Fiddler Enterprises Ltd. v. Allied Shipbuilders Ltd.

Fiddler Enterprises Ltd. v. Allied Shipbuilders Ltd.
Court (s) Database
Federal Court Decisions
Date
2003-04-17
Neutral citation
2003 FCT 463
File numbers
T-842-99
Decision Content
Date: 20030417
Docket: T-842-99
Neutral citation: 2003 FCT 463
Ottawa, Ontario, this 17th day of April, 2003
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
FIDDLER ENTERPRISES LTD.,
DRAGON FISHING LTD.,
FIDDLER BUILDING LTD.,
DAVID NORMAN FIDDLER,
JAMES DONALD FIDDLER
and
MARK STEPHEN
Plaintiffs
and
ALLIED SHIPBUILDERS LTD.
Defendant
REASONS FOR ORDER AND ORDER
HENEGHAN J.
INTRODUCTION
[1] On September 22, 1997, a fire occurred on board the fishing vessel "KNIGHT DRAGON" while she was en route from the fishing grounds off San Juan Island to Port Angeles, Washington, United States of America. The primary issue arising in this litigation is the cause of the fire.
THE PARTIES
[2] Fiddler Enterprises Ltd., Dragon Fishing Ltd., and Fiddler Building Ltd. are incorporated under British Columbia law. The three corporate defendants are the owners of the fishing vessel "KNIGHT DRAGON" and operate the vessel as a joint venture for the purpose of catching fish.
[3] Mr. James Fiddler is a qualified fishing master and has been going to sea since the early 1970s. At all material times he was the principal of Dragon Fishing Ltd. At various times, he has served as master, engineer, and deck hand on board the F.V. "KNIGHT DRAGON", as well as on other vessels. On the date of the fire, he was working as a deck hand and member of the fishing crew.
[4] Mr. Mark Stephen is also a mariner. He is not a shareholder of any of the corporate plaintiffs. He is related by marriage to Mr. James Fiddler. He has been a crew member, acting as an engineer, on board the F.V. "KNIGHT DRAGON" since September 1995.
[5] Mr. David Fiddler, James Fiddler's brother, is a commercial fisherman and at all material times was the principal of Fiddler Enterprises Ltd. He has a Fishing Master III licence and basically acts as the master on the "KNIGHT DRAGON" while on board.
[6] Allied Shipbuilders Ltd. is a body corporate incorporated under the laws of British Columbia. It carries on the business of a shipyard and ship repair facility. The Defendant has been in existence for more than fifty years. Its premises are located at 1870 Harbour Rd., North Vancouver, British Colombia. There has been a long relationship between the Defendant and members of the Fiddler family, and the Defendant shipyard provided work and services on other vessels operated by members of the Fiddler family.
BACKGROUND
I) The layout and parts of the Fishing Vessel "KNIGHT DRAGON"
[7] The fishing vessel "KNIGHT DRAGON" was built in Pictou, Nova Scotia in 1980 by Ferguson Shipbuilders Limited. The vessel is of steel construction, with three decks. The engine room is located on the lowest deck. The accommodation or main deck, with cabin for the crew, galley and mess, and work area is the second deck. The top deck contains the wheelhouse and master's cabin which is slightly lower than the wheelhouse and accessible by a short companionway.
[8] The net drum for the fishing activity is located on the top deck, as well as certain equipment including a sonar used in certain fishing operations. A funnel cap sits on top of the wheelhouse. The wheelhouse deck is steel and slopes slightly to the aft. The floor of the funnel is part of the wheelhouse deck and is also made of steel, with a slight lip along its outer edge. The floor of the funnel also has a slight slope.
[9] The engine room is equipped with a main engine that has two turbo charges, a port auxiliary engine, a starboard auxiliary engine and an Isusu auxiliary generator. The main engine and the port and starboard auxiliary engines are common diesel engines. The Isusu is a general use engine which is diesel fed.
[10] The port and starboard fuel tanks have stand pipes located in the engine room. These pipes are used to measure the quantity of fuel in the tanks. They have a valve and a screw cap on tight, but neither is air or fluid tight.
[11] The vent pipes for the port and starboard tanks rise through the vessel and exit on the wheelhouse deck, on the port and starboard sides. These vent pipes end in a goose-neck which contains a ball, a screen and a gag. According to the evidence, the ball sits on the screen unless force, like a wave, pushes it against the opening. It acts as a barrier to prevent water from entering the pipe; it does not fit in the pipe itself.
