) The Fire Statute only applies while the goods are on board the vessel. COGSA applies from tackle to tackle.

d) Under a non-fire COGSA claim, the carrier must first prove the overriding obligation of having exercised due diligence to make the ship seaworthy before and at the beginning of the voyage. In other words, in non-fire claims, responsibility lies under COGSA if the carrier and his agents and servants, including the master and crew, were not duly diligent, before and at the commencement of the voyage, in making the ship seaworthy in respect of the loss.

e) In a U.S. cargo damage claim arising from fire caused by unseaworthiness, due diligence need not be proven[131] by the shipowner or demise charterer, except in the Ninth Circuit.[132] Once the carrier proves that fire resulting from an unseaworthy condition caused the loss or damage, responsibility will only lie under the Fire Statute if cargo can establish that the shipowner or demise charterer contributed to the unseaworthiness that caused the fire by their design or neglect (or, under COGSA, that the time or voyage charterer contributed to that causative unseaworthiness by their actual fault or privity). Only the personal lack of due diligence of the carrier (i.e. of its managing officers or agents, and not that of its servants such as the master and crew) may engage the liability of the carrier under the fire exemption and Fire Statute.

f) In a cargo damage claim arising from fire caused by unseaworthiness in the Ninth Circuit, on the other hand, the carrier must prove that it exercised due diligence personally (i.e. through its managing officers and agents) to prevent the unseaworthiness that caused the fire, before it may invoke the fire exemption of COGSA sect. 4(2)(b) or the Fire Statute.

g) Where the cause of the fire is other than unseaworthiness, the burden of proof, throughout the United States, is on the carrier to prove that fire caused the loss or damage, after which cargo must prove, under the Fire Statute, that the shipowner or demise charterer caused the fire by their design or neglect or, under COGSA, that the time or voyage charterer caused the fire by their actual fault or privity.

h) Once the fire has started, the master, crew and other servants and agents of the carrier must act properly and carefully, not only to prevent the fire from spreading, but also in caring for cargo during their efforts to extinguish the fire. This in virtue of sect. 3(2) of the COGSA. Under the U.S. Fire Statute, the shipowner or demise charterer is only responsible for the care of cargo after the fire has started if he is personally at fault or is privy to that fault.

6) The order of proof in a U.S. fire cargo claim

The order of proof where sect. 4(2)(b) of COGSA and the U.S. Fire Statute are applicable is as follows:[133]

a) The claimant proves his loss by producing the good order-bad order receipts, etc.[134]

b) The carrier must then prove the cause of the loss, i.e. that the fire caused the loss. (If the carrier is a time or voyage charterer, and in all cases in the Ninth Circuit, he must also prove due diligence to make the ship seaworthy in respect of the fire[135]). Once this has been established, the carrier is also protected "from losses resulting from steps taken to extinguish the fire, provided there is no actual fault or privity of the owner concerning fire fighting efforts,"[136] or even of his agents.[137]

c) The burden then shifts back to the claimant to prove the cause of the fire and to establish that the fire was caused by the actual fault or privity (design or neglect) of the carrier.[138] The claimant, for example, may show that the firefighting efforts were defective due to the fault and privity of the owner.

7) The need for the fire statute?

The U.K. fire statute in an early form was adopted in 1786.[139] The U.S. Fire Statute was adopted in 1851.[140] Before the Hague Rules 1924, the fire statutes properly protected shipowners against fire (a common catastrophe of the times), unless there was fault or privity of the shipowner.

In 1924 the Hague Rules reached a new balance of shared rights and responsibilities between carriers and cargo owners. Amongst those rights and responsibilities is the fire exception of art. 4(2)(b), which provides a defence when there is no fault or privity on the part of the carrier. In consequence, there is now no real need for a fire statute in carriage of goods cases or at all, provided the shipowner and charterer, in accordance with modern tonnage limitation statutes, may limit their liability.[141] The abolition of the "actual fault or privity" provision of the U.K. fire statute in 1979[142] has put the U.K. in step with the rest of the world.

IX. Fire under French Law


1) The former domestic law

The French domestic Law of April 2, 1936,[143] did not contain a specific exception for fire. Fire, however, fell under the exception of "force majeure" or "cas fortuit" found in art. 4(3) "De faits constituant un cas fortuit ou de force majeure". When there was spontaneous combustion, fire fell under the exception of "vice propre" found in art. 4(5), "Du vice propre de la marchandise". The carrier, under the Law of April 2, 1936, had a heavier responsibility than under the Hague Rules in respect to fire. If the cause of the fire was unknown, the carrier was held responsible because he could not prove that the fire was a fortuitous event or due to irresistible force or that it arose from a vice propre (inherent vice). The carrier had this burden of proof[144] as the guarantor under art. 4.

2) The domestic Law of June 18, 1966

The domestic Law of June 18, 1966[145] has included "fire" as a specific exception in art. 27(c), but there is no reference to "fault or privity of the carrier" in art. 27(c). Nevertheless, because of the general responsibility of the carrier for his own fault and for that of his servants and agents, as found in the last paragraph of art. 27, the carrier is not merely responsible for his own fault, but also for the fault of his servants or agents in preventing or extinguishing fires.[146]

The shipper, as in all the exceptions under the Law of June 28, 1966, must prove the fault of the carrier, which, in the case of fire, is the position the French courts have taken in the past.[147]

Under the domestic Law of June 18, 1966, the carrier under art. 27(c), and the manutentionnaire (stevedore and terminal operator) under art. 53(1), are subject ashore to the same responsibility for fire damage as at sea. Thus, where the manutentionnaire allowed smoking and a heater near inflammable goods on the quay, this was held to be a fault and the manutentionnaire was responsible under art. 53(1); the carrier was held responsible for him as well.[148]

X. Hamburg Rules

The Hamburg Rules, at art. 5(4), have retained the fire exception of the Hague and Hague/Visby Rules with three useful clarifications. Firstly, it is now clear from art. 5(4)(a)(i) that the claimant must prove that the fire arose from fault or neglect on the part of the carrier. Secondly, the carrier is liable for the damage by fire resulting from fault or neglect of his servants or agents. Thirdly, once a fire has started, it is also clear under art. 5(4)(a)(ii) that the cargo claimant must show that any subsequent loss was caused by failure of the carrier to take all reasonable means to put out the fire and avoid or mitigate the damage. Unfortunately, the burden is put squarely on the claimant who does not usually have the facts available.[149]

By art. 5(4)(b), however, either the claimant or the carrier may call for a survey on board and the survey report is available to both parties. This modifies in part the harshness of the burden of proof rule found in art. 5(4)(a).

XI. Conclusion

If it be true that: "[f]ire is the peril most dreaded by all mariners",[150] the question of responsibility for cargo lost or damaged by flames and smoke, and/or by the substances used to extinguish them, are rightly addressed by international carriage of goods by sea law. The Hague, Hague/Visby and Hamburg Rules, and the various national enactments bringing them into force, have addressed this issue, through the "fire exceptions" of art. 4(2)(b) of Hague and Hague/Visby and art. 5(4)(a) of Hamburg.The "fire exceptions" apply to all ships, all "carriers" and from "tackle to tackle" (or, in the case of Hamburg, from "port to port"). The burden of proof is on the carrier to assert the applicable "fire exception", which can be done merely by establishing that fire caused the loss or damage. The carrier, under Hague and Hague/Visby, must also show his due diligence to make the vessel seaworthy in respect of fire risks, before and at the commencement of the voyage (notably, by equipping the ship adequately and securing the proper training of the crew in firefighting techniques).The onus then shifts to the cargo claimant to prove that the "actual fault or privity" of the carrier (or, under Hamburg, and France's internal law, the"fault or neglect" of the carrier, his servants or agents) in failing to prevent the fire and/or to extinguish it rapidly, was the "proximate" cause of the conflagration and thus of the ensuing loss or damage.

The relatively simple operation of the "fire exception" is complicated, in the United Kingdom and the United States, however, by the antiquated "fire statutes" of pre-Hague Rules vintage. These shipowners' limitation provisions override the "fire exception" of the carriage by sea statutes, but apply only to fires breaking out on board ships registered in those jurisdictions, and, in the case of the U.S., benefit only shipowners and bareboat charterers, and no other "carriers". In most cases, under the "fire statutes", contrary to the "fire exception" of Hague and Hague/Visby, the failure to exercise due diligence to make the vessel seaworthy in respect of the fire loss does not bar the exemption. Moreover, the U.S. Fire Statute has caused serious confusion, and a regrettable split between the Ninth and other Circuits, in respect of the burden of proof in cases where the fire is the product of unseaworthiness.Nor are the "fire statutes" identical, that of the U.K. applying to all owners, charterers, managers and operators (as opposed to the U.S. Fire Statute, which protects only owners and demise charterers) and involving an "almost unbreakable limitation" (intention or recklessness with knowledge), as opposed to the American "design or neglect" rule.

There would appear to be no further need to retain the "fire statutes" today, provided that the carrier's right to limitation under the shipowners' limitation statutes, as well as its right to exculpation under the "fire exception", are retained. The U.K. and the U.S., as well as other "fire statute" jurisdictions such as Australia, should consider following the example of Canada, by repealing their "fire statutes", in the interests of both simplicity and equity.

