# Transcript of Record — Birmingham Fire Insurance v. Tropical Marine Products, Inc. (No. 570) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_1599%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1957 ## Text vuridea ean No. 570 OCT 231967 - OES SOURT A Segcerpr | OF orem JOHN T. FEY, Clerk UNITED STATES ) COURT OF APPEALS No. 16,071 TROPICAL ‘MARINE PRODUCTS, INC., Appellant, versus BIRMINGHAM FIRE INSURANCE COMPANY OF PENNSYLVANIA, : Appellee. Appeal from the United States District Court for the Southern District of Florida. | (ORIGINAL, BEQQRDREGAIYED MAR. 30/56.) SE ova cu ns bac a casa sn pahecuscseacccuwaens Exhibit “A”—Photostat of Policy of Birming- | ham Fire Insurance Company of Penn., issued to T. A. Barba for $30,000.00, dated 8/14/53, Policy No. 26132 ........+..... Answer of Defendant to Complaint ................ Summons issued 2/18/55 and Marshal’s Return NES cee eee awh. Wks SR SE Interrogatories Propounded by Defendant to Plain- Ce ala we hse hk as MERKEN KU a oe hens 4 Affidavit of Stuart N. Willner, dated 5/17/55 in Sup- port of Application for Preference .......... Interrogatories Propounded to Defendant bv - Plain- — Serr Tere Ter ee TTT ee re ere eee Answers of Plaintiff to Interrogatories Propounded Se ER nn oes Wabeccendncesdccuvossseee Objections of Defendant to Interrogatories Pro- Ee reer ererere rer Answers of Defendant to Interrogatories Propounded Order entered 6/1/55 on Plaintiff's Application for Preference and for productions of certain EE cc kchkn ah coeckictdpecssk ossens avs Notice of Filing Deposition ....................... Request of Plaintiff to Produce ................... Request of Plaintiff for Admissions ................ Exhibit #1—Proof of Total Loss by Tropical Marine Products, Inc., to Birmingham Fire Ins., Co., of Penn., dated 9/3/54 .... Affidavit of Stuart Willner, dated 9/3/54 .. Exhibit #2—Final Survey. Report of James P. Stuart, Marine Surveyor, dated 8/11/53 to John McKinley 4.689822 8 6.8 688 SEO 6 Ae SS SS 4 re INDEX—Continued Request of Plaintiff for Admissions—(Continued): Exhibit #4~—Photostat of Paid Up Insurance Premium Contract with the First National Bank of Miami, Fla., dated 5/11/54 .°.... Findings of Fact and Conclusions of Law, dated DEE Ue cab okaUeeeRauaheas ness Final Judgment, entered 10/6/55 Motion of Plaintiff for New Trial ................. Order entered 11/4/55 Denying Motion of Plaintiff er Se I ig oe ee ee teas Order entered 12/23/55 extending time for filing I er I, GO chine ices natvaiecnaes Notice of Appeal ........... print tte eset essences ME I | 6 6.6 5 65k 8 kaneis SEE ETT Tee Peet eT Stipulation and Order entered 2/7/56 > File Record MY ES va ctv aces a deendeatucaes Transcript of Proceedings Case called for Trial Colloquy between Court and Counsel ,......... Statement made by Mr. Willner, Counsel for Plaintiff Sa ePaB OCs 2B 4868S 2OB 4A ES AE £24 OES OS OD Evidence for Plaintiff: Testimony of Vernon Calvin Eason, Jr. .. Thomas A. Barba .......... Leonard O. Berlinski ...... Leonard O. Balinske (Re- ee es pS EE eer ere Joseph F. Moran ............ Deposition of Henry Mills ................ Motion of Defendant, after Plaintiff rested for dismissal and Ruling thereon ............ PAGE ios INDEX—Continued PAGE Transcript of Proceedings—(Continued ): Evidence for Defendant: Deposition of itoy Jennings .............. 193 Fred H. Hallbauer ......... 214 James P. Stuart (Recalled)... 235 Colloquy between Court and Counsel .... 253 Evidence for Plaintiff (In Rebuttal): 5 Testimony of Leonard QO. Berlinski (Re- ee rere 258 Colloquy between Court and Counsel ........ 262 Appellant’s Designation of Contents of Record on BD ox Gabi asccecdaccistenedeneneeseactes 263 Cs SS vcd sec bbigth an skeas Asa deen ees 265 Motion to Correct Omission in Record on Appeal, and Order granting Motion ................ 266 SUPPLEMENTAL TRANSCRIPT OF RECORD. Notice of Plaintiff of Motion and Motion for Order requiring Defendant to Produce, etc. ........ 271 Exhibit “A”—Affidavit of Arthur Lee Willner, SE Ga uc aa sek baesceseuees 272 Order entered 6/14/55 sustaining Objections to In- teTTOMATOVIOS 2.6... cet e eee eee eee eeee 274 Motion of Defendant for Issuance of Letters Rogatory 275 Order entered 7/29/55 on Motion of Defendant for eS , rrer eerrrr rrr Terre err 276 Latters. ROmMtOry . ow... wc csc cece cece sec eeeees 277 Objections of Defendant to Request for Admissions 280 Answers of Defendant to Request for Admissions .. 281 Order entered 9/26/55 Sustaining Objections of De- fendant to Request for Admissions ........ 283 Recitation relative to Proposed Findings of Fact and Conclusions of Law submitted by the Plain- : RR eer re ery es Te a. OO 283 a¥ INDEX—Continued Proposed Findings of Fact and Conclusions of Law submitted by Plaintiff ..............4...... Recitation relative to Proposed Findings of Fact and Conclusions of Law submitted by the Defend- rors areas fae corer re a ae ae Appellant’s Additional Designation of Contents of a ee eT ree Pree ee eee Clerk’s Certificate to Supplemental Record ........ SECOND SUPPLEMENTAL TRANSCRIPT OF RECORD. Appellant’s Additional Designation of Contents of kk re errr ree rere eee Substitution of Counsel for Appellant ............ Clerk’s Certificate to Second Supplemental Record PAGE 283 288 288 289 292 293 295 On February 18, 1955 COMPLAINT together with Exhibit attached thereto was filed in the words and figures as follows: IN THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION. No. 6078-M-Civil. TROPICAL MARINE PRODUCTS, INC., Plaintiff, against | © RCN Am FIRE INSURANCE COMPANY OF PENNSYLVANIA, Defendant. Plaintiff, by its attorneys Fowler, White, Gillen, Yancey & Humkey, complaining of the defendant herein, alleges upon information and belief as fol- lows: First: That at all times hereinafter mentioned, plaintiff, Tropical Marine Products, Inc., was and still is a corporation duly organized and existing un- der the laws of the State of Florida and was at all material times the owner of a certain motor. vessel, named the Sea Pak. Second: That at all times hereinafter mentioned, the defendant was and now is an insurance under- writer chartered under the Laws of the State of Penn- sylvania and engaged in the business of insuring ma- rine risks in the State of New York. - Third: That the jurisdiction of this Court is based upon the diversity of citizenship of the parties hereto and the amount in controversy, exclusive of interests and costs, being in excess of the sum of $3,000.00. Fourth: That on or about August 13, 1953 one, T. A. Barba and the defendant entered into a contract of insurance a copy of which is annexed hereto, in- corporated herein and marked Exhibit ‘‘A’’, wherein and whereby the defendant, in consideration of cer- tain premiums paid by the said T. A. Barba, did insure the latter in accordance with the terms of the said contract against, among other losses, total loss of the motor vessel Sea Pak in the amount of $30.- 000.00. Thereafter the said T. A. Barba duly sold and conveyed to plaintiff all his right, title and in- terests in and to the motor vessel Sea Pak herein- before described and thereupon, with the consent of the defendant, the aforesaid contract of insurance was indorsed on November 10, 1953 to the plaintiff herein. A copy of the indorsement is attacked and made a part of Ewhibit ‘‘A.”’ Fifth: That on or about August 13, 1954, and while the said contract of insurance was in full force and effect, and motor vessel Sea Pak was caused to founder off Long Cay on the Caicos Banks in the Turks and Caicos Islands by perils of the seas latent defects in the machinery, and/or other perils insured against, and became a total loss within the meaning of the contract of insurance. Sixth: That the plaintiff pramptly gave notice of the loss to the defendant together With proof of said loss in accordance with the terms and conditions of I think the Court would find it a great deal easier to read the original of that policy than a photostat, with all of that fine print. Mr. Batchelor: Frankly, I object to having an exhibit put into evidence that is all marked up, underlined and en- circled, certain particular parts of it. Mr. Dow: The parts I read to the Court are the only ones | have encircled, so I could find them quickly. I am sorry about that. The Gourt: Let the exhibit be admitted in evidence. So long as there is no alteration in the document it will be considered by the Court as though—it_ had no. inter- lineations 65 Mr. Dow: Will you stipulate that there are no alterations in the policy? Mr. Batchelor: No alterations. (The original insurance policy was thereupon re- ceived in evidence and marked ‘Plaintiff's Exhibit No. 1.’’) (By Mr. Dow): Q. In placing that insurance, Mr. Eason, from whom did you get the business? Mr. Batchelor: I object. The policy is in evidence. We admit it covers the vessel. Where he got the business is im- material. ; The Court: , Yes, that is immaterial. Let’s go straight to the heart of the controversy. (By Mr. Dow): Q. Did you not engage a surveyor to survey this vessel prior to the acceptance of the risk? A. The company engaged the surveyor: we didn't. Q. That is the Birmingham Fire Insurance Com- pany? A. Or the AIMA, or whoever their general agent is. Q. Tell the Court who the AIMA is. 66 A. The American International Marine Agency is & marine management company that-fepresents sev- eral companies, one of which is the Birmingham Fire Insurance Company. Mr. Stuart was the surveyor engaged? He. was the one so appointed. He made a report on the ship? Yes, sir, he did; several. Do you have the original of those reports? I do not. POPOo Ps Mr. Dow: We have copies of them, “as produced by the de- fendant., é Q. Was. the company Satisfied with the report? Mr. Batchelor: I object as to\what the company was satisfied with. He is not the company. Mr. Dow: He is the agent of the company. The Court: You mean the insurance company? Mr. Dow: * as ae That is correct. The Court: . - The insurance company issued the policy. didn’t it? Mr. Dow: | That is correct. Fon » ~ a“) * ns % Loe ee * te rs + * AY ~~ » i 67 The Court: Then, it is not material whether they were satis- _ fied or not, is it? ° } Mr. Batchelor: No, sir. The Court: They are bound, nevertheless. Proceed. (By Mr. Dow): Q. Did.you subsequently arrange for the renewal of this policy? : Mr. Batchelor: I object. They are suing on the policy which is in issue, not the renewal thereof. Mr, Dow: Your Honor, I would like to say I realized I would be met with this objection on this question, but I think in all matters of this kind there is always a question of good faith. I think the assured and the insurer must deal very fairiy with each other. I think they should. I think the good faith here is exhibited by what I hope to bring out from the testimony of this witness. * The Court: © ie ae. 7 : This is not an equity case, is it? Mr. Dow: No, sir. 68 The Court: This is a law action) in which the rights of the parties are prescribed by the terms of the contract. Mr. Dow: There is another point, I think, which is important to this plaintiff, what the insurance company required if anything, for the renewal of this policy. Mr. Batchelor: That hasn’t one thing to do with this suit. We are concerned with the policy which is in issue. Mr. Dow: I subnvit that it has a great deal to do with the defendant insurance company’s view of the continuing seaworthiness of this vessel, as evidenced by what, if anything, they required for a renewal of the policy. Mr. Batchelor: We are getting into fields which are far afield from any issue here. The Court: Objection sustained. “ (By Mr. ant. . . : Q. Was the insurance policy which is in evidence here as Plaintiff's Exhibit No. 1—was the interest in this subsequently transferred from a Mr. Barba to the plaintiff here. Tropical Marine Products? Mr. Batchelor: : The policy speaks for itself. It tee an indorsement right on the face of it. That is what we are con- - cerned with here. 69 The Court: Very well. It should not be now disputed that this is the rea] party in interest. Mr. Batchelor: No, sir. The Court: | | Objection sustained. In other words, the plaintiff here is the real party in interest under this contract. X Mr. Batchelor: Yes, sir. The Court: | ies That is the test. Mr. Dow: I think where the face of it’/refers to someone else it would be helpful if I brought that out. ne a Q. Did you eventually receive a notice of loss of the ship? ‘ A. Yes, sir. ~ | ae Q. Was that in due form as required by your com: pany? 2 A. Yes. sir, ‘ultimately: We were first eavieet by telephone, and then ultimately the Broper forms. were submitted. ee Q. Did your company pay the toss. to. this plaintiff? A. To thé best of my knowledge, ho: * Q. Do you know any. reason why it rule not be _ s - \ 70 Mr. Batchelor: I object, as immaterial. The Court: His reason would not control. The reason we would find here from the evidence and the law would be the controlling reason why it was not or should not be done. Mr. Batchelor: Yes, sir. The Court: Very well. Objection sustained. Mr. Dow: Your witness. Mr. Batchelor: No questions. (Witness excused. ) THOMAS A. BARBA, was ‘thereupon called as a ‘withess on behalf of the Plaintiff, and having been first duly sworn, testified as follows: Direct Examination. (By Mr. Dow): Q. Will you staté your full name and address to the Court? A. Thomas A. Barba, 7970 Hawthorne Avenue, Mi- ami Beach. 