The opinion of the court was delivered by: BYERS
The libelant's wooden deck scow Creek sustained heavy ice damage while being towed by the tug Mary L. McAllister, off Hastings, New York, on the night of March 5, 1948. She was under charter (via Christie Scow Corporation) to respondent Chile, and the latter has impleaded the tug and her owner, upon the theory that liability if any was caused by improper towing by the McAllister tug, which had been engaged by Chile. The nature of that engagement is one of the litigated issues, as well as the method of performance by the tug.
The legal character and status of the parties and ownership and operation of the affected vessels are not in dispute; nor is the fact and extent of damage, nor the good and seaworthy condition of the Creek when she went on charter. In that connection it is agreed that she was not ice-sheathed, but no one seems to assert that fact to have been an undisclosed condition so far as Chile was concerned, when the usual oral harbor charter was entered into as stated, on February 20th preceding the happening.
Since the foregoing recites undisputed matters, the findings will be addressed only to disputed questions of fact.
1. The Creek is a wooden deck scow 120 x 35 x 10 (she had a 45 degree overhang at each end) and, being under charter as stated, was taken in tow light by the respondent's-impleaded tug Mary L. McAllister (88.7 x 22 x 9), from alongside the dock of Anaconda C. & C. Co., at Hastings on Hudson on March 5, 1948 at about 9:00 P.M.
2. The respondent Chile Steamship Company, to be called Chile, is a subsidiary of Anaconda C. & C. Co. is also a subsidiary. (Note: This was stated informally and is assumed to be true; if challenged, however, this finding will have to be reconsidered.)
3. When the Creek was sub-chartered from Christie Scow Corporation, she was under charter to it by the libelant owner.
4. There is no evidence that the rights of the owner of the Creek were intended by the parties to have been other than if the charter had been entered into between libelant and Chile.
5. The Hudson River off Hastings and down as far as Yonkers, was covered with floating ice, which tended to solidify near the shores, but in the middle of the river, waterborne traffic had moved for not less than four days prior to March 5.
6. On or about March 4, 1948 Chile issued orders to McAllister to tow two scows up to the Anaconda C. & C. plant at Hastings, and the order was executed and the two scows were duly delivered about 8:00 P.M. on March 5, 1948.
7. That towing was astern in tandem through ice from about Yonkers to Hastings, and was accomplished without incident.
8. At the time the order was given, so far as the evidence shows, there was no discussion with the McAllister Line as to the ice conditions in the Hudson River off Hastings.
9. There were two scows lying at the shoreside dock or bulkhead of the Anaconda C. & C. Co., namely the said scow Creek which was light, and the scow Utah which was laden to about two-thirds of her 650 tons capacity with copper products and which was sheathed for protection against ice.
10. The McAllister tug took those two scows in tow about 9:00 P.M. March 5, for return to New York.
11. The anticipated delivery of the scows at New York would have been for account of Chile, and pursuant to its customary practice of giving instructions.
12. Only the Utah was so delivered.
13. The tow was made up so that the scows were alongside the tug, the Creek to starboard and the Utah to port.
14. This make-up was chosen by the tug's captain to promote ease in handling as the tow proceeded through the ice, and to prevent possible over-riding by the light scow Creek of the partially laden and therefore lower-lying Utah, had the latter been the hawser boat in a tandem tow astern of the tug.
15. Neither Higgins, the scow-master of the Utah, nor Olsen of the Creek, nor Kennedy the crane operator, who was stationed on the bulkhead where the Creek was made fast, protested to the captain of the tug concerning the manner ...