Prof. William Tetley, Q.C.
Faculty of Law
McGill University
3644 Peel Street
Montreal, Quebec H3A 1W9
Canada

Tel.: 514-398-6619
Fax: 514-398-4659
E-mail: william [dot] tetley [at] mcgill [dot] ca
Website: www.mcgill.ca/maritimelaw/


* Professor of Law, McGill University; Distinguished Visiting Professor of Maritime and Commercial Law, Tulane University; counsel to Langlois Gaudreau O'Connor of Montreal. The author acknowledges with thanks the assistance of Robert C. Wilkins, B.A., B.C.L, in the preparation and correction of this article.

[1] The principal shipowners' limitation conventions now in force are the Convention on the Limitation of Liability of Owners of Sea-going Ships, adopted at Brussels, October 10, 1957 and in force May 31, 1968 (the "Limitation Convention 1957"), and the Convention on the Limitation of Liability for Maritime Claims, adopted at London, November 19, 1976 and in force December 1, 1986 (the "Limitation Convention 1976").

[2] Act of March 3, 1851, ch. 43, 9 Stat. 635, 46 U.S.C. Appx. 181-189, R.S. 4282-4289.

[3] Australia also has a fire statute, being sect. 338(a) of its Navigation Act 1912 (Cth.), No. 4 of 1913, assented to October 24, 1913, as amended. See generally Martin Davies & Anthony Dickey, Shipping Law, 2 Ed., LBC Information Services, Sydney, 1995 at pp. 287-288.

[4] See the first sentence of art. 4(2). See also W. Tetley, Marine Cargo Claims, 3 Ed., Les Éditions Yvon Blais, Inc., Montreal, 1988, Chap. 10: "Whom to Sue" (hereinafter cited "Tetley, Marine Cargo Claims, 3 Ed., 1988").

[5] Ibid.

[6] See art. 1(a) which in defining carrier uses the term "includes", therefore suggesting that the definition is not exhaustive. See also The Shell Bar (Fire), 224 F.2d 72, 1955 AMC 1429 (2 Cir. 1955), where "carrier" under COGSA was held to mean not merely shipowners or owners pro hac vice (demise charterers) but other charterers as well. COGSA has extended the meaning of carrier beyond the meaning it has under the U.S. Fire Statute.

[7] 46 U.S.C. Appx. 182, R.S. 4282.

[8] Adopted at Brussels, October 10, 1957, in force May 31, 1968 which extends the shipowner's tonnage limitation to charterers, managers, operators, and their servants, as well as to the vessel.

[9] Adopted at London, November 19, 1976, in force December 1, 1986, which extends the right to limit to shipowners (including owners, charterers, managers and operators), to insurers and even salvors, as well as to the vessel and to préposés of the shipowner or salvor.

[10] Venice Maru 320 U.S. 249, 1943 AMC 1209 (1943) where the U.S. Supreme Court declared that the U.S. Fire Statute benefits both the ship in rem and the shipowner in personam. This is a HarterAct case but the principle is unchanged under COGSA or the Hague or Hague/Visby Rules.

[11] Merchant Shipping Act 1995, U.K. 1995, c. 21, sect. 186(1).

[12] An Act to settle how far Owners of Ships shall be answerable for the Acts of the Masters or Mariners (1786), 26 Geo. 3, c. 86, sect. 2; now incorporated in the Merchant Shipping Act 1995, U.K. 1995 c. 21, sect. 186(1) and Part I of Schedule 7 (being the Limitation Convention 1976).

[13] "United Kingdom ships" refers to ships registered in the U.K. See the Merchant Shipping Act 1995, U.K. 1995, c. 21, sects. 1(3), 186(1) and 313(1).

[14] Merchant Shipping Act 1995, U.K. 1995, c. 21, sect. 186(1) and (5). The U.K. ratified the 1957 and then the 1976 Limitation of Liability Conventions and put them in turn into national law. These Conventions apply not only to owners but also to charterers and operators.

[15] [1930] 1 K.B. 699 at p. 708, rev'd on other grounds, [1931] 1 K.B. 195 (C.A.), upheld [1931] A.C. 726 (H.L.). In Buckeye State, 39 F. Supp. 344, 1941 AMC 1238 (W.D. N.Y. 1941), the Court also held that fire implies more than heat; if there is no glow or flame, there is no fire. Grain was damaged by light bulbs left on in the holds. The carrier was found liable and the Fire Statute did not apply. See also Cargo Carriers Inc. v. Brown S.S. Co. 95 F. Supp. 288, 1950 AMC 2046 (W.D. N.Y. 1950) and Supreme Court of Denmark, June 21, 1963, DMF 1964, 313. See Hof Van Beroep Brussel, March 30, 1967, [1967] ETL 755, where the Court held that the legal exoneration from liability in case of fire, at art. (2)(b) of the Hague and Hague/Visby Rules, cannot be invoked when damage is caused by smoke and heat. Similarly in David McNair & Co. Ltd. v. The Santa Malta [1967] 2 Lloyd's Rep. 391 at p. 394, where smoke was discovered in a hold containing fishmeal, the Exchequer Court of Canada held that the U.S. Fire Statute required "visible heat or fight" or of a "flame or a glow" to constitute fire; and that defendants had failed to prove a fire.

[16] Greenshields, Cowie & Co. v. Stephens & Sons, Ltd. [1908] A.C. 431 (H.L.); Tempus Shipping Co. v. Louis Dreyfus & Co. [1930] 1 K.B. 699 at p. 708; Amer. Tobacco Co. v. S.S. Katingo Hadjipatera 81 F. Supp. 438 at p. 446, 1949 AMC 49 at p. 58 (S.D. N.Y. 1948): "It is urged that because some damage occurred by heating before the fire broke out, then, if the ship cannot prove what damage was solely caused by fire she is liable for all damage. This argument would nullify the Fire Statute in many, if not all, cases of spontaneous combustion — an absurd result; cf. Venice Maru 133 F.2d 781, 1943 AMC 277 (2 Cir. 1943) affirmed 320 U.S. 249, 1943 AMC 1209 (1943) where the same argument could have been made on the facts."

[17] The Diamond [1906] P. 282, (1906) 10 Asp. M.L.C. 286.See also Westinghouse Electric Corp. v. M/V Leslie Lykes 734 F.2d 199 at p. 206, 1985 AMC 247 at pp. 255-256 (5 Cir. 1985), cert. denied, 469 U.S. 1077, 1985 AMC 2400 (1984).

[18] Banana Services Inc. v. M/V Tasman Star 68 F.3d 418 at p. 421, 1996 AMC 260 at p. 263 (11 Cir. 1995).

[19] La Territorial de Seguros v. Shepard Steamship Co. 124 F. Supp. 287 at p. 289, 1954 AMC 935 at p. 938 (E.D. N.Y. 1954).

[20] See Tetley, Marine Cargo Claims, 3 Ed., 1988, Chap. 6: "The Burden and Order of Proof", and ibid., Chap. 14: "The Cause of the Loss or Damage".

[21] U.S. COGSA 1936, sect. 8, 46 U.S.C. Appx. 1308, referring to Rev. Stat. 4281-4289.

[22] American Tobacco v. The Katingo Hadjipatera 194 F.2d 449 at p. 450, 1951 AMC 1933 at p. 1934 (2 Cir. 1951); Rio Gualeguay (Fidelity-Phenix Fire Ins. Co. v. Flota Mercante Del Estado) 205 F.2d 886 at pp. 887-88, 1953 AMC 1348 at p. 1350 (5 Cir. 1953); Westinghouse Electric Corp. v. Leslie Lykes 734 F.2d 199 at pp. 206-07, 1985 AMC 247 at p. 256 (5 Cir. 1984), cert. denied 469 U.S. 1077, 1985 AMC 2400 (1984).

[23] Minerals & Chemicals v. National Trade 445 F.2d 831 at p. 832, 1971 AMC 1612 at p. 1613 (2 Cir. 1971): "By the very nature of a fire, its cause must often be proven through a combination of common sense, circumstantial evidence and expert testimony."

[24] Standard Commercial Tobacco Co., Inc. v. M/V Recife 827 F. Supp. 990 at p. 1001, 1994 AMC 1208 (summ.) (S.D. N.Y. 1993), citing Minerals & Chemicals Philipp Corporation v. The S.S. National Trader 445 F.2d 831 at p. 832, 1971 AMC 1612 at p. 1613 (2 Cir. 1971); United States v. Ebinger 386 F.2d 557 at p. 560 (2 Cir. 1967); Michalic v. Cleveland Tankers, Inc. (The S/T Orion) 364 U.S. 325 at p. 330, 1960 AMC 2251 at p. 2256 (1960), the latter U.S. Supreme Court decision stating: "Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence."

