The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
The above entitled actions were on stipulation tried together, and as the facts are substantially the same in both cases, one opinion will be sufficient.
The first above entitled action is brought by A. C. Dutton Lumber Corporation, the owner of the lighter Dutton No. 6, to recover for damages alleged to have been caused to said lighter by negligent towage by the tug Dauntless No. 7, and for breach of contract of towage.
The second above entitled action is brought by Standard Marine Insurance Company, Limited, who are subrogated to the rights of A. C. Dutton Lumber Corporation, to recover for damages to cargo.
On conflicting evidence, I find the facts as follows:
On the afternoon of November 28, 1932, the respondent Dauntless Towing Line, Inc., was ordered by the A. C. Dutton Lumber Corporation, the libelant in the first above entitled action, pursuant to agreement theretofore made, to tow the float No. 6 loaded with approximately 500,000 feet of lumber on deck, from Fort Washington Point in the North river to Port Jefferson, Long Island.
The Dutton No. 6 is a converted carfloat 251 feet 2 inches long, 37 feet 4 inches wide, with a very low freeboard when loaded.
She carried a deck cargo of 500,000 board feet of assorted lumber, which was stowed to a height of 14 feet above deck at the bow, and 15 feet at the stern. When loaded, the No. 6 was trimmed somewhat to port and to the stern. The No. 6 had two hatches located about 26 feet from the bow. These hatches were square 24 X 24 inches, and had a small coaming or beading about 1 1/2 inches high. The hatch covers were placed over this coaming, but were not fastened or battened down.
Prior to the trip under discussion, two new deck planks had been installed near the bow of the No. 6. These planks were 21 feet long with a seam of an average width of 3/8 of an inch, which had never been properly caulked.
The Dauntless No. 7 picked up the Dutton No. 6 on the tug's port side.
The Dauntless No. 7 and her tow the Dutton No. 6, with Dominick Tresaloni, her mate, on board, proceeded down the North river and into the East river where Mr. Jackson, the marine superintendent of the A. C. Dutton Lumber Corporation boarded her and she proceeded through the East river and into Long Island Sound, with both of them on board.
The Dauntless No. 7 and her tow proceeded without incident down the North river, through the East river, and into Long Island Sound.
The weather continued favorable for towage.
There was a light northerly breeze 10 to 20 miles per hour, with a slight choppy sea.
The tug and tow proceeded with a fair tide at a speed of 6 to 7 miles per hour.
At about 3 o'clock a.m. November 29, 1932, the mate of the Dutton No. 6, at the instruction of Mr. Jackson, the marine superintendent of the said A. C. Dutton Lumber Corporation, sounded the float and found that she had no water on the starboard side, and only about 2 inches of water on the port side, which was no more than she had at about 1 o'clock a.m., when he sounded her under the Brooklyn Bridge, and could not be reached by the pumps.
Between 4:30 and 5 o'clock a.m., the mate, at the instruction of Mr. Jackson, again sounded and found a slight increase, amounting to only 1/2 inch, which could not be pumped out, and which was of such slight moment as not to require immediate attention.
None of these soundings were made forward.
The Dauntless No. 7 was on a course close to the Long Island shore, and the tow was slowed down for several passing steamers, and there is no evidence that any of them passed less than 1/4 of mile off the Dutton No. 6. The Sound steamers Providence, Mohegan, and the Chester Chapin passed the Dauntless No. 7 and her tow somewhere between Throgg's Neck and Execution Light. In that vicinity the Sound varies in width from 1 to 2 miles, the channel, however, is not less than 1/2 a mile wide, the narrowest place being at Stepping Stones. The Sound Steamers St. John, Lexington, and New Hampshire passed the Dauntless No. 7 and her tow between Execution Light and Mattinecock Point. The Sound Between those points has an average width of 3 miles, but the channel is at no point less than 1/2 mile in width.
Shortly before 6 o'clock a.m., Jackson was awakened by the smacking of water against the cabin window on the port side of the Dutton No. 6. Immediate investigation disclosed that the Dutton No. 6 was half full of water and was severely listed to port.
When at a point off Mattinecock Bay, somewhat west of Captain's Island, those on the Dauntless No. 7 observed the Dutton No. 6 take a sudden list to port, so that her bow rail was almost under water. At that instant the engines of the Dauntless No. 7 were stopped, attention signals were blown, and the mate of the tug rushed over to the Dutton No. 6 to awaken the crew of that vessel.
The two men on the Dutton No. 6 went over on the Dauntless No. 7, and a few minutes after the No. 6 dumped two tiers of lumber over her port side. About fifteen minutes later the No. 6 listed to starboard, very slowly, and dumped cargo from the starboard side. At this time Jackson cut the towing lines with a cleaver, because he felt that it was dangerous for the Dauntless No. 7 to remain alongside. Then the boom of the crane of the No. 6 worked loose and was swinging, and the No. 7 nosed up alongside of the float, and the mate of the tug and Jackson went on board the float to lash the boom, a line was placed on the starboard bow cleat, and an attempt was made to tow the No. 6 to shore. The No. 6 would not follow the tug and took a sheer and parted a hawser, and at the same time dumped more of her cargo.
The float continued to list from side to side, dumping her cargo at intervals, until 7 o'clock a.m., when she finally turned bottom up.
During all this time the weather was calm. After the float turned over, Jackson and the mate of the Dauntless No. 7 walked on the slippery bottom of the float while securing lines to permit her to be towed.
After the float turned over, the Merritt-Chapman Company were engaged to turn the float over ...