The opinion of the court was delivered by: BYERS
It becomes necessary in these causes to decide whether one or more of the eastbound barges in tow of the tug Matton No. 20 struck the westbound barge Sonard being pushed by the tug Ralph E. Matton, so as to cause that barge to sustain underwater damage to her hull, on November 7, 1939, at about 4:45 a.m., when both tows were off Seeley Island (near Little Falls) about 2,000 feet west of Lock 17 in the New York State Barge Canal.
It is undisputed that shortly after the Sonard had proceeded on her westward way beyond Seeley Island, she was discovered to be making water so rapidly that she was beached, first at 6:05 a.m. immediately east of Lock 18, and that proving to be an untenable position, she was shoved west of the lock at around 9 a.m., and was beached on the southerly side of the Canal. Cargo, hull, and consequential damages, arising from these happenings, brought about these sundry litigations.
In the first cause, the Bouchard Transportation Co., Inc., the owner of the Sonard, sued the tug Matton No. 20, and her four barges.The owner of the barges (Conners Marine Co., Inc.) answered, and also impleaded the tug Ralph E. Matton (pushing the Sonard westbound) as being solely responsible for the damage asserted in the libel.
To that petition, the owner of the impleaded tug, having claimed her, made answer to both the libel and the impleading petition.
In the second cause, the owner of the tug Matton No. 20 petitions for limitation and exoneration. It appears that, in addition to the cause asserted in the libel in the first cause, claims for consequential damages have been made against the owner of the Sonard because the cargo laden upon her (bunker oil) flowed upon property adjoining the place at which she was finally beached.
It will be seen that the central issue in these causes, which were tried together by consent, is whether the Sonard did in fact suffer hull damage as the result of being struck by one or more of the barges in the eastbound tow.
As to the Matton No. 20, her right to limit is not in issue.
Upon conflicting evidence, it is deemed that the proof establishes:
(a) The steel barge Sonard, fully laden, being pushed by the tug Ralph E. Matton westbound, on November 7, 1939, entered that portion of the Barge Canal which lies north of Seeley Island, at about 4:30 a.m. while it was yet dark, under an extra slow bell, i.e., at less than one mile an hour.
(b) The eastbound tow, comprising the Matton No. 20 and four steel barges, was then lying moored to the northerly wall opposite Seeley Island, in obedience to a red-light signal displayed to the east of that place, by the Canal authorities -- to indicate that a westbound tow had cleared Lock 17.
(c) The navigable channel was 94 feet, measured on the surface of the water, but by reason of the rock formation on the southerly side, laden vessels were required to clear Seeley Island by about 8 to 10 feet to avoid possible contact with rocks and large stones which might have fallen from that side into the Canal.
(d) The eastbound tow was about 540 feet long, the tug Matton No. 20 being 67.8 feet long by 20 feet in beam, separated by 12 feet from the hawser barge; the three following barges being close coupled. All four barges were 114 feet long by 36 feet, and all were fully laden.
(e) The westbound tow was about 280 feet long, the Sonard being 200 feet long by 36 feet, and the Ralph E. Matton ...