The opinion of the court was delivered by: GALSTON
The libellant, as the owner of the Florence E, brings this action to recover damage sustained by the scow while being dry-docked by the respondents at their yard. The respondents' ship repair yard is located about midway up the Morris Canal Basin in Jersey City. In dry-docking the scow on February 5, 1948, there were found wedged between the tops of the dry-dock blocks and the bottom of the scow, in three separate locations, large chunks of ice which damaged the center keelson and the first keelson to the starboard of center, and the bottom planks in those areas. The damage occurred about ten feet from the stern, at another spot about thirty feet from the stern, and at a third point about forty feet from the stern.
It is the libellant's contention that the ice became wedged between the blocks and the bottom of the boat during the process of lowering and raising the dock in dry-docking the Florence E, because the respondents performed their work in a negligent manner: and that the presence of the ice between the bottom of the boat and the blocks could have been discovered before the boat was brought completely to bear on the ice.
The respondents, on the other hand, contend that the process of dry-docking the Florence E was performed with the care and skill required. They deny that the ice could have become wedged under the scow during the docking operation, contending that the ice must have become adhered to the bottom at some time during her trip up the North River to Tarrytown and back before she was brought to the respondents' yard.
On January 29, the Florence E was towed from Brooklyn to West New York and then to Tarrytown. She was light and was to have taken on a load of cars at the Chevrolet plant in Tarrytown. The tow consisted of the Florence E and another scow, with one tug towing ahead and two other tugs to help get the tow through the ice to Tarrytown. The Florence E was the first of the two scows in the tow at first, but on the way to Tarrytown, she was shifted behind the other boat because she was leaking in the bow, and, as her captain testified, he 'didn't want to take a chance going up the river with a light boat and having some more damage happen'.
He also testified that there was 'heavy ice' in the river, 'all the way up and all the way down', and that the ice was piling up at the bow when the boat was towing as the head boat.
The scow had sustained ice damage on January 28th or 29th while being towed, either from 34th Street, East River to Brooklyn or from Brooklyn to the Peterson yard in West New York. A survey was arranged for February 2nd at the respondents' repair yard. The survey, which was held with the boat afloat, showed damage in the nature of gouging and cutting to the bow planking near the light water line. It was then arranged between the parties that the boat be dry-docked. The testimony is in conflict as to the purpose of the dry-docking. Robert Scharf, acting in a managerial capacity with respect to the operation of libellant's scows, states that it was to determine whether there was other damage which could not be discovered in a survey afloat. John Walter Swenson, one of the respondents, denies any such arrangement and asserts that the purpose of the dry-docking was to replace the planking found to have been damaged.
The survey of February 2nd, signed by Scharf and Swenson, sets out the damage to the bow planking, the cost of replacement and repair, and includes the words, 'Necessary dry-docking'.
The boat continued to lay in the Swenson yard from February 2nd to February 5th, during which time she was shifted several times. On the latter date she was taken across the slip to the dry-dock.
The dock is composed of two wings with a pontoon section between them and outriggers or aprons extending from each end of the pontoon section. The two ends are open to permit a boat to be drawn on and off the dock. Three rows of wooden blocks, running lengthwise to the dry-dock, are placed on the floor of the dock. The bottom of the boat to be dry-docked rests on these blocks when it is lifted clear of the water.
The dry-docking of a boat is accomplished by sinking the dock, bringing the boat into the dock, centering it over the three rows of blocks so that the two outside rows will bear along the two sides of the boat and the center row of blocks will bear along the center, and then gradually raising the dock so that the bottom of the boat will bear on all the blocks, to raise the boat on an even keel.
The center row of blocks, the keel blocks, are stationary, but the row of blocks on each side, the bilge blocks, are moveable, resting on bearers or tracks running thwartship so that they can be moved in either direction to fit the width of the boat to be docked. The keel blocks are spaced about ten feet apart in the row, while the bilge blocks are from six to ten feet apart. Each block measures 12 inches x 12 inches x 4 foot.
On the occasion in question, the Florence E was put on the dock on February 5th. Prior thereto, another boat, the Weldon, had been on the dock, and work had been done on her from February 3rd to February 5th. In describing the operation in taking the Weldon off the dock, Swenson testified:
'A. . . . when we took the Weldon off and raised the dock we then salted our blocking and freed the blocks. Then they were piled by hand an additional footage to give a 36 foot instead of 34 feet. We pulled those blocks to the 36 foot mark. Subsequent thereto we lowered the dry-dock again and then pulled the Florence E onto the dock, into position, measured her for location, placing her so that she would rest properly on the blocks, and then we pumped the dock, raised the dock and raised the Florence E.
'Q. At the time when the Weldon came off the dock and the dock was raised again in order that you could shift the blocks after salting them, was there any ice on your dry-dock? A. Well, there was some ice on the dock, yes.
'Q. Was there anything done about that ice . . .? A. You see, when we drop a dry-dock and we pump it up, the ice that is in and around, the ice will float in and on the dock, so our men on the dry-dock have long poles, and they take that ice and pole it off or toward the end. The water cannot escape through the sides of the dock and the water will naturally float the ice, and so the only way it can be taken off the dock is at the end. . . .
'Q. Do you know whether or not your men poled ice off the dock-
'Mr. Lamb. On the morning of ...