The opinion of the court was delivered by: BYERS
The owner of the scow "C. E. Turner" seeks to recover for damages sustained by her on the afternoon of November 8, 1938, as the result of contact between her port side forward, about 25 to 30 feet aft of the bow, and the port stern corner of the Lehigh Valley Railroad Company carfloat No. 2011, in the North River off the Cement Dock which lies between the Lehigh Valley float bridges to the north and the ferry slips of the Central Railaoad Company of New Jersey on the south, on the New Jersey side of the river.
The fact of damage has been shown, and the only question for decision is whether it was caused by the negligence of diesel tug "Cree" operated by the claimant Conners Marine Co., Inc., and having the "Turner" in tow, or the Lehigh Valley tug "Athens" which was maneuvering the carfloat preparatory to taking her in tow, near the place of collision.
The time of the happening was 2:53 p.m.; the weather was clear, and an ebb tide was flowing, of the agreed strength of one and one-half miles an hour, and there was a southerly wind the average velocity of which was twenty-one miles during the hour between 2:00 and 3:00 o'clock, with a maximum of twenty-seven miles sometime during that interval.
The libelant's scow "Turner" was the second of three vessels of that type having the same dimensions, namely, 110 feet in length, 34 feet in beam, and sides that were 10 feet, 6 inches high.
They were being towed by the "Cree", which is about 70 feet long, 19.3 feet in beam, and having 450 horse power. The tug had 65-foot hawers out; that is to say, there was that space between her stern and the bow of the first scow. The three scows were closely coupled, so that the unit was fairly rigid.
The tow had been made up at Elizabethport and all the vessels were light, and the destination was the Cornell stakeboat in the North River at about 75th Street.
There can be no doubt that, as this tow approached the ferry slips of the Central Railroad Company of New Jersey, she was closer thereto than to the center of the stream. Such was the testimony of the bargee on the "Turner" and of all witnesses who observed the position of the tow, called on the part of the "Athens"; two of those witnesses were disinterested, namely, Reynolds, the captain of a New Haven tug lying at the Cement Dock, and Maire, the captain of one of the Jersey Central ferryboats which was lying in No. 4 (next to the lowest) of the Jersey Central ferry slips. He was in a good position to observe the approach of the "Cree", and testified that he saw her headed upstream, at about 300 feet off the Jersey Central float bridges (which are south of the slips), and that is accepted as establishing the approximate position of the "Cree" when she was about 1,000 feet southerly from the Lehigh Valley float bridges from which the tug "Athens" and the Lehigh Valley carfloat No. 2011 were soon to emerge.
The course of the "Cree" and her tow was necessarily altered almost at once because of an incoming Jersey Central ferryboat with which a port passing was arranged by whistle signals, and that is found to have taken place at about 600 feet off the Jersey Central ferry slips. This means that of necessity the course of the "Cree" and her tow at that time was on a heading toward Cortlandt Street, or diagonally across in a northeasterly direction from the Jersey Central ferry slips.
Up to this point, the testimony is not in dispute; the "Cree" then resumed her heading up the river and this involved a change in her course, because at no time did she approach the center of the river. It should be said here, that the only testimony for the "Cree" is that of her captain, Rohde; his version of events proved to be so freely adjustable by him during cross-examination as to constitute his evidence a very unreliable basis upon which to decide the issues.
The fact is that, almost immediately after the heading of the "Cree" was changed, the second barge in her tow, the "Turner", came in contact with the carfloat and the responsibility for that occurrence lies either with the "Cree" because of her faulty navigation, or with the "Athens" in charge of the carfloat, because the latter was permitted to come out into the stream under circumstances which, as the "Cree" contends, pointed to the peril of such a maneuver.
The "Athens" is 104 feet long by 26 1/2 feet in beam, with 1,000 horse power; she entered the slips of the Lehigh Valley float bridges for the purpose of taking the carfloat No. 2011 in tow for delivery of her nineteen loaded freight car at Long Island City, immediately prior to the incidents in controversy.
The No. 2011 is a steel carfloat, 325.7 feet long by 40 feet in beam. She carried nineteen loaded freight cars and was lying at the float bridge No. 3 (down river from bridges Nos. 1 and 2), and the "Athens" had to maneuver her out before making fast alongside in towing position, because there were two New Haven carfloats at bridges Nos. 1 and 2 where they had just been delivered by the New Haven tug "Transport No. 14". The latter tug, having completed her delivery, came out of the slips and took a position on the south side of the Cement Dock, the location of which has been stated. Her captain, Reynolds, was in the pilot house and was in a position to observe the approach of the "Cree" and her tow.
The "Athens" took up position on the downriver side of carfloat No. 2011 which was lying with her bow (toggle-end) inshore, and put a line on a bitt on the port side about 20 feet forward of the stern (bumper-end), preparatory to getting the carfloat out where there would be room to enable the ...