THE WARREN

• Decision Date: 28 February 1930
• Docket Number: No. 7200.,7200.
• Citation: 40 F.2d 700
• Parties: THE WARREN. In re ULTICAN et ux.
• Court: U.S. District Court — Western District of Washington

40 F.2d 700 (1930)

THE WARREN.

In re ULTICAN et ux.

No. 7200.

District Court, W. D. Washington, S. D.

February 28, 1930.

COPYRIGHT MATERIAL OMITTED

Theodore B. Bruener, of Aberdeen, Wash., for petitioners.

Elmer S. Smith, of Centralia, Wash., and J. O. Davies, of Seattle, Wash., for respondent.

CUSHMAN, District Judge (after stating the facts as above).

Two main grounds for recovery are pressed, one that the Warren was shown to be unseaworthy at the time of the charter, the other, that her loss, being unexplained, there arises a presumption that she was unseaworthy. These will be considered in the order stated.

On the 26th day of March, 1927, petitioners chartered the Warren to the Independent Gravel Company of Seattle, Wash., the charter being for one year, she then lying in the waters of Grays Harbor, to be delivered to charterers in the waters of Puget Sound, it being understood that she was to be used in the sand and gravel business of charterers in the waters of Puget Sound and British Columbia, the charterers to fully man the Warren during the life of the charter and to keep her in good seaworthy condition and at the termination of the charter to redeliver her in as good condition and repair as at the time of charter, reasonable wear and tear excepted.

The Warren was built by the Union Iron Works in 1909, as the Lieutenant J. A. Gurney, for the service of the United States Army Quartermaster. When launched she came under her own power to Puget Sound where she was used about the Sound forts until 1923 when petitioners purchased her. Under her own steam she was taken to Grays Harbor and "converted" into a tugboat. She was thereafter used out of and about that harbor in towing service until March, 1927. Her registered length, breadth and depth were 58×13.1×6.6. She was 65 feet over all. She was at the time of her loss equipped with 170 horse power Diesel engine; her freeboard was 5 or 6 feet forward and 2 or 2½ feet aft, with a 57-inch propeller, 2½ feet under water. Her towing bit was 36 inches high. While the proportions may not be exact, it was shaped somewhat as follows:

and placed just to the rear of the house and 23 feet forward from the stern.

The evidence is that her frame was of oak; her planking of Port Orchard cedar; that the latter timber will not rot; that she was copper fastened and copper bolted, with three steel bulkheads.

There is a dispute in the evidence as to the lifeboat, whether of steel or wood, as to its dimensions, seat or seats, and oars. The preponderance of the evidence is that it was of steel, 15 or 16 feet long with two seats for rowers. A deck hand employed on her as late as February, 1927, testified that she had a full complement of oars and locks and "one each extra." Petitioner Richard Ultican testified that he thought it was certified for seven men. There was further testimony that the cubic contents was "carved" in the bow and stern as 58 cubic feet. There was testimony that 58 cubic feet capacity in a lifeboat was sufficient for 5.8 men. The Warren, not being over 65 feet in length, was not subject to regulation under title 46, chapter 16, section 511 (USCA). However, under the regulations of the Department of Commerce, Steamboat Inspection Service, of May 4, 1929, for bays, sounds and lakes other than the Great Lakes, on page 66, paragraph 20, such capacity would be sufficient for five men. So would it be under the Ocean and Coastwise Rules of May 4, 1929, pages 73 and 74.

The evidence is that the lifeboat did not leak and was equipped with two or three air-tight compartments. The impression gathered from this evidence is that the number was three, one at each end of the boat and one near the middle. She had about ten life-preservers and two life-rings, the latter kept in the pilot house.

In 1925 the rim, or horseshoe, was found to be soft and was replaced. For lack of ventilation in this part (the stern) of the boat, it is shown that this is the first place to be affected by dry rot. There was no other evidence of decay save inferential from that concerning caulking, presently to be considered.

A change was made in 1924 when a Diesel engine weighing in the neighborhood of seven tons replaced the one for steam. The testimony is that the weight of a steam "plant" would be about the same. It has been argued that the base for the Diesel engine lessened the capacity of the bilge so that the danger was increased when an unusual amount of water was in it. The evidence shows that on practically all tugboats Diesel engines are now used and nothing unusual has been shown as to the installation of this engine or that the bilge capacity was inadequate.

