The opinion of the court was delivered by: ABRUZZO
The libellants, Mary F. Chapman and Arthur Des Rosiers, have filed libels to recover damages sustained by their barges in a collision which occurred at Three River Point on April 27, 1937.
Each of the libellants owned a barge which was being towed by the steam tug "Olive K.". The tug and tow were eastbound in the New York State Barge Canal. The place of the accident was in the vicinity of Three River Point, the exact point being "219" opposite the wide entrance to the Oswego River (Des Rosiers Exhibit 1, which is a yellow navigation chart). From the east, the Oneida River flows into the Oswego, and from the west, the Seneca River flows into it. Several hundred feet east of the point "219" is a vehicular bridge, and to the east of that is a New York Central Railroad bridge. The distance from point "219" to the easterly side of the railroad bridge is somewhere between 600 and 700 feet.
At a point opposite the Oswego River and along the southerly side of the canal, there is a concrete wall. A dredge, belonging to the respondent The Huffman Construction Company, was along side of this wall at the point marked "219". To the westward of this dredge lay a steel scow. Outside of the dredge was a wooden dump scow which overlapped a part of the steel scow. There were also two small power boats, the "Carlotta" and the "Little Heron", the location of which with respect to the dredge is in dispute, but this disputed fact is not of vital importance.
The dump scow was the outermost of the dredging equipment. There is testimony that the extreme outermost of this dredging equipment was from 85 feet to 100 feet from the wall.
The tug "Olive K." was towing three barges and brought the first barge into collision with the westerly end of the dump scow at a place inside of its outermost point. As a result of the collision, the third barge was, in some unknown manner, damaged. The second one sustained no damage.
The R.C. Huffman Construction Company, owner of the dredging equipment, were sued in personam and the motor tanker "Plattsburg-Socony" was sued in rem. The respondents The Huffman Construction Company and the motor tanker "Plattsburg-Socony" impleaded the steam tug "Olive K.".
The claim of the libellants is that the tug "Olive K." was forced to collide with the dredging equipment because of the position of the respondent motor tanker "Plattsburg-Socony". It is their theory that the "Olive K." could not have maneuvered its tow to pass the "Plattsburg-Socony" safely because of the existing conditions. It is the contention of the navigator of the "olive K." that he was trapped and had one of two recourses to follow, either to come into collision with the dredging equipment or to navigate on the outside of the dredging equipment and collide with the "Plattsburg-Socony". The libellants seek to fasten liability on the respondent The Huffman Construction Company, contending that the dredging equipment was too far out from the wall.
Whether or not the motor tanker "Plattsburg-Socony" is responsible for the damage to these barges depends upon the answer to three problems which confront the libellants. These are:
1. Could the "Olive K." have turned to port and gone up the Oswego River?
2. Could the "Olive K." have stopped her tow in time to avoid contact with the dredging equipment?
3. Could the "Olive K." have proceeded around the dredging equipment and have passed port to port without colliding with it?
Undoubtedly the captain of the Olive K." could have gone up the Oswego River assuming and adopting the most favorable inferences to be drawn from the testimony of the captain of the "Olive K.". He saw the "Plattsburg-Socony" when he was 200 feet from the dredging equipment. At that time the "Plattsburg-Socony" was lying under the two bridges and looked as though she were drifting.
The captain of the "Olive K." testified that it was impossible to go up the Oswego River because the current was running that way. It was his opinion that he would pile up on the rocks if he made that attempt. However, there was a large expanse of water at that point as indicated on Des Rosiers Exhibit 1 and if the current were running that way it would appear that it would be feasible and safe to turn and go with the current. Had ...