[25] See, for example, Standard Commercial Tobacco Co., Inc. v. M/V Recife, supra, F. Supp. at p. 1003, where the Court inferred that because metal containers of calcium hypochlorite stowed on deck had been exposed for a long period of time to direct sunlight during very hot weather, the resulting heat caused the fire. The Court stated: "Once the cargo plaintiff has shown that stowage resulted in a dangerous condition, and that a fire occurred, the Cargo Interests have satisfied their burden of proving that the negligent stowage caused the fire." See also Re Kellogg Steamship Co. (The S/T Doris Kellogg) 18 F. Supp. 159 at p. 164, 1937 AMC 254 at p. 266 (S.D. N.Y. 1937), aff'd 94 F.2d 1015, 1938 AMC 158 (2 Cir. 1938), where the Court held that the cargo plaintiff was not obliged to prove that a static spark was actually produced, causing the ignition of explosive gas in the ship's dry cargo space. It sufficed to show "conditions and circumstances... from which the inference could reasonably be drawn that a static spark was produced."

[26] See The Black Gull 269 F.2d 68 at p. 71, 1960 AMC 163 at p. 167 (2 Cir. 1959), rehearing granted in part, remanded in part, 273 F.2d 61, 1960 AMC 175 (2 Cir. 1959), cert. denied, 361 U.S. 934, 1960 AMC 249 (1960), holding that the proximate cause of the fire was not limited to the "... sole inducing reason for the damage".In that case, the bad stowage of bagged naphthalene on deck, without protection, was found to be the proximate cause of the ignition, to which other factors may have also contributed, such as the careless smoking by crewmembers and passengers on deck. See also Waterman Steamship Corp. v. Virginia Chemicals, Inc. 1988 AMC 2681 at p. 2688 (S.D. Ala. 1987).

[27] See, for example, Akropan Shipping Lim. Procs. 1993 AMC 413 at pp. 433-434 (S.D. N.Y. 1992), where the cargo claimant's various theories as to how an explosive atmosphere was created in a cargo hold during loading of a non-volatile gas oil cargo, and how that atmosphere came to be ignited, were rejected as mere speculation, resulting in the carrier being granted the protection of the fire defences of COGSA and the U.S. Fire Statute.

[28] See the Hague/Visby Rules, art. 8, enacted by the Schedule to the U.K.'s Carriage of Goods by Sea Act 1971, U.K. 1971, c. 19, and sect. 6(4) of that statute, as amended, referring to the Merchant Shipping Act 1995, U.K. 1995, c. 21, sect. 186. See also Scrutton on Charterparties and Bills of Lading (S.C. Boyd, A.S. Burrows & D. Foxton, eds.), 20 Ed., Sweet& Maxwell, London, 1996, art. 116 at p. 255, note 32, stating that the operation of the U.K. Fire Statute is "expressly saved" by sect. 6(4) of the statute and art. 8 of the Hague/Visby Rules (hereafter cited as "Scrutton on Charterparties and Bills of Lading, 20 Ed., 1996").

[29] The Apostolis [1997] 2 Lloyd's Rep. 241 at p. 244 (C.A.): "It was for AMJ [the cargo claimant] to prove that the fire was caused by welding."

[30] [1959] A.C. 589 at pp. 602-603, [1959] 2 Lloyd's Rep. 105 at p. 113 (P.C.) (Note that the decision as reported in A.C. correctly refers to "the opening words of Art. III, Rule 2", whereas the report in Lloyd's Rep. unfortunately refers erroneously to "the opening words of Art. IV, Rule 2"). It is unlikely that the same decision would have been rendered if U.K. or U.S. law rather than Canadian law had applied. There is no fire statute in Canada and the ship was owned by the defendant Canadian Government Merchant Marine Ltd. (a Canadian Crown corporation). In fact, the fire was caused by the master ordering one of the ship's officers to have scupper pipes thawed out with an acetylene torch. The work was done by the carrier (which in this case means the master and crew and servants and agents and independent contractors). The duty to exercise due diligence to make the ship seaworthy under art. 3(1) is an overriding obligation before art. 4(2)(a) to (q) may be proven (including art. 4(2)(b) the fire exception). See The Kapitan Sakharov [2000] 2 Lloyd's Rep. 255 at p. 270 (C.A.) (a fire case). Under the Fire Statute, there is no such overriding obligation of exercising due diligence to make the vessel seaworthy before the fire, and the obligation not to cause the fire is only of the shipowner (and the charterer in the U.K.) and not of servants, agents and crew. See in general the third "heresy" as piquantly described by Walter L. Williams Jr., "The American Maritime Law of Fire Damage to Cargo" (1985) 26 Wm. & Mary L. Rev. 569.

[31] The overriding nature of the carrier's duty of due diligence has also been affirmed in various non-fire decisions, including Great China Metal Industries Co. Ltd. v. Malaysian International Shipping Corporation Berhad (The Bunga Seroja): (1998) 158 A.L.R. 1 at p. 24, [1999] 1 Lloyd's Rep. 512 at p. 526, 1999 AMC 427 at p. 458 (High C. of Aust. per McHugh J.), citing both Maxine Footwear Co. Ltd. v. Can. Government Merchant Marine Ltd., supra, and Paterson Steamships Ltd. v. Canadian Co-operative Wheat Producers Ltd. [1934] A.C. 538 at p. 548, (1934) 49 Ll. L. Rep. 421 at p. 428 (P.C.). See also The Bunga Seroja, ibid., 158 A.L.R. at p. 43, Lloyd's Rep. at p. 537, 1999 AMC at p. 484 (per Kirby J.), citing Shipping Corp. of India Ltd. v. Gamlen Chemical Co. (Australasia) Pty. Ltd. (1980) 147 CLR 142 at p. 152 (High C. of Aust.). See also The Good Friend [1984] 2 Lloyd's Rep. 586 at pp. 588 and 593; The Fiona [1993] 1 Lloyd's Rep. 257 at p. 286; upheld [1994] 2 Lloyd's Rep. 506 at p. 519 (C.A.).

[32 On this point generally, see Chap: 15: "Due Diligence to Make the Ship Seaworthy", section IV, supra, and decisions cited there.

[33] Hof van Beroep te Brussel, March 3, 1972, [1972] ETL 992.

[34] 143 F.2d 462, 1944 AMC 895 (2 Cir. 1944).

[35] Westinghouse Electric Corp. v. M/V Leslie Lykes 734 F.2d 199 at p. 207, 1985 AMC 247 at p. 256 (5 Cir. 1984), cert. denied, 469 U.S. 1077, 1985 AMC 2400 (1984); Ta Chi Navigation (Panama) Corp. S.A. 677 F.2d 255, 1982 AMC 1710 (2 Cir. 1982).

[36] Sunkist Growers, Inc. v. Adelaide Shipping Lines 603 F.2d 1327 at p. 1336, 1979 AMC 2787 at pp. 2795-96 (9 Cir. 1979), cert. denied 444 U.S. 1012, 1980 AMC 2102 (1980). See Tetley, Marine Cargo Claims, 3 Ed., 1988, Chap. 15: "Due Diligence to Make the Ship Seaworthy". See also Federazione Italiana v. Mandask Compania, 342 F.2d 215 at p. 217, 1965 AMC 921 at p. 923 (2 Cir. 1965): "The shipowner had the burden of proof with respect to these affirmative defenses [of due diligence, as well as the defense based on the Fire Statute and the exception for fire in Section 4(2)(b) of COGSA ... ]." In Liberty Shipping Lim. Procs., 1973 AMC 2241 at p. 2247 (W.D. Wash. 1973), it was held due diligence had not been exercised to train the crew to fight fires nor in respect to defective vent-closing devices so that the fire exception of art. 4(2)(b) and the Fire Statute could not be invoked. In Asbestos Corp. v. Cyprien Fabre (The Marquette) 480 F.2d 669 at p. 671, 1973 AMC 1683 at p. 1685 (2 Cir. 1973), the U.S. Court of Appeals noted that the vessel had been issued a safety certificate pursuant to the Safety of Life at Sea Convention (SOLAS) and held that "compliance with SOLAS did not establish the vessel's seaworthiness under COGSA.... The COGSA standard requires the court to make an independent determination, based among other things upon expert testimony and accepted safety practices, as to whether the vessel had adequate equipment."

[37] The dispute between the 5th, 2nd and 11th Circuits in Westinghouse Electric Corp., Ta Chi and Banana Services, on one hand, and the 9th Circuit in Sunkist Growers and subsequent decisions, on the other, is further discussed infra in this article, under the heading "The Conflict in the U.S. Courts".

[38] Scrutton on Charterparties and Bills of Lading, 20 Ed., 1996 at p. 444.

[39] Ibid. at p. 421, note 62: "It is submitted that in cases governed by the Hague Rules (whether in their original or amended form) the carrier is entitled to the benefit of s. 186 of the Merchant Shipping Act 1995, even in cases where the fire results from want of due diligence...."

[40] See Drew Brown Ltd. v. The Orient Trader (The Orient Trader)[1972] 1 Lloyd's Rep. 35 at p. 50, a Canadian case on the U.S. Fire Statute: "... the onus of proving that the neglect of the owner caused the fire rested on the plaintiff ... "; upheld by the Supreme Court of Canada [1974] S.C.R. 1286, [1973] 2 Lloyd's Rep. 174, (1973) 34 D.L.R. (3d) 339. In retrospect, one can see that the Supreme Court of Canada erroneously adjudged a U.S. Fire Statute case as though Canadian law applied.

