Saturday, 8 July 2017

LIABILITY.

The following is an extract from 'Aspects of Maritime Law' pertaining to the era of the Waratah:

It is incumbent upon every ship-owner to provide a seaworthy vessel, equipped with adequate means of fighting fire on board. The standard is whether it is reasonable for a ship-owner to provide certain apparatus to meet the contingency of fire. What is reasonable is what is required in light of all the circumstances. This court has no interest in imposing an unreasonable or higher standard than required upon the ship-owner. Minimal foresight, however, dictates that the engine room is a highly volatile compartment of a ship and the possibility of fire breaking out is ever present. A ship-owner must anticipate and provide for the contingency a fire may break out in the engine room disabling all fire fighting equipment in the engine room. Owners, in this case, would be held negligent in placing all fire-fighting equipment inside the engine room and failing to provide an emergency pump or fire system located or controlled from outside the engine room. This negligence on the part of ship-owners displays a total disregard for minimal protection of cargo and lives, and to properly man and equip a trained crew prior to the commencement of the voyage.

Conclusion:

The failure to fulfill the non-delegable duty to use due diligence to furnish a seaworthy ship does not render the owners responsible. However, if the ship is unseaworthy due to lack of due diligence and that unseaworthiness was due to 'design or neglect' and 'privity or knowledge' of the owners, the owners are therefore not exempt from liability under the fire exception or the Fire Statute.

If a fire was proven to have been the cause of what the crew of the Harlow witnessed, the issues of stability and negative witness accounts would have taken on a new meaning in the context of liability.

The following are extracts from the Inquiry referring to the fire on board Waratah during her maiden voyage:

"6th December, 1908, 5 a.m. Reported by second engineer smoke issuing from hatch of bunker on lower deck, alongside boiler casing and extending into engine room as far as the store rooms. All bunker doors shut and coal worked only from starboard bunker where on fire. Hose put on to same from deck, and holes cut in two places in engine-room, and hose put into same, pumps kept on, and at 11.30 a.m. smoke greatly reduced." 

"2 p.m. Found large piece of burning coal back of casing over boilers. Played water on same."

"7th December, 8 a.m. Hose still kept in readiness in bunker and played on coal at times, coal being worked out and found heated in wake of boiler."

Mr. Ryan, the former senior fourth engineer of the "Waratah," was examined as to the circumstances of the fire. He said that it was over the after set of boilers and near the engine-room, in the 'tween decks; that no coal was destroyed in putting out the fire, that the bulkhead over the engine-room was pretty warm,but that the bunker plates never got distorted. 

Captain Ilbery made no report of the fire to his owners, although he wrote twice from Adelaide

but in a letter of the 15th December, 1908, written from Adelaide by the chief engineer to the superintending engineer is the following paragraph:

"On Sunday, December 6th, a small fire started in the after lower bunker. We found smoke at 5 a.m. and we cut a hole in the engine-room and practically put it out at 11 a.m. The fire was caused by the heat from the several reducing valves and steam valves in the recess on the starboard side of the engine-room.The roof is insulated, but at the back of the reducing valves for steering engine and starboard side of the engine-room is not. As it will only be a small job, it would be advisable to have it done here."


I believe that there would have been a strong case for negligence on the part of the owners if the Waratah did in fact attempt to return to Durban due to a fire on board. The fire during the maiden voyage was revealing in a number of aspects. 

1. The partition aft of the reducing valves for steering engine and starboard side of the engine room was NOT insulated against heat from the reducing and steam valves. This location was CLEARLY vulnerable to excessive heat production and the lack of insulation suggests inadequacies in the construction of the Waratah.

2. The bulkhead over the engine room was 'pretty warm', but the 'bunker plates never got distorted'. These almost polite words (pretty warm) allude to a serious problem which could have escalated to catastrophic proportions. An attempt was made to play it down but there is no doubt in my mind that a fire could have progressed out of control in this section of the Waratah.

3. A large piece of burning coal found on the back of casing over boilers, illustrates how serious the situation was - boiler explosion. It also illustrates the proximity of burning coal to vulnerable, heated components of the engine system. The manner in which it was described suggests making the discovery by accident rather than diligent monitoring of the crisis. 

4. Heated coal in the wake of boilers suggests that insulation was deficient in this vital, vulnerable area. It also implies a possible design flaw bringing flammable coal into close proximity with boilers.

5. Repairs were referred to as a 'small job', implying that they were localised to the direct area aft of the reducing and steam valves, but did not deal with the wake effect of boilers on coal or other vulnerable areas where bunker plates might have become 'distorted'.

6.  I do not believe for one moment that Captain Ilbery did not write about this incident to the owners. What proof was there that he DID NOT write to the owners about this? By making this claim, the owners distanced themselves from allegations of 'responsibility' - an obligation to attend to all vulnerable areas of heat insulation relating to the engine room and coal stowage. The Court had in their possession a letter, outlining the problem, written by the chief engineer to the superintending engineer, 15 December, 1908, but failed to follow-up on this during cross-examination in terms of the owners denying knowledge of the problem.

These points hark back to:

However, if the ship is unseaworthy due to lack of due diligence and that unseaworthiness was due to 'design or neglect' and 'privity or knowledge' of the owners, the owners are therefore not exempt from liability under the fire exception or the Fire Statute.

The builders and owners were responsible for the deficiencies in insulation - an obvious area of 'neglect' in the construction of the Waratah, further compounded by Lloyd's surveyor approvals, complicating allegations and implications.

Diligence implies comprehensive attention to all areas of insufficient heat insulation (on the Waratah's return from her maiden voyage) and providing documentary proof of such repairs to the Court. 

The owners did have knowledge of the problem, indirectly via their chief superintending engineer well before the Waratah's return from her maiden voyage, but tried to deflect this by claiming that Captain Ilbery had not informed them directly of the problem. If they had made suitable general repairs, I have no doubt they would have submitted proof of this to the Court. I therefore assume repairs were not carried out.

The issue of deficiencies in adequate heat insulation and fire protection were further compounded by the Waratah's unique dual purpose collapsible partitions (weather board which is flammable) depending on whether emigrants were on board or not.

I believe the Lunds were terrified a similar fire had broken out, this time progressing and spreading across partitions which were NOT insulated. There is high probability a fire broke out after departing Durban, this time progressing out of control by late 27 July. Therefore, the Lunds could not afford any form of validation of the Harlow account. There was only one outcome acceptable to them: the Waratah had to have foundered due to perils of the sea in a 'storm of exceptional violence'.











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