The opinion of the court was delivered by: BYERS
On June 11, 1939, at about 8:25 p.m., daylight saving time, a northbound tow of the Cornell Steamboat Company (hereinafter called Cornell) passed a southbound tow of the W.E. Hedger Transportation Corporation (hereinafter called Hedger) in the Hudson River, off Magdalen Island on the east shore, which is nearly two miles south of a point opposite Saugerties.
The passing was during an unusually heavy squall which accompanied a thunder storm, and involved a collision between the last barge in the starboard rank of the Cornell tow, and the second barge in the five barge single line tandem Hedger tow, whereby ensued these two causes in Admiralty.
Hedger, as owner of the said five loaded barges in tow of its tug "Top Sergeant", sues Cornell and its tugs "Rob" and "John D. Schoonmaker" (the towing vessels of the northbound tow) because it is alleged that they caused the tail of their tow to swing over toward the libelant's tug and her tow, causing the said collision, whereby each of the barges in libelant's tow was damaged.
The material faults alleged as to Cornell are that its tugs were unable to control their tow and were overloaded, and that they were not furnished with assisting tugs to enable them to control their tow. And as to the tugs:
That there was a failure to navigate with due regard to the safety of other vessels and to take into consideration existing conditions; that the tugs were attempting to tow too many boats and were overloaded, and that they failed to have helpers, and to take proper positions with respect to their tow, and failed to keep the latter in line.
At the trial, the libel was amended to allege, as an additional fault, that the Cornell tow failed to keep to the starboard side of a narrow channel; and the answer of Cornell was also amended to allege the same fault against Hedger, because the tows passed to starboard. It may be said at once on this subject, that a starboard passing was agreed to, and was proper.
M. & J. Tracy, Inc. (hereinafter called Tracy) as owner of the barge "E. Phalen, Jr.", sues to recover its damages from the Cornell tugs "Rob" and "John D. Schoonmaker" and the Hedger tug "Top Sergeant", because the barge "E. Phalen, Jr.", being the last vessel in the starboard rank of the Cornell tow, came in contact with the Hedger tow.
The material faults alleged are:
(a) As to the Cornell tug "Schoonmaker", that the navigated too close to the Hedger tow and attempted to pass at close quarters, and failed to agree upon a safe passage, and failed to stop and reverse when the Hedger tow was observed, and that, having the "Phalen" in tow, it caused and allowed the same to become damaged.
(b) As to the Hedger tug "Top Sergeant", failure to avert the sheer of the barges in its tow, and that a passing was attempted in close quarters, and that there was a failure to agree upon a safe passage, and a failure to stop and reverse her engines when the Cornell tow was observed.
(c) As to the Cornell tug "Rob", carelessness, incompetence and inattention as assisting tug to the Cornell tow.
The defense of Hedger to this cause is that the northbound Cornell tow was so close to the west side of the Hudson River that a starboard passing was required, and that the Cornell tugs allowed the tail of their tow to swing over toward the "Top Sergeant", and consequently responsibility is to be attributed to the Cornell tow.
The Cornell answer is common to both causes, and pleads that the navigation was proper and in accordance with custom, namely, that its tow was passing up the Barrytown channel on the easterly side of the shoal known as The Flats, and when in the vicinity of Barrytown the Cornell tugs hauled to the westward and shaped a course up the westerly side of the main channel off Turkey Point and continued to hold a course along the westerly side of the channel opposite Cruger Island and along the shoal known as Saddle Bags, which was customary, there being a flood tide; and that, when that course was initiated, there was a light south or southwesterly breeze, and that the Cornell tugs had ample power to handle their tow under all conditions which were reasonably to be anticipated; that, when the Hedger tow was observed, bound southerly, it was well above Magdalen Island and holding a course heading down the river on the easterly side of the channel above Saddle Bags Shoal, and that the respective courses would admit of a safe starboard passage with a clearance of about 400 feet; and that when the respective tugs were nearly abreast of each other "a sudden and wholly unexpected gale of extraordinary force and velocity struck approximately out of the west-northwest, and, catching the light boats on the port side of the Cornell tow, immediately caused the tow to swing rapidly across the channel to the eastward. In that sudden and unexpected emergency which had developed without any warning, the only safe ...