The opinion of the court was delivered by: MOSCOWITZ
MOSCOWITZ, District Judge.
The Diesel tug Samson, owned by the Diamond P. Transportation Company, had in tow the oil tanker John and Frederick, owned by the Bouchard Transportation Company. The John and Frederick was approximately 300 feet long, 35 feet wide, and 18 feet deep, drawing approximately 14 feet of water, and loaded with a cargo of 270,000 gallons of creosote oil. The tow and tugboat put into Hampton Roads on October 2, 1932, and departed therefrom on October 3, 1932, at about 7 a.m., bound for Charleston, S.C.
On October 4th, the wind and sea commenced to and continued to increase, so that by night a hard gale was blowing and quite heavy seas were being built up. During this period of time, it became necessary to have two men on the wheel instead of the customary one. This condition increased on October 5th, when the barge John and Frederick was shipping water. It grew worse and the single wire cable which was made fast to the manila hawser parted about 12:45 a.m. on October 6th. The tug Samson abandoned the John and Frederick.
After the John and Frederick went adrift, soundings were taken by an 18-fathom lead line about every hour. No bottom was reached and her master, believing it to be the safest course, permitted her to drift into deep water. At no time did the John and Frederick leak, although she was in heavy seas.
On October 6th the steamship Clare, owned by the A. H. Bull Steamship Company, picked up the John and Frederick, which had been adrift approximately 18 hours, and towed her to Charleston, S.C.
A chain bridle was fastened to the bow bitts of the John and Frederick, coming through her chocks. This bridle was then fastened to a single wire cable 1 1/8 inches, and then by means of a shackle, the other end of the cable was fastened to a manila hawser, which hawser was made fast on the tug. The wire cable which parted was part of the tug's equipment. Part of the cable was pulled in on the barge, the manila hawser and the remaining part of the cable being towed through the sea by the tug Samson. The tug Samson put into port and communicated with its owners, who advised that the John and Frederick had been picked up and was being towed to Charleston. The tug then joined her.
After the John and Frederick was made fast alongside the dock, a deck hand from the tug Samson came aboard and took from the barge that part of the wire cable which remained fast to the John and Frederick.
The Samson has failed to produce this cable. Apparently this wire cable, which would have shown its condition, was taken out to sea by the Samson and after a conversation between her mate and captain the hawser was thrown into the sea. The reason for this is obvious. The cable was old and defective; if not, it would not have broken. This is borne out by the testimony of Captain John Thomas Pateman, who was called as an expert on behalf of the Diamond P. Transportation Company.
The failure to preserve the broken hawser justifies the inference that, if produced, it would show that it was unfit for towing purposes. Clyde Lighterage Co. v. Pennsylvania R. Co. (C.C.A.) 258 F. 116; The Bertha F. Walker (C.C.A.) 220 F. 667; The Bolton Castle (C.C.A.) 250 F. 403; The Colon (C.C.A.) 249 F. 460; Osterhoudt v. Federal Sugar Ref. Co. (The Barge Universe) (D.C.) 14 F.2d 319, 1926 A.M.C. 1014.
The accident was caused solely through the fault of the tug Samson in proceeding in bad weather with a hawser unfit for towing purposes, and without any fault on the part of the John and Frederick.
The steamship Clare rendered salvage services and is entitled to be compensated for its services in the sum of $400.
Settle findings and decree on notice in accordance with this opinion.
Supplemental Opinion on Reargument.
An opinion was filed on March 11, 1935, granting a decree against the tug Samson and awarding the steamship Clare salvage service. The court has granted a reargument. No good reason is urged why the ...