The opinion of the court was delivered by: GALSTON
The barge Joan Kunkel, in tow of the tug Nancy Moran from Reedy Point on the Delaware River, proceeded on March 22, 1944, down the Delaware River and Delaware Bay on a 75 fathom hawser, thence into the ocean, and passed the Delaware Breakwater and Cape May and along the coast to Sandy Hook. The hawser from the stern of the tug to the bow of the barge was then lengthened to 200 fathoms. The destination was Greenpoint, New York. The barge was heavily loaded with coal which had been taken on at Hampton Roads.
The Joan Kunkel is a wooden coastwise barge about 200 feet in length, with steering gear but no motive power.
It is the contention of the Eastern Transportation Company that the weather conditions which she encountered before reaching the sea were such as to indicate that it was unsafe for the tow to proceed to sea. This contention is based on the showing that the tow was encountering southeast winds, that the barometer after a rise had begun to fall, and the sky was overcast. It is argued that the indications were that during the night and the following day strong southeast winds would prevail, causing high or choppy seas, and that such seas would wash over the deck of the barge from starboard to port.
In addition to the charge that The Nancy Moran was not justified in going to sea on the night of March 22nd, it is maintained that good seamanship would have led the master of The Nancy Moran to proceed with the tow head to the sea as soon as the waves became high or unduly choppy, but just at what point that maneuver could have been effectively carried out is not indicated.
On March 23, 1944, the following day, the barge leaked, and her gas pump was disabled. Sensing personal danger, the barge captain signaled to the tug at about 5:30 P.M. that he and his deckhand desired to be taken off the barge. It was at this point that the tow for the first time was headed into the seas. The anchor was dropped and the barge captain and deckhand were taken to the tug at or about 6 P.M. The tug stood by during the night, but had communicated with the Coast Guard. The Coast Guard sent a small rescue boat, then The Rescue, a large tug. During that night the wind changed to northwest. Blows from that direction, off the coast, do not have a bad effect on the seas near the coast.
If The Kunkel had been in distress before 5:20 P.M. on March 23rd, she had a duty to give notice to The Moran.
On the morning of March 24th the barge captain asked to be placed back on board his barge, and that was accomplished through the aid of the small Coast Guard boat. At that time the gas pump was repaired. It is the contention of the libellant that not much water was found in addition to that which was there when the barge men left the night before. The libellant explains that condition by asserting that the barge had been put head to sea, and thus rode more easily with less strain.
The pump was put in operation, but the rudder of The Joan Kunkel being disabled, The Nancy Moran took a position astern of the barge with a towing line from the stern to The Nancy Moran, and The Rescue proceeded to tow the flotilla with a hawser on the bow of The Joan Kunkel. Presently the strain on this hawser was apparently so great that the bow bitts were torn from their fixings. Then the hawser was moved to the side bitts. These also were damaged, but finally the barge was brought into Red Hook Flats where her cargo of coal was discharged.
By way of attempted proof of the unwisdom of The Nancy Moran in going to sea from the Delaware River and Bay on the night of the 22nd, the libellant showed that the tug Baldrock, one of its own tugs in charge of Captain Wilgus, had reached the Delaware River on March 22, 1944, having two large barges in tow, the second of which was taken on at Reedy Point at the eastern end of the Chesapeake and Delaware Canal. The barges were loaded and the tow was bound for New York. The course was to be out to sea to the breakwater, and then up the Jersey coast to Sandy Hook. Of the two barges the forward one, The Charles J. Hooper, was about twice the size of The Joan Kunkel, and had more freeboard. The Charles T. Ryan, which followed The Charles J. Hooper, was also a larger barge than The Joan Kunkel. This tow left Reedy Point at 4:00 P.M. on March 22, 1944, and proceeded down the Delaware River. The barometer read 30.58, though at 2:33 A.M. on the 22nd it read 30.54. At 6:40 P.M. the tow passed Ship John Lighthouse; the wind moderate southeast, still partly cloudy; the water smooth; the barometer 30.54. The Ship John Lighthouse is in the Delaware River. After this tow passed the lighthouse, and at 9:15 Elbow of the Ledge Light, the wind was fresh southeast, and the sky partly cloudy; the barometer 30.50 and falling again. The weather was the same as the tow passed Myahmaull Lighthouse at 9:57. The next entry in Wilgus's log had reference to passing Fourteen Foot Bank Lighthouse at 10:45 P.M., the weather the same, barometer 30.45. At 11:30 he anchored his tow off Brandywind Lighthouse, below Fourteen Foot Bank. Wilgus' explanation was that he did not like the weather, 'it was increasing, and I was afraid of a southeast gale the way the barometer was jumping back and forth, so I decided that I would not go any farther, and I would not take it to the Delaware Breakwater because the mine field extended too close to the breakwater and I had those two barges'. He explained that a southeast wind on a tow proceeding up the Jersey coast from the Delaware Breakwater, bound for Sandy Hook, places the tow in the trough of the sea, washes the barge heavily and gives trouble with the rudder.
The judgment of Captain Wilgus in the handling of his tug and tow on March 22nd is not persuasive that The Nancy Moran erred. Wilgus was an interested witness. Moreover, he himself advanced reasons for his decision which are not convincing. He said he did not like the weather, and that he was afraid of a southeast gale. It would seem that the barometer readings were not very significant in support of his belief that the weather was 'increasing'. The Baldrock's log for March 23rd reads: