The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This is a petition for exoneration from or limitation of liability, filed by the Eastern Transportation Company, owner of the tug "Montrose".
This litigation finds its beginning in a collision between the fishing schooner "Mary E. O'Hara", and the barge "Winifred Sheridan", in Broad Sound, outside of Boston Harbor, Massachusetts, on the early morning of January 21st, 1941.
Three separate limitation proceedings have resulted from this accident. A petition was filed in the District Court in Boston by O'Hara Vessels, Inc., as owner of the "Mary E. O'Hara". A petition was also filed in the United States District Court in Maine, by the owner of the "Winifred Sheridan" when that barge was libeled in a suit instituted by some of the claimants herein, in the Maine Court.
The present proceeding was instituted in this Court by the owner of the Tug "Montrose", for exoneration or to limit its liability in connection with the various losses arising as a result of this deplorable accident.
At 7.45 A.M., January 20th, 1941, the Tug "Montrose" took the Barge "Winifred Sheridan" in tow, at Wings Neck, Massachusetts, the western terminal of the Cape Cod Canal, bound for Rockland, Maine. The "Winifred Sheridan" was 187.8 ft. long, 34 feet beam, and 16.3 ft. depth of hold, and was loaded with about 1,400 tons of coal.
The tow of the Tug "Montrose" was made up of three loaded barges in tandem fashion, the Barge "F. J. Bradley" being the head barge, the Barge "L. & W. No. 7" being the second barge, and the "Winifred Sheridan" being the stern barge. The Tug "Montrose" towed the said three barges through the Cape Cod Canal, and put in for Boston Harbor, with her tow, passing the Grave's Buoy Light, off the mouth of the Harbor, some time after midnight, and in the early hours of January 21st, 1941. As the Tug "Montrose", with her tow, proceeded to the Harbor, the "Montrose" gave the signal to the barges of her tow, to get up steam and prepare to anchor.
The wind was blowing from the northwest at varying velocities, estimated to be between 20 and 30 miles an hour, but shown by the records of the Weather Bureau at Boston, to have been from 17 to 20 miles an hour. The sea was choppy, the night dark and clear, with good visibility.
The tow of the "Montrose" was on a long hawser from the tug and on long intermediate hawsers from each other, and due to the condition of the wind, and sea, and the damage to the windlass of the "L. & W. No. 7", the Master of the "Montrose", believed that it was dangerous to attempt to shorten the hawsers, as would be required by the regulations, if the tow was taken into Boston Harbor.
The "Montrose" hauled her tow up to the northwestward and into the wind, leaving the flashing white buoy on the port side of the tow.After the "Montrose" had come well up to the northward of the white flashing buoy, so that her last barge, the "Winifred Sheridan", was closed to the buoy, the "Montrose" ordered the vessels composing her tow, to anchor, which the "F. J. Bradley" did, and the lines to the tug were cast off. Due to the fact that her windlass was out of order, the anchor of the "L. & W. No. 7" was not dropped, and she was held in position by the intermediate hawser with which she was still made fast to the barge "F. J. Bradley", which hawser had been considerably shortened. The "Winifred Sheridan" dropped back and anchored, and after the "Winifred Sheridan's" anchor had been dropped, and she was riding safely to her anchor, she was about 300 feet to the southwestward of the white flashing buoy.
There is a conflict in the evidence as to the exact time when the "Winifred Sheridan" anchored, but in any event, it was at a considerable time, at least over one-half hour, before the collision occurred. The "F. J. Bradley" was then about 300 or 400 feet to the northward of the "L. & W. No. 7", which was northward of the white flashing buoy, and the "Winifred Sheridan" was about 300 feet to the southwestward of the white flashing buoy.
Anchor lights were put out by all three of the barges in the tow. They were bright white lights which could be seen all around the horizon for a distance of two miles. On each of the barges there were two of these lights, one at the bow, and one at the stern. The "Winifred Sheridan" had an extra white light placed on the starboard corner aft on top of her main house, and there were white lights showing in the pilot-house, crew's quarters, captain's room and galley. Whichever of the lights were used they were sufficiently bright. The "Winifred Sheridan" did not, when anchored, obstruct the view of the light of the white flashing buoy.
Some time after the barges had been so anchored, the stem of the fishing boat "Mary E. O'Hara", which was coming into Boston, from the fishing banks off Nova Scotia, struck the "Winifred Sheridan" on her starboard after quarter, causing only slight damage to the "Winifred Sheridan". The "Mary E. O'Hara" did not at the time of the collision try to ascertain what damage was done to the "Winifred Sheridan", but apparently continued on, under the stern of the "Winifred Sheridan", up toward Boston. Shortly after striking the barge "Winifred Sheridan", the Master of the "Mary E. O'Hara" learned that she was taking in a considerable amount of water at the bow. He tried to beach her, but, before he could succeed, the "Mary E. O'Hara" sank, between the white flashing buoy and the entrance buoys to the North Channel. The masts of the "Mary E. O'Hara" were still above water when she fetched up. Only five members of the crew of the "Mary E. O'Hara", who had climbed up in her rigging, were saved, and they were rescued by the fishing boat "North Star", which was also bound into Boston, and did not reach the sunken boat, until several hours after the collision.
The night was dark, and very cold, but clear, with good visibility for over 2 miles, and the Captain of the "Mary E. O'Hara", according to his custom, was in the pilot-house, all the time going from one side of the pilot-house, out on deck and then over to the other side. A man was at the wheel, and one of the crew named Conrad was supposed to be acting as lookout. He had gone on watch ...