The opinion of the court was delivered by: BYERS
The owner of the barge Lawrence J. Tomlinson seeks to recover the damages sustained by it while in a field of ice, in the Hudson River, near Catskill, N.Y., the barge being in tow of the claimant's tug Cornell No. 21 from Jersey City to Troy, during the month of February, 1933.
The libelant asserts that the barge was damaged as the result of striking the ice and also because of overriding the tug, which was then towing on short hawsers, when the tug was brought to a sudden stop by ice barriers.
The specifications of negligence in the libel in addition to the general ones are:
"4. In allowing the barge 'Lawrence J. Tomlinson' to ride up on the stern of the tug;
"5. In backing into the bow of the barge 'Lawrence J. Tomlinson';
"6. In allowng the headway of the tug to be suddenly arrested;
"7. In doing nothing to avoid the several collisions between the tug and her tow;
"8. In damaging libellant's barge."
At the close of the trial the libelant's proctor stated that, in addition to the foregoing, he relied on the use of short hawsers, and the fact that the attempt was made, at all, to tow through the ice field. And, lastly, that the barge was put in another tow as the hawser boat to go through a channel in the ice, which involved putting another boat astern of the tanker, and that the barge was pushed ahead through the ice, and occasionally towed alongside.
The Tomlinson is a steel barge, 200 feet long and 36 feet in beam, straight ended at the stern, with a raked or shovel bow with rounded corners; at the bow the rake commences about 2 feet below the level of the deck.
The barge was being managed by Frederick Bouchard at the time involved. It is found that Mr. Bouchard telephoned to a representative of the claimant and placed an order to tow the barge to Troy to procure a cargo of tar; during that conversation a rate was agreed upon in advance of the ordinary summer rates, and it is found that the representative of the claimant company called Mr. Bouchard's attention to the fact that ice was probably in the Hudson River; that Bouchard contracted for this special service, namely, the taking of the barge to Troy alone under the power of this particular tug, Knowing that ice was likely to be encountered. Thus be assumed the risks incident to the probable presence of ice in the river, but not responsibility for the tug's possible negligence in towing through the ice. The Red Star No. 18, 1932 A.M.C. 1004;
Monk v. Cornell Steamboat Co. (C.C.A.) 198 F. 472.
Unless the testimony establishes negligence upon the part of the tug, the libelant fails.
The barge left Jersey City on February 18th at about 9:45 p.m. in tow of the Cornell No. 21, and reached Catskill Point on the night of February 19th, and was tied up there early in the morning of February 20th, icebound ...