The opinion of the court was delivered by: DAWSON
These are three actions in admiralty which were consolidated for purposes of trial and which arose out of the careening of the deck scow Shamrock 80 in the East River, near Stakeboat No. 2 adjacent to Rikers Island, on March 18, 1957, while in tow of a tug and while carrying a cargo of scrap iron. Recovery is sought for (1) the loss of the cargo of scrap iron, (2) damages to the scow Shamrock 80 and (3) damages as a result of the expense of clearing the fouled approaches to Stakeboat No. 2.
Shamrock Towing Co., Inc. and Schiavone-Bonomo Corp. were respectively the owner and charterer of the scow Shamrock 80.
Apex Salvage Corporation sold the scrap iron to Schiavone-Bonomo Corp. and also loaded it aboard the scow.
Russell Bros. Towing Co., Inc., was the owner of the tug J. Raymond Russell which had the scow in tow at the time of the careening.
William J. McCormack Sand Division, Penn Industries was the owner of Stakeboat No. 2.
The Shamrock 80 was a typical wooden harbor deck scow of approximately 113 feet in length, 33 feet in width and 8.7 feet in depth.
A contract had been entered into on January 10, 1957, between Schiavone-Bonomo Corp. and Apex Salvage Corporation, for the purchase by the former of one scow load of approximately 500 gross tons of No. 2 heavy melting steel, to be delivered f.o.b. and to be loaded, stowed and trimmed aboard a scow at the dock of Apex Salvage Corporation in the Bronx River. This cargo was loose, rather than bundled, scrap iron consisting of cut up automobile parts somewhat greasy in nature.
Loading of the scow Shamrock 80 was begun on March 11, 1957, and was performed by the use of a movable crane and magnet operated by employees of Apex Salvage Corporation. On Friday, March 15th, the captain of the scow Shamrock 80, who was supplied by the scow owner Shamrock Towing Co., Inc. protested the manned in which the cargo had been loaded on the starboard side near the bow. This information was transmitted to Schiavone-Bonomo Corp., whereupon Mr. Moscowitz of Schiavone telephoned Mr. Bassow, President of Apex Salvage Corporation and advised Mr. Bassow that the scow was not being loaded properly. While there is some conflict in the testimony concerning these matters, it appears that Mr. Bassow thereupon assured Mr. Moscowitz that Apex knew how to load scows and that the load was 'all right.' On the following day, employees of Apex Salvage Corporation, by use of the crane, swung the magnet, weighing 4,000 pounds, against the side of the load so as to drive the part of the cargo which was over the starboard railing toward the center of the scow.
About noon on March 18th a representative of B. W. King, Inc., visited the Shamrock 80 at the Apex plant to determine the weight of the cargo by taking water displacement measurements of the scow. Such measurements required the inspector to ascertain the quantity of water, if any, below deck in the Shamrock 80, and his inspection showed a minimum quantity of water, such as is found in most wooden scows. At that time the scrap aboard the Shamrock 80 was stowed to a height of between 15 and 20 feet above the deck and the B. W. King Co. measurer advised the President of Apex that the vessel was top heavy as a result of the method of stowage and observed that the cargo was stowed as high as he had ever seen on a scow of this type.
Later calculations showed that the cargo weighed approximately 615 gross tons. Since the President of Shamrock testified that during the prior year the Shamrock 80 had carried loads in excess of 700 tons, but of lesser bulk than the cargo involved in this litigation, it does not appear that the scow was overloaded. The question is not of the load on the scow but rather the height and stow of the cargo.
After the scow Shamrock 80 had been measured for the weight of the cargo, the scow was taken in tow by the tug Russell 9 shortly after noon on March 18, 1957, and towed approximately 1 3/4 miles to the McCormack Stakeboat No. 2 in the East River, where the scow remained until the tug J. Raymond Russell arrived to tow the Shamrock 80 to its destination at Jersey City.
The tug J. Raymond Russell, which had the barge D.L. & W. No. 155 in tow alongside, came up from astern of the Shamrock 80, so that a breast line could be secured from the bow of the Shamrock 80 to the bow of the D.L. & W. No. 155. At this time the captain of the tug J. Raymond Russell observed that the scow Shamrock 80 was listing at least four, and possibly six inches to its port side. The tug J. Raymond Russell then backed clear and proceeded ahead of the two scows, first placing a towing hawser on the starboard bow corner of the D.L. & W. No. 155 and then placing another hawser to the port bow corner of the Shamrock 80. After the tow had been made fast and the line from the scow Shamrock 80 to the stakeboat let go, the tug J. Raymond Russell started to get under way at slow speed. As the tug J. Raymond Russell began to turn to its own port, the deckhand reported that the scow Shamrock 80 seemed to be in difficulty and, although the captain of the tug J. Raymond Russell immediately straightened up the tug, the list of the Shamrock 80 continued until she careened and dumped her cargo over the port side.
The captain of the tug J. Raymond Russell stated he would not have taken the scow in tow if there were water in her, since the water sloshing from side to side would sharply affect the stability of the scow. The tug captain relied on the scow captain's statements that there was no water in the scow. Although neither tug captain had any fear of towing the scow if it contained no water, both the captain of the tug Russell 9 and the captain of the tug J. ...