[41] Ta Chi Navigation (Panama) Corp. S.A. 677 F.2d 225 at p. 229, 1982 AMC 1710 at p. 1715 (2 Cir. 1982).

[42] 46 U.S. Code Appx. 182, R.S. 4282.

[43] Westinghouse Electric Corp. v. M/V Leslie Lykes 734 F.2d 199 at pp. 206?07, 1985 AMC 247 at p. 256 (5 Cir. 1984), cert. denied, 469 U.S. 1077, 1985 AMC 2400 (1984), where the Court unequivocally affirmed: "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. 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." See Asbestos Corp. v. Cyprien Fabre (The Marquette) 480 F.2d 669 at p. 673, 1973 AMC 1683 at p. 1687 (2 Cir. 1973): "If the carrier shows that the damage was caused by fire, the shipper must prove that the carrier's negligence caused the damage"; Sandgate Castle 1939 AMC 463 at p. 464 (S.D. N.Y. 1938): In this ship fire case, the cargo claimants were given the right to make broad interrogatories because they had the burden of proof. "The court feels that in a case of this kind, wide latitude should be given to cargo claimants in their endeavor to discharge the very heavy burden placed upon them."; The Shell Bar (Fire) 224 F.2d 72 at p. 75, 1955 AMC 1429 at p. 1434 (2 Cir. 1955): "We think that Congress intended as a condition for recovery for damage due to fire loss to place the burden on cargo interests of establishing that the fire was caused by the design or neglect of the owner."; Starlight Trading v. S.S. San Francisco Maru 1974 AMC 1523 (S.D. N.Y. 1974): The cargo interests failed to prove that the carrier maintained an inadequate fire watch or had an unseaworthy smoke detection device. Precisely why cargo bears the burden of proving fault or privity under the U.S. Fire Statute is not clear, except that such is the majority rule in the United States. The U.S. Supreme Court, in Venice Maru (Consumers Import Company v. Kabushiki Kaisha Kawasaki Zosenjo) 320 U.S. 249 at pp. 255-256, 1943 AMC 1209 at pp. 1213-1214 (1943), did explain that Congress intended the shipper and not the carrier to pay for insurance coverage of fire loss to cargo. See also Alfa Romeo Inc. v. SS. Torinit 499 F. Supp. 1272 at p. 1282, 1980 AMC 2138 at p. 2148, (S.D. N.Y. 1980), aff'd 659 F.2d 1057, 1982 AMC 598 (2 Cir. 1981). G. Gilmore and C. L. Black, The Law of Admiralty, 2 Ed., Foundation Press, Mineola, N.Y., 1975 at p. 895 et seq., put the burden on the carrier. Contra: J.X. Bassoff, "Fire Losses and the Statutory Fire Exceptions" (1981) 12 JMLC 507 at p. 513.

[44] The Merchant Shipping Act 1979, U.K. 1979, c. 39, sect. 18(l), now replaced by the Merchant Shipping Act 1995, U.K. 1995, c. 21, sect. 186(1).

[45] Lennard's Carrying Co. v. Asiatic Petroleum Co. [1915] A.C. 705, [1914-15] All E.R. Rep. 280 (H.L.), affirming [1914] 1 K.B. 419 (C.A.). See Ingram & Royle v. Services Maritimes du Triport [1914] 1 K.B. 541. See also Royal Exchange Assurance v. Kingsley Navigation Co., [1923] A.C. 235 at p. 245 (P.C.). The Australian Fire Statute, however, being sect. 338(a) of the Navigation Act 1912, No. 4 of 1912, still contains an "actual fault or privity provision".

[46] U.K. 1995, c. 21, sect. 186(3) replaced former sect. 18(3) of the Merchant Shipping Act 1979, U.K. 1979, c. 39.

[47] The Bowbelle [1990] 1 Lloyd's Rep. 532 at p. 535.See also Patrick Griggs & Richard Williams, Limitation of Liability for Maritime Claims, 2 Ed., Lloyd's, London, 1991 at p. 40; Robert Grime, "The Loss of the Right to Limit" in Nicholas Gaskell, ed., Limitation of Shipowner's Liability. The New Law, Sweet & Maxwell, London, 1986, 102 at p. 111; C. Hill, Maritime Law, 5 Ed., LLP Publications, London, 1998 at p. 402 (hereafter cited as "Hill, Maritime Law, 5 Ed., 1998").

[48] [1996] 1 Lloyd's Rep. 475.

[49] Ibid. at p. 483.

[50] [1997] 2 Lloyd's Rep. 241 at p. 246 (C.A.), where Leggatt L.J. held that AMJ, the cargo claimant, had to prove that the master, as general manager of the vessel's managers, knew that hot work was to be carried out while the vessel was at Salonika, the load port.See also Phillips L.J. (at p. 258), holding that "AMJ's case of privity" had collapsed because there was "no reason to infer that the marine superintendent was privy to a certain incident."

[51] U.S. courts hold COGSA's "actual fault and privity" to have the same meaning as the Fire Statute's "design or neglect" and that the two phrases may be used interchangeably. See Asbestos Corp. v. Cyprien Fabre (The Marquette) 480 F.2d 669 at p. 672, 1973 AMC 1683 at p. 1686 (2 Cir. 1973).). See also Banana Services Inc. v. M/V Tasman Star 68 F.3d 418 at p. 420, 1996 AMC 260 at p. 263 (11 Cir. 1995): "Though the ‘actual fault or privity' language of sect. 1304(2)(b) differs from the 'design or neglect' language of the Fire Statute, the phrases are functionally equivalent." See also Standard Commercial Tobacco Co., Inc. v. M/V Recife 827 F. Supp. 990 at p. 997, 1994 AMC 1208 (summ.) (S.D. N.Y. 1993); Complaint of Damodar Bulk Carriers 903 F.2d 675 at p. 686 note 14, 1990 AMC 1544 at p. 1561 note 14 (9 Cir. 1990); Waterman Steamship Corp. v. Virginia Chemicals, Inc. 651 F. Supp. 452 at p. 456, 1988 AMC 2681 at p. 2688 (S.D. Ala. 1987); Complaint of Ta Chi Navigation (Panama) Corp. S.A. 677 F.2d 224 at p. 228, 1982 AMC 1710 at p. 1713 (2 Cir. 1982); See generally James H. Hohenstein, "The Allocation of the Burden of Proof in Marine Fire Damage Cases" (1983) 50 U. of Chi. L. Rev. 1146.

[52] G. Ripert, Droit Maritime, 4 Ed., Éditions Rousseau, Paris, vol. 2, 1952, paras. 1812-1815; R. Rodière, Traité Général de droit maritime, Affrètements et Transports, tome 2, Dalloz, Paris, 1968, para. 758.

[53] Cour d'Appel d'Aix, June 21, 1960, DMF 1961, 340; Cour de Cassation, May 27, 1964, DMF 1964, 666; Tribunal de Commerce de Paris, June 23, 1975, DMF 1976, 154; Cour d'Appel de Paris, March 9, 1977, DMF 1978, 14. See also R. Rodière & E. du Pontavice, Droit maritime, 12 Ed., Dalloz, Paris, 1997, para. 371; M. Rèmond-Gouilloud, Droit maritime, 2 Ed., Éditions A. Pedone, Paris, 1993, para. 584.

[54] See Tetley, Marine Cargo Claims, 3 Ed., 1988, Chap. 6: "Burden and Order of Proof", and in particular the second principle of proof.

[55] See The Kapitan Sakharov [2000] 2 Lloyd's Rep. 255 at p. 272 (C.A.), where the Auld L.J. held that to hold the carrier liable for a fire caused by the shipment of an undeclared and dangerous cargo in a container filled and sealed by the shipper "would run counter to the scheme of art. IV, r.2 which excepts him [the carrier] in general terms from liability in a number of respects," including fire under art. 4(2)(b).

[56] Asiatic Petroleum Co. v. Lennard's Carrying Co. [1914] 1 K.B. 419 at p. 437 (C.A. per Hamilton L.J.). This is a U.K. Fire Statute case. "Fault and privity" in the U.K. fire statute and in the U.K. version of the Hague Rules (and since 1977 the U.K. version of the Hague/Visby Rules) is usually deemed to mean the same thing. See also Earle & Stoddart v. Wilson Line 287 U.S. 420 at pp. 424-425, 1933 AMC 1 at p. 2 (1932).

[57] Lennard's Carrying Co. v. Asiatic Petroleum Co. [1915] A.C. 705 at pp. 713-714, [1914-15] All E.R. Rep. 280 at p. 283 (H.L.). See also Westinghouse Electric Corp. v. M/V Leslie Lykes 734 F.2d 199 at pp. 206-207, 1985 AMC 247 at p. 256 (5 Cir. 1984), cert. denied, 469 U.S. 1077, 1985 AMC 2400 (1984).

[58] Ibid., A.C. at p. 713, All E.R. Rep. at p. 283. Thus, in Leval v. Colonial Steamships [1961] S.C.R. 221, [1961] 1 Lloyd's Rep. 560, an assistant marine superintendent was held not to have been the alter ego of the shipping company.