71 Q. What is your business? A. Builder. Q. I beg your pardon? ‘ A. Builder. Q. What kind of a builder? A. General; general contractor. Q. You build ships, too? A. No. a Q. Were you At one time the owner of the Sea Pak? A. Yes. Q. Did you originally establish a fishing business down by Caicos? A. Yes, sir. Q. Will you tell the Court, in your own words, as simply and as quickly as you can, the business that you built, how you built it, how the business went, the circumstances. surrounding the building of the Sea Pak, what difference, if any, she made in your business, and then—I underhtand you subsequently sold it to the Tropical Marine Products; is that cor- rect? : A. That is right. Q. Start with the beginning of this business down there, and tell the Court about it. Mr. Batchelor: We object. That has not one thing to do with the issues in this case. What happened to this business he had started and what it did is not material in the least bit to the issue in this.case. We are trying to decide what caused this boat to sink. > The Court: ‘ ; The Court doesn’t see any relevancy in the inquiry. Your case here is, as I understand it, the claim for 72 the full amount of the policy of insurance on account of the loss of the ship that was insured, because of the hazards insured against, or because of the happen- ing of a hazard that was covered by the policy. It makes no difference whether this witness was suc- cessful in his business or not. The issue here is what caused the loss of the ship. That is Bua the only issue, isn’t it? Mr. Batchelor: Yes, sir. Mr. Dow: Your Honor, it is getting down to the very time o the beginning of the trial. \ ‘ The Court: | Objection sustained. Any further examination of this witness? Mr. Dow: Are you asking me the question? The Court: Yes. ) Mr. Dow: You are telling me that the objection is sustained, so you are not really asking me a question. The Court: I want to know if you want to ask this witness any other questions except the one you have just asked him. he 73 Mr. Dow: No. The Court: Let the witness be excused. (Witness excused.) The Court: Call the next witness. JAMES P. STUART, was thereupon called as a witness on behalf of the Plaintiff, and having been first duly sworn, testified as follows: Direct Examination. _ (By Mr. Dow): Q. Will you state your full name and address? A. James P. Stuart, 922 Ingraham Building. Q. What is your business? A. Marine surveyor. Q. How long have you been engaged in that busi- ness? me A. I have been working as a surveyor since ’28. Q. How long have you been in the ship or boat construction business, or related to it? A. Since 1906. Mr. Batchelor: We are willing to concede Mr. Stuart’s qualifica- tions. 14 Mr. Dow: The Court might be interested in it. I don’t know. The Court: I think Mr. Stuart has been a witness in here be- fore. Haven’t you? The Witness: Yes, sir, I think I have. The Court: Go ahead. I think I know something about his qual- ifications. Proceed. Mr. Dow: Will you accept them? The Court: Yes, of course. (By Mr. Dow): Q. You are appearing here under a subpoena, are you not? A. Yes, sir. - : Q. Were you at one time called in by the Birming- ham Fire Insurance Company, or their agents here in Miami, to examine a certain vessel then under reconstruction, whose name subsequently became the Sea Pak? A. ‘Yes, sir. Q. Would you tell the Court what you found, what you required, what you did, and in the end the quali- fications of the vessel on which you issued your cer- tificate? Just teil the Court. 75 Mr. Dow: Your Honor, this will. take ‘ai Mew minutes. If Your Honor doesn’t wish to fiear_it or if there is going to be an objection to it, I will just take the certificate. What is your pleasure, Mr. Batchelor? Mr. Batchelor: . Since you have asked us, I will tell the Court I am not going to object to Mr. Stuart’s testimony, since this case is being tried without a jury, but I don’t think the conditions at the time the policy was issued are material, but since Your Honor might want to hear it, we have no objection to Mr. Stuart testifying. The Court: Proceed. (By Mr. Dow): Q. Tell the Court what you did, what you required, what you found, and the kind of ship you produced in the end; just tell the Court. A. You want that from memory, or do you want that from the survey? Q. Do you have your surveys here? A. Yes, sir. Q. Use that to refresh your recollection. Is that your own copy? . /& Yes, sir. Mr. Dow: Do we have the original? Mr. Batchelor, do. you have the original? Mr. Batchelor: — Not that I know of. - with the *e y | ia ~@ 3 ’ _ 9 * ENDORSEMENT ae = % ‘ftuebive Moveater 10, 1953, it is understood and arreed that title to verrel Insured a, ie now vested in: . ~ e- 7” ‘ . ae ‘ Y 7 a hol ts T = e° ‘ ‘oe + * 4 7 «ss nu Arenue Tt te fetus unvereoud end acmed that, loss if uny uncer this = y4e:, shal te parable to the ivrurec end T. A. carbea as tieir | fatberest may «° "ake a a = a ate >, +o ae Spm, oa . : : | , ‘ a 2 Ae re MH 8 “r ad “ee m - a * @ oo ~ a! agieey: » wt x % = * 2 — ~ =. . or 7 en Lal eli - wi All other teraas and conditions remaining: unchanged. : ; “. me 4 Anached tu and forming partof Pehew No. 7ST en. ; ed fs "Y= ve . 4 . A, hm Sire Soe ee ep Stee, J sued to: Te. we ‘ar-a wa-°'? 9-88 tou fo be med whee mee of ed 5 sage pt pt aon. Address FICO Mawtheene Avec, MeBe . TITLE ENDORSEMENT Attached to and forming part, of Policy No... RR... . of the Date ol Endorsement. Berens: D,. 1953. Name of Insured _ a A. MA “ee ere. eoeeeenrvreaeereree *“. “*te ee eer TTT Tre rTreTyT LEC RY eh edd ie iilinieiines mans ten died UE en, amie i athe main, (3) elimi- nate a mortgagee or, (4) change a mortgagee. ay oe such of following: provisions are Empiretion Dete Se... lag 195h ia | dt» been completed by the insertion of name in the blanks provided therefor; == = iw a ~¥. Subject to the to the rights of THE FIRST NATIONAL BANK OF MIAMI, FLORIDA under an agreemen rein whereby said Bank has financed the premiums on-this. policy, it is' hereby Scknowledged and agreed that the interes! of the above Insured in the property described in policy has Deen transferred and this policy assigned to Trepdeal Marine Predmsta,. Ince, 310 8. RB. Sesend. . Aveme, Mani, » Tlardiing cee and consent to such assignment is granted by the Company. So ELDENATION OF PRIOR MORTGAGEE (TRUSTEE) INTEREST _ 2. The interest of - ky ues eae — ,as mortgagees (or trustees), in this policy is hereby i ) MORTGAGEE CLAUSE Loss, if any, under this policy; shall be heme to... dae inmwred and Te As Barties,.os. thete . ee ees may appear. Sos hes cGbehes > 064s0keenee 665ekbenses ber eseebend. \66sGerdcecekeescas Mesee cad ae wedroce -: wi ax one Ken first naan: lor trustee), and to . ; Se a Wee eee . (lame end A@éress). ---- . ------- ortgages as interest may Gppecr. ‘subject $0 provisions of the mortgagee clause appearing on the-reverse. side. of t Le tes asv. | Ea es ..wil a . . _ a a: es i ew " - @. Wheneger this Company.shall‘pay the mortgagee (or trustee) any sum for loss under this policy and shall claim that, as to the mortgagor or owners, no liability therefor existed, this Company shall, to the extert of such payment, be thereupon legally subrogated to all the rights of the party to whom such payments shal! be made, under all securities held as collateral to the mortgage debt, or may at its opticn pay to the mortgagee (or trustee) the whole principal due or to grow due on the mortgage with interest, and shall thereupon receive a full assignment and transfer of the mortgage and of all such other securities: but.no subrogation shall impa:r the tight of the mortgagee (or trustee) to recover the full amount of his, her or their claim. The above Mertgagee Clause DOES NOT apply to personal property.* “NOTE TO AGENTS—This line (°) must be voided when clause is made applicable to personal property AMERICAN INSTITUTE TIME-—-HULLS Deductible Average Clause (March 1945) ne Attached to and forming ‘part EIS ess. el en on... “SEA PAKM Anything herein to the contrary notwithstanding, this insurance is warranted free from all claims of whatsoever nature (including Claims under the sue and labor clause and claims under the collision clause) unless the accident fesults in. = ‘total loss and/or cogstructive total toss of the vessel (in which case this clause shall’ not“apply) or unless the aggregate ef stich claims arising out of each separate accident exceeds ee ©. 0 , in which case this insurance shall be liable only for the amount by which such aggregate exceeds $.........2000QM................ ; but a recovery from other interests and /or Ppartics sh2:: not operate to exclude claims under this insurance provided the aggregate of such claims arising out of one separate accident if unreduced by such recovery amounts to $.........200¢00. For the purpose of this clause cach accident be treated separately, but it is agreed (a) that a sequence of damages arising from the same accident shall be treated as due to that accident, and (b) that all heavy weather damage which occurs during a single sea passage between two ports shall be treated as though due to one accident. > a ST Pag FREER oe aby! Ld i . hart of Policy No....2132 Lacashicsesinasenis i ee Birwir ham Fire. Insurance..}...'.. : Company ..af..POMMe YL WALA... cc eecccecteee ne eteesetesnennasanennnnnnnnen coitasonecnsen Ee ee Rt Ener iia ease Te Oe Rene er ot. ceedanncenconienianaeneaeenanes 5 jasepeensaraonlshans ands navies FOR ACCOUNT OF............ Whom it MAY COMET i cssssssennesntsnenesasenennenntentnnenneanennesnenerntenesceeeene ’ In the event of any change, voluntary or otherwise, in the ownership of the Vessel or if the Vessel be placed under new managment of be chartered on a bareboat basis or requisitioned on that basis, then, unless the Underwriters agree thereto in writing, this Policy shall thereupon becume tancelled from time of such change in ownership or management, charter of requisition; rovided, however, that in the case of an involuntary temporary transfer by requisition or otherwise, without the prior execution of any written agreement the Assured, such cancellation shall take place fifteen davs after such transfer; and provided further that if the Vessel has cargo on board. afd has already sailed from her leading port, or 's at sea in ballast, such apnj>x2 OU I] fue ‘uOtst;jo> 8 jo ‘2935 PIRUBIITA 05/8 ‘O10g 24) UO $1 ‘UlQJIY “PAAJOAL! [98S2A 32420 vontsind ys Aq “Pss2AQ sy JO *‘A1Og aya Ul poutEyUO) 30 UOISO] *2st.asryo JO Pojursew $! auEINSUI SIYY UIMUWISIOPUS UNS 1 ‘ua {=qrz “voNNO yo aw) ul J2UN94-8 Kese uit 1—e}U0) rys 3 me In cases where a temler is accepted with the approval of Underwriters, an allowance shall be made at the rate of 30 128 per cent. per annum on the insured value for each day or pro rata for part of a day from the time of the completion of the survey 129 until the acceptance of the tender provided that it be accepted without delay after receipt of. Underwriters’ approval. e, 130 No allowance shal ‘me during which the Vessel is loading or discharging cargo or bunkering. 131 Due credit shall be given against the allowance as above for ¢ any amount-recovered:— 132 ‘Iv JO ane jo 2W) UT J394)94% UNeOB JO prxy 2233 wd “ allowed in General or Particular Average; 7 144. (b) fadm third parties in respect of damages for detention and/or loss of profit and/or running expenses, 134 for the petiod pel oy by the tender allowance or = part thereof. | Y 13 Notwithstanding anything hercin contained tu the contrary, thig Polic is warranted froe from Particular Average under 137 3 per cet. or unless amounting to $4,850., but nevertheless whdn the Vessel shall pave been stranded, sunk, on fire, or in 138 collision wigh any other Ship Vessel, Undegwritegs shall pay damage occasidagd thereby, a the expense of sighting 139 — the. tom, fier. stsanding, shall id, i incurred, evpn if no plamigg found. | r 1 — Groundiag in the Panama ; n the !anchtster Ship Cagal or its connections,jor in ¢ t Mer. 141 above Rock Perry Slip, o¢ in River Plate (Above /a line drawn from ¢ orth Rasin, Buenos Aires, to the memh of 142 the San Pedro River) of its tribttaries, or in thé Dan or Demerara Riv to be a stranding. . vd dan ie ivers of, on the Yenikale Bar, shall noe deemed 143 Average pavable on each valuatiép separately ‘or on the whole, without deducti i : ‘hethe Average be Particular or Gencral. ie’ m aa Se oe 146 No claim shall in any case be allowed in respect of scraping or painting the Vessel's bottom. 147 ovr. Vat, ° ‘ 4 3 parately insured, and a vorege shall commence at the Assured’s election when the Vessel either Gaia to cach " ; - , ast to a luading port. Such voyage shall continue until the Vessel has made not more than three passages 3 } pe ye more pe: two ses with cargo Sargent ng first occurs) and extend further until the Vessel thereafter begins to . 15 | _—— p Ray s (whichev - occurs), but such extension shall not exceed 30 days in port. A passage shall be deemed 152 a q 0 rom the commencemcnt of lod the first = or place of loading until completion of discharge at the last port or 153 rom ify ye wy XS (Auiwso , aaoge ap apassadns || 30 ‘UOIDIIIN hyousse 2 Zursists pan a#ewep _ — ywoy 8 53g) satey Je 10 XQ Dr ans JO QuIW & UEY) ( opedso3 pai ‘foend 30 ‘wos pss e ysule :1j0g ay) Jo uotstaosd Ase3}00% be (ininu our a02ss0dNs TUS PUF yunowrsrd aq jjrys Queew Fuiaojzjoys 2) *sJ9 _ voyage a cargo or sails 1 wodraa Aue Aq pasnr> asurdxa 30 3u21381|2q ‘bmod place of discharge, or, if the Vessel sails 1 the or place of dep. » OF, eparture until arrival at the first or pl eng aa other than a port or place of refuge or a Povt.gg place for bunkering only. Each period in port of 30 days # geste of 30 133 - between passages shall itself constitute a oa = sposes of this clause. When the Vessc! sails in ballast to effect 156 a — such sailing or passage shall be considered = Mth previous passage. In calculating whether the 3 per cent. 157 ° c $1,850. Poragesne Particular Average occurring outside the period iewsed, by this Policy may be added to Particular Average 158 — within such period, providing it occur on the same voyage as above SeGned, but only that portion of the claim ans- 159 ng wether the period covered by this Policy shall be recoverable hereon. A voyage s be so fixed that it overlaps another 160 voyage on which a claim is on this or the preceding of succeeding Pulicy. Particular Average which would be excluded 161 3s satin. ! 162 US YIWISUOIUT IIE SUI} 3194) IFYI JUIIXI Hy) 0) fjv0 (a) in respect of fuel and stores and wages and maintenance of the Master, Officers and Crew of any member thereof —133-— ee — iM re “fh 3) Se NN AG SS aan tee Fy abet ngs "ean ‘ @2OBRPORATEO 1875" Cc 0 -. 2 Provisions REQUIRED BY Law To Be Statup 0 ruis Potacr:—This Policy w in = stock corporation. Ju Witurss Wherrst. this Company has executed and attested these presents; but this policy shell not be valid unless countersigned by a duly authorised Agent of the Company. «Ap Nw os os | a fa ms 2” > 1OR MAIOEN LANE NEW Yo Re Ss 8 - 2S ' & re wat ae ee Z i b fel iat n Or _._ * any ‘4 Ba . 20132 as T a: ’ r BO RMS aM FIP: .; ) 7 rea bia) ' for boepitel medical. or other expens*a necessartly and ror eos yo. >° ' Pepery to, er ilinens of any memivr of the crew of the vos~.) oomed met mero any ether pereorm coeds w shall alee incinde burial! expenses not exceeding Tuc Hundred ($200) Dollars. when necesear > ary te laczrred dy the Assured for the burial of any reaman of said vessel Gee reettriation expenses of any meater of the crew of the vessel same Ss oon. necessarily and -oaaer rete s\ek wher. oll gallon eyeepiing Beck expenses. ss arin. wt oa! - enswe from the term > 8 1o@ in accerdance @ the terma therosofs ior Sv ome ca mst or 8. sale of the said vexsel of b> of the Aseured. Wager shal) be included in auch expen-)- wher pavadie under sajotery oSile +! bem, mampleywment coe to the wreck or joss of the sitd vesse! @ ae a ae one’ Teperty ce «ech -) ~ . aa br « oun 1 ree mashed re Fee . s@ch (met) «oadd eat be covered onmes eae the Inet tebe Pies ‘eats Decenber 1. 