Delaware Dredging Co. v. Graham (The J. D. Graham), supra.
Has the libellant Schuylkill met this burden? To the numerous charges of negligence urged by it, only those centering about the hazards to which the "Grace Ann" subjected the "563," by continuing the voyage despite the extremely adverse weather conditions, and particularly by continuing beyond the Tacony-Palmyra Bridge, where the course of the Delaware River turns in an eastward direction, find material support in the evidence. There is no dispute that the "563" was not in serious difficulty before this change of course and that she began to list almost immediately thereafter and sank within a short period of time.The suddenness of the catastrophe which befell the "563" substantially eliminates the decayed hatch coamings (the extent of which decay was the subject of a great deal of evidence) as the effective cause of her sinking. The ultimate question, therefore, resolves itself to whether the master of the "Grace Ann" should have realized as a prudent navigator that this change of course under prevailing conditions involved the danger to the tow which subsequently materialized.
I am of the opinion that this question should be resolved in favor of the barge. In addition to the rapidity with which she sank following the change of course, there is further evidence which indicates that the tug was guilty of more than a mere error in judgment. Captain Hudson, an experienced tug captain, was on the river the day of the accident and decided against going north of the Tacony-Palmyra Bridge and encountering a side sea. While it is true that the nature of his tows may limit somewhat the significance of his decision in this respect, he further testified that in his opinion as an expert the "Grace Ann" should not have undertaken the tow and venture the change of course north of the bridge under existing weather and tide conditions. His opinion in this respect was corborated by another experienced tug captain who was on the river that same day. The evidence is undisputed that the tide was full flood and that a very strong wind was blowing in an easterly direction. Until the change of course the flotilla was proceeding directly into the wind and seas, but upon the change of course the wind was a little to the quarter, which resulted in much rougher and more dangerous seas. These conditions were observed and their dangers recognized by other experienced tug captains and they should have been anticipated by the "Grace Ann."
The authorities announcing the broad principles according to which the liability of a tug to her tow is determinined have been cited above. These principles have been applied to hold the tug liable in the two cases presenting facts most analogous to those in the case at bar. In The Katie E., D.C., 46 F.2d 534, a tug was held guilty of negligence in proceeding into waters where the tide was obliquely opposed to the wind without sending an accompanying tug ahead to determine whether it was safe to proceed. Said the Court at page 535 of 46 F.2d: "There is no dispute in the testimony that this barge was not in difficulty until after the turning movement which brought her to the weather side of the tow where it was exposed to the full effect of the wind and waves; in other words, while she occupied a lee berth in the tow, she was protected, and gave no trouble." And again, 46 F.2d at page 536: "Knowing the condition of the tide, which was obliquely opposed to the wind, it seems fair to hold that the precaution should have been taken of sending the Ashbourne ahead to observe and report upon conditions in the bay, as was suggested by Judge Brown in The Nannie Lamberton, D.C., 79 F. 121, under almost identical circumstances. Had this been done, it may be doubted if the tow would have left the Kills that night. The decision for the libelant barges by Judge Brown was affirmed in [2 Cir.] 85 F. 983, and it would seem that to reach a different result in this case would be to disregard decisions which are of compelling authority."
On similar facts the same result was reached in The Nannie Lamberton, D.C., 79 F. 121, affirmed 2 Cir., 85 F. 983, referred to in the above quotation.
In view of my conclusion that it was the negligence of the tug which was responsible for the loss of the barge and her cargo, the "Grace Ann" and her owner are responsible to Schuylkill for the damage to Coal Boat No. 563, and to the intervener, Public Service Electric and Gas Company, for the value of the cargo thereon.
I make the following
Conclusions of Law:
1. The sinking of Coal Boat No. 563 was caused by the negligence of the "Grace Ann" in proceeding on its course up the Delaware River north of the Tacony-Palmyra Bridge under existing weather and tide conditions.
2. In case No. 51 of 1943, respondents Charles T. Banks and Flo L. Banks, individually and trading as Charles T. Banks Towing Line, and Tug "Grace Ann," her engines, boilers, apparel, tackle, furniture, etc., are liable to libellant, Schuylkill Transportation Company for the damage to the barge "563."
3. In case No. 51 of 1943, respondents Charles T. Banks and Flo L. Banks, individually and trading as Charles T. Banks Towing Line, and Tug "Grace Ann," her engines, boilers, apparel, tackle, furniture, etc., are liable to the intervener, Public Service Electric and Gas Company, for the value of its cargo lost upon the sinking of the "563."
4. In case No. 3 of 1944, the libel is dismissed.
Decrees may be sumitted.
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