[12] Two exhaust pipes rise from the main engine, and an exhaust pipe from each of the three auxiliary engines. The exhaust pipes are attached to silencers, or mufflers, which rise through the engine room casing and funnel, and exit on the upper deck.
[13] The engine room casing is a trunk-like structure that runs from the ceiling of the engine room up through the interior of the ship to the floor of the funnel. The funnel sits on the highest deck, on the top deck of the ship. The exhaust casing houses the exhaust pipes running from the engine room.
[14] The exhaust casing begins where the exhaust pipes exit the engine room. Its walls, on the main deck level, are made of steel with the exception of an aluminium panel which provided access to the casing. The outer walls of the exhaust casing were covered with arborite that was attached to vertical wooden studs affixed to the casing wall itself. Insulation blankets were attached to the steel walls of the exhaust casing. The walls of the casing at the wheelhouse level were made of aluminium and were not insulated.
[15] The silencers, sometimes also called "mufflers", which are at issue in this action are those attached to the exhaust pipes rising from the main engine and the port auxiliary engine. The silencers are attached to the exhaust pipes by means of gaskets and flanges. The lower end of the silencers are attached to raised-face flanges, in other words, there was a raised lip around the outside circumference of the opening to accommodate the top of the exhaust pipes rising from the main engine. The raised flange is characterized by grooves along the top of that inner surface similar to the grooves in a record.
[16] A gasket is then placed on top of the raised-face flange. Then a flat-faced flange is attached to the bottom end of the silencer and the two flanges and gasket are joined together by nuts and bolts. At its upper end, the silencer is fitted with a flat-faced flange and another gasket is installed. The top end of each muffler is then attached to the lower end of a pipe which rises to an inverted "y" to exit through a single pipe, rising through the top of the funnel and emerging on the outside of the funnel cap, where it is fitted to a short end of pipe, called a stub pipe. A round piece of metal, colloquially known as a "rain hat", is fitted around the pipe and the pipe then rises a further distance to discharge exhaust.
[17] The top ends of the silencers are joined to pipes of the inverted "y" by a system of flanges and gaskets although the arrangement differs from the arrangement at the lower ends of the silencers. At the top side, the silencers are fitted with a flat-faced flange and a gasket, and this is attached to the lower end of the pipes, each of which is connected with a raised-face flange. Again, the flanges and gaskets are connected by nuts and bolts. The positioning of the gasket against the raised-face flange is critical.
[18] The contact between the gasket and the raised face of the flange forms a seal, and it is the inner circumference of the gasket which is of utmost importance. The outer circumference of the gasket serves to identify the bolt holes for easy placement of the bolts but otherwise, the outer circumference does not contribute to the sealing process which is required to contain the exhaust gases within the mufflers and exhaust pipes.
[19] The wrappers are insulating blankets. They are designed to keep heat generated from the exhaust gases from entering the exhaust casing. In this case, the barrels of the exhaust silencers were wrapped with one silencer. The flanges, on top and bottom, were individually wrapped with silencers. The inverted "y" and pipe leading to the exterior of the funnel were also wrapped with the insulating material.
[20] The wrappers used on the ship were supplied and installed by Alexander Installations. The silencers were wrapped around the exhaust pipes and flanges, and drawn tight by laces that run through the top and bottom.
[21] The mufflers are wrapped in a fire retardant wrapper known as a "blanket". This covering consists of an outer silvery material which is designed to suppress fire; and interior of off -white padded material covered with a fine stainless steel mesh. The constituent parts of the blanket are stapled together. There are hooks to hold lacings and the blanket is attached to the muffler and the flanges, by being tightly laced. The purpose of these wrappers is to further contain exhaust gases within a confined area.
[22] There are various pictures and diagrams showing the location of the day tank in the engine room. Its arrangement is not in dispute and the parties agree that the diagram prepared by Mr. Brox, shown at Exhibit D-33, figure 19, is correct.