195) Pep fineluding the four fourtae rannang-down clone! ge ander tis clause sha!) be sattled os the prop sek of --es lab |}:ttee to the game extent only es provide’ o fowr fourth: ranning- em the 2- = eeepc = intl, coca ~ Mbt fam mm ws . ~“—_ 2 rt ceherede Warned ih the policy ehduld be Included) be Veasal “i Far’ o- ~ ae - - ~* - ° Seeetine. wil = te lit igs mene - om 1 epee? * 9 ee eee a — eae 7 — Contact with Aircraft or with any lend conveyance; , si & ™ igence of Master, Charterers other then an Assured, Mariners, Engineers or Pilots; : iP a3is X Provided toch loes or damage has not revulted from want of due diligence by the Assured, the Owners ot Managers-of the £sX" == + Vessel, of any of them. Masters, Mates, Engi Pilots o¢ Crew not to be considered as part owners within the meaning ree : Se ee wr ay a result cl under this Policy, noti shall be given in writing A «= & . , . im icy, ice ene es : to dia Uatereri * Sa ee es i in a tng pine theirs own surveyor if they so desire. bo 7? Ae: = Underwriters shall entitled to decide the port to which a damaged Vessel shall proceed for docking of repairing ( ae 2 2 2 ? actual additional expense of the voyage arising from complicace with Underwriters’ requirements being —— to ie) 5 2 ATS. Assured) and Underwriters shall also have a right of veto in coanection with the place of repair of — rm propos oak 2 $ and whenever the extent of the damage is ascertainable the majority (in amount) of the Underwriters may A = be re. 5 4” «= quire to be taken tenders for the repair of such damage. In the event of failure to comply with the conditions of this clause ERX $3 2 15 per cent. shall be deducted from the amount of the ascertained claim. S ; ; qf ako : In cases where a temier 1s accepted with the approval of Underwriters, an allowance shall r made : the cd of 30 So 79°53 gf per cent. per snnum on the insured value for each day of pro rata for part of a day from the time of the completion . survey 8"5255 S until the acceptance of the tender provided that it be accepted without delay after receipt of. Underwriters approval. \_- S Me aga . No allowance shall be made for any time during which the Vessel is loading or discharging cargo or bunkering. 2 “te a> ¢ Due credit shall be given against the all6wance as above for any amount recovered :— | ; = § 37 2.4 E (a) in respect of fuel and stores and wages and maintenance of the Master, Officers and Crew ofr any member thereo woae: 5S allowed in General or Particular Average; ae pee | a (b) frdm third parties in respect of damages for detention and/or loss of profit and/or funning expenses ; ae a 23 el for the petiod covered by the tender allowasce or any part thereof. ae om a - rU Cl tained tu tl trary, thig Polic is warranted frce from Particular Average unde = ‘ yy 3 a. ae ae +“ $4,850. but nevembelian w | 2 the Vessel shall pave been randed, sunk, on fire, or in 3 3 per cert. 3 ghtin B 35 socollision wigh any other Ship essel, Undegwritegs shall pay damage occasiondd thereby; and} the expense ,of sighting g aw 3 the. byttom dfter. stsanding shall id, if ccayypably, incurred, even if no pamgae found. | ee ‘ a. 2 round@g in the Panama Suez 1 ce the \!ainchtster Ship Carjal or its connections,[or in ¢t t Me 7 is 10 ‘Surpuens *(0 W033 05/2 ° 95139490 JO | vodro.a Aut ‘390d 3U2I28iJaq & sUIEJe 30 Aq Hr ajrsoy F oper jo dauinage repairs such sailing or passage shall or $4,850. is reached, Particular Average occurring outside the period ¢ by this Policy may be added to Particular Average occurring within such period, providing it occur on the same voyage as above @efaned, but only that portion -of the claim aris- ing within the period covered by this Policy shall be recoverable hereon. A voyage shiatl-agt be so fixed that it overlaps another voyage on which a claim is made on this or the preceding or succeeding Pulicy. Particular Average which would be excluded by ' , shaig Deoliop-ahell Sage tins Ber am ae helen eet $4850. is sath } No recovery for a Constructive Total Loss shall be had hereunder unless the expense of recovering and repairing the Vessel shall exceed the insured value. In ascertaining’ whether the Vessel is a Constructive Total Loss the insured value shall be takcn as the repaired value, and nothing in respect of the damaged or break-up value of the Vessel or wreck shall be taken into account. In the evynt of Total or Constructive Total Loss, no claim to be made by the Underwriters for freight, whether notice of abandoumcnt has been given or not. _In no case shall Underwriters be diable for porepaired damage in addition to a subsequent Total Loss sustained during the period covered by this Policy. General Avcrage, Salvage and Special Chatges payable as provided in the contract of affreightment, or failing such pro- vision, or there be nv contract of a in accordance with the Laws and Usages of the Port of New York. Provided always that when an adjustment accomling to the laws and usages of the port of destination is properly demanded by the owners of the caggo, General Average shall be paid in accordance with same. put eam haoy Zurynsas 30 Aq pssned Burhojdwe sem asodind ay} 30j past © sso 30 334 Apposip pasne ssajun sy ss 4WjO3j yTTRsSog jo so 3o $3i MOPOIPes JO VOTSSY IWO}E _ Queires sup Pp - a ag aS | And it is further agrced that in the event: of salvage, towage or other assistance being rendered to the Vessel hereby sa 5°” insurd by any Vessel belonging in part or in whole to the same Owners or Chartcrcrs, the value of such services (without ra © regard to the common ownership or control of the Vessels) shall be ascertained by arbitration in the manner below provided for “BRS under the Collision Clause, and the amount so awarded so far as applicable to the interest hercby insured shall constitute a = charge under this Policy. . ? 3 8 When the contributory value of the Vessel ‘is greater than the valuation herein the liability of these Underwriters for Gen- ee uy 1th "sue, i oer ee i # Baye BIN Ras aw ns te Ew te collect ar.d receive aij retuare ar migens, as opt forth herein, and to cxyecule any 2: essary instrucne:nts 10 release and aayuit jad hs Qemnperry. . \ A. ln. the event *t becomes necessary to collect ar sums due hereinunder by -, og pay ail expenses lor the enfcrcersent berec!, including reasondhie di - her the ig obligated therefor or nat. oe . * the , eae policing ..ove' ny the surance ia u.c* he agent of the bonk, and bas no aulhe eS ts bang in any wise i * 7 40. This agreement sha: ce oonsirued as a Monmcacentract | . ; & Bue itis ae oI a ms ure to such A te is sesensiaall vbligatiens of the L.surance egd the within c-ntroct-on which (obs ox, were made to him no repr ve = ¢ A 76 Mr. Dow: ; Has the defendant got the original? We asked for it. I think we were given a photostat, were we not? Mr. Willner: The defendant produced a photostat. Mr. Batchelor: I think you produced a carbon copy of the original. 2 Mr. Dyer: , There is no question about it, is-there? Mr. Dow: - The Court might like to see it. Mr. Dyer: | It contains a good deal, I think, of irrelevant in- formation. The Court: \ 1 think he is going to give it now, isn’t he? Go ahead with your testimony. Mr. Dow: Yes, sir. The Witness: The hull was checked. A lot of new planks were put in the ship. The caulking was re-caulked. The en- gines were completely overhauled, and copper ex- haust pipes renewed for both engines. The batteries | weré put in lead boxes. The fuel pumps “were put in order. The wiring was rechecked throughout. The COZ svstem was checked throughout. All connections Oe ee eee y i 77 forward were plugged off and were taken out and new planks put in. There were two seacocks aft. They were left there, but they were plugged up. Her stuffing boxes were checked and repacked. The vessel was completely overhauled to my satisfaction. (By Mr. Dow): Q. Nothing else remained to be done that you wanted done; is that correct? A. Yes, sir, except a trial trip. A trial trip was run. Q. Did you go aboard on the trial trip? A. No, sir, -I didn’t. Q. You accepted the results of someone else's opin- ion on the trial trip? . A. Mr. Beriinski did. He was going down in the ship. Q. Have you confidence in Mr. Berlinski? A. Yes, sir, I have. Q. You showed the certificate and all of this to the insurance company? \ a A. Yes, sir. Q. Did you give an opinion of the value before she left? A. Thirty thousand dollars. The replacement value -sixty thousand. Q. May I glance at nes a minute? A. Yes, sir. -_ Mr. Dow: Mr. Willner, do you have our copy? Mr. Willner: | It is in the file. 78 Mr. Dow: Your Honor, i offer in evidence a certified copy of Mr. Stuart’s report, consisting of three pages, as Plaintiff's Exhibit No. 2. Mr. Batchelor: We object to it as immaterial. The witness is here in person, and testified as to his opinion. The Court: Hasn’t the witness covered all the substantial ques- , tions involved in this particular inquiry? Mr. Dow: I think he has, except one or two. The Court: I think it is umnecessary and would encumber the record. Objection sustained. (By Mr. Dow): Q. Were you called in by the insurance company to make any investigation after the loss? What is the purpose of that inquiry, Counsel? Mr. Batchelor: : I object, as immaterial. . The Court: * = e Mr. Dow: The purpose of the inquiry, Your Honor, is to point out after the loss the defendant, instead of employing its own surveyor, who was probably one of the most competent men on the east coast—that includes New LMP GOALIE AN GATS ELIE it 79 York as well—calis in another hurveyor who never saw the ship or had nothing to do with her in any of- ficial capacity, and who never consulted Mr. Stuart. The Court: This witness was not called in; is that right? ‘ Mr. Dow: ' ‘That is right. The Court: That is a negative question. Objection sustained. Mr. Dow: Thank you very much, Mr. Stuart. That is all. Cross Examination. (By Mr. Batchelor): @. Can you tell us the date, approximately the date, when you surveyed the vessel here in Miami that you have just told us about? Mr. Dow: Objection. That is the purpose of the offer of the report. All of that is contained in here. The Court: Objection overruled. The date? . The Witness: It was around July 2lst. I wrote a letter July 21st, 1953. 80 (By Mr. Batchelor): Q. Is that the approximate date when these in- spections took place? : A. That is when f wrote the letter to the insurance company about the vessel’s business or what trade she was going into. The final survey was—the pre- liminary survey was written July 21st, 1953. Q. I take it, then, that your inspection of the ves- sel, that you have told us about, took place prior to July 21st, of 1953? A. Yes, sir, it did. Q. You never saw the vessel after that time, or that approximate time? A. On August Lith I wrote the company, saying all recommendations were being complied with and she was going on her trial trip, she was leaving if the trial trip was successful. Q. Do you have any recollection of ever having seen the vessel again after that date? A. No, sir; I never saw the vessel after that date. Q. That is August 11th, 1953? A. Yes, sir. Q. Now, Mr. Stuart, assume that the Sea Pak had not been aground after you last saw her or had been in any accidents since you last inspected her in Au- gust of 1953. do you feel, based upon your experience in the marine field, that condition which you saw her bottom in in 1953 would permit you te express any opinion as to the seaworthiness of her bottom a year later, in August of 1954? Mr. Dow: Objection. That is entirely irrelevant. Mr. Batchelor: The boat sank— > a Pa — ary Pw: Sl Mitchie aksied ach nts nak PO IPN AOD ORS SP RER OSES OO Ae E 81 The Court: The question is whether he feels that he is quali- fied to express an opinion, isn't it? Mr. Batchelor: Yes, sir. The Court: It is not an inquiry along the line of whether he is an expert here. Mr. Dow: | If that is the question, I withdraw my objection. Mr. Batchelor: I didn’t ask him to express an opinion. I asked him if he felt he could express an opinion. The Court: A I understand. \ Mr. Dow: | I withdraw my objection. (By Mr. Batchelor): Q. Proceed, Mr. Stuart. Would you care for the question to be read to you? The Court: He may not understand that. It has a peculiar legal meaning that he may not be familiar with. However. it is a factual matter you have asked him. . eae Mr. Batchelor: Read the question. 82 (The pending question was thereupon read by the reporter. ) (By Mr. Batchelor): Q. If you don’t understand it, I will be glad to repnrase it. The Court: Counsel, do you think that is,a qualifying question? That has to do with the very thing that we have under investigation here. This witness has heretofore in this Court, and offered to here, given us testimony as to his experience in this particular field. Do you want to have him express an opinion about whether the bottom of this ship was likely to, well, let us say, spring a leak without any hazard having intervened, or the contrary? Hadn’t you better inquire into his knowledge of the cause of this accident, what would be the effect, and that sort of thing? As I understand it, Mr. Stuart, you are a surveyor, a marine survey- or; is that the correct title? The itness: Yes ‘sir. The Court: As such, you have peculiar knowledge with refer- ence to the seaworthiness of a vessel, such as the one involved in this case? } 4 ~ The Witness: Yes, sir. 83 The Court: | I take it you have some experience in analyzing losses of ships that were sunk on account of some defect in the hull or something that happened to the hull which caused water to get in and the ship to go down? | The Witness: Yes, sir. The Court: I assume further that you could tell us about what was necessary to forestall that sort of thing? © The Witness: Yes, sir. The Court: It might be well if you would give us briefly. what experience you have had in actually examining cases of that kind and your knowledge bearing on that par- ticular thing, your experience or your accumulated experience in connection with leaks that occurred in the hull of a vessel that caused it to go down, and likely what causes that to happen, with particular reference to the ship in this case, which you inspect- ed. I assume you inspected the hull? The Witness: Yes, sir. The Court: You made a careful examination of the hull? The Witness: Yes, sir. The Court: The construction of it? The Witness: Yes, sir. The Court: | | | You might see fit to examine the witness along that line, prima faciely to establish his standing as an expert. J Mr. Batchelor: We prefer to waive further examination of Mr. Stuart at this time. If we see fit we will call him later as our witness. : on The Court: Very well. Mr. Dow: I will concede that Mr. Stuart is one of the ablest surveyors in the east with respect to| the very thing that Your Honor was directing his questions to. The Court: Would you have any objection to opposing counsel asking for his opinion about what caused this leak or caused the ship to sink? Mr. Dow: No, sir. Anything that Mr. Stuart wishes to testify to I would not object to. 85 The Court: Then, the capacity of this witness as an expert has been admitted by opposing counsel. Do you want to pursue your question? Mr. Batchelor: ° . We prefer to wait and call him as our witness. The Court: Very well. Mr. Batchelor: We would like to have him remain under. the sub- poena. The Court: Very well (Witness excused. ) ‘a STUART N. WILLNER, was thereupon called as a witness on behalf of the Plaintiff, and having been first duly sworn, testified as follows: Direct Examination. (By Mr. Dow): Q. Will you give your full name and address to ‘the Court, please? A. Stuart N. Willner. 3 Sidonia Avenue, Coral Gables, Florida. Q. What is your business? A. I am in the fishing business in South Caicos. British West Indies. 86 Q. Did you purchase the business from Mr. Barba? A. That is correct. Mr. Dow: | If I am leading him, Mr. Batchelor, it is only in the interest of saving time. Q. Did you pay for it? Mr. Batchelor: I object whether he paid for it or not. (By Mr. Dow): Q. Did you owe Mr. Barba any money? Mr. Batc#elor: I object. Mr. Dow: Was that sustained? The Court: I haven’t ruled on it. It is not in issue here. The whole question here is what caused the boat to sink. It did sink, evidently; nobody denies that. It was in- sured for thirty thousand dollars. Nobody denies that. What we have got to find out here is what caused it to sink, then we will try to see whether or not that ¢gause is covered by the policy, and if it is the de- fendant, the insurance company, is bound to pay, re- gardless of what it cost him. If pursuant to some reason other than a reason covered by the policy, no matter what it cost him, he can’t recover. ! , i 87 Mr. Dow: Will you, counsel for the defense here, concede, so that I will know where I am’ going, and I can avoid questions which tend to support our point—will you concede that there is no question whatsoever on the part of the insurance company that there was any deliberateness on the part of the plaintiff in the loss of the vessel? Mr. Batchelor: Any what? Mr. Dow: That there was no deliberateness. Mr. Batchelor: : I understood the issues were made by the plead- ings, and there is no plea of that type in the file that I know of. Mr. Dow: I don’t understand the answer. I never have, clear- ly. To say it is not a loss covered under the policy could impute dishonesty to the plaintiff; it would im- pute lack of good care; it could impute lack of due diligence on the part of the owner in seeing that the captains were ‘supplied with whatever they needed, or’ asked for, rather. It may impute that, or that we would have to prove exactly, deeper than any man has ever gone alive and come back, ywhat it was that caused the ship to sink. It may impute most anything to just use that particular general term. All I am try- ing to do, and have been fron the beginning, is to get the defendant to narrow it down, tell me exactly what they are complaining of, I can confine my proof to that. 88 Mr. Batchelor: Our answer is very simple. It covers less than a page. It denies the material allegations of the com- plaint, which say the boat was lost because of perils of the sea. Mr. Dow: That is what I mean. The perils of the sea, as the Courts have said, are indefinite and could be any- thing. The Court: If the proof were of tat character here you will have the defendant—well, I shouldn’t say behind the 8-ball, but you will have the defendant scurrying for proof to the contrary, I expect. Mr. Dow: You see, we admit that under the cases we don’t have to show exactly what caused her to go down. All we have to show is that we insured her: her sea- worthiness was admitted by the defendant at the time the policy attached; the seaworthiness presumably continued: arrangements were made to re-insure her on the same terms and for the same premium; sud- denly she went down. I wish I knew why, for sure. The Court: Nevertheless, the burden is on you to establish the case, isn’t it? Mr. Dow: The only thing I have to establish is she sank. The Court: Is that all? ac deteahs lh chet eater in 2 aeheteeaeal nee ‘ty 89 Mr. Dow: Yes, sir. Mr. Batchelor: If Mr. Dow thinks that is all he has to establish we will agree she sank and he can rest his case. Mr. Dow: Getting back to the request for a stipulation in the beginning, will you agree that the Court may deter- mine from Captain Mills’ testimony, if you like, as it is in the deposition that has already been taken, as far as he knows she sank. If you will agree that that is it, that she sank, then it becomes a question of law, as I said before, which the Court has got to decide, anyway. It already has our brief on the law. I don’t wish to debate it with counsel. Will you stipu- late to that now? Mr. Batchelor: We will stipulate to one fact, that the boat sank. Any other fact will have to be introduced in an order- ly fashion. ; Mr. Dow: I am still. somewhat at sea, and I don’t know whether I am afloat or not. I presume I am to con- tinue. The Court: I suppose so. (By Mr. Dow): Q. Did you owe Mr. Barba any money? > -o¢ Mr. Batchelor: To which we objected. The Court: I think that is immaterial. Whatever he owed, if anything, would not make any difference. If the loss of the ship was on account of the hazards mentioned in the policy he would be entitled to recover the full amount of the policy. Mr. Dow: I have had a good deal of experience in trying just these cases. I often find that much is often made of business relations, which might indicate that the ves- sel owner needed some fast money, leaving the slight- est implication that perhaps he cast her away. That is why, unless the defendant will come clean with me on this thing, I am trying to protect my clients on those points, however irrelevant they may appear at the time. The Court: ‘ 7 That is not even intimated in the pleadings. Mr. Batchelor: No, sir. The Court: Has there been any plea, affirmative plea, that this ship was sunk deliberately or that there is any fraud in this case? Mr. Batchelor: There is nothing in our answer on that. ee nee 91 Mr. Dow: What is your answer? Mr. Batchelor: There is nothing in our answer on that phase of the case at all. | The Court: a I think you should go ahead with your case here and prove the circumstances under which this boat sank. I think, of course, your testimony on the condi- tion of the ship, when it weit to sea it was in good condition, that there was no apparent reason for it to spring a leak and become full of water and sink. that would be a circumstance. a reasonable inference that it might have been caused by coming in contact with something under the water, we will sav. and it made a hole in it, or for some other reason. Aren’t you going to have to establish some set of circum- stances, if you have no direct proof. that would raise a reason ble conclusion that the ship sank by one of. those perils of the sea which are specified in the policy or by law is included in the policy? - Mr. Dow: - - That is a matter of law in the interpretation of the policy, which is for the Court. Our position on that is in our brief, our trial memorandum. Rut I cannot see how the defendant here can be so vague as to its defense at one time. so broad and so general. and then won’t agree to such a simple stipulation as T was willing to make in the beginning. T have got to cover every possible contingency with such a broad. general defense that it does not come under the pol- icv. A lot of things don’t come under the policy 7 Mr. Dow: > 92 Everything in the world, except a few things that are in there, doesn’t come under the policy. That doesn’t help me. ? The Court: | I suggest you proceed ahd give us whatever proof. you have in connection with the sinking of this boat. - > You see, I only learn what the defendant “dons not contend by the objections they make to the questions 1 ask my witness. > a The Court: ‘It is not so important what they contend -as it is what you'can prove right at this stage. Mr. Dow: =” A oe I will make the statement definite, so we will avoid the obvious objection, that the plaintiff has claimed in addition to the loss of the thirty thousand dollars some additional losses as a result of the defendant not paying the claim when it should have. I must go into the details, | Mr. Batchelor: I am not going to object to going into that. The complaint demands damages of thirty thousand dol- lars with interest ané costs and nothing else. Mr. Dow: It demands attorney fees as provided by Florida law. I think we amended the tomplaint Wasn’t that. complaint amended? — \ wer es 2 aa 2 ts | Bedi Ga eh) ite 2 th eed. nbn nie . ae, Sian Sth Ge ig AB art shreds Lakai DEAD iM genes rscelclk Wa BARG Bh TAP Rah LS ie alte ng ’ / 93 Mr. Willner: . At this time I move to amend the complaint in- stanter, Paragraph 8, substituting the names of Arthur L. Willner and Wilbur-E. Dow for that of Flowler, White, Gillen, Yancey and Humkey. Mr. Batchelor: No objection. ¢ Mr. Dow: Was there a subsequent amended complaint for loss of profits? Mr. Willner: No, sir. (By Mr. Dow): / Q. Were you compelled to employ counse] in an ‘attempt to collect this claim? A. Yes, sir. Q You employed our office: is that correct? A. That is correct. Q: When the vessel was in Caicos fishing after you purchased: it, how long did vou operate that busi- ness before she was lost, approximately? A. I would say approximately ten months. Q. Will you tell us what that vessel] did and its importance or otherwise with relation to the business as it was done before the ship arrived or you have operated since? Mr. Batchelor: We object. 94 Mr. Dow: . So the Court will get an idea of the type pf vessel it was. Mr. Batchelor: We object to any testimony about the operations of the business down there. The Court: Well, if counsel means the activity of the ship in the water, what kind of work it was doing, that might be relevant. f Mr. Batchelor: I_understood his question to go much further, than that, to talk about its importance to the business. The Court: The question today is how this boat was used, what it was used for, and how it was managed and where it went in. connection with its work. (By Mr. Dow): Q. You tell the Court that. Address your reply tight to the Court, not to me. A. The boat operated out of a little harbor down in South Caicos. It went on voyages of approximately sixty to seventy miles on the average. It stayed out anywhere from one week to three weeks, collecting fish with a fleet of fishermen. These fish would be put into:the boat, be washed, cleaned, frozen. quick- frozen, and then packed and: stored, until the boat ‘accumulated a load of fish, in which case it would return to port and put the fish in a holding box, to be sent by air to Miami. Q. Did you replace this ship? Q PE" SOO OEE | Mr. Batchelor: I object. The Court: What do you mean, replace it? (By Mr. Dow): Q. Did you buy another one like her or build an- other one like her? The Court: | : That would not make any difference. If he lost this one under the terms of the policy he would get thirty thousand dollars, whether he bought another one or not. Mr. Dow: Very well, sir. Q. At any time, or from time to time did you re- ceive. any reports from the captain of the vessel as to the manner in which she operated or any circum- stances surrounding her operation? A. _ Yes. I was always quite interested in the boat, aS you can imagine, and always asked the captain, Mr. Berlinski, the condition of the boat when she went out and when|she went in, and all particulars concerning her, because I realized she was such an important asset to o business down there. Q. What was the nature of the replies or reports you received from the captain? Mr. Batchelor: I object. That is hearsay testimony. The Court: It certainly is. Where is the captain? He is the one who can tel! us about thet. Mr. Dow: ~ He is here. The Court: Is he going to testify? Mr. Dow: Yes, sir. The Court: All right. (By Mr. Dow): Q. Did vou at any time ever receive any requests for parts or equipment from the captain? A. Certainly. I always received requests. Q. Raise your voice. The Court can’t hear you. A. We always received requests for caulking, paint; and parts. Q. Did you always fulfil those requests? A. Yes. We had to. It was our business to keep that boat in good condition. , Q. Did at any time the captain ask you for any- thing that he considered necessary where you dis- agreed with him and wouldn’t send it to him? A. No. We had the utmost faith in Mr. Berlinski and anything he asked for he always received. Q. After the loss of that ship did you make a report to the underwriters’ agents here? A. That is correct. Q. Did you receive your insurance money? se Ae ete , ove ne . Fa 00 esate ~~ eaAa AD UN OAC kes. Ws Ae ae tM bias SPR LEP LEE ee barns 's Sear SEPA IIT Ete eV Rear Wes ne Mf ge ih ee ae ako Fw. Berg. Wis % denn ae a oe eeu gee 97 A. No, we didn’t. Q. Did you offer to make a full disclosure and make your personnel available to the defendants or their representatives after the loss? : A. Yes. At all times we wanted to cooperate as much with the insurance company as we could, be- cause we realized that a quick settlement of this claim would have helped us get started to build an- other boat and send :t down there. As a matter of fact, I can remember where we even offered to fly the insurance company in this case down to South Caicos at cur own expense to make sure the matter was settled to their satisfaction, but, of course, they subsequently refued. | Q. There is no regular air service there? A. No, there is not. Q. At that time you had your own plane that was flying the fish out? A. Well, no. The plane didn’t fly fish out. It was used mostly for personnel and executive transporta- tion. We had our own air service to the island, which was the most convenient way to get there. Q. At any time, Mr. Willner, did you ever receive from Captain Berlinski- or Captain Moran or anvbody else down in South Caicos any reports concerning the condition of the Sea Pak that would indicate she was unsatisfactory? A. No, never. Mr. Dow: Your witness. Cross Examination. (By Mr. Batchelor): | Q. When you bought this vessel or business, what- ever it was, and you took over down there, as I under- stand it, the vessel was already down in South Caicos; is that right? A. That is correct. Q. So, the’ ten months you are referring to that you operated it, at the time you operated the vessel and when you bought it, she was already down in South Caicos and was operating? | A. You are correct. Mr. Batchelor: si is all. (Witness excused. ) LEONARD O. BERLINSKI, was thereupon called as a witness on behalf of the Plaintiff, and having been first duly sworn, testified as follows: Direct Examination. (By Mr. Dow): Q. Will you state your full name and address to the Court? , A. Leonard O. Berlinski, 456 Northwest 4th Street. Q.. How old are you? A. Forty-eight years old. Q. haa is your business? A. I do repair business for Benjamin & Jay Cor- sanetinn. isa ct ok Cee aaa “BDI Se TEN 8 Hon) hat eRS . 99 Q. What business are they in? A. They handle service materials, generators, Dei- sel engines and other equipment. Heavy machinery? That is right. Are you also a captain? Not at the present time. Not at the present time. Are you also able to command a ship? A. Yes, sir. Q. Will you tel] the Court just how many years you have been associated with vessels? Not me; the Court. I only ask thé questions. A. Well, ever since I was eighteen years old. Q. At one time did you work for Mr. Barba in the reconstruction of a vessel-which subsequently became the Sea Pak? A. That is right. Q. Were you in charge of that reconstruction? A. Yes. ° Or OPO Q. Was that reconstruction done under the super: vision of a surveyor? A. Yes,. sir. IX Q. Who was the surveyor and who sent hiny there?: ; ; 4 A. Mr. Stuart. I don’t know the company’s name; * offhand, but it was Mr. James Stuart was the “str- veyor. i | 7 Q. Was he working for the vessel] owner or the underwriter, if you know? A. He was working for the underwriter. Q. How often did you see Mr. Stuart during the reconstruction of that vessel? A. Well, at first he used to come around there probably several times a week. After that we would call him on anything we were not Sure about. We lees, & would call him and he would come down and advise us what to do. Q. How long have you known Mr. Stuart? A. I wouldn’t say how many years offhand, but it has been a long time. Q. Ig you have confidence in him? A. Yes, sir, I certainly do. 100 Mr. Dow: Your Honor, and Mr. Batchelor, to cut this short, I am going to eliminate any question as to the manner in which the vessel was reconstructed. There is a great deal of detail to it. I think we can save all of — that, because by what has already gone before I don’t think it is any longer material, if it ever was. Q. Was a certificate subsequently issued by Mr. Stuart? A. Yes. As far as I know, yes. Q. Was it likewise inspected by the Coast Guard? A. Yes, sir. Q. Did they find everything in order, or did they find things not in rer? A. They found everything in order. Q. Were you required to have a Coast Guara-POroOoro ¢, 103 A.. Yes, sir. Q. Will you tell the Court your opinion of Captain Moran as a successor? A. As far as I know, he is successful in handling a boat of that size. I thought he did quite well. I have no reason to believe he couldn't. —. Had he handled it before for you while you were—Did he ever handle the ship before for you? A. Yes, he did. He took over for me one time when d@ had an infection in my arm. I had to come in. He brought the boat in for me. Q. How long did he replace you that time? A. I think about three days. Q. From time to time did you have reason to call upon the vessel’s owners, the assured here in this case, for parts, supplies, equipment or tools of any kind for the maintenance, upkeep and repair of the Sea Pak? - A. Yes, certainly. Q. Tell the Court the nature of what you would ask? A. Well, I couldn’t remember. Q. Roughly, generally. A. I couldn’t give you any detail. There were paints, engine spares, and so ferth: the normal re- pair parts that would be required in the operation of the vessel. Q. Did you receive them promptly? A. . Yes, sir. Q. Did you ever ask for anything you didn’t get? A. No, sir. ee: Q. Did you ever have any difficulty with the hull of the ship and, if so, tell the Court what it was, when, where and what? 104 A. As long as I was on the boat I never had any difficulty. We always made periodic inspections of the hull as to her cleanliness on the bottom, which we could do by going under the boat and checking it. Q. When and where did you go under the boat, what sort of people did it, and what would you do when .you got there? A.* I was under the boat myself on several oc- casions. We scraped the bottom with .a brush to keep it clean, as you would on any other wood vessel. Q@. You mean to remove seaweed and moss? A. There would be stuff like that, yes, sir. Q. What difference does it make if that grows there or not? A. It reduces the speed of your boat, which is not —which was not the real problem down there; how- ever, it keeps the boat clean. Q. When you keep’ a hull clean what has that got to do with the length of life of the hull itself, if any- thing? A. Well, I don’t know as it would affect the length of life, because—I don’t really think it would make any difference in that respect, but certainly in opera- tion it should be done to keep up the boat. Q. Why do you want to keep her up? That is what I am trying to get at. What was the point of it? A. To keep her clean. Q. Cleanliness is virtue in itself; is that the idea? A. I would say so, to our ship, yes. Q. Did you employ divers down there? A. Yes. We had divers down there on several] oc- casions. Q. What did the divers do? A. Well, they would primarily come down there to catch crawfish. PIPER US) OF Beli EF OR RN 105 Q. They worked for che company by diving under and getting crawfish; is that it? A. That is right. Q. They are American boys here from the main- land, or are they natives, colored natives from Caicos? A. No. They were American boys. Q. They bring their own equipment with them, do they not? — A. Yes, sir. Q. Just what did you ask them to do, or what did they do at any time, if you can remember? A. At one time they went under the boat to make &n inspection, because they had masks, so they could make a thorough inspection. Q. By a mask you mean something over the face? A. That is right. % @. And air comes into it? A. That is right, so they could stay under there as long as they wanted to to make that inspection. Q. Approximately when was such a thing done? A. Qh, that was—I don’t remember the exact time, but it was probably two weeks before I’come back, the last inspection. } Q. It would be sometime in July, then, is that it? A. I would say so. ; Q. And the vessel was lost, was it not. on Friday, the 13th of August; is that correct? A. That I couldn’t tel] you. the date: I don’t know the exact date. Q. Did the divers make any report to vou after they were under there? A. Yes. They said it looked all right. Q. In your opinion, were they competent to judge that? a w 106 A. Well, I guess anyone is competent to judge that as long as they have eyes to see. I really don’t know their qualifications as to vessels or anything, because I hadn’t known the boys long enough for that, but would say yes. Q. In other words, if there was a hole there you could see it; is that it? A. You could see it, yes. Q. If there was a plank split— A. Or a loose plank, yes, they certainly should be “able to see it. : Q. Did thesdivers Say that they found any holes? A. I don’t recall what the conversation was after they come up. They found some holes, and they were plugged, and I believe we talked about that at the time. I tried to explain to them that there Were some seacocks which come through the Lottom and should not be mistaken for anything. Q. Will you explain to the Court what : you mean by a seacock coming through the bottom, what it was used for and what the purpose of it was? A. A seacock is used both for engine cooling and also for refrigeration. There is a hole through the bottom of the boat, which is lined with a brass fitting and fastened to the seacock on’ the inside of the hole; on the outside it looks like a plain hole through the bottom of the boat. There are water intakes and dis- charges, both for refrigeration and engine. Q. How many were there in the bottom of that ship? ; A. Well. I would have to-- Q. Approximately, if you know. A. There are four onthe engines_and two for the refrigeration, and there 4Avere several othe holes for the toilets, and so on and so forth. \ hls YK itt AN BEALL BRED was 26 ge , 107 Ate: \- rk Q. Will you explain the difference _ to, the.’ ‘Court between holes such as you have just des¢ribed in both appearance and size and a hole, for example, which might have been caused. by hitting a rock? Mr. Dow: Maybe I insult the Court’ m intelligence by asking so obvious a question, but you may wish Mr. Berlinski to answer it. Q. Go ahead. A. If there was a hole in a hull that was put there by a drill, or something like that, it would certainly be smooth. If it were pushed through by hitting a submerged object or running aground, or something like that, it would be ragged; it would be splintered and the planking would be tore up. It certainly would not be a round hole. Q. Were there any of those intakes or discharges in the bottom of the ship—Al] vessels have some-/ thing like that, do they not? A. Yes, sir. Q. Many or less, depending on the meee: A: That is right. Q. Were there any there that were not directly connected to any of the main engines or refrigerating machinery? A. Yes. There may have been several. I believe there is two in the engineroom that were not in use at the time. Q. How did they happen to be thére and why were they there and why weren’t they in use? _ A. They were left there to install additiona] equip- mest or large intakes, or something like that, but they were sealed and capped on the inside. as well as a seacock, I think, on the inside. ¢€ q , 108 Q They: were there ‘at the time the vessel was - reconstructed? 4 - A. Yes, sir. . : _ Q° To Mr. Stuart’s knowledge? \A. Yes, sir. - Q To Mr. Stuart’s knowledge? A. Yes, sir. ee ee -\ . . @ Mr. Stuart approved of leaving them in there ' for that purpose? : A. Yes, sir. f . Q. Was there anything that Mr. Stuart ever want- ed you didn’t do? , A. Not that I know of. In fact, if I wasn’t sure I would call on him to help me out on that. Q. How big were those holes, perhaps from the discharges? How big are things like that? — A Some are ose inch; some are two inches. I believe two inches is about the largest we had. Q. What would the two inch ones be for? A. That would be a discharge from your lavatories and the basin drains, and stuff like that. Q. -If you plugged those up what would happen? . A. Nothing would happen; you just couldn’t use the facility aboard the boat. Q. If you plugged up some of those unused over- ’ poard discharges: from the bottom as well as the top, what would happen? A. Nothing would happen. Q. Yow have been about thirty years around ships? A. At least that, I would say. ‘@. When you left the Sea Pak in South Caicos to come home, I understood you to say for the first time - ina year. will you tell the Court your ‘opinion of the condition of that vessel as and when you turried her over to Captain Moran? : QqQ 109 A. Well, the only thing that I recall, Mr. Stuart and I went out one Saturday afternoon and as we were driving along Biscayne Boulevard— Q. No. Excuse me. I*don’t think you understood the question. Go ahead with the answer. Maybe you did understand it. So, you were driving along with Mr. Stuart. That is this surveyor that was here? A. No, no. I am talking about Mr. Willner Stuart. Q. Stuart Willner? A.. My mistake. Perhaps I did say Mr. Stuart. We were discussing whether or not I was going back to work over in Caicos. Q. That was amor you had been aare about two weeks? A. That is right. We were also eiikeiaisel the bill of sale of the vessel for the fellow to sign. He asked me at the time whether we should hau] the boat im- mediately. I said, ‘“‘Yes, sir, it probably should be, but we can work another season’ with it without doing too much to it.’’ That is for painting, and so on and so forth. Q. You considered her in seaworthy condition at the time? A.~ Yes. Q. Seaworthy enough to withstand another season - “ef work? ' A. Another season if necessary, because the boat was Amportant in’ the operation. Mr. Dow: ~ That is all. Your witness. _ The Court: We will recess until 1:30. 110 (A recess was then taken until] 1:30 p.m. of this date.) Afternoon Session. Miami, Florida, September 27, 1955, 1:30 o’clock p.m. The Court: Proceed. LEONARD O. BALINSKE, a witness called on be- half of the Plaintiff, thereupon resumed the witness stand and further testified as follows: Cross Examination. (By Mr. Batchelor): Q. Captain, I believe you have testified that the divers found a hole somewhere in the bottom of the ship; is that correct? A. Why. yes. They mentioned finding holes, yes, sir. ; Q. I believe you mentioned some kind of a plug was inserted: is that correct? A. That is right. Q. After this episode with the divers did all of your equipment on the boat which used these fittings that went through the hole operate_properly? A. Yes, sir. 7 Q. If plugs had been put in any of those particular fittings they would not have operated properly, would they? A. That is right. ill Q. Now, you have mentioned, Captain, when the boat was worked on here in Miami the year before there were some of these pipe fittings that went through the holes that were not removed from the boat? | | A. That is right. Q. And they were not in use on the boat, but were what I’believe you call blanked off on the inside, so they are still in the hole if you want to use them again? A. That is right. Q. Where were those fittings that were blanked off in that manner? A. There were two in the engineroom which were never used. @. Ore on either side? A. No. I believe they were both on the port side of the boat. Q. How high up on the hull were they? A. They were below the waterline. Q. Approximately how far? A. Oh, probably twelve inches below, if I remem- ber correctly. Q. Were there any other such fittings in the ves- sel which were left and not used? A. Not that I recall, no, sir. Q. As a matter of fact, there were no more: isn’t that correct? A. I couldn’t answer that accurately that way, no, sir. i Q. Do you remember testifying on a deposition, Captain, at Mr. Willner’s office on May 14th of this year? : A. Yes, sir. 112 Q. Do you remember my asking you this question after you had testified about the two hole fittings which were left in the engineroom: ‘‘Question: Were there any others through the hull sheeting left in the ship not in use?’’ You answered: ‘‘No, sir.’’ Do you recal] that? 3 A. I don’t recall that. Q. Where was this hole that the divers put the plug in? A. I don’t know where that hole was. They didn’t tell me where it was. I was busy doing other things. I don’t know where it was. Q. Do you mean to tell me that as master of that ship you knew that they had to put a plug somewhere down in the bottom of the ship and you didn’t even find out where it had been put? A. Because I wasn’t concerned. Everything was in working order. If they put it in one of the fittings that weren’t used, which are always two or three inches deep, that wouldn’t make any difference. Q. Captain, do you remember talking with me in the presence of a Court reporter in my office in Oc- tober of last year? A. Yes. Q. On October 19th? A. I don’t remember the date. I remember being there. Q. Do you remember my asking you this ques- . tion: “Did you ever know where they put that plug in down there? Answer: No. I don’t know. It was just forward of the engineroom bulkhead.’* Do you recall that? A. I recall answering the question somehow. That is approximately where they were under the boat. Q. Just forward of the engineroom bulkhead? ~ A 113 A. Approximately, yes. Q. I believe you testified here today with respect to those divers you guessed they were competent divers? A. That is right. | ie Q. Is that your opinion about those divers? A.* I don’t know anything about diving— Q. What was your opinion on this— A. —whether they were competent or not. Q. You don’t know whether they were incompetent cr not, or were competent or not. What was your opinion of them? A. What do you mean, what was my opinion? Q. From your observation of them out ‘there, as a marine man when you saw them out there, what was your opinion as to their competency and their capa- bilities to go under and look at the boat? A. I testified that they should be able to. Anyone should be able to see a hole in a boat, but there is a difference between holes. There is all sorts of holes you can make. You can drill] a hole and you can ' have a hole that is pushed through the hull. They certainly would look different. ‘ Q. Were you willing to rely on their judgment in inspecting the bottom of that ship? A. Yes, I would say so. Q. At the instance when you were in my office, Captain, in October of last year, do you remember Saying this: ‘“‘Those two divers they had down there. as far as I am concerned, are very responsible, but as far as boats, they know nothing’’? A. That is when they were through. I didn’t like their actions in some instances, but as far as boats, ‘ T still say they may not know anything. 114 Q. You further said: ‘I wouldn’t pay any atten- tion to them, anyway, because they are a couple of irresponsible fellows, and I certainly could not go by hat they say’’. Do you remember making that state- A.\ That is correct. 4s a matter of fact, those divers were primar- ily out there swimming around; isn’t that true? A. That is right. Q. They didn’t come out there for the purpose of inspecting the snip? A. I later learned that they had come 4, out there to look at it. Q. You didn’t request them to come out there, did you? A. No, sir. I didn’t. Q. How much time did they spend looking at the ship, Captain? A. Well, that I don’t know. They were out there for some time. I couldn’t tell you the exact time. Q. What is your best estimate? You were on board that day, were you not? A. Yes, I was, but I had a lot of other duties to do without paying attention to divers, swimmers or people around the boat. Q. What is your best estimate as to the amount of time they spent looking at the boat? A. I couldn’t tell you, because I don’t know when they come out there. | Q. Does this refresh your recollection: I am again reading from the statement given. in my office, the question and answer statement given on October 19th, 1954. ‘“‘Question: You remember how long they were out there or what they did? Answer: They were only out there thirty minutes, that is all.’’ 115 A. That is possibly right. Q. When was it that these divers examined the bottom of this boat? Can you tell us approximately the date? A. No, sir. I don’t remember the date. It was sometime before I left there to come home on my vacation. Q. Let’s go back a little further. How long had the vessel been in port before you left to come back to Miami? ws A. I wouldn’t venture to answer that, not at this time. I don’t remember whether it was two days or three days or four days. Q. Is it your recollection it was approximately two to four days after you got back in port you came back to Miami? A. It could be, yes. Q. How long had you been out on this last trip? A. I think it was three weeks; something like that. _ Q. Did the divers inspect the boat before or after you took your last trip, which lasted three weeks? A. I believe it was before I took my last trip. Q. Do you remember approximately how long be- fore you took your last trip they went down and examined it? A. No, sir, I don’t remember. Q. Does this refresh your recollection: I am re- ferring again to the statement given in my office on October 19th. ‘‘Question: Do you remember approxi- mately how long it had been when.they had gone down? Answer: I would say approximately four or five weeks before I went out on my last trip.’’ Does that refresh your recollection? A. That could be. 116 Q. Did any of the crew go me 3 with the divers when they went overboard to look at the bottom? A. Some of the crew always went over with the divers when they were swimming around the boat, yes. Q. Do you remember particularly whether any went over on this trip, this time we are talking about? A. Yes. I believe severa] of the boys went in with them. Q. Who went over with them? Do you know the names? A. I don’t recall their names, no, sir. Q. Let me ask you if this refreshes your recollec- tion, again referring to the statement of October 19th: ‘‘Question: Was any of the crew in the water at the time these divers went. down there? Answer: Yes. Question: Do you remember who they were? Answer: Yes. I know Roy Jennings was in the water with them. I distinctly remember that, because the divers put*the face mask on him. He went down and come up very rapidly. because he was not used to breathing compressed air.’’ Does that refresh your recollection that Jennings was with them? A. Yes, it does. Q. Was the ship ever hauled and the bottom paint- ed after she left Miami in August of 1953? A. No, sir. Q. Pardon me? A. No, it wasn’t. Q. You have mentioned that on several occasions you went overboard. perhaps you and some other members of the crew,'and scraped the bottom and inspected it when she was lying afloat? A. = that is right. 117 Q. Can you tell us approximately how long it was before she sank that you last went over and scraped the bottom and inspected the ship carefully? -A. I would say it was on my last trip out. Q. How long would that be before she sank? A. Why, that might have been three weeks before she sank. « Q. It is your testimony within approximately three weeks before she sank you went underneath, scraped the bottom and gave it a careful inspection? A. That is right. Q. Who was with you on that occasion? A. My crew. Q. Can you give us their names? A. There was Henry Mills, and I don’t remember the other boys that were with me on that trip. Q. Do you remember making an affidavit on Au- gust 16th, of 1954, in this matter, at the request of Milton L. Jones? A. Yes. Q. Do you remember stating in that affidavit: ‘‘The underwater body was cleaned and inspected, the last cleaning of which was made about six months ago, by myself’’? A. Six months ago. and at intervals between that time. Q. Well, now, after the six months period what did you do? What kind of inspections did you make? A. The same kind of inspections. Q. Isn’t it a fact that after that cleaning which you mentioned here as having taken place six months before al] you did was to make a cursory inspection at times when you went down and checked on the strainers on the refrigerators, motors and engines? s 118 A. That is the same type of in: tion. It doesn’t make any difference when you make it. We used to do that on every trip out. Q. As I understand it, the last time you went down and scraped off the bottom and gave it a careful in- spection was six months past? It was three weeks before. * I will ask you if this is your signature? That is right. Are these your initials on the first page? That is correct. Do you recognize that signature? Yes. This is vour signature on that? Yes. As I told you before, I don’t recall every incident that happens on a boat, because of other things on your mind.in running a vesse] of that kind. Q. Did you make this statement on August 16, 1954? | A. Yes, sir. pO>O>rore> Mr. Batchelor: I would like to offer this for identification. Mr. Dow: Let the record show I never knew it was taken. This is the first time I have ever seen it. For iden- tification purposes, of course, I could have no objec- tion. The affidavit of Leonard Olaf Berlinski. taken on August 16, 1954, was thereupon marked ‘‘Defendant’s Exhibit No. 1 for Identification." Mr. Dow: Did the witness receive a copy of this? 4 “ 119 Mr. Batchelor: I don’t know. I didn’t take it. Mr. Dow: You took it. Did you give him one? Mr. Batchelor: You are incorreet, Mr. Dow. I didn’t take it. Mr. Dow: It is objectionable. I am not interested in it. (By Mr. Batchelor): Q. Subsequent to this vessel’s departure from Mi- ami in August, of 1953, up to the time you left her in the latter part of July, about three weeks before she was sunk, had she been aground that you know of? A. Not while I was on board, no, ssir. Q. I believe you said you had been aboard all except, perhaps, three days of that time when she was underway? A. Yes, sir. Q. Had she ever had any accidents? A. No, sir. Q. Had you ever encountered any heavy or un- usual weather? A. No, sir. Mr. Batchelor: That is all. Mr. Dow: That is all. The Court: : There is a question I want to ask this witness be- fore he goes. 120 Questions by the Court: Q. You say there was a plug in one of those pipes that came down through the boat? A. Did I say there was a plug? Q. Yes. — A. I merely stated if they put a plug—Well, what I am trying to say is they could have put a plug in one o: those pipes and it would not have interfered with the operation. Q. I understand that. Did they tell you they did put one in there? Yes, sir, they did. Do you have any idea why they did? - No, sir, I don’t. Did you ask them why they did? They. said there was a hole in the bottom of the boat, that is all. Q. There were several holes there, weren't there? A. Yes, that is right. Q. Do you have any idea why they picked out this particular one to plug? A. I sure don’t, no, sir. Q. You didn’t ask them why they did? A. No, sir. Q. If the plug had been removed it still would not have leaked? A. It wouldn’t have made a bit of difference. be- cause the seacocks not being used were capped off on the inside. >PO>POo> The Court: All right. Mr. Batchelor: May I clarify one more question along that line? 121 \ The Court: Sure. (By Mr. Batchelor): Q. Did these men tell you they put a plug in a ‘pipe or a hole? A. They didn’t say which it was. They said a hole. Q. They didn’t tel) you whether it was a pipe or a hole? A. Just a hole. Mr. Batchelor: That is all. (By Mr. Dow): Q. Did they report any damage to the ship? A. No, sir. The Court: Where are these divers at this time? Do either of the parties know? Mr. Dow: Waiting on the outside. The Court: All right. You are excused. (Witness excused. ) 122 JOHN MONKOFYF, was thereupon called as a wit- ness on behalf of the Plaintiff, and having been first duly sworn, testified as follows: Direct Examination. (By Mr. Dowy. Q. Will you give the Clerk your full name and address? A. John L. Monkoff, 1357 Westward Drive, Miami Springs. Q. What was that address again? A. 1357 Westward Drive, Miami Springs. Q. What is your business? P A. I am a professional diver. Q. How long have you been engaged in that busi- ness? A. About eleven vears. Q. In that time have you been doing anything else? A. Yes, sir. Q. What is that? A. I was in the sporting goods business, and I went to school and things like that. Q. In the past eleven years how much of that time has been devoted to the business of diving? A. Practically each year I would dive part ‘of the year; I mean for some time of the year. Q. What proportion of those eleven years has been spent diving” A. Jus a lot of it. Q. Half. more than half. or less than half? A. 1! would say half. Q. Where did you receive your training? A. I was trained to dive in the Navy. 123 Q. You talk to the Court, not me. How long did that training last in the Navy? A. Two months. Q. Did you dive for the Navy after that? A. Yes. Q. Who have you dove for since? A. I have my own salvage business. I dove for Logan Brothers, for Byrd Brothers, for the Diver Corporation, for different construction Companies, and things like that. I dove for the— Q. Talk to the Court. A. —for the State, the State of Florida; for several cities. . Q. How deep do you go? A. I go down three hundred feet. Q. Is that the maximum working depth for a pro- fessional diver? A. I wouldn’t say you can even do much work at — three hundred feet. I have just been down three hund- red feet. Q. How deep does the Navy certify a diver? A. 150 feet, I think. I guess they have done deeper diving, but they don’t go farther. | Q. If you go down three :hundred feet you can’t do much? A. Not much. You can’t say down there. Q. How much time can you spend on a wreck at three hundred feet in one day? Mr. Batchelor: It seems to me that is immaterial. Mr. Dow: T will bring out the materiality ~ good part of my life. Q. In your own opinion, do you believe you were competent to make an intelligent report on the condi- tion of the hull? Mr. Batchelor: | I object. That is a matter for the Court to deter- mine. ' The Court: Yes, I think so, but I think he has already given us enough information as to be considered. Proceed. I want you, counsel, to fix the time he made the examination of this particular boat. Mr. Dow: That is correct. The Witness: Just before we were returning on our first trip down we made, back to the States, I was asked if we couldn’t make—go down and take a look at the bottom of the boat, just to see if it needed to be cleaned off. We went down; both of us dove on it. We spend about an hour on it, checking the bottom. We checked it, looked it over, checked it for dry rot, just gave it a general vow % | 127 (By Mr. Dow): Q. Did you use any tools? . - A. I carried a screwdriver with me—I don’t know what the other fellow carried along—just to probe with, any places that might look like they might have a dry rot or anything, that is all. We just dove down to see if the botto eeded cleaning. Q. What did yo@ find? A. Well, we just told them that it was all] right, it just needed some scrub brushes to scrape the growths off. | Q. In your opinion, was it a seaworthy hull, based upon your own past. experience? A. Most definitely. Q. Can you tell the Court the difference in appear- ance, or would you be able to tell the difference in appearance between an opening in the bottom of a ves- sel caused by a blow from a rock, for example, and an opening in a vessel caused by an overboard in- take or discharge? A. Anybody could. Q. Tell the Court. The Court has never been indian a ship. A. Yes, I can tell. Q. Describe the difference between them. It may sound silly to you, Mr. Monkoff, but we want to know these things. A. We checked the hull from the waterline down to the keel, from the stem to the stern, the entire bottom of the boat. There were scrape marks on the boat, where it had scraped—I don’t knov~what, but there was nothing on the butts and there: were no planks that were caved in or stove in; the general condition of the hull was good and sound, as far as I could see. The other diver felt the same way. I 128 didn’t notice anything on the bottom that looked like it had been caved in or stove in any place. Q. There is an entirely different appearance to a discharge vent and a damage; is that correct? A. Yes, sir. Q. Can you recall putting any plugs or wooden fittings in any opening of any kind in the bottom of the boat at that time? A. No, sir, I can’t. Q. Supposing—If you don’t fee] you are competent to answer this, please say so, but supposing there were a hole in the bottom of the vessel, whether it was bored there with a pipe through it, or no matter how it got there, an inch in diameter, so you could put your finger through it, or something of that kind. how long would it take, if you think you know, to sink that ship? ~~ A. I wouldn’t know. Q. I mean, an hour or a month? A. It wouldn’t take log, I wouldn’t think. Q. Do you mean by that a few hours or a few days, or what are you talking abovt? A. I would say maybe half a day, a boat as big as that boat was. . Mr. Dow: \ Your witness. Cross Examination. (By Mr. Batchelor): Q. How long did you say you were under that ‘boat? 3 A. About an hour. I was under it half an hour in a diving mask, and the other fellow was in about 129 the same time. It was a year ago; I don’t know. I just say about an hour. Q. You were under a half hour? A. Yes, sir, half the time; half an hour apiece. Q. You yourself were underneath the boat for one- half hour? A. Yes, sir. Q. Who was captain when you inspected this ves- sel? A. I guess Mr. Berlinske or Balinske, or some- thing. Q. Who asked you to inspect the vessel? A. I was asked by a gentleman by the name of Mr. Rothstein. Q. Did you see Mr. Berlinski when you went out to the boat? A. Yes, sir. He helped us get our gear out there, and was there at all times. Q. You talked with him while you were out there? A. I don’t remember that I talked to him. Q. But he was there and you were there? A. Yes, sir. Q. Where did you stay the half hour that your partner was down in the water? A. I was in the water at the same time. Q. But you were not underneath the boat? A. I was, but I was only in fins and mask. I wasn’t in any diving — I was just checking the waterline. - Q. pee were not sniiaenielih the hull, checking that part of it? A. oe. sir. Q. You said something about finding some scrape marks on the bottom of the ship. Do vou recall that? A. Yes, sir. 130 ‘ Q. Where were those marks and what did they look like? — A. They looked ie cntiaaien like a scuff mark would look on a waxed floor. Q. Where were they? A. I don’t recall where they were. I just remember that there were some there. Q. Do you remember talking with me in the pres- ence of a Court reporter on October 18th, 1954, on board the Skipper up here in the Miami River? A. I remember talking with somebody; I don’t remember who. Q. On board the Skipper up in the Miami River? A. Yes, sir.” Q. Do you remember these questions being asked you and these answers being given by you at that time: ‘“‘Question: Did you notice whether there were any scrape marks or anything on the bottom which might indicate she had been aground or hit anything? Answer: No. No more than you would find on any boat. In other words, if you run a boat aground an hit it hard there is going to be a scrape mark. Que tion: You didn’t see anything like that? Answer: Nd’ ~Does that refresh your recollection? A. Could you read the first part of that heck again? Q. I will read it all. ‘‘Question: Did you notice whether there were any scrape marks or anything cn the bottom which might indicate she had been aground or hit anything? Answer: No. No more than you would find on any boat.’’ A. That is just what those marks that were on the boat were, no more than you would find on any boat. Q. You didn’t see any marks that would indicate she had been aground or hit anything? 131 A. Definitely not. Q. What was the condition of the paint on the bot- tom of this boat? A. Well, the bottom had grass on the bottom of the boat. It was just—As far as the paint, I con't remember what the condition of the paint was. Q. Let me see if this refreshes your recollection. I am reading the questions and answers taken at the same time, on October 18th, last year, on board the Skipper. ‘‘Question:—’’ I started the’ question thusly: “And there was no indication from the paint that would—’’ Before the question was finished this an- swer was given: ‘‘There was no paint on it, no paint that you would call paint.’’ Do you recal] that? A. Yes, sir. That was closer to the time that I looked at the hull than it is now. This is a year later. Q. It is now your recollection when you looked at the bottom of the boat there was no paint on it you could call paint? : A. That is just what I said. Mr. Batchelor: That is all. ‘Re-Direct Examination. (By Mr. Dow): Q. Do you know, Mr. Monkoff, whether or not the other diver might have inserted any plugs on his side? A. Not to my knowledge. Q. One worked one side and one worked the other? A. No. We worked down the center of the boat. One worked the forward part and one worked the -Stern part. Q. You don’t remember which end you worked? m7 A. Offhand, I would say no. I am not sure which end I did work, because I was in the water ‘all the time and so was he. We were not in diving apparatus. We were in fins and masks, just making free dives. Mr. Dow: Thank you. Unless the Court has some questions you will be excused. The Court: No, sir. You are excused. (Witness excused. ) JOSEPH F. MORAN, was thereupon called. as a witness on behalf of the Plaintiff, and having been first duly sworn, testified as follows: Direct Examination. (By Mr. Dow): Q. I want you to keep your voice up and address yourself to the Court, not to me. I only ask the ques- tions. Now, give your full name and address to the stenographer. A. Joseph F. Moran, 620 Northeast 5th Street. Hi- aleah. Q. You will have to talk louder than that, so every- one in the Courtroom can hear you. By whom are you employed, Captain? A. Tropical Marine Products. Q. Raise your voice and ‘talk to the Court. How long have you worked for them? A. About two years and a few more months. 133 Q. Did you work for theirgtedecessor in interest there, Mr. Barba? A. Yes, I did, for maybe four or five months. Q.. Ever since you have worked for the plaintiff in this case, Tropical Marine? A. Yes, I have. | Q. Did you by any chance-work on the Sea Pak while ‘she was being rebuilt in Miami? A. Yes, I did. f Q. When you first saw the Sea Pak what condition was she in? Had she been completed and ready for sea or was she just started, or what? A. She had already been put back in the water. They were installing the refrigeration system when I came aboard. Q. Talk to the Court, please. You were present while they installed the refrigeration system? A. Yes, I was. Q. What else? % A. Engine work, cabins, trimming up; things like that. : 'Q. Did you ever see a surveyor down there? A. Well, I saw several people around there. They didn’t work on the boat, but I don’t know what they were. Q.\ Did you ride her down to Caicos, or did you ty down: I flew down. Q. Will you tell the Court. Captain, your back- ground as a seaman. how many vears, and what you have done? A. Well. I have been going to sea— Q. Raise your voice and look at the Court. A T have been going to sea, vou might say, most all mv life. ever since I was of age enough to go on 134 every type of vessel, I guess, there is, towboats, big sailers, sail boats, schooners. Q. Did you ever take over as captain of the Sea Pak during any incapacity of Captain Berlinski? A. Yes, I did. Q. Do you remember when it was and for how long, approximately? A. Well, it was about a week. I don’t remember when it was, but it was quite a long time ago. Q. Did there come a time when Captain Berlinski returned to the United States? Yes, there was. Do you know why he returned? Well, rightly, I believe it was his vacation. You took over as captain of the Sea Pak? Yes, I did. Do you know—I know it is a long time ago and you haven’t seen your deposition, either, i sup- pose, have you? A. No, I haven’t. Q. I haven’t given it to you. Can you remember when you left the plant at Caicos, keeping in mind that it was Friday, the 13th of August, that the ship went down? A. I believe it was on a Tuesday morning, I be- lieve. | Q. What would that be. about the 9th or 10th? A. About the 9th yes. Q. Now. what type of fish were vou after at that time? A. Conch. 7 Q. How big an order were you out for? Did you OPOro> have an order. or how much did you intend to get?. . A. The manager t@ld me they had an order for twelve thousand pounds. 135 Q. That is six ton? A. Yes, sir. Q. When you started out where did you go and how did things go? A. Well, we left the harbor, the east harbor, and went down the length of ‘Long Key. around between Long Key and Six Hiiis. There is a rather deep spot there we anchored at that is very favorable for conch fishing. We went. in’ behind there and anchored, where we started to work from. We worked our way down below as we diminished the supply of conch on that reef. Q. Then, I suppose the conch come back another day; is that the idea? *% A. Yes, sir. You can go a week and maybe get the same amount in the same spot. Q. Eventually, you proceeded somewhere else? A. No. That is where I left from when I had trouble. Sealers Q. How far was that from the plant? A. Oh, six to eight miles. - Q. I am going to show you a chart and ask you if you will take this pencil—I will ask you if you recog- nize it? : A. Yes, sir. Q. What is it? A. It is a -hart of East Harbor and Ambergris Cays. Mr. Dow: I wish, counsel, you would examine it carefully to see there are no marks of any kind on there. 2 Mr. Batchelor: Is this some official publication? 136 Mr. Dow: I don’t know. It was just handed to me about two minutes ago. The Witness: Could I say something on that, please? Mr. Dow: Yes, I wish you would. The Witness: It was printed by the University of Texas on a survey by Edward Doran for the Cape Moseley Base. Q. Where did you get it? A. I borrowed it from the Commissioner in South Caicos. Mr. Batchelor: No objection, if you want to offer it in evidence. Mr. Dow: I think I should like to offer it and have it marked first before Mr. Moran marks it up. (The chart of South Caicos and Ambergris Cays was thereupon received in evidence and marted ‘‘Plain- tiff’s Exhibit No. 2.’’) (By Mr. Dow): Q. Now. Captain. I would like, with the permission of the Court. if I may. to put it on the Bench, have you mark it so that the Court can follow you— Pd The Court: Put it over there on the reporter’s table. 137 (By Mr. Dow): Q. I want you to come down here, please, and first point out to the Court the place where your plant was, where your base was, where you left from. A. The base is ‘approximately right there (indicat- ing). That is where the plant is. Q. Will you draw a little line up from there and mark it ‘‘plant’’, or something like that. é Al right (marking on exhibit). What is the scale of miles on here? Five miles, I believe, is five inches. So, it is an inch to a mile? Approximately. Now, will you draw a blue line from where the vessel was anchored when you departed on that last trip and trace your route to the point where you final- ly anchored and the trouble began? A. We were anchored right here in the harbor. We left the harbor and came out through the cut down wide; we always swing wide of this Long Key, be- cause it is a very nasty place. Q. Make a good strong line there. Tell the Court anything about it you want to, as you go along. A. We go in through this reef right here (indicat- ing) and back into this deep hole here (indicating). It is coral and sand, and it makes a very good anchor- age. I will draw an anchor there. Q. Is that where you finally anchored? A. Yes, sir. 3 Q. Is there any reason, Captain, that you could not go directly from that anchorage to the plant without going around Long Key? A. Yes. Q. If so, what is it? OPOPOp 138 A. This is a cand bar right here (indicating.) There is no water on it. At high tide there is two feet, approximately. Even our small boats can’t cross it. Q. What sort of a beach is over at the point nearest your anchorage? A. Right here it is very sharp coral rock that goes right up to the water. At low tide there is about two feet of water, where it cuts off completely. Q. What was the weight of the-Sea Pak with all her equipment? ‘ A. Roughly. around forty or fifty tons, complete. The Court: ~ Is that all the reference you are going to make to this map? Mr. Dow: No, sir; one more. Q. If you put that ship on this beach, in your opinion, is it a good place to land a ship? © A. No, sir. You wouldn’t bury your bottom enough to work on it. Q. So, if you put her up there what would happen to her, in your opinion? A. You would take a chance of breaking her. You wouldn’t even have enough depth to work on it. Q. Between your anchorage and the plant, through the route which you were required to travel, what sort of a shore is there on the southeast side of Long Key, along which you had to pass to get to the plant? A. That is all high cliffs, forty or fifty feet. Q. There is no beach there at all: is that correct? 