The opinion of the court was delivered by: KENNEDY
This case involves a claim of stranding damage asserted by the owners of the barge Lake Frumet
in rem against the tug Bermuda
and a passing steamship Vera Cruz
, and in personam against the owners of the respective vessels (Southern Transportation Company and the Texas Company). The stranding took place in the Cape Cod Canal between a railroad bridge known as Buzzards Bay Bridge and a highway bridge, Bourne Bridge.
At about 8:45 P.M. on December 31, 1946, Bermuda entered the canal at Wings Neck bound easterly. She was towing three barges singled out on 60 fathoms of manila line (Bango, Lake Frumet and Winifred Sheridan)
. The weather was clear. The tidal current until 9:10 P.M. was westerly, at which time it reversed itself. In the canal the maximum strength of the tide is about 3.8 knots; at the time of the stranding it was running easterly at about 1 1/2 knots.
The Vera Cruz entered the canal at Wings Neck station at 9:13 P.M. (station time). At about 9:19 P.M. she reduced her speed to half speed ahead. When Vera Cruz was abeam of Hog Island she sighted Bermuda and her tow about a half mile ahead. At 9:35 1/2 P.M. Vera Cruz slowed her engines and thereafter alternated between slow ahead and stop. At this time
the canal pilot who was in charge of Vera Cruz discovered that the ship had lost her steerageway and was not under control. Wishing to increase speed he therefore blew a one-blast overtaking signal to Bermuda, and the latter answered with one.
Bermuda had passed the engineer's station at 9:37 P.M.; Vera Cruz passed the same point at 9:42 P.M. After Bermuda consented to the overtaking agreement she reduced speed and edged over to her own left. At 9:43 P.M. Vera Cruz took a sheer to starboard and the pilot ordered her engines full ahead in an effort to correct that sheer. One minute later (9:44) Vera Cruz reduced to half speed as she began to overlap the tow.
Vera Cruz passed Winifred Sheridan, the tail barge, quite close aboard, probably about 20 feet. She caused Winifred Sheridan to surge, but the bargee managed to keep the craft under control. However as Vera Cruz passed Lake Frumet the bow of the latter was sucked toward Vera Cruz. The bargee put his wheel to port, but under the influence of section and bow wave created by Vera Cruz, the stern of Lake Frumet was then pulled over towards the line of the steamer's travel. The bargee now put on right rudder. Lake Frumet was riding up on the swell created by Vera Cruz and consequently the hawser between her and Bango was somewhat slack. As Lake Frumet's bargee swung his wheel toward the Vera Cruz in order to correct the action of the latter on the barge's stern, the hawser running to Bango tightened and parted. Lake Frumet swung around counter clockwise as the tidal current got her on the port quarter; she stranded and ultimately fetched up, after coming to an anchor, with her starboard side parallel to the north bank of the canal. During this swing she sustained damage by reason of stranding, the damage being to the port shell plates forward and also the starboard shell plates forward. Winifred Sheridan managed to escape damage by casting off her hawser.
It will be seen at once what the conflicting claims are. Lake Frumet says that she was damaged because of the fault of her own tug, Bermuda, or the improper navigation of Vera Cruz, or both. Vera Cruz argues that the fault is either that of Bermuda alone, or of the barge alone, or of both. Bermuda's contention is that she is free of fault.
To me it was and is manifest, indeed practically admitted, that shortly before the disaster Vera Cruz was compelled to increase her speed, because she would otherwise be unmanageable, and that there was a direct causal connection between this increase of speed and the disaster. The steamer argues that she made the transit of the canal from Wings Neck to station 35 in 63 minutes, that her average speed for the first half of the transit (Wings Neck to station 388) was only 9.03 miles over the ground, and for the second half of the transit (station 388 to station 35) her average speed was 10.38 knots over the ground even with an increasingly fair tide. It was, however, admitted by a witness called by Vera Cruz that 25 feet clearance is too close for comfort when vessels are passing each other in the canal and that 10 knots is a dangerous speed. While the Vera Cruz denies that she was as close to Lake Frumet as 25 feet, to me the evidence establishes that she was even closer. So far as speed is concerned, it is futile to attempt to reconstruct the speed of Vera Cruz with any very great exactitude during the period just prior to the parting of Lake Frumet's hawser on the basis of calculations showing the elapsed time for the entire transit. It is undisputed that at 9:43, Vera Cruz time, which must have been very close to the moment of the disaster, Vera Cruz put on full speed and held it for a moment. Even if immediately thereafter she reduced to half speed, it is perfectly clear that while she was passing Lake Frumet she was making at least 10 knots over the ground, and probably slightly more. This temporary burst of speed might be offset by later reductions, and if so the elapsed time between stations becomes meaningless. The only conclusion that I can reach is that Vera Cruz was at fault, and that her fault was a proximate cause of the damage to Lake Frumet.
As for the conduct of Bermuda, there is nothing in the case which would warrant a finding that anything she did caused the hawser to part. There was satisfactory evidence pointing to the conclusion that the hawser (supplied by Bermuda) was in good condition. True, there is evidence that Bermuda shortly after the passing agreement edged over to her left. But this was a normal maneuver, and even if Bermuda at the same time slowed her speed slightly, as is contended by Vera Cruz, it is almost impossible to conceive how such a reduction in speed could be a cause of the parting of the hawser and the stranding. Concededly the first barge (Bango) was not put in any dangerous position by Bermuda, undoubtedly because by the time Vera Cruz passed her the steamer's prior reduction in speed had taken effect and the passing was thus safely effected, a circumstance indicating that Bermuda's navigation was without fault.
I can find no fault on the part of Lake Frumet. Here the suggestion by Vera Cruz is that Lake Frumet's bargee in the instant before the hawser parted should have used full right rudder and that instead he tried to break the sheer by the gradual application of rudder. No such construction can be put on the testimony of the bargee, taken as a whole. I believe that when he found his stern swinging in towards Vera Cruz, he did what he could to break the sheer by the use of his rudder.
One more question remains to be considered. Nobody criticizes the agreement between Bermuda and Vera Cruz under which the latter was permitted to overtake the former. It was agreed that the Inland Pilot Rules, 33 U.S.C.A. § 171 et seq., apply. There is no criticism of the makeup of the barges in tow, and, as I have said, all of the hawsers including the intermediate hawser which parted must be found to have been in good condition. But Vera Cruz seems to take the position that there is some duty on the overtaken vessel to withhold assent to an overtaking agreement if the conditions are not perfect, and that she assumes the risk of excessive speed by the overtaking vessel. Of course, merely to state the contention is to refute it. Bermuda was not bound to anticipate that because of her design and power Vera Cruz would become unmanageable unless she exceeded a safe passing speed, or that she would take a sheer, to correct which it would become necessary to step up the steamer's speed to an unreasonable and dangerous degree. It is the overtaking vessel that is answerable for matters of that sort, at least under the conditions disclosed here.
My conclusion is that the damage sustained by Lake Frumet is directly and solely attributable to the navigation of Vera Cruz, and to that cause alone. This leads to an interlocutory decree in favor of Lake Frumet, and against the steamer and her owners, and to a dismissal ...