[59] The Lady Gwendolen [1965] 2 All E.R. 283, [1965] 1 Lloyd's Rep. 335. See also The England [1973] 1 Lloyd's Rep. 373 (C.A.) (owner held liable for master's failure to have river by-laws on board). The fault and lack of knowledge of the traffic manager was held to be the fault of the company. The Edmund Fanning 201 F.2d 281, 1953 AMC 86 (2 Cir. 1953): (This is a U.S. Fire Statute case.) Acid was negligently stowed above other chemicals. The vessel owners had employed an expediter to assist in stowing cargoes and his negligence was held to be within the terms "fault and privity of the carrier". See, however, Westinghouse Electric Corp. v. M/V Leslie Lykes 734 F.2d 199 at pp. 210-211, 1985 AMC 247 at pp. 263-265 (5 Cir. 1984), cert. denied, 469 U.S. 1077, 1985 AMC 2400 (1984).

[60] See, for example, The Marion [1984] 2 Lloyd's Rep. 1 at p. 7 (H.L.), where the failure of the corporate shipowner's managing director to exercise adequate supervision over one of the company's masters in obtaining and keeping on board up-to-date charts, was found to constitute "actual fault" of the shipowner, thus barring limitation of liability under sect. 503 of the Merchant Shipping Act, 1894, U.K. 57 & 58 Vict. c. 60. See also The Ert Stefani [1989] 1 Lloyd's Rep. 349 (C.A.); Hill, Maritime Law, 5 Ed., 1998 at pp. 383-384.

[61] 159 F.2d 661 at p. 665, 1947 AMC 306 at p. 312 (2 Cir. 1947). (This is a U.S. Fire Statute case.) See also The Lady Gwendolen [1965] 2 All E.R. 283, [1965] 1 Lloyd's Rep. 335.

[62] Complaint of Calda 350 F. Supp. 566 at p. 573, 1973 AMC 1243 at pp. 1252-1253, (E.D. Pa. 1972), aff'd 485 F.2d 680 (3 Cir. 1973), where the Court held that the carrier can be liable under the Fire Statute "if the negligence can be personally attributed to the owner or to agents with broad responsibility in the corporate organization ... " (Emphasis added.)

[63] Maxine Footwear Co. v. Can. Government Merchant Marine [1959] A.C. 589, [1959] 2 Lloyd's Rep. 105, (P.C.). In Dominion Glass v. The Anglo-Indian [1944] S.C.R. 409, 1944 AMC 1407, however, fire caused by the heating of a cargo of concentrates was excused by the Supreme Court of Canada upon it being shown that skilled chemists were employed to test the cargo and to recommend how it should be stowed. The chemists do not appear to have acted skillfully and one gathers that this judgment might not now be rendered, in the light of the House of Lords decision in The Muncaster Castle (Riverstone Meat Co. Pty Ltd. v. Lancashire Shipping Co.) [1961] 1 Lloyd's Rep. 57, 1961 AMC 1357, and of the Privy Council in Maxine Footwear [1959] A.C. 589, [1959] 2 Lloyd's Rep. 105. In a fire case, as in every Hague Rules case, due diligence must be exercised to make the vessel seaworthy and, if this duty is delegated, the delegate must be duly diligent. The chemists do not seem to have been skilled. This approach is not followed in the U.S. in fire cases. Not only have U.S. courts not required proof of the exercise of due diligence as a pre-condition for reliance on the fire exception (as decided in Maxine Footwear), but they also have refused in fire cases to make the carrier liable for his delegate's failure to exercise due diligence (as held in The Muncaster Castle): see Earle & Stoddart v. Wilson Line 287 U.S. 420 at pp. 425-427, 1933 AMC 1 at pp. 3-4 (1932); Venice Maru (Consumers Import Co. v. Kabushiki Kaisha Kawasaki Zosenjo) 320 U.S. 249 at pp. 250-252, 1943 AMC 1209 at pp. 1209-1211 (1943). See Westinghouse Electric Corp. v. Leslie Lykes, 734 F.2d 199 at p. 210, 1985 AMC 247 at pp. 262-263 (5 Cir. 1984), cert. denied, 469 U.S. 1077, 1985 AMC 2400 (1984); Nissan Fire & Marine Ins. Co. Ltd. v. M/V Hundai Explorer 93 F. 3d 641 at p. 646,1996 AMC 2409 at p. 2414 (9 Cir. 1996). See also Gesellschaft v. S.S. Texas 318 F. Supp. 599 at p. 600, 1970 AMC 57 at p. 58, [1970] 1 Lloyd's Rep. 175 at p. 176 (E.D. La. 1970): "I find that leaving port with unexplained smoke in a hold constituted neglect and fault on the part of Strachan Shipping Co. Further, Strachan as general agent for the defendant [the owner], had sufficient authority so that its neglect or fault was the neglect or fault of defendant." (This is a U.S. Fire Statute case.) In Ocean Liberty 199 F.2d 134, 1952 AMC 1681, [1953] 1 Lloyd's Rep. 38 (4 Cir. 1952), it was held that the acceptance of a large quantity of ammonium nitrate for a trans-Atlantic voyage without proper inquiry as to the possibility of spontaneous combustion would have constituted actual fault of the carrier. Here, however, because proper inquiries were made of the Coast Guard, the Fire Department and the Board of Underwriters, the carrier was not found at fault. If there was fault, it was of the stevedores but this did not constitute fault and privity of the carrier. The Court did not appreciate that the improper stowage might have been held to result from a lack of due diligence, in which case privity would not be a factor under COGSA.

[64] See Waterman Steamship Corp. v. Gay Cottons 414 F.2d 724 at p. 728, 1969 AMC 1682 at p. 1687 (9 Cir. 1969).

[65] The Tai Shan 111 F. Supp. 638, 1953 AMC 887 (S.D. N.Y. 1953): A vessel deviated from its course and a fire started. It was held that, even if the deviation was unreasonable, the cargo interests had not sustained the burden of proving that there was a causal connection between the deviation and the fire. Tribunal de Commerce de Marseille, February 13, 1968, DMF 1969, 109: A carrier was held to be at fault when cutting and welding produced sparks near open hatches of holds containing particularly inflammable merchandise; the carrier did not ascertain that there was proper surveillance of the holds. See also Drew Brown Ltd. v. The Orient Trader (The Orient Trader) [1974] S.C.R. 1286, (1973) 34 D.L.R. (3d) 339, [1973] 2 Lloyd's Rep. 174. But see also The Apostolis [1997] 2 Lloyd's Rep. 241 (C.A.), where the Court of Appeal found insufficient evidence that welding had caused the fire.

[66] American Mail Line v. Tokyo M. & F. Ins. Co. 270 F.2d 499, 1959 AMC 2220 (9 Cir. 1959). A smoke detector indicated slight smoke from the cargo but smothering gas was used only after four days. The carrier was found responsible for all the loss because it could not distinguish between the loss occurring before detection and thereafter.

[67] 480 F.2d 669 at p. 672, 1973 AMC 1683 at p. 1686 (2 Cir. 1973).

[68] American Mail Line v. Tokyo M. & F. Ins. Co. 270 F.2d 499 at pp. 501, 1959 AMC 2220 at pp. 2222-2223 (9 Cir. 1959):

"Neither of the statutes above quoted has any effect upon the situation in case at bar. The carrier is not being held liable for damage caused by the onset of fire and destruction caused thereby. The fire was started because of the negligence of the officers and crew of the ship. The carrier was not in privity with the officers and crew of the ship and cannot be held liable for their default in starting the fire. However, it is the duty of the carrier to use reasonable precaution to protect cargo from any type of damage.... This duty exists irrespective of who was primarily responsible for the setting of the fire."

Starlight Trading v. Luna Maersk 1978 AMC 2090 at p. 2098 (S.D. N.Y. 1977): "There is no evidence to convince me that damage was done with respect to the fire fighting effort, that the fire fighting effort was impaired by the captain's activities in this regard ...."

Complaint of Ta Chi Navigation (Panama) Corp. 504 F. Supp. 209 p. 240 (S.D. N.Y. 1980):

"Indeed there is some question whether the fire exemption statutes are relevant since even if the fire was started due to the negligence of the officers and crew (and the Court makes no such finding), the carrier is not charged with starting the fire, but with exacerbating it, and thus breaching its duty as carrier to use reasonable precautions to protect cargo from any type of damage." Upheld in appeal 677 F.2d 225 at p. 228, 1982 AMC 1710 at p. 1713 (2 Cir. 1982):

"The shipper can prove that the carrier caused the damage either by proving that a negligent act of the carrier caused the fire or that such an act prevented the fire's extinguishment. Asbestos Corp. v. Cyprien Fabre 1973 AMC 1683 at p. 1687, 480 F.2d 669 at p. 672." Alfa-Romeo v. Torinita 499 F. Supp. 1272, 1980 AMC 2138 (S.D.N.Y. 1980), aff'd 1982 AMC 598 (2 Cir. 1981). The carrier refuted lack of proper care to extinguish the fire by proving a properly manned ship, a crew adequately trained in firefighting and a ship equipped with a sophisticated C02 firefighting system which extinguished the fire in three hours.

