The opinion of the court was delivered by: BYERS
This cause involves a collision in the Cape Cod Canal on October 18, 1934, at about 7:45 a.m., between the barge Cumru and the dredge Crest; that contact caused the barge Pottstown, towing alongside the first-named to starboard, to strike on the north bank of the canal. For damages so sustained by the barges, the libelant seeks to hold the dredge.
The latter has impleaded the tug Lenape which had the barges in tow. She was claimed by her captain as bailee, and the common ownership of the tug and barges is but thinly veiled; thus the languid part taken by libelant in the litigation is explained.
The tow was proceeding westerly through the canal, with a 4-knot current underfoot; there was a local pilot at the wheel, and the captain of the tug was in the pilot-house; he exercised authority just prior to the collision, as will be seen, and probably in entering the canal at all.
The tug Lenape is 170 feet over-all, 30 feet in beam and draws 17 feet, and has 1,000 h.p. engines.
The Cumru is a wooden barge, 256 feet long and 43 feet in beam.
The Pottstown, a craft of the same type, is 194 1/2 feet long and 34 1/2 feet in beam.
Both barges were light and were being towed abreast, on bridle hawsers, the length of which is in dispute.
The tug captain's testimony will be relied upon to the effect that there was 26 feet of open water between the taffrail of the tug and the bows of the barges.
The latter were held apart though lashed together, by 1-foot rope bumpers. Thus the greatest width of the tow was 78 1/2 feet.
At the time in question the old 100-foot channel of the canal was being widened by an additional 70 feet. The canal runs approximately east to west, and the dredging had been carried forward in that direction. As the tow approached the bridge at Bourne, it was about to leave the already widened channel and to enter that portion in which the dredge was operating, off the south bank of the canal.
The entire 70 feet was being dredged on that side, in two equal strips, called the channel, outer, or No. 2 cut, and the bank, or No. 1 cut.
The Crest is a dipper dredge, 167 feet long and 48 feet in beam, and was held in position by three spuds, one on each side 18 feet aft of the bow, and the third at the center of the stern. The first two are flush with the sides and hence do not add to the beam of the dredge; each is of cast steel and weighs 58 1/2 tons, and the stern spud weighs 50 tons and is of structural steel.
The method of operation was for the dredge to excavate in the No. 2 cut during the day time, discharging into a scow alongside to starboard. That scow would be taken away by a tug for dumping elsewhere. At night, when the navigation in the canal involved large vessels from New York and Boston, the dredge operated in the No. 1 or bank cut so as to render available the greatest width of channel.
In moving the dredge, if the tide was coming against the stern as it was on this occasion, the aft spud had to be in contact with the bottom if both the forward ones were raised, so as to keep the dredge from turning; this was called trailing the spud.
It will be seen that, when operating in the No. 2 cut, the dredge necessarily encroached upon the 100-foot channel, by the difference between her beam and the width of the cut, or about 13 feet.
The Crest was so at work in the No. 2 cut, between stations 327 and 328, on the morning of the collision.
The questions for decision are whether the tow was at fault for striking the dredge, and whether the dredge was at fault for not being in her ...