Before SWAN, CLARK, and WOODBURY, Circuit Judges.
This litigation grows out of the stranding of the scow "Henry E" on a submerged rock while it was being towed up the Rahway River by the tug "Wrestler."
Exner Sand & Gravel Corporation, as owner, filed a libel in the usual charter form against Gallagher Brothers Sand & Gravel Corporation to recover for the damage occasioned to the scow when it struck. Thereupon, and before Gallagher Brothers answered, the owner and master of the tug filed a petition for exoneration from or limitation of liability on the ground that the rock upon which the scow impinged "was neither charted nor known to petitioner, or navigators or others familiar with the waters of the Rahway River." Gallagher Brothers subsequently admitted Exner's prima facie case, that is, the latter's ownership of the scow, its oral charter for an agreed per diem hire, its delivery in good seaworthy condition and its return in damaged condition (see The E. T. Halloran, 2 Cir., 111 F.2d 571), and in its answer to the libel alleged, inter alia, that any damage which the scow may have sustained was due "to the fault, neglect or want of care on the part of the tug 'Wrestler,' and those in charge of her," for which it was in no way responsible. Both Exner and Gallagher Brothers filed claims and answers in the limitation proceeding in which, among other matters, they alleged that although the petitioner therein held himself out as an expert navigator of the Rahway River, he nevertheless lacked the requisite knowledge and skill in that he failed to take into consideration the effect of the wind upon the tide and failed to realize when he entered and proceeded up the river that the tide was not high enough for his voyage. The libel and the petition for exoneration were consolidated for trial in the District Court, and that court, finding the stranding of the scow not due to the neglect of the master of the tug which had it in tow (60 F.Supp. 43), entered a final decree granting the petition for exoneration and dismissing Exner's libel on the merits. Thereupon the latter took this appeal to us.
The evidentiary facts are not in dispute. The only issue on this appeal is with respect to the conclusion drawn from those facts by the District Court. It is accurately stated in the brief of the petitioner for exoneration as "Whether the finding of the court below that the Tug 'Wrestler' was not negligent in stranding appellant's scow on an unknown and uncharted rock in the fairway is 'clearly erroneous.'" See Petterson Lighterage & Towing Corp. v. New York Central R. Co., 2 Cir., 126 F.2d 992, 995, 996. We think this question must be answered in the negative.
The Rahway River is a shallow, winding stream, in reality little more than a creek, flowing in a generally easterly direction through New Jersey and emptying into Arthur Kill about one-half mile south of Pralls Island. It is spanned in its lower reaches by two railroad bridges; one practically at its mouth and another approximately a mile and a half upstream. Only its lower mile or so is shown upon any chart issued by the United States Coast and Geodetic Survey. It is described in the United States Coast Pilot for the Atlantic Coast, Section B, Cape Cod to Sandy Hook, published by the United States Department of Commerce, Coast and Geodetic Survey, 1940 edition, as having a controlling depth of 6 feet for a width of 50 to 100 feet from its mouth to Lambert's Wharf, a distance of about two miles, and as frequented only by motor boats and other small craft.
Nevertheless the evidence is conclusive, and the court below found, that for many years boats, for the most part loaded scows and barges, drawing as much as ten feet, have been towed up the river as far as Lambert's Wharf, now the Thorn & Wilmerding Dock, in Linden, New Jersey, the destination of the "Henry E" at the time of the disaster. But boats of such draft can go up the river only on a comparatively normal flood tide, and the direction and force of the wind greatly the ebb and flow of the tide in the river - a westerly or northwesterly wind of 24 hours or more duration having a tendency to retard the flow of water up the river and therefore to make the peak of the tide therein lower than normal, and an easterly or southeasterly wind of similar duration having a contrary tendency. The court below found that while care is required in navigating the river with boats drawing as much as ten feet, "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."
We turn our attention now to events immediately preceding the disaster and to the disaster itself.
The tug "Wrestler," then being operated by her owner, the petitioner in the exoneration proceeding, took the scow "Henry E" in tow, stern first, on a bridle hawser so rigged that about fifteen feet of water separated the sterns of the vessels, as Elizabethport, New Jersey, on February 15, 1944, at about 6:30 A.M. The scow was partly loaded with sand and drew eight feet. The tow proceeded down Arthur Kill to Carteret, New Jersey, where it tied up to a wharf just below the mouth of the Rahway River at about 9:00 A.M. It left Carteret at about 11:00 A.M. and entered the river about one-half hour later on a tide predicted to reach its peak a little after 1:00 P.M. At that time the wind was blowing from the west with a velocity of 33 miles per hour, and it had blown from the southwest, west-southwest, and west since the preceding midnight, with a force rising to 25 miles per hour at 2:40 A.M., and it continued in that range until 10:30 P.M. that night. But beginning at about 3:00 P.M. on the previous day, February 14, and continuing to midnight on that day, the wind had been in the east, northeast, east-northeast, south-southeast, southeast and again east, with a velocity arising from three to 25 miles per hour, with fresh and at times strong gusts. It appears that in consequence of these winds the tide upon which the "Wrestler" entered the river behaved quite erratically. Although it was due to reach its peak at 1:00 P.M. and normal high water in the Rahway River is from four to four and one-half feet above mean low water, it actually reached a peak of only 2.2 feet and did so at 11:00 A.M., then receded slightly, but rose again to 2.1 feet just before 1:00 P.M., when it began to ebb.
The testimony of the master of the "Wrestler" as to whether he observed the behavior of the tide as he entered the river is, as the court below observed, "less than convincing" and "somewhat anemic." He testified that he was familiar with the use made of the parapet of the first railroad road bridge by navigators of the Rahway River as a gauge by which to measure the height and behavior of the tide in that stream, and that he did not consider it safe to go up it with a tow, even one drawing only eight feet, unless and until the tide had risen in comparatively normal fashion up to or nearly up to the bottom of the third plank from its top. But the most that he cared to testify to was that he must have looked at the parapet of the bridge and determined that there would be a good enough tide to take a scow drawing eight feet up the river, or else he "wouldn't have undertook the job."
But whatever the observations, if any, of the master of the "Wrestler" may have been, he nevertheless took his tow up the river, and just above the second railroad bridge, and so above the charted part of the stream, the scow grounded gently in the channel and could be moved no further.In this grounding it sustained no damage and as the tide receded it rested evenly on the bottom. The "Wrestler" stood by and between 11:50 P.M. on February 15, and 12:30 A.M. on the sixteenth, on the next rising tide, which was predicted to reach its peak at about 2:00 A.M. but in fact reached its peak about forty-five minutes later, the scow floated and began to drift upstream. The "Wrestler" was at once made fast to the scow in the same way that it had been before and the tow proceeded on its voyage at about three-fourths miles per hour, the deck hand of the tug, stationed on the scow, taking soundings from time to time and finding depths of nine and ten feet. Approximately seven minutes later, the tow in that time having covered a distance of approximately 600 feet, the scow struck a submerged rock in that portion of the bed of the Rahway River which constitutes the channel as used, but somewhat nearer to the northerly shore than to the center, upon which it rested and from which it could not be moved. This rock damaged the bottom of the scow to such an extent that eventually it sank.
The District Court found that this rock was pyramidal in shape and projected approximately 3 1/2 feet from the bed of the to navigators of the river, including the to navigators of the river, including th: master of the "Wrestler," and that at the time of the stranding there was a sufficient depth of water all around it to have permitted the scow, but for the rock, to have proceeded up the river in safety, there being a depth of water except for the rock at the time and place of the stranding of not less than 8.9 feet.
The appellant does not question the firmly established rule that the master of a tug is not liable for damages resulting from his tow striking an unknown and uncharted rock in the fairway. See The Arlington, 2 Cir., 19 F.2d 285, 286, 54 A.L.R. 101. It rests its contention upon the equally well settled rule that a tugmaster who voluntarily deviates from the customary channel does so at his peril and is liable for the consequences of a stranding during such a deviation, even though the rock or shoal upon which his tow strikes is uncharted and unknown. See also The Arlington, supra. It says that there is no difference in principle between voluntarily deviating from a channel and voluntarily proceeding up one when the water in it is so low by reason of an insufficiently high tide that the bottom of the tow is brought into dangerous proximity to the bottom of the waterway, and it says that only the grossest inattention can explain the failure of the master of the "Wrestler" to observe that the tide was not rising in the normal way to anything even approaching its normal height when he entered and proceeded up the river.
We may concede, as the appellee does, although we need not decide, that an unnecessary voyage through a channel at a stage of the tide therein which is known, or should be known, to be dangerously low, that is, a needless voyage amounting to one of exploration of the bottom of a channel, if proved, would bar ...