The opinion of the court was delivered by: BYERS
Cause A-17084 was consolidated with A-17125, a limitation proceeding instituted by the owner of the tug Wrestler, and the issue of negligence on the part of the tug is the sole question for decision.
On February 16, 1944, the sand scow Henry E, owned by the libelant and then being under charter to Gallagher Brothers Sand & Gravel Corporation, while being towed in the Rahway River in New Jersey by the tug Wrestler (hired by Gallagher) fetched up on a rock in the river bed and later sank. To recover for the damage so occasioned, the libel was filed on May 18, 1944, in cause A-17084 by the owner of the scow against the charterer, for failure to redeliver her in as good condition, etc.
The answer alleged that the damage was due to the negligent navigation of the scow while in tow of the Wrestler, and that the owner of the latter had initiated a limitation proceeding, whereby an impleading petition was rendered unavailable.
In the limitation proceeding, exoneration was sought by Stevens, the owner and navigator of the tug, because the scow was said to have struck an unknown and uncharted rock lying in the bed of said Rahway River.
The Rahway River is in effect a creek which empties into the Arthur Kill, and it has not been charted by the United States Coast and Geodetical Survey. Nevertheless, boats had been towed up to Lambert's Wharf, Linden, N.J. (the destination of this scow) for a number of years, mostly scows and barges, drawing as much as ten feet when loaded; while care is required in the conduct of such navigation, it is not necessarily hazardous, when it involves vessels of that draft, at or just prior to flood tide. The testimony is convincing that it is customary for towing vessels to wait at the mouth of the stream until about an hour or more before high water, and then to proceed, provided (a) that the surface has risen to the third plank from the top of the parapet supporting the first railroad bridge to be encountered as the tow moves upstream, and (b) that strong westerly winds have not prevailed for more than one previous day to keep the tide from rising to its customary level.
The evidence in the cause yields the following factual summary:
(1) Ownership and operation of the respective vessels are found to be as alleged in the respective pleadings.
(2) On February 15, 1944, the scow Henry E was under the customary New York harbor charter by the owner, Exner Sand & Gravel Corporation, to Gallagher Brothers Sand & Gravel Corporation.
(3) The dimensions of the vessels involved were:
(a) Sand scow Henry E, 116.8 feet by 34.1 feet by 9 foot depth of sides.
(b) Diesel tug Wrestler, 42.8 feet by 12 feet by 5.2 foot depth of sides, with indicated horse power of 120.
(4) On February 15, 1944, the tug, being operated by her owner, Stanley Stevens (the petitioner seeking exoneration), took the scow in tow stern first on a bridle hawser so rigged that there was a 15-foot space between the stern of the tug and the forward end of the scow; the latter was partly loaded with sand, and drew 8 feet.
(5) At about 11:30 A.M. on that day, the tow as so made up entered the Rahway River; and when it had proceeded about 1 1/2 miles so that the scow was about 75 or 100 feet upstream of the second railroad bridge, the scow stranded in the channel as customarily understood, but which is uncharted, at about 1 P.M., when high tide occurred in that part of the river.
(6) At the place of said stranding, the Rahway River is about 350 feet wide from bank to bank, measured at the surface of the river at high water, and the channel as used is about 200 feet wide generally in the center but inclining to the northerly bank of the river. At other reaches the channel is as little as 75 feet wide.
(7) The said river runs generally from east to west, and follows a bending course, and the tow was proceeding in a westerly direction, with the north bank of the river on its starboard hand.
(8) Normal high water in the Rahway River is about 4 to 4 1/2 feet above mean low water.
(9) During the 24 hours ending at midnight of February 15th, the wind was blowing from the SW, W. SW, W, with a force rising at about 2:40 A.M. to 25 miles; and then to 33 at 11:30 A.M., and continuing in that range until 10:30 P.M. On February 14th, beginning at about 3 P.M., the wind had been in the E, NE, E. NE, S. SE, SE and again E, with a velocity rising from 3 to 25 miles, with fresh and at times strong gusts, to midnight.
(10) The effect of a westerly wind of the force shown was to oppose the floodtide moving into the river from the Kill, and thus to prevent it from reaching its normal height.
(11) Actual high water in the Rahway River was at about 2 A.M. on February 16, 1944, and it was lower than its predicted level by from 1.9 feet to 2.3 feet.
(12) Between 11.50 P.M. on February 15th and 12:30 A.M. on February 16th, the scow was released from the first strand by reason of the rising tide, and the tow ...