The opinion of the court was delivered by: GOETTEL
This case presents rather perplexing problems in identifying the party responsible for the sinking of the unmanned scow FREDERICK STARR NO. 52 (the "Scow").
The Scow's owner and insurer have sued the towing company that last moved the vessel and the customer who had possession of it when it sank.
As the following description reveals, although the plaintiffs established many facts during the trial, they did not succeed in showing which of the two defendants caused the sinking.
Plaintiff Callanan Marine Corporation ("Callanan"), the owner of the Scow, is a New York corporation located in Bethlehem, New York. As part of its business, it sells crushed stone.
Plaintiff New Hampshire Insurance Company is the hull insurer of the Scow. Defendant McAllister Brothers, Inc. ("McAllister"), is a New York corporation which is engaged in the marine towage business. At all times relevant to this action, McAllister owned and operated the tug NANCY McALLISTER (the "Tug"). It also operated the Sound Towing Company, the joint venture that received Callanan's order to tow the Scow to the docks of defendant Petrillo Builders Supply Co., Inc. ("Petrillo"). Callanan has been doing business with Petrillo, another New York corporation in the sand and gravel business, for approximately forty years. Petrillo's facilities are located in Mount Vernon, New York, along that part of the Hutchinson River which is often referred to as the Eastchester Creek. As a partially dredged tidal area, the creek is navigable by small commercial vessels only at high tide.
In a letter dated April 23, 1979, Callanan offered to sell to Petrillo various kinds of crushed stone and asphaltic materials. The offer was worded, "f.o.b. scows, your dock, minimum safe berth 10'." Almost a year later, in March of 1980, Louis Petrillo, a vice-president of the company bearing his family name, ordered 1-1/4 inch stone from Callanan. The order was placed with Callanan's dispatcher, J. Robert Reilly, and a delivery date of April 7, 1980, was requested.
Callanan often has its crushed stone transported to its customers in the Scow and similar vessels that are owned by Callanan but towed by other companies. The Scow is an open-decked vessel that is constructed of steel and designed to carry stone. It is 120 feet long, 38 feet wide, and 10.8 feet deep. Owned by Callanan since 1977, the Scow had just come out of dry dock when it was inspected by Callanan for the towage to Petrillo's facilities and found to be in good condition. This was later confirmed by the Tug's captain, who testified that the Scow was in good condition and equipped with good lines.
In accordance with its normal business practice, shortly after receiving Petrillo's order, Callanan requested McAllister's dispatcher to send a tug to take the Scow in a loaded condition from Callanan's facilities on the Hudson at Kingston, New York, to those of Petrillo on the Eastchester Creek. After its request was accepted, Callanan had the Scow loaded on April 2, 1982, with approximately 975 cubic yards of 1-1/4 inch crushed stone. In its loaded condition, the Scow drew approximately ten feet of water.
On the same day, the dispatcher for Sound Towing, Inc., and McAllister received instructions from Callanan's dispatcher, Reilly, that the Scow and the two barges
CALLANAN NO. 87 and SHARON NO. 2 were laden and ready to be towed. The SHARON NO. 2 was to be delivered to Hoboken, New Jersey, and then the Scow and CALLANAN NO. 87 were to be taken to Petrillo's facilities on the Eastchester Creek. Reilly particularly requested that at Petrillo's the Scow be placed at the #1 berth ("#1 Slip Berth") along the "slip" that branches westward from the creek and the CALLANAN NO. 87 at the #3 berth ("#3 Main Berth") along the main channel of the creek.
The resulting voyage was undertaken and accomplished without incident or damage to the Tug or any of the three vessels under its tow. At approximately 0130 hours on April 3, the towage began. Seventeen hours later, the SHARON NO. 2 was delivered at Hoboken. Approximately seven hours after that, at 0020 hours on April 4, which happened to be Good Friday and the beginning of the Easter holiday weekend, the Tug moored the Scow in one of Petrillo's two berths along the slip. A few minutes later, the CALLANAN NO. 87 was left in the #3 Main Berth.
The Tug had arrived at Petrillo's docks at high tide, when the water was over twelve feet deep. Although the Tug's captain knew that the depth would decrease to six feet at low tide, he was also aware that scows were often allowed to settle onto the bottom of the slip berths without incurring any damage, even when loaded. Deliveries similar to that made by the Tug were common both before and after the events in question.
Three days later, on Monday, April 7, an employee of Callanan arrived to check the delivery of the two vessels. Joshua Petrillo, Jr., gave him a clean receipt for the Scow and its cargo, thereby accepting the cargo as delivered.
The next day, another Callanan employee, Robert Check, observed the Scow attached to the dock only by its bow line, lying at an angle away from the dock and out across the slip's narrow channel, still loaded, resting on the bottom, but apparently undamaged. On the following day, April 9, Check observed the Scow in the same position during high tide and realized that it had sunk. (See diagram on the following page.)
[SEE ILLUSTRATION IN ORIGINAL]
Several days were required to salvage the Scow and tow it to a yard for repairs. A survey of the damage to the Scow, conducted on April 30, 1980, revealed the following problems:
(1) Bottom plating in way of the starboard aft main compartment just forward of the aft rake compartment, in the "A", "B" and "C" strakes was set up approximately 26 inches and torn from the bilge knuckle to ...