[69] 1973 AMC 2241 (W.D. Wash. 1973), aff'd 509 F.2d 1249 (9 Cir. 1975).

[70] Ibid. at p. 2248.

[71] Ibid. at p. 2248.

[72] Ibid. at p. 2249.

[73] See, for example, Waterman Steamship Corp. v. Virginia Chemicals, Inc. 651 F. Supp. 452 at p. 456, 1988 AMC 2681 at p. 2688 (S.D. Ala. 1987), where the carrier's violation of applicable regulations governing the stowage of a dangerous cargo of sodium hydrosulfite was held to be negligence rendering the carrier liable for the ensuing fire damage. But see also Standard Commercial Tobacco Co., Inc. v. M/V Recife 827 F. Supp. 990 at p. 999, 1994 AMC 1208 (summ.) (S.D. N.Y. 1993), where the carrier was found not liable for violating the International Maritime Dangerous Goods (I.M.D.G.) Code in stowing metal containers of calcium hypochlorite on deck, where they were exposed to direct sunlight in very hot weather, because the Code's prohibition of the stowage of that substance near "sources of heat" was interpreted as not forbidding its stowage in direct sunlight.

[74] Standard Commercial Tobacco Co., Inc. v. M/V Recife, supra, F. Supp. at pp. 999-1000.

[75] See, for example, Asbestos Corp. v. Cyprien Fabre 480 F.2d 669 at p. 672, 1973 AMC 1683 at p. 1686 (2 Cir. 1973); Cerro Sales Corp. v. Atlantic Marine Enterprises, Inc. 403 F. Supp. 562 at p. 567 (S.D. N.Y. 1975); Re Liberty Shipping Corp. 509 F.2d 1249 at p. 1251 (9 Cir. 1975); Hasbro Industries, Inc. v. M.S. St. Constantine 703 F.2d 339 at p. 341, 1980 AMC 1841 at p. 1843 (9 Cir. 1983), cert. denied sub nom Hasbro Industries, Inc. v. A/S Garonne-Glittre 464 U.S. 1013, 1984 AMC 2403 (1983); Sunkist Growers, Inc. v. Adelaide Shipping Lines 603 F.2d 1327 at p. 1335, 1979 AMC 2787 at p. 2798 (9 Cir. 1979), cert. denied 444 U.S. 1012, 1980 AMC 2102 (1980); Nissan Fire & Marine Ins. Co. Ltd. v. M.V Hyundai Explorer 93 F.3d 641 at p. 647, 1996 AMC 2409 at p. 2415 (9 Cir. 1996).

[76] Nissan Fire & Marine Ins. Co. Ltd. v. M/V Hyundai Explorer, ibid. The Nissan Court, ibid., also held that due diligence could be proven by showing that the carrier had done all that was "proper and reasonable" to make the vessel seaworthy. See also Sunkist Growers, Inc. v. Adelaide Shipping Lines, supra, F.2d at p. 1335, AMC at p. 2798: "[I]f the carrier used due diligence, the unseaworthiness would be excusable."

[77] See Tetley, Marine Cargo Claims, 3 Ed., 1988, Chap. 6: "The Burden and Order of Proof".

[78] [1974] S.C.R. 1286 at p. 1326, (1973) 34 D.L.R. (3d) 339 at p. 368, [1973] 2 Lloyd's Rep. 174 at p. 182. See also The Tai Shan 111 F. Supp. 638, 1953 AMC 887 (S.D. N.Y. 1953).

[79] 199 F.2d 134, 1952 AMC 1681, [1953] 1 Lloyd's Rep. 38 (4 Cir. 1952).

[80] Canada did have a fire statute (formerly sect. 7, Water Carriage of Goods Act, R.S.C. 1927, c. 207). It was repealed by the Water Carriage of Goods Act, 1936, S.C. 1936, c. 49 at sect. 8.

[81] 46 U.S. Code Appx. 182, R.S. 4282.

[82] Asbestos Corp. v. Cyprien Fabre (The Marquette) 480 F.2d 669 at p. 672, 1973 AMC 1683 at p. 1686 (2 Cir. 1973); Banana Services Inc. v. M/V Tasman Star 68 F.3d 418 at p. 420, 1996 AMC 260 at p. 263 (11 Cir. 1995): "Though the 'actual fault or privity' language of sect. 1304(2)(b) differs from the 'design or neglect' language of the Fire Statute, the phrases are functionally equivalent." In addition to Asbestos Corp., the Eleventh Circuit also cited on this point Complaint of Damodar Bulk Carriers 903 F.2d 675 at p. 686 note 14, 1990 AMC 1544 at p. 1561 note 14 (9 Cir. 1990) and Complaint of Ta Chi Navigation (Panama) Corp. S.A. 677 F.2d 224 at p. 228, 1982 AMC 1710 at p. 1713 (2 Cir. 1982).

[83] Merchant Shipping Act, 1995, U.K. 1995 c. 21, sect. 186(1).

[84] Brussels, October 10, 1957, in force May 31, 1968.

[85] London, November 19, 1976, reproduced in Part I of Schedule 4 of the 1979 Act.

[86] The Limitation Convention 1957 was given the force of law in the United Kingdom by the Merchant Shipping (Liability of Shipowners and Others) Act, 1958, 6 & 7 Eliz. 2, c. 62, sect. 3. The Limitation Convention 1976 was given the force of law in the United Kingdom by the Merchant Shipping Act 1979, U.K. 1979, c. 9, Sch. 4, Part 1, now replaced by the Merchant Shipping Act 1995, U.K. 1995, c. 21, sect. 185(1) and Schedule 7, Part I, being the Limitation Convention 1976, which, at arts. 6,7 and 8, fixes the tonnage limitation in Special Drawing Rights (S.D.R.).

[87] Adopted at London, November 19, 1976 and in force December 1, 1986.

[88] See The Herceg Novi [1998] 2 Lloyd's Rep. 454 at p. 457 (C.A.).

[89] J.F. Wilson, Carriage of Goods by Sea, 2 Ed., Pitman Publishing, London, 1993 at p. 265 (hereafter "Wilson, Carriage of Goods by Sea, 2 Ed., 1993").

[90] 46 U.S. Code Appx. 1308.

[91] Carriage of Goods by Sea Act 1971, U.K. 1971, c. 19, at art. 8 of the Schedule. A shipowner therefore can limit his liability under two different regimes: a) on a package or kilo basis in accordance with the Hague or Hague/Visby Rules as amended, or b) on a tonnage basis, in accordance with the 1976 Limitation of Liability Convention. Tonnage limits under certain national statutes may produce lower limits than the package or kilo limits under the Hague/Visby Rules and the carrier, under art. 8 of the Rules, is entitled to benefit from these lower limits of liability. See The Benarty [1984] 2 Lloyd's Rep. 244 at pp. 249-250 (C.A.). In the U.S., the shipowner's limitation of liability is not based on tonnage, but on the value of the ship after the loss. See Norwich Co. v. Wright 80 U.S. 104 at p. 120 (1871) and The City of Norwich (Place v. Norwich & New York Transportation Co.) 118 U.S. 468 at p. 493 (1886).

[92] U.K. 1971, c. 19 at sect. 6(4), as amended by the Merchant Shipping Act 1995, U.K. 1995, c. 21, sect. 314(3) and Sch. 13, para. 45(4).

[93] See Wilson, Carriage of Goods by Sea, 2 Ed., 1993 at p. 265, who observes that in the past carriers have preferred to rely on the Fire Statute rather than on the fire exception and are even more likely to do so in the future owing to the shift to the cargo owner, since 1979, of the burden of proof with respect to the carrier's personal act or omission barring limitation. See also to the same effect, R.S. Chorley, Chorley & Giles' Shipping Law, 8 Ed., Pitman Publishing, London, 1988 at p. 205. See also Scrutton on Charterparties and Bills of Lading, 20 Ed., 1996, art. 116 at p. 236, stating that (because of the Merchant Shipping Act 1995, sect. 186), the fire exception under the Rules is not generally necessary to protect the owner, charterer, manager or operator of a U.K. ship, except perhaps where the fire does not occur on board.

[94] U.K. 1971, c. 19.

[95] Merchant Shipping Act 1995, U.K. 1995, c. 21, sect. 186(1). See also sects. 1(3) and 313(1).Her Majesty's ships are also covered the Fire Statute, under sect. 186(4).

[96] Hague/Visby Rules, art. 1(d); Scrutton on Charterparties and Bills of Lading, 20 Ed., 1996 at p. 444; Wilson, Carriage of Goods by Sea, 2 Ed., 1993 at p. 265.

[97] Merchant Shipping Act 1995, sect. 186(1) and (5).

[98] Wilson, Carriage of Goods by Sea, 2 Ed., 1993 at p. 265.

[99] Ibid., sect. 186(1)(a). In consequence, fire on a public lighter bringing goods to a ship was held not covered by the Fire Statute (see Morewood v Pollok (1853) 1 E. & B. 743, 118 E.R. 614). See also Scrutton on Charterparties and Bills of Lading, 20 Ed., 1996, art. 116 at p. 235, note 32.

[100] Wilson, Carriage of Goods by Sea, 2 Ed., 1993 at p. 265.