[23] The day tank is located forward in the engine room. The day tank valves, that is the return valves of fuel to the port and starboard tank, are located above it. The return line carries unburned fuel back to the fuel line. The valves are closed when the levers are perpendicular to the return line. They are open when the levers are parallel to the line. When both valves are closed, fuel will rise up through the day tank vent line. At the time of the fire and unknown to the Plaintiffs, the day tank vent line terminated in the funnel, not outside the funnel.
ii) The 1995 and 1997 repairs by Allied
[24] In the spring of 1995, James Fiddler, Mark Stephen and David Fiddler noticed dirty smoke exiting the exhaust vent in the funnel cap. They could also smell diesel fumes. On the basis of these observations, they suspected there was a leak from the exhaust system in the engine room.
[25] During the months of June and July 1995, the Defendant completed a refit of the "KNIGHT DRAGON" (the "refit contract"). The Defendant, at the request of the Plaintiffs, installed a new main engine on the vessel. Installation of the main engine required the installation of new silencers. The old engine, which was originally fitted into the vessel upon her construction in 1980, was serviced by one silencer. When the main engine was replaced, the original silencer was found to be too greatly deteriorated for any future use and required a replacement. Since the new main engine had two turbo chargers, it required two exhaust pipes and two mufflers.
[26] The insulation blankets on the lower level of the exhaust casing were very dirty in 1995. Jim Fiddler and another crew member washed the exhaust casing in 1995 using soapy water and rags . This work was done by the crew, rather than by employees of Allied, because it was less expensive.
[27] The Plaintiffs testified that the exhaust casing was a little dirtier in 1997 than it had been in 1995. The exhaust casing was cleaned again in 1997 and the Plaintiffs said that by September 1997 it was not much dirtier than it had been in 1995.
[28] The Defendant subcontracted with Alexander Installations Inc., for the fabrication and installation of new blankets for the main engine and new auxiliary engine exhaust piping and also for the repair of fibreglass insulation on the interior of the exhaust casing.
[29] James Fiddler testified that Jim McLaren, a principal of the Defendant, and the person in charge of design at the shipyard, designed the new exhaust and muffler system. The Plaintiffs wanted top-grade mufflers, which would provide the greatest reduction of noise, otherwise known as "critical care" silencers. James Fiddler testified that he relied on Mr. McLaren to design an adequate and appropriate system, and that he discussed the need for flexibility in that system to accommodate expansion and contraction of the exhaust pipe in response to changes in temperature.
[30] In July 1997, the Plaintiffs returned the "KNIGHT DRAGON" to the Defendant's shipyard for inspection and repair of its main engine exhaust system (the "1997 repairs"). The crew noticed exhaust gas exiting the vent at the back of the funnel, rather than the exhaust pipe, similar to the situation in 1995.
[31] After inspection by the Defendant in July 1997, the silencers for the main engine exhaust were found to be cracked on the ends. These were repaired and the silencers which were reinstalled in the "KNIGHT DRAGON" in 1997 are still in operation on the vessel. In addition to the reinstallation and modification of the main engine exhaust casing and silencers, the 1997 repairs also involved operational trials by the Defendant of the main engine and performance checks of the main engine exhaust system.
[32] The silencers were repaired in July 1997 and were subject to air pressure tests to ensure that they were air tight before work was finished. The evidence is that air pressure of about 20 pounds per square inch (psi) was applied and the silencers were found to be airtight. Following completion of repairs to the exhaust system, conducted by the Defendant without charge as warranty work, the vessel departed on July 21, 1997. No problems were experiences with either the engine or exhaust systems from that date up to the fire.
iii) The fire on September 22, 1997
[33] On September 22, 1997, the "KNIGHT DRAGON" was at sea in the vicinity of San Juan Island, Washington, travelling to Port Angeles, with a load of fish to be sold there. At the time, Mr. David Fiddler was acting as Master. James Fiddler and James Brown were serving as deck hands. Mr. Mark Stephen was the Engineer. The crew had all participated in the fishing trip which had commenced on September 2, 1997. The fishing activity concluded around 1:00 p.m. on September 22. At this time, the main engine was in operation, operating at between 1,300 - 1,400 revolutions per hour. The Isusu auxiliary engine was also operating. That engine was engaged to cool the refrigerated sea water which was necessary to keep the catch chilled.
[34] The fire broke out at approximately 5:00 p.m. At that time, David Fiddler was resting in the Master's cabin. Mark Stephen was in the engine room. The whereabouts of James Brown are not clearly known. James Fiddler was on deck.
