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March 29, 1940


The opinion of the court was delivered by: BYERS

BYERS, District Judge.

The libelant, as owner of the barges Fuller and Clute, seeks recovery against the motor tanker Michigan for damages sustained by the barges on October 23, 1938, in the New York State barge canal, immediately southerly from Lock No. 8 in the Oswego River section, arising from contact between the Clute and the Michigan which resulted in damage also to the Fuller abreast of the Clute in a westbound tow.

The diesel tug Gramercy was the towing vessel and a petition to implead her was filed; in lieu of an answer, it was stipulated at the trial that she is of the same ownership as the damaged barges, and that any fault on the part of the Gramercy is chargeable to the libelant.

 The substantial facts are not in dispute, save as to the precise place of collision. That is of controlling importance, because if it happened at about the knuckle on the easterly wall of the canal under the railroad bridge southerly from Lock No. 8, as asserted by the libelant, responsibility should be attributed to the Michigan for having proceeded so far eastbound, because she had been apprised that the libelant's tow was leaving Lock No. 7 -- about 2,000 feet from Lock No. 8 -- at the time when the Michigan emerged from the latter. The lock tender deposed that he gave this information to either the master or the mate in charge of the vessel. What he said was: "Watch your step, proceed with caution, there is a fleet about to leave 7 or in 7."

 For the Michigan it is contended that the contact took place north of the knuckle, where the width of the canal is 96 feet. If that were shown, it would seem that the westbound tow had room to pass the Michigan, and the contact could have resulted only from faulty navigation on the part of the Gramercy.

 The nature of the damage is consistent with the libelant's theory, because the two head barges were squeezed together against the easterly concrete wall, and the breaks in the knees or breast hooks as they were called, in the lower part of the starboard bow, as to the Clute, indicated lateal pressure rather than a head-on impact; as to the Fuller, planks were broken and breast hooks were loosened and broken, at the bow.

 The libel charges the Michigan with failure to stop and hold back to permit the Gramercy and her tow to enter the wide waters of the canal; and with proceeding into the narrow waters (at the knuckle) in spite of knowing of the presence of the Gramercy and her tow; and with failure to stop and back in time to avoid collision.

 The Michigan charges the Gramercy with negligence, and alleges that the damages suffered by the barges were due to their unseaworthy condition or were sustained at other times and places. There was no evidence offered to demonstrate unseaworthiness.

 The make-up of the Gramercy tow was criticised at the trial, although not pleaded, and perhaps something should be said about it; the tug is 63.8 feet in length by 18.8 feet in beam, and has 150 horse power diesel engines.

 The Fuller and Clute, being towed abreast in the first tier, are each 101.4 feet in length by 21.5 feet in beam, and were light, as were the barges Rose and Mary E., being towed astern in tandem. The 25-foot hawsers from the Gramercy ran to the port bow corner of the Clute and the starboard bow corner of the Fuller, leaving a space of about 15 feet between the stern of the tug and the bows of the barges. The Rose and the Mary E. each had a beam of about 34 feet, which explains why they were not towed abreast.

 The greatest width of the tow was about 44 feet, representing the combined beams of the head barges and the space of one foot by which fenders separated them.

 The Gramercy tow got under way at about 6:15 p.m. and proceeded at a speed of a mile an hour, so that it would require about 23 minutes for her to cover the 2,000 feet to Lock No. 8.

 The make-up of the Gramercy tow was shown to have been in accord with prevailing practise, and there is no evidence of any requirement that the vessels should have been towed in single file. It is testified for her that, while in Lock No. 7, running and towing lights on the tug were lighted, and that there was an oil lantern placed at the port bow of the Clute and one at the starboard bow of the Fuller, and one or two lights were displayed on the Mary E., the last barge of the tow. While it was said for the Michigan that only the light on the Fuller was observed, this is not deemed to be sufficient to overcome the affirmative testimony for the libelant on that subject; moreover the Michigan saw the towing as well as the running lights on the Gramercy, so that in addition to the warning given by the lock tender, she was amply apprised of the advance of the Gramercy tow, and of the necessity thereby created for proceeding with caution.

 The eastbound motor ship Michigan is of steel, 254 feet long by 36 feet in beam, draws 10 feet, and has motors of 360 horse power. She was laden, and rode lower in the ...

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