The opinion of the court was delivered by: LEVET
OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW.
This is a suit by M.P. Howlett Inc. against the Tug Dalzellido and McAllister Brothers Inc. for damage to libellant's floating crane, Howlett No. 6, while under tow by respondent's Tug Dalzellido on a voyage from Weehawken, New Jersey, to Reedy Point, Delaware, when the said floating crane Howlett No. 6 sustained damage to her boom off the New Jersey Coast.
Libellant claims that respondent was negligent in commencing the voyage despite predicted adverse weather and sea conditions which occurred during the voyage and caused the damage herein. Libellant also contends that the tow negligently continued ahead after the adverse weather and sea conditions were experienced and after the tug mate noticed that the boom of the crane was swaying from side to side but before the boom fell to the deck.
Respondent contends that its crew was not negligent in commencing or in continuing the tow in light of the weather conditions reasonably to be expected and actually experienced. Respondent contends further that whatever damage may have been incurred by the Howlett Crane No. 6 was caused by the inability of the Howlett Crane No. 6 to meet the weather conditions reasonably to be expected due to the inadequacy of her preparation for the voyage or, in the alternative, that the damage was due to libellant's failure to inform respondent that its tow was more susceptible to rolling action of seas outside the harbor and that special and inordinate care would have to be taken in order to expose the Howlett Crane No. 6 only to very mild weather and sea conditions.
After hearing the testimony of the parties, examining the exhibits, the pleadings and the Proposed Findings of Fact and Conclusions of Law submitted by counsel, this court makes the following Findings of Fact and Conclusions of Law:
1. On April 27, 1966, libellant, a Delaware corporation, was the owner of a whirly type crane mounted on a floating steel barge 85 feet long, 36 feet wide, and 8 feet deep (2-3, 183-184).
The steel boom, of the gooseneck type, was secured to the crane. The straight part of the boom, from its base, is 65 feet long and the gooseneck end is another 28 to 32 feet (3, 12).
2. Respondent, McAllister Brothers Inc., a New York corporation, was the owner of respondent Tug Dalzellido on April 26, 1966, both of which were within the jurisdiction of this court and within the Southern District of New York (183).
3. On April 26, 1966, libellant engaged the services of respondent McAllister Brothers Inc. to tow libellant's crane barge Howlett No. 6 from Pier 9, Weehawken, New Jersey, to Reedy Point, Delaware. The Tug Dalzellido was selected by respondent to perform the service (5, 43, 122).
4. On April 26, 1966 and on the morning of April 27, 1966, libellant, through its master mechanic, Daniel Witham, Jr., and seven fellow employees, prepared the Howlett crane for towage. The purpose of the preparation was to insure that the crane would not be damaged in route by the movement of the open sea, particularly to insure that the boom of the crane would not sway from side to side.
The method employed by Mr. Witham was to jack up the counterweight on the back of the crane (9-10) and weld angle irons and stiffeners from the base of the crane to the deck of the barge, thereby securing the crane itself in a fore and aft position (10-11). The boom was secured in the vertical plane by first being lowered in a fore and aft direction to a position where the forward end of the boom was approximately 20 feet above the deck and 28 feet ahead of the bow of the barge, forming a 45 degree angle with the deck (12, 25-26). To prevent the boom from swaying from side to side, two one inch cables were secured from the forward end of the boom to the port and starboard bow cleats, respectively. At the base of the gooseneck portion of the boom, two seven-eighth inch cables (the holding line and closing line) were secured to the aforementioned port and starboard bow cleats, respectively, and tightened by turnbuckles. At the middle of the straight portion of the boom, two cables, each seven-eighths inch wide, were secured to port and starboard quarter cleats, respectively, and tightened by turnbuckles (Libellant's Ex. 1; 12-15).
5. This court finds that libellant's floating crane, Howlett No. 6, was properly and adequately secured for the contemplated voyage, i.e., sufficiently strong to withstand the ordinary perils reasonably expected on the trip.
6. At approximately 6:00 A.M. on April 27, 1966, Tug Dalzellido commenced to tow libellant's crane to Reedy Point, Delaware. By approximately 7:30 A.M. the tow had reached the Narrows of New York Harbor; at that point the crane-barge was placed at the stern of the tug on a bridle and hawser (17, 123, 126-129).
7. At 5:00 A.M. on April 27, 1966, the United States Weather Bureau issued small craft warnings "for northeasterly winds 15 to 25 knots with higher gusts" for Cape May, New Jersey, to Block Island (Long Island). The 11:00 A.M. and 5:00 P.M. forecasts on that day contained the same information (Libellant's Ex. 2).
8. The 5:00 A.M. weather forecast, referred to in Finding of Fact No. 7, was broadcast over WOX, a marine band radio station, at the customary time of 7:15 A.M. on April 27, 1966; it was also available to the Tug Dalzellido upon radio request. Captain DePew did not hear this report, nor was he notified of this prediction; instead, he relied upon a report of the previous night which predicted winds having a maximum velocity of 15 knots (180).
9. Mate Oliver, a crew member of the tug, claimed that he heard the forecast on the radio on the morning of April 27. This court finds that his testimony was inaccurate since he stated that the report predicted "easterly [winds] 10 to 15." (141-142)
10. When the tow passed Sandy Hook, a peninsula several miles to the south of the Narrows, it proceeded southbound along the New Jersey coast. Although the wind velocity had been from 10-15 miles per hour (130, 162) in the vicinity of the Narrows, it intensified to 20 miles per hour at Sandy Hook (141-142). The wave heights increased from 2-4 feet (130, 162) to 5 feet in height (141-142). The testimony also disclosed that the Howlett crane was rolling from side to side in a greater arch (130, 133, 141-142, 162-163).
11. Weather observations from Barnegat Light Vessel, which is 22 miles south of Sea Girt, New Jersey, at 7:00 A.M. on April 27, 1966, indicated northeast winds of 20 knots with wave heights of 8 to 9 1/2 feet. At 1:00 P.M., the Vessel reported winds of 21 knots, easterly, with wave heights of 8 feet (Libellant's Exs. 13, 13A, 14; 186-190).
The weather station at Atlantic City, New Jersey, which is 46 miles south of Sea Girt, observed northeasterly winds of 20-22 knots, with gusts as high as 32 knots at the aforementioned times (Libellant's Ex. 15; 190-192).
12. While continuing southbound along the New Jersey coast, Mate Oliver periodically observed the turbulent swaying motion of the crane's boom (154-156, 158) but did not stop the voyage or inspect the crane ...