The opinion of the court was delivered by: HARTIGAN
This is a libel in admiralty brought by Benjamin D. Rooks of Barrington, Rhode Island, Against Elliott & Watrous, Incorporated, a Connecticut corporation, doing business in East Providence, Rhode Island, to recover damages for the loss of a cargo of oyster shells valued at $ 1,206.
The libelant is a grower and dealer in oysters and as incidental to said business accumulates, sells and uses for planting seed beds large quantities of oyster shells.
The respondent is a corporation doing business as marine contractors and maintains a fleet of tugs, barges and scows for the transportation of freight.
On July 5, 1944, the libelant and respondent entered into a written contract for the transportation of oyster shells belonging to the libelant from Warren, R.I., to planting grounds near New Haven, Connecticut. (Ex. A.)
On July 7, 1944, the respondent provided a scow owned by it and the tug Miranda for the transportation of a load of oyster shells pursuant to said contract.
The tug and scow left the libelant's dock at or about 8 o'clock in the morning of July 7th for waters in the vicinity of New Haven, Connecticut, and proceeded around the northerly end of Patience and Prudence Islands in the general vicinity between Sandy Point Light and Prudence Island at which point the scow and its cargo of 12,060 bushels of oyster shells sank in over 100 feet of water at about 11:30 a.m. and the shells were completely lost.
The weather was clear and the wind was southerly and blowing at the rate from five to seven miles an hour.
The respondent alleges in its answer that at the time the scow sank 'A fleet of naval vessels know as 'P.T. boats', so called, came in close proximity to said scow and at a great rate of speed and thereby caused a great swell of surge of the seas to sweep over said scow and cause said scow to take water and putting one of the pumps of said scow out of commission, the amount of water then taken caused the stern of said scow to be depressed below the surface of the sea and then the sea rushed into the hold of said scow; that the respondent, its agents and servants, did all that was possible to be done to save said scow and said cargo.'
The respondent also alleges that the 'said scow was engaged in transporting merchandise from a port of the United States of America and that her owners prior to the commencement of her voyage had exercised due diligence to make her seaworthy, and properly manned, equipped and supplied and that under the terms and conditions of the Act of Congress approved February 13, 1893 entitled 'An Act relating to the navigation of vessels,' etc. (known as the Harter Act, 27 Stat. 455, 46 U.S.C.A. 190 et seq.) the ship and her owners are not responsible for any loss or damage that may have been incurred by reason of the matters alleged in the libel.'
The scow was of the hollow box design. It was also described as a 'deck scow', 112 feet long, about 30 feet wide, 8 feet deep, with a flush deck that had 3 or 4 inches of coaming. It was equipped with two 4 inch gasoline pumps with 20,000 gallons capacity located fore and aft on the deck, and also two hatchways through which one could go into the hold. There were covers for the hatchways and heavy canvas for battening them down.
The scow had previously carried piles, heavy timber, coal and gravel. It had a crew consisting of a captain and a seaman, both of whom had several years experience.
He admitted that in that territory he had frequently seen 'P.T. boats' on previous trips and that the 'P.T. boats' frequently went close to him. On the day in question six or seven of them went by in single file, 'off two, three hundred feet' at a rate of speed of about 45 or 50 miles an hour. He testified the sea surged up several times and swept the scow from bow to stern.
He testified that the first wave put the stern pump out of commission; that he went to the forward pump and got it started; that the scow settled down by the stern and that it was under water at about the fourth surge of the sea.
He testified that two pumps were sufficient pumping equipment for the scow and that he did not see a seam open up in the scow.
He admitted that both hatchways were not shut as the 'P.T. boats' came along; that they were kept open in order to go down and check the suctions and go through the hold once in a while; that they were kept open 'until we get down where we are going outside. Then we seal them.'
He testified that the scow sank about fifteen minutes after the 'P.T. boats' went by.
When asked: 'Now after these boats went by, will you describe what happened and what steps you took right up to the time that the scow sank?' he answered, 'Well, as I say, the boat went by and just caused us heavy seas and whatever happened, we don't know, but I couldn't get the stern pump going, as I said. We tried to get the front one and it was too late. And the scow started to make water very fast.'
He testified that as the scow began to sink he beckoned to the tug to come back; that it did and as it got alongside, the scow was pretty near under, and that he ...