The opinion of the court was delivered by: BYERS
On October 26, 1948, the libellant's steel barge Petroleum No. 7 in tow to the tug H. A. Meldrum was proceeding westerly through the Barge Canal and at about 1:00 A.M. was caused to rub along the bank on the starboard side and a stone described as about the size of a man's fist penetrated the bilge plate in the way of No. 5 tank, which is the damage sought to be recovered in this cause.
The tow was made up in push fashion and as such constituted a rigid unit.
The contact with the bank was caused by meeting and passing an eastbound tow similar in make-up, of which the steel tanker Hygrade No. 14 was being pushed by the tug Bridgeport, and clearance was effected by a matter of from two to three feet.
The question for decision is whether there was negligence on the part of The Meldrum in moving so close to the starboard bank as to cause the holing above referred to; and if such negligence has been shown, whether it can be visited in turn upon the navigation of The Bridgeport.
The evidence yields the following
1. The steel barge Petroleum No. 7, in tow to the tug H. A. Meldrum owned by the above-named claimant-respondent, sustained damage on October 26, 1948 at about 1:00 A.M., namely, her bilge plate, starboard side, in the way of tank No. 5 was punctured by a rock of about three inches in diameter while she was being towed push fashion, westward, at about one and one-half miles east of Lock 21 in the Barge Canal.
2. Until an eastbound tow, to be referred to in the next finding, was observed, the speed of The Meldrum tow was about 3 to 3 1/2 m. p. h.
3. A few minutes before the said striking, another tow was observed at a distance of about a thousand feet, approaching eastbound, and one-whistle signals were exchanged indicating the suggestion and acceptance of a port passing.
4. The eastbound tow consisted of the steel barge Hygrade No. 14, also being towed push fashion by the tug Bridgeport claimed by the respondent-impleaded.
5. The barge Petroleum No. 7 was 210 feet long, 40.5 feet in beam and depth of sides 15 feet. She was laden with a cargo of petroleum, and as so laden her draft was 11 feet.
6. The Hygrade No. 14 was 210.1 feet long by 42.1 feet in beam and her depth was 14.1 feet. She was not laden to capacity and carried water ballast so that her draft at the bow was 8 1/2 feet and at the stern 9 feet.
7. The Meldrum was 77.8 feet long by 19.9 feet in beam and her ...