The opinion of the court was delivered by: DAWSON
These are two actions in admiralty, which were consolidated for trial, in which recovery is sought for the loss of a cargo of gypsum rock laden on the Scow 'Louise' which was lost overboard when that scow careened in Bridgeport Harbor, Connecticut, on August 16, 1953, and in which recovery is sought for the damages to the scow.
Connecticut Adamant Plaster Company (hereinafter referred to as 'The Plaster Company') was the owner of the cargo of gypsum rock.
Charlotte F. Jacobus and F. Jacobus Transportation Company, Inc., were respectively owner and operator of the Scow 'Louise'.
James McWilliams Blue Line, Inc. (hereinafter referred to as 'The Blue Line') was the charterer from Jacobus of the Scow 'Louise' and the carrier of The Plaster Company's cargo.
The National Gypsum Company was the shipper of the cargo of gypsum rock and loaded the cargo aboard the Scow 'Louise'.
The following facts are found by the Court:
1. The 'Louise' was a deck scow, approximately 114 feet in length, 34 feet in width and 10 feet in depth. It drew 23 inches, when light. The cargo was carried on the deck. It was equipped with two hand pumps. The scow was built in 1928, but extensive repairs had been made on it in 1951 and in 1952. After the repairs were completed, the scow remained in operation.
2. In February, 1953, the scow was chartered to Colonial Sand & Stone Company, which used it to carry cargoes of sand and gravel from Hempstead to New York Harbor. This company used it continuously until July, 1953, at which time it was laid up light at Pier 6 on the East River.
3. The 'Louise' was owned by Charlotte F. Jacobus but was chartered by bare boat charter to the F. Jacobus Transportation Company, Inc.
4. On August 14, 1953, the Scow 'Louise', together with the Scow 'South', was chartered to The Blue Line. This company towed the scows from Pier 6 on Saturday, August 15, and took them to the plant of the National Gypsum Company at Oak Point in the Bronx. There the scows were loaded by National Gypsum Company with gypsum rock destined for The Plaster Company at New Haven, Connecticut.
5. During the process of loading the scows at the plant of National Gypsum Company, the Scow 'Louise' was leaking. The captain of the scow was concerned about the leaking and the loading, and telephoned the Marine Superintendent of Jacobus at his home in Flushing. The latter went by car to Oak Point, bringing with him an emergency gasoline pump which was put on the scow and started up in operation. At that time, there was about an inch and a half of water in the hold of the 'Louise' on the starboard side. The scow had not been loaded evenly so that it was down by the starboard bow. The Marine Superintendent of Jacobus arranged with employees of National Gypsum Company to trim the load, which they did, in the course of which some of the material was shoveled overboard. When the trimming was completed, the Marine Superintendent concluded that the scow was seaworthy and able to start on its voyage.
6. The scow was put in a tow to be hauled to New Haven by the tug 'Dewey' owned by The Blue Line. The tow left Oak Point about 6:00 p.m. The weather was clear; the wind slight.
7. The scow continued to take on water even though the captain of the scow had the emergency gasoline pump operating for a while. Between 3:00 and 3:30 a.m. of the following morning, the scow began listing considerably to starboard and the master of the tug got a signal from the scow, indicating that the scow wished to come alongside. The scow was pulled up to the tug. It developed that the gasoline driven pump on the scow was out of order and that the scow was taking on a great deal of water. An attempt to fix the pump resulted in a broken sparkplug, which made it impossible to put the pump back in operation again. The engineer of the tug, who went on board the scow at this time, heard water entering the scow from the starboard bow corner. He testified that this leakage was not a drip but was of such magnitude that he could hear the water running down the corner of the boat. At that time, the deck of the scow at ...