Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.
Before BUFFINGTON, WOOLLEY, and THOMPSON, Circuit Judges.
The owners of the Barge "Rita Dempsey" filed a libel in rem against the Tug "Lizzie D. Shaw" to recover damages sustained by the "Dempsey" in a collision between that barge and two other barges while she was in tow of the "Shaw." From an interlocutory decree sustaining the libel the claimant of the tug appealed.
Though presented as one action with related parts, there really were four distinct phases of this occurrence in each of which a separate act of negligence is charged against the tug. It may be helpful if first we give the voyage in outline.
(a) The tug "Shaw" with the barges "Ella V. Camp" and "Rita Dempsey" in tow, tandem, bound from Philadelphia to Baltimore, entered the eastern end of the Delaware and Chesapeake Canal early one morning. The tug and tow had proceeded without incident for about ten miles when, turning a sharp bend, the tug's master saw two barges stranded about a quarter of a mile ahead. They were the "Annie McNally" and "Richard Diggs" with their tug, the "Columbia," standing by. That was the end of the first phase and the beginning of the second.
(b) The master of the "Shaw" took certain precautionary measures but the tug and "Camp" grounded in an attempt to pass the stranded barges, causing the "Dempsey" to collide with the "Diggs" and the "Camp" and, in consequence, to suffer damages which made her leak. That was the second phase.
(c) The "Shaw" got herself free and with the assistance of the "Columbia" succeeded in moving the "Camp" past the stranded barges. She took her out of the canal at its western end and, anchoring her in Back Creek, returned to the scene of the accident. The "Shaw" then assisted the "Columbia" to float her stranded tow. Hooking up the "Dempsey" with the "McNally" and the "Diggs," the tugs together moved the combined tow to Back Creek. That was the third phase.
(d) The fourth phase of the occurrence consisted in the action of the two tugs picking up the "Camp" in Back Creek, assembling the four barges, reforming the tow and, still together, starting for Baltimore late that night. Early the next morning while in the Chesapeake Bay, the "Dempsey" began to settle. The tugs hastened her into shoal water where she sank. Later she was raised and moved to Baltimore.
In order to determine the character of the action and avoid some difficulties that crept into the trial, we turn for a moment to the libel. There the owners of the barge aver a contract of towage with the respondent tug owner to the effect that, either for the "Camp's" safety or to avoid scratching her newly painted hull, each barge should be taken through the canal separately. Though averring such a contract and its breach, the libel clearly sounds in tort. The learned trial judge did not find a contract for the evidence does not prove one, but regarded the discussion between the parties in respect to the single towage of the "Camp" as acquainting the tug owner with the risk of towing a barge of her size and draft otherwise than alone. As this holding does not involve the question of a contract we shall look upon the action as in tort and the tug's liability one for negligent towage founded on the duty imposed by law and independent of any contract made or consideration paid for the towage. The Temple Emery (D.C.) 122 F. 180; The John G. Stevens, 170 U.S. 113, 124, 18 S. Ct. 544, 42 L. Ed. 969; Southgate v. Eastern Transp. Co. (C.C.A.) 21 F.2d 47, 49.
Preliminary to a discussion of the facts and particularly pertinent to much that happened, the water conditions which confront all carft entering the Delaware and Chesapeake Canal must be understood. The canal is about thirteen miles long. It is a sea-level canal, its eastern end opening into the Delaware River near the head of the Delaware Bay and its western end into Back Creek near the Chesapeake Bay, both bays being great tidal bodies of water. When the tide is flood the waters of the two bays enter the canal at opposite ends and the tide from the Delaware meets the opposing tide from the Chesapeake about midway the canal at Larwood Grove seven miles from the eastern end, and there both stop. When the tide turns to ebb two currents start from Larwood Grove, one easterly toward the Delaware and the other westerly toward the Chesapeake. So it happens that Larwood Grove is the center of this tidal peculiarity at which the water, except when slack, is always running in opposite directions. Moreover, these currents of opposite movements start at a slow pace when the tide is slack, whether at flood or ebb, and quickly picking up speed rise to about four knots and sometimes five knots an hour, described by canalmen as a "mill race." This condition has to be reckoned with by all intending to traverse this artificial waterway.
(a) The master of the tug "Shaw," a mariner long experienced in towing through the canal, knew of these water conditions. To avoid the worst of them and take advantage of the best of them he purposely waited several hours outside the canal with his tow until the tide was nearly high and running about one and one-half miles an hour.Desiring to go in with the flood to Larwood Grove and then, on the change, go out with the ebb from Larwood Grove and thus avoid breasting the swift current anywhere, he entered the canal with the two barges in tow, first the "Camp," a large barge of deep draft, and next the "Dempsey," a small partly laden barge of lesser draft. The weather was fair and the wind light but there was a very full tide because of previous wind conditions. The "Shaw" with her tow proceeded on the rising tide nearly to Larwood Grove where she caught the change of tide and thereafter proceeded on the falling tide toward the western end of the canal. When she reached Goose Point the current was running from three and one-half to four miles an hour and the tug and tow were moving at a speed of half a mile greater to maintain steerage way. It was here she turned a bend in the canal with high banks on both sides and first saw and learned of the stranded barges ahead.
The libellants maintain, and, as we understand, the court held, that negligence lay in commencing the voyage as it was undertaken. This involves (1) taking a barge of the size of the "Camp" through the canal at all, (2) taking her with another barge, tandem, (3) in view of known water conditions, and (4) the duty of the tug's master to anticipate overtaking and meeting another tow and the risk of passing in a narrow channel. Of course, if the master had known of the stranded barges or was charged with anticipating their presence blocking the canal, the situation would have been different, but here the disaster which befell the "Dempsey" supplies the knowledge that comes after the event. It does not necessarily impeach the judgment of the master who decided previously that it was safe to start on the voyage through the canal with the two barges in tow, tandem. He can not be charged with negligence for entering the canal with a tow of this character unless he made a decision which nautical experience and good seamanship would condemn as inexpedient and unjustifiable at the time and under the circumstances. The Nannie Lamberton (C.C.A.) 85 F. 983; The Eastern (C.C.A.) 280 F. 711, 713.
Briefly, we find from the evidence that it was customary to tow barges of the size of the "Camp" through the canal, singly and with another. We cannot hold as matter of law that towing one large barge or two barges, one large and one small, in the Delaware and Chesapeake Canal, a public waterway, publicly maintained and operated for craft of their size, is, notwithstanding its exacting water conditions, negligence. And, finally we hold that while the master of the tug assumed the risks and was chargeable with knowledge of all normal conditions, especially those of meeting and passing other craft in this two-way waterway, he was not chargeable with knowledge of the stranded ...