139 A. No, sir. That is deep water right to the cliff. Q. That is shown here (indicating)? A. Right. There is the reference right in the legend. Q. What is this dotted line marked ‘‘A’’? A. That is your 100 fathom curve. @. Will you write on,there ‘‘100 fathom curve’’? A. (Witness does as requested.) . Then in parenthesis under there will you put ‘‘500 feet’’? A. (Witness does as requested. ) Q. Now, will vou please make a mark somewhere on that blue line, an ‘‘X’’, if you will, at approximate- ly the point where the vessel was lost, keeping in mind the scale of miles as being a mile to an inch? A. Well, approximately—She was inside of that line when she was lost; I mean coming down. I swung wide out, my engines cutting off almost up to the harbor entrance. I drifted closer into the Key and down. Q. Put an ‘‘X”’ approximately where you think it was. A. (Witness does as requested.) Q. You may resume the stand. I think that is about all on that. Now, Mr. Moran, will you tell the Court, not me, chronologically and in proper sequence about the time you first discovered the entrance of more water than usual, what drew your attention to it and what occurred from there on? Tell the gentleman sitting there, not me. Turn ground. A. Well, first, I ‘will tell you the reason I dis- covered this leak. One, bilge pump that I have, it runs always. It is a sef-priming pump; I mean it is a continuous priming pump. There is a stream of water that runs through the pump that keeps it 140 primed. Through the overboard discharge there is al- ways a small stream of water coming through. When my attention was turned to it normally every once in a while it just caused a heavy squirt of water. I. began to notice it began to pump a little more at a minute’s duration, then a little longer and a little longer, with these intervals probably at first about an hour or an hour and a half apart. What day was this? This was, I believe, on Thursday. If she sank on the 13th, when was it? It would have been Thursday. You mean it would have been the 12th? The 12th, yes, sir. At what time did you first notice it on the 12th, morning or afternoon? A. Well, it was just after dinner, because I had been up the night before and I didn’t get back on deck until right about dinnertime that day. Q. Well, go ahead. So, in the afternoon of the 12th you noticed this. What did you do when you noticed it? A. Weil, I just checked on it. I didn’t do anything immediately. I thought maybe being we were wash- ing fish all the time there was_a lot of water spillage, but it might have come from anything--When it con- tinued to do that I went down and checked in the bilges and checked in the engineroom where this one pump is located. I didn’t see any flow of water to be alarmed at. I just watched it. ! checked my packing glands on both shafts to see if they might be leaking. Q. That is where the shafts operate, go through the hull and go overboard? A. They go through a bulkhead there under the galley wall and go through the walls, but there is a OP OP Ore 141 valve in the bulkhead that would normally keep open- ing, so if there is any water does get in there it goes to this one sump. Q. Did you discuss the matter with the engineer? A. Oh, yes. I had him down there when I checked that, and he checked officially, seeing that she just didn’t leak. Q. When you are washing fish do you take water from the sea? A. Yes. Q. Some of that goes down into the bilges? A. Sometimes you take some tubs, and the boys get a little careless once in a while and spill a tub, or something like that. Water is taken from, the sea through a similar pump to the bilge pump. It goes through a wooden trough that is built on the after part of the ship. It has tables on both sides of it. and the water flows down that trough and overboard. When they are washing fish every once in a while you get a lot of slopping with these fish ships. Q. Did there come a time when it seemed to be getting worse, and, if so, when was that? A. That was late in the afternoon when I actually ‘got worried about it, and began checking below. I had one period where she pumped on me for about five minutes. Then I went down there: naturally, the Sump would be dry. I pulled all the floorboards in the engineroom to see if the water was coming from there, or where it was coming from. I noticed it was coming from forward. from the forward engineroom bulkhead. There is along there several perforations where the refrigeration goes through the bulkhead. T found it was coming from there. I went up forward to the forepeak. That is on the other side of this freeze box. It was dry up there So the water I saw coming 142 was coming, evidently. from under this one freeze box that is forward of the engineroom. Ii was really a bad leak, because the pump could not keep up with it. We just kept our eye on it for a while. It got worse. I figured’ I would check the whole ship, be- cause there might be something else. We checked it fore and aft, the engineer and I. The best way we could find tt» was under this forward freeze box, where we couldn’t.get underneath or to the sides of it of anywhere, because it is built right into the hull. We kept our eye on it for a while. It got toward ten, eleven or twelve o’clock at night, and got where it really worried me, so I decided I would take her on back into the plant. We have a longer, deeper beach there and I could put her up, and I could find out where the leak was coming from, because I couldn’t get at the leak from the inside of the ship. I didn’t want to go outside around the key at night on account of the reefs; it was a little tricky going through there, so I waited until the crack of day. About five o’clock I turned the crew to and we got.under way from there. We had, I guess, about six tons of, fish in the boxes. ° Q. That is the forward freezer box from under which you thought the water was coming? A. That is right. So, we got under way, I imagine, around five-thirty to six o’clock. We were going to- ~-ward the reef. We went on up almost to the harbor entrance: in fact, in another-twenty minutes I would have been in the harbor. I am a little ahead of my- self. I began to gain water fast after I hit the sea. I turned the crew to and,we opened the forward hold, that is, the forward freeze box and we dumped all the fish, trying to lighten her up, because the freeze box was forward and the leak was forward. I thought + | & Ka $ 3 ¥ 8 = x ey & ol « ? ss » cy . ‘ * FY te & Be ) ay 4 3 ey ¥ x eg Raine 5 2h EA ABM ELE 143 maybe I could ease up on the pressure of the water. So, the water kept rising and catching up on us. I turned on the wash pump, which is an electric pump. I like that for pumping the bilge. Q. That wash pump is what you wash fish with; is that correct? A. Yes. I worked that pumping the bilge, plus the other bilge pump. The bilge pump run on the engine: They sucked dry and they would quit. When I got about a mile from the plant I was getting water pretty heavy in the engineroom; in fact, it began to flood the floor boards. I thought maybé if I could ease up on the engines I would be all right, so I slowed the engines down a bit. I had it hit up pretty high, because the way the sea rolls if you go in at an angle it drives your boat hard toward the tip of Long Key’s rocks, so I went out with it and then I hes led down soward the harbor. I was. broadside to the ea, and T lost my engines because of the water slushing up on the sides of the engine beds and the sides of the engine itself. It splashed up and knocked my engines down. Q. How did it do that? You. mean drowned the ignition system? . A. It drowned the ignition system, which is very low on that type of engines. I: got them started again, but they only lasted about five minutes, and we Started drifting back out and the wind started carry- ing us down to where we came from. Q. Did you drop your anchor? A. Not at this time I didn’t. I was still out too far. in a hundred fathoms of water. I didn’t have that much chain. Q. How much chain did you have? A. I had approximately th ree hundred fect. to my knowledge. 144 How deep was the water there? Six hundred feet. Go ahead. So, all the time I thought that mayts the run- about, which was due out long before—We have a small motor boat, which I had sent in a couple of days before, or the day before, rather, and I figured they were supposed to have been out early that morning. @. What did you send that boat in for? or supplies. I had figured on sending her in at the ¢nd of the week, but the boys that were fishing- were getting far more fish than I expected at that PoOPo ‘one point. Before I moved on I figured I might load on my cardboard boxes and cellophane to box them with, before I moved on. ‘ Q. In the Sea Pak you chilled them, froze them, washed them and packaged them already to go; is, that right? A. Yes, sir. They were ready fof the cargo plane when they got ashore. Q. The runabout® as you call ‘it, or whatever it was, that little boat, could it go directly across to the (— plant inside of Long Key? Yes, sir. It was an LCVP. How much water did it draw? Two feet. That was shallow enough to get over there? Yes, sir. You couldn’t do it? No, sir. How much water did you draw? Well, with a load of fish on her she drew about six feet. yx. Q. Go ahead. a Well— Perera ee 145 Q. The engines drowned out and you were drifting. How was the wind? ; A. The wind was out of the south, southeast. It was more out of the south. Q. What are the characteristics of this area, so far as wind is concerned? Does it have definite characteristics of weather there? A. Yes, sir. Aine Q. Tell the Court, and not me, when the wind comes up or dies down how it seems to operate. A. The wind comes up very fresh in the morning and dies out during the evening or during the night, but in the morning, oh, around six o’clock, five o’clock, five o’clock, or like that, it springs up fresh: _it gradually increases and about ten o’clock it gets pretty brisk the majority of the year. : Q. That is because of the sound, isn’t. it? A. Yes, sir. The way that Long Key ‘sets in rela- tion to the open ocean there it causes—between that and the tide, it causes a bad reef all along that shore _ and a bad sea, which breaks. I have seen it myself _ break over Long Key, which | is forty feet in most places. Q. Tell the Court what happened that morning with respect to: the weather and how it affected you ‘ at the time when your éngines -drewned out. A. Well, it carried me back westward along-Long . Key.*I had manned the hand pump. We had a 2-inch hand pump. I had the boys operating on them. All of this time I was drifting back. She began to settle by the head and to the port. She turned completely broadside of the sea, and she would straighten out. I ‘et the anchor go; I figured it might hook onto same- thing and not drift out into the reef. I figured it would hold jt until the runabout come out. I thought maybe the runabout could come out and take us off. 146 ayiti tHE un piagasataay atta _. j ity Hh ifs : gial? cht ae Heh jisjeco! teste if 147 @ Did you have an opinion as to whether or not she was kept up or not kept up? , Mr. Matchelor: I ebject, Your Honor. I think he should testify to the facts he knows. The Court: Whether it was kept up’ From time to time did the Captain request -you know whether or not he received them? sir, he did. ry ty parts Eopiop yy R fi 443 The Court: seaworthy is. What do you say about it? The Witness: _ Well, the condition of the ship and the hull and the equipment, that it was — (By Mr. Dow): | 2. Sea aidieh etek caouale ee sen Sener eee teen and every "your timber is: still hard; your 149 The Court: | That would make it unseaworthy, wouldn’t it? The Witness: ; Very much so. » What about holes in the hull? te CI (By Mr. Dow): Q: Seas geashesiiiphan:-ter-ertmtioennt: ined 90 tin. changily tatning Sr NN; whether: they are: tn use: ar” Se we A. No, I don’t. Q i basis eieeniena et Gates pier ant tiieatibig eee ee is that what you mean? | A. A punctured timber. -- QF it dieci Caeeeeeiinetterdeny:betiremt Ge tro. if: something\was punched with « rock how’ docs ‘it differfrom.a‘discharge line? = == Ae Well; a hole thet would be punctured from. a rock would not necessarily be rownd, like you would normally cal! a hole. A hole would be something more or léss:bored' er punched through with something. A rock would be crushing and: punctured, ~irreguat or Yagged./It wouldn’t only puncture it, it would spring the planking and crack it where it would let the water in and not make a hole you could run your hand in or anything else. a. In other words, you might have fracture of ae a plank? eS 150 A. That is correct. Q. A fracture of a plank would admit water, which you don’t think you could see; is that it? A. That is very possible you wouldn’t see it. Questions by The Court: Q. What if this boat hit some coral rock at some time there, would that make a hole in it so it would leak? A. Well, a vessel of that heft or that weight, if you hit coral rock it would either puncture or rupture a plank. If it punched a hole in it it would be very obvious right away, because our bilges are com- paratively shallow and you would notice the water quick. If she punched a round hole in her you would know it. If she ruptured a plank, well, if it didn’t leak you wouldn’t know it. | Q. Well, couldn’t you scrape against one of those rocks or coral, or whatever you call them, so the boards would be loosened and let the water in gradu- | aly? , A. If you ruptured a plank or fractured a plank, and you hit it ‘square in the center of the plank, and whatever you hit was small enough in diameter it didn’t touch the other two planks, it might separate it. Q. Do you know of any instance where scraping against rock or coral caused the plank to separate so as to let water in it? | A: No, sir. Q. You never heard of that? A. No, sir, but you might in other places. Q@. Do you know if that is a frequent occurrence or whatever that happens at all? A. When you are running aground or something like that, that is very apt to happen. 151 (By Mr. Dow): Q. Did it ever happen to the Sea Pak that you know of? A. Not that I know of. Our anchorages are deep and the places we run the boat are fairly deep. In fact, you come up against rock and you don’t go away from it; you leave it there. That is the type of rock we have down there. You cal] it flint coral. Q. If you hit one you know it? A. You know it, yes, sir. That is where you leave it. Q. If you hit it that is where you are going to leave the ship? | A. If you run aground you come very gently to a stop. If you come against one of those heads you are there; that is it, because they raise straight up. That is it; if you hit them you hit them. © | Q. So far as you know, that never happened to her? A. No, sir.. Q. While you were skipper or while Captain Berlinski was, so far as you know? A. So far as I know, no. The Court: May I ask the witness the question, what caused the leak to get into the boat? The Witness: Well, I don’t know that. I understo~* there was— The Court: You don’t know. All right. Mr. Dow: May I pursue that. same thought? 152 ‘ Q. From the sequence of events as you noticed them and as you have related them here, do you have any idea, Captain Moran, what may have caused it? Mr. Batchelor: We object to the speculation. The witness has testi- fied he doesn’t know. We are now in the realm of speculation. The Court: T [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_1599%3A1. Public record. Not legal advice.