The opinion of the court was delivered by: BYERS
In this cause the libelant seeks to recover damages in the amount of $ 7,000 said to have been suffered by the barge Joan Kunkel when she was being towed from a dock on the westerly shore of the Quinnipiac River at New Haven, Connecticut, to an anchorage off City Point about 1 3/4 miles below the dock, on January 31, 1945, as the result of striking ice.
The tug Edna May had her in tow, and the charges of fault, in addition to the stereotyped ones, are that she failed to take proper precautions to avoid injury to the Joan Kunkel by ice; failed to arrange the tow properly; failed to clear a path for the Joan Kunkel; allowed the Joan Kunkel 'to come into forcible contact with large and heavy cakes of ice'; proceeded at an immoderate rate of speed under the circumstances; and failed to navigate with due regard for existing conditions.
On February 6, 1945, the witness Hague, a marine surveyor, attended on the Kunkel in connection with a requested certificate of seaworthiness, and he found the vessel aground alongside the Wyatt dock. He examined around the bow on both port and starboard sides, and discovered three strakes on both sides and adjacent timbers cut and broomed, and that condition extended aft about 30 feet from a point six to eight feet aft of the stem; side planks, originally four inches in thickness, had been reduced to two inches as a result of recent gouges. On the starboard side forward, namely, 10 feet aft of the stem, a side plank was broken through and crushed in to the depth of 10 inches, and seam caulking on both sides was pulled and disturbed at various locations, and all of this damage appeared to be of recent origin.
That inspection was not a survey of which the claimant had notice, and the latter offered in evidence a copy of the survey held on February 29, 1945, at Sparrows Point, Maryland, which was ex parte so far as the claimant was concerned, which seems to have been held in connection with a claim against underwriters.
The damage according to that document could be repaired for $ 4,721.25, and included five items not alleged to have been incurred in the towing in question, such as ninety fathoms of anchor chain cable and a 2200 pounds anchor, and the renewal of the port hawse pipe and a port wildcat; these were substantial items, and, being subtracted from the above sum stated in the survey, leave a considerable margin between the $ 7,000 demanded in the libel and the reasonable amount of the ice damage here alleged.
The Kunkel is a wooden, coastwise barge, having a sharp bow and square stern, and her dimensions are 204.5 feet by 32 feet with a depth of 14.7 feet and draft 10.5 feet, and on the day in question she lay port side to the Schiavone-Bonomo Dock at New Haven, where she took a cargo of scrap iron to about 2/3 of her capacity, namely, 800 to 900 tons.
As laden, the Kunkel drew 10 1/2 feet forward and 12 feet aft.
The tug Edna May had been instructed by libelant to remove the Kunkel from the dock to the anchorage, and arrived at about 1:30 p.m. for this purpose; in order to do so, she had to make her way through solid ice of a thickness of about 4 inches, which had formed in the river for a distance of about a mile below the dock.
The Edna May is a steamtug, 88 feet long by 20 feet in beam, and her engines turn up 350 horse power.
There is no conflict between the testimony of Daugherty, the bargee of the Kunkel, and Erickson, captain of the tug, that the latter opened a path or lane through the ice before she made fast to the Kunkel, by steaming back and forth and breaking the ice loose, except as to the width of the path so cleared; Daugherty says it nas about the width of the tug, namely, 20 feet, and Erickson says it has 40 feet to 45 feet.
Clearly Daugherty must be wrong, because a 32 foot barge could not proceed in a 20 foot pathway of broken ice; nor is it likely that the tug would have started the towing operation under such conditions.
Since the Kunkel lay with her port side to the dock and she was towed bow first, it was necessary to clear a space in the water off the dock sufficient to allow her turning, and this was done; then the Kunkel was taken on a 15 to 20 fathom hawser and, as so made up, the tow proceeded toward the anchorage.
The bargee went into the wheel-house and undertook to steer the barge as she followed the tug, but he testified that he could not do this because the hawser was too short, and after a brief interval of time he abandoned the effort to steer. He does not mention the speed that the tow made, but he says that they were about t o hours in covering the mile and a half down to the second railroad bridge, beyond which lay the anchorage ground. The chart does not bear him out in this estimate of distance, but his testimony is in accord with the tug captain's as to the rate of progress, namely, about a mile an hour.
Daugherty says that, as the tow proceeded, the Kunkel was moving from side to side, breaking ice, namely: 'We would swing from side to side, say 5 or 6 feet' and then strike the ice, meaning, it is supposed, the unbroken ice, 'strong enough to jar the boat, and the hardest blows were say 15 to 18 feet aft of the stem'; during the movement the hawser seems to have been lengthened, but where is not stated, but ...