The opinion of the court was delivered by: LEVET
This is a suit brought by Charles Gural as libellant (hereinafter called 'Gural' or 'libellant') against Terry Contracting, Inc. (hereinafter called 'Terry' or 'respondent') to recover damages for the sinking of libellant's scow or craneboat, New Jersey, which occurred on October 28, 1955, in the Harlem River, New York City, while said scow was moored to an abutment of a bridge commonly known as the Third Avenue Bridge.
The respondent Terry impleaded L. & J. Concrete Corporation (hereinafter called 'L&J' or 'respondent-impleaded'), which had been engaged in loading the scow with broken concrete prior to the sinking.
After hearing the testimony of the parties, examining the exhibits, the pleadings and briefs submitted by counsel, this court makes the following Findings of Fact and Conclusions of Law:
1. That at all times mentioned hereinafter the libellant Gural was the sole owner of the scow or craneboat, New Jersey.
2. That at all times hereinafter mentioned the respondent Terry was and still is a domestic corporation with an office and place of business located in the City of New York, within the Southern District of New York and within the jurisdiction of this court.
3. That at all times hereinafter mentioned the respondent-impleaded L & J was and still is a domestic corporation with its office and principal place of business located in the City of New York, within the Southern District of New York and within the jurisdiction of this court.
4. That in or about the month of October 1955, the respondent Terry was engaged as general contractor in repairing and improving the Third Avenue Vehicular Bridge, which spans the Harlem River in the City of New York and that included in said work was the demolition and removal of the old concrete roadbed of the bridge. (See S.M. 170.)
5. That on or about the 13th day of September 1954, the respondent Terry and respondent-impleaded L&J entered into a certain contract or subcontract whereby the said respondent-impleaded L&J agreed among other things to demolish and remove the existing pavement on the said bridge and to dispose of the said removed material, which material, broken concrete, was to be loaded on barges to be moored on the fender system of the bridge. (See Exhibit A: S.M. 172.)
6. By said contract between Terry and L&J, L&J agreed among other things as follows:
'28. Should any person, or persons, or property be damaged or injured by the Subcontractor, or by any person, or persons employed under it in the course of the performance by it of this agreement or otherwise, whether by negligence or otherwise, said Subcontractor shall alone be liable, responsible and answerable therefor and does hereby agree, to and with the Contractor, to hold harmless and indemnify the Contractor of and from all claims, suits, actions, costs, counsel fees, expenses, damages, judgments or decrees by reason thereof.'
7. That sometime on or about October 24, 1955, the respondent Terry entered into a written agreement with the libellant Gural, under the terms of which the said Gural was to furnish a scow to be placed alongside the said fender system into which scow the concrete rubble aforementioned could be loaded. This agreement was as follows:
'Monday, October 24, 1955
'This is your order to furnish an empty scow alongside the fender system of the swing span pier of the Third Avenue Vehicular Bridge on the Harlem River and to remove the scow and its contents of demolished roadway from the swing span and to dispose of the said contents. 'You will cover all insurance required on the scow and its towing and provide necessary permits.
'It shall be your responsibility to maintain this scow ...