The opinion of the court was delivered by: EDELSTEIN
The issues in the above entitled cause having regularly come on for trial before me on April 5 and 6, 1956 and having been duly submitted by proctors for the respective parties on oral argument and briefs, I now make the following findings of fact and conclusions of law.
1. On January 13, 1952 deck scow H.S. 89 was owned by Steers Sand & Gravel Corporation.
2. H.S. 89 was constructed of wood in 1911. She was 119.4 feet in length, 35.8 feet in width, 11.7 in depth, and raked at bow and stern. The 89's draft
3. The 89's captain had pumped out was about 9 1/2 feet. It carried a split load of gravel forward and sand aft in two piles with a total weight of 700 to 750 tons on a flat wooden deck surrounded by a railing two feet high. The hull was empty for the full length of the scow save for internal cross-supports and timbers (Resp. Exhs. A.C; 25, 27-8, 43, 229, 246).
3. The 89's captain had pumped out the scow some five to ten minutes around 5 p.m., January 12. The pump was started from the deck. The captain could not recall when he had last entered the scow's hull to make an inspection but he usually inspected below decks once a week (62, 69, 71). The last dry docking of H.S. 89 prior to the occurrence was some time in 1949. No definite proof was offered by libellant as to when the seams were last caulked (231-6; Resp. Exhs. K,L).
4. About 3:30 a.m., Sunday, January 13, scow H.S. 89 left the Steers stakeboat near the Statue of Liberty for Rossville, New Jersey in tow of libellant's tug Henry Steers which had placed four loaded scows on a hawser astern comprising two tiers of two boats each. The 89 was the starboard boat in the second tier (61, 63, 69, 91-3).
5. At approximately 6 a.m., January 13 when the Steers flotilla was passing Elizabethport, New Jersey in the Arthur Kill, the Red Star tug Roselyn drew alongside tug Henry Steers and warned her master that the 89 was listing and appeared ready to capsize. Until that time those aboard the Henry Steers had been unaware of the 89's sinking condition (70, 76, 82-3, 91-3, 109).
6. About the time the Red Stat's tug alerted the Henry Steers, the captain of the scow alongside the 89 hailed the 89's captain and warned him of the scow's listing condition. The starboard side of the H.S. 89 was then underwater. The captain of the 89, who had been asleep since departure from the stakeboat, appeared on deck undressed and abandoned his scow at once by jumping to the Steers scow alongside without returning for his clothes (65-6, 70, 93, 105).
7. The captain of the Henry Steers then directed the Red Star tug to beach the 89 on the Staten Island side of the Arthur Kill. The bow of the scow was grounded on the Staten Island bank about 1000 to 1200 feet north of the B. & O. drawbridge. The other three scows were tied up by the Henry Steers at the Loizeaux cement dock (4-7, 21, 40-1, 93-4, 101-2, 205; Resp. Exhs. B, D, E).
8. The Henry Steers returned to the 89, and attempted to shove it further up on the beach. The tide was then rising. The tug's master did not refer to the chart aboard as to the nature or condition of the bottom where the 89 lay beached. None of the Henry Steers' crew made an inspection of the hull to determine the nature or location of the leak. No soundings were taken (32, 43, 93-4, 102-4, 107, 227-8).
9. The 89 was equipped with a gasoline pump in working order capable of discharging 5,000 gallons of water per hour. The tug carried a steam siphon of at least equal capacity. No effort was made by the tug's crew to start tug or siphon for about three hours until the arrival of libellant's Marine Superintendent between 9 and 9:15 a.m. The Superintendent boarded the scow with a second pump of 5,000 gallons capacity (29-30, 47-9, 65, 83-4, 95, 104-6, 110).
10. The Marine Superintendent entered the hull and found at least 2 feet of water at the 89's bow and 3 feet at its stern. The tide began to fall about 9 a.m. The two pumps and a siphon of 5,000 gallons capacity each were employed continuously from about 9:30 until noon or shortly afterwards when the scow capsized. During this period the Henry Steers lay across the stern of the scow with her starboard side secured to the 89 by two lines (7-9, 30, 32, 49-50, 95-6, 227-8). During pumping operations approximately 37,000 gallons of water were discharged. When the scow turned bottom up there was still about 1 1/2 feet of water at the bow and 2 1/2 feet at its stern (49-50).
11. The bow of the 89 was grounded on a ledge or muddy silt shelf, lying somewhat at an angle to the bank. This shelf or ledge dropped off sharply into the channel which had been dredged to a minimum depth of 37 feet in 1947 or 1948. There was at least 37 feet of water under the stern of the 89 and at least one half of its length lay in deep water ...