[35] According to Mark Stephen, he was in the engine room in the area of the bilge pump manifold, preparing to pump the bilges, after checking the main engine and checking around the engine room to see that all was in order. While standing by the bilge pump manifold he heard a loud noise. He described it as a loud "whomp" or "woof". He saw a fireball come down the engine room exhaust casing before it was swept up the casing. He yelled "fire" from the engine room.
[36] James Fiddler, who was in the wheelhouse, called to his brother Dave who was just rising from his bunk. David Fiddler told James to send out an emergency call. James Fiddler called Tofino Vessel Traffic and advised that a fire had broken out on board.
[37] Shortly afterwards, the Halon fire suppression system was activated in the engine room. The Halon gas filled the engine room and went into the exhaust casing. A hose was activated and water was sprayed into the exhaust casing. The fire broke through the aluminium access panel to the exhaust casing on the main deck level and flames spread to the arborite covering. Flames also spread to the walls of the Master's cabin.
[38] Flames travelled up the exhaust casing and came out the vent on the side of the funnel cap situated on the top deck of the vessel. A heat shimmer was also visible in the area of the vent. James Fiddler was still in the vicinity of the wheelhouse. Mark Stephen and Jim Brown also went there with a hose, to fight the flame in the wheelhouse and around the Master's cabin. When those flames were under control, a hose was brought round to Jim Brown so that he could extinguish the flames coming from the funnel vent.
[39] James Fiddler attempted to remove the aluminium hatch on the manhole at the top of the funnel cap. It was too hot to touch and he asked David Fiddler to bring him a pair of welder's gloves. David Fiddler brought the gloves and James Fiddler then manoeuvred the hose so that he could insert it into the grates of the vent. He did so and poured water down the exhaust casing.
[40] Polypropylene nets in the vicinity of the funnel cap also burned; that fire was extinguished with water. According to the evidence, the fire in the exhaust casing and in the interior spaces was extinguished after approximately eighty minutes of firefighting activity.
[41] While James Fiddler was in the wheelhouse and in answer to an inquiry from Mark Stephen, the main engine was shut down. The air compressor valves were also shut down.
[42] Damage on the "KNIGHT DRAGON", as documented by expert witness Ian Head, was sustained to the upper, aluminium section of the exhaust casing. He described this area as badly heat affected and buckled in the area of the bridge deck. The aluminum door to the exhaust casing from the accommodation deck below had melted, allowing fire damage to spread to the accommodation and wheelhouse areas.
[43] The accommodation deck spaces, the Master's cabin and the wheelhouse were generally badly smoke damaged and heat affected in certain areas. The electrical and navigational equipment sustained heat and water damage. Within the engine room, the Cummins main diesel engine had sustained damage by fire and burning debris falling down from the exhaust casing above. Specifically, there was fire damage to the aluminium air intake filters and casings, and the cylinder heads had been subjected to exposure of heat and flame.
iv) Events and inspection after the fire
[44] The vessel was towed to Port Angeles, arriving late on the night of September 22. A representative from Cummins Diesel Engine, the manufacturer of the main engine, attended at the vessel on September 23. As well, Mr. Jim Lindsay, a marine surveyor, attended on behalf of the vessel's insurer.
[45] The vessel unloaded her catch on September 24. Being without motor power, she was towed back to Steveston, British Columbia, on September 25. The vessel was out of commission, at least for fishing purposes, for several months. That forced inactivity gave rise to a claim for lost income, both on the part of the corporate Plaintiffs and three of the crew members, that is David Fiddler, James Fiddler and Mark Stephen.
[46] A number of people came to inspect the damage on the vessel following her return to Steveston. On October 1, 1997, Mr. Andy Bowman, a fire investigator, attended on behalf of the Plaintiffs. He carried out an inspection and subsequently prepared two reports. He testified as an expert witness at trial.
[47] On October 2, 1997, a number of people attended on board for the purpose of overseeing the removal of the aft main engine silencer and the port auxiliary silencer. A man named Bill, from Trites Marine, was engaged to unwrap the silencers. According to James Fiddler, he was engaged to provide an independent third party presence. Mr. Fiddler was present for this process, as was Mr. Lindsay and Mr. Steven Barber, an assistant pipe foreman for the Defendant.
[48] They unwrapped the flanges within the silencers and the silencers themselves. Vertical cracks were observed in some gaskets and Mr. James Fiddler inserted knives between the flanges, to demonstrate the failure of gaskets. Pictures were taken of the knives shown in Exhibit 2, pages 31 and 32.
