Friendly, Chief Judge, and Lumbard and Oakes, Circuit Judges.
A barge owner (Seaboard) and a tug owner (Moran) are before the court on cross appeals, each blaming the other for the loss of the lives of two bargemen, whose survivors have already been compensated by settlement. The parties here reserved their rights against each other under the settlement.*fn1 The court below held, 320 F. Supp. 229, in this exceptionally well-briefed case, that neither the negligence of the tug owner, Moran, the unseaworthiness of the barge, the negligence of Seaboard, nor the negligence of the bargemen had been established by a preponderance of the evidence. Thus, the parties were left as the court had found them, and their respective proceedings for exoneration from or limitation of liability were dismissed.
The deaths of Arthur Naess and Charles Thompson occurred in November 1966 when they were lost from the barge Oil Transfer 32 (O.T. 32) during a wild storm on Lake Michigan while the barge was under tow by the tug Margot Moran (Margot).*fn2 Captain Naess's body was found, clad in foul weather gear, on November 20, 1966, on the east shore of the lake. His death was attributed to drowning. Mate Thompson's body was never recovered. When the tug's mate boarded the O.T. 32 at 0600 hours on November 4, after the storm had subsided, he found the aft deck of the barge awash about one foot at its lowest point just forward of the cabin, and the cabin filled with water to the sill, though its horizontal door was tightly closed and its vertical door ajar only about one inch. He also found both lifeboat and liferaft missing, the deck in a shambles with a broken port boom, cargo hoses over the side, cowl ventilators missing and pump and engine rooms full. The hull was later found sound by a diver. Moran and Seaboard, below and here, each attempted to reconstruct the events in a light most favorable to itself. We find them both at fault.
The O.T. 32 was a typical inland waterway steel barge, 1278 gross and net tons, 229.4 feet long by 42.9 feet wide and 14.5 feet deep. She had no propulsion power, but carried a crew of two certified tankermen. On October 30, 1966, she loaded a cargo of benzoil at Lemont, Illinois, bound for Bay City, Michigan. She was pushed from Lemont to Chicago by the Margot, a tug of 141 gross and 96 net tons, 84.8 feet long with a 24-foot beam and 9.6-foot draft, powered by 1280 HP twin diesels. The O.T. 32's vocaline radio, which would have permitted communication with the Margot, had been out of order for several months, and its other means of communication, a sheet or a towel, floodlight, foghorn and flares, were not effective in the severe snowstorm that was brewing. The O.T. 32's lifeboat had been damaged in September 1966 (a Seaboard employee thought it, and the trial court found it, unseaworthy), and a canister containing an inflatable liferaft had been placed on board, but the canister was simply put in the useless lifeboat rather than on a proper cradle near the side of the barge. To compound the prescription for the disaster which ensued, the barge was loaded to a draft of 11 feet 1 inch fore and aft, her Intermediate Marks giving a freeboard of 3 feet 5 inches. This was fine for the day she was loaded, October 30, but the season for Intermediate Marks expired at 2400 hours the following day, October 31, and for the winter season following her maximum permissible drafts were 2 3/4 inches less than that permitted by the Intermediate Marks. Thus she was overloaded for the tow.
The Margot, like O.T. 32, was not fully equipped. Despite her direction finders and weather receiving radio equipment, the Margot's barometer was not calibrated for the Great Lakes; it was calibrated for the New York area and consequently the Margot's captain never bothered to check it.
