The opinion of the court was delivered by: BYERS
Two limitation proceedings were consolidated by order of this court, and tried together.
In the first, the owner of the steamtug Matton No. 21 seeks exoneration or limitation in connection with claims resulting from the sinking of the canal barge Alice E. Brodie on September 12, 1937, in the New York State Barge Canal somewhat west of the city of Rochester.
The Brodie was the last of four vessels being towed easterly by the Winfield S. Cahill, and her starboard aft corner struck the rock bank, causing under-water damage to both the vessel and her cargo.
The second branch of the consolidated cause represents a similar petition filed by the owner of the Cahill, in which limitation of or exoneration from liability is sought.
The steamtug Cahill was 72 feet long by 18 1/2 feet in beam and drew 10 feet; she was towing on two hawsers which left about 70 feet between her stern and the bow of the head barge, the Thomas Sheridan, having a length of 102 feet, beam of 29 feet, height of sides 12 feet, draft 9 feet, 6 inches.
Made up in tandem following were the Alice Sheridan, of similar dimensions, and the Marjorie D, 112 feet long by 28 1/2 feet in beam, with 10-foot draft, and height of sides 11 feet, 3 inches.
The Brodie was 102 feet long by 22 feet, 10 inches in beam, with 9-foot draft, and height of sides 12 feet.
Thus the length of the tow was between 560 and 570 feet.
The westbound tow consisted of the steel barge Sonard, 200 feet long by 36 feet in beam, drawing 9 feet 6 inches, being pushed by the steamtug Matton No. 21, 70 feet, 6 inches long by 20 feet, 4 inches in beam, drawing 9 feet.
The claimant's case is that the westbound tow proceeded at such a speed that the Brodie was affected by the bow wave raised by the Sonard and the suction resulting from the proximity of that tow, and that she was caused to strike and suffered the damage complained of.
The Brodie was beached on the north side of the canal about 600 feet westerly of the Chili Road Bridge, to which place she was towed by the Cahill as soon as possible after the latter discovered the Brodie's plight, which was made known by her captain. As to that there is no dispute, nor indeed is there any concerning the striking.
Limitation of liability on the part of both petitioners was conceded to be proper and the only matters requiring decision have to do with the question of exoneration.
As to the Cahill named in the second petition, nothing has been brought to light in the evidence, tending to establish her culpability for the mishap to the Brodie, with the single exception that she did not blow a hold back or stop whistle at any time to indicate to the Matton that the continued progress of the ...