The opinion of the court was delivered by: BYERS
These causes were tried together, although not consolidated. They involve damage to two scows laden with sand, which were in tow of the steamtug Peter C. Gallagher, on October 2, 1938, departure Having been had from Port Jefferson, Long Island, for New York, at about 4:30 p.m.
The principal dispute concerns the makeup of the tow; also it is asserted, but not shown, that after the tow broke up, there was a failure on the part of the Gallagher to properly care for these two scows after they came adrift.
The libelants' pleadings are consistent whth a reluctance to select the precise theory of liability upon which to seek recovery.
In the earlier cause, a libel was filed on March 2, 1939, by the owner of the second scow, Susanna E. Waldie, against the hawser scow Williams No. 52, charging the latter with fault in that her stern starboard and port bitts let go; i.e., broke off, in that order, while the tow was about off Northport, and that she was unseaworthy and those in charge of her were incompetent and inattentive.
Eight months later, and on November 24, 1939, an amended libel was filed in which the tug Gallagher was also named, and as to her the faults alleged were: Improper make-up of tow in that the alignment of the scows disregarded diversity of freeboards; that the tow was too long; that departure was had in the face of a storm and at a time when storms were to be expected; failure to timely seek a harbor of refuge; failure to render proper assistance after the tow broke adrift; and failure to turn back and render assistance when danger to the tow was or should have been apparent.
The said faults of the Williams No. 52 were realleged.
The Williams No. 52 was claimed February 2, 1940, and the answer of her claimant was filed February 10, 1940, asserting that, if any damage was sustained by the Waldie, it was due to the tug Gallagher's negligence.
The tug was claimed on January 20, 1940, and the answer of her owner was filed January 31, 1940.
In the second cause, the owner of the sixth scow in the tow, the Sands Point, filed a separate libel against the tug and the Williams No. 52 on August 20, 1940, and they were claimed and answers filed on September 23, and September 13, 1940.
This libel asserts the same faults, in somewhat different form, and additionally, that the tug "set out across Long Island Sound in the face of unfavorable weather conditions", although it must have been well known that no attempt at all was made to cross the Sound. Also that there was a failure to make a proper inspection of the towing bitts on the Williams No. 52.
The same faults as have been earlier stated were alleged against the latter barge.
Then the causes made their way to trial on December 4, 1940, and 260 pages of testimony were taken, with the result that the Williams No. 52 was dropped from both causes on motion to dismiss, which was not opposed, for lack of proof to hold her on any count.
The considerable volume of testimony was restricted to the question of the make-up of the tow almost entirely, and the little that had to do with the lack of assistance to the vessels in the tow, after the breaking of the bitts on the Williams No. 52, was entirely negative.
These litigations resulted from the break-up of a seven-barge tow on the night in question, off Eaton's Neck in Long Island Sound. Departure as stated was under favorable conditions of weather and tide. The several barges were closely held in tandem; that is, they were apart not more than from 1 foot to 3 or 4. As to each, there were port and starboard hawsers leading to the barge ahead, the eye being on the following vessel, with one turn around the bitt of the barge ahead, except that on the hawser barge the captain said there was no turn of the hawsers from the second barge. There is no criticism of the hawsers as to size or strength. There were also cross-lines properly rigged, between the several ...