[49] The forward main engine silencer was removed between October 10, 1997 and October 21, 1997.
[50] Mr. Ian Head, a marine engineer who worked for the Salvage Association of London in their Vancouver office, investigated the cause of the fire on behalf of the underwriters for the Defendant. On October 10, 1997, he went to the vessel to inspect the damage for himself. He went on board and met Mr. Jim Fiddler who gave him an account of the accident. He looked at the engine room and funnel of the pipes and looked at the damage. During his initial attendance on the vessel on October 10, 1997, Mr. Head took a series of photographs which are attached to his report, dated May 19, 1998.
[51] A fire expert, Mr. Wayne Brox, then investigated the vessel on October 21, 1997. In addition to Mr. Brox, Mr. Head, Mr. David Fiddler, Mr. James Fiddler, one of the McLaren brothers and a number of other people were also on board the vessel.
[52] On this date, that is, October 21, 1997, there was an accidental oil spill from the day tank. Mr. Head testified that he went to the engine room and saw fuel running down into the engine room, in the vicinity of the exhaust casing oil spill.
PLAINTIFFS' SUBMISSIONS
[53] The Plaintiff's frame their cause of action against the Defendant as breach of contract. The Plaintiffs claim that the fire resulted from the negligent or improper work carried out by the Defendant during the refit contract or the main engine exhaust repair contract, or both. Paragraphs 11, 13, 15 and 18 of the statement of claim are relevant and provide as follows:
11. During the months of June and July 1995 the Defendant completed a refit of the "KNIGHT DRAGON" at its North Vancouver shipyard for Fiddler Joint Venture (the "Refit Contract"), which included the installation of exhaust trunking and mufflers for the vessel's main engine. Such trunking and mufflers were improperly installed, as they were fitted in fixed positions without means of expansion.
13. In July 1997 Fiddler Joint Venture returned the "KNIGHT DRAGON" to the Defendant's shipyard for inspection and repair of its main engine exhaust system. Particulars of such repairs effected by the Defendant included:
(a) refitting or reinstallation and modification of main engine exhaust trunking and mufflers, as well as associated uptake supports and insulation; and
(b) operational trials of the main engine and performance checks of its exhaust system. (the "Main Engine Exhaust Repairs").
15. On or about 22 September 1997 the "KNIGHT DRAGON" was underway in the Strait of Juan de Fuca and proceeding from a fishery to Port Angeles, Washington when a fire in her engine uptakes occurred (the "Fire"). The Fire resulted from the negligent or improper work completed by the Defendant during the Refit Contract or the Main Engine Exhaust Repairs, or both, resulting in extensive damage to the main engine, its exhaust system, electrical and electronic equipment, wheelhouse and engine room of the "KNIGHT DRAGON". Personal effects, fitted equipment and fishing gear were also lost or damaged as a result of the Fire.
18. In addition, the Defendant negligently performed the Refit Contract and the Main Engine Repairs, resulting in the Fire and which occasioned loss and damage, including economic loss to the Plaintiffs. Particulars of such negligence include:
(a) a failure to properly design and install engine exhaust trunking and mufflers, and their associated support and insulation fittings;
(b) failing to properly inspect completed engine and exhaust system repairs;
(c) a failure to properly advise the Plaintiffs of the possible risks posed by exhaust gas escapement and deposits in the uptakes of the "KNIGHT DRAGON";
(d) fitting unsuitable exhaust trunking and associated equipment within the "KNIGHT DRAGON";
(e) the fitting of defective or unsuitable casketing material to the engine exhaust trunking of the "KNIGHT DRAGON"; and
(f) a failure to check the quality of repairs to the "KNIGHT DRAGON" through proper machinery and sea trials.
[54] The Plaintiffs argue that the fire on September 22, 1997 was caused by the failure of certain gaskets used in the exhaust silencers. The failure of one or more gaskets allowed exhaust gases to escape. Unburned hydrocarbons in the exhaust gases somehow ignited, the fire resulted and substantial damage was caused to the vessel.
[55] The Plaintiffs rely on the evidence that in fact, the gasket used in the main engine silencers was not adequate for the task. That gasket, being a "Blue-Guard Garlock" 3200 or 3400 was not rated for the continuous high temperatures to which it would be exposed.
