The opinion of the court was delivered by: TENNEY
The instant action, brought on the admiralty side of this Court, is to recover damages for the loss of libelant's pile driver No. 5 (hereinafter referred to as "No. 5" or "pile driver") which capsized and sank while in tow of respondent Red Star Towing & Transportation Company's (hereinafter referred to as "Red Star" or "respondent") tug OCEAN KING (hereinafter referred to as "OCEAN KING") on June 7-8, 1958.
The libel was tried to the Court without a jury on November 6, 9 and 10, 1964. Jurisdiction of the Court is not disputed.
In early April 1958, Hughes Brothers, Inc., a respondent herein (hereinafter referred to as "Hughes") contracted with libelant to tow No. 5 from New York City to the vicinity of Northville, Long Island, N.Y., and return. No 5 was towed to Northville on or about April 9, 1958. On or about June 6, 1958, Hughes, upon being informed by libelant that No. 5 was ready to return, engaged the tug OCEAN KING, owned by Red Star, to perform its contractual obligation to tow No. 5 back to New York. (See P6 of Libel, admitted in Hughes' answer P6, P3(d) of the Pre-Trial Order.)
In the early evening of June 7, 1958, the tug WESTCOAT, under the direction of Captain Louis Greenhalgh, towed the unmanned No. 5 from Mattituck, Long Island, into Long Island Sound. At a point about one mile northwest of Mattituck Creek, the WESTCOAT delivered the No. 5, rake end first, to the OCEAN KING, under the command of Captain Vincent Kendrick. Thereafter the OCEAN KING was made up to No. 5 on a hawser joined to a wire bridle which was secured to towing bits on the rake end of the pile.
The WESTCOAT ran alongside No. 5 for the first fifteen minutes, and by means of radio communication told the OCEAN KING that her method of towing and speed appeared to be proper. The WESTCOAT thereafter returned to Mattituck. The OCEAN KING, with No. 5 in tow, departed at approximately 8:00 P.M. and proceeded at a speed of 5 M.P.H. toward New York City. At that speed there was no solid water coming over the rake end of No. 5. The weather then, and for the entire period in question, was fine, the sea being calm with no swell and no chop, and the wind south-southwest variously estimated from 5 to 20 M.P.H.
Thereafter, at a time reported in the tug's log as 12:35 A.M., June 8, the OCEAN KING commenced to vibrate and No. 5 was discovered by the tug's personnel to be submerged and afloat upside down.
The tug was slowed down and during the next eighteen hours proceeded at a reduced rate toward New York to meet a salvage vessel which was to attempt to salvage the capsized pile driver. At approximately 6:00 P.M., June 8, the derrick COLOSSUS, in the tow of a Red Star tug, was observed approaching the OCEAN KING. The COLOSSUS gave an order through the tug's captain, to the OCEAN KING, to bring No. 5 alongside the derrick. In so doing the speed of the OCEAN KING was increased about ten revolutions and about a minute later No. 5 sank at a point 2.5 miles northwest of Eaton's Neck Light.
In mid-July 1958, a salvage diver found No. 5 in about eighty feet of water, resting down on her leads and rake end on a muddy, sticky clay bottom. A cable was affixed to her leads and as the salvage derrick took a strain on the cable, the pile driver pivoted on her rake end until she was righted and resting in an upright position on the bottom. The second day of operation the cable was secured to the leads and No. 5 was dragged toward shore until it lay in about 55 to 60 feet of water. Cables were secured around the bow and stern, and on the third day she was hoisted until her house broke water and was then pulled into Oyster Bay and beached on mud flats in high tide.
The tide then dropped, exposing her deck and the 20 to 25 tons of mud (about five feet high) that had accumulated on the rake end. The mud was cleared off by hoses and shovels. After the deck was thus cleared, it was found that, of the five hatch covers placed on No. 5's deck, one at the rake end was missing and another was lying partly over its hatch opening. One forward hatch cover was lying adjacent to its opening and the other two forward covers were in place and battened with two-by-fours; in addition, the syphon outlets were not plugged.
