The opinion of the court was delivered by: BYERS
The scow Seaboard No. 60, owned by the libelant, suffered interior structural damage on May 27, 1954 as the result of grounding off Oysterman Dock, in Oyster Bay, Long Island. She was carrying a cargo of about 750 tons of crushed stone consigned to the respondent, which operated a pier where delivery was taken. The libelant has elected to sue the respondent directly instead of the charterer of the scow, for undisclosed reasons.
The stone had been purchased from New York Trap Rock Corporation, respondent-impleaded, and the contention offered by the respondent in order to escape liability, comes down to the assertion that because the respondent-impleaded had been asked not to deliver more than three scows at a time at this place at any time, it must be held responsible for the injury to the libelant's barge, for having departed from the terms of that general request.
No such specific request had been made in connection with this or any immediately prior delivery.
The fact of grounding is not contested, and while the incidence of damage is faintly questioned, the evidence adduced by libelant on the subject is not contradicted.
It is therefore found that the claimed damage did in fact occur.
The circumstances are briefly as follows:
The pier in question is about 340 feet long, and was used by respondent for the receipt of cargoes of crushed stone which were discharged from scows placed alongside, by the use of a mobile crane and bucket, operated by the respondent.
At about 1:40 a.m. of May 27, 1954, the libelant's scow No. 60 was brought to the pier by a Red Star tug and placed alongside the libelant's scow No. 61, both lying bow in; this means that the starboard side of the No. 61 was alongside the pier, and the starboard side of the No. 60 was alongside the No. 61.
As these vessels were made fast, the bow of the No. 60 was about amidships of the scow No. 61. As to the latter, discharge of its cargo had begun on the day previous but had not been quite completed at the arrival of the No. 60.
At that time the scow Cleary No. 74 lay astern of the No. 61, with the scow Kelleher astern of the Cleary No. 74.
When the No. 60 was being warped into position, it was thought that she touched bottom at her starboard bow corner, and before the landing had been completed she was moved somewhat astern to assume the position with reference to the No. 61 above described. If there was such a touching, no damage to the No. 60 resulted.
By reason of the nature of the cargo of stone being carried by the Kelleher, it became necessary to descharge the latter, prior to undertaking the discharge of the No. 60. To accomplish that purpose. both the No. 60 and the No. 61 were pulled laterally by an ingenious operation of the boom of the crane and the bucket falling therefrom, outboard from the pier; by this time the bows of the No. 60 and the No. 61 were in line, the No. 60 being the one furthest away from the pier.
As the result of that operation the No. 60 grounded, and although no damage was at once discovered, her bargee Olsen later became aware that there was trouble below due to the falling of the tide; he heard sounds of cracking of the timbers, and using a flashlight he discovered two broken kelsons, ...