The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
The libelant seeks in this suit to recover for the barge Baldwin and her cargo of hay as a total loss, from the steamtugs Bavier and Cornell 21, because of their alleged negligence in towing the barge Baldwin, in the Hudson river, through ice.
In the month of December, 1932, the libelant was the owner, and her husband, Stephen P. Miller, was the captain of the barge J. R. Baldwin, which was loaded with a cargo of hay at Castleton and Coxsackie, about two weeks being consumed in the loading.
The captain had charge of the operation of the boat.
On Tuesday, December 13, 1932, Capt. Miller, of the barge J. R. Baldwin, called up the Waterford office of the Cornell Steamboat Company, and after asking them if it would be safe for Thursday, and receiving the reply "sure," made arrangements to be towed on Thursday.
On Thursday, December 15, 1932, the tug W. N. Bavier left Albany with two light boats, a stick lighter and a manure scow in tow. At about 9:30 p.m. on that day, the assisting tug Cornell 21 picked up the Baldwin, at Coxsackie, and placed her in the tow of the Bavier as the starboard boat of the head tier. The Bavier had the tow on two short hawsers, one from the port bow corner of the stick lighter to the stern of the Bavier, the other from the middle bow bitt of the Baldwin. About thirty minutes after the Baldwin was placed in the tow, the Cornell 21 placed the loaded brick scow Empire 15 in the tow, under the stern of the Baldwin. The Empire 15 was placed in the tow off Pine Grove, which is on the west side of the Hudson river, about midway between Coxsackie and Athens. The captain of the Baldwin and his assistant Finkel were clearly wrong when they fixed the time of the placing of the brick scow Empire 15 in the tow as about 9 o'clock the next morning.
At the time the Baldwin was placed in the tow there was no ice in the river at Coxsackie.
After the Empire 15 was placed in the tow, the Bavier proceeded down the river with her tow on hawsers, the two light scows in tow on the port side and two loaded scows in tow on the starboard side, the Baldwin being the starboard hawser boat. When nor engaged in taking out of, or putting boats in the tow, the Cornell 21 pulled alongside of the port side of the Bavier, and the Bavier slackening her port hawser brought the Bavier ahead of the Baldwin, and the Cornell 21 ahead of the stick lighter. When the Cornell 21 was not pulling alongside the Bavier, the Bavier with her hawsers even was ahead of both of the hawser boats, her stern being in the center of the two boats.
The next morning, December 16, 1932, after daylight, when above Kingston, the tug with her tow encountered broken ice that had formed that night in bunches, as is the custom with the first ice that freezes, as the tide will carry it, and it is formed together by the tide.
The captain of the Bavier saw nothing in the ice condition at that time that caused him to believe there was danger in continuing down as they were going.
One of the light boats on the port side was taken out at Kingston and another light boat was put in the tow on the port side, thus leaving the tow as it was before, two loaded boats on the starboard side and two light boats on the port side.
When between Poughkeepsie and the Meadows Light, the witness Finkel, who was employed on the Baldwin, went forward and sounded her and found 11 inches of water in her.
The Baldwin was then in the ice.
He had sounded the Baldwin about a couple of hours before that and found only 3 inches, which would be about the ordinary sounding.
He went into the hold and found a seam, the oakum, and the plank cut.
In order to get at it, he had to cut a hole in the lining. He went aft and fetched an ax, saw, and ...