[101] Ibid., sect. 186(3), referring to art. 4 of the Limitation Convention 1976, incorporated as Schedule 7, Part I of the Merchant Shipping Act 1995.

[102] See The Apostolis [1996] 1 Lloyd's Rep. 475 at p. 483, reversed on other grounds [1997] 2 Lloyd's Rep. 241 (C.A.); Scrutton on Charterparties and Bills of Lading, 20 Ed., 1996, at p. 444, imposing the burden of proof of "actual fault or privity" under art. 4(2)(b) of Hague/Visby on the shipper. Re the burden of proof under art. 4 of the Limitation Convention 1976, incorporated by reference into the Fire Statute (Merchant Shipping Act 1995, sect. 186(3)), see Patrick Griggs & Richard Williams, supra, note 47, Robert Grime, supra, note 47, and Hill, Maritime Law, 5 Ed., 1998 at p. 402; The Bowbelle [1990] 1 Lloyd's Rep. 532 at p. 535.

[103] Scrutton on Charterparties and Bills of Lading, 20 Ed., 1996, at p. 421, note 62. See also art. 116 at p. 235 and p. 444, stating that the Fire Statute may be invoked even where the fire was caused by unseaworthiness.

[104] Maxine Footwear Co. Ltd. v. Can. Government Merchant Marine Ltd. [1959] A.C. 589 at pp. 602-603, [1959] 2 Lloyd's Rep. 105 at p. 113 (P.C.) and other decisions cited supra.

[105] 603 F.2d 1327 at pp. 1335-1336, 1979 AMC 2787 (9 Cir. 1979), cert. denied 444 U.S. 1012, 1980 AMC 2102 (1980).

[106] Ibid., 603 F.2d at p. 1341, 1979 AMC at p. 2807.

[107] 705 F.2d 339 at p. 341, 1983 AMC 1841 at pp. 1842-1843 (9 Cir. 1983).

[108] 903 F.2d 675 at p. 686, 1990 AMC 1544 at pp. 1560-1561 (9 Cir. 1990). In Damodar, however, there was insufficient proof that any unseaworthy condition had caused the damage, so that the owner did not have to prove its due diligence. See ibid., F. 2d at pp. 686-687, AMC at pp. 1557-1560 and 1562.

[109] 93 F.3d 641 at pp. 645-646, 1996 AMC 2409 at p. 2413 (9 Cir. 1996). See also John Deere Ins. Co. v. Fireman's Fund American Ins. Cos. 2001 AMC 1076 at p. 1080 (W.D. Wash. 2000).

[110] Ibid., F.3d at p. 646, AMC at p. 2414, holding: "While the carrier's duty of due diligence is non-delegable for exoneration under the non-fire COGSA exemptions, a different standard of due diligence, one derived from the Fire Statute, governs fire cases and eliminates vicarious liability imputed to the carrier. Under the fire defenses, a carrier is liable only for "his personal negligence, or in case of a corporate owner, negligence of its managing officers and agents as distinguished from that of the master or subordinates." The Court cited, as precedents on this point, Consumers Import Co. v. Kabushiki Kaisha Kawasaki Zosenjo 320 U.S. 249 at p. 252, 1943 AMC 1209 at p. 1211 (1943), as well as Earle & Stoddart v. Ellerman's Wilson Line 287 U.S. 420 at p. 427, 1933 AMC 1 at p. 4 (1932), where the U.S. Supreme Court held: "The courts have been careful not to thwart the purpose of the fire statute by interpreting as 'neglect' of the owners the breach of what in other connections is held to be a non-delegable duty." In Hasbro Industries, Inc. v. M.S. St. Constantine 705 F.2d 339, 1983 AMC 1841 (9 Cir. 1983), cert. denied sub nom Hasbro Industries, Inc. v. A/S Garonne-Glittre 464 U.S. 1013, 1984 AMC 2403 (1983), the Court found that the due diligence obligation in respect of fire-related seaworthiness was "personal" to the shipowner but not to the time charterer.

[111] The Court concluded (F. 3d at p. 647, AMC at p. 2416) that the vessel had been inspected regularly and tested in accordance with the requirements of its classification society, and that the defective coupling (which had functioned without leaking for months prior to the fire) was hidden from even a trained eye.The shipowner had therefore done "all that was 'proper and reasonable' to make the vessel seaworthy" (F.3d at p. 647, AMC at p. 2415) and consequently was therefore exculpated for this "excusable" condition of unseaworthiness." (F.3d at p. 647, AMC at p. 2416).

[112] Ibid., F.3d at p. 646, AMC at pp. 2414-2415, citing Hasbro Indus. v. M/S St. Constantine 705 F.2d 339 at p. 342, 1983 AMC 1841 at p. 1844 (9 Cir. 1983), cert. denied sub nom Hasbro Industries, Inc. v. A/S Garonne-Glittre 464 U.S. 1013, 1984 AMC 2403 (1983), where it was held that the negligence of the "shipowner's supervisory or managing employees" was sufficient to find personal negligence; and Sunkist Growers v. Adelaide Shipping Lines 603 F.2d 1327 at p. 1336, 1979 AMC 2787 at p. 2799 (9 Cir. 1979), cert. denied 444 U.S. 1012, 1980 AMC 2102 (1980), stating that: "'neglect of the owner'" under the Fire Statute refers to "'the neglect of the managing officers and agents as distinguished from that of the master or other members of the crew'") (quoting Albina Engine & Machine Works v. Hershey Chocolate Corp. 295 F.2d 619 at p. 621,1961 AMC 2215 at p. 2220 (9 Cir. 1961)). See also In re Liberty Shipping Co., 509 F.2d 1249 at p. 1252 (9 Cir. 1975). See also T. Schoenbaum, Admiralty and Maritime Law, 3 Ed., West Group, St. Paul, Minn., 2001, vol. 2 at p. 133 (hereafter cited as "Schoenbaum, Admiralty and Maritime Law, 3 Ed., 2001, vol. 2").

[113] See, for example, Complaint of Damodar Bulk Carriers, Ltd. 903 F.2d 675 at pp. 686-687, 1990 AMC 1544 at pp. 1557-1560 and 1562 (9 Cir. 1990), where cargo failed to discharge that initial burden of proof, as it also did in John Deere Ins. Co. v. Fireman's Fund American Ins. Cos. 2001 AMC 1076 (W.D. Wash. 2000).

[114] See Joseph P. Tabrisky, "COGSA and the Fire Statute: Vessel Owner Bears the Burden of Proving that It Personally Exercised Due Diligence to Make Its Ship Seaworthy To Escape Liability for a Fire Caused by an Unseaworthy Condition" (1997) 28 JMLC 359 at p. 367: "Essentially, the carrier, not the cargo owner, must prove that the loss was not "caused by the design or neglect of such owner," and therefore it is entitled to exoneration under the Fire Statute and COGSA fire defense."

[115] As previously held in Complaint of Damodar Bulk Carriers, Ltd. 903 F.2d675 at p. 686, 1990 AMC 1544 at pp. 1560-1561 and 1562 (9 Cir. 1990).

[116] 677 F.2d 225 at p. 228, 1982 AMC 1710 at p. 1713 (2 Cir. 1982): "'If the carrier shows that the damage was caused by fire, the shipper must prove that the carrier's negligence caused' the fire or prevented its extinguishment.") (citing Asbestos Corp. v. Cyprien Fabre 480 F.2d 669 at p. 673, 1973 AMC 1683 at p. 1687 (2 Cir. 1973)). See also Akropan Shipping Lim. Procs. 1993 AMC 418 at p. 433 (S.D. N.Y. 1992). See also Geoffrey W. Crawford, "The Fire Statute: Burden of Proving the Shipowner's Design or Neglect is on the Cargo Interests" (1983) 14 JMLC 118. See in general Walter M. Williams Jr., "The American Maritime Law of Fire Damage to Cargo" (1985) 26 Wm. & Mary L. Rev. 569.

[117] 734 F. 2d 199, 1985 AMC 247 (5 Cir. 1984).

[118] Ibid., F.2d at p. 206, AMC at p. 256: "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. 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." See also Schoenbaum, 3 Ed., 2001, vol. 2 at pp[. 133-134.

[119] Asbestos Corp. v. Cyprien Fabre 480 F.2d 669 at p. 573, 1973 AMC 1683 at p. 1687 (2 Cir. 1973). See also Thyssen Steel Caribbean, Inc. v. Palma Armadora S.A. 1984 AMC 1133 at p. 1139 (2 Cir. 1984), aff'd without opinion, 742 F.2d 1441 (2 Cir. 1984).

[120] Ibid., 734 F.2d at pp. 206-207, 1985 AMC at p. 256, citing Stoddart, Inc. v. Ellerman's Wilson Line, Ltd. 287 U.S. 420 at pp. 424-25, 1933 AMC 1 at p. 5 (1932); Alfa Romeo, Inc. v. SS Torinita 499 F. Supp. 1272 at p. 1282, 1980 AMC 2138 at p. 2149 (S.D. N.Y. 1980), aff'd 659 F.2d 1057, 1982 AMC 598, (2 Cir. 1981); Complaint of Caldas 350 F. Supp. 566, 1973 AMC 1243 (E.D. Pa. 1972), aff'd 485 F.2d 680 (3 Cir. 1973).

