The opinion of the court was delivered by: BYERS
Moran Brothers Contracting Company, Inc., for convenience to be referred to as Moran, as charterer in possession of the scow Moran No. 107, sues Seaboard Sand & Gravel Corporation, to be referred to as Seaboard, in admiralty, for breach of contract in failing to return the said scow, at the expiration of the customary New York Harbor charter, in as good condition, etc.
The answer pleads that any damages sustained by the scow, while under such charter, were due to ordinary wear and tear, and to causes beyond the respondent's control and for which it is not responsible. The Seaboard also filed a petition impleading Daniel Roe Towing & Transportation Co., Inc. (to be referred to as Roe Company), bringing it into the cause as owner of the steamtug Floral E. Roe, and process was sought against the latter. Claim was filed and answer made to the original libel and the petition, by the impleaded respondent.
There is no dispute as to the facts, save the extent to which the scow was brought down in the water, by the cargo laden upon her; that consisted of 645 cubic yards of 3/4 inch gravel, placed on board, by Seaboard, about one week prior to January 16, 1931, in the harbor of Port Jefferson, Long Island.
The scow was 112 feet long, 34 feet wide, and had 10-foot sides. It was built in 1929, and was therefore nearly new, and at the time of loading was tight, staunch and in all respects seaworthy. This was the biggest load of gravel that the scow had ever taken, by a margin of 9 cubic yards; the scow was trimmed to her starboard aft corner (containing a pump) where her free-board is found to have been less than 1 foot; on the port side aft it was 1 foot; amidships the decks were to, and forward the free-board was about one foot and a half.
On January 16, 1931, Seaboard employed the Roe Company to tow this scow, and another, the Anderson Dana, to Portchester, New York. The Dana was of about the same dimensions as the Moran No. 107, and was laden with sand. The tow was made up at the Moran stake boat in the harbor, tandem, with the Dana ahead of the Moran No. 107, because the former had the greater free-board as the scows were laden. The free-board at the stern of the Dana was about the same as at the bow of the Moran No. 107.
The scows were close-coupled, and departure was had at about 4:30 o'clock in the afternoon, the weather being clear, the Sound smooth, and there being a light wind out of the west. The trip proceeded without incident until the tow was between Eaton's Neck and Crane's Neck, on the Long Island shore, when the wind suddenly increased, and soon became what is described as of gale force.
It is not contended that there was reason to anticipate this development, and departure from Port Jefferson is not criticized.
The seas rose with the wind (which held from the same quarter) and came over the Moran No. 107 frequently and with force, and the scows began to bump. Thereupon, at about 8:00 p.m., the scow captains loosened away the hawsers connecting the scows, so that the vessels were about 6 feet apart. The bumping continued, and hawsers were again extended, so that the distance was increased to not less than 8 feet. The hawsers were 75 feet long, with an eye in each, on the bitt of each scow. The hawser of the Moran No. 107 led to a stern bitt on the Dana, around which a turn or two were made, and back to the bitt of the Moran No. 107. And so with the Dana's hawser, which led astern to the Moran No. 107, and back to the bitt on the former.
In spite of the second loosening away, the scows continued to bump, and around 9:00 p.m. the Dana's seams were opened, and her captain went below to stop the leaks with temporary filling, and, while he was so engaged, the captain of the Moran No. 107 came aboard the Dana, and then cut the Moran No. 107 adrift by severing the hawsers. This was done at about a half hour or more before the tug was able to make port in Huntington Harbor, where refuge was sought.
The tug discovered what had been done, having thrown her search-light on the tow; being assured by observation that both scow captains were safe on the Dana, the latter was brought into quiet waters at Huntington, and there secured. The tug then proceeded out into the Sound to take the Moran No. 107 again in charge; she was found, after an hour's search, riding the seas, in the trough, and the tug was able to put a line on board, but, when a strain thereon was taken, the scow capsized, and in that shape was brought into Huntington Harbor. The capsizing caused the damage to recover which this libel was filed.
Moran is found to have proved the bailment of the Moran No. 107 to Seaboard, and the return of the subject of the bailment in a damaged condition, not caused by ordinary wear and tear, and is therefore entitled to a presumption of fault on the part of Seaboard; and the question is whether the latter has shown that the damage was not due to Seaboard's neglect [see Alpine Forwarding Co. v. Pennsylvania R. Co. (C.C.A.) 60 F.2d 734; Ira S. Bushey & Sons, Inc., v. W.E. Hedger & Co., Inc. (C.C.A.) 40 F.2d 417, and cases cited therein], or to the neglect of the Roe Company, to whom Seaboard entrusted the scow [see White et al. v. Upper Hudson Stone Co. et al. (C.C.A.) 248 F. 893].
The libelant argues that the Seaboard overloaded the scow, and has thus failed to go forward with the burden ...