[56] Each of the individual Plaintiffs was asked about the source of ignition for the fire. The three individual Plaintiffs said that the source of ignition was hot exhaust gas leaking from a broken or failed gasket on one of the silencers. When asked about the fuel involved in the fire, James Fiddler and Mark Stephen identified the fuel as soot or carbon at someplace in the exhaust casing. David Fiddler also said that soot was a cause and also relied upon "other vapour" without identifying it.
[57] Briefly, the Plaintiffs' theory about the cause of the fire is that the Defendant's use of an improper gasket in the exhaust silencer caused that gasket to fail, thereby allowing exhaust gases to escape and that these exhaust gases, containing unburned hydrocarbons, resulted in the fire.
Plaintiffs' Expert Witnesses
[58] The Plaintiffs called three expert witnesses to offer opinions as to the cause of the fire. They were Mr. Andy Bowman, Mr. Lyle Johnson and Mr. Daryl Hansen. Mr. Bowman and Mr. Johnson were qualified as expert witnesses in the area of fire investigation and fire origin, while Mr. Hansen was qualified as having expertise in the maintenance of marine engines.
[59] Mr. Andy Bowman is a fire investigator. He works full-time as a fire investigator and has taken a number of courses in the area of fire investigation. He attended on board the vessel on October 1, 1997. He took photographs and later prepared a report. He attended at the request of Mr. Jim Lindsay, a ship surveyor.
[60] Mr. Bowman prepared two reports, the first one dated October 28, 1997 and the second report is undated. The first report refers to attendance by Mr. Bowman on board the "KNIGHT DRAGON" on October 1, 1997. In this first report, Mr. Bowman offered the opinion that the fire was caused by the escape of exhaust gases through a faulty gasket, specifically from the port auxiliary silencer. He spoke about the burn pattern.
[61] Mr. Bowman ruled out arson or electrical failure as being a cause of the fire. He identified the area of origin as being inside the exhaust casing at the level "directly above the engine room" on the accommodation deck. He identified the point of origin as "near the floor at this level in the aft port side" of the exhaust casing, near the bottom of the silencer and exhaust pipe flange that were located there. Mr. Bowman concluded that the point of origin for the fire was at the lower section of this muffler and/or exhaust pipe flange and although he stated that he did not remove the muffler and exhaust pipe to "further determine the effect cause" he concluded that the fire occurred as the result of hot exhaust gases escaping into the exhaust casing at the point of origin that he identified for the fire. In other words, Mr. Bowman concluded that the escape of hot exhaust gases into the exhaust casing, in the area of the port auxiliary silencer, caused the fire.
[62] Mr. Bowman's second, undated report refers to and relies upon his initial report. In his second report, Mr. Bowman provides further details about the issue of burn pattern and the significance of the burn pattern in determining the cause of the fire.
[63] In this second report, Mr. Bowman reiterated his opinion that the escape of hot exhaust gases from the exhaust casing caused the fire. He introduced a second scenario for the cause of the fire, that is that the exhaust gases, consisting primarily of unburned fuel gas, would not only build up in the exhaust casing but would impinge upon the adjacent interior wall materials, thereby causing the wall material to become dry and capable of being ignited by the temperature of the escaping exhaust gas. In other words, the high temperatures of the exhaust gases would cause the adjacent combustible material, that is the wood studs on the inside of the exhaust casing, to become so dry whereby the temperature of the escaping exhaust gases would be sufficient to cause a fire.
[64] In either case, Mr. Bowman held the view that the cause of the fire was inextricably linked to the escape of exhaust gases from the silencers, as the result of gasket failure.
[65] Mr. Bowman was of the view that the fire started at a lower level and then moved upward, horizontally. He referred to photographs 23 and 24 of his first report to illustrate that opinion. These photographs show damage done by the fire to the aluminium panel which was on the outside of the exhaust casing, on the accommodations deck. These photos show the disintegration of the aluminium panel as a result of exposure to the heat from the fire. Mr. Bowman, in cross-examination, said that the melting point for aluminium was around 1200 degrees fahrenheit for pure aluminium and slightly less for an aluminium alloy.
[66] Mr. Bowman, on cross-examination, referred to the silencer closest to the access panel as being the one shown in photos 26 - 31 of his first report. Later, he said that the silencer shown at photos 29 and 30 was traced by him to the port auxiliary engine.