It has been contended that the companionway forward was open, so that if she shipped water it would enter the forecastle. The preponderance of the evidence shows that there was a coaming around the companionway with a sliding hatch cover on a slope, and in addition a canopy. There is no evidence that water shipped, or otherwise ever entered through this companionway. No ports are shown by the photographs of the Warren. The undisputed evidence is that such companionway was necessary for ventilation in the forecastle.

Before bringing the boat from Grays Harbor to Seattle for delivery to the charterers, she was overhauled, which included carpenter work, painting, and caulking. There is testimony that on this trip there was water in her bilge a foot over the floor plates, and that being unable to pump it out she put in behind Destruction Island to do so. There is a dispute in the evidence concerning this. A brother of respondent, named Graves, testified that he worked as assistant engineer on this trip and that the strainer was blocked by caulking driven out from the seams, meaning that the fibre used in caulking the seams between the planks was driven out, which caulking was in the water to be pumped. If this were true no question is made, but it would show an unseaworthy condition. The preponderance of the evidence, however, is that the strainer was clogged by shavings and chips from the recent carpenter work done on the boat while at Grays Harbor. In this recent overhauling new packing had been put in the stuffing box. It appears from the evidence that for a time after such a replacement the vessel will leak through the stuffing box; that it should be tightened gradually, otherwise the packing will be burned out. It appears that this was the source of the water in the bilge. It was necessary to stop behind Destruction Island to permit the man at the wheel to go below and tighten the stuffing box and fix the pump with an auxiliary rig. This was occasioned because the chief engineer, Tucker, the deceased, was too sick to do either, the man at the wheel testified. He also testified that the above-mentioned witness was seasick in bed. He is corroborated as to the latter being seasick. The trip from Grays Harbor to Seattle was made in thirty-three hours.

There has been testimony that a fourth pump of 2½ or 3 inches, referred to as a siphon pump, capable of pumping 800 to 1,000 gallons a minute was installed during the operation of the boat by charterer about May first, from which it is argued that the Warren was then in a leaky condition. All the pumps were capable of being used for pumping the bilge. The preponderance of the evidence is that this latter pump was installed for the purpose of pumping out the towed scows, as the other pumps on board were not capable of pumping out the scows "in short order." One of the pumps was a hand pump on the deck worked with two or three men on the handles.

On May 23, 1927, the Warren had made seventeen round trips with scows between Seattle and Victoria — empty from Seattle to Victoria and loaded upon return. There is no evidence of any trouble having been experienced during this time on account of the Warren not being seaworthy, with the exception of that of the witness Graves, or that any complaint had been made by the deceased or any other on such account. The master of the Warren was an experienced one. With a crew of five men she was fully manned.

It appears that the officers of the charterer directed that the boat remain for a time at Seattle at the end of the last of these trips. The crew, it is testified, on account of the Queen's Birthday celebration in Victoria, wished to lay over at Victoria rather than at Seattle, certain of them requested this and the charterer consented.

On the afternoon of May 23, 1927, the Warren left Ballard for Victoria with the scow Crosby No. 1 in tow. She was three quarters of a mile ahead of the Martha Foss, also leaving Ballard for Friday Harbor with two scows in tow. From this time until the Warren went down the only witnesses who saw her were those upon the Martha Foss. From their testimony it appears that the Warren, shortly after leaving Ballard (at the red buoy), let out her towline, which, it would appear, would be over 600 feet. At 11:45 p. m. the Warren was still three-quarters of a mile ahead of the Martha Foss and was then off Marrowstone Point a mile and a half and south of Admiralty Head. The Warren then altered her course for Wilson Point, passed half a mile ahead of the Martha Foss and both saluted. There was then a breeze, but the sea was not rough. The Martha Foss proceeded off Partridge Point on a course for Smith Island. As she proceeded it got rough. The Martha Foss got to Smith Island about 2:30 a. m. May 24th. The Warren had passed Port Townsend, Wilson, and Middle Points and appeared to be running for the shelter of Protection Island. The lights of the Warren disappeared at 2:25 a. m., about forty-five minutes after the Martha Foss had passed Partridge Point. The Warren was then eleven to fourteen miles from the Martha Foss. The wind was from the northwest and against the tide. The Martha Foss, which was 131×16×7 forward and 11 aft, had, after last seeing the Warren five feet of water in the after part of her...