The opinion of the court was delivered by: BYERS
On March 31, 1939, the claimant's tug Patience took the libelant's coal barge Cloud in tow alongside to port, at the Reading stakeboat abreast of the Statue of Liberty, at about 10:15 a.m., and delivered her at Court Street in the Gowanus Canal at 11:10 a.m. Recovery is sought herein for damage said to have been done to the Cloud during that 55-minute interval.
The barge was carrying 383 tons of coal, while her capacity is 600 tons. As towed, her freeboard was about 4 feet amidships, and the cause of the damage is claimed to have been that, as the trip was made, there was such rolling by the tug that her upper guard-rail hooked against the side of the barge, raising her deck and rail; that is the damage claim.
A. At about 10:15 a.m. on March 31, 1939, the tug Patience towed the partially laden coal barge Cloud from the Reading stakeboat in the upper New York harbor, to Gowanus Canal, Brooklyn.
The tide was ebb, 2 to 2 1/2 miles, the weather was fair, with westerly wind of average velocity of 15 miles, and the waters of the Bay and Red Hook Channel were ruffled to customary extent only.
B. The libelant's barge Cloud is 105 feet long by 26 feet in beam, with 12 feet depth of sides, and is a wooden coal barge not less than thirty years in service; she was seaworthy and fit for the purpose in hand, and had been maintained in an adequate state of repair for hauling cargoes of coal in the waters of this Harbor.
C. The claimant's tug Patience is a steamtug, 122 feet long by 25 feet in beam, and 14 feet in depth, and has 750 horse-power engines.
D. The libel specifies fault in that:
(a) The towing was alongside instead of on hawsers.
(b) Failure of the tug to put out proper fenders between the vessels.
(c) Improper make-up of tow under existing weather conditions.
(d) Navigation at high and excessive speed.
(e) Failure to do anything to avoid ...