The opinion of the court was delivered by: BYERS
In the first cause the libelant, as owner of the seagoing barge Orleans, seeks to hold the tug Dunmore, claimed by The P. Dougherty Company, for damage to the Orleans caused by her collision with the seagoing barge Montauk in Fishers Island Sound about 2 miles or more south of Avery Point on the Connecticut shore, on the evening of November 8, 1942; in the second cause the said Dougherty Company, as owner of the Montauk, seeks to recover from the United States as owner of the Orleans, for damage said to have been suffered by the Montauk as the result of the same collision.
The causes were tried together on consent, since they involved but one happening.
The tug Dunmore took three seagoing barges in tow in the vicinity of the place of collision, where they had been left at anchor as to the head barge earlier in the day by the tug, while she removed still another barge for delivery at New London.
Pending the return of the Dunmore, the Cohasset (dimensions not given) rode at anchor with the Montauk astern on about 90 fathoms (the witnesses do not agree as to this, so an average has been accepted) of hawser, and she in turn had a like length of hawser out to the Orleans; all were laden with coal, and were seaworthy and in good condition.
When the Dunmore returned from New London, she placed a hawser on board the Cohasset, of 200 fathoms, and then signaled to the Cohasset to heave her anchor, and in due time got under way, straight ahead until the towing hawser took a strain, and then turning to her own starboard, intending to take the tow out through Race Rock to the east; the only question to be decided is whether at the beginning of that maneuver the Montauk was caused to turn so sharply to starboard that she rubbed across the bow of the Orleans, breaking it and causing damage on that vessel; or whether what happened was that, as the hawsers were tightened between the barges in response to the initial impetus given by the movement ahead of the tug, the Orleans came ahead so fast that she struck the starboard quarter of the Montauk because she was not properly handled so as to avoid the collision.
The shape of the tow at the initial movement of the tug Dunmore must be established so far as the evidence permits, if any understanding is to be reached as to what probably took place.
The tow got under way at about 8:00 P.M., E.W.T., after dark had fallen; a light northerly wind was blowing, but there is no assertion that weather or atmospheric conditions affected the movement of these vessels. If any witness possessed knowledge of the force and direction of the tide just prior to and at the time of the collision, he concealed it with entire success from the Court. No tide tables were produced, nor other data of that nature upon which a reasonably safe conjecture could be based as to the probable shape of the tow at the time that the tug started ahead, intending to proceed to the east around Race Rock, which lies southwest of Fishers Island.
The testimony as to the relative positions of the second barge, Montauk, and the third barge, Orleans, both as to distance and direction, is in conflict, and at best all that can be evolved is a plausible theory to account for an episode which ought not to have occurred if competent seamanship had been brought to bear.
It is apparent that if these two barges had continued to lie as they were -- whatever their relative positions -- there would have been no collision between them, and consequently the fact that one did occur must be attributed to the movement initiated by the tug when she started to tow the vessels in her charge on a course to pass Race Rock.
Upon the conflicting and argumentative testimony and the inferences drawn therefrom, the following Findings are made:
(1) Ownership and operation of the Dunmore and the Montauk on November 8, 1942, are found to have been in The P. Dougherty Company, a Maryland corporation, and ownership of the seagoing barge Orleans is found to have been in the United States of America.
(2) The Dunmore is a steamtug, 142 feet by 27.6 feet, having an inside depth of 14 feet, and indicated horse power of 850.
(3) The Montauk is a wooden seagoing barge, 278.7 feet by 40 feet by ...