The opinion of the court was delivered by: BYERS
The libelant's deck scow Francis V. Duffy, having been loaded with about 1,264 cubic yards (estimated at about 624 tons) of refuse, capsized and sank at the 54th Street dump (Manhattan) at about 3 p.m. on February 3, 1939.
This decision is necessary in order to fix liability for the occurrence.
There was no collision, nor wind-storm, to account for the happening. Whether the load split to indicate improper distribution of weight during the loading operation which was conducted for the respondent by a private concessionaire, was not shown, for the City's foreman, who observed the capsizing, was not in a position to see.
Under these circumstances, a satisfactory explanation is a difficult thing to arrive at.
The hiring was the customary one between the City and the owner, at a daily rate, with the latter furnishing a scow captain, and the former assuming responsibility for the negligence of its own employees and agents.
Delivery in good condition is conceded, and an inspection by the foreman at the dump on February 2nd revealed "no new damage" and the scow was believed to be in customary good condition for service. Constant employment is shown from January 1, 1938, to the day in question, according to respondent's Exhibit C, and the evidence was that, for above two years prior thereto, the Duffy had been so engaged, except as she was out of service for needed repairs; as lately as January 15, 1938, $1,245.77 had been spent on her, and in November of 1936, $3,609.44. So that, while her age was uncertain, her condition on February 2, 1939, is not shown to have been other than adequate.
The fact of damage having been agreed to, the respondent frankly admitted prima facie cause, and proceeded to go forward with proof that the damage was not due to lack of care on its part. Kenny v. City of New York, 2 Cir., 108 F.2d 958.
It is argued by the City that the evidence demonstrates unseaworthiness as follows:
(a) That the scow leaked.
There is no such testimony. Dublynn, the foreman who made inspection on the day prior to the capsizing, and before loading began, went down into the hold, using a flashlight; he said he was satisfied that the boat was in good condition, and the only water was "just enough where the pump couldn't pick it up" -- as is customary. It was all right to load or he wouldn't have done (permitted) it. He saw a certain amount of water seeping through the deck planks; this was before loading, and while it was raining. He described it as "a little seepage through the decks".
As to the rain, the weather report in evidence for February 3rd shows total precipitation to midnight of .16 inches and .1 inches of snow.
(b) Structural defects, i.e., "soft" patches (outboard).
Such indeed were spoken of as seam covers, on end planks to keep oakum in place. As to that, they were adequate, because Burke, libelant's treasurer, whose testimony is cited by the City on this subject, said: "* * * the caulking hadn't come through, and the caulked edges on the inside were all right".
Rabel for the City did not contradict the foregoing, although he observed the soft patches on November 24, 1936.
Neither leaking nor unseaworthiness was traced to these patches.
(c) The bottom had not been caulked during the libelant's ownership of the ...