After an uneventful trip from Lemont, the flotilla remained at Chicago from the afternoon of October 30 to 0830 hours November 1, because gale warnings were up and the October 31 forecast was for 34 to 40 knot winds. With gale warnings up at the Coast Guard dock and still being broadcast on October 31 and November 1, the tug captain nevertheless left, telling the bargemen the trip might be "a little sloppy." About fifteen minutes after departure, when the lock between the Coast Guard dock and the harbor was cleared, the 1200-foot long hawser, with bridle and bitts, was placed, so that the barge was approximately 1300 feet or a quarter-mile astern of the tug. Because of the weather, instead of heading straight to Point Betsie (sometimes spelled Betsy in the record) Light across the lake, as would ordinarily have been done, after clearing the breakwater the flotilla went up the west shore of Lake Michigan. At 10:10 AM on November 1, the wind was northwest to north, 25-35 knots, the seas were heavy according to the Margot's log,*fn3 and the forecast was for winds increasing to 30-38 knots for the rest of November 1 and for November 2, with some snow flurries.*fn4
The Margot with the O.T. 32 in tow continued up the west shore of the lake, slowing down at Wilmette from a full 650 RPM's to 575. The gods of weather gave the flotilla a little respite in the late afternoon: the gale warnings were reduced to small craft warnings and the northerly winds prediction was reduced to 24-32 knots. But at midnight the predicted snow flurries turned into a heavy snowstorm off Milwaukee, totally obstructing the Margot's radar as well as a visual fix on Wisconsin's largest city. The Margot slowed to 475 RPM's, but proceeded onward. During this time and for the remainder of the storm there was no radio contact with any other vessel on the lake. For another 9 1/2 hours on Wednesday, November 2, the flotilla continued up the west side of the lake in heavy seas that were building up gradually from 5 feet and running from north to north-northeast, with intermittent heavy snow. Weather forecasts at 4:10 AM and 10:10 AM on November 2 carried small craft warnings and predicted snow flurries. Not insignificantly, the 10:10 AM November 2 forecast predicted higher winds (22-32 knots) than had the 4:10 AM forecast (20-27 knots).
Off Sheboygan at 9:30 AM on November 2, the venturesome Margot made a sharp course change, heading east-northeast across the lake toward Big Sable Bull Point on the east shore. The sea was now running at 7 feet, the flotilla was 11 miles off Sheboygan and about 50 miles from Big Sable.
That afternoon at 1:30 a Special Lakes Warning was broadcast changing small craft warnings back to gale warnings for that portion of the lake south of a line between Manitowoc on the western shore and Ludington on the eastern shore. The Margot was below the line. On toward Big Sable across the lake she pushed, however, reducing speed to 425 RPM's, at midnight, November 2, with the seas increasing, snow falling and no communication, visual or electronic, with the barge.
The 4:10 PM Wednesday, November 2, weather and the 10:10 PM forecasts had told in stark terms of the doom awaiting Naess and Thompson:
4.10 p.m. * * * Gale warnings in effect. Manitowoc Ludington southward and change to gale warnings 7 p.m. EST Wednesday north of Manitowoc Ludington. Northerly winds 35 to 45 knots tonight becoming northwesterly 35 to 45 knots Thursday. Snow.
10.10 p.m. * * * Gale warnings in effect. Northerly winds 40 to 50 knots tonight becoming northwesterly Thursday morning and diminishing Thursday afternoon and night. Snow or snow flurries.
When asked to explain why he continued on course toward Big Sable despite the 1:30 PM special warning of November 2, when the flotilla could have turned back and made haven at Sheboygan (as the trial court found), the tug captain said, "We kept going in the same direction to get lee on the east shore." By 0600 hours on November 3, 10 miles off Big Sable Point, course was changed again and the flotilla ran north or northwest, into the wind, away from shore and head-on into one of the worst storms on the lake for years: "the worst one I have had," said a Moran deckhand with experience towing oil barges on the Great Lakes since 1949. The gyro on the tug "kicked out" and then the rack on the Margot's stern came loose in the rough weather. The wind was gusting 60-65 knots, steady 50, by 1500 hours on November 3, and the seas were running at least 15 feet. During all the night of November 2 and morning of November 3 there had been no running lights visible on the barge but a white light showed through a porthole in the cabin, seen during lulls in the storm. At 1830 hours on November 3 the storm cleared, and the Margot could see Point Betsie and the other fixes on the lake's east shore. It was 0645 hours on Friday morning the 4th, however, when the Margot's master noted that even the barge's cabin light wasn't lit and the barge was down, that is, its bow was high. The captain put full ahead to near shore until 0800 hours, when the hawser was pulled, and the tug's mate made his inspection trip, which revealed that Naess and Thompson ...