The foregoing facts are not seriously disputed and I find them to have been sufficiently proven.
Before I proceed to a resolution of the conflicting facts, a brief summary of the generally well-settled principles of law, applicable to towage cases, is appropriate.
"In a contract of towage, the owner of the tow is responsible for the seaworthiness of his vessel and the owner of the tug for its safe navigation. [Citing cases.]" Curtis Bay Towing Co. of Va., Inc. v. Southern Lighterage Corp., 200 F.2d 33, 34 (4th Cir. 1952).
"The owner of the tug is not an insurer against whom the mere loss raises a presumption of fault. Stevens v. The White City, 285 U.S. 195, 52 S. Ct. 347, 76 L. Ed. 699; The Lapwing, 5 Cir. 150 F.2d 214; but he is obligated to perform his duties with such reasonable care and maritime skill as prudent navigators usually employ in similar undertakings, and with such consideration as special circumstances may require. [Citing cases]." Curtis Bay Towing Co. of Va., Inc. v. Southern Lighterage Corp., supra, at 34-35. Moreover, "a tow is presumed to be unseaworthy when she sinks under normal conditions, and in the absence of proof that she was improperly handled. [Citing cases.]" The Radnor, 21 F.2d 982, 983 (D.Md.1927).
On the other hand, while it is true that "[when] an accident occurs to the tow the action is ex delicto and the burden is on the tow to show negligence on the part of the tug. [it must be borne in mind that] * * * circumstances may create a strong presumption of negligence. In that event the burden is on the tug to rebut the prima facie case or, at least, to show a reasonable excuse for the accident other than its own negligence. [Citing cases.]" Simkins v. R. L. Morrison & Sons, 107 F.2d 121, 122 (5th Cir. 1939).
The application of these principles to the disputed facts herein is the task to which I now direct myself.
No. 5, built in 1904, was a rectangular, flat-bottomed wooden-hulled craft about 58 feet long by 24 feet wide by 6 feet deep, with a rake at her stern. At her bow or lead end she had 65-ft. high wooden leads holding the 4,000-pound driving hammer, and, at her stern or rake end, a wooden house which enclosed the machinery - consisting of a boiler, a two-drum hoisting engine, an air compressor, two coal bunkers and an air tank. Inside of the hull, beneath the machinery, there were located two boiler water tanks designed so that any water in them could not overflow into the hull. In addition, there were three steam-operated syphons built into the hull, their lower ends about one to two inches above the bilge, and their outlets cut off flush with the deck. Two were located at the lead end and one on the port side of the rake end. Access to the hull was by means of five hatch openings, two at the rake end and three between the house and the leads. Each was equipped with a circular metal hatch cover.
Caulking had been done on No. 5 in the fall of 1955 on a mud flat at Rogers' Staten Island Yard. The areas checked and caulked included both sides and the lead end. In order to properly caulk these areas, the sheathing covering them was removed, exposing the hull planking underneath. The hull planking on both sides and the lead end, revealed when the sheathing was thus removed, was inspected by the Yard Superintendent, Sigmund Stach, and he was satisfied as to its condition. The caulking on the deck area was renewed as well. However, due to the fact that No. 5 was not in dry dock but only lay on a mud flat, it was not possible, for obvious reasons, to efficiently caulk the bottom and rake ends at that time.
Thereafter, in January of 1956, it was determined that No. 5 needed further work done, and she was drydocked at the Brewer Staten Island Yard, operated by the Brewer Dry Dock Company.
In addition to the renewal of caulking on the bottom and rake end (which process included reefing out the old caulking, replacing it with new caulking and painting the seams with black seam paint), the entire bottom planking was respiked, as was the planking on the rake end after the sheathing had been removed. Holes left by eroded spike heads were searched out and plugged with wooden plugs, as well. Several timbers that had outlived their usefulness were replaced and another approaching that stage was reinforced. Lead flashing, used for ...