The opinion of the court was delivered by: GANEY
This is a suit in admiralty to recover damages to the tug Eureka which resulted from the parting of the mooring lines of the barge Darien which in turn is alleged to have been caused by the excessive swells of a Coast Guard picket boat in the Chesapeake and Delaware Canal.
Primarily for disposition is the correctness of a ruling that the respondent was not precluded from offering evidence after its motion at the close of libellant's case had been overruled. The court in The Persiana, D.C.N.Y., 158 F. 912, held: 'It has been the uniform practice of this court not to entertain motions to dismiss at the close of libellant's case, unless the claimant or respondent also rests. If the party defendant considers that any testimony is necessary to overcome that offered by libellant, it should be produced, and the court not asked to dispose of the litigation before all the testimony is submitted.' In accordance with this point of view is also Bull v. New York & Porto Rico Steamship Co., 2 Cir., 167 F. 792.
From the testimony submitted the court makes the following findings of fact:
(1) The tug Eureka is a steam tug owned by libellant, Martin Marine Transportation Company. The length of this tug is 128 feet, its beam is 26 feet and its draft is 15.6 feet. At all times prior to the time she suffered damages on May 11, 1944, the Eureka was seaworthy and in good condition.
(2) The Coast Guard picket boat, CG-38614, is a vessel owned by respondent, the United States of America, and is used by members of the United States Coast Guard Service in the performance of their duties. The length of the CG-38614 is 38 feet, its beam is 10 feet and its draft is 3 feet.
(3) The barge Darien is a coal barge without motive power, 355.8 feet in length and 52.1 feet beam.
(4) The tug Caspian is a steam tug, 80 feet in length, 21 feet beam and a draft of 12 feet, owned by the libellant.
(5) On May 10, 1944, the tugs Eureka and Caspian were engaged in towing the barge Darien, loaded with 7,318 short tons of coal, eastwardly through the Chesapeake and Delaware Canal from Town Point to Reedy Point. At that time, the tug Eureka was made fast to the starboard quarter of the barge and the tug Caspian was made fast to her port quarter. The flotilla was under the command of Captain David C. Reich of the Tug Caspian.
(6) At about 12:15 a.m., May 11, 1944 when the flotilla arrived at a point in the canal opposite Scott's Run, it encountered fog.
(7) By reason of fog, the flotilla tied up at the mooring dolphins located on the north side of the Canal west of Reedy Point and approximately 3 miles east of Scott's Run at approximately l:30 a.m.
(8) The barge with her bow facing east was made fast to the mooring dolphins, with two bow lines leading forward, one spring line from the after end of the port forecastle head leading aft, and two stern lines leading aft. The lines were seven and eight inch sisal lines, several months old and had been used frequently before.
(9) The shelf of the Canal at the location where the barge was moored consisted of sand covered with soft mud. It sloped outward and downward at an angle of thirteen degrees until it reached the edge of the channel 30 to 45 feet south of the dolphins where it dropped suddenly, forming the side of the channel.
(10) Although the berth at the mooring dolphins was not a convenient place, except at high tide, to moor a ship with a draft as deep as that of the barge Darien, Captain Reich considered that it was safer to moor the barge there than ...