tug was also in danger of damaging its plates, with the possibility of sinking, due to striking the steel edge of the barge as it rose and fell more violently than the heavier barge. After it had cast off the tug was wholly unable to render any aid or assistance to the barge or its crew.
14. The Captain of the tug had reason to believe that the barge would be able to ride out the storm in safety, inasmuch as it was anchored, and its flat deck would not retain the weight of the sea as it broke over the barge deck.
The evidence from which the above facts are found clearly shows that the Captain and the Mate of the tug were capable and conscientious in the performance of their duties and that they exercised sound judgment in casting off the tow in the manner described. Although inland waters are deemed less dangerous than the open sea, it is well recognized that the Chesapeake Bay can become extremely violent and hazardous to vessels intended for inland navigation such as those here involved. The sudden storm as described by the witnesses was unusual in its violence and more severe than the crews had reason to anticipate.
Good seamanship would require the master of a tug to not only preserve the property in his custody, but to preserve with even greater care the safety of his crew. The extremity with which Captain Daisey was faced has been vividly pictured by experienced seamen. He found himself in a situation which made necessary a choice between the possible loss or severe damage to the tug and its crew, or the abandonment of his normal duty to proceed with or stand by the tow. He chose the latter course, believing that the barge was better able to ride out the storm, and was justified in that belief by reason of the comparison of the vessels and the knowledge that the barge was anchored. The fact that the barge and its crew survived with relatively minor damage confirms his judgment, and it is quite possible that no damage whatever would have been sustained if the anchor had not broken. Even if the anchor were inadequate in weight it could be expected to at least retard the drift to the extent that no damage would be suffered.
Under the circumstances we could not in good conscience condemn the actions of Captain Daisey as negligent, or conclude that in exercising his sound discretion in the face of danger he had breached any legal duty to the libellant.
Conclusions of Law
1. The libellant has failed to establish a contract with the respondent, Taylor and Anderson Towing and Lighterage Company, to undertake the towage on the voyage involved in this case and there is no evidence from which to find that Taylor and Anderson were responsible or liable for the damage sustained in the course of that voyage.
2. The libel is dismissed as to the respondent, Taylor and Anderson Towing and Lighterage Company.
3. The respondents, tugboat Brilliant, D. T. Sheridan and Sheridan Transportation Company, discharged their duty to the libellant to furnish a seaworthy tug to tow the barge Monessen on January 18, 1943 from Girard Point, Philadelphia to Sparrow's Point, Maryland. The Brilliant had sufficient power and adequate equipment to perform such service in normal weather conditions and was not obligated to withstand all of the perils of the sea nor to control its tow in unusually extreme weather.
4. Due to the violence of the storm the tug Brilliant was in danger of capsizing or sinking as the result of being pounded against the sides of the barge and its crew were in danger of losing their lives. The Captain of the tug exercised sound discretion and was not negligent in abandoning the barge.
5. The tug crew was not negligent in failing to stand by the barge after it had been cast adrift because it was impotent under the circumstances to render any assistance to the barge and would have been in further danger had it attempted to stand by.
6. The Captain of the tug Brilliant had reason to believe that the barge would suffer no damage by reason of being anchored although exposed to the stormy waters of the Chesapeake.
7. The libellant has failed to establish any liability for the damages either civil or maritime against the respondents, the tugboat Brilliant, D. T. Sheridan and the Sheridan Transportation Company.
The libel is, therefore, dismissed, with costs to be taxed.
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