The opinion of the court was delivered by: BYERS
In this cause libelants seek to recover for damages said to have been sustained by their deck scow "Federal No. 1" while under charter to the Premium Coal Company, in that the latter "negligently and carelessly" unloaded the said scow and during the course of the said unloading caused the said clam shell bucket to forcibly strike against the deck and beams of the said deck scow "Federal No. 1", on or about November 17, 1938.
The issue tendered is clear, and the question for decision is whether the libelants have sustained their burden of proof.
1. The said scow is the property of the libelants and was chartered to respondent on October 7, 1938, for service in carrying coal on deck, at a monthly charter hire, until April 1, 1939.
2. The charter contained the following: "Your company is not to be held responsible for any damage to the boat except such as is caused at your yard or yards, by your own equipment. * * *"
3. Conditioning of the scow was going forward on the date of the charter, and that was completed on Cotober 28, 1938, on which date she took a deck load of coal at Edgewater and was brought over to the respondent's yard in Brooklyn.
4. She continued in such service until some time during the month of December, 1938, when she was taken off charter for repairs, at the instance of libelants.
5. The average deck load of coal carried was not less than 500 tons and, at the end of each trip, the coal was removed from the scow at the respondent's yards by the operation of a so-called clam digger bucket, alongside of which the scow was placed for discharge.
6. The scow was built in 1901, her dimensions being 118 feet by 36 feet, with 10 foot 6 inch sides.
7. This scow was formerly the property of the DeMars Barge Corporation, with which the witness Theodore E. DeMars was connected, and it was owned by that company from the Spring of 1929 until 1936, during which time she was laid up for about five years at the Edgewater Dry Dock.
8. The scow was surveyed on December 24, 1938, by Mr. DeMars, at which time he found that seven deck beams, i.e., the beams supporting the deck planks, were broken, and generally they were located on the starboard side, aft of amidships.
9. The broken deck beams were not in consecutive order. The three foremost were in one group; the fourth was separated from the first three, by one sound beam; the fifth was separated from the fourth, by two sound beams; and the sixth and seventh were separated from the fifth, by one sound beam. There were also broken-down deck planks in the forward area of the damage where the three deck beams were found broken.
10. As to each of the broken deck beams, the upper half thereof was badly deteriorated, the beams themselves being 6 by 12 inches at their greatest thickness, and the ...