[67] Again, during cross-examination, Mr. Bowman stated his opinion that the fire started in the level above the engine room. The fireball came down and then went back up the exhaust casing. However, it is clear from his cross-examination, that Mr. Bowman did not know the point of ignition for the fire but he appeared to be consistently saying that the fire was the result of the escape of exhaust gases.
[68] Mr. Bowman said that he would not expect to find any sign of a liquid fuel by the time he attended on the vessel, several days after the fire. He said once liquid fuel burns, it combusts completely. He discounted the possibility that the fire was due to ignition of liquid fuel, by relying on the low burn pattern. He said that there was no burn pattern extending upward. He relied on soot patterns on the bottom of the silencers and says that these indicate smoke in that area which condensed onto the silencer and flange.
[69] Mr. Bowman said that the likely source of ignition was the hot exhaust gas and later in cross-examination, said that exhaust gas is the fuel that ignited.
[70] During cross-examination, the point was put to Mr. Bowman that the Plaintiffs say that the fuel for the fire was unburned carbon on the walls of the exhaust casing and on the fabric of the wrapping. Mr. Bowman said that he was unaware that the Plaintiffs held this opinion. He also confirmed that in his report, he did not primarily consider carbon to be the fuel.
[71] Mr. Bowman was unaware of the oil spill incident of October 21, 1997 prior to preparing his report. He thought that the spill of oil in the funnel that day was a test; he did not realize that it was an accident. Mr. Bowman was also unaware of the firefighting activity undertaken and his investigation did not address how this could have affected the damage and path of the fire.
[72] When asked about the ignition point for Number 2 diesel oil, Mr. Bowman said in cross-examination that he believed it to be around 900 degrees fahrenheit. It was put to Mr. Bowman that the ignition point was 125 degrees and in response Mr. Bowman discussed the process of atomization . He also said that it was possible to ignite diesel fuel as a liquid. When questioned about the description of the fireball, as described by Mark Stephen in his evidence, Mr. Bowman said that a "whoop" is considered a low grade explosion. A fireball which follows such noise indicates there has been ignition of a fuel. Mr. Bowman said this is consistent with ignition of diesel fuel vapour. These remarks relate to his first report.
[73] In connection with his second report, Mr. Bowman was cross-examined about the characteristics of Number 2 diesel fuel. When told that 500 degrees fahrenheit is the temperature for auto ignition of diesel fuel, Mr. Bowman said he was surprised and thinks this temperature is too low. However, he also said that he has never done tests to determine the auto ignition point of Number 2 diesel.
[74] He was questioned about the damage to the aluminium panel and offered the opinion that the impingement of the exhaust heat onto the aluminium alloy panel created the meltdown. This could have happened without a gasket leak from the port auxiliary silencer.
[75] In cross-examination, Mr. Bowman admitted that he had not done personal testing relative to the composition of diesel gas. He had not done any testing on a Cummins engine. He had not seen a backfire in a Cummins engine.
[76] Mr. Bowman consistently maintained his theory that the leaking exhaust gas was of a sufficiently high temperature that when it came in contact with the exterior wall of the exhaust casing, it then heated the insulation and the exhaust casing itself, composed of steel at the main deck level, with the exception of the aluminum access panel, and of aluminium at the wheelhouse deck level, and then burst into flames.
[77] The second expert witness called by the Plaintiffs was Mr. Darryl Hansen. Mr. Hansen is a professional engineer and while employed by Fenco McLaren Inc., wrote a report on behalf of the Plaintiffs. This report, dated November 29, 2000, contains the opinion of Mr. Hansen on two questions relating to the main engine exhaust system in use on the vessel at the time of the fire. According to his report, he was providing an opinion in response to the following two questions:
1. Was the vessel's main engine twin (or bifurcated) exhaust system improperly designed and/or installed during the refit of the vessel?
2. Was an improper grade or specification of gasket installed between flanges of the main engine exhaust system?
[78] Mr. Hansen answered both questions in the affirmative. Insofar as the sufficiency of the main engine exhaust system was concerned, he concluded that the system was not fit for its purposes due to the failure of the Defendant to include a flex assembly for the two main engine silencers. Mr. Hansen concluded that the arrangement of the silencers, as designed and installed by Allied, was inadequate to accommodate the natural contraction and expansion which would occur in the silencers. This failure would cause additional stress which would lead to damage of the silencers. The additional stress would also put extra and excessive pressure on the gasket materials used in the silencer.