[121] Ibid., 734 F.2d at p. 207, 1985 AMC at p. 257.

[122] 287 U.S. 420, 1933 AMC 1 (1932), a Harter Act decision where the principle should be the same as under COGSA.

[123] 46 U.S. Code Appx. 183.

[124] Joel M. Bassoff, "Fire Losses and the Statutory Fire Exceptions" (1980-81) 12 JMLC 507 at p. 515 et seq.

[125] 68 F.3d 418 at p. 421, 1996 AMC 260 at p. 264 (11 Cir. 1995), citing Bonner v. City of Prichard 661 F.2d 1206 at p. 1209 (11th Cir.1981) (en banc) and Fidelity-Phenix Fire Ins. Co. v. Flota Mercante Del Estado 205 F.2d 886 at p. 887, 1953 AMC 1348 at p. 1350 (5 Cir. 1953), cert. denied, 346 U.S. 915 (1953).

[126] 745 F.2d 715 at pp. 719-720 and 723, 1985 AMC 1594 at pp. 1600-1602 and 1605-1606 (1 Cir. 1984).

[127] See Tetley, Marine Cargo Claims, 3 Ed., 1988, Chap. 23: "Art. 4(2)(q) — Any Other Cause Without Fault".

[128] See Terry Marquez, "The Ninth Circuit Fails to Mend the Inter-Circuit Split Regarding the Burden of Proof in Fire Statute Cases: Nissan Fire & Marine Insurance Co. v. M/V Hyundai Explorer" (1997) 21 Tul. Mar. L.J. 629 at pp. 640-641. See also Sandra A. Larkin, "The Allocation of the Burden of Proof Under the Fire Statute and the Fire Exception of the Carriage of Goods by Sea Act" (1996) 20 Tul. Mar. L.J. 403 at p. 421; Andrew C. Tsunis, "The Fire Defense: To Prove or Not to Prove, Due Diligence" (1997) 21 Tul. Mar. L.J. 489 at p. 492.

[129] Venice Maru 320 U.S. 249,1943 AMC 1209 (1943). See also Schoenbaum, Admiralty and Maritime Law, 3 Ed., 2001, vol. 2 at p. 132 .

[130] See Hasbro Industries v. St. Constantine 705 F.2d 339, 1983 AMC 1841 (9 Cir. 1983), cert. denied sub nom Hasbro Industries, Inc. v. A/S Garonne-Glittre 464 U.S. 1013, 1984 AMC 2403 (1983); in first instance, 1981 AMC 2255 and 1980 AMC 1425 (D. Hai, 1981 & 1980). The shipowner was held to have failed to make the vessel seaworthy under the U.S. Fire Statute and COGSA at sect. 4(2b), which were erroneously deemed identical. The time charterer's duty was deemed separable and it was held to have no duty in respect to the fire fighting competence of the crew. This decision illustrates once again the incongruities which may arise under the archaic Fire Statute and the Hague Rules art. 4(2)(b).

[131] Earle & Stoddart, Inc. v. Ellerman's Wilson Line, Ltd. 287 U.S. 420, 1933 AMC 1 (1932). This is a Harter Act case, but the principle should be the same under COGSA. See also Westinghouse Electric Corp. v. M/V Leslie Lykes 734 F.2d 199, 1985 AMC 247 (5 Cir. 1984), cert. denied, 469 U.S. 1077, 1985 AMC 2400 (1984).

[132] See Sunkist Growers v. Adelaide Shipping Lines 603 F.2d 1327, 1979 AMC 2787 (9 Cir. 1979), cert. denied 444 U.S. 1012, 1980 AMC 2102 (1980); Hasbro Industries v. St. Constantine 705 F.2d 339, 1983 AMC 1841 (9 Cir. 1983), cert. denied sub nom Hasbro Industries, Inc. v. A/S Garonne-Glittre 464 U.S. 1013, 1984 AMC 2403 (1983); and Nissan Fire and Marine Ins. Co. v. M/V Hyundai Explorer 93 F.3d 641, 1996 AMC 2409 (9 Cir. 1996) and the discussion of the controversy in this article, supra, under the heading "The Conflict in the U.S. Courts".

[133] Westinghouse Electric Corp. v. M/V Leslie Lykes 734 F.2d 199 at p. 207, 1985 AMC 247 at p. 256 (5 Cir. 1984), cert. denied, 469 U.S. 1077, 1985 AMC 2400 (1984).

[134] See Tetley, Marine Cargo Claims, 3 Ed., 1988, Chap. 11: "Loss while in Charge of the Carrier"; Amer. Tobacco Co. v. S.S. Katingo Hadjipatera 194 F.2d 449, 1951 AMC 1933 (2 Cir. 1951).

[135] As indicated supra, in the Ninth Circuit, the shipowner and demise charterer (and presumably the time and voyage charterer as well) must also prove their personal due diligence to make the ship seaworthy (and that of their managing officers and agents) in order to invoke the COGSA fire exemption and the U.S. Fire Statute.

[136] Westinghouse Electric Corp. v. M/V Leslie Lykes 734 F.2d 199 at p. 206, 1985 AMC 247 at p. 256, cert. denied, 469 U.S. 1077, 1985 AMC 2400 (1984).

[137] Complaint of Caldas, 350 F. Supp. 566 at p. 573, 1973 AMC 1243 at pp. 1252 (E.D. Pa. 1972), aff'd 485 F.2d 680 (3 Cir. 1973), where the Court held that the carrier can be liable under the Fire Statute >of the negligence can be personally attributed to the owner or to agents with broad responsibility in the corporate organization .... " (Emphasis added.) See also Nissan Fire & Marine Ins. Co. v. M/V Hyundai Explorer 93 F.3d 641 at p. 646, 1996 AMC 2409 at p. 2414 (9 Cir. 1996) and authorities cited there.

[138] Westinghouse Electric Corp. v. M/V Leslie Lykes supra.

[139] (1786) 26 Geo. 3, c. 86, sect. 2. The modern provision is sect. 186 of the Merchant Shipping Act 1995, U.K. 1995, c. 21, which replaced the Merchant Shipping Act 1979, U.K. 1979, c. 39, sect. 18, which in turn had replaced the Merchant Shipping Act 1894, 57 & 58 Vict., c. 60, sect. 502.

[140] Act of March 3, 1851, c. 43, sect. 1; 9 Stat. 635; 46 U.S. Code Appx. 182.

[141] The Canadian Fire Statute (formerly sect. 7 of the Canada Shipping Act, 1927, c. 207, R.S.C., c. 113, sect. 964) was repealed by the 13th schedule of the Canada Shipping Act, 1934, c. 44 and not re-enacted by the Water Carriage of Goods Act, 1936, S.C. 1936, c. 49 at sect. 8. See also Dominion Glass v. The Anglo-Indian [1944] S.C.R. 409 at p. 432, 1944 AMC 1407 at p. 1430.

[142] See former sect. 18(3) of the Merchant Shipping Act 1979, U.K. 1979, c. 39, sect. 18(3), now found in the Merchant Shipping Act 1995, U.K. 1995, c. 21, sect. 186(3).

[143] Law of April 2, 1936 (Loi sur les transports maritimes des marchandises), J.O. April 11, 1936, D.P. 1937.4.1, DMF 1936, 283.

[144] Cour d'Appel de Paris, November 23, 1962, DMF 1963, 544.

[145] Law No. 66-420 of June 18, 1966 (Loi sur les contrats d'affrètement et de transport maritimes), J.O. June 24, 1966, p. 5206.

[146] See, for example, Cour d'Appel de Paris, March 2, 1993, DMF 1993, 416 (summ.), where the owner and operator of a vessel were held jointly liable for the fire loss of a cargo of bagged barley, where the fire was found to have been caused by the decrepit condition of the thirty-year-old ship, as well as by the "(translation): inertia of the crew in elementary fire-fighting measures". For a similar decision respecting a fire on a chartered vessel, see Chambre Arbitrale Maritime de Paris, sentence no. 766 of March 30, 1990, DMF 1991, 47.

[147] R. Rodière, Traité Général de droit maritime, Affrètements et Transports, tome 2, Dalloz, Paris, 1968, para. 629; Cour d'Appel de Paris, March 9, 1977, DMF 1978, 14; R. Rodière & E. du Pontavice, Droit maritime, 12 Ed., Dalloz, Paris 1997, para. 371; M. Rèmond-Gouilloud, Droit maritime, 2 Ed., Éditions A. Pedone, Paris, 1993, para. 584.

[148] Tribunal de Commerce de Marseille, August 22, 1972, DMF 1973, 228. See also Cour d'Appel d'Aix, October 25, 1972, DMF 1973, 469; Cour d'Appel de Paris, November 24, 1972, DMF 1973, 522; Cour d'Appel d'Aix, December 13, 1972, DMF 1973, 530.

[149] Scrutton on Charterparties and Bills of Lading, 20 Ed., 1996, art. 116 at p. 236.

[150] Re Liberty Shipping Corp. 509 F.2d 1249 at p. 1250 (9 Cir. 1975).