238 F. 237 | S.D.N.Y. | 1916
The Edgar F. Eucken-bach had in tow the schooner coal barges A. G. Ropes and the Undaunted. These barges carried over 5,000 tons of coal. The tug drew about 17 feet of water, and the barges about 27 feet of water. The tow passed the Delaware Breakwater about 4 o’clock December 24th, bound for Providence, R. I. There is no proof that weather conditions were not satisfactory, and, indeed, it is now practically admitted by all concerned that the captain was justified in putting out with his tow at the time he did. As he proceeded up the New Jersey coast the wind freshened, and by 4 o’clock on December 25th a gale from the northeast was blowing and a large sea running. About 9 o’clock the captain decided that he could not weather the storm, and made up his mind to turn back and return to the Delaware Breakwater, which was about 100 miles to the south. He has testified that the wind was blowing so- hard from the northeast that he could not turn his tug and the tow to the starboard, so he tuurned to port. The place where he turned about was off Sea Girt, N. J. The captain in his deposition said:
“I put the wheel hardaport and tried to work her around to the eastward, but couldn’t work her to it. The sea was running on her starboard side; she wouldn’t work head- to it.’ I put the wheel hardastarboard, and came around on the starboard wheel, turned her in shore to the westward. After I got turned around south-southeast, sounded and had 14% fathoms of water strong. The wind was northeast. After I got turned around I headed her out. Continued on that course on down, trying to get to the Breakwater, or run far enough to the southward out of that, or until we got better weather. After I got down probably 10 miles more, the wind backed around again east on me, and kept on breezing up all the time. Around 11 o’clock I found out I couldn’t do anything with the two barges. I say it was a little after 11, around 11; and I blew signals ‘Prepare to anchor,’ and I went- probably 15 or 20 minutes, and I blew ‘Head barge let go stern barge,’ and then blew*239 ‘Let go anchor.’ I never received no response, and I couldn’t see them,' and I couldn’t tell what they had done, or whether they h'ad let go. X . never saw the barges from 6 o’clock at Sea G-irt. I saw the barges then, and they were all right. They had no distress signals up then whatever, and after I turned around I only saw Sea Girt possibly 15 minutes to the longest. Just a little lull came and I could see the Light; it cleared it up, and itl showed pretty bright then. After I turned around and got down as far as X did, it kept breezing on and breezing on, and I found out I was going sideways faster than I was going ahead. At 12 o’clock I blew them again ‘Prepare to anchor,’ but got no response from them at all. It was blowing hard and the sea was running high all the time, and we got in further all the time; but we hadn’t got in further than i3% fathoms. We got that up to 1 o'clock. * * • After 1 o’clock, shortly after 1 o’clock I had the mate sound again, and he sung out 12 fathoms of water, and at 1:20 or 1:30, I believe it was, he shouted out 9 fathoms of water, and just as he shouted out 9 fathoms of water, why I saw a light ahead of me, and by the bearing of that light I knew where I' was at, and I shouted out, ‘Out fbe hawser,’ and he cut the hawser, because I knew we were in the breakers, because one breaker had gone over us already. * • * * Just as he cut the hawser we ran into another breaker, and I knew we were just as near in as I dare get without risking the lives of the 17 men and the tugboat. * * * If it was blowing a. mile, it was blowing 70 miles an Four, and the sea was runnihg very high. * * * ”
After the hawser was cut, the barges, with the men on them, were dashed to pieces on the New Jersey coast, and these libels are filed by the widows of three of the crew of the barges to recover damages from the owner of the tug for negligent navigation.
Perhaps I should take up the second criticism first. The captain of the tug says that he blew signals to the barges to anchor at about 11 o’clock. It is obvious from the testimony that this was a hopeless expedient, because the nearest barge was about 1,200 feet astern of the tug, and the second barge was 1,200 feet behind the first one. It is most unlikely that the sound of a steam whistle could be heard against a roaring gale that was blowing, according to the testimony, not toward, but from the direction of, the barges, at the rate of upwards of 60 miles an hour. Undoubtedly, if the tugs had heard, they would have anchored, or at least answered, and their whistles, coming from the
In regard to- the first criticism of the captain’s navigation, I do not feel certain that it may not be well founded. It has been pressed with earnestness and ability by the libelants’ counsel, and indeed, considering how little evidence was available on his side of the case, owing to the disappearance of the entire crew of the .barges, I have felt that he has made a wonderfully strong argument under all the circumstances. It is to be remembered, however, that at the time the tug turned the tow the wind was not blowing eastwardly, but northeast-wardly. I do not think, under these conditions, that the libelants have established that the captain was negligent in attempting to turn his tow and go before the wind, or that the wind was at the time so directly shoreward as to make his attempt ill-advised. If he had succeeded, -all would have thought him a wise navigator. He had a difficult decision to make in a crisis, and, while I may doubt the correctness of his judgment, I cannot say that, under all the circumstances, he máde it negligently or improvidently. He was undoubtedly bound to be loyal to the bargemen, to bear in mind that the hawser which bound the barges to the tug was almost their only hope in that storm, which was carrying tug and tow constantly nearer to the New Jersey coast, and in general to act the part of a prudent navigator and a brave man. After reading his explanation of his conduct, I cannot feel justified in pronouncing his decision improvident and reckless, because of the opinion of an expert.
After careful consideration, I have reached the conclusion that the libelants have not sustained the burden of'proof in establishing that the captain of the tug was negligent, and I therefore direct that the' libels be dismissed.
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