The opinion of the court was delivered by: WELSH
This action was brought to recover for damages to the tank barge Monessen while it was being towed through Chesapeake Bay by the tug Brilliant. From the evidence submitted, we make the following
2. The tug Brilliant is owned by D. T. Sheridan and is operated by Sheridan Transportation Company, as agent. It is a steel steam tug 78' long, 20.5' wide, 9' draft, 84 gross tons, 275 to 300 horsepower and is equipped with an anchor weighing about 200 pounds. The Brilliant had long been engaged in general towing, had towed other tank barges, and was adequate under normal conditions to undertake the tow of the Monessen.
3. In January, 1943, there was in effect an oral agreement under which the Respondent, Taylor and Anderson Towing and Lighterage Company, provided towing service for the libellant. When the libellant required towing service it telephoned to Taylor and Anderson and made known its requirements. Frequently tugs other than those owned by Taylor and Anderson were dispatched to perform the towing and were accepted by the libellant.
4. The Brilliant took the Monessen in tow at Girard Point at 11:00 p.m. on January 18, 1943, headed for Sparrow's Point, Maryland, pursuant to a request made by the libellant to Taylor and Anderson Towing and Lighterage Company, which Company caused the Brilliant to be dispatched for the tow instead of its own tug, in accordance with the existing custom.
5. The Brilliant was made fast to the port side of the Monessen by 5' manila bow and stern lines and a 6' manila tow or spring line, with the stern of the tug extending 12' to 15' beyond the stern of the barge.
6. The voyage down the Delaware through the Delaware and Chesapeake Canal and the Elk River was uneventful. The weather was calm with light to medium fog prevailing, and the barometer on the tug remained steady at 30.10. At about noon on January 19, 1943 while the vessels were near Turkey Point, below which the Elk River becomes part of Chesapeake Bay, Mate Hassell of the tug Brilliant relieved Captain Daisey, who retired to his quarters to rest after directing the Mate to call him in case of any change of weather.
7. At about 2:00 p.m. when the vessels had proceeded into the open waters of the bay some miles beyond Turkey Point, they were struck by a sudden and violent wind storm or squall, in which the wind blew at 40 to 50 milles per hour, followed by waves rising to 6' or 8' in height.
8. A few minutes after 2:00 p.m. the Mate called the Captain of the tug, who had then been partly awakened by the pounding of the tug against the barge. The weight of the barge precluded its rise and fall with the waves at the same rate as the lighter tug and the action of the waves was causing the tug to bump the side of the barge. The wind was from the northwest and caused the tug and tow to swing toward the right into the wind in spite of the efforts of the tug crew to hold its course. By reason thereof the tug was unable to control the barge.
9. The tug captain summoned the barge captain by whistle, told him that the tug was casting off, and directed the barge crew to throw over their anchor. The barge anchor was thrown overboard as directed and took hold, causing the bow of the barge to which the anchor cable was fastened to head into the wind.
10. After casting off, the tug turned and proceeded to safety up the Sassafras River, at about 2:10 p.m. Thereafter the Monessen drifted slowly toward the lee shore and stranded at about 3:00 p.m. on the beach between Betterton and Howell's Point. She remained there until about 5:00 p.m. on January 20, when she was pulled off by a Coast Guard cutter after being lightened by the removal of a portion of her cargo. At that time it was found that the anchor had broken midway in the shank, and the lower half with the flukes had been lost.
11. The damage to the barge was sustained after she had been cast off by the tug and stranded on the beach.
12. The Captain and crew of the tug were qualified by experience and training to handle the tug and tow, to make a reasonable estimate of the probable consequences of a severe storm upon the tug and tow, and to appreciate ...