[79] On the second question, Mr. Hansen readily concluded that the gaskets used in the installation of the silencers were not suitable. The primary fault was that the gaskets, as used, had a maximum continuous rating of 400 degrees fahrenheit while the engine exhaust could reach temperatures of 860 degrees fahrenheit.
[80] Mr. Hansen coupled the use of inadequate gaskets with the absence of flex assembly in the silencer arrangement and concluded that this construction would have caused excessive stress on the silencer joints, including the gaskets.
[81] Lyle Johnson was the third expert called on behalf of the Plaintiffs. He is a professional engineer with particular training in metallurgical engineering. He has many years experience in fire investigations and has previously been accepted as an expert for the purposes of litigation.
[82] Mr. Johnson was tendered as a witness for the purpose of expressing an expert opinion as to the cause and origin of the fire. He was accepted as an expert in that capacity. In his report, dated September 28, 2001, Mr. Johnson stated that in the course of preparing his own report, he had reviewed the reports prepared by Mr. Bowman, Mr. Hansen and two reports prepared by Mr. Wayne Brox, on behalf of the Defendant. He also indicated that he had examined the engine room and funnel areas of the ship and stated the physical facts relating to the configuration of the ship, upon which he was relying.
[83] Mr. Johnson expressed the opinion that the fire on the vessel occurred by ignition of combustible vapour. He identified two possible sources of the vapour, the first being diesel oil overflow from the tray in the funnel cavity where the day tank vent pipe exits and second, the generation of vapour from heat exposure of surface deposits in the funnel cavity. The funnel cavity, according to Mr. Johnson, includes the upper part of the funnel surrounded by sheet metal with a grill in it, as well as the exhaust casing.
[84] Mr. Johnson relied on a finding that a gasket failure occurred at a flange interface of the exhaust system within the funnel cavity. In such circumstances, he said it was possible to have vapour formed by the heating of previously deposited material on the external surfaces, as well as deposited unburned hydrocarbons around the area of gasket failure. He said that unburned hydrocarbons could ignite on external areas of the exhaust system under certain conditions. These conditions include the presence of oxygen, the presence of high temperature exhaust surfaces and/or exhaust gases and the proximity of unburned hydrocarbons and combustible vapour. He concluded that the fire damage in the exhaust casing is more consistent with a fire being caused by this source of combustion since extreme damage was not found in the funnel cavity.
[85] He said that the gasket failure at a flanged joint would ultimately provide the source of ignition. His final conclusion was as follows:
The presence of combustible vapour would provide the means for a rapid flame front advancement. The placement of the overflow (day) tank vent outlet within the funnel cavity rather than outside the cavity would provide opportunity for fuel flow into the cavity.
[86] In his evidence at trial, Mr. Johnson acknowledged certain errors in the factual assumptions underlying his report. When writing his report, he had assumed that the gasket flanges were wrapped within the same blanket wrapping that covered the barrels of the exhaust pipe. He was unaware that the flanges were individually wrapped but said that this did not change his opinion concerning the effect of a gasket failure. He also said that he did not know that the spill tray is part of the top deck of the vessel. He did not consider that there was a void space beneath the tray and that the master's cabin was beneath the tray. He also said that he was wrong concerning his assessment of the location of the vent opening; it is not close to the edge of the tray.
[87] Mr. Johnson said that he was told by Mr. James Fiddler that a gasket had failed but he was not told which gasket had failed. He was told where the gasket was located but he does not cover that point in his report. He said he understood from his conversation with Mr. Fiddler that a gasket failed, evidenced by large pieces that had broken but the entire gasket was not blown out.
[88] As well, Mr. Johnson said that he did not inquire about the fire fighting efforts undertaken on the vessel. He did not know the sequence of fire fighting activity before he gave his opinion.
[89] He gave the opinion that the ignition of diesel fuel did not cause the fire in the funnel cavity. He himself did not see evidence of fuel flow into the funnel cavity but was provided with a photograph that showed fuel on the spill tray, that is Exhibit 3, page 22.
[90] In cross-examination, Mr. Johnson was questioned about this photograph and admitted that if there was diesel fuel on the tray, given that the tray has a slope towards the port forward corner, the fuel would flow into the port aft corner of the exhaust casing. The port auxiliary silencer is located in that area. That silencer sits on an uninsulated platform with a small raised l