In re Owen McCaffrey's Sons

L. HAND, Circuit Judge.

The claimants upon this appeal do not challenge the finding of the District Court that the Bully could only have ridden out the storm where she lay. They had contended that she should have made for Wilson’s Point, but there was ample evidence to justify the judge’s conclusion that this would not have been a safe berth, and *729we should not be disposed to disturb his finding, even if the point were still pressed.

There remains only the conduct of the tug after the storm broke on the evening of the 13th. The failure to slip the port anchor along with the starboard could not possibly have had anything to do with the disaster, assuming that more cautious seamanship required it. The claimants’ theory is that the tow had already begun to drag when the port anchor was slipped, and that, had this been done earlier, the tug might have held it. If the tow had dragged ashore, there might he plausibility in this, but it did not. The bridle parted while the tug was dragging, and this was the first mishap. Yet it is plain that the strain on the bridle would have been greater, had the anchors held than if the whole flotilla dragged. Again, when the Bully made fast a second time with the hempen hawsers, she already had her two anchors down. We have no reason to assume at that time that she was dragging. At any rate it was once more the hawsers which parted, and the tow finally broke loose for this reason. It is possible, of course, that, had the hawsers held, the tow would still have gone ashore, but that is the merest speculation, and in any event it is impossible to hold the tug for what might have been the consequence of her delay in slipping the port anchor, when the loss in fact happened through the parting of the hawsers. We can see no fault in all this, the hawsers being sound.

Finally, it was a question of judgment whether to tell the barges to slip their anchors or not. A proper lead of cable would, or might, have brought the anchors of the hawser tier under the tug, and similarly, if the lines between the tiers had in fact been lengthened (which is disputed), the cables or anchors of each tier probably would have fouled the tier ahead. If they were not lengthened, it was impossible to slip any anchors but those on the first tier. There was a substantial sea on, in which the tug and her tow were jumping; there was little water to spare beneath them. We cannot say that good seamanship demanded the slipping of the barges’ anchors even of the first tier. Any vessel impaled upon one of the flukes was certain to be lost, and if this had happened to the tug, the whole flotilla would go. We are in no position to say which course was the wiser; if we were to guess, we should approve the master’s decision.

None of the other faults alleged are pressed or proved, and we cannot find any fault with which to charge the tug. The storm was exceedingly severe, though by no means unheard of, and while it is true that the tug learned of its approach, we do not see what more she could do than she did.

Decree reversed, and cause remanded, with instructions to grant the petition, not only for limitation, hut for freedom from liability.