The opinion of the court was delivered by: BYERS
The libelant's motorvessel Irene W. Allen, to be called the Allen, stranded near the south bank of the Cape Cod Canal, on December 12, 1934, at a point approximately 1,500 feet west of Bourne Highway Bridge, while in the act of proceeding westerly through the canal. The time of the stranding was about 1:50 a.m. on a clear night, on which the wind was blowing out of the north, so as to affect the starboard side of the Allen, at a force of approximately 20 miles per hour.
The libel asserts that the dredge Crest and her owner should be held responsible because of the position of the dredge in the canal, which caused the Allen to attempt unsuccessfully to pass to the south of the dredge.
The important specifications of fault are: Obstruction of a narrow channel; failure to allow the Allen a practicable passage; failure to move to one side after notice of the Allen's approach; failure to sound any or proper signals; failure to do anything to facilitate a safe passage to the Allen.
It is uncontested that the dredge did not move to one side, and that no signals were sounded by either vessel, whereby it becomes unnecessary to discuss those matters.
The cause resolves itself into the questions of obstruction, and failure to allow a practicable or safe passage.
The original channel of the canal was 100 feet wide, and this was increased by dredging and additional 70 feet, on the south side of the old channel. The excavation was carried forward in two cuts of 35 feet each, called for convenience 1, and 2, the latter being alongside the original channel. While excavation was under way, the dredge operated in the number 1 cut a at night (having completed the adjacent section of number 2) so as to afford the greatest width of navigable water to the large New York and Boston steamers which passed through at night.
The dredge was not excavating at the time in question, having completed that work in this part of the canal, but was "cleaning up," i.e., removing boulders and shoals, so as to insure a uniform depth of 25 feet for the entire increased width of 170 feet.
The precise position of the dredge at the time in question is a contested issue.
It will be understood that the width of the canal from shore to shore, at this point, is a matter of about 450 feet, which means that, outside of the dredged portion, there is a depth which diminishes gradually toward the shore, in which navigation can be conducted depending upon the draft of the vessel involved.
The tide was ebb, i.e., under foot, as the Allen moved toward the west, at about 1/2 to 1 mile an hour. That been the condition at this place, for 45 minutes prior to the stranding.
The United States Engineer's office in Boston issued an Information Bulletin No. 6, Period from December 1, 1934, to December 15, 1934, from which the following are quoted:
"(1) The Dredge 'Crest' will be working between stations 340 and 400. It is completing a cut which increases the bottom width of the canal to 170 feet. Attendant tugs and scows are frequently in transit between the dredge and dumping grounds in Cape Cod Bay and Buzzards Bay. Work on this cut will be completed probably before December 10 and the 'Crest' will start on the new contract described in (2). It is expected that the dredge will clean up parts of the channel already covered."
"(6) All of the above mentioned plant will move to the side of the canal to permit the passage of ...