The opinion of the court was delivered by: BARD
This case involves two actions in admiralty which were by agreement consolidated for purposes of trial. No. 51 of 1943 is an action by Schuylkill Transportation Company (hereinafter called Schuylkill) as owner of Coal Boat No. 563, and as bailee of a cargo of coal laden thereon, against Charles T. Banks and Flo L. Banks, individually and trading as Charles T. Banks Towing Line (hereinafter referred to as Banks) and the Tug "Grace Ann," her engines, etc., to recover damages for the sinking of the barge "563" while being towed by the respondents' Tug "Grace Ann," allegedly as a result of the negligence of the tug. No. 3 of 1944 is an action by Public Service Electric and Gas Company as owner of a cargo of coal laden on the "563" when she was sunk against Delaware River Lighterage Company, the Schuylkill Transportation Company and others to recover the value of the cargo. Public Service Electric and Gas Company, as owner of the cargo, also filed a petition to intervene in No. 51 of 1943, and it was stipulated by the parties that this intervention be allowed. It was further agreed that the question of damages be postponed pending determination of liability.
I make the following special
1. On the morning of April 19, 1943, Banks orally contracted with Schuylkill to supply a tow boat to tow barges Nos. "574" and "563" from Pier No. 18, Philadelphia, up the Delaware River to Burlington, New Jersey.
2. Thte "574" and "563" were wooden barges each laden with a cargo of coal.
3. Barge No. 563 has a square bow and stern, measures 110 by 32 by 17 feet, and is open-hatched and has hatch coamings of a height of 3 feet 6 inches.
4. At about 11 A.M. on April 19, 1943, Banks' tug "Grace Ann" took the barges in tow and began the trip to Burlington.
6. At the beginning of the voyage the "563" had freeboard of about two feet forward and aft and about eighteen inches amidships.
7. At the start of the voyage and at all times thereafter until the sinking of the "563" the tide was flood, there was a strong wind blowing from an easterly direction at a velocity in excess of 25 miles per hour, and it was raining.
8. The flotilla proceeded up the Delaware River without serious difficulty into the wind and seas until a point just north of the Tacony-Palmyra Bridge.
9. Just north of the Tacony-Palmyra Bridge the course of the Delaware River turns eastward about a point and a half.
10. Almost immediately after the flotilla went to starboard through this change of course the "563" began to list and shortly thereafter the river came over her ...